STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0147

)

WILLIAM P. MILLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held in Sarasota, Florida, on June 21, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Susan E. Lindgard

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent failed to comply with the continuing education requirements for his massage therapy license and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed November 29, 1994, Petitioner alleged that Respondent is a licensed massage therapist. The Administrative Complaint alleges that Respondent did not take the required hours of continuing education and HIV/AIDS education during the period between January 1, 1991, and January 31, 1993, in violation of Rules 21L-28.009 and 61G11- 28.001(2), Florida Administrative Code, and thus Section 480.046(1)(k), Florida Statutes. The Administrative Complaint also alleges that Respondent gave false or forged evidence to Respondent to obtain a license, in violation of Sections 480.046(1)(k) and 480.047(1)(f), Florida Statutes.

By letter dated December 24, 1994, Respondent advised that he had moved to Canada and was unable to take the required courses between "Jan 1/9 thru Jan

31/93 & my continuing education had to be done here." The response adds that when he learned that the Board of Massage Therapy would not accept the Canadian courses, he took the HIV/AIDS course in Sarasota in April 1994. The letter does not address the non-HIV/AIDS continuing education course coursework. The letter concludes that Respondent would be returning to Sarasota around January 9, 1995, and supplies an address in Longboat Key.

The Initial Order was sent to both parties on January 23, 1995. The Initial Order informs the parties that they must file papers with the Division of Administrative Hearings at the address noted on the form. By Joint Response to Initial Order filed January 27, 1995, Respondent advises that he was leaving in March to return to his home in Canada.

Unfortunately, the Notice of Hearing was not issued until May 23, 1995, and was not sent to Respondent's Canadian address. This may explain Respondent's failure to appear, although he has failed to keep the Division of Administrative Hearings informed of his current address.

At the hearing, Petitioner offered into evidence seven exhibits, which were all admitted into evidence, and called one witness.

The transcript was filed June 23, 1995. Respondent filed no proposed recommended order. Petitioner filed a proposed recommended order, and all of the proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed as a massage therapist in Florida, holding license number MA 0006561.

   
   

2. On or about January 31, 1993, Respondent signed and submitted to the Board of Massage a Renewal Notice stating in part that he has complied with all applicable requirements for relicensure and that his file may be subject to audit to determine his eligibility for relicensure. The renewal period covered the 25 months ending January 31, 1993.

   
   

3. Petitioner randomly selected Respondent's file for audit. In response to a request for information, Respondent indicated, by form dated January 7, 1994, that he had attended 18 hours of classes in acupuncture and three hours of classes in HIV/AIDS. Both classes were taken during the relevant period, but at Huntsville Hospital in Ontario, Canada.

   
   

4. By written response dated January 28, 1994, Petitioner rejected the proffered coursework because Huntsville Hospital is not an approved provider.

   
   

5. The record does not disclose what, if anything, took place following the issuance of the January 28, 1994, notification, which went to Respondent's Canadian address. On March 2, 1994, Petitioner sent a letter to Respondent, at his Canadian address, warning him of Petitioner's intent to initiate disciplinary action.

   
   

6. The March 2 letter "warns" that Respondent must respond by February 23, 1994, or else "this matter will be closed." The deadline had already passed when the letter was sent. The unclear reference to closing the file does not defeat the warning contained elsewhere in the letter that, if Petitioner did not receive adequate documentation, it would submit the audit information to the probable cause panel for consideration of possible disciplinary action.

7. There is no evidence that Respondent submitted false or forged documentation to Petitioner or the Board of Massage. It would appear that Respondent attended courses, but the courses were unapproved. There is no evidence that he submitted the courses for approval by the Board of Massage. There is no evidence that he has taken other courses to satisfy these requirements, although he claimed in a responsive pleading to have satisfied the HIV/AIDS course requirement.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

   
   

9. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   
   

10. Rule 61G11-28.009(1) (formerly 21L-28.009, as cited in the Administrative Complaint) requires that licensees take six hours of continuing education coursework per year since the last license renewal. For Respondent, this requirement meant 18 hours of courses. The subsection adds that the course must be administered by providers approved by the Board of Massage.

    
    

11. Respondent took the acupuncture course from an unapproved provider. He thus failed to satisfy the requirements of Rule 61G11-28.009, which, under subsection (3), is a violation of Section 480.046.

    
    

12. Rule 61G11-28.001(2) provides that, effective December 31, 1992, no license may be renewed unless the licensee submits confirmation that he has taken a three-hour HIV/AIDS course "acceptable to the Board." The rule notes: "Course that have received Board approval are sponsored by [various listed agencies]."

    
    

13. The HIV/AIDS course requirement is different from the general continuing education requirement. The Board of Massage must approve the provider of the general continuing education course. There are detailed requirements in the rules as to how a provider obtains approval. For the AIDS/HIV course, however, the rule requires only that the course be "acceptable to the Board." The rule identifies by sponsor various courses that have received Board approval, but this list is not exhaustive.

    
    

14. In this case, Respondent submitted proof that he attended an HIV/AIDS course sponsored by a hospital. Without inquiry, Petitioner rejected the course, perhaps misconstruing the HIV/AIDS rule to require that the course be offered only from an approved provider. The rule requires only that the course be acceptable to the Board, and its acceptance may not be unreasonably withheld. In the absence of an explanation why it withheld its acceptance, the acceptance was unreasonably withheld.

    
    

15. Section 480.046(1)(f) prohibits licensees from making "deceptive, untrue, or fraudulent representations in the practice of massage." There is no proof that Respondent misled the Board. He merely indicated that he attended certain courses that he felt satisfied his continuing education requirements. Petitioner has not challenged the factual representations that Respondent

    attended these courses. Petitioner has instead asserted the legal issue that the courses fail to satisfy the requirements set forth in the rules.

    
    

16. Section 480.046(1)(k) provides that discipline may be imposed for a violation of any rule. Petitioner has proved that Respondent violated Rule 61G-

    28.009 by failing to take 18 hours of coursework from an approved provider.

    
    

17. Section 480.046(2) provides that, if a person violates any provision of Section 480.046(1), the Board of Massage may revoke or suspend the license, issue a reprimand, or impose an administrative fine of not more than $1000 per separate offense.

    
    

18. Respondent has not totally ignored the 18-hour continuing education requirement, although he appears not to have been diligent in satisfying this important prerequisite to licensing renewal. He should not continue to practice until he has demonstrated that he has completed this coursework, even if he has to take it now. However, his apparent lack of interest in the investigation and formal hearing may be due to the confusing language of the March 2 letter and the failure to send a copy of the Notice of Hearing to Respondent's Canadian address.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Board of Massage enter a final order dismissing Counts II and III of the Administrative Complaint, finding Respondent guilty of violating Rule 61G11-28.009, and suspending his license until he demonstrates proof of completion of all coursework presently required for license renewal.

ENTERED on July 5, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on July 5, 1995.

COPIES FURNISHED:

Susan E. Lindgard Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Northwood Centre, Suite #60 Tallahassee, FL 32399-0792

Joseph Baker, Executive Director Board of Massage

Department of Business and Professional Regulation

1940 North Monroe Street Northwood Centre, Suite #60 Tallahassee, FL 32399-0792

William P. Mills

2069 Gulf of Mexico Drive Longboat Key, FL 34228

William P. Mills RR #4, Box 62

Huntsville, Ontario Canada

POA IKO

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: 95-000147

Orders for Case No: 95-000147