STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF MASSAGE THERAPY,

Petitioner,

vs.

WEI HAO, L.M.T.,

Respondent.

/

Case No. 13-0001PL

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on July 5, 2013, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Candace A. Rochester, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Bernard M. Cassidy, Esquire

Lubell and Rosen

200 South Andrews Avenue, Suite 900 Fort Lauderdale, Florida 33301

Qian Wen, Esquire

8117 Northwest 33rd Street Doral, Florida 33122

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, a massage therapist, obtained a license: (a) by means of fraudulent

misrepresentations; (b) which she knew had been issued in error; and/or (c) without having completed a course of study at an approved school, as Petitioner alleges. If so, it will be necessary to determine an appropriate penalty.

PRELIMINARY STATEMENT

On October 8, 2012, Petitioner Department of Health ("Department") issued an Administrative Complaint ("Complaint") against Respondent Wei Hao, L.M.T. ("Hao"). The Department alleged, in three separate counts, that Hao had obtained her license to practice massage therapy "through error of the Department of Health"; "by submitting a fraudulent transcript and fraudulent Certificates of Completion with her Application"; and "without completing a course of study at a Florida Board- approved massage school." Hao timely requested a formal hearing, and on January 2, 2013, the Department filed the pleadings with the Division of Administrative Hearings, where an Administrative Law Judge was assigned to preside in the matter.

The final hearing took place on July 5, 2013, as scheduled, with both parties present. The Department presented the deposition testimony of Melissa Wade, a managerial employee of the company which owns and operates the Florida College of Natural Health ("FCNH"), and called no other witnesses.

Petitioner's Exhibits 1 through 3 were received in evidence without objection.

Hao testified on her own behalf. Respondent's Exhibits 1 and 3 through 6 were admitted into evidence without objection.

The final hearing Transcript was filed on July 17, 2013, and proposed recommended orders were due on August 1, 2013. The parties' respective submissions have been considered.1/

FINDINGS OF FACT

1. The Department issued Hao license number MA 60237, which authorized her to practice massage therapy in the state of Florida.

2. The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Hao. The Department provides investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done this instance, when cause exists to suspect that a licensee has committed a disciplinable offense.

3. The Florida College of Natural Health ("FCNH") is an incorporated nonpublic postsecondary educational entity. FCNH holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes. In addition to being duly licensed by the state, FCNH is

   
   

   accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033.2/

4. At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7-

1. (Apr. 25, 2010), which provided in pertinent part as follows:

   1. In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must:

      1. Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and

      2. Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . .

      3. Apply directly to the Board of Massage Therapy and provide the following information:

         1. Sample transcript and diploma;

         2. Copy of curriculum, catalog or other course descriptions;

         3. Faculty credentials; and

         4. Proof of licensure by the Department of Education.

            
            

         5. 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.3/

            
            

            Regarding these required practices, section 1005.04, Florida Statutes (2009), provided during the relevant time frame as follows:

            1. 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:

               
               

               1. 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;

               2. 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;

               3. 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;

               4. 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;

               5. Ensure that all advertisements are accurate and not misleading;

                  
                  

               6. Publish and follow an equitable prorated refund policy for all students, and follow both the federal refund guidelines for students receiving federal financial assistance and the minimum refund guidelines set by commission rule;

               7. Follow the requirements of state and federal laws that require annual reporting with respect to crime statistics and physical plant safety and make those reports available to the public; and

               8. Publish and follow procedures for handling student complaints, disciplinary actions, and appeals.

            2. 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).

               
               

         6. 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:

            1. 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.

            2. 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. If a licensed institution has entered into written articulation agreements with other institutions, a list of those other institutions may be provided to students, along with any conditions or limitations on the amount or kinds of credit that will be accepted. Such written agreements with other institutions must be valid and in effect at the time the information is disclosed to the student. The agreements shall be kept on file at all times and available for inspection by Commission representatives or students. Any change or termination of the agreements shall be disclosed promptly to all affected students. 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:

               
               

               1. 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.

               2. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas.

               3. 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).

               
               

         7. 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 that were 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.4/ 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.

