STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF MASSAGE THERAPY,

Petitioner,

vs.

ZIXUAN YANG, L.M.T.,

Respondent.

/

Case No. 13-1158PL

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted by video teleconference at sites in Tallahassee and West Palm Beach, Florida, on June 4, 2013, before Administrative Law Judge Edward T. Bauer of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Renee C. Harkins, Esquire

Department of Health

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

For Respondent: June H. Zhou, Esquire

June Zhou, PLLC

2136 Saint Andrews Boulevard, Suite 209 Boca Raton, Florida 33433

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On October 17, 2012, Petitioner, Department of Health ("Department"), filed a three-count Administrative Complaint ("Complaint") against Respondent, Zixuan Yang. In Count One of the Complaint, the Department alleges 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 through fraudulent misrepresentation by submitting a fraudulent transcript and fraudulent [c]ertificates of [c]ompletion with her application." The Department further alleges, in Count Two, that Respondent submitted "a fraudulent transcript and fraudulent [c]ertificates of [c]ompletion" in connection with her application for licensure, contrary to section 456.072(1)(w). Finally, in Count Three, the Department asserts 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 a course of study at an approved massage school or complete an appropriate internship program.

Respondent timely requested a formal hearing to contest the allegations, and, on March 28, 2013, the matter was referred to the Division of Administrative Hearings ("DOAH") and assigned to Administrative Law Judge John G. Van Laningham. On May 31, 2013, Judge Van Laningham transferred the instant matter to the undersigned for further proceedings.

As noted above, the final hearing in this matter was held on June 4, 2013, during which the Department presented the testimony of one witness (Melissa Wade) and introduced four exhibits into evidence, numbered 1-4. Respondent testified on her own behalf and introduced 18 exhibits, numbered 1-12

and 16-21.

The final hearing transcript was filed with DOAH on June 28, 2013. Thereafter, the parties submitted proposed

recommended orders, which the undersigned has considered in the preparation of this Recommended Order.1/

FINDINGS OF FACT

1. The Parties

   
   

   1. The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in

      
      

      this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses.

   2. On August 1, 2007, the Department issued Respondent license number MA 50975, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 3558 Silver Lace Lane, Boynton Beach, Florida 33436.

2. Respondent's Training and Application for Licensure

   
   

   1. Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. In or around September 2005, Respondent immigrated to the United States and became a citizen of the state of Massachusetts.

   2. Some six months later, Respondent relocated to Florida, where she resided until December 2006; at that point, Respondent moved to California to attend Royal Irvin College ("Royal Irvin"), an institution that offered massage therapy instruction. On March 14, 2007, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree.

   3. Subsequently, on July 12, 2007, Respondent passed the National Certification Examination for Therapeutic Massage and Bodywork. At or around that time, Respondent relocated to Pompano Beach area to seek employment as a massage therapist.

      
      

   4. Owing to the fact that Royal Irvin was not a Board- approved massage school, Respondent needed to complete a course of study at an approved institution or, alternatively, an apprenticeship program. At the suggestion of an acquaintance, Respondent decided to contact the Florida College of Natural Health ("FCNH"), a Board-approved massage school located in Pompano Beach. An initial inquiry of FCNH was made by Respondent's ex-husband, who, at Respondent's request, telephoned the institution and spoke with one of its employees.

   5. Thereafter, on or about July 27, 2007, Respondent and her ex-husband traveled to FCNH's campus and met with the institution's registrar, Glenda Johnson. Respondent's ensuing dealings with Ms. Johnson and her application for licensure are discussed shortly; first, though, a description of FCNH——and its responsibilities under Florida law——is in order.

   6. FCNH, an incorporated nonpublic postsecondary educational entity, 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 (2012).2/ 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, Florida Statutes.

   7. 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. (Aug. 16, 1998), which provided in relevant 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 246, F.S. [now Ch. 1005, Fla. Stat.], 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.

               
               

               (emphasis added).

               
               

   8. 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 (2007), 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;

         
         

         * * *

         
         

      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).

         
         

   9. 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. . . .

         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).

         
         

   10. 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.

       
       

   11. Returning to the events at hand, Respondent met with FCNH's registrar, Ms. Johnson, on July 27, 2007. Notably,

       Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH.5/

   12. The meeting, which took place on a weekday during normal business hours, was held in Ms. Johnson's office——located on the first floor of a multi-story building on FCNH's Pompano Beach campus. Upon Respondent's arrival at the main entrance, a receptionist summoned Ms. Johnson, who, a short time later, appeared in the lobby and escorted Respondent (and Respondent's ex-husband) to her office.

