13-001158PL Department Of Health, Board Of Massage Therapy vs. Zixuan Yang, L.M.T. Status: Closed Recommended Order on Thursday, July 18, 2013.

Summary: Petitioner failed to prove that Respondent's license was issued in error or that Respondent engaged in fraudulent misrepresentation. Respondent's diploma, which has not been revoked, continues to signify completion of an approved course of study.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY ,

Petitioner ,

vs. Case No. 13 - 1158PL

ZIXUAN YANG, L.M.T. ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference at sites in Tallahassee and

West Palm Beach, Florida, on June 4, 2013, before Administrative

Law Judge Edward T. Bauer of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Renee C. Harkins, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: June H. Zhou, Esquire

June Zhou, PLLC

2136 Saint Andrews Boulevard, Suite 209

Boca Raton, Florida 33433

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committed

the allegations contained in the Administrative Co mplaint and,

if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On October 17, 2012, Petitioner, Department of Health

("Department"), filed a three - count Administrative Complaint

("Complaint") against Respondent, Zixuan Yang. In Count One of

the Complaint, the Department alleges that Respondent violated

section 456.072(1)(h), Florida Statutes, in that she obtained

her license to practice massage therapy "through error of the

Department of Health or through fraudulent misrepresentation by

subm itting a fraudulent transcript and fraudulent [c]ertificates

of [c]ompletion with her application." The Department further

alleges, in Count Two, that Respondent submitted "a fraudulent

transcript and fraudulent [c]ertificates of [c]ompletion" in

connecti on with her application for licensure, contrary to

section 456.072(1)(w). Finally, in Count Three, the Department

asserts that Respondent's license is subject to revocation

pursuant to section 480.041(1)(b), Florida Statutes, which

provides that, in order to qualify for licensure as a massage

therapist, an applicant must complete a course of study at an

approved massage school or complete an appropriate internship

program.

Respondent timely requested a formal hearing to contest the

allegations, and, on Mar ch 28, 2013, the matter was referred to

the Division of Administrative Hearings ("DOAH") and assigned to

Administrative Law Judge John G. Van Laningham. On May 31,

2013, Judge Van Laningham transferred the instant matter to the

undersigned for further pro ceedings.

As noted above, the final hearing in this matter was held

on June 4, 2013, during which the Department presented the

testimony of one witness (Melissa Wade) and introduced four

exhibits into evidence, numbered 1 - 4. Respondent testified on

her ow n behalf and introduced 18 exhibits, numbered 1 - 12

and 16 - 21.

The final hearing transcript was filed with DOAH on

June 28, 2013. Thereafter, the parties submitted proposed

recommended orders, which the undersigned has considered in the

preparation of this Recommended Order. 1 /

FINDING S OF FACT

A. The Parties

1. The Department and the Board of Massage Therapy

("Board") have regulatory jurisdiction over licensed massage

therapists such as Respondent. The Department furnishes

investigative services to the Board and is authorized to file

and prosecute an administrative complaint, as it has done in

this instance, when cause exists to suspect that a licensee has

committed one or more disciplinable offenses.

2. On August 1, 2007, the Department issued Responde nt

license number MA 50975, which authorized her to practice

massage therapy in the state of Florida. Respondent's address

of record is 3558 Silver Lace Lane, Boynton Beach, Florida

33436.

B. Respondent's Training and Application for Licensure

3. Respon dent was born in China and, at all times relevant

to this proceeding, was a citizen of China. In or around

September 2005, Respondent immigrated to the United States and

became a citizen of the state of Massachusetts.

4. Some six months later, Respondent relocated to Florida,

where she resided until December 2006; at that point, Respondent

moved to California to attend Royal Irvin College ("Royal

Irvin"), an institution that offered massage therapy

instruction. On March 14, 2007, upon Respondent's succes sful

completion of a course of study comprising 500 hours, Royal

Irvin awarded her a degree.

5. Subsequently, on July 12, 2007, Respondent passed the

National Certification Examination for Therapeutic Massage and

Bodywork. At or around that time, Respond ent relocated to

Pompano Beach area to seek employment as a massage therapist.

6. Owing to the fact that Royal Irvin was not a Board -

approved massage school, Respondent needed to complete a course

of study at an approved institution or, alternatively, an

apprenticeship program. At the suggestion of an acquaintance,

Respondent decided to contact the Florida College of Natural

Health ("FCNH"), a Board - approved massage school located in

Pompano Beach. An initial inquiry of FCNH was made by

Respondent's ex - h usband, who, at Respondent's request,

telephoned the institution and spoke with one of its employees.