         8. At all relevant times, FCNH's registrar was Glenda Johnson. As registrar, Ms. Johnson had apparent authority, at a minimum, to evaluate the transferability of credits, and she possessed actual authority to generate and execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH.

         9. 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 from FCNH graduates whose transcripts seemed irregular. (Hao's application was not among these; she had taken, and passed, a national licensing examination in February 2010.) What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and they had fewer credit hours on their transcripts than FCNH's typical students. The NCB sent copies of the suspicious credentials to FCNH.

            
            

         10. Ms. Wade reviewed the materials and detected purported 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.

             Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment.

         11. Ms. Wade later notified the Board 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 fully cooperated. The investigation uncovered some 200 graduates whose credentials FCNH could not confirm. One of them was Hao.

         12. Hao was born in China and at some point immigrated to the United States. In 2007 Hao studied massage therapy at Acupuncture and Massage Institute of America ("AMIA") in Hacienda Heights, California. At AMIA, Hao successfully completed a 750-hour curriculum in massage therapy, graduating on December 18, 2007.

         13. Thereafter, Hao relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Hao needed to obtain a Florida license. Because AMIA was not a Board-approved massage school, Hao needed to complete

             
             

             either a course of study at an approved school or, alternatively, an apprenticeship program.

         14. In June 2010, Hao went to the Pompano campus of FCNH, where she met with Ms. Johnson. Hao decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. Hao gave

             Ms. Johnson copies of her educational credentials from AMIA. In her capacity as registrar, Ms. Johnson completed a Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School.

         15. Ms. Johnson took Hao's FCNH enrollment forms and collected $400.00 in cash as the fee for handling the transfer of Hao's credits and her registration as a student of FCNH.

         16. Having collected the money, Ms. Johnson furnished Respondent with several items, including an FCNH document titled "Certificate of Completion — 15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" that bore

             Ms. Johnson's signature and the school's seal; an FCNH document titled "Certificate of Completion — 2 Hours of Prevention of Medical Errors," which bore FCNH's seal, as well as

             Ms. Johnson's signature; the Transfer of Credit Form signed by Ms. Johnson, which indicates that FCNH accepted Hao's credits from AMIA; and an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Hao had completed a 500-

             
             

             hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)."

         17. 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. The several documents comprising Hao's FCNH diploma will be referred to hereafter, collectively, as the "Diploma."

         18. Ms. Johnson produced a Department of Health application for a massage therapy license and helped Hao fill it out. Hao then signed the three-page application, which is dated June 17, 2010.

         19. The application which Hao executed states, truthfully, that she obtained a massage therapy certificate in December of 2007 from AMIA and that the school is not Board approved. The application states, correctly, that Hao completed 750 hours of study at AMIA. The evidence does not establish that Hao knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department.

             
             

         20. Ms. Johnson forwarded Hao's application and supporting documents to the Department, and soon afterward the Department issued Hao a license to practice as a massage therapist.

         21. The evidence fails to support a finding that Hao misrepresented her educational attainments when she met with

             Ms. Johnson. The evidence, moreover, does not support a finding that Hao knew or should have known that Ms. Johnson's evaluation of her credits was anything but routine and in accordance with FCNH's academic policies. The evidence does not support a finding that Hao knew or should have known that FCNH, as the transferee school accepting her AMIA courses, would award her academic credit or credentials which she had not legitimately earned.

         22. Hao was not shown to have had any prior familiarity with FCNH forms and documents; its recordkeeping practices; or its internal policies regarding the registration and enrollment of students, the evaluation of transcripts for the purpose of transfer of credits, or the issuance of certificates and other educational credentials. Hao was not shown to have had any reason to suspect that the FCNH Enrollment Agreement she signed would not be properly entered into the school's records, or to believe that the FCNH transcript issued for her benefit purported to award her any credits other than those she rightfully had earned.

             
             

         23. To sum up Hao's transaction with FCNH, she went to the Board-approved, state-licensed massage school in June 2010, where she met with the registrar, Ms. Johnson, a member of the school's administration who she had no reason to believe would deceive her. It was reasonable under the circumstances for Hao to rely upon Ms. Johnson, and she was entitled under the law to receive accurate information from the registrar regarding, among other things, the transferability of credits to FCNH, and the relationship between FCNH's academic program and the state's licensure requirements for massage therapists.

