vs.
Respondent.
Case No. 12-4132PL
Pursuant to notice, a formal administrative hearing was conducted by video teleconference at sites in Tallahassee and Lauderdale Lakes, Florida, on June 27, 2013, before Administrative Law Judge Edward T. Bauer of the Division of
Administrative Hearings.
For Petitioner: Lealand L. McCharen, Esquire
Cecilie D. Sykes, Esquire Department of Health
For Respondent: Bernard M. Cassidy, Esquire
The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint and, if so, the penalty that should be imposed.
On October 9, 2012, Petitioner, Department of Health ("Department"), filed a three-count Administrative Complaint ("Complaint") against Respondent, Hai Zhen Gong. In Count One of the Complaint, the Department alleged that Respondent violated section 456.072(1)(h), Florida Statutes, in that she obtained 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." The Department further alleged, in Count Two, that Respondent submitted fraudulent documentation (namely, a fraudulent transcript and fraudulent certificates of completion) in connection with her application for licensure, contrary to section 456.072(1)(w). Finally, in Count Three, the Department asserted that Respondent's license is subject to revocation pursuant to section 480.041(1)(b), Florida Statutes, which provides that, in order to qualify for licensure as a massage therapist, an applicant must complete either a course of study
at an approved massage school or an appropriate internship program.
Respondent timely requested a formal hearing to contest the allegations, and, on December 21, 2012, the matter was referred to the Division of Administrative Hearings ("DOAH") and assigned to Administrative Law Judge John G. Van Laningham. Thereafter, on March 18, 2013, the Department filed an unopposed request to amend its Complaint. An order granting leave to amend was issued the following day. The Amended Administrative Complaint ("Amended Complaint"), which included no additional charges, refined the Department's theories with respect to Counts One and Two. Specifically, the Department now contends that only one
fictitious or fraudulent document was submitted with Respondent's application: a "Certificate of Completion for two hours of Prevention of Medical Errors."
On June 26, 2013, Judge Van Laningham transferred the instant matter to the undersigned for further proceedings. A final hearing was conducted the following day, at the outset of which the Department announced that it had abandoned any claim that Respondent was guilty of fraudulent conduct "in her personal capacity."1/ The Department presented the testimony of one witness, Anthony Jusevitch, and introduced two exhibits into evidence, numbered 1 and 2. (The deposition transcript of Melissa Wade, identified as Petitioner's Exhibit 2, was received
in lieu of the witness' live testimony.) Respondent testified on her own behalf and introduced two exhibits, numbered 1 and 2.
The final hearing Transcript was filed with DOAH on July 3, 2013. Pursuant to Respondent's unopposed request, the deadline for the submission of proposed recommended orders was extended to July 25, 2013. Thereafter, the parties submitted proposed recommended orders, which the undersigned has considered in the preparation of this Recommended Order.2/
In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, an FCNH managerial employee, 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, who admitted that she had created and signed the problematic certificates, but 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.) Ms. Johnson's employment with FCNH was terminated a short time later.
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 approximately 220 graduates, including Respondent, whose credentials FCNH could not confirm.
At present, Respondent has neither surrendered her Diploma, nor has she otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. Although the evidence demonstrates that Ms. Johnson should not have awarded Respondent an FCNH Diploma (because, among other reasons, Respondent had not completed two hours of board- approved coursework in the area of medical error prevention), 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.
Further, and just as important, it has not been shown that Respondent provided Ms. Johnson (or any other FCNH employee) with false information, nor does the evidence support a finding that Respondent knew or should have known that
Ms. Johnson's issuance of the Diploma was anything but routine and in accordance with FCNH's academic policies. Under the circumstances, it was entirely reasonable for Respondent to rely upon Ms. Johnson's representations, as Respondent was entitled under the law to receive accurate information from FCNH concerning, among other things, the transferability of credits to FCNH, as well as the relationship between FCNH's academic program and the state's licensure requirements for massage
therapists.
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:
[C]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 ").