7. Thereafter, on or about July 27, 2007, Respondent and

her ex - husband traveled to FCNH's campus and met with the

institution's registrar, Glenda Johnso n. Respondent's ensuing

dealings with Ms. Johnson and her application for licensure are

discussed shortly; first, though, a description of FCNH ÏÏ and its

responsibilities under Florida law ÏÏ is in order.

8. FCNH, an incorporated nonpublic postsecondary

edu cational entity, holds a license by means of accreditation

that authorizes its operation in Florida as an independent

college. The Florida Commission for Independent Education

("CIE"), which regulates nonpublic postsecondary institutions,

issued the neces sary license to FCNH pursuant to

section 1005.32, Florida Statutes (2012). 2 / In addition to being

duly licensed by the state, FCNH is accredited by the

Accrediting Commission of Career Schools and Colleges and by the

Commission on Massage Therapy. Finall y, FCNH is a "Board -

approved massage school" within the meaning of that term as

defined in section 480.033, Florida Statutes.

9. At the times relevant to this proceeding, the minimum

requirements for becoming and remaining a Board - approved massage

school were set forth in Florida Administrative Code Rule 64B7 -

32.003 (Aug. 16, 1998), which provided in relevant part as

follows:

(1) In order to receive and maintain Board

of Massage Therapy approval, a massage

school, and any satellite location of a

previousl y approved school, must:

(a) Meet the requirements of and be

licensed by the Department of Education

pursuant to Chapter 246, F.S. [now Ch . 1005,

F la . S tat .], or the equivalent licensing

authority of another state or county, or be

within the public schoo l system of the State

of Florida; and

(b) Offer a course of study that includes,

at a minimum, the 500 classroom hours listed

below . . . .

(c) Apply directly to the Board of Massage

Therapy and provide the following

information:

1. Sample transcrip t and diploma;

2. Copy of curriculum, catalog or other

course descriptions;

3. Faculty credentials; and

4. Proof of licensure by the Department of

Education.

(emphasis added).

10. As an institution holding a license by means of

accreditation, FCNH must comply with the fair consumer practices

prescribed in section 1005.04 and in the rules of the CIE. 3 /

Regarding these required practices, section 1005.04, Florida

Statutes (2007), provided during the relevant time frame as

follows:

(1) Every institut ion that is under the

jurisdiction of the commission or is exempt

from the jurisdiction or purview of the

commission pursuant to s. 1005.06(1)(c) or

(f) and that either directly or indirectly

solicits for enrollment any student shall :

(a) Disclose to eac h prospective student a

statement of the purpose of such institution,

its educational programs and curricula, a

description of its physical facilities, its

status regarding licensure, its fee schedule

and policies regarding retaining student fees

if a stud ent withdraws, and a statement

regarding the transferability of credits to

and from other institutions . The institution

shall make the required disclosures in

writing at least 1 week prior to enrollment

or collection of any tuition from the

prospective st udent. The required

disclosures may be made in the institution's

current catalog;

(b) Use a reliable method to assess, before

accepting a student into a program, the

student's ability to complete successfully

the course of study for which he or she has

applied;

(c) Inform each student accurately about

financial assistance and obligations for

repayment of loans; describe any employment

placement services provided and the

limitations thereof; and refrain from

promising or implying guaranteed placement,

m arket availability, or salary amounts;

(d) Provide to prospective and enrolled

students accurate information regarding the

relationship of its programs to state

licensure requirements for practicing related

occupations and professions in Florida;

* * *

(2) In addition, institutions that are

required to be licensed by the commission

shall disclose to prospective students that

additional information regarding the

institution may be obtained by contacting the

Commission for Independent Education,

Departme nt of Education, Tallahassee.

(emphasis added).

11. At the time of the events giving rise to this

proceeding, the CIE's rule relating to fair consumer practices

provided in relevant part as follows:

(1) This rule implements the provisions of

Sections 10 05.04 and 1005.34, F.S., and

establishes the regulations and standards of

the Commission relative to fair consumer

practices and the operation of independent

postsecondary education institutions in

Florida.

(2) This rule applies to those institutions

as specified in Section 1005.04(1), F.S.

All such institutions and locations shall

demonstrate compliance with fair consumer

practices.

