vs.
Respondent.
Case No. 12-3611PL
On March 27, 2013, a final administrative hearing was held in this case in Naples, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
For Respondent: Martin P. McDonnell, Esquire
Rutledge, Ecenia, and Purnell, P.A.
The issue in this case is whether the Department of Health, Board of Massage Therapy, should discipline the Respondent, Jun
obtained her license.
The Department of Health (Department) filed an Administrative Complaint against the Respondent alleging: in Count I, that she obtained her license through the Department's error or through fraudulent misrepresentation; in Count II, that she failed to provide information or timely updated information, or made misleading, untrue, deceptive, or fraudulent representations on her license application; and, in Count III, that she failed to complete the course of study required for licensure. The Respondent disputed the charges and requested an administrative hearing.
At the hearing, the Department had Petitioner's Exhibits 1 through 3 admitted in evidence. The Respondent testified and had one exhibit admitted in evidence. The Transcript of the final hearing was filed, and the parties filed proposed recommended orders that have been considered.
The Respondent, who was born in China, came to the United States in 2009 and enrolled in the Healing Hands Institute for Massage Therapy (Healing Hands) in New Jersey. She completed a 600-hour course of study and graduated in March 31, 2010. In December 2010, she sat for and passed the examination
administered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB).
The Respondent wanted to move to Florida and work as a licensed massage therapist. She was referred to the Florida College of Natural Health (FCNH) by a friend, who had a friend who had graduated from FCNH's Board-approved course of study and was licensed in Florida. The friend made an appointment for the Respondent, who traveled to FCNH's Pompano campus in late December 2010 or early January 2011. On arrival, the Respondent was escorted by someone who worked there to the office of the registrar, Glenda Johnson.
The Respondent showed Johnson her Healing Hands transcript and her NCBTMB certificate, which Johnson reviewed.
It is not FCNH's normal practice for the registrar to review transcripts to determine how much credit to accept from another school. This is normally done by the school's education department. However, Johnson appeared to have the authority to make the determination, and it was reasonable for the Respondent to believe that Johnson was authorized to do so.
Johnson then had the Respondent fill out and sign an application for licensure in Florida by examination based on her 600-hour course of study at Healing Hands and her NCBTMB certificate. Johnson helped the Respondent answer questions she
could not understand. Everything in the application filled out and signed by the Respondent was true and correct at that time.
Johnson then gave the Respondent a copy of the statutes and rules governing the practice of massage therapy in Florida. The Respondent spent about two hours in the registrar's office studying the statutes and rules. There was no instructor present. The Respondent did not ask anyone any questions about the statutes and rules, and she was not tested or graded on what she studied.
When the Respondent finished studying the statutes and rules, she paid Johnson $830 in cash and left the application with her. The Respondent asked if she had to take any more classes, Johnson said she would let her know. She trusted Johnson, as the school's registrar. Cf. § 1005.04(1)(a) & (d), Fla. Stat. (2012)(a nonpublic secondary institution accredited by the Commission for Independent Education must disclose to prospective students the transferability of credit to and from other institutions and accurate information regarding the relationship of its programs to state licensure requirements).
Actually, even if credit for all other educational requirements for Florida licensure by examination were transferred from Healing Hands, the Respondent was required to complete a ten-hour class in Florida statutes and rules. Fla. Admin. Code R. 64B7-32.003 (Apr. 25, 2007). (Notwithstanding
some testimony to the contrary, other mandatory courses of study are not required by rule to be Florida-specific.) Id. Like all other educational requirements for licensure by examination, this class had to be taken in-person, with a faculty member present.
Fla. Admin. Code R. 64B7-32.001 (Mar. 25, 1986).
The Respondent did not recall Johnson saying she would submit the Respondent's application to the Board. The Respondent left the application she had filled out and signed on Johnson's desk when she left. She never spoke to Johnson or returned to FCNH again.
At some point after the Respondent left the Pompano campus, Johnson completed a transfer of credit form and the Respondent's FCNH transcript. The transfer of credit form indicated that FCNH was accepting the following hours from Healing Hands: 150 credit hours in the category Anatomy and Physiology; 100 credit hours in the category Basic Massage Therapy; 125 credit hours in the category Clinical Practicum;
76 credit hours in the category Allied Modalities; 15 credit hours in the category Business; 15 credit hours in the category Theory and Practice of Hydrotherapy; 4 credit hours in the category Professional Ethics; and 3 credit hours in the category HIV/AIDS Education. The form did not specify the course taken at Healing Hands. The form indicated that to qualify for licensure, the Respondent needed ten hours in the category Florida Laws and
Rules and two hours in Medical Errors. Finally, the form showed the total credit hours for all schools, which indicated that the additional hours needed for licensure had been taken.
At some point after the Respondent left the Pompano campus, Johnson also completed a FCNH transcript for the Respondent indicating that the Respondent completed all the credit hours on the credit transfer form (a total of 500 credit hours, including 12 hours having been taken at FCNH, namely ten in Florida Statutes and Rules and two in Introduction to Allied Modalities), and assigning credits for those credit hours (a total of 25.84 credits, including 0.8 earned at FCNH). In fact, the Respondent did not take any classes at FCNH.
At some point after the Respondent left the Pompano campus, Johnson also completed FCNH certificates of completion for the Respondent indicating that the Respondent took and successfully completed FCNH's two-hour class in Prevention of Medical Errors and 20 hours of FCNH's Therapeutic Massage Training Program (Transfer of License) between January 6 and 7, 2011. In fact, the Respondent did not take FCNH's class in Prevention of Medical Errors or any other classes at FCNH.
