The Issue Whether the allegations in the Amended Administrative Complaint have been proven by clear and convincing evidence and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Physical Therapy Practice, (Petitioner or Board) is the state agency that licenses and has regulatory jurisdiction of physical therapists. At the time of the hearing, Respondent Raymond Cralle (Cralle) had practiced physical therapy for three decades and was known to colleagues as a competent and innovative professional. He holds licenses in Florida, Virginia, Iowa, and other states by reciprocity, and also holds a specialized certification in physical therapy for persons suffering from injuries to the brain and spinal cord. Cralle received his academic training from the University of Iowa’s School of Allied Health. Upon graduation, he began a hospital based practice at Good Samaritan Hospital in West Palm Beach, Florida, and thereafter built a large and successful private practice in the Greater West Palm Beach area. Over the years, Cralle was also active in professional activities. In addition to speaking, writing and consulting, Cralle was heavily involved in legislative advocacy work on behalf of his profession. Throughout his career, his clinics have usually had some type of formal or informal relationship with schools of physical therapy, offering opportunities for students to intern or to perform other types of work. By 1992, Cralle was operating 13 clinics. That year, he sold some of his practice to HealthSouth and the rest to Novacare, two publicly traded companies. Not ready to retire, Cralle opened another private practice in Delray Beach, Florida. At the time of the events giving rise to the charges against Cralle, his clinic had space to treat eight patients at a time. In addition to Cralle, three physical therapists, one occupational therapist, and one physical therapy intern were working regularly on the premises. In addition, aides were employed to perform non- professional chores such as setting up equipment, assisting patients in making their way to treatment rooms, draping patients, and the like. For approximately three months in the year 2000, the precise dates of which are not reflected in the record, physical therapy student Helen Mesa (Mesa) was employed as an aide in Cralle’s clinic. When treating patients, Cralle was frequently accompanied by a colleague, either an aide or a more highly trained staffer, who would be asked to enter notes on the patient’s chart. The notes were dictated by Cralle. Cralle used staff this way to avoid having to interrupt treatment in order to document treatment. When accompanied by student interns or aides such as Mesa, the dictation served a teaching function as well. Mesa's brief tenure at Cralle’s clinic is consistent with her pattern of unstable employment. Since she left Cralle’s employ, she has worked in at least three jobs, including one in a supermarket and two involving physical therapy, and each of these jobs lasted roughly three months. Mesa’s instability is further evidenced by the fact that initially she resigned from Cralle’s clinic, saying she could not handle the stress of the job and single motherhood. Cralle hired a replacement while Mesa worked out her notice. Then, Mesa changed her mind and asked to stay. Cralle, having promised her job to another, said no. The circumstances surrounding her departure may or may not be the cause of Mesa’s hostility toward Cralle, but the hostility was unmistakable during her testimony in this case. Her demeanor under oath was prosecutorial. She would volunteer information and argue with defense counsel about what questions he should be asking her. As a student, Mesa was taught a method of documenting patient progress known as SOAP notes. The acronym stands for Subjective-Objective-Assessment-Plan. Under the SOAP methodology, the “S(ubjective)” portion includes everything that the patient says about how he feels. The “O(bjective)” portion states what was done with the patient. The “A(ssessment)” portion states what progress the patient is making toward short or long-term goals. The “P(lan)” portion reflects what is expected by or at the next treatment. Cralle does not like the SOAP form of note-taking and generally does not use it in his practice. No law or rule requires the use of the SOAP format in documenting, or “charting” patient progress. However, when assisted by Mesa, Cralle often used the SOAP format when dictating notes, because it was familiar to Mesa from her studies. Mesa is the only complaining witness. At hearing her claims about Cralle’s charting practices went well outside the boundaries of the amended administrative complaint. She claimed that she worked on patients with no supervision and that some of “her” patients did not have an evaluation sheet in their chart, although such sheets are the most basic tool of physical therapy practice. Mesa also provided the only testimony in support of the Board's primary charge, which is that she wrote entire SOAP notes on charts without any input, let alone dictation, from Cralle or other qualified personnel. In addition, Mesa claimed that none of the patient files in which she wrote notes had been signed by Cralle the next time she worked with that patient. Yet, it is undisputed that of the 103 partial patient charts reviewed by the parties during discovery, all but about 15 percent of the patient entries in Mesa's handwriting had been signed off on by Cralle. Of 17 unsigned notes placed in evidence, at least some reflect a degree of technical knowledge and vocabulary that Mesa did not have. Her claim to have written each of them, entirely on her own, is not credited. There was no evidence as to whether, or under what circumstances, a