With the foregoing principles in mind, the undersigned turns to the three statutory offenses charged in the Amended Complaint, each of which is discussed separately below.
Count One
In Count One of the Amended Complaint, the Department alleges that Respondent is in violation of section 456.072(1)(h), a provision that, in relevant part, subjects a licensee to discipline for obtaining a license "by fraudulent misrepresentation[] or through an error of the department or the board."
During the final hearing, the Department announced that it had abandoned any allegation that Respondent was guilty of fraudulent behavior "in her personal capacity." See Final Hearing Transcript, p. 9, lines 18-20; p. 13, lines 12-15. Accordingly, the only remaining issue with respect to Count One is whether Respondent obtained her license through an error of the Department or the Board.
In its Proposed Recommended Order, the Department contends that its issuance of Respondent's license was in error because it was deceived by the improperly-issued Prevention of Medical Errors Certificate of Completion, which Ms. Johnson furnished to the Department during the application process.
Accordingly, the Department appears to take the position that Respondent herself has committed a disciplinable offense by virtue of a (purported) unilateral error committed by a member of the Department's staff. For the reasons that follow, the Department's argument is rejected.
First, the Department's theory of unilateral error is antithetical to the general procedure for licensing as set forth in section 120.60(1), Florida Statutes, which provides:
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 section 120.60 prohibits an agency from denying a license for failure to correct an error or omission unless the agency timely notified the applicant of the particular deficiency within 30 days after receiving the application, to allow the agency:
[L]ater to revoke a license pursuant to section 456.072(1)(h) based solely on a purported deficiency 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.
Dep't of Health, Bd. of Massage Therapy v. Diamond, Case
No. 12-3825PL, 2013 Fla. Div. Adm. Hear. LEXIS 204, *25-26 (Fla.
DOAH Apr. 9, 2013)(Van Laningham, J.).
In addition, the imposition of discipline pursuant to section 456.072(1) requires a culpable "act" on that part of the licensee. Id. at *26; § 456.072(1), Fla. Stat. ("The following acts shall constitute grounds for [discipline]")(emphasis added). Owing to the fact that a unilateral agency error does not contemplate any wrongful act on the licensee's part, such an event does not provide a valid basis upon which to impose discipline. For a disciplinable act to occur, the applicant "must somehow use or take advantage of an agency error to obtain her license." Diamond, 2013 Fla. Div. Adm. Hear. LEXIS 204 at
*26. Based upon the findings of fact contained herein, the Department has failed to make such a showing. See Dep't of Health, Bd. of Massage Therapy v. Jiang, Case No. 12-3610PL, 2013 Fla. Div. Adm. Hear. LEXIS 340, *14 (Fla. DOAH June 11, 2013)(Johnston, J.)("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.").
Even assuming, arguendo, that a unilateral mistake by the Department or Board can properly subject a licensee to revocation, there is an absence of clear and convincing evidence that the Department "erred" in granting Respondent's application for licensure. As discussed previously, Respondent's application package included 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, which likewise bore the registrar's official signature. Collectively, these documents constituted evidence of Respondent's successful completion of an approved course of study,8/ a fact that likely accounts for the credible, unequivocal testimony of Mr. Jusevitch that Respondent's application materials included no errors or omissions. See
Jiang, 2013 Fla. Div. Adm. Hear. LEXIS 340 at *13-14 (concluding that evidence failed to establish a violation of section 456.072(1)(h) where 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 Respondent had completed a Board-approved course of study and was entitled to licensure by examination.").
For these reasons detailed above, Respondent is not guilty of violating section 456.072(1)(h).
Count Two
The Department further asserts, in Count Two of the Amended Complaint, that Respondent is in violation of
section 456.072(1)(w), which subjects a licensee to discipline for:
Failing 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.
Although section 456.072(1)(w) encompasses a variety of misconduct, it is notable that, in paragraph 21 of the Amended Complaint, the Department narrowed its theory of guilt to the allegation that Respondent "submitt[ed] a fictitious Certificate of Completion for two hours of Prevention of Medical Errors with her Application." As noted previously, the Department further limited its theory of prosecution by announcing, at the outset off the final hearing, that it was no longer pursuing any allegation that Respondent was guilty of fraudulent behavior "in her personal capacity."
