The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent without pay for ten days for gross insubordination or misconduct in office or both, as set forth in the letter of suspension to Respondent from Superintendent Paul Hagerty, dated May 16, 2000. By letter dated May 16, 2000, Petitioner suspended Respondent from his employment. Respondent timely requested an administrative hearing.
Findings Of Fact Prior to his suspension Respondent was employed as a teacher by Petitioner. During the 1999-2000 school year Respondent was a Physical Education teacher at Sterling Park Elementary School. Respondent taught for 13 years in Ohio before moving to Florida. He has been employed by Petitioner for the last 12 years. On or about October 17, 1997, Respondent received a written directive from Principal Deborah Wright. An addendum to that letter followed on April 27, 1998. Those letters addressed concerns about Respondent’s physical interactions with students relating to discipline. On or about September 16, 1999, Respondent received a letter from Superintendent Paul J. Hagerty. The stated purpose of the letter was to "clearly communicate the School Board’s policy and expectations regarding physical contact by teachers and other school personnel with students. . ." The policy described by the Superintendent is that school personnel will not have physical contact with students except for five enumerated reasons. One basis for allowing physical contact is: "To praise a child, such as a high five, a pat on the back, or the like, but never a pat on the buttocks." Principal Wright agreed with the Superintendent’s interpretation of the School Board’s policy. Respondent was never directed not to touch a student for purposes of offering praise. H.S. was a student in Kristen Brotsch’s class and had Respondent for physical education ("P.E."). On January 12, 2000, H.S. was the line leader for purposes of leading the class to the field for P.E. At the beginning of the class, Brotsch saw Respondent make a gesture toward H.S.'s face. The purpose of the gesture was to signal the class to go out to the field. Brotsch was between seven and ten feet from Respondent and H.S. when she witnessed the gesture. She did not see Respondent touch H.S. According to Brotsch, Respondent was not upset with the class or H.S. at the time he made the gesture. The gesture did not cause her any concern. She went back to her classroom after the class went to P.E. Following the P.E. class, H.S. told Brotsch Respondent had punched her in the face prior to class. The following day Brotsch reported the accusation to Principal Wright. On the night of January 12, 2000, H.S. told her parents Respondent had punched her in the side of the face that day in school. She physically re-enacted the incident by moving her hand approximately a foot from her mother’s arm. H.S. punched her mother hard enough that it "stung." The parents contacted Principal Wright about the incident the next day. On or about January 13, 2000, Principal Wright interviewed H.S. H.S. told her Respondent had hit her in the jaw with his fist, that it hurt, and that her friend T.P. had witnessed the incident. T.P. then told Principal Wright she had witnessed the incident and repeated H.S.’s story. According to H.S., Respondent was not upset or mad at the beginning of class on January 12, 2000. He did not say anything to H.S. H.S. was the line leader on that day and had done a good job of organizing the students to go out to P.E. When Respondent touched H.S. she did not cry. She did not believe he was trying to hurt her, and no one around said anything about the incident. H.S. told T.P. about the alleged incident on the playground during the P.E. class. Respondent has no recollection of touching H.S. anytime before class began on January 12, 2000. The P.E. class had gone exceptionally well on January 12, 2000, and Respondent was very pleased with the class. At the end of the class period, the students lined up to go back to the building. Respondent praised the entire class for their performance. Respondent turned to H.S. as the first person in line and grazed over her chin with the back of his partially closed hand while saying "great job, and let’s go." Respondent has been using the gesture involving grazing a person’s chin as a congratulatory gesture throughout his 25-year teaching career. H.S. did not appear to Respondent to be upset with the gesture. Rather, H.S. smiled as they went back to the building. Whether the touching alleged by H.S. occurred before or after class, it was not a disciplinary action. All of the testimony indicates Respondent was not upset with the students either before or after class on January 12, 2000, and was not seeking to correct any behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the School Board enter a Final Order finding Respondent not guilty of the charges against Respondent. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to an award of attorney's fees pursuant to Section 57.111, Florida Statutes, and, if that be the case what amount of attorney's fees as well as costs is appropriate.