physical therapist is required to initial patient notes, and none of the allegations of the Amended Administrative Complaint allege errors or omissions with respect to Cralle's signature, initials, of lack thereof. There was no evidence that any or all of the alleged charting deficiencies compromised patient care or safety in any way. Rather, as Petitioner’s attorney stated during the questioning of its only other witness, physical therapy expert Linda Nash (Nash), “As you know, this case is about what duties a physical therapist can delegate to unlicensed personnel . . . what are [a] physical therapist’s responsibilities as far as the record keeping itself?” Nash’s answer was instructive. She replied: Well, we have a responsibility to document everything and, and document it in a form be it SOAP or narrative or any way that demonstrates that that patient, where they were the moment that they came in and how they were continuing to progress. For several reasons. Number one, for your own benefit because if you have to defend yourself in a case you have, you know, notes that are documented as to what went on and what you did for insurance purposes. Insurance companies don’t like to pay if they’re, if the patient is not making progress. And you need to be able to document those kinds of things in the notes. After revealing that her primary interest in good documentation is as a means of covering herself in malpractice litigation or to obtain insurance reimbursement, a theme which would recur again on her cross-examination (in her words, “so that I covered my tail”), Nash eventually turned her attention to issues pertinent to the state’s interest in protecting the public’s health and safety, but provided no testimony indicating that any or all of Cralle's charts constituted a danger to any patient. Nash acknowledged that in her years of experience, she has never seen a "perfect chart." Nash, as well as the experts who testified on behalf of Cralle, agreed that it would be improper to delegate to an unlicensed aide the task of assessing the patient and determining the content of a plan of care. The most that could properly be delegated is the documentation of tasks and activities performed by patients in the presence of the unlicensed person. It was also undisputed among the experts that there is nothing improper about dictating notes to an unlicensed aide. The uncorroborated testimony of Mesa that she was delegated tasks which may be lawfully performed only by a physical therapist is not worthy of belief when evaluated in the context of Cralle’s 30 years as a successful and well-regarded physical therapist. Cralle had a number of associates and employees of long standing whose qualifications were entirely appropriate for all aspects of patient care and record keeping. It is illogical to assume that Cralle would delegate vital functions to a brand new employee with no experience, and there is no credible evidence that he did. Petitioner's expert Nash realized that because the state’s entire case rested upon Mesa’s credibility, it would be important ”. . . to insure that no misrepresentations [were] provided, the office manager as well as the current PT techs and PTs are interviewed for accuracy.” Petitioner did not follow-up on that recommendation. Had those individuals been interviewed, and additional office records been examined, the true circumstances surrounding Cralle's record keeping practices could have been ascertained. In the absence of such evidence and witnesses, there is no clear and convincing evidence of the Rule violations alleged. Mesa claimed that two physical therapists working in Cralle’s clinic instructed Mesa not to write in the charts of their patients, and, further, that these therapists complained to Cralle about his practice of permitting Mesa to write in his charts. Petitioner offered no corroboration for these claims, even though one of the physical therapists to whom Mesa's testimony on this matter referred was present and testifying on behalf of Cralle. A number of notes in Mesa's handwriting included frequent use of phrases such as “patient tolerated treatment well due to no complaints” and “continue with plan of care.” These are not models of informative note writing, but neither are they clear and convincing evidence of improper delegation when viewed in light of the entire record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice enter a final order dismissing the Amended Administrative Complaint against Raymond Cralle. DONE AND ENTERED this 27th day of November, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 27th day of November, 2001. COPIES FURNISHED: Mary Denise O'Brien, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building Three Tallahassee, Florida 32308 Richard Willits, Esquire 2290 10th Avenue North, Suite 404 Lake Worth, Florida 33461 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 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.
The Issue Whether Respondent may be terminated for gross insubordination.
