20-000505PL Department Of Health, Board Of Massage Therapy vs. Maria Nadal-Cabral, L.M.T. Status: Closed Recommended Order on Thursday, May 14, 2020.

Summary: $500 fine and suspension until compliance for the failure to submit to live scan fingerprinting and, thus, to required background screening.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

M ASSAGE T HERAPY ,

Petitioner,

vs. Case No. 20 - 0 505PL

M ARIA N ADAL - C ABRAL , L.M.T. ,

Respondent.

_______________________________/

R ECOMMENDED O RDER

On March 20 , 2020 , Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings (DOAH), conducted the final hearing by telephone in

Miami and Tallahassee, Florida. All parties participated by separate telephone

connections due to the coronavirus pandemic .

A PPEARANCES

For Petitioner: Dannie L. Hart, Esquire

Christina Arzillo Shideler, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Maria Nadal - Cabral, pro se

(address of record)

S TATEMENT OF T HE I SSUE S

The issue s are whether Respondent failed to submit to background screening, as

required by section s 456.0135(1) and 480.041(6) , Florida Statutes (2014), and, if so,

what penalty should be imposed, pursuant to sections 480.046(1) and 456.072(2) .

P RELIMINARY S TATEMENT

By Administrative Complaint dated October 30, 2017, Petitioner alleged that

Respondent failed timely to submit to background screening by January 31, 2015,

as required by section 456.0135. The Administrative Complaint seeks a range of

discipline from revocat ion or suspension to corrective action or continuing

education.

Respondent timely requested a formal administrative hearing. Petitioner

transmitted the file to DOAH on January 30, 2020.

At the hearing, Petitioner called one witness and offered into evidence one

exhibit, Petitioner Exhibit 1, which was admitted. Respondent called one witness

and offered into evidence no exhibits.

The court reporter filed the transcript on April 8, 2020. Petitioner filed a

proposed recommended order on May 8 , 2020.

F INDINGS OF F ACT

1. Respondent is a licensed massage therapist, holding license MA 48309.

Respondent has been continuously licensed since October 2, 2006, renewing her

license every two years . Respondent has not previously been disciplined.

Respondent has discontinued providing massage services.

2. As detailed in the Conclusions of Law, by January 31, 2015, existing licensees

were required to submit to the background screening requirements of section

456.0135. Each existing licensee was requ ired to submit to Petitioner their

fingerprints taken by a live scan vendor that makes, stores, and transmits the

fingerprints electronically without the necessity of a hard copy. Petitioner provided

considerable support to persons required to comply with this new requirement.

3. Respondent never submit ted her fingerprints to a live scan vendor, although,

at some point, she seems to have submitte d her fingerprints in hard copy form to

the Department of Financial Services for a n unrelated purpose. Given Peti tioner's

repeated efforts to induce compliance with the electronic - fingerprinting

requirement, it is impossible to credit Respondent's claim that she thought that she

had complied when she submitted hard - copy fingerprints to an unrelated state

agency. Obvi ously, Respondent has been aware for over two and one - half years that

Petitioner has never received her electronic fingerprints and has done nothing.

4. Treating Respondent's noncompliance as cause for discipline, but not

nonrenewal, Petitioner renewed Res pondent's license in 2017, but also commenced

this proceeding. Notwithstanding a two - year delay in transmitting the file to

DOAH, Respondent still has not obtained electronic fingerprints to comply with this

requirement . The inference is inescapable that R espondent has displayed a

complete lack of interest in maintaining her licen se .

C ONCLUSIONS OF L AW

5 . DOAH has jurisdiction over the subject matter. §§ 120.569 , 120.57(1 ) , and

4 80.046(6) , Fla. Stat .

6. Section 480.041(6) requires that, by January 31, 2015, a massage therapist

who held a license before July 1, 2014, must submit to the background screening

requirements of section 456.0135. Section 456.0135 (1) requires that a license

application must include fingerprints pursuant to procedures established by

Petitioner through a vendor approved by the Florida Department of Law

Enforcement for the submittal of electronic fingerprints.

7. Chapter 480 governs the practice of massage therapy. Section 480.046(1)(p)

authorizes Petitioner to impose discipline against the license of a person who has

violated any provision of chapter 480 or 456.

8. For any violation of section 480.046(1), section 480.046(2) authorizes

Petitioner to impose the discipline set forth in section 456.072(2), which includes

revocation, suspension, probation, a reprimand, or an administrative fine. For a

first offense, Florida Administrative Code R ule 64B7 - 30.002(3)(ll) (2014) provides a

penalty of suspension until compliant and a $1000 fine.

9. In its proposed recommended order, Petition er has sought a suspension until

Respondent complies with the background screening requirements and a $1000

fine. The penalties are appropriate, although a $500 fine is more suitable for an

offense that essentially amounts to the cessation of practice with out a formal

surrender of a license.

R ECOMMENDATION

It is

R ECOMMENDED t hat t he Department of Health enter a final order imposing a

$500 fine and suspending Respondent's license until she has submitted all of the

required background screening materials, including electronic fingerprints through

an approved vendor.

D ONE A ND E NTERED this 14th day of May, 2020 , in Tallahassee, Leon County,

Florida.

S

ROBERT E. MEALE

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 1 4 th day of May , 2020 .

C OPIES F URNISHED :

Dannie L. Hart, Esquire

Department of Hea lth, Prosecution Services Unit

Office of General Counsel

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Maria Nadal - Cabral

1200 Northwest 185th Avenue

Pembroke Pines, Florida 33029

Christina Arzillo Shideler, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Louise Wilhite - St. Laurent, General Counsel

Department o f Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.