Findings Of Fact The Petitioner was charged by the Administrative Complaint in the underlying case with violating the Florida Statutes referenced below by transferring its business license without informing the Board and for employing a massage therapist who was unlicensed. These charges arose because of an inspection made by an Agency investigator Edward W. Vollerston, in March of 1997. Mr. Vollerston discovered that the license for the establishment had been renewed but the only therapist working at the establishment was Roger Twitchell, the Petitioner's son. Mr. Twitchell was discovered to have had an expired personal license. Roger Twitchell admitted working as a massage therapist at the establishment and that he was currently taking appointments. He admitted to the investigator that he was the only licensee working on the premises. The Petitioner's owner, Donna Anderson-Twitchell admitted that she left the establishment and allowed Roger Twitchell to see patients at the Muscle Therapy Clinic. Roger Twitchell was the only massage therapist practicing on the premises known as the Muscle Therapy Clinic. Mr. Vollerston believed as a result of his investigation that the owner was Donna Anderson-Twitchell and that Roger Twitchell did not own the establishment. The establishment license appears to have been renewed without any indication of a change in ownership. The microfilm copy of the check and the renewal slip showed no indication of changes of ownership on either document, although the check for the renewal was written by Roger Twitchell. It is impossible to determine whether he wrote the check as a new owner or whether he wrote the check on behalf of Donna Anderson-Twitchell as the owner. The fact that the establishment license was renewed showed an intention to Mr. Vollerston that the establishment was to be continued under the name of Donna Anderson-Twitchell and raised no question in his mind as to a change of ownership. There is no indication that Ms. Anderson-Twitchell let her license lapse. Indeed the licensure computer screen maintained by the Department during the investigation indicated that Donna Anderson-Twitchell was still the owner of the establishment. Even after the investigation began there was no indication that an establishment license in the name of Roger Twitchell as owner had been applied for. Later Donna Anderson-Twitchell stated that she no longer owned the establishment and that Roger Twitchell her son owned it. In any event, the documentation available to him led the investigator to believe that Ms. Anderson-Twitchell was still the owner of the Muscle Therapy Clinic. He believed that Roger Twitchell was working there as an unlicensed therapist and was the only therapist working there. The case was later transferred from the investigation office to the legal department. Susan Bodell, Esquire, reviewed the case and observed that there had been a closing order drafted by Laura Gaffney, Esquire, her predecessor, to be presented to the probable cause panel. Ms. Bodell differed with that position, however, and believed a violation had occurred and therefore caused an administrative complaint to be drafted. Ms. Bodell found, based partly on the investigative file, that it appeared that ownership had been transferred to another person without the Board of Massage being notified in purported violation of Section 480.043(7), Florida Statutes, as well as that the establishment appeared to be employing a person as a massage therapist who had no active license, in purported violation of Section 480.047(1)(c), Florida Statutes. Ms. Bodell took that case and facts as she knew them to the probable cause panel and explained the situation. The probable cause panel agreed with her and adopted the proposed administrative complaint rather than the previously prepared closing order prepared by Ms. Gaffney. The probable cause panel chairman signed a memorandum which indicated that probable cause had been found for both counts in the Administrative Complaint. After the finding of probable cause an Administrative Complaint was served on the Muscle Therapy Clinic. During the process of the that litigation, counsel for the Agency offered to settle the case. Ms. Alsobrook, the Petitioner's counsel wrote a letter dated September 4, 1998, offering to waive any claim to attorney's fees and costs if the case was dismissed by the Board of Massage Therapy and from the Division of Administrative Hearings. The Agency indeed closed the case as a result of those settlement discussions. The Petitioner now claims that because the final order of dismissal was not obtained within a two-week period, that there was no agreement to waive attorney's fees and therefore the Petitioner is now able to claim attorney's fees and costs in this proceeding. Be that as it may, after the case against Muscle Therapy Clinic, the underlying case was dismissed, the Petitioner filed the subject attorney's fee petition. Mr. Jim Spalla, the Respondent's expert on attorney's fees is qualified to testify to attorney's fees matters. He opines that Ms. Alsobrook's hourly rate of $150 an hour is reasonable. He assumed that she charged that rate per hour and not something