(6) Each prospective student shall be

provided a written copy, or shall have

access to an electronic copy, of the

insti tution's catalog prior to enrollment or

the collection of any tuition, fees or other

charges. The catalog shall contain the

following required disclosures, and catalogs

of licensed institutions must also contain

the information required in subsections 6E -

2.004(11) and (12), F.A.C.:

* * *

(f) Transferability of credits: The

institution shall disclose information to

the student regarding transferability of

credits to other institutions and from other

institutions. The institution shall

disclose that tra nsferability of credit is

at the discretion of the accepting

institution , and that it is the student's

responsibility to confirm whether or not

credits will be accepted by another

institution of the student's choice. . . .

No representation shall be made by a

licensed institution that its credits can be

transferred to another specific institution,

unless the institution has a current, valid

articulation agreement on file. Units or

credits applied toward the award of a

credential may be derived from a comb ination

of any or all of the following:

1. Units or credits earned at and

transferred from other postsecondary

institutions, when congruent and applicable

to the receiving institution's program and

when validated and confirmed by the

receiving institutio n.

2. Successful completion of challenge

examinations or standardized tests

demonstrating learning at the credential

level in specific subject matter areas.

3. Prior learning, as validated, evaluated,

and confirmed by qualified instructors at

the recei ving institution.

* * *

(11) An institution is responsible for

ensuring compliance with this rule by any

person or company contracted with or

employed by the institution to act on its

behalf in matters of advertising,

recruiting, or otherwise making

rep resentations which may be accessed by

prospective students, whether verbally,

electronically, or by other means of

communication.

Fla. Admin. Code R. 6E - 1.0032 (July 23, 2007)(emphasis added).

12. As a duly - licensed, accredited, Board - approved massage

school, FCNH was, at all relevant times, authorized to evaluate

the transferability of credits to FCNH from other massage

schools, so that credits earned elsewhere (including from

schools that were not Board - approved) could be applied toward

the award of a diploma from FCNH. In making such an evaluation,

FCNH was obligated to follow the standards for transfer of

credit that the Board had established by rule. 4 / Further, when

exercising its discretion to accept transfer credits, FCNH was

required to complet e, sign, and attach to the student's

transcript the Board's Transfer of Credit Form, by which the

school's dean or registrar certified that the student's

previously - earned credits, to the extent specified, were

acceptable in lieu of the student's taking co urses at FCNH.

13. Returning to the events at hand, Respondent met with

FCNH's registrar, Ms. Johnson, on July 27, 2007. Notably,

Ms. Johnson possessed actual authority, on that date and at all

relevant times, to generate official transcripts and diplom as on

behalf of FCNH. 5 /

14. The meeting, which took place on a weekday during

normal business hours, was held in Ms. Johnson's office ÏÏ located

on the first floor of a multi - story building on FCNH's Pompano

Beach campus. Upon Respondent's arrival at the m ain entrance, a

receptionist summoned Ms. Johnson, who, a short time later,

appeared in the lobby and escorted Respondent (and Respondent's

ex - husband) to her office.

15. During the meeting that ensued, Respondent reiterated,

with her limited English skil ls, her desire to obtain licensure

in Florida as a massage therapist. To that end, Respondent

presented Ms. Johnson with various documents, which included her

diploma and transcript from Royal Irvin, as well as proof of her

national certification.

16. At one point during the meeting, and in response to a

question from Respondent's ex - husband, Ms. Johnson informed

Respondent ÏÏ erroneously ÏÏ that her existing coursework was

sufficient for licensure and that Respondent could simply

transfer her previously - earn ed credits to FCNH. (Among other

things, Ms. Johnson should have advised Respondent that Board -

approved coursework in "HIV/AIDS," which Respondent did not

complete until after 6 / the Complaint was filed in this matter,

was required for licensure.) All Res pondent needed to do,

Ms. Johnson incorrectly explained, was read an FCNH - prepared

booklet concerning the prevention of medical errors. Consistent

with Ms. Johnson's instructions, Respondent took the booklet 7 /

home and reviewed its contents.

17. As the m eeting progressed, Ms. Johnson collected

$468.00 in fees from Respondent and helped her complete a three -

page form titled, "State of Florida Application for Massage

Therapist Licensure." In the application, Respondent truthfully

disclosed, among other thi ngs, that she had completed 500 hours

of study at Royal Irvin; that Royal Irvin was not approved by

the Board; and that she had not attended an apprenticeship

program. (Although the evidence establishes that Respondent

failed to review the rules and statu tes pertaining to massage

therapy prior to signing the application ÏÏ the plain language of

which requires applicants to certify that the rules and statutes

have been read ÏÏ the Department failed to charge this conduct in

the Complaint.)

