Findings Of Fact Respondent, Expression Gym, Inc. (Expression) is a Florida Corporation with its place of business located at 2633 West 76th Street, Hialeah, Dade County, Florida. The business began in approximately 1991. From the time of its inception, Expression has offered some type of fitness equipment for use at its facility. In April, 1994, Fabio Otero began working at Expression. Mr. Otero brought all of his physical fitness equipment to the business for use at the facility. The working relationship between Mr. Otero and Expression ended in late July, 1994. On August 1, 1994, Ms. Gloria Gil, an owner of Expression, bought some fitness equipment for use at Expression. Sometime prior to September, 1994, DACS officials received information from the Hialeah occupational licensing office that Expression had an occupational license for an exercise studio or health studio. A research of the records of DACS did not reveal that Expression had registered with DACS as a health studio. On June 24, 1994, DACS sent a letter to Expression, notifying the business that health studios were required to be registered pursuant to Section 501.015, Florida Statutes, and enclosing a health studio registration form with the letter. Expression did not receive the letter. On July 27, 1994, DACS sent another letter to Expression, stating that DACS had not received a reply to its previous letter and requesting Expression to send in the registration form. Expression did receive the July 27, 1994 letter. DACS did not receive a registration form from Expression in response to the July 27, 1994 letter. On September 2, 1994, James Kelley, an Assistant Division Director of the Division of Consumer Services, which is a part of DACS, made an on-site inspection of Expression's facility. While at Expression's facility, Mr. Kelley talked to Mrs. Gil, who advised him that Expression had two types of memberships. One membership entitled the member to use the weight equipment at the facility and to participate in the aerobics program. The other membership was for a gymnastic program for children. Mrs. Gil advised Mr. Kelley that a three month membership could be purchased for $89, which also included one month free. A six month membership with one month free could be purchased for $129 and a nine month membership could be purchased for $199 which also entitled the member to one free month. By letter dated October 10, 1994, DACS advised Expression that DACS intended to impose an administrative fine for failure to register as a health studio. DACS further advised Expression that it must register before engaging in any further health studio activities. As of the date of the hearing Expression had not submitted a registration form to DACS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Expression Gym, Inc. violated Sections 501.015(1), (2), (3), Florida Statutes, and assessing a penalty of $1,000.00. DONE AND ENTERED this 6th day of February, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 this 6th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6447 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected to the extent that it implies that Expression actually received the letter of June 24, 1994. Paragraph 5: Accepted to the extent that Expression received the July 27, 1994 letter but rejected to the extent that it was the second notice that Expression had received. Paragraph 6: Accepted in substance. Paragraph 7: Accepted. Paragraph 8: Rejected as irrelevant to the charges in the Notice of Intent to Impose Administrative Fine. Paragraph 9: Accepted in substance. COPIES FURNISHED: Joe Englander, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Expression Gym C/O Gloria Gil 2633 West 76th Street Hialeah, Florida 33016 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue for determination is whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact At all times material hereto, Miami-Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within Petitioner's district, pursuant to Article IX, Florida Constitution, and Section 230.03, Florida Statutes. At all times material hereto, Raynard W. Pasteur (Respondent) was employed by Petitioner as a school security monitor at Frank C. Martin Elementary School (Martin Elementary). Respondent began his employment with Petitioner on August 31, 1990, at Palmetto Middle School (Palmetto) as a school security monitor and remained at Palmetto until September 29, 1991. On January 27, 1994, Respondent began working as a school security monitor at Martin Elementary. At all times material hereto, Respondent was a member of the United Teachers of Dade (UTD). As a member of the UTD, Respondent was subject to the collective bargaining agreement (UTD Contract) between Petitioner and the UTD, as well as any Memorandum of Understanding between Petitioner and UTD. On February 2, 1998, a conference-for-the-record (CFR) was held with Respondent. In attendance at the CFR were Respondent; two of his union representatives; Isaac Rodriguez, Director of Petitioner's Office of Professional Standards (OPS); Dr. Jose Carbia, Petitioner's Director of Region V; and Pamela Siplin, Principal at Martin Elementary. The purpose of the CFR was to address Respondent's medical fitness to perform his assigned duties, to review Respondent's records, and to address Respondent's future employment status with Petitioner. Prior to the CFR, Jose Garcia, a clinical coordinator with Petitioner's Employee Assistance Program (EAP), performed an assessment of Respondent. After performing the assessment, Mr. Garcia determined that he had a duty-to-warn situation. The circumstances of a duty-to-warn situation demonstrate that serious bodily harm or injury may result or that there is a threat of serious bodily harm or injury. Having made such a determination, Mr. Garcia contacted his supervisor and discussed the duty-to-warn situation involving Respondent. Afterwards, Mr. Garcia contacted OPS. Mr. Garcia, his supervisor, and OPS subsequently contacted Dr. Carbia. Mr. Garcia informed Dr. Carbia that his (Mr. Garcia's) assessment of Respondent presented a duty-to-warn situation and that potentially bodily harm or injury could be inflicted against certain employees of Region V. Mr. Garcia did not discuss any details with OPS or with Dr. Carbia. An employee's participation in the EAP program is confidential and voluntary. Breach of the confidentiality by a clinical coordinator is permitted when a duty-to-warn situation presents itself in order to warn the affected persons of the threat of serious bodily harm or injury without discussing details of the situation. Under the circumstances, Mr. Garcia was permitted to breach the confidentiality afforded Respondent. A written statement dated February 2, 1998, explaining Petitioner's justification for requiring Respondent to submit to a medical examination, was presented to Respondent. The written statement stated, among other things, the following: This employer [Petitioner] has need to determine your fitness to carry out your assigned duties. Because of your exhibited behavior at the worksite as well as your self reported medical condition, this employer has reason to seek an immediate medical examination which will be considered relative to your future and continued employment with Miami-Dade County Public Schools. According to Ms. Siplin, the principal at Martin Elementary, Respondent's attendance was good and, in most instances, he was cooperative. She never reported any erratic or unusual behavior exhibited by Respondent. As observed by Ms. Siplin, Respondent's behavior at the worksite was acceptable and satisfactory. However, the behavior complained of referred to the Respondent's behavior at the work site as assessed by Mr. Garcia. A finding of fact is made that the written statement dated February 2, 1998, is a sufficient written statement justifying Petitioner's requirement for Respondent to submit to a medical examination regarding his fitness to carry out his assigned duties. At the CFR, a determination was made, among other things, that a medical fitness evaluation, i.e., a fitness-for- duty evaluation, was required. During the CFR, a representation was made to Respondent that Mr. Garcia had spoken to Respondent's psychiatrist because of Mr. Garcia's concern for Respondent and the staff at Martin Elementary; however, Mr. Garcia did not reveal any details of Respondent's assessment to OPS or the Director of Region V. The representation has no effect on the determination that a fitness-for-duty evaluation was required. A finding of fact is made that, regardless of the representation, a sufficient basis existed for such a determination and that it was reasonable and appropriate to require a fitness-for-duty evaluation of Respondent. A fitness-for-duty evaluation is an assessment by a psychologist or psychiatrist to determine whether an employee is psychologically competent to perform his or her job and whether that employee could potentially be a danger to himself or herself, co-workers, or students. The fitness-for-duty evaluation is designed to identify what it would take to get the employee back to work. The employee chooses the medical