17-001358PL Department Of Health, Board Of Massage Therapy vs. Lauren Dillman-Bell, L.M.T. Status: Closed Recommended Order on Tuesday, May 30, 2017.

Summary: Respondent did not appear because no good contact information. Petitioner proved that application omitted to disclose criminal history, as required. Recommend: Revoke

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 17 - 1358PL

LAUREN DILLMAN - BELL, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

O n May 4, 2017, a final hearing was held by video

teleconference at locations in Sarasota and Tallahassee, Florida,

before J. Lawrence Johnston, an Administrative Law Judge (ALJ),

who was assigned by the Division of Administrative Hearings

(DOAH) to preside over this matter.

APPEARANCES

For Petitioner: Lealand L. McCharen, Esquire

Jaquetta Johnson, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahasse e, Florida 32399 - 3265

For Respondent: No a ppearance

STATEMENT OF THE ISSUE S

The issues to be determined in this case are whether the

Respondent, Lauren Dillman - Bell, obtained her Florida license to

practice massage therapy through fraud or error, in vi olation of

section 456.072(1)(h), Florida Statutes (2009), or made

misleading, untrue, deceptive, or fraudulent representations on

her application for licensure, in violation of section

456.072(1)(w), both of which constitute violations of section

480.046( 1)(o); and if so, the appropriate sanction. (Unless

otherwise indicated, citations to the Florida Statutes and rules

of the Florida Administrative Code refer to the versions in

effect when the Respondent Ós license was issued on July 1, 2009.)

PRELIMINARY STATEMENT

On November 12, 2013, the Petitioner filed an Administrative

Complaint against the Respondent. On January 14, 2014, counsel

for the Respondent disputed the charges and requested a hearing.

The matter was not referred to DOAH until March 3, 201 7.

The reason for the delay is not clear from the record. The

hearing was scheduled for May 4, 2017.

On March 28, 2017, counsel for the Respondent moved to

withdraw due to an inability to contact the Respondent either by

correspondence or by telephone. Leave to withdraw was granted.

Subsequently, it became apparent that the Respondent was not

receiving mail at either her address of record or the address

given for her in her request for a hearing.

The Respondent did not appear for the final hearing.

Coun sel for the Petitioner reported that numerous unsuccessful

attempts had been made to contact the Respondent both by

telephone and by mail at both her address of record and the

address listed in the request for a hearing.

The final hearing took place as sch eduled on May 4, 2017.

At hearing, the Petitioner presented: its investigative report

as Exhibit 1; the RespondentÓs application file as Exhibit 2; and

certified copies of criminal court records from Oklahoma

pertaining to the Respondent as Exhibit 3. T he e xhibits were

received in evidence. No other evidence was presented.

No transcript of the hearing was prepared, and no proposed

recommended orders were filed.

FINDING S OF FACT

1. The Petitioner is the state agency charged with

regulating the practice of massage therapy in the state of

Florida, pursuant to section 20.43, and chapters 456 and 480,

Florida Statutes (2016).

2. At all times material to the Administrative Complaint,

the Respondent was licensed to practice massage therapy in the

State o f Florida, having been issued license number MA 56509 on

or about July 1, 2009.

3. When the Respondent applied for licensure in June 2009,

she answered ÐnoÑ to a question whether she had Ðever been

convicted of, or entered a plea of guilty, nolo cont endere, or no

contest to a crime in any jurisdiction other than a minor traffic

offense.Ñ

4. When the RespondentÓs license was issued, the Petitioner

was unaware that the answer to the question on the application

should have been Ðyes.Ñ This was not brought to the PetitionerÓs

attention until June 2013. The Petitioner investigated, and the

Administrative Complaint was filed.

5. It is clear from the evidence presented at the hearing

that the Respondent entered the following pleas in the District

Cou rt of Oklahoma County, Oklahoma, in December 2005: guilty to

one count of possession of a controlled, dangerous substance with

intent to distribute; guilty to one count of possession of a

controlled, dangerous substance (methamphetamine) with intent to

di stribute; guilty to one count of possession of a stolen

vehicle/receiving stolen property; and guilty to two counts of

possession of a weapon.