Nevertheless, the Department asserts that Respondent is subject to discipline simply because her application for licensure was accompanied by the improvidently-issued "Prevention of Medical Errors" Certificate of Completion. It
appears, in other words, that the Department seeks to punish Respondent——whom the Department no longer alleges is guilty of fraud——for the misdeeds of FCNH's registrar, Ms. Johnson.
The Department's current theory suffers from a number of problems, the first of which is that the Department failed to plead it in the Amended Complaint. (The Amended Complaint, which contains no mention of Ms. Johnson, alleges only that Respondent was responsible for the submission of the document in question.) Further, and in any event, the actions of
Ms. Johnson, standing alone, do not provide a basis upon which to convict Respondent, as section 456.072(1)(w) requires evidence of personal misconduct by the licensee. See Pic N'
Save v. Dep't of Bus. & Prof'l Reg., 601 So. 2d 245, 250 (Fla. 1st DCA 1992)("[O]ne's license to engage in an occupation is not to be taken away except for misconduct personal to the licensee"); Dep't of Health, Bd. of Massage Therapy v. Diamond, Case No. 12-3825PL, 2013 Fla. Div. Adm. Hear. LEXIS 204, *29-30
(Fla. DOAH Apr. 9, 2013)("The Department failed to prove that Diamond knowingly, and with the intent to deceive the Department, made any false statement of material fact in, or in connection with, her application. Therefore, Diamond is not guilty of [violating section 456.072(1)(w)]."). Respondent is not guilty of Count Two.
Count Three
Finally, the Department charges Respondent under section 480.046(1)(o), which subjects a licensee to discipline for, among other things, violating any provision of chapter 480. Specifically, the Department alleges that Respondent has not completed "a course of study at a Florida 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:
[D]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).
Diamond, 2013 Fla. Div. Adm. Hear. LEXIS 204 at *30-31; 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 Diploma, which FCNH has not rescinded, continues to be exactly what it was in March 2007: 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.
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 Respondent not guilty of the offenses charged in the Complaint.
DONE AND ENTERED this 6th day of August, 2013, in Tallahassee, Leon County, Florida.
EDWARD T. BAUER
Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2013.
1/ See Final Hearing Transcript, p. 9, lines 18-20; p. 13, lines 12-15; see also Department's Proposed Recommended Order,
p. 8, ¶ 16 ("The Department has not pursued allegations of fraud by Respondent in the submission of her application for licensure.").
2/ Unless otherwise noted, all statutory and rule references are to current versions.
4/ See § 1005.32(5), Fla. Stat.
5/ See Fla. Admin. Code R. 64B7-32.004 (Feb. 27, 2006).
6/ Melissa Wade, one of FCNH's managerial employees, provided the only testimony concerning the duties and authority of FCNH's registrar. Ms. Wade explained, credibly, that the registrar serves as the institution's "main point of contact" with students and is authorized to "certify [] records and [] transcripts." See Petitioner's Exhibit 2, pp. 14-15. This testimony, buttressed by the circumstances surrounding Respondent's interaction with Ms. Johnson (and the fact that the Department granted Respondent's application for licensure, notwithstanding the absence of any signature other than the registrar's on the FCNH certificates), supports a finding that Ms. Johnson was authorized to generate and sign each of the FCNH documents included with Respondent's application.
7/ See Final Hearing Transcript, p. 38, lines 19-23.
8/ See Fla. Admin. Code R. 64B7-32.002 (Feb. 21, 1996).
Lealand L. McCharen, Esquire Cecilie D. Sykes, Esquire Department of Health
Bernard M. Cassidy, Esquire Lubell and Rosen
Anthony R. Jusevitch, Executive Director Board of Massage Therapy
Jennifer A. Tschetter, General Counsel Department of Health
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.