         24. Further, Ms. Johnson, who at all times was acting within the course and scope of her employment as the school's registrar, had actual authority to prepare and certify educational credentials on behalf of FCNH. The evidence does not establish that Hao was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Hao gave Ms. Johnson false information. From Hao's perspective, Ms. Johnson had apparent authority, at least, to accept Hao's credits from AMIA and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation.

         25. Hao has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. FCNH has not initiated a legal proceeding

             
             

             to revoke or withdraw Hao's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Hao is without rights and privileges thereunder.

             CONCLUSIONS OF LAW

             
             

         26. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

         27. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a license is penal in nature.

             State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487,

             
             

             491 (Fla. 1973). Accordingly, to impose discipline, the Department must prove the charges against Hao by clear and convincing evidence. Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Regulation, Bd. of Medicine, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

         28. 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:

             
             

             clear 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). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

         29. 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); see 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."); see also, e.g., Griffis v. Fish & Wildlife Conserv. Comm'n, 57 So. 3d 929 (Fla. 1st DCA 2011)(statutes imposing a penalty must never be extended by construction).

         30. Due process prohibits an agency from taking disciplinary action against a licensee based on matters not specifically alleged in the charging instrument. See

             § 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 . . . ."); see also 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."); Marcelin v. Dep't of Bus. & Prof'l Reg., 753 So. 2d 745, 746-747 (Fla. 3d DCA 2000); 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.").

             
             

         31. In Count I of the Complaint, the Department charged Hao under section 456.072(1)(h), Florida Statutes (2009), which states that the act of "obtaining . . . a license . . . by bribery, by fraudulent misrepresentation, or through an error of the department" constitutes grounds for discipline. The Department alleged that Hao committed a disciplinable offense "by obtaining her license to practice massage therapy

             . . . through error of the Department of Health or by fraudulent misrepresentation by submitting a fraudulent transcript and fraudulent Certificates of Completion with her Application."

         32. The Department takes the position that Hao's license can be revoked based on the Department's unilateral mistake, even if Hao did not personally commit a culpable act. This argument is rejected.

         33. To begin, the Department's "unilateral error" theory is inconsistent with the general procedure for licensing as set forth in section 120.60, which provides in pertinent part as follows:

             1. Upon receipt of an application for a license, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency shall not deny a license for failure to correct an error or omission or to supply additional information unless the agency

                
                

                timely notified the applicant within this 30-day period.

                
                

                Given that the law unambiguously prohibits an agency from "deny[ing] a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant" of the particular deficiency within

                30 days after receiving the application, to allow the agency later to revoke a license pursuant to section 456.072(1)(h) based solely on a purported deficiency or "red flag" in the licensee's application of which the agency failed to give timely notice under section 120.60 not only would erode the protection that the latter statute affords specific licensees, but also would undermine the integrity of licenses in general.

         34. Further, section 456.072(1) clearly does require a culpable "act" on the part of the licensee as a condition for imposing discipline. Id. ("The following acts shall constitute grounds for" discipline) (emphasis added). The disciplinable acts specified in section 456.072(1)(h) are the use of a bribe, fraudulent misrepresentation, or "error of the department" to obtain a license. Because a unilateral agency error does not involve any wrongful act on the licensee's part, such an event cannot constitute a basis for discipline. For a disciplinable act to occur, the applicant must somehow use or take advantage of an agency error to obtain her license.

             
             

         35. To take advantage of an agency error, the applicant must know about it. Thus, to commit the disciplinable act of obtaining a license through an error of the agency, the applicant must knowingly use the agency's error to her advantage. Properly understood, then, section 456.072(1)(h) imposes an affirmative duty on an applicant to inform the licensing agency if she learns that the agency is about to issue, or has issued, her a license in error.

         36. Finally, Hao's application was supported by proof of graduation from a Board-approved massage school in the form of an official transcript signed by FCNH's registrar and two Certificates of Completion also bearing the official signature of the school's registrar. These documents constituted evidence of Hao's successful completion of an approved course of study. See Fla. Admin. Code R. 64B7-32.002 (Feb. 21, 1996). The Department's recognition of Hao as a graduate of a Board- approved massage school would have been a mistake only if Hao did not possess the legally cognizable rights and privileges appertaining to her FCNH Diploma, but she did——and does.