Findings Of Fact At all times material to this case, Holley was a kindergarten teacher assigned to Frontier Elementary School. The evidence established, and Holley does not dispute, that at all times material to this case, Holley and Petitioner were parties to a collective bargaining agreement which provided that Petitioner may terminate an employee for gross insubordination, which is defined as a "willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and give by and with proper authority." At the beginning of the 2002-2003 school year, Holley exhibited behavior which constituted reasonable grounds to question her present ability to perform her job. In such circumstances, the collective bargaining agreement authorizes Petitioner to direct the employee to cooperate in obtaining what is known as a fitness for duty evaluation. The facts supporting the need for such an evaluation were appropriately documented during the first weeks of the school year, and Holley was assigned to her residence with pay on October 24, 2002. Thereafter, on three separate occasions, Holley was directed in writing by Respondent's duly-designated representative, chief personnel officer, Marcia Andrews (Andrews) to report for and to complete the evaluation. The first of Andrews' letters was dated November 18, 2002. It advised Holley that failure to comply with this directive "will be viewed as insubordination." Holley went to the fitness evaluation which had been scheduled for her at a reasonable time upon reasonable notice. However, Holley refused to fully cooperate with the examiner, rendering it impossible for the examination to be completed. Andrews sent Holley a second letter, dated December 13, 2002. In this letter, Andrews reprimanded Holley for insubordination, and again directed her to cooperate in a fitness for duty evaluation. Again Holley did not comply. By letter dated March 20, 2003, Andrews advised Holley that she would be given "one last opportunity" to fully cooperate and complete a fitness for duty evaluation. Again, Holley was advised that her failure to cooperate would be deemed insubordination and "will result in a recommendation to the School Board for your termination." The aforementioned correspondence was punctuated by at least a half dozen conversations between Holley and Andrews in which Andrews implored Holley to cooperate with the evaluation. Andrews maintained Holley on the payroll long past the time it would have been justified to terminate Holley for insubordination. Throughout the period of time she was assigned to home and again at the final hearing, Holley attempted to defend her failure to complete the fitness evaluation by leveling accusations of discriminatory and in some cases criminal behavior against various individuals employed by or otherwise affiliated with Petitioner. At least one of Holley's accusations of wrongdoing was made for the first time at her deposition, which was taken shortly before the final hearing in this matter. At all times material to this case, Respondent's staff acted in good faith in giving Holley unlimited opportunity to corroborate her charges. She received a similar opportunity in these proceedings. Holley made no effort to corroborate her charges. Instead, the record provides clear and convincing evidence that Holley was, in fact, grossly insubordinate. For months she disregarded, with no legitimate cause, a direct and entirely reasonable order to complete a fitness for duty examination. There is no evidence to suggest that Holley was treated any differently than any other teacher or employee would be treated in similar circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 31st day of December, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 31st day of December, 2003. COPIES FURNISHED: Jean Marie Nelson, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Alana Holley 2381 Southeast Federal Highway, Suite 6 Stuart, Florida 34994 Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 315 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times material to these proceedings, Respondent, Barry James Rose, was employed in the public schools of Okaloosa County, and worked on a continuing contract as a physical education teacher at Addie R. Lewis Junior High School. The Respondent began teaching at Addie R. Lewis Junior High School during the 1972-1973 school year, and has continued in that capacity up until the date of the hearing in this cause. During the Respondent's entire tenure at this school, Wayne McSheehy, has served as Principal. During this time, the Respondent's principal responsibility was to teach physical education, although he also taught science classes during the 1976-1977 school year and during the 1977-1978 school year. Prior to the 1976-1977 school year, Respondent also coached several sports at the school. During the time that Respondent taught at Addie R. Lewis Junior High School, his wife, Barbara Rose, also taught girls' physical education at that school. During the 1976-1977 school year, Mr. and Mrs. Rose "team taught" during third and fourth periods, and were usually in communication during Respondent's sixth period class. Mrs. Rose's office was located in the girls' physical education locker room, where all physical education equipment for both boys' and girls' classes was kept, along with some of the Respondent's personal belongings. At the beginning of the 1976-1977 school year, Respondent requested and was assigned a teacher aide named Pam Skinner who served as the Respondent's aide throughout the school year. In addition, Miss Skinner knew Mr. and Mrs. Rose outside the school environment in that she lived near the Roses and occasionally baby-say for them. During the 1976-1977 school year Respondent instructed Cynthia Straley and Sherri Wiley in their second period physical education class. Respondent was not these students' assigned instructor for the second period class, and was present in that second period class only during a three-week segment in the spring of 1977. In addition, Respondent instructed Tracy Lynn Scott and Renee Green in their fifth period physical education class during the 1976-1977 school year. The allegations against Respondent are contained in five paragraphs in the Petition for the revocation of teacher's certificate filed by the PPC. For purposes of clarity, the issues raised in these five paragraphs will be dealt with separately. In paragraph one of the