lower because he had no retainer agreement to evaluate. He did opine that her fees were excessive in billing for research to litigate a motion filed by the Respondent in September of 1999. The Petitioner's counsel almost billed more for that motion in the month of September 1999, than she did for the total underlying case. The Petitioner's counsel did not allow Mr. Spalla to review her file to see if it corresponded to her billing and thus he used the Agency's file to determine what pleadings had been filed in the case. The Petitioner's attorney's fee expert, Jon Pellett, Esquire, testified that the fees were reasonable although he did not review the entire file either. He based his opinion on selected pleadings sent to him by Ms. Alsobrook. He saw no retainer agreement concerning the $150 per hour rate. He saw no copies of cancelled checks. Ms. Anderson-Twitchell was under a subpoena to bring all documentation concerning the case but did not bring any cancelled checks or bank statements showing payment to the hearing. It is found based upon the testimony of both attorney's fee experts that the hourly rate is a reasonable one. The undersigned, however, cannot understand how the total figure for fees and costs in excess of $20,000 can be reasonable given the very simple nature of the issues presented in the underlying disciplinary case and in this attorney's fee petition case (assuming that attorney's fees may be claimed for the attorney services and costs involved in litigating the attorney's fees claim). The rather summary nature of the documentary support for the attorney's fees and costs claimed and the testimony of Mr. Spalla, do not provide the undersigned with a sufficient understanding of a reasonable basis for the fees and costs claimed in such simple litigation engenders substantial doubt as to the reasonableness thereof. In any event, because of the result concluded below as to the issue of "substantial justification" the resolution of the question of the reasonableness of attorney's fees and costs need not be reached.
The Issue The issue in this case is whether Petitioner should be assessed sales and use tax as set forth in the Notice of Reconsideration dated April 13, 2007.
Findings Of Fact On April 13, 2007, the Department issued a Notice of Reconsideration to Total Health and summarized the relevant facts of the case, which it stated was based on information from the audit file, correspondence from Total Health and other available information. In its Petition for Formal Protest under Administrative Procedures Act, Chapter 120, Florida Statutes, Total Health stated that the facts are not in dispute and agreed to the facts as summarized by the Department in the Notice of Reconsideration. Those facts are set forth in paragraphs 2 and 3 below. Total Health is a private health and fitness club in Tampa, Florida. Total Health charges its members $30 per month for unlimited use of the club. Members of the club are only allowed to meet approved personal trainers at the club. Personal trainers are not allowed on the club’s premises without the club’s express approval. Approved personal trainers contract with Total Health and are provided the following rights. The trainers have the right to use the club’s facility to perform training services. Total Health designates the trainers as approved personal trainers. Total Health controls all aspects of the trainers’ access to members. Trainers have access to the club’s membership list; however, the trainers must be introduced to prospective clients by Total Health. Total Health is required to promote the trainers’ services to the members. The trainers are given an exclusive license (or franchise) to use the club’s tradename, logos and business systems (membership list). Total Health entered into oral contracts with individual personal trainers, who acted as independent contractors. In these contracts, Total Health splits the fees that are billed to club members for the services of the personal trainers. Total Health also entered into a written contract with a corporation, Body Design, which provides the personal trainers. Body Design pays a fixed fee per month to Total Health. The contract with Body Design was referenced in the Notice of Reconsideration, but the contract was not entered into evidence. The personal trainers have access to the workout areas with the exception of the aerobics area and child care areas. Personal trainers may train members at Total Health, but may also train members at the members’ homes. In the case of the individual independent contractors, the trainers are on the “honor system” about splitting fees that they receive from the members trained in the members’ homes. The Department assessed a tax of $20,952.46 for the period of October 10, 2001, through September 30, 2004, plus interest. As of April 13, 2007, the tax and interest amounted to $28,460.90.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered assessing a tax against $30 per month per trainer for the period of the audit and assessing interest based on the recalculated amount. DONE AND ENTERED this 30th day of November, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of November, 2007.