6. Although the Respondent did not appear or testify at the

hearing, it can be inferred that she knew or should have known

that her answer to the question on her license application about

criminal convictions and guilty pleas was false. Even if the

answer were unintentionally false, the Petitioner relied on it

when it issued the RespondentÓs license without conduct ing any

investigation into the RespondentÓs fitness for licensure

notwithstanding the guilty pleas. (It also could be inferred

from the RespondentÓs failure to pursue her request for a

hearing, and her failure to provide effective contact information

so a s to receive notices regarding the case, that she has

withdrawn and waived her disputes as to the facts alleged in the

Administrative Complaint.)

CONCLUSIONS OF LAW

7. The Petitioner has authority to investigate and file

administrative complaints charging violations of the laws

governing the licensure of massage therapists in Florida.

§ 456.073, Fla. Stat. (2016).

8. Because the Petitioner seeks to impose license

discipline, the Petitioner has the burden to prove its

allegations by clear and convinci ng evidence. See DepÓt of

Banking & Fin. v. Osborne Stern & Co., Inc. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). This

Ðentails both a qualitative and quantitative standard. The

evidence must be credible; the memories of the witnesses must be

clear and without confusion; and the sum total of the evidence

must be of sufficient weight to convince the trier of fact

without hesitancy.Ñ In re Davey , 645 So. 2d 398, 404 (Fla.

1994). See also Slomowitz v. Walker , 429 So. 2d 7 97, 800 (Fla.

4th DCA 1983). ÐAlthough this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous.Ñ Westinghouse Elec . Corp. v. Shuler Bros.,

Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991) (c itations

omitted).

9. Disciplinary statutes and rules Ðmust be construed

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

imposed.Ñ Munch v. DepÓt of ProfÓl Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Cam ejo v. DepÓt of

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

McClung v. Crim. Just. Stds. & Training CommÓn , 458 So. 2d 887,

888 (Fla. 5th DCA 1984) (Ð[W]here a statute provides for

revocation of a license the grounds must be strictly con strued

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 ambiguities

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

(citing State v. Pattishall , 126 So. 147 (Fla. 1930)).

10. The grounds proven in support of the PetitionerÓs

assertion that the RespondentÓs license should be disciplined

must be those specifically alleged in the Administrative

Complaint. See , e.g. , Trevisani v. DepÓ t of Health, 908 So. 2d

1108 (Fla. 1st DCA 2005); Cottrill v. DepÓt of Ins. , 685 So. 2d

1371 (Fla. 1st DCA 1996); Kinney v. DepÓt of State , 501 So. 2d

129 (Fla. 5th DCA 1987); Hunter v. DepÓt of ProfÓl Reg . , 458 So.

2d 842 (Fla. 2d DCA 1984). Due process prohibits the Petitioner

from taking disciplinary action against the Respondent based on

matters not specifically alleged in the charging instrument,

unless those matters have been tried by consent.

See Shore Vill. Prop. OwnersÓ AssÓn, Inc. v. DepÓt of E nvtl.

Prot. , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Delk v. DepÓt of

ProfÓl Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

1 1. The Administrative Complaint charges the Respondent

with obtaining her Florida license to practice massage therapy

through fra ud or error, in violation of section 456.072(1)(h),

Florida Statutes (2009), and with making misleading, untrue,

deceptive, or fraudulent representations on her application for

licensure, in violation of section 456.072(1)(w), both of which

constitute viol ations of section 480.046(1)(o). The charges were

proven by clear and convincing evidence.

1 2. The Board of Massage Therapy must impose penalties

against the Respondent in accordance with the disciplinary

guidelines prescribed in Florida Administrative C ode Rule 64B7 -

30.002. Under that rule, revocation is within the guidelines and

is the appropriate penalty in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be issued :

(1) fi nding that the Respondent violated section 480.046(1)(o) by

violating sections 456.072(h) and (w); and (2) revoking her

massage therapy license.

DONE AND ENTERED this 30th day of May , 2017 , in Tallahassee,

Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 t he

Division of Administrative Hearings

this 30th day of May , 2017 .

COPIES FURNISHED:

Lauren Dillman - Bell, L.M.T.

5033 Lords Avenue

Sarasota, Florida 34231

Lealand L. McCharen, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, F lorida 32399 - 3265

(eServed)

Jaquetta Johnson, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Claudia Kemp, JD, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress W ay, Bin C - 06

Tallahassee, Florida 32399 - 32 57

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.