Findings Of Fact Petitioner is a state licensing and a regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30 and Chapters 120 and 480, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Albert Abrev, is now and at all material times hereto was a licensed masseur in the State of Florida having been issued license number MA0007125 on December 19, 1986. Respondent's license is valid through December 31, 1990. Beginning in September of 1988, Respondent worked at an establishment known Geisha Massage, located 3222 South Dixie Highway in West Palm Beach, Florida. Geisha Massage has not been issued a license by the Board of Massage. Geisha Massage is a Florida corporation which was officially incorporated on July 5, 1988. Respondent is not an owner, incorporator or officer of Geisha Massage. On or about September 27, 1988, Officer Olsen of the West Palm Beach Police Department was directed by her supervisor, Detective David E. Henry, to perform an undercover investigation at Geisha Massage. The purpose of the investigation was to determine whether the establishment was involved in prostitution. On or about September 27, 1988, Officer Olsen entered Geisha Massage and posed as an applicant looking for work. Officer Olsen claimed to be responding to an ad placed in the newspaper. Officer Olsen was interviewed by the Respondent who advised her that she did not need a license because she would only being doing "body treatments or Swedish shampoo." Officer Olsen was requested to undress so that Respondent could determine how she reacted in front of a male without clothing. During the job interview, Respondent indicated to Officer Olsen by pointing to his mouth and to his groin and shaking his head that she would not be expected to engage in sexual intercourse or oral sex. However, Respondent indicated by a hand gesticulation that she would be expected to provide "hand jobs." Officer Olsen's interpretation of Respondent's gestures were confirmed by one of the other employees of Geisha Massage. Officer Olsen was told by Respondent that she was hired and that she was to return to work that evening. Respondent was the only licensed massage therapist on the premises at Geisha Massage. There were at least three female employees of Geisha Massage who provided "body treatments" to customers. None of these employees were licensed massage therapists at the time of the incidents in question. One of them, Victoria Ann Seely, was in the process of obtaining licensure. She took the examination in November of 1988 and received her license in December, 1988. Ms. Seely was a ten percent owner of Geisha Massage. The evidence established that patrons of Geisha Massage were masturbated for a fee upon request after their initial visit. On or about September 30, 1988, a customer of Geisha Massage, Kenneth Barnes, was masturbated and massaged by an employee of Geisha Massage. On September 30, 1988, Officer Olsen, and Detective Daniel Henry of the West Palm Beach Police Department entered Geisha Massage with a search warrant and arrested Respondent, Victoria Ann Seely and two other female employees of the establishment. On or about December 8, 1988, the Respondent pled guilty to a felony charge of operating a house of ill-fame. Adjudication of guilt was withheld and he was placed on two years probation. He has successfully completed probation. Respondent's plea of guilty was a "Alford" plea whereby he did not specifically admit the allegations against him but agreed to plead guilty because it was in his best interest to do so. Respondent testified that he agreed to plead guilty because he did not want to subject his wife and children to the publicity of a trial and further court proceedings.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Massage enter a Final Order finding the Respondent, Albert Abrev guilty of Counts I, II and IV of the Amended Administrative Complaint and that the Board of Massage revoke the Respondent's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28 day of September, 1990. J. STEPHEN MENTON 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 28 day of September, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Rejected as irrelevant and not established by competent substantial evidence. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 8. 12.-14. Rejected as irrelevant. No evidence was introduced to establish that Respondent hired the employee in question or delegated any responsibilities to her. Adopted in substance in Findings of Fact 11. Rejected as irrelevant. 17.-18. Rejected as irrelevant. No competent substantial evidence was introduced to establish that Respondent any dealings with this particular customer. The customer was unable to positively identify Respondent. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 10. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as constituting legal argument rather than a finding of fact. The evidence did establish that Respondent entered a plea of guilty. See, Findings of Fact 13. As set forth in Paragraph 5 of the Conclusions of Law, the sealing of Respondent's criminal record is not retroactive and competent substantial evidence was introduced regarding the guilty plea. Rejected as subordinate to Findings of Fact 5 through 8. Addressed in Conclusions of Law 8. Addressed in Conclusions of Law 10. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Robert P. Foley, Esquire Foley & Colton, P.A. 406 North Dixie Highway West Palm Beach, Florida 33401-4298 Mildred Gardner Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