practitioner to perform the fitness-for-duty evaluation. According to the UTD Contract, when there has been a written statement of the need for an examination, the employee is to choose the medical practitioner from Petitioner's list of State-licensed physicians, psychologists, and psychiatrists. Respondent and his union representatives were provided a list of Petitioner approved psychiatrists and psychologists from which Dr. Larry Harmon, Ph.D., was chosen by Respondent. An appointment was made by OPS for Respondent with Dr. Harmon and was scheduled for February 6, 1998, at 9:00 a.m. At the CFR, Respondent was also placed in an alternative assignment at home during the process of the fitness-for-duty evaluation. Certain directives were given to Respondent during the CFR. The directives were as follows: Keep your scheduled appointment with Larry Harmon, Ph.D. Call Ms. Pamela Siplin at 238-3688, each work day between 7:30-7:40 a.m. and 3:50- 4:00 p.m. Be available at home during work hours for phone calls from your work site. Notify the work site of any appointments that would necessitate your absence from your alternative assignment (home) during work hours. Respondent was advised that failure to comply with the directives would necessitate a review by OPS for the imposition of disciplinary measures, including suspension, demotion or dismissal. At the CFR, Respondent was also provided a copy of Petitioner's Rule 6Gx13-4A-1.21, Employee Conduct and Rule 6Gx13-4C-1.02, Non-Instructional Personnel. Dr. Larry Harmon, Ph.D., conducted the fitness-for- duty evaluation which was administered for approximately nine hours over a three-day period, beginning on February 6, 1998. The evaluation consisted of Dr. Harmon reviewing background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; reviewing Respondent's job description; conducting a clinical interview with Respondent; performing psychological testing of Respondent; consulting with Mr. Garcia of EAP; and conferring with Respondent's parents. Dr. Harmon was unable to consult with Respondent's treating psychiatrist and psychologist. Routinely, Dr. Harmon requests that his patients sign a release and consent for the fitness-for-duty evaluation. The release and consent provides for the exchange and release of information and discussion with OPS, as well as EAP. Respondent signed Dr. Harmon's release and consent and, as a result, Dr. Harmon was able to consult with Mr. Garcia of EAP. Dr. Harmon also attempted to obtain a release from Respondent regarding the exchange of information with Respondent's treating psychologist, Dr. Eve McNanamy, Ph.D., and treating psychiatrist, Dr. Edgar Patino, M.D. In Dr. Harmon's opinion, the outside information from Respondent's treating psychologist and psychiatrist was essential to corroborate Respondent's self-report. However, Respondent refused to sign the release. Respondent did not "like" some of Dr. Harmon's methods or the way Dr. Harmon kept his office. Moreover, Respondent's psychiatrist, Dr. Patino, advised Respondent that he (Respondent) was not required to sign the release and that his (Respondent's) failure to sign could not be held against him. Having reviewed background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; having reviewed Respondent's job description; having conducted a clinical interview with Respondent; having performed psychological testing; having consulted with Mr. Garcia of EAP; and having conferred with Respondent's parents, Dr. Harmon formed an opinion as to Respondent's psychological condition. In his report dated March 1, 1998, (Report), Dr. Harmon made the following observations in his "Summary and Recommendations": With respect to diagnosis -- based on clinical interview, mental status examination, psychological test results, collaborative consultation, and review of related written records -- he [Respondent] presents, according to the Diagnostic and Statistical Manual, Fourth Edition (DSM IV), with a probable as follows: Axis I: Clinical Disorders and Conditions Delusional Disorder (297.1), Persecutory Type [emphasis in original] Axis II: Personality Disorders Deferred. [emphasis in original] Axis III: Physical Disorders and Conditions Deferred. [emphasis in original] Given the information with which this psychologist was able to utilize, there is no clear evidence of any severe cognitive or affective disorder which would absolutely prevent him form currently performing any kind of work at all. However, because he was highly guarded and reluctant to share his current life circumstances, history, and current treatment recommendations, it is difficult to rule out the probability of a potential direct threat, especially to coworkers. With respect to his current position as a School Security Monitor II, the job requirements include, but are not limited to, both physical and interpersonal tasks . . . He appears to be capable of performing the physical requirements of the job . . . In addition, he is probably able to perform the non-interpersonal responsibilities of his job description . . . However, individuals with Delusional Disorder may have significant difficulties effectively and objectively performing complex interpersonal job tasks . . . His current symptoms -- clearly consistent with Delusional Disorder -- are likely to cause his thinking to be suspicious and potentially impair his judgement. In fact the DSM IV states that "People with persecutory delusions are often resentful and angry, and may resort to violence against those they believe are hurting them." Based on the above information, there appears to be a potentially significant risk of substantial harm to coworkers based on the following factors: The results of this individualized Fitness for Duty assessment . . . The results of objective psychological assessment, based on current psychological knowledge and assessment tools and techniques, suggest a potential for unpredictable and highly aggressive behavior. A review of prior history [criminal history]. . . A review of current information that suggests he is a current risk based in part on this evaluation as well as upon Jose Garcia's (of the M-D.C.P.S. E.A.P.) report that Mr. Pasteur recently called him and stated, among other comments, that "I am going to stop them." And "I'm just telling you that in case I have to do something." Finally, Mr. Pasteur reports that his psychiatrist's efforts to treat him with medication are obstructed by his unwillingness to follow his psychiatrist's recommendations and so it appears that efforts to reduce or eliminate his delusional thinking are not fruitful which, therefore, maintain the current level potential of significant risk of substantial harm to others. Therefore, because he is considered a potential direct threat and, thus, a significant risk of substantial harm to others, there is insufficient supporting information based on this assessment to clear him to return to work. Therefore, he is considered as the present time not fit for duty. [emphasis in original] His Delusional Disorder appears to seriously impair major life functions such as his social judgement, an essential requirement for his job which requires significant skills to interact effectively in interpersonal interactions. In his Report, Dr. Harmon continued with the following recommendations in his "Summary and Recommendations": In order for Mr. Pasteur [Petitioner] to be eventually cleared to return to work, it is recommended that M-D.C.P.S. support Mr. Pasteur's efforts to reduce and, hopefully, eliminate the probability that he will be a potentially direct threat to others. The following accommodations are recommended in order to assist him to get appropriate and effective treatment so that he may return to work: Provide Mr. Pasteur with at least one month of medical leave, consistent with medical leave benefits and policies for all other employees in his category, so that he may receive appropriate mental health treatment. It is recommended that he follow all of his psychiatrist's recommendations which are designed to reduce the symptoms of his Delusional Disorder to a sufficient extent that he is fit for duty. Participate in psychotherapeutic treatment with Eve McNanamy, Ph.D., his treating psychologist, and follow all recommendations designed to reduce the symptoms of his Delusional Disorder and improve his social judgement and interpersonal functioning to the extent that he is no longer a potentially direct threat and is able to function adequately in the School Security Monitor II position. In order to provide assurance that he is no longer a potentially direct threat and that he is fit for duty, that Mr. Pasteur provide me with a limited Release of Information for all of his mental health professionals which restricts the release of information to those symptoms, behavioral patterns, and treatment compliance issues directly relevant to his Fitness for Duty determination. . . . Because of his likely resistance [to take prescribed antipsychotic medication], and in order to support that his continuation and increased frequency of psychotherapeutic and psychiatric treatment render him fit for duty, it is recommended that Mr. Pasteur sign a Release of Information which enables the Employee Assistance Program to communicate directly with his psychologist and psychiatrist to assist him in getting additional treatment sessions approved, etc. It is recommended that he be re- evaluated for fitness for duty after at least one month to determine the extent to which he is adhering to treatment recommendations, responding to treatment as evidenced by reduced symptoms, displaying symptomoloty which could impair his job performance, and free of symptoms which render him a potentially direct threat to others. Dr. Harmon's fitness-for-duty evaluation was forwarded to Petitioner. On March 3, 1998, a CFR was conducted to address Respondent's medical fitness for continued employment, to review the record, and to address Respondent's future employment status. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; a representative for Dr. Carbia; and Ms. Siplin. Respondent's father was allowed to attend but only as an observer. Prior to the CFR, Respondent was provided a copy of Dr. Harmon's Report and read it. After reading the Report, Respondent requested, and Mr. Rodriguez complied with the request, that no one at the CFR be allowed to review the Report. Respondent was advised that the focus of the CFR was Dr. Harmon's recommendations contained in the Report. During the CFR held on March 3, 1998, Respondent's father interrupted the CFR several times. Finally, Respondent's father was asked to leave the CFR and, unfortunately, the last interruption by Respondent's father caused the CFR to end. A Summary of the CFR dated April 30, 1998, was sent to Respondent. The Summary included, among other things, directives from Mr. Rodriguez which were that Respondent was required to comply with Dr. Harmon's recommendations and to comply within five (5) days of receipt of the Summary. The Summary also advised Respondent, among other things, that Mr. Rodriguez would verify his (Respondent's) compliance with the directives; that, as of March 16, 1998, Respondent's status on Petitioner's payroll record was on leave-without-pay authorized; that Respondent had applied for a medical leave of absence retroactive from March 17, 1998, through May 17, 1998, which complies with one of Dr. Harmon's recommendations; and that Respondent's failure to comply with the directives could lead to suspension or dismissal. By memorandum dated May 20, 1998, Respondent was notified by the executive director of OPS that clearance from OPS was required in order for his return to work. Respondent was further advised that a clearance conference was a requirement for his return to work; that he must schedule a clearance conference before May 27, 1998; and that failure to schedule and/or attend the clearance conference would result in disciplinary action. Respondent failed to comply with the directives given him in the Summary of the CFR dated April 30, 1998. As a result, a CFR was held on June 4, 1998, essentially to address his noncompliance with the directives. The attendees of the CFR on June 4, 1998, were Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and a representative for Dr. Carbia. One of the directives was for Respondent to comply with Dr. Harmon's recommendations; Respondent had complied with only one of the recommendations which was to obtain extended medical leave. At the CFR, among other things, Respondent was directed to make an appointment with Dr. Harmon by a date certain and to obtain a medical leave extension to cover his present absence and future absence to be recommended by Dr. Harmon. By memorandum dated August 4, 1998, from Mr. Rodriguez, Respondent was provided with a written Summary of the CFR held on June 4, 1998. The Summary also contained events that had occurred since the CFR. Mr. Rodriguez indicated in the Summary, among other things, that Respondent had provided notification that he (Respondent) was currently being treated by Dr. Patino; that Dr. Harmon's office had notified OPS that Respondent had scheduled an appointment and had later cancelled the appointment, but had not rescheduled the appointment; that Respondent failed to obtain approved leave and was on non- approved leave status; and that Respondent continued to be in noncompliance with the directives. Mr. Rodriguez again gave Respondent directives in the memorandum of August 4, 1998. The directives were as follows: You [Respondent] are advised of the availability of services from the District's [Petitioner's] support referral service. You must comply with Dr. Harmon's recommendations as stated in his report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leave of absence to cover the period from 5/19/98 through the necessary recommended time by Dr. Harmon. Mr. Rodriguez further advised Respondent in the memorandum that failure to comply with the directives would compel Petitioner to take further disciplinary action including dismissal. Respondent continued to fail to comply with the directives. As a result, a CFR was held on September 21, 1998. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and the personnel director for Petitioner's Region V, Clarence Jones. At the CFR on September 21, 1998, among other things, Respondent indicated that he had not complied with Dr. Harmon's recommendations and had not applied for and obtained an approved medical leave of absence. However, Respondent indicated that he had obtained an appointment with Dr. Harmon which was scheduled for September 25, 1998. Consequently, Respondent requested that he be allowed to keep his appointment with Dr. Harmon, obtain an approved medical leave of absence, and again attempt to resolve the matter after the appointment and a review of his medical evaluation report. Mr. Rodriguez did not agree to Respondent's request, but advised Respondent that his (Respondent's) matter would be forwarded for legal review and possible disciplinary action including suspension or dismissal. Even after the CFR of September 21, 1998, OPS attempted to give Respondent another opportunity to comply with the directives. By letter dated November 9, 1998, the senior executive director of OPS, Dr. Joyce Annunziata, notified Respondent that he was again being provided an opportunity to comply with the directives. The directives in the letter were as follows: You [Respondent] must comply with all of Dr. Harmon's initial recommendations as stated in his March 1, 1998, medical fitness for duty [sic] report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leaves [sic] of absence to cover absences starting May 19, 1998 through the present. (Leave application attached.) Dr. Annunziata further directed Respondent to comply with the above directives within three (3) working days of receipt of the letter. She advised and notified Respondent that his continued failure to comply would be considered gross insubordination and would lead to disciplinary action including dismissal. Respondent failed to comply with the directives given him by Dr. Annunziata. Because Respondent failed to schedule another appointment with Dr. Harmon to provide Dr. Harmon an opportunity to re-evaluate Respondent, Dr. Harmon's initial evaluation remained valid. Respondent remained unfit to return to work. Respondent had a right not to execute a consent and release of information for Dr. Harmon to contact and exchange information with his (Respondent's) treating psychiatrist and psychologist. Such an exchange of information would have immensely assisted Dr. Harmon, and in his Report, Dr. Harmon referred to such exchange of information as essential. Respondent had no understanding that his refusal to sign a consent and release would have such serious ramifications, i.e., dismissal proceedings. Even though lack of information from Respondent's treating psychiatrist and psychologist warrant finding Respondent unfit to return to work, Respondent cannot be disciplined for exercising his right to not execute a consent and release of information. Moreover, this Administrative Law Judge is persuaded that Respondent continued to believe that, as long as he was not refusing to be seen by Dr. Harmon and as long as he was being continually treated by his psychiatrist and psychologist, he (Respondent) could and would be permitted to reschedule his appointment with Dr. Harmon. Respondent did not appreciate the serious ramifications, i.e., dismissal proceedings, of not keeping his appointments with Dr. Harmon. Even at the hearing before this Administrative Law Judge, Respondent continued with his disbelief that failure to reschedule and keep the appointment with Dr. Harmon was such a serious course of action on his part. Respondent presented no medical evidence at hearing to contradict Petitioner's medical evidence and to demonstrate that he is medically fit to return to work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Raynard W. Pasteur without pay, but not dismissing him from employment, and reinstating Raynard W. Pasteur under the terms and conditions deemed appropriate. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. Hearings Hearings ERROL H. POWELL Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 23rd day of July, 1999.