18. Thereafter, and on Respondent's behalf, Ms. Johnson

submitted to the Department Respondent's application for

licensure. The application was accompanied by a number of

supporting documents, including two "Certificates of

Completion," both of which bore Ms. Johnson's signa ture and

FCNH's official seal. The first such certificate reflected that

Respondent had satisfied a two - hour course relating to the

prevention of medical errors, while the second indicated the

completion of a "Therapeutic Massage Training Program (Transfe r

of Licensure)." The application package prepared and submitted

by Ms. Johnson also contained: a "Transfer of Credit Form"

signed by Ms. Johnson, which indicated that FCNH accepted

Respondent's credits from Royal Irvin, and, further, that

Respondent's c oursework at Royal Irvin included a three - credit

course concerning "HIV/AIDS"; an FCNH transcript that bore

Ms. Johnson's signature and indicated that Respondent had

completed a 500 - hour program titled "Therapeutic Massage

Training Program (Transfer of Lic ensure)"; Respondent's diploma

and transcript from Royal Irvin; and proof of Respondent's

national certification as a massage therapist.

19. Collectively, the credit transfer form, the FCNH

certificates, and the FCNH transcript "signify satisfactory

compl etion of the requirements of an educational or career

program of study or training or course of study" and constitute

a "diploma" within the meaning of that term as defined in

section 1005.02(8), Florida Statutes. (These documents, which

Respondent's FCNH diploma comprises, will be referred to

hereafter, collectively, as the "Diploma.")

20. Subsequently, on August 1, 2007, the Department issued

Respondent her license to practice massage therapy. With the

exception of the instant proceeding, there is no e vidence that

Respondent's license has been the subject of prior disciplinary

action.

C. Subsequent Events

21. In December 2011, an individual with the National

Certification Board for Therapeutic Massage and Bodywork ("NCB")

placed a telephone call to Me lissa Wade, a managerial employee

of FCNH, to report that the NCB had received a number of

applications to sit for the National Certification Examination

(which the NCB administers) from FCNH graduates whose

transcripts seemed irregular. What these applic ants had in

common was that they had earned their massage therapy diplomas

from Royal Irvin, and that the same member of FCNH's

administration ÏÏ i.e., Ms. Johnson ÏÏ had accepted their transfer

credits. The NCB sent copies of the suspicious credentials to

FC NH.

22. Ms. Wade reviewed the materials and detected some

anomalies in them. Unable to find records in the school's files

confirming that the putative graduates in question had been

enrolled as students, Ms. Wade confronted Ms. Johnson with the

problemat ic transcripts and certificates. Ms. Johnson admitted

that she had created and signed them, but she denied ÏÏ falsely,

at least with respect to her dealings with Respondent ÏÏ ever

having taken money for doing so. (Ms. Johnson provided the

rather dubious exp lanation that she had been merely trying to

"help" people.) Shortly thereafter, in December 2011, FCNH

terminated Ms. Johnson's employment.

23. Thereafter, Ms. Wade notified the Department that some

of FCNH's diplomates might not have fulfilled the requi rements

for graduation. This caused the Department to launch an

investigation, with which FCNH cooperated. The investigation

uncovered approximately 240 graduates, including Respondent,

whose credentials FCNH could not confirm.

24. Respondent has not su rrendered her Diploma or

otherwise acceded to the allegation that the credentials FCNH

conferred upon her are invalid. Although Ms. Wade credibly

testified at hearing that Ms. Johnson should not have awarded

Respondent an FCNH Diploma based on Respondent' s Royal Irvin

credits, there is no evidence that FCNH has initiated a legal

proceeding to revoke or withdraw Respondent's Diploma. At

present, therefore, there is no legally binding or enforceable

determination that the Diploma is void or that Respondent is

without rights and privileges thereunder.

25. Further, and just as important, it has not been shown

that Respondent provided Ms. Johnson (or any other FCNH

employee) with false information, nor does the evidence support

a finding that Respondent knew o r should have known that

Ms. Johnson's issuance of the Diploma was anything but routine

and in accordance with FCNH's academic policies. Under the

circumstances, it was entirely reasonable for Respondent to rely

upon Ms. Johnson's representations, as Res pondent was entitled

under the law to receive accurate information from FCNH

concerning, among other things, the transferability of credits

to FCNH, as well as the relationship between FCNH's academic

program and the state's licensure requirements for mass age

therapists.