Petition, the PPC alleges that during the 1976- 1977 school year the Respondent ". . . was guilty of improper conduct toward a female student by pinching her buttocks, hugging her and placing his hands inappropriately upon her body." There is no testimony in the record that Respondent at any time hugged a female student in any of his classes, and, therefore, it is found that there is no evidence to support that portion of the charge contained in paragraph one. In addition, there is insufficient evidence to support the allegation that Respondent ever pinched any of his students on the buttocks as contended in paragraph one of the Petition. Respondent categorically denies this charge, and the only student testifying that Respondent ever pinched her indicated that this conduct occurred in class throughout the 1976-1977 school year when, in fact, Respondent taught this student's class only during one three-week period in the Spring of 1977. In addition, there was no other testimony to corroborate the student's assertion that Respondent ever pinched her. The last portion of the charge contained in paragraph one of the Petition relates to Respondent having placed his hands "inappropriately upon the body" of the same student whose buttocks he allegedly pinched. The record is clear that this alleged conduct occurred on only one occasion, and that the alleged touching occurred in the context of the performance of an advanced gymnastic exercise. These exercises were optional with the students involved, and were totally voluntary. The student involved did not report the incident to other teachers, in spite of the fact that at least two female teachers were involved in the same class, nor did she report the incident to administrators at the school until the beginning of the following school year. The student's parent, when told of the incident, did not consider it sufficiently serious to bring to the attention of school personnel. The student involved elected to continue the class under the Respondent's guidance, notwithstanding the alleged occurrence. Finally, the record reflects that the conduct alleged in this portion of the charge was acceptable from a teaching standpoint in the context in which it occurred. Consequently, there is insufficient testimony in the record to establish that any alleged touching by Respondent of the student in question was "inappropriate." Paragraph two of the Petition alleged that during the 1976-1977 school year Respondent ". . . made disparaging remarks of a sexual nature to one or more students in his classes." The remark in question is alleged to have been made to Renee Green, a student in Respondent's fifth period physical education class. There is a direct conflict in the testimony with regard to the content of the alleged remark. In her deposition, Miss Green contends that while she was rolling a plastic pipe on the floor during one of Respondent's classes, Respondent said to her: "What are you doing, Renee, trying to get your cheap thrills? I wonder what you do on weekends." Miss Green testified that although the remark upset her, she was not sure why it had that effect on her. Other testimony in the record confirms that the first sentence of the alleged remark was made, but that the second was not. Additionally, Respondent testified that the entire content of his remark was: "Renee, what are you doing, getting cheap thrill." There is no objective evidence in the record on which to base a conclusion that the alleged remark, whether made as asserted by Miss Green or Respondent, was either disparaging or of a sexual nature. Accordingly, the charge contained in paragraph two of the Petition is not supported by competent substantial evidence. In paragraph three of the Petition, the PPC alleges that during the 1976-1977 school year, Respondent ". . . patted and slapped girls on the buttocks in the presence of other students." Respondent admits having patted only one student, Pam Skinner, on the buttocks after the successful completion of a gymnastics exercise. Miss Skinner testified that she took the gesture to be one of commendation and approval of her having successfully completed an exercise on which she had been working for some time. Respondent denies having patted any other students on the buttocks and his contention is supported by virtually all other instructional personnel at the school who had an opportunity to observe the Respondent during the course of his instruction of students in his classes. Notwithstanding this fact, other students who alleged that Respondent had patted them on the buttocks admitted that the patting took place in the context of physical education instruction, and indicated to them only that they should proceed with their activities in accordance with instructions given them by Respondent. The record is totally devoid of any indication that any of the participants considered patting on the buttocks in this context to have been inappropriate. In fact, none of the students involved were sufficiently offended by the alleged conduct to bring it to the attention of school personnel until the following year. In addition, all of the students continued in the Respondent's classes with no apparent ill effects. In paragraph four of the Petition, the PPC alleges that during the 1976-1977 school year, Respondent ". . . entered the girls' locker room where females were dressing without first announcing his intentions to enter the dressing area." There is insufficient evidence in the record on which to base a conclusion that Respondent ever entered the girls' locker room unannounced while female students were in a state of undress. In fact, there is no evidence that Respondent ever entered the girls' locker room unannounced, and only