   13. During the meeting that ensued, Respondent reiterated, with her limited English skills, her desire to obtain licensure in Florida as a massage therapist. To that end, Respondent presented Ms. Johnson with various documents, which included her diploma and transcript from Royal Irvin, as well as proof of her national certification.

   14. At one point during the meeting, and in response to a question from Respondent's ex-husband, Ms. Johnson informed Respondent——erroneously——that her existing coursework was sufficient for licensure and that Respondent could simply transfer her previously-earned credits to FCNH. (Among other things, Ms. Johnson should have advised Respondent that Board-

       
       

       approved coursework in "HIV/AIDS," which Respondent did not complete until after6/ the Complaint was filed in this matter, was required for licensure.) All Respondent needed to do,

       Ms. Johnson incorrectly explained, was read an FCNH-prepared booklet concerning the prevention of medical errors. Consistent with Ms. Johnson's instructions, Respondent took the booklet7/ home and reviewed its contents.

   15. As the meeting progressed, Ms. Johnson collected

       
       

       $468.00 in fees from Respondent and helped her complete a three- page form titled, "State of Florida Application for Massage Therapist Licensure." In the application, Respondent truthfully disclosed, among other things, that she had completed 500 hours of study at Royal Irvin; that Royal Irvin was not approved by the Board; and that she had not attended an apprenticeship program. (Although the evidence establishes that Respondent failed to review the rules and statutes pertaining to massage therapy prior to signing the application——the plain language of which requires applicants to certify that the rules and statutes have been read——the Department failed to charge this conduct in the Complaint.)

   16. Thereafter, and on Respondent's behalf, Ms. Johnson submitted to the Department Respondent's application for licensure. The application was accompanied by a number of supporting documents, including two "Certificates of

       
       

       Completion," both of which bore Ms. Johnson's signature and FCNH's official seal. The first such certificate reflected that Respondent had satisfied a two-hour course relating to the prevention of medical errors, while the second indicated the completion of a "Therapeutic Massage Training Program (Transfer of Licensure)." The application package prepared and submitted by Ms. Johnson also contained: a "Transfer of Credit Form" signed by Ms. Johnson, which indicated that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included a three-credit course concerning "HIV/AIDS"; an FCNH transcript that bore

       Ms. Johnson's signature and indicated that Respondent had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)"; Respondent's diploma and transcript from Royal Irvin; and proof of Respondent's national certification as a massage therapist.

   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. (These documents, which Respondent's FCNH diploma comprises, will be referred to hereafter, collectively, as the "Diploma.")

       
       

   18. Subsequently, on August 1, 2007, the Department issued Respondent her license to practice massage therapy. With the exception of the instant proceeding, there is no evidence that Respondent's license has been the subject of prior disciplinary action.

3. Subsequent Events

1. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination (which the NCB administers) from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin, and that the same member of FCNH's administration——i.e., Ms. Johnson——had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH.

2. Ms. Wade reviewed the materials and detected some anomalies in them. Unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students, Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied——falsely,

   
   

   at least with respect to her dealings with Respondent——ever having taken money for doing so. (Ms. Johnson provided the rather dubious explanation that she had been merely trying to "help" people.) Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment.

3. 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 240 graduates, including Respondent, whose credentials FCNH could not confirm.

4. Respondent has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. Although Ms. Wade credibly testified at hearing that Ms. Johnson should not have awarded Respondent an FCNH Diploma based on Respondent's Royal Irvin credits, there is no evidence that FCNH has initiated a legal proceeding to revoke or withdraw Respondent's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Respondent is without rights and privileges thereunder.

5. 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

   
   

   1. Jurisdiction

      
      

6. DOAH has jurisdiction over the parties and subject matter of this cause, pursuant to section 120.57(1), Florida Statutes.

   1. The Burden and Standard of Proof

      
      

7. 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).

   
   

8. 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:

   1. 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).

      1. Statutory Construction/Notice

         
         

9. 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.").

10. 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 ").

    
    

11. With the foregoing principles in mind, the undersigned turns to the three statutory offenses charged in the Complaint, each of which is discussed separately below.

    1. Count One

       
       

12. In Count One of the Complaint, the Department alleges that Respondent is in violation of section 456.072(1)(h), a provision that subjects a licensee to discipline for:

    Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board.

    
    

13. In paragraph 20 of the Complaint, however, the Department narrowed its theory of prosecution as follows:

    Based on the foregoing, Respondent . . . obtain[ed] her license to practice massage therapy in the State of Florida through error of the Department of Health or through fraudulent misrepresentation by submitting a fraudulent transcript and fraudulent Certificates of Completion with her application, in violation of section 456.072(1)(h) . . . .

    
    

    (emphasis added).

