18-002479 Department Of Health, Board Of Massage Therapy vs. Gary Macneil, L.M.T. Status: Closed Recommended Order on Friday, October 19, 2018.

Summary: Respondent did not file his Election of Rights timely.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MASSAGE THERAPY,

Petitioner,

vs. Case No. 18 - 2479

GARY MACNEIL, L.M.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant t o notice to all parties, a final hearing was

conducted in this case on September 5, 2018, in Tallahassee,

Florida, before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings (ÐDOAHÑ). The parties were

represented as set f orth below.

APPEARANCES

For Petitioner: Kristen M. Summers, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32 399

For Respondent: John E. Terrel, Esquire

John E. Terrel, P.A.

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in this case is whet her Respondent, Gary

MacNeil , L.M.T. (ÐMacNeilÑ) , timely filed an Election of Rights

requesting a formal administrative hearing, pursuant to Florida

Administrative Code Rule 28 - 106.111(2).

PRELIMINARY STATEMENT

On or about October 25, 2016, Petitioner, D epartment of

Health, Board of Massage Therapy (the ÐDepartmentÑ), issued an

Administrative Complaint charging MacNeil with violating

certain provisions of law governing the practice of massage

therapy. The Administrative Complaint was mailed to MacNeil at

his address of record. MacNeil prepared and filed an Election

of Rights, seeking a formal administrative hearing on the

allegations raised in the Administrative Complaint. The

Department rejected the Election of Rights as being untimely,

and MacNeil req uested an administrative hearing to contest that

determination. The instant proceeding resulted.

At the final hearing, the Department called two witnesses:

John Wilson, Esquire, an attorney with the Department; and

Gwendolyn Bailey, operations manag ement consultant manager.

The Department offered its Exhibits 1 through 4, each of which

was admitted into evidence. MacNeil testified on his own

behalf and did not call any other witnesses. MacNeilÓs

E xhibits 5 through 8, 11, and 13 were admitted into evidence.

Joint Exhibits 1 and 2 were also admitted into evidence.

A transcript of the final hearing was ordered; it was filed

at DOAH on September 25, 2018. The parties agreed to submit

proposed recommended orders ( Ð PROs Ñ ) within 10 days after the

T ranscript was filed with DOAH , in accordance with r ule 28 -

106.216. Each party timely submitted a PRO, and each was duly

considered in the preparation of this Recommended Order.

Unless specifically stated otherwise herein, all references

to Florida Statute s concerning the substantive facts of this case

shall be to the 2016 version, as the events at issue occurred

during that year and/or prior to the 2017 version.

FINDING S OF FACT

Based upon the evidence presented, the demeanor and

credibility of the witness es, and the entire record in this case,

the following Findings of Fact are made:

1 . MacNeil is a massage therapist licensed in the State

of Florida. He holds license number MA 76440. At all times

relevant hereto, MacNeilÓs address of record at the Depar tment

was 4938 Frost Lake Drive, Jacksonville, Florida 32258

(hereinafter the ÐFlorida addressÑ). On August 29, 2017,

MacNeil officially notified the Department to change his

address of record to: CMR 402 Box 949, APO AE 09180

(hereinafter the ÐAPO addre ssÑ). An APO address is an on - base

military address available to members of the armed forces and

civilian contractors with the U.S. government in foreign

countries.

2 . On or about October 11, 2016, the Department issued an

Order of Emergency Restriction of License (referred to by the

parties as an emergency restriction order or ÐEROÑ), prohibiting

MacNeil from practicing massage therapy on female clients. The

ERO also advised MacNeil that a proceeding seeking formal

discipline of his license Ðwould be pr omptly instituted and acted

upon,Ñ though no specific date was provided concerning when the

further disciplinary proceedings might commence. The ERO also

noted that ÐMacNeil still maintains his address of record in

Florida.Ñ

3 . The ERO was sent to MacNei l at the Florida address via

U.S. Postal Service certified mail, return receipt requested.

MacNeil had directed the U.S. Postal Service to forward mail from

the Florida address to the APO address. The ERO was mailed from

Tallahassee, Florida , on October 12, 2016. It arrived at a post

o ffice in Jacksonville, Florida , on October 14, 2016, and

departed from there to an international distribution center the

same day. The ERO arrived in Germany on October 20, 2016, and

was delivered to the APO address on Oct ober 21, 2016. All of

this occurred prior to MacNeil officially changing his address of

record at the Department.

4 . Meanwhile, on October 13, 2016, MacNeil advised a

Department investigator informally via email that he was living

in Germany. He di sclosed the APO address and he provided a

current email address as well: [e-mail]. The

Department mailed and emailed the ERO to MacNeil again based on

that new information. On October 28, 2016 (14 days after it was

mailed), MacNeil confir med receipt of the mailed and emailed

versions of the ERO. MacNeil did not take any action during that

period of time to officially change his address of record on file

with the Department.