The Issue Whether Respondent violated Subsection 480.046(1)(l), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact Brevard was issued a massage establishment license numbered MM8462 on April 17, 1998, and was so licensed on August 29, 2001. As of August 31, 2003, Brevard no longer possesses a massage therapy license. Bruce Milburn, M.D., and his wife Anne Marie Milburn are the co-owners of Brevard. Dr. Milburn is a licensed physician, who practices medicine at Brevard. Although not required to obtain a license as a massage establishment because Dr. Milburn was practicing medicine at the facility and any massage therapy was in conjunction with his practice of medicine, Brevard chose to obtain a license for a massage therapy. Pursuant to Section 480.093, Florida Statutes, the Department is authorized to make periodic inspections of massage establishments. The inspections are done at least once a year and are unannounced. The purpose for having unannounced inspections is to allow the Department investigators to see how an establishment is operating normally without the establishment having an opportunity to "fix" any violations solely for the inspection time. On August 29, 2001, a week day, at approximately noon, Mark Plosila, a Department investigator, went to the Brevard facility at 375 South Courtney Parkway, No. 3, Merritt Island, Florida, to perform an unannounced routine inspection of the facility. Mr. Plosila had inspected Brevard on at least two previous occasions. At the time of the inspection and for months prior to the inspection, Brevard had not been providing massage therapy. Mr. Plosila entered the building by the front door, which was unlocked, and then entered the Brevard facility through another unlocked door. Mrs. Milburn was behind the counter when Mr. Plosila arrived. No patients were in the waiting area. There were no business hours posted on the premises. Mr. Plosila showed Mrs. Milburn his credentials and advised her that he was there to do a routine inspection of the premises. She told him that her husband had gone out for lunch and that he would be back around two o'clock. Mrs. Milburn told him that she could not get the insurance papers which Mr. Plosila would need to see because they were locked in Dr. Milburn's office and Dr. Milburn had the only key. She asked Mr. Plosila to come back later in the afternoon when Dr. Milburn would be in the office. On a prior inspection, the insurance papers were not readily available for inspection at the time Mr. Plosila made the inspection, and Mr. Plosila made the inspection and allowed Brevard three business days to send a copy of the insurance papers to him by facsimile transmission. Mrs. Milburn refused to allow Mr. Plosila to inspect the premises. He advised her that failure to allow him to inspect could result in his opening a complaint against Brevard's license. Mrs. Milburn continued to refuse to allow him to inspect the premises. When Dr. Milburn returned to the office, Mrs. Milburn informed him that Mr. Plosila had been there to inspect the premises, but that she had refused to allow him to do the inspection. Dr. Milburn called the Department and advised that he was back in the office and that an inspection could take place. Brevard was inspected on October 31, 2001, and passed the inspection. The evidence does not establish that Mrs. Milburn did not allow the inspection because she feared that the business would not pass inspection. Prior to Mr. Plosila's aborted attempt to inspect Brevard there had been a murder of a state employee in an office near Brevard. At the final hearing, Mrs. Milburn stated that she was nervous about allowing Mr. Plosila to inspect the facility because no patients or employees were present when Mr. Plosila arrived. She did not want to be alone with a man while he inspected the premises. Dr. Milburn sees patients on an appointment-only basis. He does not accept walk-in patients. The office is not always open all day, every day. However, on the day that Mr. Plosila attempted to inspect the facility, the doors were unlocked, no business hours were posted, and a co-owner of the business was present. Dr. Milburn had been seeing patients the morning of August 29, 2001, and would be seeing patients after he returned from lunch. Thus, the argument that the business was closed is not valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Brevard violated Subsection 480.046(1)(l), Florida Statutes, and imposing an administrative fine of $500. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 24th day of February, 2004.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations in a three-count Administrative Complaint. The Administrative Complaint alleges violations of Paragraph (f), (h), and (i) of Section 480.046(1), Florida Statutes.