one student testified that Respondent entered the locker room while female students were dressing. The Respondent denies the allegation, and his contentions are substantiated by each of the physical education instructors working with him who were in a position to observe his conduct in this regard. The record is clear that Respondent on occasion had to enter the girls' locker room to obtain equipment to conduct his classes, but that he utilized his teacher aide, Pam Skinner, to insure that no female students were in a state of undress prior to his entrance. It is, therefore, specifically found that Respondent at no time entered the girls' locker room where females were dressing without first announcing his intentions to do so, and that, therefore, there is no evidence to substantiate the allegations of paragraph four of the Petition. In paragraph five of the Petition the PPC alleges that during the 1976-1977 school year, the Respondent ". . . and a female student were alone on one or more occasions in the girls' locker room for an extended period of time with the locker room door closed." Respondent would often enter the girls' locker room, accompanied by his teacher aide, Pam Skinner. Their purpose in entering the locker room was to retrieve girls' physical education equipment which was used by Respondent in instructing his classes. In most instances when Respondent and Miss Skinner entered the girls' locker room, the Respondent's wife, who maintained an office inside the girls' locker was present. The Respondent had specifically asked for assignment of a teacher aide to his classes during the 1976-1977 school year to enable him to remove the equipment from the girls' locker room with a minimum of inconvenience and embarrassment to either himself or his female students. There is no evidence in the record to indicate that Respondent's conduct while in the girls' locker room with his teacher aide, Miss Skinner, was at all improper, and, in fact, the only finding possible from this record is that their visits to the locker room were solely for the purpose of obtaining equipment for the proper instruction of his classes. Accordingly, it is concluded that there is insufficient evidence of record to sustain the charge contained in paragraph five of the Petition. None of the alleged incidents contained in the Petition were considered by the students, their parents, or school administrative personnel to be of sufficient severity to be brought to Respondent's attention during the 1976-1977 school year, despite the fact that several of these alleged incidents were brought to the attention of both parents of the students involved and to school administration personnel It was not until the beginning of the 1977-1978 school year that the school administration decided to investigate these allegations further. Even then, the school principal indicated that he did not consider the allegations of sufficient severity for further disciplinary action until Respondent insisted on obtaining the identities of those persons making the allegations. Even after the allegations were investigated, none of the parents involved requested that their students not be instructed by Respondent during the 1977-1978 school year, and the school principal indicated to the parents that they need not be concerned about their children continuing to be taught by Respondent. In fact, Respondent has, since the allegations occurred, instructed these same female students in subsequent classes, with no apparent ill effect. In addition, during the 1977-1978 school year Respondent was selected as runner up for Teacher of the Year in the same school at which the alleged incidents occurred. Therefore, it clearly appears for the record that, given the fact that neither the parents involved nor school administrative personnel felt it necessary to remove any of the involved female students from Respondent's classes, together with Respondent's performance as a teacher in the school during the 1977-1978 school year, Respondent's effectiveness as an employee of the school system has not been affected by the alleged occurrences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint against Respondent, Barry James Rose. DONE AND ENTERED this 28th day of December 1978 in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mailing Address: Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1978. COPIES FURNISHED: J. David Holder, Esquire Suite 224 110 North Magnolia Drive Tallahassee, Florida 32301 Richard H. Frank, Esquire John J. Chamblee, Jr., Esquire 341 Plant Avenue Tampa, Florida 33606
The Issue Whether Respondent violated Section 468.518(1)(j), Florida Statutes, as alleged in the Administrative Complaint, by treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice, and Section 468.518(1)(g), Florida Statutes, by advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.