CONCLUSIONS OF LAW

A. Jurisdiction

26. DOAH has jurisdiction over the parties and subject

matter of this cause, pursuant to section 120.57(1), Florida

Statutes.

B. The Burden and Standard of Proof

27. This is a disciplinary proceeding i n which the

Department seeks to discipline Respondent's license to practice

massage therapy. Accordingly, the Department must prove the

allegations contained in the Administrative Complaint by clear

and convincing evidence. Dep't of Banking & Fin., Div. of Secs.

& Investor Prot. v. Osborne Sterne, Inc. , 670 So. 2d 932, 935

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294 (Fla.

1987).

28. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

deve loped a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

[C]lear and convincing evidence requires

that the eviden ce must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weigh t that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and co nvincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994).

C. Statutory Construction/Notice

29. Disciplinary statutes and rules "must be construed

strictly, in favor of the one against whom the penalty would be

imposed." Munch v. Dep't of Pro f'l Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); Camejo v. Dep't of

Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Crim. Just. Stds. & Training Comm'n , 458 So. 2d 887,

888 (Fla. 5th DCA 1984)("[W]here a s tatute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguitie s

included, they must be construed in favor of the licensee.").

30. Due process prohibits an agency from taking

disciplinary action against a licensee based on matters not

specifically alleged in the charging instrument. Trevisani v.

Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A

physician may not be disciplined for an offense not charged in

the complaint"); Delk v. Dep't of Prof'l Reg. , 595 So. 2d 966,

967 (Fla. 5th DCA 1992)("[T]he conduct proved must legally fall

within the statute or ru le claimed [in the administrative

complaint] to have been violated"); § 120.60(5), Fla. Stat. (" No

revocation, suspension, annulment, or withdrawal of any license

is lawful unless, prior to the entry of a final order, the

agency has served, by personal ser vice or certified mail, an

administrative complaint which affords reasonable notice to the

licensee of facts or conduct which warrant the intended

action . . . .").

31. With the foregoing principles in mind, the undersigned

turns to the three statutory o ffenses charged in the Complaint,

each of which is discussed separately below.

D. Count One

32. In Count One of the Complaint, the Department alleges

that Respondent is in violation of section 456.072(1)(h), a

provision that subjects a licensee to discip line for:

Attempting to obtain, obtaining, or renewing

a license to practice a profession by

bribery, by fraudulent misrepresentation, or

through an error of the department or the

board.

33. In paragraph 20 of the Complaint, however, the

Department narr owed its theory of prosecution as follows:

Based on the foregoing, Respondent . . .

obtain[ed] her license to practice massage

therapy in the State of Florida through

error of the Department of Health or through

fraudulent misrepresentation by submitting a

fraudulent transcript and fraudulent

Certificates of Completion with her

application, in violation of section

456.072(1)(h) . . . .

(emphasis added).

34. Significantly, the Department's Proposed Recommended

Order contains no discussion of its first th eory ÏÏ i.e., that

Respondent's license was issued through an "error" of the

Department of Health. Accordingly, this particular theory,

which lacks merit in any event, is deemed abandoned. See Dep't

of Health, Bd. of Med. v. Scheinberg , Case No. 10 - 10047PL , 2011

Fla. Div. Adm. Hear. LEXIS 155, *17 n.2 (Fla. DOAH June 20,

2011)(deeming certain allegations abandoned where the Department

failed to address them in its proposed recommended order); Dep't

of Health, Bd. of Massage Therapy v. Diamond , Case No. 12 -

3 825PL, 2013 Fla. Div. Adm. Hear. LEXIS 204, *26 (Fla. DOAH

Apr. 9, 2013)(concluding that evidence failed to demonstrate a

violation of section 456.072(1)(h); "Because a unilateral error

[by the Department] does not involve any wrongful act on the

licensee' s part, such an event cannot constitute a basis for

discipline.").

35. Regarding the allegation that Respondent obtained her

license by submitting fraudulent documents (specifically, the

FCNH transcript and certificates), it is useful to recall that,

in t he context of a civil suit, the essential elements of a

fraud claim are: (1) a false statement concerning a material

fact, including a nondisclosure when under a duty to disclose;

(2) made with knowledge that the representation (or omission) is

false and with the intention of inducing another's reliance

thereon; and (3) consequent injury to the other party acting in

reliance on the false representation. See, e.g. , Cohen v.