Findings Of Fact At all times material to this case, the Respondent has been licensed to practice massage therapy, having been issued license number MA0006547. At all times material to this case, the Respondent has also held a massage establishment license, having been issued establishment license number MM000556833. In or around September of 1993, a Mr. J. V. T. 1/ read a newspaper article to the effect that the Respondent had successfully treated children suffering from attention deficit disorder by using vitamins and health supplements in lieu of drugs such as Ritalin. At that time Mr. J. V. T. had a minor son, D. T., who was suffering from attention deficit disorder and was taking Ritalin pursuant to a prescription written by the son's pediatrician. Shortly after reading the newspaper article, Mr. J. V. T. took his son to see the Respondent for the purpose of determining whether his son's condition could be treated without Ritalin. Mr. J. V. T. and his son saw the Respondent at a facility named Advanced Health Center. At that location Mr. J. V. T. saw a massage therapy license for the Respondent. Mr. J. V. T. is not certain that was the only license. The purpose of Mr. J. V. T.'s visit was to obtain nutritional counseling with regard to his son's attention deficit disorder. He did not ask the Respondent to perform a massage on his son. In or around January of 1994, the Respondent recommended that J. V. T.'s son undergo a blood test. The blood test was performed by someone else at another facility. Eventually, someone gave Mr. J. V. T. a videotape that was described to him as being a video tape of his son's blood test. Shortly thereafter, Mr. J. V. T. met with the Respondent to discuss the results of the blood test. The Respondent told Mr. J. V. T. that the blood test showed that Mr. J. V. T.'s son had tape worms and that the tape worms were consuming large quantities of the nutrition and health supplements the son had been taking. The Respondent recommended some treatments to counteract the tapeworms. Mr. J. V. T. lacked confidence in what he was being told by the Respondent and discussed the matter with his son's pediatrician. Based on his discussion with the pediatrician, Mr. J. V. T. did not seek any further services from the Respondent. Mr. J. V. T. paid the Respondent for the services provided by the Respondent. Mr. J. V. T. does not believe that his son received any benefit from the services provided by the Respondent. When questioned by Mr. J. V. T., the Respondent stated that he was self taught and that he was not a doctor.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 22nd day of August, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1997.
The Issue The issues are as follows: (a) whether a proposed amendment to Florida Administrative Code Rule 64B14-3.001(12) constitutes an invalid exercise of delegated legislative authority in violation of Sections 120.52(8)(b) and/or 120.52(8)(c), Florida Statutes (2005); and (b) whether Petitioners are entitled to attorneys' fees pursuant to Section 120.595(2), Florida Statutes (2005).
Findings Of Fact This matter arises from Respondent's proposed amendment (the proposed rule) to Florida Administrative Code Rule 64B14- 3.001(12), which defines the term "direct supervision" for purposes of Part XIV, Chapter 468, Florida Statutes (the O&P practice act.) Respondent advertised the text of the proposed rule in Volume 31, Number 35, September 2, 2005, of the Florida Administrative Weekly. The proposed rule states as follows in relevant part: (12) Direct Supervision means: supervision while the qualified supervisor is on the premises. The licensed orthotist, prosthetist, orthotist/prosthetist, or pedorthist will provide a physical evaluation of each patient's orthotic and or prosthetic needs and may delegate appropriate duties to support personnel. However, the licensed practitioner shall physically evaluate the effectiveness, appropriateness and fit of all devices within the scope of the licensed practitioner's licensure practice requirements, including those repaired devices in which the repairs affect the fit, physical structure or biomechanical function of the device, on every patient, prior to patient use of the device; For the purpose of replacement of worn or broken components which do not in any way alter the fit, physical structure or biomechanical functioning of the existing device, direct supervision of support personnel providing repairs to orthoses or prostheses means the aforementioned repair must be approved by the appropriately licensed practitioner prior to beginning of repairs. The responsible licensed practitioner must at all times be accessible by two way communication, enabling the supervisor to respond to questions relating to the repair. * * * Specific Authority 468.802, F.S. Law Implemented 468.802, 468.803, 468.807, 468.808, 468.809, F.S. History--New 10-21- 99, Amended 2-19-04, 5-5-04. Respondent conducted a final public hearing regarding the proposed rule on November 18, 2005. Petitioners filed a petition challenging the proposed rule within 10 days after the final public hearing. Petitioners would be substantially affected by the proposed rule. The parties stipulate to the citation of official notices and other matters published in Florida Administrative Weekly.