5 . MacNeil had begun using the APO address due to the fact

that his wife had begun working as a civilian contractor with the

United States government at Ramstein Air Base in Germany. The

APO was assigned to Mrs. MacNeil, but MacNeil considered the APO

address his mailing address as well and received all his mail at

t hat address. MacNeil and his wife were estranged at the time,

and although they lived in the same house and were raising a

child together, they were not living as a traditional married

couple. For example, MacNeil resided in the basement of their

house; his wife occupied the third floor. MacNeil described it

as, ÐweÓre managing the household and living separate lives.Ñ

6 . On November 7, 2016, MacNeil was barred from entering

Ramstein Air Base based on allegations made by a client at the

on - base massag e establishment where he was employed. In order to

access his mail after that date, his wife would have to pick up

his mail from the APO box and deliver it to MacNeil at their

house.

7 . On October 25, 2016, the Department issued an

Administrative Comp laint against MacNeil to commence the

disciplinary proceedings warned about in the ERO. The

Administrative Complaint was mailed to MacNeil at his address of

record, i.e., the Florida address, even though the Department had

been made aware (albeit somewhat informally) that MacNeil was

residing in Germany at that time and was using the APO address. 1/

However, since MacNeil still had not taken action to officially

change his address of record in the DepartmentÓs database, the

Department acted within its right s to use the Florida address to

notify MacNeil about the action it was taking. MacNeil could

have officially changed his address via written, mailed request ,

or by way of on - line access, but did not do either until August

2017, well after the facts at iss ue in this proceeding. The

Department did not provide evidence as to why it did not email

the Administrative Complaint to MacNeil just as it had the ERO.

Although it woul d seem logical and reasonable t o get the

Administrative Complaint to MacNeil that wa y, there does not

appear to be any requirement that the Department do so.

8 . The Department correctly presumed the Administrative

Complaint would be forwarded from the Florida address to the APO

address, and it did arrive there sometime in November 201 6. The

date the Administrative Complaint arrived at the APO address is

not particularly significant; the ÐdeliveryÑ date at issue is the

date the package was signed for at the address to which it had

ultimately been delivered. Mrs. MacNeil picked up the

Administrative Complaint from the APO address on November 28,

2016, and signed the receipt acknowledging delivery on that date.

The Administrative Complaint was deemed delivered when she signed

the receipt. Pursuant to r ule 28 - 106.111(2), MacNeil had 21 days

after delivery, i.e., until December 19, 2016, to file a request

for a formal administrative hearing or otherwise contest the

allegations in the Administrative Complaint.

9 . MacNeil asserts, without independent corroboration, that

his wife did not a ctually give him the Administrative Complaint

until January 12, 2017, well after the Election of Rights was

due, and that he moved expeditiously to submit a timely response,

i.e., within 21 days thereafter. The evidence fails to show what

transpired betwe en the date Mrs. MacNeil signed the receipt and

the date MacNeil claims he received it. Did Mrs. MacNeil

intentionally or negligently withhold the Administrative

Complaint from MacNeil? Did MacNeil receive it but forget about

it until January 12, 2017? Did Mrs. MacNeil deliver it to

MacNeilÓs portion of the shared home , but he did n o t find it

until later? The evidence fails to establish exactly what

transpired, thus , there is insufficient evidence to justify the

tardy filing of the Election of Rights. MacNeil testified at

final hearing via telephone, so it was not possible for the

undersigned to fully gauge his demeanor or credibility. Thus,

the facts speak for themselves without further illumination.

10 . The Election of Rights form wherein MacNeil re quested a

formal administrative hearing was filed at the Department on

January 24, 2017 -- 36 days after Mrs. MacNeil acknowledged receipt

of the Administrative Complaint, but only 12 days after she

allegedly gave the Administrative Complaint to her husband.

Mrs. MacNeil did not testify at final hearing to confirm the date

she turned the Administrative Complaint over to MacNeil, so there

is no way to verify the exact date MacNeil received the notice

from his wife. The Department therefore deems the date of

delivery to be November 28, 2016, i.e., the date Mrs. MacNeil

signed the receipt. That is consistent with the statutes and

rules governing the DepartmentÓs actions as discussed in the

Conclusions of Law herein, as well as its practices and

procedures.

11 . In the Election of Rights form mailed to the

Department, MacNeil again affirmed the APO address as his current

address. It is reasonable to conclude that MacNeil believed any

mail sent to that address would be accessible to him. In fact,

when asked at final hearing why he used the APO address, he said,

ÐThatÓs where I receive my mail. All my mail goes there.Ñ

12 . Meanwhile, on or about January 10, 2017, the Department

learned that MacNeil had been barred from the Air Force base

(although the ban had been imposed several months prior).