Kravit Estate Buyers, Inc. , 843 So. 2d 989, 991 (Fla. 4th DCA

2003). In an adminis trative proceeding such as this, where an

applicant is alleged to have used fraudulent means in an attempt

to obtain a license, "it is not necessary for the agency to

prove actual injury, but the rest of the common law definition

of fraudulent conduct is r elevant and applicable in evaluating

the charge." Diamond , 2013 Fla. Div. Adm. Hear. LEXIS 204

at *28.

36. "[F]raudulent intent usually must be proved by

circumstantial evidence and such circumstances may, by their

number and joint consideration, be suff icient to constitute

proof." Nally v. Olsson , 134 So. 2d 265, 267 (Fla. 2d DCA

1961). Therefore, as proof of fraud, "one may show 'a series of

distinct acts, each of which may be a badge of fraud and when

taken together as a whole, constitute fraud.'" D ep't of Rev. v.

Rudd , 545 So. 2d 369, 372 (Fla. 1st DCA 1989)(quoting Allen v.

Tatham , 56 So. 2d 337, 339 (Fla. 1952)). Further, "[s]cienter,

or guilty knowledge, [which] is an element of intentional

misconduct [such as fraud], . . . can be established by showing

actual knowledge, or that the defendant was reckless or careless

as to the truth of the matter asserted." Ocean Bank of Miami v.

INV - UNI Inv. Corp. , 599 So. 2d 694, 697 (Fla. 3d DCA 1992).

37. In this case, the Department failed to adduce clear

and convincing evidence that Respondent knew or should have

known that the FCNH transcript and certificates of completion

generated by FCNH's registrar were fraudulent or in any manner

improvidently issued. As discussed previously, Respondent

reasonably r elied upon the registrar's representations (as

Respondent was entitled to do under the law) concerning the

relationship between FCNH's academic program and Florida's

licensure requirements for massage therapists, as well as the

transferability of the Royal Irvin credits to FCNH. At best,

the Department has merely established that FCNH's registrar

engaged in fraudulent or improper conduct by issuing the

documents ÏÏ behavior that, standing alone, does not provide a

basis upon which to convict Respondent, as s ection 456.072(1)(h)

requires evidence of personal misconduct by the licensee. See

Pic N' Save v. Dep't of Bus. & Prof'l Reg. , 601 So. 2d 245, 250

(Fla. 1st DCA 1992)("[O]ne's license to engage in an occupation

is not to be taken away except for misconduc t personal to the

licensee"); Dep't of Health, Bd. of Massage Therapy v. Diamond ,

Case No. 12 - 3825PL, 2013 Fla. Div. Adm. Hear. LEXIS 204, *29 - 30

(Fla. DOAH Apr. 9, 2013)("The Department failed to prove that

Diamond knowingly, and with the intent to deceiv e the

Department, made any false statement of material fact in, or in

connection with, her application. Therefore, Diamond is not

guilty of [violat

38. In its Proposed Recommended Order, the Department

advances, for the firs t time, an alternative theory of fraud:

that Respondent signed an application that she knew, or should

have known, contained false information. See Department's PRO

at p. 13. This argument is a nonstarter, however, as the

Department did not allege this particular theory in its

Complaint; instead, and as noted above, the Department merely

alleged that Respondent committed "fraudulent misrepresentation

by submitting a fraudulent transcript and fraudulent

[c]ertificates of [c]ompletion with her application. " See

Complaint at ¶ 20 (emphasis added). Responde nt is not guilty of

Count One.

E. Count Two

39. The Department further alleges, in Count Two of the

Complaint, that Respondent is in violation of section

456.072(1)(w), which subjects a licensee to disc ipline for:

Failing to comply with the requirements for

profiling and credentialing, including, but

not limited to, failing to provide initial

information, failing to timely provide

updated information, or making misleading,

untrue, deceptive, or fraudulen t

representations on a profile, credentialing,

or initial or renewal licensure application.

40. Although section 456.072(1)(w) encompasses a variety

of misconduct, it is significant that, in paragraph 24 of the

Complaint, the Department limited its theor y of guilt to the

allegation that Respondent "submitt[ed] a fraudulent transcript

and fraudulent [c]ertificates of [c]ompletion with her

Application."

41. For the reasons elucidated in the undersigned's

discussion of Count One, the Department has failed t o

demonstrate that Respondent knew, or should have known, that

either the transcript or the certificates of completion were

fraudulent. Further, the Department's alternative theory (that

Respondent signed an application that contained false

information), raised for the first time in its Proposed

Recommended Order, is not properly before this tribunal. See

Trevisani v. Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st

DCA 2005)(holding that a licensee cannot be disciplined for an

offense not charged in the complaint). Respondent is not guilty

of Count Two.