Findings Of Fact Except to the extent they are consistent with these Findings of Fact, the Department's proposed findings of fact are rejected as either not supported by competent, substantial evidence, contrary to the greater weight of the evidence or irrelevant. Linares, a resident of Miami, Florida, has been a licensed barber, having been issued License Number BB 0018163 at least between the dates of July 8, 1983, and March 2, 1984. (The license expires July 31, 1984.) During this time, Linares owned and operated Mr. Larry Hair Studio, located in Miami, under barbershop License Number BS 001515 (which also was in effect on these dates and expires July 31, 1984.) Linares has been licensed in Florida and has practiced barbering in Florida for 18 years. He has no record of ever before having been disciplined. When the Department's investigator appeared at the Barbershop for a routine inspection on July 8, 1983, the hair of approximately three or four customers was on the floor of the Barbershop around the two barber chairs in the shop. Linares was sitting in one of the chairs in the customer waiting area. No customers were being barbered at the time. The Barbers' Board has announced a policy that cut hair should be removed or at least be swept aside after every second customer. But there was no competent substantial and persuasive evidence that Linares' failure to do so constituted either a failure to eliminate all fire hazards or a failure to provide for safe and unobstructed human passage in the premises. The Board's policy was communicated to Linares on July 8, 1983. On July 8, 1983, Linares also had no wet sterilizing agent or any other means of sterilization of equipment available for use and was not sterilizing the equipment he was using. Finally, a combination of dirt and old soap from use over an extended period of time had accumulated on the bathroom fixtures of the bathroom in the Barbershop. The Department inspector advised Linares that the conditions just described were violations of the rules governing licensed barbers and that he would return to reinspect the Barbershop between 30 and 90 days later. The Department inspector returned on August 12, 1983. On his return, there again was hair from approximately four customers on the floor of the shop around the two barber chairs. However, on this occasion, both chairs were in use and there were customers waiting for haircuts. On August 12, 1983, Linares still was not sterilizing his equipment and had no wet sterilizing agent or other means of sterilization available for use. Finally, the bathroom fixtures still had an accumulation of dirt and old soap on August 12, 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Barbers' Board reprimand Respondent, Lazaro V. Linares, d/b/a Mr. Larry Hair Studio, and impose an administrative fine in the amount of one hundred dollars ($100.00). DONE AND ENTERED this 28th day of March 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March 1984. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Lazaro V. Linares 7015 Biscayne Boulevard Miami, Florida 33138 Myrtle S. Aase, Executive Director Barbers' Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner has presented, by a preponderance of evidence, that she is of good moral character and has shown sufficient evidence of rehabilitation, so as to receive a waiver from disqualification from receiving a professional occupational license in order to obtain access to the backside of a racetrack, pursuant to Subsection 550.105(5), Florida Statutes (2009).1
Findings Of Fact Petitioner is seeking a waiver from disqualification from obtaining a professional occupation license as an owner of thoroughbred horses, in order to gain admission to the backside of a racetrack. The license is necessary before a professional person is permitted to go in the stable area, jockey’s room, or other limited access areas of a racetrack. The denial of Petitioner’s application for an occupational license is the result of Petitioner’s entry of a plea of guilty to the federal charge of Obtaining Morphine by Deception, a felony, in the United States District Court, Middle District of Florida, Tampa Division, on August 1, 2003. The court adjudicated Petitioner guilty of the charge and placed her on supervised probation for one year with significant conditions. Petitioner is a registered nurse in the State of Florida, and her