         37. The Department failed to prove that Hao knowingly took advantage of an agency error in obtaining her license, or even that the Department made a mistake. Therefore, Hao is not subject to discipline on the basis of agency error.

             
             

         38. Regarding the allegation that Hao obtained her license by submitting fraudulent credentials, it is useful to recall that, in the context of a civil suit, the essential elements of a fraud claim are: (1) a false statement concerning a material fact, including a nondisclosure when under a duty to disclose;

   2. made with knowledge that the representation (or omission) is false and with the intention of inducing another's reliance thereon; and (3) consequent injury to the other party acting in reliance on the false representation. See, e.g., Cohen v. Kravit Estate Buyers, Inc., 843 So. 2d 989, 991 (Fla. 4th DCA 2003). In an administrative proceeding such as this, where an applicant is alleged to have used fraudulent means in an attempt to obtain a license, it is not necessary for the agency to prove actual injury, but the rest of the common law definition of fraudulent conduct is relevant and applicable in evaluating the charge.

1. "[F]raudulent intent usually must be proved by circumstantial evidence and such circumstances may, by their number and joint consideration, be sufficient to constitute proof." Nally v. Olsson, 134 So. 2d 265, 267 (Fla. 2d DCA 1961). Therefore, as proof of fraud, "one may show 'a series of distinct acts, each of which may be a badge of fraud and when taken together as a whole, constitute fraud.'" Dep't of Rev. v. Rudd, 545 So. 2d 369, 372 (Fla. 1st DCA 1989)(quoting Allen v.

   
   

   Tatham, 56 So. 2d 337, 339 (Fla. 1952)). Further, "[s]cienter, or guilty knowledge, [which] is an element of intentional misconduct [such as fraud], . . . can be established by showing actual knowledge, or that the defendant was reckless or careless as to the truth of the matter asserted." Ocean Bank of Miami v. INV-UNI Inv. Corp., 599 So. 2d 694, 697 (Fla. 3d DCA 1992).

2. In this case, the Department failed to prove that Hao knowingly, and with the intent to deceive the Department, made any false statement of material fact in, or in connection with, her application. Therefore, Hao is not guilty of obtaining a license by fraudulent misrepresentation.

3. In Count II of the Complaint, the Department charged Hao under section 456.072(1)(w), Florida Statutes (2009), which states that the act of "making misleading, untrue, deceptive, or fraudulent representations on a[n] . . . initial

   . . . licensure application" constitutes grounds for discipline. The Department alleged that Hao committed a disciplinable offense "by submitting a fraudulent transcript and fraudulent Certificates of Completion with her Application."

4. The Department asserts that the credentials which FCNH issued to Hao are "inauthentic, illegitimate, and, therefore, fraudulent," despite the fact that the school's own registrar issued the documents in her official capacity, and despite the fact that, to anyone unfamiliar with FCNH's internal policies

   
   

   and practices, such as Hao, the credentials are facially regular in appearance. The Department's position assumes that fraudulence is some sort of intrinsic quality of the documents for which Hao is culpable, regardless of whether she personally engaged in fraudulent conduct. The undersigned rejects the idea that a licensee can be disciplined merely for having reasonably relied upon an allegedly "fraudulent" document obtained in good faith by the licensee under circumstances demonstrating that the licensee considered the document to be what it purports to be.

   The Department failed to prove that Hao knowingly, and with the intent to deceive the Department, made any false statement of material fact in, or in connection with, her application.

   Therefore, Hao is not guilty of making fraudulent representations in her application.

5. In Count III of the Complaint, the Department charged Hao under section 480.046(1)(o), Florida Statutes (2009), which subjects a licensee to discipline for the act of violating any provision of chapter 480 or chapter 456. The Department alleged that because Hao has failed to "complete a course of study at a Florida Board-approved massage school," she has "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.

   
   

6. As a preliminary matter, the undersigned notes that section 480.041(1) does 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, it is questionable whether any person can be punished for "violating" section 480.041(1).