The Issue The issue to be determined is whether Respondent violated sections 456.072(1)(h), 456.072(1)(w), and 480.041(1)(b), Florida Statutes (2010), as alleged in the Amended Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43 and chapters 456 and 480, Florida Statutes (2013). At all times relevant to the Amended Administrative Complaint, Respondent has been a licensed massage therapist in the State of Florida, having been issued license number MA 63711. Respondent is a native of China, and immigrated to the United States in approximately 2007. She speaks limited English. Respondent wanted to become a massage therapist. To that end, Respondent attended the massage therapy training program offered at Healing Hands Institute for Massage Therapy (Healing Hands) and completed her training program on or about October 17, 2010. The program at Healing Hands consisted of a 600-hour curriculum. At all times relevant to the allegations in the Amended Administrative Complaint, Healing Hands was a school accredited by the Commission on Massage Therapy Accreditation (COMPTA) and approved by the New Jersey Board of Massage Therapy. It was not, however, a Florida board-approved school for purposes of obtaining licensure in Florida. After Respondent’s attendance at Healing Hands, the school closed in good standing with COMPTA. Healing Hands had campuses in Flushing, New York, as well as in New Jersey. Respondent completed most of her course work at the Flushing campus because there were people there who spoke Chinese, making it easier for her to understand the curriculum. While still a student at Healing Hands, Respondent took and passed the National Certification Examination for Therapeutic Massage and Bodywork. She received notification that she had passed the examination by letter dated June 8, 2010. It is unclear from the letter whether it is actually dated June 8, 2010, or is referring to an examination given that date. In any event, after receiving notice that she had passed the necessary examination, Respondent applied for and received a license to practice massage therapy in the State of New Jersey. Her original license was issued February 24, 2011, and her current license in New Jersey is valid through November 30, 2014. Respondent received assistance in filling out the paperwork related to her New Jersey application from a friend named “Mike” who is a lawyer. Mike did not charge her for his assistance. According to Respondent, Mike completed the application forms for her and she reviewed them and signed them. There are no allegations in the Amended Administrative Complaint to indicate that her educational program at Healing Hands was not legitimate; that she did not take and pass the National examination; or that any actions taken to obtain her New Jersey license were fraudulent. Respondent was not required to provide any additional coursework or certifications beyond her Healing Hands transcript and proof of passing her national certification exam in order to obtain her New Jersey license. Respondent wished to move to Florida because she had heard that there are good jobs in massage therapy here. She knew that she would have to obtain a Florida license in order to work in Florida. To that end, she sought assistance from a person at Healing Hands that she identified as “Sean.” Although she referred to Sean as one of her instructors who taught the majority of her courses, there is no instructor listed on her transcript whose first name is identified as Sean. Although there is no direct evidence other than Respondent’s testimony regarding Sean, it seems more likely that, rather than being an instructor, Sean was an interpreter for the students who spoke Chinese. Respondent asked Sean to assist her with the process for getting a Florida license because other students had told her he had assisted them in obtaining licenses from other states. She paid Sean $1,000.00 to cover the cost of applying for her Florida license. Some of the money was paid in cash, and some was in the form of a money order. Respondent could not remember how much of the total was in money order form. The application fee and initial license fee are significantly less than $1,000. Respondent received her license to practice massage therapy in Florida on June 5, 2011. However, what actually happened between the time she asked Sean for help and when she got her license is unclear at best. On or about March 17, 2011, Respondent’s State of Florida application for licensure as a massage therapist was submitted to the Florida Department of Health, Board of Massage Therapy. The application was submitted electronically, and does not include Respondent’s signature. Respondent testified that she never filled out the application and never saw it before it was submitted to the Department of Health. While it is clear that Respondent did not personally submit the application, it is not clear who did. There is no competent evidence to demonstrate who completed the application and submitted it to the Board office. Respondent’s application indicated that she did not attend an apprenticeship program. It also indicates that, at the time of the application, she has never held a license or certificate, regardless of status, to practice any licensed profession; that she has not completed a 10-hour Florida laws and rules course; that she has not completed a two-hour course in the prevention of