Johnson sent the Respondent's license application (with
$155 fee), Healing Hands transcript, and NCBTMB certificate, together with the documents Johnson completed after the Respondent left the Pompano campus, to the Board. She did not
provide copies to the Respondent. Based on those submissions, the Board issued the Respondent massage therapy license MA 61844.
There was no evidence as to what happened to the balance of the cash paid to Johnson, but subsequent events suggest that Johnson probably pocketed it.
The Respondent's license application included both the representation that the answers and statements in or in support of her application were true and correct and the acknowledgement that any false information on or in support of the application was cause for denial, suspension, or revocation of her license. Although true and correct when the Respondent filled it out and signed it, the Respondent's application was not true and correct as submitted to the Board on her behalf, with the false supporting documentation prepared by Johnson.
In December 2011, it came to the attention of Melissa Wade, FCNH's vice-president for Compliance and Institutional Effectiveness, that a number of people were claiming to have graduated from FCNH's Pompano campus based on documentation indicating that they did not complete FCNH's 768-hour course of study that was approved by the Board. Wade investigated and was unable to find any record of the individuals having been students at FCNH. Wade investigated further and discovered discrepancies in the documentation being submitted by those individuals. Wade investigated further and discovered that Johnson never actually
registered these individuals as students. Johnson was terminated from her employment as registrar for the school.
Beginning in January or February 2012, Wade began notifying the Board about the individuals purporting to be FCNH graduates, but who never actually were registered as students and did not complete the school's Board-approved course of study. As more such individuals were identified, the Board was notified. The Respondent was one of the individuals reported to the Board.
In September 2012, it came to the Respondent's attention that the Department had concerns regarding the veracity of the Respondent's application for licensure. In October 2012, in an attempt to resolve the Department's concerns, the Respondent took and successfully completed Board-approved continuing education (CE) classes titled Living with HIV/AIDS (three CE hours), Massage Therapy Laws and Rules--Legal Update 2011 (ten CE hours), and Preventing Medical Errors (two CE hours).
Later in October 2012, the Department filed emergency suspension orders and administrative complaints against a number of licensees who submitted suspect FCNH documentation with their applications, including the Respondent.
During the time the Respondent practiced as a licensed massage therapist in Florida, there have been no complaints of any kind against her either by the Department or any consumer.
During that time, the Respondent also became licensed as a massage therapist in Connecticut and Virginia.
It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, even assuming that Johnson had at least apparent authority to transfer credit hours from Healing Hands and assign FCNH credit, it is clear that the application submitted on the Respondent's behalf by Johnson was supported by documentation that falsely represented that the Respondent took a ten-hour class on Florida statutes and rules and a two-hour class in Prevention of Medical Errors at FCNH. At the same time, those false misrepresentations were made by FCNH, through its registrar, not by the Respondent.
CONCLUSIONS OF LAW
Since this is a license discipline case, the Department must prove its allegations by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The Supreme Court has stated:
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 lacking in confusion as to the facts in issue. The evidence must be of such a 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.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
In Count I, the Department charged the Respondent with "[a]ttempting to obtain, obtaining, or renewing a license to practice a profession . . . by fraudulent misrepresentation,
or through an error of the department or the board."
§ 456.072(1)(h), Fla. Stat. (2009). In Count II, the Department charged the Respondent with "[f]ailing to comply with the requirements for profiling and credentialing, including, but not limited to, failing to provide initial information, failing to timely provide updated information, or making misleading, untrue, deceptive, or fraudulent representations on a profile, credentialing, or initial or renewal licensure application."
§ 456.072(1)(w), Fla. Stat. (2009).
Fraud requires a false statement concerning a material fact (which could include nondisclosure when under a duty to disclose), made with knowledge of its falsity and with the intent to induce another's reliance, and consequent injury to the person 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). The evidence was not clear and convincing that the Respondent had the knowledge or intent necessary to be guilty of
having made fraudulent misrepresentations in her license application.
Similarly, the evidence was not clear and convincing that the Respondent herself made misleading, untrue, or deceptive representations on her license application, notwithstanding Johnson's representations and statements in the application signed by the Respondent that the answers and statements in or in support of her application were true and correct and that any false information on or in support of the application was cause for denial, suspension, or revocation of the license.
The evidence also was not clear and convincing that the Respondent's license was issued through an error of the Department or the Board. The Board was presented with an application supported by what appeared to be a transcript and certificates of completion issued by FCNH, which indicated that the Respondent had completed a Board-approved course of study and was entitled to licensure by examination. See Fla. Admin. Code R. 64B7-32.002 (Feb. 21, 1996).
Even if the Respondent's license were issued through an error of the Department or Board, there would have to be some culpable conduct on the part of the Respondent for her to be disciplined for such an error. In this case, the evidence was not clear and convincing that the Respondent engaged in any conduct that would warrant discipline due to an error of the
Department or Board. That evidence indicates that it was just as reasonable for the Respondent to rely on NCNH to determine whether she was entitled to a transcript and certificates of completion of NCNH's Board-approved course of study as it was for the Department and Board to do so.
In Count III, the Department alleges that the Respondent violated section 480.046(1)(o), Florida Statutes (2009), which subjects a licensee to discipline for violating any provision of chapter 480 or 456, by violating section 480.041(1)(b), which sets out the qualifications for licensure, including the qualification of having completed a course of study at a Board-approved massage school. First, section 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. Second, if it did, it adds nothing to the violations alleged in Counts I and II, and Count III would be resolved as they were.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order dismissing the Administrative Complaint against the Respondent.
DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2013.
Jennifer A. Tschetter, General Counsel Department of Health
Martin P. McDonnell, Esquire Rutledge, Ecenia, and Purnell, P.A.
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.