7. Assuming for argument's sake, however, that a licensee can be disciplined for having "violated" section 480.041(1)(b), the Department failed to prove that Hao did not complete a course of study at a Board-approved massage school, for the reasons set forth below.

8. At the time Hao submitted her initial application, Florida Administrative Code Rule 64B7-32.002 (Feb. 21, 1996) 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.

   
   

9. Hao's application included a Diploma issued by FCNH, a Board-approved massage school. After reviewing Hao's application, the Department determined that the Diploma sufficed to prove Hao's successful completion of a course of study in massage meeting the minimum standards. The Diploma never changed; it continues to be exactly what it was in June of 2010: evidence of successful completion of a course of study at a Board-approved massage school.5/ To get around this reality, the Department argues that the Diploma is "fraudulent" and that Hao did not take the courses required for completion of an approved course of study in massage therapy. Although the Department argues that it is "not asking for the recission of [Hao's] credentials," in effect it is seeking such relief. To deem Hao unqualified for having failed to complete an approved course of study, the Department urges that Hao's rights under the FCNH Diploma be ignored, if not extinguished, and it believes such

   
   

   rights should be disregarded owing to Hao's alleged deceitfulness.

10. If Hao had knowingly deceived the Department, e.g., by making a fraudulent misrepresentation in her application, then Hao would be subject to discipline for such misconduct, which of itself is a sufficient basis——independent of any educational credential——for taking punitive measures. As discussed above, however, the Department failed to prove that Hao made fraudulent misrepresentations to the Department. Consequently, there was no fraud in the transaction between Hao and the Department.

11. Asserting that Hao did not take courses at FCNH, which she should have known were required for licensure, the Department tacitly contends that Hao fraudulently obtained her FCNH Diploma. There are multiple problems with the Department's theory. First, as a duly licensed postsecondary institution, FCNH (a) had the discretion to accept or decline to accept Hao's AMIA credits and (b) had the duty to disclose to Hao all relevant information regarding transferability of credits. See

    § 1005.04, Fla. Stat. (2009); Fla. Admin. Code R. 6E- 1.0032(6)(f). As FCNH's registrar, Ms. Johnson performed a seemingly legitimate evaluation of Hao's credentials and accepted Hao's AMIA credits, applying them toward the award of an FCNH credential.

    
    

12. Hao's reliance on Ms. Johnson's decision regarding the transferability of credits was reasonable under the circumstances; believing, as she was told, that her out-of-state credits were acceptable to FCNH in lieu of taking additional courses, Hao had no reason to be concerned about not attending additional classes at FCNH.6/

13. Second, Hao was entitled to receive accurate information from FCNH regarding the relationship of the school's massage therapy program to state licensure requirements. See

    § 1005.04(1)(d), Fla. Stat. Hao's reliance on Ms. Johnson to inform her as to the qualifications necessary for licensure as a Florida massage therapist was therefore reasonable under the circumstances. The Department failed to prove that Hao did not reasonably believe that the courses she had completed at AMIA, which FCNH accepted toward the award of its credentials, were all that she needed in order to complete the program at FCNH.

14. Finally, the questions which the Department has raised implicating the Diploma's validity, namely whether FCNH should have issued Hao a Diploma and whether the Diploma is operative as a legal instrument under which Hao 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.

15. As the Supreme Court of Ohio explained:

    
    

    We consider it self-evident that a college or university acting through its board of trustees does have the inherent authority to revoke an improperly awarded degree where

    1. good cause such as fraud, deceit, or error is shown, and (2) the degree-holder is afforded a fair hearing at which he can present evidence and protect his interest. Academic degrees are a university's certification to the world at large of the recipient's educational achievement and fulfillment of the institution's standards. To hold that a university may never withdraw a degree, effectively requires the university to continue making a false certification to the public at large of the accomplishment of persons who in fact lack the very qualifications that are certified. Such a holding would undermine public confidence in the integrity of degrees, call academic standards into question, and harm those who rely on the certification which the degree represents.

       
       

       Waliga v. Board of Trustees, 488 N.E.2d 850, 852 (Ohio 1986). The authority to revoke degrees for cause, in short, is a

       
       

       "necessary corollary" to the power to confer degrees, Hand v. Matchett, 957 F.2d 791, 794-95 (10th Cir. 1992)——necessary because "upon the grant of a degree, the university certifies to the world that the recipient has fulfilled the university's requirements, and this certification continues until the degree is revoked." Crook v. Baker, 813 F.2d 88, 93 (6th Cir. 1987).