medical errors; and that she has not completed a three-hour HIV/AIDS course. On or about May 9, 2011, a transcript from the Florida College of Natural Health (FCNH) was submitted to the Department of Health in support of Respondent’s application. Also submitted were a Transfer of Credit Form and FCNH Certificates of Completion for 12 hours of Therapeutic Massage Training Program and two hours of Prevention of Medical Errors. Also submitted that day were a transcript from Healing Hands and a copy of the Official Candidate Score Report for the National Certification Examination for Therapeutic Massage and Bodywork, indicating that Respondent had achieved a passing grade. FCNH is an incorporated, nonpublic, post-secondary educational entity which holds a license issued by the Florida Commission for Independent Education, which regulates nonpublic post-secondary institutions pursuant to section 1005.32, Florida Statutes. FCNH is also accredited by the Accrediting Commission of approved schools and Colleges and by the Commission on Massage Therapy. FCNH is a board-approved massage school as that term is defined in section 480.033. In order to be a board-approved massage school, a school is required to offer a course of study that includes, at a minimum, 500 class hours, and is also required to supply to the Board as part of its application a sample transcript and diploma; a copy of curriculum, catalog or other course descriptions; faculty credentials; and proof of licensure by the Department of Education. Fla. Admin. Code Rule 64B7-32.003. As a licensed, accredited, and board-approved massage school, FCNH was and continues to be authorized to evaluate the transferability of credits from another institution to FCNH, including schools that are not board-approved. Any transferred credits could then be applied by FCNH toward the award of a diploma from FCNH, provided that FCNH adhered to the standards in rule 64B7-32.004, and completed, signed, and attached to the school’s transcript, the Board’s Transfer of Credit form, certifying the extent to which a student’s previously-earned credits were acceptable for transfer to FCNH. While the minimum number of class hours for licensure is 500 hours, the program at FCNH consists of 768 hours. At all times relevant to the allegations in the Amended Administrative Complaint, Glenda Johnson was FCNH’s registrar. Ms. Johnson had been employed by FCNH since 1996, and had the apparent authority to evaluate the transferability of credits from other educational institutions to FCNH, and to execute a Transfer of Credit Form certifying to the Board that a student’s credits earned at another institution would be acceptable to FCNH. The Transfer of Credit form stated that FCNH had evaluated Respondent’s transcript from Healing Hands and that the evaluation was conducted on April 18, 2011. The form indicated that Respondent needed ten hours of Florida laws and rules and two hours of medical errors instruction in order to qualify for licensure. The form, which was signed by Glenda Johnson as Registrar of FCNH, accepted a total of 488 hours from Healing Hands, including three hours for HIV/AIDS education. The FCNH transcript, signed by Glenda Johnson as registrar of FCNH, indicated completion of 500 program hours, including three hours for HIV/AID education as of April 22, 2011. It indicates completion of coursework regarding prevention of medical errors or Florida laws and rules. Like the transcript and the Transfer of Credit form, the certificates of completion for Therapeutic Massage Training Program (Transfer of Licensure) and for Prevention of Medical Errors were signed by Glenda Johnson. Respondent’s transcript from Healing Hands was also submitted with the documents received by the Board office on May 9, 2011. The transcript indicates that Respondent completed a 600-hour program at Healing Hands, including three hours for HIV/AIDS awareness. It appears that the documents submitted on May 9, 2011, were most likely submitted to the Board office by Glenda Johnson, as many of them are signed by her and appear to be documents from FCNH, where she worked. As registrar of the school, Ms. Johnson had the apparent authority to evaluate Respondent’s hours at Healing Hands for transfer, and that evaluation can be performed electronically. In other words, a student did not have to visit a FCNH campus in order for his or her prior credits to be evaluated for transfer. Neither Ms. Johnson nor Sean testified at hearing. Respondent testified that she never met Ms. Johnson and never set foot on any of FCNH’s campuses. While it was assumed at hearing that Sean conspired with Ms. Johnson to create false documents in order for Respondent to obtain a Florida license, there was no competent evidence from which such a finding can be made. There is no evidence from which it can be determined whether Sean was complicit in fraud or being duped by Ms. Johnson. The only finding that can be made based on the evidence presented is that someone submitted, on Respondent’s behalf, documents that indicate that sufficient credits were transferred from Healing Hands to FCNH, a board-approved school; completion of all required courses; successful completion of the national examination; and that those documents on their face were sufficient to demonstrate Respondent met the requirements for licensure. Melissa Wade is a managerial employee of FCNH. At