STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF MASSAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0148

)

DIANA WENTWORTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on May 4, 1995, in Vero Beach, Florida.

APPEARANCES

For Petitioner: Susan E. Lindgard

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Suite 60, Northwood Centre

Tallahassee, Florida 32399-0792

For Respondent: Diana Wentworth, pro se

1500 Pelican Lane

Vero Beach, Florida 32963-2644 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent, Diana Wentworth, committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on November 28, 1994, when the Petitioner, the Department of Business and Professional Regulation, Board of Massage (Department), issued an administrative complaint against the Respondent charging her with three violations of Section 480.046(1), Florida Statutes. More specifically, the Department alleged that Respondent had failed to provide proof of twelve units of continuing education hours between January 1, 1991 and January 31, 1993; had given false or forged evidence to the Department in obtaining a license; and had attempted to procure a license to practice massage by fraudulent

misrepresentation of fact. All of the alleged violations stemmed from discoveries made during an audit of the Respondent's continuing education records.

The Respondent timely filed an election of rights disputing the administrative complaint and requested a Section 120.57(1), Florida Statutes, hearing. The matter was then forwarded to the Division of Administrative Hearings for formal proceedings on January 13, 1995.

At the outset of the hearing, the parties announced that they had reached a settlement stipulation to be presented to the Board of Massage at its July, 1995, meeting. However, in order to economize resources, the evidence was presented in this matter so that, should the Board reject the stipulation, the parties would not have to reappear for trial. In fact, the settlement stipulation was rescinded and, on June 2, 1995, the Department filed a request for recommended order.

The Department presented the testimony of Marcelle Flanagan, the regulation program administrator for the Board of Massage. Its exhibits numbered 1 through

7 were admitted into evidence. The Respondent testified in her own behalf. Her exhibits numbered 1, 2A, 2B, 3 through 5 were also admitted.

The transcript of the proceeding was filed on June 8, 1995, and, by order entered June 15, 1995, the parties were granted leave until June 30, 1995, to file proposed recommended orders. Following a request for additional time filed by Respondent, that date was extended to July 31, 1995. Specific rulings on the proposed findings of fact submitted in this cause are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, the Respondent has been licensed as a massage therapist in the State of Florida, license no. MA 0007093.

   
   

2. The Department is the state agency charged with the responsibility under Florida law of regulating massage therapists.

   
   

3. At all times material to the allegations of this case, the Department required that licensees obtain continuing education credits in order to renew massage therapy licenses.

   
   

4. The license renewal card sent by the agency to the licensee requires verification that the licensee has met all continuing education requirements.

   
   

5. Respondent executed a renewal notice form that represented she had met all requirements for license renewal, including the continuing education commitment.

   
   

6. On November 5, 1993, the Department issued a letter to Respondent advising her that her license had been randomly selected for audit for the continuing education requirements for the period January 1, 1991 through January 31, 1993.

   
   

7. By such notice, Respondent was requested to complete an audit form and to attach proof of attendance for the continuing education courses attended for the audit period.

8. In order to qualify for acceptance, continuing education courses must be approved by the Department. Courses which have not received approval may not be counted to fulfill continuing education requirements.

   
   

9. The Respondent filed a response to the audit including courses which had not been approved by the agency.

   
   

10. In follow-up, the Department, by form notice dated December 7, 1993, advised the Respondent that her audit was incomplete. More specifically, the Department advised Respondent that the provider of the continuing education (CE) identified by Respondent was not an approved provider and that the number of courses of approved CE did not show attendance of at least twelve hours.

    
    

11. To date, the Respondent has not provided proof of compliance with the CE requirements of the Department.

    
    

12. Courses which Respondent attended in connection with another license held by Respondent (nurse), do not comply with the criteria for her license as a massage therapist.

    
    

13. Respondent is aware of the different Boards and regulations pertaining to the licenses she holds.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

15. The Department bears the burden of proof to establish, by clear and convincing evidence, the allegations of the administrative complaint. This it has done.

    
    

16. Section 480.046(1), Florida Statutes, provides, in pertinent part:

    
    

    1. The following acts shall constitute grounds for which disciplinary actions specified in subsection (2) may be taken against a massage therapist under this act:

       1. Attempting to procure a license to practice massage by bribery or fraudulent misrepresentation.

          * * *

          (f) Making deceptive, untrue, or fraudulent representations in the practice of massage.

          * * *

          (k) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing, or failing to comply with a lawfully issued subpoena of the department.

          
          

17. Rule 61G11-28.009, Florida Administrative Code, sets forth the continuing education requirements for every massage practitioner seeking license renewal. Such rule specifies that every licensee shall complete 12 contact hours of continuing education courses offered by providers who have been

    approved by the Board. Further, the rule provides that the failure of the licensee to satisfy the CE requirements constitutes a violation of Section 480.046, Florida Statutes.

    
    

18. The Respondent executed the license renewal form in order to obtain the renewal of her massage therapist license. The courses which she relied upon to certify with the CE requirements for this license have not been approved by the Board of Massage.

    
    

19. Moreover, Respondent has failed to establish that she met the requirements for license renewal. The procedure allowed the licensee to represent that she had met all renewal requirements and the Department issued the renewal. Only those licensees audited were required to verify the representation made on the renewal form. Respondent has yet to substantiate the representation made on her renewal form.

    
    

20. Since the Respondent was required to obtain CE credits for the period audited and has failed to substantiate that those credits were obtained, she violated the law. Further, since she provided a false statement in order to obtain license renewal, she compounded her first deficiency by a second violation: submitting a false statement in order to obtain a license.

    
    

21. Rule 61G11-30.002, Florida Administrative Code, sets forth the disciplinary guidelines applicable in this case. Giving false information in order to obtain a license is punishable by revocation of the license obtained and/or $1,000 fine, and prohibition of re-application for a period of two to five years.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Department of Business and Professional Regulation, Board of Massage, enter a final order revoking Respondent's license as a massage therapist and imposing an administrative fine in the amount of $1,000.00.

DONE AND RECOMMENDED this 29th day of August, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0148

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 14 are accepted.

Rulings on the proposed findings of fact submitted by the Respondent:

1. None submitted.

COPIES FURNISHED:

Susan Lindgard

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 Diana Wentworth

1500 Pelican Lane

Vero Beach, Florida 32963-2644

Anna Polk Executive Director Board of Massage

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Lynda L. Goodgame General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-000148

Orders for Case No: 95-000148