The Issue The issue to be determined is whether Respondent violated sections 456.072(1)(h), 456.072(1)(w), and 480.041(1)(b), Florida Statutes (2010), as alleged in the Amended Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43 and chapters 456 and 480, Florida Statutes (2013). At all times relevant to the Amended Administrative Complaint, Respondent has been a licensed massage therapist in the State of Florida, having been issued license number MA 63711. Respondent is a native of China, and immigrated to the United States in approximately 2007. She speaks limited English. Respondent wanted to become a massage therapist. To that end, Respondent attended the massage therapy training program offered at Healing Hands Institute for Massage Therapy (Healing Hands) and completed her training program on or about October 17, 2010. The program at Healing Hands consisted of a 600-hour curriculum. At all times relevant to the allegations in the Amended Administrative Complaint, Healing Hands was a school accredited by the Commission on Massage Therapy Accreditation (COMPTA) and approved by the New Jersey Board of Massage Therapy. It was not, however, a Florida board-approved school for purposes of obtaining licensure in Florida. After Respondent’s attendance at Healing Hands, the school closed in good standing with COMPTA. Healing Hands had campuses in Flushing, New York, as well as in New Jersey. Respondent completed most of her course work at the Flushing campus because there were people there who spoke Chinese, making it easier for her to understand the curriculum. While still a student at Healing Hands, Respondent took and passed the National Certification Examination for Therapeutic Massage and Bodywork. She received notification that she had passed the examination by letter dated June 8, 2010. It is unclear from the letter whether it is actually dated June 8, 2010, or is referring to an examination given that date. In any event, after receiving notice that she had passed the necessary examination, Respondent applied for and received a license to practice massage therapy in the State of New Jersey. Her original license was issued February 24, 2011, and her current license in New Jersey is valid through November 30, 2014. Respondent received assistance in filling out the paperwork related to her New Jersey application from a friend named “Mike” who is a lawyer. Mike did not charge her for his assistance. According to Respondent, Mike completed the application forms for her and she reviewed them and signed them. There are no allegations in the Amended Administrative Complaint to indicate that her educational program at Healing Hands was not legitimate; that she did not take and pass the National examination; or that any actions taken to obtain her New Jersey license were fraudulent. Respondent was not required to provide any additional coursework or certifications beyond her Healing Hands transcript and proof of passing her national certification exam in order to obtain her New Jersey license. Respondent wished to move to Florida because she had heard that there are good jobs in massage therapy here. She knew that she would have to obtain a Florida license in order to work in Florida. To that end, she sought assistance from a person at Healing Hands that she identified as “Sean.” Although she referred to Sean as one of her instructors who taught the majority of her courses, there is no instructor listed on her transcript whose first name is identified as Sean. Although there is no direct evidence other than Respondent’s testimony regarding Sean, it seems more likely that, rather than being an instructor, Sean was an interpreter for the students who spoke Chinese. Respondent asked Sean to assist her with the process for getting a Florida license because other students had told her he had assisted them in obtaining licenses from other states. She paid Sean $1,000.00 to cover the cost of applying for her Florida license. Some of the money was paid in cash, and some was in the form of a money order. Respondent could not remember how much of the total was in money order form. The application fee and initial license fee are significantly less than $1,000. Respondent received her license to practice massage therapy in Florida on June 5, 2011. However, what actually happened between the time she asked Sean for help and when she got her license is unclear at best. On or about March 17, 2011, Respondent’s State of Florida application for licensure as a massage therapist was submitted to the Florida Department of Health, Board of Massage Therapy. The application was submitted electronically, and does not include Respondent’s signature. Respondent testified that she never filled out the application and never saw it before it was submitted to the Department of Health. While it is clear that Respondent did not personally submit the application, it is not clear who did. There is no competent evidence to demonstrate who completed the application and submitted it to the Board office. Respondent’s application indicated that she did not attend an apprenticeship program. It also indicates that, at the time of the application, she has never held a license or certificate, regardless of status, to practice any licensed profession; that she has not completed a 10-hour Florida laws and rules course; that she has not completed a two-hour course in the prevention of medical errors; and that she has not completed a three-hour HIV/AIDS course. On or about May 9, 2011, a transcript from the Florida College of Natural Health (FCNH) was submitted to the Department of Health in support of Respondent’s application. Also submitted were a Transfer of Credit Form and FCNH Certificates of Completion for 12 hours of Therapeutic Massage Training Program and two hours of Prevention of Medical Errors. Also submitted that day were a transcript from Healing Hands and a copy of the Official Candidate Score Report for the National Certification Examination for Therapeutic Massage and Bodywork, indicating that Respondent had achieved a passing grade. FCNH is an incorporated, nonpublic, post-secondary educational entity which holds a license issued by the Florida Commission for Independent Education, which regulates nonpublic post-secondary institutions pursuant to section 1005.32, Florida Statutes. FCNH is also accredited by the Accrediting Commission of approved schools and Colleges and by the Commission on Massage Therapy. FCNH is a board-approved massage school as that term is defined in section 480.033. In order to be a board-approved massage school, a school is required to offer a course of study that includes, at a minimum, 500 class hours, and is also required to supply to the Board as part of its application a sample transcript and diploma; a copy of curriculum, catalog or other course descriptions; faculty credentials; and proof of licensure by the Department of Education. Fla. Admin. Code Rule 64B7-32.003. As a licensed, accredited, and board-approved massage school, FCNH was and continues to be authorized to evaluate the transferability of credits from another institution to FCNH, including schools that are not board-approved. Any transferred credits could then be applied by FCNH toward the award of a diploma from FCNH, provided that FCNH adhered to the standards in rule 64B7-32.004, and completed, signed, and attached to the school’s transcript, the Board’s Transfer of Credit form, certifying the extent to which a student’s previously-earned credits were acceptable for transfer to FCNH. While the minimum number of class hours for licensure is 500 hours, the program at FCNH consists of 768 hours. At all times relevant to the allegations in the Amended Administrative Complaint, Glenda Johnson was FCNH’s registrar. Ms. Johnson had been employed by FCNH since 1996, and had the apparent authority to evaluate the transferability of credits from other educational institutions to FCNH, and to execute a Transfer of Credit Form certifying to the Board that a student’s credits earned at another institution would be acceptable to FCNH. The Transfer of Credit form stated that FCNH had evaluated Respondent’s transcript from Healing Hands and that the evaluation was conducted on April 18, 2011. The form indicated that Respondent needed ten hours of Florida laws and rules and two hours of medical errors instruction in order to qualify for licensure. The form, which was signed by Glenda Johnson as Registrar of FCNH, accepted a total of 488 hours from Healing Hands, including three hours for HIV/AIDS education. The FCNH transcript, signed by Glenda Johnson as registrar of FCNH, indicated completion of 500 program hours, including three hours for HIV/AID education as of April 22, 2011. It indicates completion of coursework regarding prevention of medical errors or Florida laws and rules. Like the transcript and the Transfer of Credit form, the certificates of completion for Therapeutic Massage Training Program (Transfer of Licensure) and for Prevention of Medical Errors were signed by Glenda Johnson. Respondent’s transcript from Healing Hands was also submitted with the documents received by the Board office on May 9, 2011. The transcript indicates that Respondent completed a 600-hour program at Healing Hands, including three hours for HIV/AIDS awareness. It appears that the documents submitted on May 9, 2011, were most likely submitted to the Board office by Glenda Johnson, as many of them are signed by her and appear to be documents from FCNH, where she worked. As registrar of the school, Ms. Johnson had the apparent authority to evaluate Respondent’s hours at Healing Hands for transfer, and that evaluation can be performed electronically. In other words, a student did not have to visit a FCNH campus in order for his or her prior credits to be evaluated for transfer. Neither Ms. Johnson nor Sean testified at hearing. Respondent testified that she never met Ms. Johnson and never set foot on any of FCNH’s campuses. While it was assumed at hearing that Sean conspired with Ms. Johnson to create false documents in order for Respondent to obtain a Florida license, there was no competent evidence from which such a finding can be made. There is no evidence from which it can be determined whether Sean was complicit in fraud or being duped by Ms. Johnson. The only finding that can be made based on the evidence presented is that someone submitted, on Respondent’s behalf, documents that indicate that sufficient credits were transferred from Healing Hands to FCNH, a board-approved school; completion of all required courses; successful completion of the national examination; and that those documents on their face were sufficient to demonstrate Respondent met the requirements for licensure. Melissa Wade is a managerial employee of FCNH. At some point after Respondent received her license, Ms. Wade received a telephone call from someone from the National Certification Board for Therapeutic Massage and Bodywork (NCB) to report that NCB had received several applications to sit for the national certification examination from purported FCNH graduates whose transcripts seemed irregular. Respondent was not among those individuals identified as having suspicious credentials, as she had taken the examination prior to any purported contact with FCNH. Ms. Wade reviewed the credentials for those applicants identified by NCB, and found several things in the documents that she considered to be suspicious. While these irregularities may have been red flags for Ms. Wade and those who routinely review transcripts, it is not clear that these irregularities would be apparent to a casual observer. However, the students for whom the transcripts and Transfer Forms were prepared were not found in FCNH’s records as actually being students of the school. Ms. Wade confronted Ms. Johnson regarding the irregular transcripts and certificates. Ms. Johnson was terminated by FCNH in December 2011. Ms. Wade notified the Board of Massage that some people who had applied for licensure as graduates of FCNH might not have met the requirements for graduation. The Department initiated an investigation, with which FCNH cooperated. This investigation uncovered approximately 200 graduates, including Respondent, whose credentials FCNH could not confirm. Although Ms. Wade reviewed Respondent’s documents that comprise Respondent’s application for licensure and testified that Ms. Johnson did not have the authority to evaluate the hours from Healing Hands for transfer to FCNH, she did not testify that the courses which were purportedly accepted for transfer would in fact be unacceptable. Anthony Jusevitch, Executive Director for the Board of Massage Therapy, testified that typically it is the school, as opposed to the applicant, that submits transcripts and certificates regarding completion of curriculum requirements. There was no credible, competent evidence to indicate exactly who decided to create the documents submitted to the Board of Massage on Respondent’s behalf, or that Respondent knew of or authorized their creation. What is clear, however, is that Respondent did not know of their creation or their submission to the Board office. Once Respondent was notified of the alleged deficiency in her credentials for her Florida license, she took two home- study courses through Life Education of Florida on the subjects of Medical Errors and HIV/AIDS, for two and three hours, respectively. She also took a Florida Laws and Rules course for 10 hours through Advanced Massage Techniques’ online program. The use of continuing education courses is valid for obtaining initial licensure. Respondent currently meets all of the requirements for licensure in the State of Florida. She continues to live in New Jersey. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, at the time her licensure application was processed by the Board staff, Respondent did not meet the requirements for licensure because she had not taken the required prevention of medical errors and Florida Laws and Rules courses.