16. As the court made clear in Waliga, however, the issuing institution cannot revoke a degree——in which the holder possesses a property right——except according to constitutionally adequate procedures providing due process. 488 N.E.2d at 853. This does not mean that the school necessarily must go to court to revoke a degree previously conferred. See Crook, 813 F.2d at

1. An administrative proceeding——to which the issuing institution and the degree holder are parties——may suffice. See Faulkner v. Univ. of Tenn., 1994 Tenn. App. LEXIS 651 (Tenn. Ct. App. Nov. 16, 1994). But it does mean that the former student must be afforded adequate notice, a fair opportunity to be heard, and an impartial forum. As one judge observed:

   Educational institutions are uniquely situated to make determinations regarding academic qualifications or the lack thereof. Establishing degree requirements and granting degrees are within the province of universities, not courts; so the rescission of degrees of former students is within the province of universities, not courts.

   Courts, when their jurisdiction is quickened, must assure that degrees are not rescinded by universities until the former

   
   

   student has had all of the process due him—— adequate notice, a fair opportunity to defend, and an impartial forum.

   
   

   Faulkner v. The Univ. of Tenn., 627 So. 2d 362, 367 (Ala. 1992)(Houston, J., dissenting).7/

   1. Hao'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 Hao 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.

   2. 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. In arguing that Hao 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.

      
      

   3. Because FCNH has not revoked the Diploma, the Diploma continues to certify that Hao completed a course of study in massage therapy at a Board-approved school.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Hao not guilty of the offenses charged in the Complaint.

DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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 the Division of Administrative Hearings this 20th day of August, 2013.

ENDNOTES

1/ Unless otherwise noted, all statutory and rule references are to current versions.

2/ Section 480.033(9) provides:

"Board-approved massage school" means a facility which meets minimum standards for training and curriculum as determined by rule of the board and which is licensed by the Department of Education pursuant to chapter 1005 or the equivalent licensing authority of another state or is within the public school system of this state.

3/ See § 1005.32(5), Fla. Stat.

4/ See Fla. Admin. Code R. 64B7-32.004 (Feb. 27, 2006).

5/ If the Department believed that Hao's official transcript from FCNH and the other certificates comprising her Diploma failed to conform to the requirements of rule 64B7-32.002, then it should have denied her application on that basis, which would have given Hao the right, in 2010, to request a hearing to determine the sufficiency of the Diploma. In any event, it should be noted that the Department is not asserting in this case that Hao's FCNH Diploma is insufficient evidence of successful completion of an approved course of study pursuant to rule 64B7-32.002; the Department argues instead that the Diploma was fraudulently obtained and thus is a nullity, which is a different theory.

6/ If the Board determines that FCNH failed to comply with the standards for transfer of credit set forth in rule 64B7-32.004, then the Board can withdraw its approval of FCNH pursuant to rule 64B7-32.003(3). In addition, or alternatively, if so inclined, the Department or the Board may make a complaint about FCNH to the CIE, which is authorized to investigate suspected misconduct on the part of licensed nonpublic postsecondary schools, and to impose discipline on violators. See § 1005.38, Fla. Stat. The Department has not alleged, in any event, that Hao should be disciplined because the transfer standards were not met.

7/ The dissenting justice concluded, contrary to the court's majority, that the plaintiff had failed to exhaust his administrative remedies. The entire court agreed, however, that the plaintiff's degree could not be revoked except through a proceeding affording him due process of law.

COPIES FURNISHED:

Candace A. Rochester, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Bernard M. Cassidy, Esquire Lubell and Rosen

200 South Andrews Avenue, Suite 900 Fort Lauderdale, Florida 33301

Qian Wen, Esquire

8117 Northwest 33rd Street Doral, Florida 33122

Anthony R. Jusevitch, Executive Director Board of Massage Therapy

Department of Health

4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3256

Jennifer A. Tschetter, General Counsel Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701

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.

Docket for Case No: 13-000001PL

Orders for Case No: 13-000001PL