MacNeil did not notify the Department that his ouster from the

base in any way affected his ability to receive mail sent to the

APO address.

13 . On January 30, 2017, the Department sent MacNeil a

letter rejecting the Election of Rights, deeming it untimely

filed. The rejection letter was mailed to MacNeil at the APO

address, i.e., the address MacNeil had provided in the late - filed

Election of Rights. Again, it appears that MacNeil anticipated

continued access to the APO address.

14 . On February 2, 2017, an attorney representing MacNeil

complained to the Department that the Administrative Complaint

had not been properly served on MacNeil because it had been sent

to Mrs. MacNeilÓs APO box and that Mrs. MacNeil was not part of

MacNeilÓs household. Those representations contradict MacNeilÓs

testimony that the APO address was his address and that he and

his wife were still married and shared a residence.

15 . It is clear from the evidence that MacNeilÓs Election

of Rights did not arrive at the Department before the date it was

due under the rules. The evidence at final hearing failed to

persuasively establish exactly when MacNeil first had physical

possession of the Administrative Complaint. Therefore , the date

on which the Administrative Complaint was picked up from the APO

address and signed for by Mrs. MacNeil is the most reasonably

inferred date of receipt.

16 . It is inexplicable that the Department personnel were

in email contact with MacNeil on October 28, 2016 -- the very day

the Administrative Complaint was mailed to MacNeil -- but did not

either : 1) advise MacNeil that the Administrative Complaint was

being mailed; or 2) attach a copy of the Administrative Complaint

to the email. There is no requirement tha t the Department do so,

but under the circumstances it would seem to have been a

reasonable course of action. (And, service by email would not

constitute adequate service anyway.) That fact does not affect

the recommendation made below, but it is notable .

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2018).

18 . Section 120.57(1)(j) , Florida Statute s (2018), dictates

that in formal administrative hearings, ÐFindings of fact shall

be based upon a preponderance of evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute . . . .Ñ The question arises in the instant

proceeding whether it is a Ðpenal or licensure disciplinaryÑ

proceeding. There is no doubt that the Administrative Complaint ,

which started the string of events leading to the instant action

is disciplinary in nature. The Administrative Compl aint sought

to impose a range of potential disciplinary actions, up to and

including revocation of MacNeilÓs license.

19 . Licensure revocation actions are entitled to an

exception from the preponderance of evidence standard set forth

in the statute. Ins tead, the clear and convincing evidence

standard applies to that kind of action. Haines v. DepÓt of

Child. & Fams. , 983 So. 2d 602, 605 (Fla. 5th DCA 2008).

Conversely, the exception does not apply to licensure application

proceedings. Fla. DepÓt of Chi ld. & Fams. v. Davis Family Day

Care Home , 160 So. 3d 854, 856 - 57 (Fla. 2015). See also DepÓt of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996).

20 . To resolve the question in this matter, we must turn to

the Ðnature of the proce edings and the matter at stake.Ñ Id. a t

933 (citing Bowling v. DepÓt of Ins. , 394 So. 2d 165, 171 (Fla.

1st DCA 1981). The issue at this stage of the proceeding is one

of procedure only, i.e., whether MacNeil timely filed his request

for a hearing. No e vidence was taken as to any disciplinary

action against MacNeilÓs license at this point. If MacNeil was

to prevail in the present case, then he might be entitled to a

disciplinary proceeding. In the present case, however, which

addresses solely the issue of timeliness of the Election of

Rights, the preponderance of evidence standard applies.

21 . Rule 28 - 106.111 states:

(2) Unless otherwise provided by law,

persons seeking a hearing on an agency

decision which does or may determine their

substantial interests shall file a petition

for hearing with the agency within 21 days of

receipt of written notice of the decision.

* * *

(4) Any person who receives written notice

of an agency action and who fails to file a

written request for a hearing within 21 days

waives the right to request a hearing on such

matters. This provision does not eliminate

the availability of equitable tolling as a

defense.

22 . Section 456.035, Florida Statutes (2018), states in

pertinent part:

(1) Each licensee of the departme nt is

solely responsible for notifying the

department in writing of the licenseeÓs

current mailin g address and place of

practice . . . .

(2) Notwithstanding any other law, service

by regular mail to a licenseeÓs last known

address of record with the dep artment

constitutes adequate and sufficient notice to

the licensee for any official communication

to the licensee by the board or the

department except when other service is

required under s. 456.076.