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 dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 9th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 9th day of September, 2013.
The Issue The issue in this case is whether Respondent should grant Petitioner's request for licensure by endorsement as a physical therapist pursuant to Sections 486.031 or 486.081, Florida Statutes (1997), and Florida Administrative Code Rule 64B17- (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact It is uncontroverted that Petitioner is 48 years old and of good moral character within the meaning of Section 486.031(1) and (2). Petitioner has been a resident of Florida for 34 years. He is licensed in Florida as a chiropractor and is a graduate of a four-year degree program at Palmer College of Chiropractic ("Palmer College"). Petitioner is board certified as a chiropractor orthopedist and as a chiropractic neurologist. Both board certifications required additional training after graduation from Palmer College. In June 1995, Petitioner attended the University of Health Sciences Antigua School of Allied Health Professionals and received a Bachelor of Science in Physical Therapy from that institution in August 1996. Petitioner traveled to the University of Antigua eight times in two years for education sessions. Each session lasted approximately two weeks. In addition to the hours Petitioner spent at the University of Antigua, Petitioner spent approximately 1,200 hours during an eight-month period at a physical therapy facility associated with the hospital in Antigua. In addition, Petitioner spent approximately 650 hours interning at the Spinal Rehabilitation Institute in Titusville, Florida. The University of Antigua required Petitioner to complete the 1,200 hours at the physical therapy facility and the 650 hours as an intern as part of its educational program. After obtaining a degree in physical therapy from the University of Antigua, Petitioner applied to the State of Colorado to take an examination prepared under the auspices of Profession Examination Services ("PES"). Colorado evaluated Petitioner's education and allowed Petitioner to take the PES exam. Petitioner passed the PES exam and has been licensed as a physical therapist in Colorado since April 11, 1997. On February 9, 1999, Petitioner applied to the State of Florida for a license as a physical therapist. Petitioner received and relied upon application materials provided by Respondent. In particular, Petitioner utilized Respondent's "List of Currently Qualified Credentialing Agencies" to select the International Education Research Foundation (the "Foundation") to evaluate Petitioner's foreign education. The Foundation is the appropriate agency identified by the Board, within the meaning of Section 486.031(3)(b), to determine whether Petitioner has educational credentials equivalent to those required for the educational preparation of physical therapists in the United States. The Foundation gave Petitioner credit for 60 semester hours of physical therapy education including six clinical hours. The Foundation determined that Petitioner has the U.S. equivalent of a Bachelor of Science in Physical Therapy (non-traditional program awarded by nonaccredited colleges and universities). The Foundation prepared its evaluation: . . . in accordance with guidelines developed by several state licensing boards and was completed in close collaboration with a physical therapy consultant. Records from the institution attended showing coursework completed, hours of study and grades earned, were used as the basis for this report. Joint Exhibit 1 at 399. The Board denied Petitioner's application for the following reasons: The applicant does not meet the requirements of Sections 486.031(3)(b) or 486.081(1) . . . and Rules 64B17-3.001(3) and (4) or 64B17- 3.003 . . . in that the applicant does not possess credentials that are deemed equivalent to a bachelor's degree in physical therapy in the United States. At best the applicant's training is a six week lecture series that would constitute a continuing education course. It is not the length and content of a CAPTE approved bachelors or masters in science program in physical therapy that would be the bulk of the final year of training. Denial Order at 1. The actual basis for Respondent's denial has little to do with factual disputes concerning Petitioner's educational hours. As Respondent admits in its PRO: While there may be some factual disputes about Petitioner's educational hours, both in modules and clinical time, these are not really material facts for the [ALJ] to resolve. The real issue is the legal interpretation of . . . Sections 486.031 and 486.081. . . . Respondent's PRO at 5. The findings in paragraphs 12-15 of Respondent's PRO are not material to the real issue concerning the interpretation of Sections 486.031 and 486.081. Respondent does not approve the physical therapy program at the University of Antigua for the educational preparation of physical therapists within the meaning of Section 486.031(3)(a). The record does not show whether the United States Department of Education approves the program. Petitioner has received a diploma from a program in a foreign country within the meaning of Section 486.031(3)(b). The Foundation, as the appropriate agency identified by the Board, has determined that Petitioner possesses educational credentials required for the educational preparation of physical therapists in this country. Petitioner passed the Colorado PES exam in 1997. Petitioner passed a national examination approved by the Board to determine Petitioner's fitness to practice as a physical therapist within the meaning of Section 486.031(3)(a) and (b). Petitioner is entitled to licensure in Florida without examination, pursuant to Section 486.031(3)(c), as provided in Section 486.081. Petitioner passed the PES exam in 1997. The written examination taken by Petitioner for licensure in Colorado was an examination prepared under the auspices of the Professional Examination Services within the meaning of Rule 64B17-3.003. Respondent has long construed applicable Florida Statutes to require an applicant for licensure without examination to pass the requisite national examination and to meet those educational requirements approved by the Commission on Accreditation for Physical Therapy ("CAPTE") in accordance with the requirements of Section 486.031(3)(a). Respondent's legal interpretation of applicable statutes and rules is a legal interpretation rather than a matter within the ambit of agency expertise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request for a license in Florida as a physical therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and 486.081. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health Division of Medical Quality Assurance Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ann Cocheu, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775
The Issue The issue in this case is whether the Education Practices Commission should discipline the Respondent for statutory and rule violations alleged in the Petitioner’s Administrative Complaint.