some point after Respondent received her license, Ms. Wade received a telephone call from someone from the National Certification Board for Therapeutic Massage and Bodywork (NCB) to report that NCB had received several applications to sit for the national certification examination from purported FCNH graduates whose transcripts seemed irregular. Respondent was not among those individuals identified as having suspicious credentials, as she had taken the examination prior to any purported contact with FCNH. Ms. Wade reviewed the credentials for those applicants identified by NCB, and found several things in the documents that she considered to be suspicious. While these irregularities may have been red flags for Ms. Wade and those who routinely review transcripts, it is not clear that these irregularities would be apparent to a casual observer. However, the students for whom the transcripts and Transfer Forms were prepared were not found in FCNH’s records as actually being students of the school. Ms. Wade confronted Ms. Johnson regarding the irregular transcripts and certificates. Ms. Johnson was terminated by FCNH in December 2011. Ms. Wade notified the Board of Massage that some people who had applied for licensure as graduates of FCNH might not have met the requirements for graduation. The Department initiated an investigation, with which FCNH cooperated. This investigation uncovered approximately 200 graduates, including Respondent, whose credentials FCNH could not confirm. Although Ms. Wade reviewed Respondent’s documents that comprise Respondent’s application for licensure and testified that Ms. Johnson did not have the authority to evaluate the hours from Healing Hands for transfer to FCNH, she did not testify that the courses which were purportedly accepted for transfer would in fact be unacceptable. Anthony Jusevitch, Executive Director for the Board of Massage Therapy, testified that typically it is the school, as opposed to the applicant, that submits transcripts and certificates regarding completion of curriculum requirements. There was no credible, competent evidence to indicate exactly who decided to create the documents submitted to the Board of Massage on Respondent’s behalf, or that Respondent knew of or authorized their creation. What is clear, however, is that Respondent did not know of their creation or their submission to the Board office. Once Respondent was notified of the alleged deficiency in her credentials for her Florida license, she took two home- study courses through Life Education of Florida on the subjects of Medical Errors and HIV/AIDS, for two and three hours, respectively. She also took a Florida Laws and Rules course for 10 hours through Advanced Massage Techniques’ online program. The use of continuing education courses is valid for obtaining initial licensure. Respondent currently meets all of the requirements for licensure in the State of Florida. She continues to live in New Jersey. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, at the time her licensure application was processed by the Board staff, Respondent did not meet the requirements for licensure because she had not taken the required prevention of medical errors and Florida Laws and Rules courses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 9th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2013.
Findings Of Fact Petitioner is the agency of the State of Florida responsible for the licensing and regulation of the practice of massage therapy. Petitioner also certifies those eligible to perform colonic irrigations in the State of Florida. Chapter 480, Florida Statutes, is known as the "Massage Practice Act". Section 480.033(6), Florida Statutes, defines the term "colonic irrigation" as follows: (6) "Colonic irrigation" means a method of hydrotherapy used to cleanse the colon with the aid of a mechanical device and water. Colonic irrigations can be performed by a licensed massage therapist only at a licensed massage establishment. Section 480.046(1), Florida Statutes, provides certain grounds for the discipline of licensed massage therapists, including the following: (1)(n) Practicing massage at a site, location, or place which is not duly licensed as a massage establishment, except that a massage therapist, as provided by rules adopted by the board, may provide massage services, excluding colonic irrigation, at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show. Petitioner's Rule 61G11-30.001(1)(m), Florida Administrative Code, provides, in pertinent part, as follows: (1)(m) . . . a massage therapist may provide massage services, excluding colonic irrigation, at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show. . . . At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a massage therapist and was certified by Petitioner to perform colonic irrigations. Respondent's massage therapist license number is 7954. Respondent placed an advertisement in the Yellow Pages of the 1993 telephone book for Miami, Florida, that advertised the following service on an outcall basis: COLON IRRIGATION WITH DISPOSABLES. Lexa Jones is licensed by Petitioner as a massage therapist and is certified to perform colonic irrigations. Ms. Jones teaches massage therapy in Fort Lauderdale, Florida. One of her students brought to her attention the Respondent's advertisement in the Miami Yellow Pages. Ms. Jones testified at the formal hearing that she called the number listed in the advertisement and talked to a woman who stated that she had placed the advertisement. Respondent is the person who placed the advertisement and Ms. Jones clearly believed that she was talking with the Respondent. Ms. Jones was unable to testify that the person with whom she talked by telephone was the Respondent. 