See also Griffis v. State , 90 So. 3d 320 (Fla. 1st DCA 2012),

where in a somewhat simila r situation the c ourt said, Ð[t] he

Department mailed its final order to the last known address of

record for Griffis and the time for Griffis is not tolled by any

requirement that the Department conduct an additional s earch for

his mailing address or whereabouts.Ñ

23 . The Griffis case is also consistent with Florida

Administrative Code Rule 64B7 - 24.021 ( 1), which states:

Ð[T ]he reporting requirements of section

456.035, F.S., require each licensee to

provide to the B oard a current mailing

address and Òplace of practice.Ó The current

mailing address and place of practice may be

one and the same, or may be two different

addresses if the licensee does not receive

mail at his or her place of practice.Ñ

There is no ind ication in the record whether MacNeil provided an

address for his Ðplace of employment , Ñ even before he was ousted

from the military base. The only addresses available to the

Department for MacNeil were the Florida address and the APO

address.

24 . MacNe il cited Department of Revenue v. Baker , 232 So.

3d 1045 (Fla. 4th DCA 2017), in support of his position in this

matter. Baker clearly stands for the proposition that service of

notice to an individual by a state agency is valid Ðif sent to

the most recen t residential or employer address filed with [the

Department].Ñ The Baker decision does cite to dicta from Vosilla

v. Rosado , 944 So. 2d 289 (Fla. 2006), addressing instances in

which a property appraiser had reason to know or suspect that an

address was incorrect. In that case, the service was deemed

inadequate. That scenario is distinguishable from the instant

case in which the Florida address was the official address of

record and the Department knew that mail sent to that address was

being forwarded to the APO address.

25 . Section 120.569(2)(c) provides that a request for an

administrative hearing Ð shall be dismissed . . . if it has been

untimely filed.Ñ (Emphasis added) . The statute notes, however,

that the defense of equitable tolling is availabl e. See Pro Tech

Monitoring, Inc. v. DepÓt of Corr. , 72 So. 3d 277, 281 (Fla. 1st

DCA 2011).

26 . ÐThe equitable tolling doctrine has been applied when

the plaintiff has been misled or lulled into inaction, has in

some extraordinary way been prevented from asserting his rights,

or has timely asserted his rights mistakenly in the wrong forum.Ñ

(Citations omitted.) Machules v. DepÓt of Admin. , 523 So. 2d

1132, 1134 (Fla. 1988).

27 . In the present case, MacNeil was put on notice that an

administrative acti on was forthcoming when he received the ERO.

He was ultimately advised of that action at the very address he

had provided to the Department. There is no legitimate basis for

equitable tolling in this case.

28 . The evidence in this case is clear tha t the Department

mailed the Administrative Complaint to MacNeilÓs Ðlast known

address of record,Ñ that the Administrative Complaint was

received and signed for at that address by MacNeilÓs wife on

November 28, 2016, and that MacNeilÓs request for a hearing was

not filed within 21 days thereafter.

29 . MacNeilÓs assertion that he did not receive the

Administrative Complaint until January 12, 2017, is not

sufficiently strong to refute the application of the DepartmentÓs

statutory and regulation standards . A bsent verification from his

wife, MacNeilÓs self - serving testimony is not persuasive.

30 . Further, even if the Department had considered

MacNeilÓs October 13, 2016, email to have been an official change

of address, the Administrative Complaint would hav e gone to the

APO address, precisely where it ultimately arrived. MacNeil

should have provided an address to which he had unfettered

access.

31 . This is a case where strict application of the law may

result in denial of a personÓs potential right to redr ess

concerning actions against his license. While harsh, perhaps

draconian, the law must nonetheless be followed. And while the

law is clear, the Department might take into account its failure

to email the Administrative Complaint to MacNeil when it issu es

its final o rder in this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby RECOMMENDED that:

Petitioner, Department of Health, Boa rd of Massage Therapy,

enter a final order deeming the E lection of Right s filed by

Respondent, Gary MacNeil, as not timely filed.

DONE AND ENTERED this 19th day of October , 2018 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hear ings

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 19 th day of October, 2018 .

ENDNOTE

1/ T he Department did not consider using MacNeilÓs actual

physical address for mail, as that address had n ever been

officially disclosed. And, as MacNeil said at final hearing, ÐIf

[mail] is being sent from the States, it is more efficiently sent

through the APO than . . . to my Germany address. The APO is

cheaper and itÓs quicker.Ñ

COPIES FURNISHED:

Kristen M. Summers, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

John E. Terre l, Esquire

John E. Terrel, P.A.

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Katelyn Rose Boswell, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eS erved)

Louise Wilhite - St. Laurent, Interim General Counsel

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399

(eServed)

Kama Monroe, Executive Director

Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bi n C06

Tallahassee, Florida 32399 - 3257

(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 fi led with the agency that

will issue the Final Order in this case.