Findings Of Fact Respondent is and has been at all times material hereto a licensed nutrition counselor in the State of Florida, having been issued license number NC 0000143. Respondent's last known address is 1901 Blackwood Avenue, Winter Garden, Florida 32787-4601. At the time of her application, Respondent did present evidence of education and experience in reflexology, but was certified only as a Nutrition Counselor. espondent's license is involuntarily inactive. Even through inactive, Respondent is still subject to discipline by the Board of Medicine. Respondent possessed an active license as a Nutrition Counselor at the time of the complaint and investigation. At all times relevant, Respondent possessed a current Orange County, Florida, occupational license as a reflexologist. The practice of reflexology does not fall under the Dietetics and Nutritional Practice Act, but rather requires licensure under the Massage Practice Act (Chapter 480, Florida Statutes). On or about July 2, 1992, Respondent scheduled reflexology appointments for patients. On that date, Respondent was not a licensed massage therapist and had only a county occupational license to operate a business as a reflexologist. Respondent was not aware of the requirement that she obtain certification as a reflexologist through the Board of Massage. Respondent performed reflexology two or three times a month during the period 1991 through July 1992. Respondent caused the following business card to be printed: Opal Fannin, Licensed Reflexologist Nutritional Counselor, 1901 Blackwood Avenue, Winter Garden, Florida 32787. Respondent caused the following advertisement to appear in the 1991 Southern Bell Yellow Pages: REFLEXOLOGY NUTRITIONIST, Licensed Reflexologist and Nutritionist, Computerized Analysis and Nutritionist Balancing of Your Body, 1901 Blackwood Avenue, Winter Garden. At all times material hereto, Respondent failed to obtain licensure from the Board of Massage as a massage therapist.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections 468.518(1)(g) and (j), Florida Statutes. As punishment therefore, it is FURTHER RECOMMENDED: Respondent be issued a reprimand in which Respondent is ordered to cease and desist from engaging in any activity defined in Chapter 480, Florida Statutes, and Rule 21L-30.001, Florida Administrative Code, dealing with the practice of reflexology, until she obtains the proper licensure. Respondent shall not advertise, in any manner or medium, that she provides reflexology services until properly licensed to do same. Respondent shall pay a fine of $1,000.00 Respondent shall be permitted to voluntarily surrender her license as a Nutrition Counselor. DONE and ENTERED this 18th day of October 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 18th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-805 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-12. Rejected as a conclusion of law: paragraph 13. Respondent's proposed findings of fact. Respondent did not submit proposed findings of fact, but did submit a response to Petitioner's proposals. COPIES FURNISHED: William Frederick Whitson Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801 Dorothy Faircloth Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact On June 10, 2009, the Department issued Diamond license number MA 56376, which authorized her to practice massage therapy in the state of Florida. The Department and the Board of Massage Therapy have regulatory jurisdiction over licensed massage therapists such as Diamond. 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 (2012).1 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.2 Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033.3 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- 32.003 (Oct. 30, 2007), 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.4 Regarding these required practices, section 1005.04, Florida Statutes (2008), 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.5 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 actual authority to evaluate the transferability of credits and to execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH. Ms. Johnson had begun working for FCNH in 1996, starting as a receptionist. In 2007, an anonymous complaint was made to the Board accusing Ms. Johnson——by then the school's registrar——and another individual of engaging in some kind of inappropriate conduct involving massage therapists or massage students. The complaint was forwarded to the CIE, which evidently notified the school, for FCNH opened an investigation into the matter. Ms. Johnson denied any wrongdoing, and FCNH ultimately closed the investigation after finding no evidence to the contrary. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination—— which the NCB administers——from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and that the same member of FCNH's administration had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected 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, but she denied ever having taken money for doing so, explaining that she merely had been trying to help people. She claimed that she had acted alone. Ms. Johnson gave a written statement to FCNH describing what she had done.6 Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. In due course Ms. Wade 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 Diamond. Diamond was born in China and, at the times relevant to this case, was a citizen of China. In 2003, Diamond married an American citizen and immigrated to the United States, becoming a resident of Iowa. She later moved to Florida and after that to California, where——from July 30, 2008 to March 30, 2009——she attended Royal Irvin College. At the California school, Diamond successfully completed a 500-hour course of study in massage therapy. Soon after graduating from Royal Irvin College, Diamond took and passed the National Certification Examination for Therapeutic Massage and Bodywork. Diamond returned to Florida intending to work as a massage therapist. She found a position with a provider called Royal Oriental Massage. Before she could begin working, however, Diamond needed to obtain a Florida license. This meant——because Royal Irvin College was not a Board-approved massage school——that she needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. Researching Board-approved schools, Diamond learned about FCNH. On or about May 26, 2009, Diamond went to the Pompano campus of FCNH. A man whom Diamond identified only as her former boss accompanied her. At FCNH, where Diamond arrived during regular business