Findings Of Fact The Respondent, Peter Zanfagna, holds Florida Educator’s Certificate 1022509 covering the area of physical education, which is valid through June 30, 2017. In August 2013, the Respondent was hired as the physical education teacher for Westbrooke Elementary School in the Orange County School District. The Respondent’s classes combined two regular classrooms and consisted of approximately 42 to 70 children, depending on absences. Without a paraprofessional to assist him for the first two to three weeks of the school year, the Respondent made do with the assistance of a parent of a student and managed his classes well. He was widely considered to be a big improvement over his predecessor in the job. He had good lesson plans, followed his lesson plans and managed to maintain order. He received a good evaluation when his assistant principal, Carl Sousa, assessed him. Once, the school’s administration asked him to avoid using the playground when other classes were using it for recess, as he was doing on what he called “Fun Friday.” The Respondent immediately complied with the request. On Friday, October 11, the Respondent was attempting to supervise a large group of kindergarteners as they moved from the playground to a pavilion where lumber, some with nails sticking out, was stacked in preparation for its use in setting up for the school’s annual fall carnival scheduled for that weekend. Just before the maneuver began, the Respondent explained to the children his safety concerns about them having to walk past the lumber to get where they were going and told them he wanted them to walk in single file behind him. As he began walking along a sidewalk outside some classrooms, several students ran up beside him. Concerned for the students’ safety and upset that they ignored his instructions, the Respondent reprimanded them by yelling or screaming at them in a very loud voice. Two teachers were startled by the loud yelling or screaming. They looked out the window and saw it was the Respondent. One said the yelling or screaming was extreme and in a sharp, harsh tone. The other said the Respondent was pointing a finger six-to-eight inches from the face of one child. She heard him yelling or screaming at the child, “I told you to stay behind me, not in front of me, not next to me, but behind me.” Both thought the Respondent’s behavior was over-the-top, especially for children so young. Neither knew the reason for the Respondent’s behavior. One of the teachers who witnessed the incident said she heard children sobbing and screaming. The other said one child was crying and another was starting to cry. They believed the children were crying because of the Respondent’s loudness. The Respondent conceded that he yelled or screamed at the children to “stop” and “hold up.” He testified that his main concern during this incident, as always, was the safety of the children. He suggested the children’s crying may have been in reaction to his message to them that they could be seriously hurt if they ran into the lumber and nails. The Respondent also pointed out that he was saddled unfairly with the difficult task of supervising and monitoring a very large number of small children without adequate help. Even so, there was no evidence of any other similar incident. It was not proven by clear and convincing evidence that the Respondent inappropriately disciplined students by requiring them to sit on concrete for entire class periods. When students were misbehaving so as to endanger other students or were not following the Respondent’s instructions, the Respondent would place the students in “timeout” by having them sit apart from the rest of the class for periods of time. Sometimes this occurred when the class was in the pavilion, which is where his classes gathered for attendance and for dismissal. The pavilion had a concrete floor and no walls but had a roof and was not an inappropriate place for students to be in time-out. Early in the school year, the Respondent sometimes left children in time-out for inappropriately long periods of time. When this was reported to administration, the Respondent was given a directive to limit time-out to ten minutes. The Respondent testified that he complied with that directive throughout the rest of the school year until he resigned, effective April 25, 2014. With one exception, there was no evidence that the Respondent failed to comply with this directive. On April 16, 2014, a school psychologist attempted to observe one of the Respondent’s kindergarten or first-grade students to help a school “staffing” determine if the child was autistic and eligible for special education. Near the beginning of the class, while the class was in the pavilion, the Respondent placed the child in time-out for not listening to instructions. The Respondent proceeded with his class, and the child remained in time-out for approximately 20 or more minutes. On that day, the Respondent had no assistant and was attempting to teach a class of 40 or more students by himself. The psychologist conceded that he might have lost track of time and left her “target” in time-out longer than intended. The Respondent did not recall the incident. It was not proven by clear and convincing evidence that the Respondent inappropriately disciplined students by requiring them to do laps for entire class periods. First, the evidence was clear that the Respondent did not force his students to run laps. They always had the option of running or walking. Second, after attendance was taken in the pavilion, all classes began with stretching and warm-ups. Third, running or walking laps was sometimes a class activity, not discipline. Fourth, when laps were being run or walked, the duration of the activity or discipline could be determined by how well the students were performing; if they were not performing well, extra laps could be added to the activity or discipline. The charge that the Respondent made A.O., a twelve-year old fifth-grader, continue running after she complained of pain in her recently injured ankle arose from an incident on January 15, 2014. As to how recently A.O.’s ankle had been injured, her ankle was in a boot for about a month after the injury, and she had been out of the boot for about a week at the time in question. The evidentiary basis for the rest of the charge consisted of the written statements A.O. and the testimony of her and her mother. A.O. wrote an ambiguous statement the day after the incident. It started saying that the Respondent made the class run for the whole class period but then said he would let some people sit down and make others keep running. She stated her ankle started hurting after 20 minutes, so she asked if she could stop running, but he said to keep running. She did not state that she told the Respondent her ankle hurt. A.O. wrote another ambiguous statement for the Petitioner’s investigator in September 2014. In it, she said the Respondent did not make the class run the whole class period every day. She said, “[t]hat day we were walking and we were not running so he made us run the whole time.” Although “that day” was not specified, it reasonably can be inferred that the investigator was asking about January 15, 2014. In this statement, A.O. did not mention her own ankle hurting but stated another student claimed to have fallen and hurt his ankle, may or may not have told the Respondent about it, and seemed fine after the class. She also stated that when a student actually got hurt in class, the Respondent would send them to the clinic to get ice for the injury. At the hearing, counsel for the Petitioner had A.O. adopt her January statement and led her to testify that she told the Respondent that her ankle hurt, and asked him if she could stop running and sit down, and that he told her “no.” She then said she “kept walking.” Counsel then asked if the Respondent said, “no, keep running,” and she said, “yes.” She then said “no” to the suggestions that she was about to cry and was uncomfortable. She said she told her mother that evening that her ankle was hurting. On cross, she clarified that she “might have not been running as much as the other kids. I only said since it was hurting could I sit down. And you said, no, keep walking.” She then said she could not remember exactly what the Respondent said to her but only knew she asked to stop and sit down, and the Respondent said no, she had to keep going. On redirect, she agreed with counsel for the Petitioner that her memory of events would have been better at the time of her January statement than her September statement. A.O.’s mother testified that A.O. told her on the evening of January 15, 2014, that her ankle was hurting while running, that she asked the Respondent to stop, and that he said, no. She did not give any testimony on whether her daughter told the Respondent that her ankle was hurting. The Respondent denied that A.O. told him her ankle was hurting and that he refused to let her stop. He stood by his testimony that students always were given the option to walk and that he asked A.O. if she could walk slowly, she said she could, and she did. For that reason, he was not aware of any cause for concern. He testified persuasively, with strong corroboration from Robert Flynn, who was the Respondent’s teaching assistant for the last part of the Respondent’s tenure at Westbrooke and is the current physical education teacher there, and others, that the health and safety of the children was the Respondent’s number one priority, and that he would not have made any student run or walk if he thought there was a risk of injury. Taken together, the evidence was not clear and convincing that the Respondent made A.O. keep running after being told her ankle was hurting. The charge that the Respondent refused to allow A.L., a ten-year-old fourth-grader, to go to the clinic for an asthma treatment arose from an incident on April 18, 2014. The evidentiary basis for this charge