F. Count Three

42. Finally, the Department charges Respondent under

section 480.046(1)(o), which subjects a licensee to discipline

for, among other things, violating any provision of chapter 480.

Speci fically, the Department alleges that Respondent has not

"completed a course of study at a Florida Board - approved massage

school," and has therefore violated a provision of chapter 480 ÏÏ

namely, section 480.041(1)(b), which makes completion of such a

course of study (or, alternatively, an apprenticeship program) a

qualification for licensure as a massage therapist.

43. As an initial matter, the undersigned is dubious of

the Department's attempt to punish Respondent for "violating"

section 480.041(1), a provi sion that:

[D]oes not by its terms require compliant

behavior, either by prescribing minimum

standards of conduct or forbidding conduct

deemed wrongful. Rather, this statute

merely describes the qualifications that a

person must possess to be licensed as a

massage therapist. A person who lacks one

or more of the statutory requirements is

unqualified, but being unqualified is not

the same as being a lawbreaker. Because

section 480.041(1) is not violable as that

term is ordinarily understood, the

undersign ed is skeptical that any person can

be punished for "violating" section

480.041(1).

Diamond , 2013 Fla. Div. Adm. Hear. LEXIS 204 at *30 - 31; Dep't of

Health, Bd. of Massage Therapy v. Jiang , Case No. 12 - 3610 PL ,

slip op. at 13 (Fla. DOAH June 11, 2013)(John ston, J.)

("[S]ection 480.046(1)(o) sets out qualifications for an

applicant for licensure; it does not, strictly speaking, make it

a violation to obtain a license without being qualified.").

Even assuming, however, that a licensee can be properly

discipl ined for having "violated" section 480.041(1)(b), the

Department has failed to prove, for the reasons detailed below,

that Respondent did not complete a course of study at a Board -

approved massage school.

44. At the time Respondent submitted her initial

a pplication, Florida Administrative Code Rule 64B7 - 32.002

provided as follows:

In order to be acknowledged as a graduate of

a Board approved massage school as referred

to in subsection 480.033(9), F.S., the

Board's administrative office must receive

an offi cial transcript documenting the

applicant's training. Such transcript must

document to the satisfaction of the Board

that the applicant has successfully

completed a course of study in massage which

met the minimum standards for training and

curriculum as delineated in this rule

chapter. A transcript indicating passing

grades in all courses, and including dates

of attendance, and stating the date of

successful completion of the entire course

of study, is evidence of successful

completion. If the transcrip t does not

specifically state that the student

successfully completed the entire course of

study, the transcript must be accompanied by

a diploma or certificate of completion

indicating the dates of attendance and

completion.

(emphasis added).

45. As dis cussed previously, Respondent's application

included a Diploma that comprised the FCNH transcript, credit

transfer form, and certificates ÏÏ all of which were issued by the

school registrar, who possessed the actual authority to generate

documents of that ty pe on behalf of FCNH. Upon its review of

Respondent's application, the Department made a determination,

as evidenced by its subsequent issuance of a license, that the

Diploma constituted proof of Respondent's completion of a course

of study in massage the rapy that met the minimum standards. The

Diploma, which FCNH has not rescinded , continues to be exactly

what it was in July 2007: evidence of successful completion of

a course of study at a Board - approved massage school. The

Department contends, neverth eless, that because the registrar

should not have issued the Diploma, a fact of which Respondent

was unaware until the filing of the Complaint, Respondent's

rights under that credential ÏÏ which include her licensure as a

massage therapist ÏÏ should be termina ted.

46. Persuaded by the reasoning expressed in Department of

Health, Board of Massage Therapy v. Diamond , Case No. 12 - 3825PL,

2013 Fla. Div. Adm. Hear. LEXIS 204 (Fla. DOAH Apr. 9, 2013), a

case that involved facts nearly identical to those at hand, the

undersigned rejects the Department's implicit attempt to nullify

Respondent's Diploma. As Judge Van Laningham explained in

Diamond :

[T]he questions which the Department has

raised implicating the Diploma's validity,

namely whether FCNH should have issued

Diamond a Diploma and ÏÏ to the point ÏÏ whether

the Diploma is operative as a legal

instrument under which Diamond has certain

rights and privileges, are not amenable to

adjudication in this administrative

proceeding. Neither the Department nor the

Board ha s the authority to revoke or rescind

the Diploma, rendering it a nullity, any

more than either agency could revoke a

degree from, say, Harvard University or

Tallahassee Community College. Diplomas,

degrees, and other educational credentials

confer rights and privileges in which their

holders have a property interest. The power

to revoke or withdraw such a valuable

credential, once conferred, belongs to the

issuing institution, not a third - party state

agency, and such action, to be enforceable,

must be und ertaken in accordance with a

legal process ensuring that the rights and

interests of the degree holder are

protected.