hours, she was introduced to Ms. Johnson, the registrar. Diamond had not asked to see Ms. Johnson and had not met her previously. The evidence is wanting in completeness as to what happened next. Evidently Ms. Johnson advised Diamond that her Royal Irvin College credits could be transferred, one for one, to FCNH, and that such transfer credits, without more, would fulfill FCNH's conditions for the issuance of a diploma that would meet state licensure requirements; explained the process of applying for state licensure; and produced an application form, which Diamond's former boss filled out. Diamond signed the three-page application, which is dated May 26, 2009. The application which Diamond executed states, truthfully, that Diamond obtained her massage therapy certificate in March 2009 from Royal Irvin College, completing a 500-hour course of study; that Royal Irvin College is not Board approved; and that she had not attended an apprenticeship program. The evidence does not establish that any statement in the application was untrue or incorrect. Ms. Johnson took Diamond's application, together with Diamond's check, payable to the Department of Health, for the $205.00 license application fee. In addition, Ms. Johnson collected $418.98 in cash as the fee for handling the transfer of Diamond's credits. (Diamond did not have that much cash on hand, so her boss paid Ms. Johnson. Diamond later wrote a check for $418.98, payable to Royal Oriental Massage, to reimburse her boss.) Ms. Johnson signed a receipt for the $418.98 payment and handed it to Diamond. The receipt states that the money was for "Transfer of Lic." Ms. Johnson told Diamond that she (Ms. Johnson) would submit Diamond's application to the Department. Ms. Johnson did submit Diamond's application, as promised, along with other documents. The Department received the application on or about June 4, 2009. By letter dated June 10, 2009, the Department notified Diamond that her application was complete and that a license had been issued to her. One of the documents that Ms. Johnson sent to the Department in connection with Diamond's application was the Transfer of Credit Form. This form states that FCNH has evaluated and agreed to accept Diamond's 500 hours of credit from Royal Irvin College; it is signed by Ms. Johnson, as registrar, who certified "that the transcript credit for the . . . courses [applicant previously attended for credit] is acceptable credit from . . . Royal Irvin College." Ms. Johnson prepared and submitted this document on her own, without showing it to Diamond. Ms. Johnson also prepared, signed, and submitted to the Department an FCNH transcript showing that Diamond had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." Ms. Johnson did not show this document to Diamond. Finally, Ms. Johnson prepared, signed, and submitted to the Department two Certificates of Completion reflecting Diamond's completion of: "12 Hours of Therapeutic Massage Training Program" and "2 Hours Prevention of Medical Errors." Ms. Johnson did not show these certificates to Diamond. Collectively, the credit transfer form, the transcript, and the certificates "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). The several documents comprising Diamond's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." Diamond testified credibly (and the undersigned finds) that she never saw the Transfer of Credit Form, FCNH transcript, or the certificates before the instant dispute arose. Diamond's testimony in this regard was corroborated by the Board's executive director, whose testimony, which the undersigned credits, revealed that applicants do not typically submit documents of this kind, which are, instead, usually sent directly from the schools. The evidence does not support a finding that Diamond misrepresented her educational attainments when she met with Ms. Johnson. The evidence does not support a finding that Diamond 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 Diamond knew or should have known that FCNH, as the transferee school accepting her Royal Irvin College courses, would award her academic credit or credentials which she had not legitimately earned. To sum up Diamond's transaction with FCNH, she went to the Board-approved, state-licensed massage school on May 26, 2009, where she met with the registrar, Ms. Johnson, a member of the school's administration whom she had no reason to believe would deceive her. At the time, Diamond had been living in the United States for only about six years, and even at present, nearly four years later, she possesses relatively limited English language skills. It was reasonable under the circumstances for Diamond 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. Moreover, 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 evaluate transfer credits on behalf of FCNH. The evidence does not establish that Diamond was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Diamond gave Ms. Johnson false information. From Diamond's perspective, Ms. Johnson had apparent authority, at least, to accept Diamond's credits from Royal Irvin College and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Diamond has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. Although Ms. Wade testified at hearing that Ms. Johnson should not have awarded Diamond an FCNH Diploma based on Diamond's Royal Irvin College credits, FCNH has not initiated a legal proceeding to revoke or withdraw Diamond's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Diamond is without rights and privileges thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Diamond not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S 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 9th day of April, 2013.