consisted of two written statements by A.L. and the testimony of A.L. and her mother. A.L.’s first written statement was on April 21, 2014. It said she was in the Respondent’s class running at 12:15 p.m. when she had an asthma attack and went up to the Respondent to ask him if she could go to the nurse, “but before I can say anything he said no I can’t go to the nurse because I sometimes ask him if I can go to the nurse for my inhaler. Then I had to walk slow.” A.L. gave a second statement, this time to the Petitioner’s investigator, which was essentially consistent with the first one. Neither statement made it clear that A.L. told the Respondent she was having an asthma attack or that she needed her inhaler. At the hearing, she testified that she was running in class, felt an asthma attack, and asked the Respondent if she could go to the nurse to take her inhaler, and that he said, no, keep running. She then was led by counsel for the Petitioner to testify that she also told the Respondent she “couldn’t run and needed [her] inhaler.” Counsel for the Petitioner also led her to testify that she told her mother after school that she had gone to the Respondent and told “her [sic?]” that “[she] needed to see the nurse.” A.L.’s mother testified that her daughter had tears in her eyes when picked up after school. The mother could tell her daughter was having an asthma attack but no one else in the pickup area noticed. The mother took her daughter to the hospital, where it was determined that after a full medical workup that A.L. had walking pneumonia. A.L. spent a few days in the hospital and returned to school with a new medication for the pneumonia to take in addition to her inhaler. The Respondent denied that A.L. asked him to go to the clinic. He testified persuasively, with strong corroboration from Robert Flynn and others, that the health and safety of the children was the Respondent’s number one priority, and that he would not have refused to allow A.L. or any student go the clinic upon request for a medical reason. It appears from the greater weight of the evidence, including A.L.’s shy demeanor, and the number of children in the Respondent’s class, that A.L.’s medical request was not made known to the Respondent at the time. Taken together, the evidence was not clear and convincing that the Respondent refused to allow A.L. to go to the clinic for an asthma treatment. After A.L.’s parents reported to Westbrooke’s administration why A.L. was out of school, the school’s administration blamed the Respondent for refusing to allow A.L. to go to the clinic for an asthma treatment. This was the culmination of deteriorating relations between the Respondent and the school administration that began when the Respondent got his first paraprofessional assistant, Laura Fogarty. Ms. Fogarty was a private school physical education teacher, coach and athletic director in Chicago, who had moved to Orlando and took the paraprofessional job while she was awaiting her Florida certification. The Respondent felt she was undermining and disrespecting him and angling to replace him and felt that the school’s administration was siding with her when disagreements between them were presented to the school’s administration. The Respondent became increasingly antagonistic to Ms. Fogarty and the school’s administration. When the A.L. incident occurred, the school’s administration decided to ask the Respondent to resign or be fired. The Respondent chose to resign. After resigning, the Respondent was employed by a charter school in Manatee County as a physical education teacher, coach, and athletic director. He testified that he has been there for a year and a half with “zero problems.” On cross, it was brought out that the Respondent actually had been on administrative leave for about the last two weeks, apparently since counsel for the Petitioner questioned the charter school’s principal in preparation for the hearing and made the principal aware of the Petitioner’s investigation and disciplinary case against the Respondent’s state educator certificate. Cross-examination of the Respondent by counsel for the Petitioner also attempted to have the Respondent contradict his testimony regarding his positive teaching experiences at other Florida schools before he was hired by Westbrooke. Those attempts at impeachment were unsuccessful, and the Petitioner presented no evidence to contradict the Respondent’s testimony, which is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying the Petitioner’s request for a five- year suspension and dismissing the charges against the Respondent. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 3rd day of May, 2016.
Findings Of Fact Respondent is licensed by the Florida State Board of Massage and holds current license No. 2218 by said Board. On July 8, 1975 Respondent was arrested by the Dade County vice squad during a raid on the 441 Health Studio and charged with procuring for prostitution and operating a house of prostitution. He was convicted of this misdemeanor after a plea of not guilty at the subsequent trial and sentenced to pay a fine of $150.00. Respondent was hired by the 441 Health Studio part time to give massages to customers so requesting. The 441 Health Studio did not hold itself out as a massage parlor although it was so characterized by the vice squad and news media when raided and charged with prostitution or other immoral offenses. Respondent retired from full time employment as a masseur in 1962 and is drawing Social Security retirement. At the time of his arrest he was supplementing his income by performing up to four or five massages per week. He received 50 percent of the $20.00 fee charged by the 441 Health Studio for each massage he gave. Respondent was not involved with the management of the 441 Health Studio and had no control over the employees of the studio. Respondent's massage license was the only one posted at the 441 Health Studio. The arrest report alleged that on July 8, 1975 a vice squad officer came to the studio and asked Respondent for a massage then asked him for a girl. After going with one Linda the officer arrested the girl and Respondent and the aforementioned convictions followed.
The Issue The issue in the case is whether the Petitioner's application for licensure by endorsement as a physical therapist should be approved.
Findings Of Fact The Petitioner is an applicant for licensure as a physical therapist in the State of Florida. The Petitioner attended German educational institutions and graduated in 1994 from a "gymnasium," which appears to be the equivalent of a secondary school unit in the United States. After graduating from the gymnasium, the Petitioner then attended the physical therapy training program at the University of Nurenberg in Erlangen, Germany, from where she graduated in 1997. In 1998, the Petitioner applied for licensure as a physical therapist in the State of Colorado where she took and passed the National Physical Therapy Examination (NPTE) offered by the Federation of State Boards of Physical Therapy (FSBPT). The FSBPT's NPTE is the same examination used by the Respondent as the Florida licensing examination. The State of Colorado granted a license in 1998 to the Petitioner, presumably determining that, in addition to passing the exam, the Petitioner's education met the requirements of Colorado law. At all times material to this case, the Petitioner remained licensed as a physical therapist by the State of Colorado, but never practiced physical therapy in Colorado. The Petitioner moved to Florida in 2006 and began to inquire as to becoming licensed "by endorsement" as a physical therapist in the state. She eventually filed the application at issue in this proceeding. The Respondent has denied the Petitioner's application for licensure on the grounds that the Petitioner has failed to demonstrate that she has met Florida's minimum education requirements and to demonstrate that the licensure standards in Colorado are the equivalent of those in Florida. The evidence establishes that by operation of Florida Administrative Code Rule 64B17-3.003, the licensure standards between Colorado and Florida are equivalent. The evidence fails to establish that the Petitioner has met Florida's minimum education requirements. There was no credible evidence presented that the Petitioner's German education met the minimum education requirements for licensure as a physical therapist within the State of Florida. There was no evidence presented that would permit any determination or comparison of the quality of the Petitioner's German education and experience with that available from an accredited educational unit within Florida or the United States. The Respondent apparently relies on evaluations performed by credentialing agencies that review materials supplied by applicants and render determinations of educational equivalency. The Petitioner has apparently been unable to have her German education and experience evaluated by any credentialing agency, allegedly because of the nature of available records. The Petitioner acknowledged that no written comparative evaluation of her German education and experience has been completed. None have been supplied to the Respondent, and there was no evidence of any educational credentialing determination offered into the record of the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice issue a final order denying the Petitioner's application for licensure. DONE AND ENTERED this 22nd day of February, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2008. COPIES FURNISHED: Richard Linquanti, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Susie K. Love, Executive Director Board of Physical Therapy Practice 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent, Ponte Vedra A1A, Inc., d/b/a Ponte Vedra Fitness, is liable to Petitioner for the balance of funds paid to Respondent for a fitness center membership; and, if so, in what amount.