license has not been subject to suspension or revocation. Petitioner has worked for the U.S. Department of Veteran’s Affairs at the James A. Haley Veterans’ Hospital in Tampa, Florida, for more than 33 years. She is still employed at that facility and works in the Nursing Home Care Unit for elderly and disabled veterans. Sometime in 2000 or 2001, Petitioner became addicted to morphine (a controlled substance), due to the stresses on the job and in her family life. She obtained the morphine surreptitiously at work, until her use of the drug was discovered in the summer of 2002. Petitioner voluntarily joined the Intervention Program for Nurses (IPN) and entered a residential treatment program, operated by the Health Care Connection of Tampa, Inc., where she successfully completed the primary treatment program from July 22, 2002, to September 22, 2002, for her chemical dependency. She then successfully completed outpatient therapy on December 22, 2002, and attended aftercare for an additional 12 months. On August 1, 2003, at her sentencing hearing, Petitioner was placed on supervised probation for a term of one year. During her term of probation, Petitioner continued to participate in the IPN, attended Narcotics Anonymous (NA), and was tested for the detection of substance use or abuse. On July 31, 2004, Petitioner was released from supervised probation, after successfully completing all the terms of her probation. Petitioner remained in the IPN program for five years, until September 17, 2007, when it was determined that she had successfully completed the program. During that period, in addition to her other obligations, she attended weekly meetings and was subject to work performance evaluations and random drug tests. At the time of the completion of the program, the chief nurse, her immediate supervisor, rated Petitioner as excellent in 11 areas in her final IPN Work Performance Evaluation. She stated that Petitioner was dedicated to her work and her patients and that it was safe for her to continue to practice nursing. There are no restrictions placed on her access to or dispensing of controlled substances while at work. Since that time, Petitioner has enhanced her nursing skills by adding two certifications to her credentials. She continues to teach skin care, wound management, and personal hygiene to nursing assistants and gerontology to licensed practical nurses. Petitioner has been evaluated as having outstanding nursing skills and is a valued member of the Veterans’ Administration facility’s staff. Petitioner continues to be part of management, serving as the assistant to the nurse manager in the center, where she works full-time. Petitioner has been open and forthright concerning her addiction, and the steps she has taken to control it, and recognizes that she cannot be “cured.” Her testimony is credible that she has been sober for more than seven years and continues to regularly attend NA meetings and communicate with her sponsor. She is subject to random drug testing at her work place, if there are any indicators that she has not remained sober. No evidence has been offered, or even suggested, that Petitioner, at any time in the past, trafficked in, distributed, sold, or gave away to another person a controlled substance. Petitioner seeks an occupational license from Respondent in order to participate at a racetrack in Florida, as an owner of thoroughbred horses, and to have free access to the backside of the track. Petitioner, in partnership with her husband, sister, and brother-in-law, own and operate a 55-acre farm, near Gainesville, Florida, where they breed and raise thoroughbred horses for the racetrack. After work on Fridays, and every weekend, Petitioner works at the farm and actively participates in the care of the animals, currently standing at 23. Petitioner has met her burden, and the evidence is persuasive that Petitioner has been rehabilitated and is of good moral character. It is persuasive that Petitioner will not present a danger to the community, if she is granted the occupational license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order, granting Petitioner’s request for a waiver of her criminal conviction, and issue a professional occupational license to her as an owner of thoroughbred horses. DONE AND ENTERED this 8th day of February, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 8th day of February, 2010.
