Proof of licensure by the Department of Education.
(emphasis added).
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.4/ Regarding these required practices, section 1005.04, Florida Statutes (2008), provided during the relevant time frame as follows:
Every institution 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:
Disclose to each 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 student 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 student. The required disclosures may be made in the institution's current catalog;
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;
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, market availability, or salary amounts;
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;
* * *
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, Department of Education, Tallahassee.
(emphasis added).
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:
This rule implements the provisions of Sections 1005.04 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.
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 institution'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 transferability 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 combination of any or all of the following:
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 institution.
Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas.
Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving 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 representations 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).
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 such as Royal Irvin, which are 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.5/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, 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 courses at FCNH.
Returning to the events at hand, Respondent met with FCNH's registrar, Glenda Johnson, on May 26, 2009. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH.6/
The meeting, which took place on a weekday during normal business hours, was held in Ms. Johnson's office——located on the first floor of a multi-story building on FCNH's Pompano Beach campus. Upon Respondent's arrival at the main entrance, a receptionist summoned Ms. Johnson, who, a short time later,
appeared in the lobby and escorted Respondent and Mr. McLane (as noted previously, Respondent's potential employer) to her office.
During the meeting that ensued, Respondent reiterated (with her limited English skills) 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.
From what can be fairly inferred from the record, it appears that Ms. Johnson led Respondent to believe, erroneously, that her existing coursework and credentials were sufficient for licensure and that all Respondent needed to do was transfer her previously-earned credits to FCNH. (Among other things,
Ms. Johnson should have informed Respondent that Board-approved coursework in "HIV/AIDS" and the "prevention of medical errors"——neither of which Respondent completed until after7/ the Complaint was filed in this matter——was required8/ for licensure.)
As the meeting progressed, Ms. Johnson made copies of Respondent's records and asked her to sign an FCNH enrollment agreement, which Respondent did. The agreement reflects (and Respondent's credible testimony confirms) that, on the date of their meeting, Ms. Johnson collected a cash payment from
Respondent totaling $418.98.9/ Ms. Johnson also furnished Respondent with a receipt, the face of which indicated that the payment was for a "transfer of [licensure]."
In addition to the enrollment agreement, Respondent signed a three-page form titled, "State of Florida Application for Massage Therapist Licensure." In the application, Respondent truthfully disclosed, among other things, 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.
At the end of the meeting, Ms. Johnson advised Respondent that no further action on her part was required and that all she need do was "go home and wait." 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 signature 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 (Transfer 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 coursework at Royal Irvin included a two-credit class involving the prevention of medical errors and 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 Licensure)"; Respondent's diploma and transcript from Royal Irvin; proof of Respondent's national certification as a massage therapist; and a copy of Respondent's permanent resident card. Notably, of the FCNH documents listed above, Respondent was aware only of the "Transfer of Credit Form" prior to the initiation of the current proceeding.
Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion 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.")
Subsequently, on June 18, 2009, the Department issued Respondent her license to practice massage therapy. With the exception of the instant proceeding, there is no evidence that
Respondent's license has been the subject of prior disciplinary action.
In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa 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 applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin, and that the same member of FCNH's administration——i.e., Ms. Johnson——had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH.
Ms. Wade reviewed the materials and detected some anomalies in them. She was 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 problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied——untruthfully, at least with respect to her dealings with Respondent——ever having taken money for doing so.
(Ms. Johnson provided the rather dubious explanation that she
had been merely trying to "help" people.) Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment.
Thereafter, Ms. Wade notified the Department that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH cooperated. The investigation uncovered numerous graduates, including Respondent, whose credentials FCNH could not confirm.
Respondent has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. While Ms. Wade testified at hearing that Ms. Johnson should not have conferred 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.
CONCLUSIONS OF LAW
Jurisdiction
DOAH has jurisdiction over the parties and subject matter of this cause, pursuant to section 120.57(1), Florida Statutes.
The Burden and Standard of Proof
This is a disciplinary proceeding in 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).
Regarding the standard of proof, in Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed 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:
lear and convincing evidence requires that the evidence 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 weight 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 convincing evidence. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994).
Statutory Construction/Notice
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 Prof'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 statute 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 ambiguities included, they must be construed in favor of the licensee.").
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 rule 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 service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended
action ").
The Charges Against Respondent
As noted previously, the Department has abandoned Counts One and Two of the Complaint, which alleged, respectively, that Respondent's license was issued in error and that Respondent committed acts of fraud in connection with her application for licensure. Count Three, the Complaint's only remaining charge, alleges a violation of section 480.046(1)(o), a provision which subjects a licensee to discipline for, among other things, running afoul of any provision of chapter 480. Specifically, the Department alleges that Respondent has not "completed a course of study at a board-approved massage school," and has therefore violated a provision of chapter 480—— 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.
As an initial matter, the undersigned is dubious of the Department's attempt to punish Respondent for "violating" section 480.041(1), a provision that:
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 undersigned is skeptical that any person can be punished for "violating"
section 480.041(1).
Dep't of Health, Bd. of Massage Therapy v. Diamond, Case
No. 12-3825PL, 2013 Fla. Div. Adm. Hear. LEXIS 204, *30-31 (Fla.
DOAH Apr. 9, 2013)(Van Laningham, J.); see also Dep't of Health,
Bd. of Massage Therapy v. Jiang, Case No. 12-3610PL, 2013 Fla. Div. Adm. Hear. LEXIS 340, *15 (Fla. DOAH June 11, 2013)(Johnston, 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 disciplined 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.
At the time Respondent submitted her initial application, 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 official 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 transcript 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).
As discussed previously, Respondent's application included a Diploma that comprised the FCNH transcript, credit transfer form, and certificates——all of which were issued by the school registrar, who possessed the actual authority to generate documents of that type on behalf of FCNH. After reviewing Respondent's application, the Department determined that the Diploma constituted proof of Respondent's completion of a course of study in massage therapy that met the minimum standards.
(The undersigned infers as much in light of the Department's abandonment of Count One of the Complaint, wherein it alleged that Respondent's license was issued in error.) The Diploma, which FCNH has not rescinded, continues to be exactly what it was in May 2009: evidence of successful completion of a course of study at a Board-approved massage school. The Department contends, nevertheless, 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——which include her licensure as a massage therapist——should be terminated.
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——to the point——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 has 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 undertaken 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. Because 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 Diploma, 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]hether the Diploma should be revoked——a question which, as explained, cannot be decided here——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, which 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 Governors, 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 Doctorate 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 hearing to protect his interest).
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.