Findings Of Fact On December 5, 2017, Petitioner entered into a fitness membership contract with Respondent’s facility located at 830 A1A North in Ponte Vedra Beach, Florida (the facility). She paid the contract in full in the amount of $850.94. The contract was a 24-month membership ending December 5, 2019. However, when Petitioner enrolled, she received three additional months free. Thus, the contract term ends on March 5, 2020. Respondent is the owner and operator of the facility. On or about July 6, 2018, Respondent closed the facility. On July 8, 2018, Respondent posted a sign at the facility informing customers that the facility was closed and that their memberships were “being honored at Baileys Health and Fitness: 1352 Beach Blvd. for the next 30 days.” Petitioner’s contract with Respondent reads, in pertinent part, as follows: This contract may be cancelled if the contracting business location of the health studio goes out of business, or moves its facilities more than 5 driving miles from the business location designated in such contract and fails to provide, within 30 days, a facility of equal quality located within 5 driving miles of the business location designated in such contract at no additional cost to the buyer. Petitioner submitted evidence to document that Bailey’s Fitness is located more than five driving miles from her home address. However, pursuant to the contract, Respondent’s duty to reimburse Petitioner is triggered if Respondent “fails to provide similar facilities . . . located within five (5) driving miles from the business location designated in such contract.” (emphasis added). The business location designated in the contract is the location of the facility, not Petitioner’s home address. The record contains no evidence to support a finding that Bailey’s is located more than five driving miles from the facility.1/ Further, the contract notes in bold and all capital letters as follows: SHOULD YOU (THE BUYER) CHOOSE TO PAY FOR MORE THAN ONE (1) MONTH OF THIS AGREEMENT IN ADVANCE, BE AWARE THAT YOU ARE PAYING FOR FUTURE SERVICES AND MAY BE RISKING LOSS OF YOUR MONEY IN THE EVENT THIS HEALTH STUDIO AND/OR THIS BUSINESS LOCATION CEASES TO OPERATE. THIS HEALTH STUDIO IS NOT REQUIRED BY LAW TO PROVIDE ANY SECURITY, AND THERE MAY NOT BE OTHER PROTECTIONS TO YOU SHOULD YOU CHOOSE TO PAY IN ADVANCE. The evidence demonstrates that Petitioner attempted to cancel the contract and pursue a refund by notifying Respondent of her request for refund in writing, pursuant to the terms of the agreement. Petitioner’s written request was returned as unclaimed and unable to be forwarded. The evidence does not support a finding that Respondent violated the terms of contract such that Petitioner is due a refund.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing Case No. 1809- 43450 against Ponte Vedra A1A, Inc., d/b/a Ponte Vedra Fitness, and Hudson Insurance Company, as Surety. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 11th day of January, 2019.
The Issue The issues in this case are whether Respondent, a massage therapist, obtained a license: (a) by means of fraudulent misrepresentations; (b) which she knew had been issued in error; and/or (c) without having completed a course of study at an approved school, as Petitioner alleges. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact The Department issued Hao license number MA 60237, which authorized her to practice massage therapy in the state of Florida. The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Hao. The Department provides investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done this instance, when cause exists to suspect that a licensee has committed a disciplinable offense. The Florida College of Natural Health ("FCNH") is an incorporated nonpublic postsecondary educational entity. FCNH holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes. In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033.2/ 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- (Apr. 25, 2010), which provided in pertinent part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.3/ Regarding these required practices, section 1005.04, Florida Statutes (2009), provided during the relevant time frame as follows: 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: 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; 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; 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; 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; Ensure that all advertisements are accurate and not misleading; Publish and follow an equitable prorated refund policy for all students, and follow both the federal refund guidelines for students receiving federal financial assistance and the minimum refund guidelines set by commission rule; Follow the requirements of state and federal laws that require annual reporting with respect to crime statistics and physical plant safety and make those reports available to the public; and Publish and follow procedures for handling student complaints, disciplinary actions, and appeals. 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). 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: 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. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. * * * (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. If a licensed institution has entered into written articulation agreements with other institutions, a list of those other institutions may be provided to students, along with any conditions or limitations on the amount or kinds of credit that will be accepted. Such written agreements with other institutions must be valid and in effect at the time the information is disclosed to the student. The agreements shall be kept on file at all times and available for inspection by Commission representatives or students. Any change or termination of the agreements shall be disclosed promptly to all affected students. No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: 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. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. 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). 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. At all relevant times, FCNH's registrar was Glenda Johnson. As registrar, Ms. Johnson had apparent authority, at a minimum, to evaluate the transferability of credits, and she possessed actual authority to generate and execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination from FCNH graduates whose transcripts seemed irregular. (Hao's application was not among these; she had taken, and passed, a national licensing examination in February 2010.) What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and they had fewer credit hours on their transcripts than FCNH's typical students. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected purported anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them. Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Ms. Wade later notified the Board that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH fully cooperated. The investigation uncovered some 200 graduates whose credentials FCNH could not confirm. One of them was Hao. Hao was born in China and at some point immigrated to the United States. In 2007 Hao studied massage therapy at Acupuncture and Massage Institute of America ("AMIA") in Hacienda Heights, California. At AMIA, Hao successfully completed a 750-hour curriculum in massage therapy, graduating on December 18, 2007. Thereafter, Hao relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Hao needed to obtain a Florida license. Because AMIA was not a Board-approved massage school, Hao needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. In June 2010, Hao went to the Pompano campus of FCNH, where she met with Ms. Johnson. Hao decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. Hao gave Ms. Johnson copies of her educational credentials from AMIA. In her capacity as registrar, Ms. Johnson completed a Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School. Ms. Johnson took Hao's FCNH enrollment forms and collected $400.00 in cash as the fee for handling the transfer of Hao's credits and her registration as a student of FCNH. Having collected the money, Ms. Johnson furnished Respondent with several items, including an FCNH document titled "Certificate of Completion — 15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" that bore Ms. Johnson's signature and the school's seal; an FCNH document titled "Certificate of Completion — 2 Hours of Prevention of Medical Errors," which bore FCNH's seal, as well as Ms. Johnson's signature; the Transfer of Credit Form signed by Ms. Johnson, which indicates that FCNH accepted Hao's credits from AMIA; and an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Hao had completed a 500- hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. The several documents comprising Hao's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." Ms. Johnson produced a Department of Health application for a massage therapy license and helped Hao fill it out. Hao then signed the three-page application, which is dated June 17, 2010. The application which Hao executed states, truthfully, that she obtained a massage therapy certificate in December of 2007 from AMIA and that the school is not Board approved. The application states, correctly, that Hao completed 750 hours of study at AMIA. The evidence does not establish that Hao knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department. Ms. Johnson forwarded Hao's application and supporting documents to the Department, and soon afterward the Department issued Hao a license to practice as a massage therapist. The evidence fails to support a finding that Hao misrepresented her educational attainments when she met with Ms. Johnson. The evidence, moreover, does not support a finding that Hao knew or should have known that Ms. Johnson's evaluation of her credits was anything but routine and in accordance with FCNH's academic policies. The evidence does not support a finding that Hao knew or should have known that FCNH, as the transferee school accepting her AMIA courses, would award her academic credit or credentials which she had not legitimately earned. Hao was not shown to have had any prior familiarity with FCNH forms and documents; its recordkeeping practices; or its internal policies regarding the registration and enrollment of students, the evaluation of transcripts for the purpose of transfer of credits, or the issuance of certificates and other educational credentials. Hao was not shown to have had any reason to suspect that the FCNH Enrollment Agreement she signed would not be properly entered into the school's records, or to believe that the FCNH transcript issued for her benefit purported to award her any credits other than those she rightfully had earned. To sum up Hao's transaction with FCNH, she went to the Board-approved, state-licensed massage school in June 2010, where she met with the registrar, Ms. Johnson, a member of the school's administration who she had no reason to believe would deceive her. It was reasonable under the circumstances for Hao to rely upon Ms. Johnson, and she was entitled under the law to receive accurate information from the registrar regarding, among other things, the transferability of credits to FCNH, and the relationship between FCNH's academic program and the state's licensure requirements for massage therapists. Further, Ms. Johnson, who at all times was acting within the course and scope of her employment as the school's registrar, had actual authority to prepare and certify educational credentials on behalf of FCNH. The evidence does not establish that Hao was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Hao gave Ms. Johnson false information. From Hao's perspective, Ms. Johnson had apparent authority, at least, to accept Hao's credits from AMIA and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Hao has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. FCNH has not initiated a legal proceeding to revoke or withdraw Hao's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Hao is without rights and privileges thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Hao not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2013.