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 On February 26, 2008, the Department issued Peng license number MA 52684, 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 Peng. 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). 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 480.033.1/ 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.2/ Regarding these required practices, section 1005.04, Florida Statutes (2007), 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.3/ 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. 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. (Peng's application was not among these; she had taken, and passed, the national examination in December 2007.) 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 Peng. Peng was born in China, immigrated to the United States, and became a citizen of this country. In 2005 and 2006 Peng studied massage therapy at BodyConcepts Wellness Institute ("BodyConcepts") in East Rutherford, New Jersey. At BodyConcepts, Peng successfully completed a 610-hour curriculum in massage therapy. Her certificate was issued on February 10, 2006. In 2007, Peng moved to California. There, Peng attended Royal Irvin College in Monterey Park, where she completed a 250-hour course for which she was issued a Massage Technician II certificate on November 7, 2007. Soon after graduating from Royal Irvin College, as mentioned above, Peng took and passed the National Certification Examination for Therapeutic Massage and Bodywork. Thereafter, Peng relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Peng needed to obtain a Florida license. Because neither Royal Irvin College nor BodyConcepts was a Board- approved massage school, Peng needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. Opting for the former, Peng researched Board-approved schools on the Board's website and identified FCNH as a potential school. On or about January 22, 2008, Peng went to the Pompano campus of FCNH. Upon her arrival at FCNH, Peng signed her name at the reception desk and waited to be seen. After some time, an FCNH employee, identified by Peng as Glenda Johnson, emerged from the offices behind the reception area. Ms. Johnson brought Peng back to her office. Once inside the office, Peng inquired as to whether she could transfer her out-of-state credits to FCNH in order to obtain a Florida license. After reviewing Peng's transcripts from Royal Irvin College and BodyConcepts, Ms. Johnson advised Peng that her credits could be transferred to FCNH. Ms. Johnson informed Peng that she would have to take two Florida-specific classes, namely Prevention of Medical Errors and Florida Laws and Rules. Peng decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. As part of the enrollment process, Peng executed an Enrollment Agreement, a release, a Drug Free School Statement, and a privacy rights disclosure statement. Among other things, the Enrollment Agreement provided that "[t]he school will evaluate collegiate and post secondary training, military experience, or civilian occupations, and students will be given appropriate credit if criteria to measure the value of such training and/or experience are met, as determined by the school." For her part, Ms. Johnson completed several forms in her capacity as registrar. These documents included portions of the Enrollment Agreement, the Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School. Ms. Johnson produced a Department of Health application for a massage therapy license. Peng filled out the parts of the application requesting personal information such as name, Social Security number, date of birth, and phone number, and Ms. Johnson completed the rest. Peng then signed the three- page application, which is dated January 22, 2008. The application which Peng executed states, truthfully, that she obtained a massage therapy certificate in November of 2007 from Royal Irvin College, and that the school is not Board approved. The application states, inaccurately, that Peng completed 610 hours of study at Royal Irvin College, when in fact she earned only 250 hours of credit there. The 610-hour massage therapy program which Peng completed was offered not at Royal Irvin College, but at BodyConcepts, a fact which for reasons unknown was omitted in response to the pertinent question on the application. This was obviously a mistake, however, and not——as the Department now contends——a "false statement" intended to deceive, for Peng's application package included the diplomas and transcripts from both Royal Irvin College and BodyConcepts. These credentials clearly state Peng's educational attainments and the number of hours completed at each institution. The evidence does not establish that Peng knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department. Ms. Johnson took Peng's FCNH enrollment forms and collected $520.00 in cash as the fee for handling the transfer of Peng's credits and her enrollment in the required courses. The total reflects a $250.00 fee for transferring credits to FCNH and a $270.00 fee for tuition. Peng paid the fees to Ms. Johnson in cash because she did not have a checking account or credit card at that time. Ms. Johnson signed a receipt for the $520.00 payment and handed it to Peng. After Peng had completed the paperwork in Ms. Johnson's office, an unidentified female FCNH employee escorted Peng to a classroom on the campus. This woman provided Peng with materials for the Prevention of Medical Errors and Florida Laws and Rules courses she was to take. While at FCNH, Peng apparently received some classroom instruction. She remained in class at FCNH into the night of January 22, 2008, and departed campus after completion of an exam. The next day, Peng returned to FCNH, where she spent all day in a classroom, departing the campus via taxi in the evening. During these two days of study, Peng made handwritten notes on nearly every page