1/ Based on the statements made to her by telephone and on the contents of the advertisement, Ms. Jones filed a complaint against Respondent with the Board of Massage. Mr. Charles Frear, an environmental inspector employed by Petitioner, investigated this complaint. On October 6, 1993, Mr. Frear inspected Respondent's home and interrogated her about the services she was performing. The Respondent told Mr. Frear that she had placed the advertisement in the telephone book, but that the service she was performing on an outcall basis was a "colon irrigation" and that she performed this service in hotel rooms. Respondent showed Mr. Frear an enema kit that Respondent said she used to perform the "colon irrigation." The kit, intended for one time use, was sterile and sealed in a plastic carton. The kit included an enema bag, a tube, soap, and lubricating jelly. Respondent told Mr. Frear that she believed that there was a difference between a "colonic irrigation" and a "colon irrigation" since the former involves a large machine that is used to regulate the flow of water while the latter uses an enema bag and a tube. An enema forces liquid into the colon by means of an enema bag and tubing. The injection of liquid through the anal canal and into the colon serves to remove fecal material and bacteria from the colon. A clean, hygienic area is needed for the administration of the enema and its subsequent evacuation on a toilet. There was no evidence that Respondent used any tool in performing her services other than the enema kit and water. Respondent asserts that the enema kit should not be construed to be a "mechanical device" as that term is used in defining "colonic irrigation" by Section 480.033(6), Florida Statutes. The term "mechanical device" as used in Section 480.033(6), Florida Statutes, is not defined by statute or rule. The American Heritage Dictionary of the English Language contains the following definitions pertinent to this proceeding. A "device" means "something devised or constructed for a particular purpose; especially a machine used to perform one or more relatively simple tasks." "Mechanical" means "of or pertaining to machines or tools." A "machine" is "any system, usually of rigid bodies, formed and connected to alter, transmit, and direct applied forces in a predetermined manner to accomplish a specific objective, such as the performance of useful work [or] a simple device, such as a lever, pulley, or inclined plane, that alters the magnitude or direction, or both, of an applied force. ..." A "tool" can mean "anything regarded as necessary to carry out one's occupation or profession." The enema kit is used to force water through a person's anal canal and rectum for the purpose of cleaning the colon. Based on the foregoing definitions and on the expert testimony presented, it is found that an enema kit is a mechanical device. It is further found that an enema is a form of "colonic irrigation".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and finds Respondent guilty of violating the provisions of Section 480.046(1)(n), Florida Statutes. It is FURTHER RECOMMENDED that the Petitioner issue to Respondent a letter of reprimand and fine her the sum of $500.00. DONE AND ENTERED this 29th day of December, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of December, 1994.
Findings Of Fact At all times relevant hereto Respondent was licensed as a physical therapist assistant in Florida. He has held a physical therapist assistant license for approximately 18 years and worked approximately five and one-half years as an orthotec. In June 1985, Respondent was employed by Southeast Rehabilitation Services (Southeast) as a physical therapist assistant. On or about June 3, 1985, a patient had been transferred to Southeast with one knee immobilized. The physician's order transferring the patient to Southeast directed the immobilizer be removed. When Respondent provided treatment to the patient, he removed the immobilizer without first having received written instructions from the physical therapist to do so. On or about June 11, 1985, Respondent provided treatment to a patient at Southeast which consisted of strengthening exercises using small weights, when the physical therapist orders called only for range of motion exercises without weights. Respondent had been working at Southeast only a short while and had been taken on rounds by another physical therapist assistant. When Respondent gave treatment to this patient on his own, he couldn't locate the patient's chart and relied on his memory to provide treatment. He thought he remembered the other physical assistant gave this patient strengthening exercise, but this was incorrect. Respondent readily acknowledged committing the violations alleged, but contended the June 11 incident was a simple mistake and that he had followed physician's orders at other physical therapy centers at which he had worked, without waiting for written orders from the physical therapist.
The Issue The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