    
    

14. Significantly, the Department's Proposed Recommended Order contains no discussion of its first theory——i.e., that Respondent's license was issued through an "error" of the Department of Health. Accordingly, this particular theory, which lacks merit in any event, is deemed abandoned. See Dep't

    of Health, Bd. of Med. v. Scheinberg, Case No. 10-10047PL, 2011

    
    

    Fla. Div. Adm. Hear. LEXIS 155, *17 n.2 (Fla. DOAH June 20, 2011)(deeming certain allegations abandoned where the Department failed to address them in its proposed recommended order); Dep't

    of Health, Bd. of Massage Therapy v. Diamond, Case No. 12- 3825PL, 2013 Fla. Div. Adm. Hear. LEXIS 204, *26 (Fla. DOAH

    Apr. 9, 2013)(concluding that evidence failed to demonstrate a violation of section 456.072(1)(h); "Because a unilateral error [by the Department] does not involve any wrongful act on the licensee's part, such an event cannot constitute a basis for discipline.").

15. Regarding the allegation that Respondent obtained her license by submitting fraudulent documents (specifically, the FCNH transcript and certificates), 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;

    1. 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." Diamond, 2013 Fla. Div. Adm. Hear. LEXIS 204

    at *28.

    
    

16. "[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).

    
    

17. In this case, the Department failed to adduce clear and convincing evidence that Respondent knew or should have known that the FCNH transcript and certificates of completion generated by FCNH's registrar were fraudulent or in any manner improvidently issued. As discussed previously, Respondent reasonably relied upon the registrar's representations (as

    
    

    Respondent was entitled to do under the law) concerning the relationship between FCNH's academic program and Florida's licensure requirements for massage therapists, as well as the transferability of the Royal Irvin credits to FCNH. At best, the Department has merely established that FCNH's registrar engaged in fraudulent or improper conduct by issuing the documents——behavior that, standing alone, does not provide a basis upon which to convict Respondent, as section 456.072(1)(h) 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)(h)].").

18. In its Proposed Recommended Order, the Department advances, for the first time, an alternative theory of fraud: that Respondent signed an application that she knew, or should have known, contained false information. See Department's PRO at p. 13. This argument is a nonstarter, however, as the

    
    

    Department did not allege this particular theory in its Complaint; instead, and as noted above, the Department merely alleged that Respondent committed "fraudulent misrepresentation by submitting a fraudulent transcript and fraudulent [c]ertificates of [c]ompletion with her application." See

    Complaint at ¶ 20 (emphasis added). Respondent is not guilty of Count One.

    1. Count Two

       
       

19. The Department further alleges, in Count Two of the 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.

    
    

20. Although section 456.072(1)(w) encompasses a variety of misconduct, it is significant that, in paragraph 24 of the Complaint, the Department limited its theory of guilt to the allegation that Respondent "submitt[ed] a fraudulent transcript and fraudulent [c]ertificates of [c]ompletion with her Application."

21. For the reasons elucidated in the undersigned's discussion of Count One, the Department has failed to

    
    

    demonstrate that Respondent knew, or should have known, that either the transcript or the certificates of completion were fraudulent. Further, the Department's alternative theory (that Respondent signed an application that contained false information), raised for the first time in its Proposed Recommended Order, is not properly before this tribunal. See Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)(holding that a licensee cannot be disciplined for an offense not charged in the complaint). Respondent is not guilty of Count Two.

    1. Count Three

    
    

22. 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.

23. 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:

    
    

    1. 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, slip op. at 13 (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.

24. 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).

    
    

25. 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. Upon its review of Respondent's application, the Department made a determination, as evidenced by its subsequent issuance of a license, 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 July 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.

26. 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).

27. 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.

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 Respondent not guilty of the offenses charged in the Complaint.

DONE AND ENTERED this 18th day of July, 2013, in Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

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 18th day of July, 2013.

ENDNOTES

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

2/ The undersigned takes official recognition of the public record of the Florida Department of Education concerning FCNH's licensure status, which is available online at http://app1.fldoe.org/cie/SearchSchools/detail.aspx? schoolid=2217 (last visited July 17, 2013).

3/ See § 1005.32(5), Fla. Stat.

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

5/ See Final Hearing Transcript, p. 39, lines 17-25; p. 40, lines 1-5.

6/ See Respondent's Exhibit 18.

7/ See Respondent's Exhibit 21.

COPIES FURNISHED:

Renee C. Harkins, Esquire Department of Health

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

June H. Zhou, Esquire June Zhou, PLLC

2136 Saint Andrews Boulevard, Suite 209 Boca Raton, Florida 33433

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: 13-001158PL

Orders for Case No: 13-001158PL