* * *

Diamond's FCNH Diploma certifies to the world

that she has completed a course of study at a

Board - approved massage school. Becaus e of

this certification, which the Diploma

represents, the Department's allegation that

Diamond has not completed such a course of

study is true only if the Diploma is a

nullity, a worthless piece of paper

signifying nothing. The Diploma is not a

nullity, however, unless and until it is

revoked.

FCNH has persuaded the Department that the

Diploma is invalid. But the Department,

which did not confer the Diploma, is

powerless to revoke this academic credential.

Only FCNH has the authority to revoke the

Dip loma, provided it does so in accordance

with due process of law, and it has not yet

taken such action, as far as the evidence in

this case shows. The upshot is that, in

arguing that Diamond is academically

unqualified for licensure as a massage

therapist, the Department is attempting to

steal a base, taking for granted that the

Diploma is void or, alternatively, voidable

in this proceeding. Because the Diploma is

neither void nor voidable in this forum, the

Department's argument is rejected.

* * *

[W]he ther the Diploma should be revoked ÏÏ a

question which, as explained, cannot be

decided here ÏÏ is perhaps less clear than the

Department and FCNH would have it. This is

because Diamond might have equitable defenses

to rescission, such as waiver and estoppel,

which could preclude FCNH from relying on so -

called irregularities to deny the validity of

the credentials that Ms. Johnson issued

Diamond in her capacity as FCNH's registrar

and agent. Obviously such equitable defenses

were useless to Diamond here, whic h is why

this proceeding is no substitute for the fair

hearing to which she is entitled in the event

FCNH seeks to revoke her Diploma.

2013 Fla. Div. Adm. Hear. LEXIS at *36 - 37, 40 (internal citations

omitted); see also Jaber v. Wayne State Univ. Bd. of G overnors ,

2010 U.S. Dist. LEXIS 88144, *10 (E.D. Mich. Aug. 26, 2010)

("[T]he Board of Governors nonetheless has the exclusive power to

revoke degrees. The Board was not involved in Jaber's revocation

process. Accordingly, [the] revocation of Jaber's Doc torate

degree is void"); Waliga v. Bd. of Trustees , 488 N.E.2d 850, 852

(Ohio 1986)(holding that a college or university acting through

its board of trustees is authorized to revoke a degree upon good

cause, provided the degree - holder is afforded a fair he aring to

protect his interest).

47. Because FCNH has not revoked the Diploma, the Diploma

continues to certify that Respondent completed a course of study

in massage therapy at a Board - approved school. For these

reasons, Count Three fails.

RECOMMENDATI ON

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Massage Therapy enter a

final order finding Respondent not guilty of the offenses

charged in the Complaint.

DONE AND ENTERED this 18th day of July , 2013 , in

Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of July , 2013 .

ENDNOTE S

1/ Unless otherwise noted, all statutory and rule references are

to current versions.

2 / The undersigned takes official recognition of the public

record of the Florida Department of Education concerning FCNH's

licensure status, which is available online at

http://app1.fldoe.org/cie/SearchSchools/detail.aspx?

schoolid=2217 (last visited July 17, 2013).

3 / See § 10 05.32(5), Fla. Stat.

4 / See Fla. Admin. Code R. 64B7 - 32.004 (Feb. 27, 2006).

5 / See Final Hearing Transcript, p. 39, lines 17 - 25; p. 40,

lines 1 - 5.

6 / See Respondent's Exhibit 18.

7 / See Respondent's Exhibit 21.

COPIES FURNISHED:

Renee C. Ha rkins, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

June H. Zhou, Esquire

June Zhou, PLLC

2136 Saint Andrews Boulevard, Suite 209

Boca Raton, Florida 33433

Anthony R. Jusevitch, Executive Director

Board of Mas sage Therapy

Department of Health

4052 Bald Cypress Way, Bin C - 06

Tallahassee, Florida 32399 - 3256

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXC EPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.