of the written materials she was provided. She used a translating device to translate difficult English words into her native Mandarin Chinese. After completion of the courses at FCNH, Peng submitted her application for licensure. By letter dated February 4, 2008, the Department notified Peng that her application was incomplete due to some missing documents. Specifically, the letter requested additional information regarding her legal name change as well as proof of attendance at a Board-approved school. Peng sent the Department a copy of her divorce decree, satisfying the first part of the request. Because FCNH had not provided Peng any certificates of completion, however, she returned to FCNH on February 22, 2008, seeking proof of attendance. There, Peng again met with Ms. Johnson. Ms. Johnson assured Peng that she had completed all of the requirements. Peng asked Ms. Johnson to send the Department proof of such completion, as requested in the letter dated February 4, 2008. Ms. Johnson gave copies of two Certificates of Completion to Peng and promised her that they would be sent to the Department. Ms. Johnson forwarded the documents to the Department, and soon afterward Peng's application was deemed complete. The Department notified Peng by letter dated February 26, 2008, that she had been issued a license to practice as a massage therapist. At the time Peng obtained her license, Florida law required as a condition of licensure that an applicant take a three-hour course on HIV/AIDS. See § 456.034, Fla. Stat. (2007).4/ Peng credibly testified that Ms. Johnson, when evaluating her transcript, had asked whether Peng had taken an HIV/AIDS course. Peng told Ms. Johnson that she had taken the course at both Royal Irvin College and at BodyConcepts. Ms. Johnson informed Peng that so long as she had taken the course within the past year, the credits would transfer to FCNH and she would not have to take the course again.5/ Among the documents that were sent to the Department in connection with Peng's application was the Transfer of Credit Form. This form states that FCNH has evaluated and agreed to accept 485 hours of Peng's previously awarded credits. The form is signed by Ms. Johnson, as evaluator and 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 this document on her own without input or review by Peng. The evidence provides no explanation for why Ms. Johnson did not identify BodyConcepts on the credit-transfer form itself. She evidently included the credits earned from that school in her calculation, however, because the majority of Peng's previously earned credits were from BodyConcepts. Ms. Johnson also signed and submitted to the Department an FCNH transcript showing that Peng had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." Ms. Johnson did not show this document to Peng. Even if she had, however, the transcript would not have seemed irregular to Peng because it appears on its face to be an official FCNH credential, listing the courses that FCNH had accepted for transfer credit as well as those that Peng had completed at FCNH on January 22 and 23, 2008. Peng was not shown to have had any prior familiarity with FCNH documents; she had no reason to believe that the FCNH transcript purported to award her any credits other than those she rightfully earned at FCNH or one of the other schools she had attended. Finally, as mentioned above, Ms. Johnson prepared, signed, and submitted to the Department two Certificates of Completion reflecting Peng's completion of: "15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" and "2 Hours Prevention of Medical Errors." Because Peng had taken courses at FCNH on January 22 and 23, 2008, her receipt of these certificates did not signify anything unusual. As far as Pend knew, she had taken the courses Ms. Johnson informed her she needed to take and, accordingly, had earned the certificates presented to her. 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 Peng's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." The evidence does not support a finding that Peng misrepresented her educational attainments when she met with Ms. Johnson. The evidence does not support a finding that Peng 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 Peng knew or should have known that FCNH, as the transferee school accepting her Royal Irvin College and BodyConcepts courses, would award her academic credit or credentials which she had not legitimately earned. Peng had no reason to suspect the FCNH Enrollment Agreement she signed would not be properly entered into the school's records. Nor did Peng have any reason to suspect that the courses she completed would not be properly credited to her academic record. To sum up Peng's transaction with FCNH, she went to the Board-approved, state-licensed massage school on January 22, 2008, 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 Peng 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. It was also reasonable for Peng to assume that the course materials and courses she took were part of her apparently legitimate enrollment in FCNH. 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 Peng was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Peng gave Ms. Johnson false information. From Peng's perspective, Ms. Johnson had apparent authority, at least, to accept Peng's credits from Royal Irvin College and BodyConcepts, and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Peng 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 Peng an FCNH Diploma based on Peng's Royal Irvin College and BodyConcepts credits, FCNH has not initiated a legal proceeding to revoke or withdraw Peng's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Peng 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 Peng not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 6th day of June, 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 6th day of June, 2013.
