Findings Of Fact On or about September 22, 1994, Byron Charles Todaro (Petitioner) filed an application for licensure as a massage therapist by examination with the Department of Business and Professional Regulation, Board of Massage (Respondent). On the application, Petitioner responded "yes" to the question that asked, in pertinent part, if he had "ever been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction", excluding parking and speeding tickets, with a plea of nolo contendere being considered a conviction. On or about September 7, 1982, Petitioner pled guilty to possession of a controlled substance (methaqualone) in the Circuit Court of Orange County, Florida. The court withheld adjudication and imposed a fine. Also, in 1982, Petitioner pled guilty to driving under the influence/unlawful blood alcohol level and careless driving. On or about May 22, 1987, in the Circuit Court of Broward County, Florida, Petitioner pled guilty to driving while his license was suspended. The court adjudged him guilty and, among other things, placed Petitioner on one (1) year probation and ordered him to participate in and successfully complete a drug evaluation and rehabilitation program. On or about March 3, 1988, the court vacated the adjudication and adjudication was withheld. On or about May 26, 1989, Petitioner pled guilty to a four-count criminal offense in the Circuit Court of Broward County, Florida: Count I - possession of cocaine; Count II - possession of a controlled substance; Count III - possession of drug paraphernalia; and Count IV - possession of cannabis. As to Counts I and II, the court withheld adjudication and, among other things, imposed a 3-year probation and drug evaluation and treatment. As to Counts III and IV, the court, among other things, adjudicated Petitioner guilty. On or about November 25, 1992, in the Circuit Court of Broward County, Florida, Petitioner pled nolo contendere to a five-count criminal offense: Count I - possession of a controlled substance (diazepam); Count II - possession of cannabis; Count III - possession of drug paraphernalia; Count IV - fleeing a police officer; and Count V - reckless driving. Regarding Counts I, II, and IV, the court, among other things, withheld adjudication and imposed a five (5) year and one (1) year drug offender probation (running concurrently). Regarding Counts III and V, the court, among other things, adjudicated Petitioner guilty. Furthermore, the court ordered an evaluation and random urinalysis. Less than one (1) year later, on or about July 20, 1993, in the Circuit Court of Broward County, Florida, Petitioner pled nolo contendere to a two-count criminal offense: Count I - possession of cocaine with intent to deliver; and Count II - possession of a controlled substance. The court, among other things, withheld adjudication, placed Petitioner on 4 1/2 years of probation, and ordered Petitioner to attend and complete Concept House, followed by Broward Alcohol Recovery Center (BARC) and random urinalysis. The Concept House provides an inpatient drug rehabilitation program. Petitioner had voluntarily begun treatment at the Concept House in June 1993 and the court made it a mandatory part of his probation. Petitioner attended Concept House for six months. For the first three months, Petitioner had to remain at the Concept House, and for the last three months, he was allowed to leave only to seek employment or receive training but returned to the Concept House in the evenings. In December, 1993, Petitioner successfully completed the program at the Concept House. During his treatment at the Concept House, Petitioner was consistently tested by the Concept House, and no test was positive. BARC is an outpatient alcohol abuse program. Petitioner is currently attending BARC. Petitioner's probation officer supervises his treatment at BARC. Petitioner receives weekly drug testing at BARC. No test has been positive. In addition to the weekly testing at BARC, Petitioner receives a monthly urinalysis as part of his probation. No test has been positive. Petitioner received vocational rehabilitation training through the Concept House, and through this training, it was determined that massage therapy was a field which he could pursue. The Concept House funded Petitioner's schooling for massage therapy. On or about January 11, 1994, Petitioner entered the therapeutic massage training program at the Florida Institute. He successfully completed the program on or about June 14, 1994, with a scholastic average of 91.55 percent, using a grading scale of 100 percent. Petitioner's probation officer assisted him in getting admitted to the Florida Institute. Petitioner's drug cases involve personal use and consumption, not the sale or trafficking of drugs or conspiracy to sell or traffic in drugs. Petitioner has been drug free for almost 2 years. Petitioner's current probation is scheduled to end in 1998. He has applied to the court for early termination. Petitioner presented letters of recommendation from his probation officer who has contact with Petitioner on at least a monthly basis regarding his drug abuse and from his vocational rehabilitation counselor employed with the Florida Department of Labor and Employment Security. The practice of massage involves a great degree of trust between the client and the practitioner. For a massage, a client disrobes to a point of comfort for the client, and in certain instances completely disrobes, and, therefore, a client must feel that he/she can trust the practitioner. The trust is both physical and psychological. Accompanying the trust is a high level of responsibility for the massage therapist who must guard and protect that trust. An applicant for licensure must demonstrate that he/she possesses that level of responsibility necessary to practice massage. Massage is a part of health care, being placed under the responsibility of the Division of Medical Quality Assurance of the Department of Business and Professional Regulation. A substantial number of massage therapists (25 percent to 30 percent) are employed in medical areas such as physical therapy centers, hospitals and doctor's offices. Petitioner has no desire to work in a medical area and has been offered a position in a health spa upon licensure by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage enter a final order DENYING Byron Charles Todaro licensure as a massage therapist by examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of September 1995. ERROL H. POWELL 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 September 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner 1. Rejected as being unnecessary as a finding of fact since no issue of standing exists. 2-4. Rejected as being unnecessary as a finding of fact. Rejected as being unnecessary, or argument. a. Partially accepted in finding of fact 5. b. Partially accepted in finding of fact 6. c-f. Rejected as being argument, or conclusions of law. Rejected as being contrary to the evidence. Petitioner admitted that he was currently on probation. Partially accepted in finding of fact 17. i-j. Partially accepted in finding of fact 16. k-l. Rejected as being argument, or conclusion of law. m-n. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in findings of fact 6 and 7. Partially accepted in finding of fact 7. Partially accepted in findings of fact 6, 8, 9, 15 and 16. Rejected as being argument, or conclusion of law. See Preliminary Statement Partially accepted in finding of fact 16. Partially accepted in findings of fact 10 and 11. Rejected as being unnecessary. Partially accepted in finding of fact 20. Partially accepted in findings of fact 7, 8, 9 and 14. Respondent 1. Partially accepted in finding of fact 1. 2 and 3. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Rejected as being unnecessary, or irrelevant. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 15. Rejected as being argument, or conclusion of law. a. Rejected as being argument, or conclusion of law. Partially accepted in finding of fact 19. Partially accepted in finding of fact 17. Rejected as being argument, or conclusion of law. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence, argument, or conclusion of law. COPIES FURNISHED: Ms. Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 N. Monroe Street Tallahassee, Florida 32399-0062 Roger S. Elkind, Esquire 2903 Salzedo Street, Suite 100 Coral Gables, Florida 33134-6618 Lee Ann Gustafson M. Catherine Lannon Assisant Attorneys General Administrative Law The Capitol, PL-01 Tallahassee, Florida 32399-1050
The Issue Whether Respondent's license to practice massage in the state of Florida should be disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioner is the state agency charged with regulating the practice of massage in the state of Florida. At all times material to this proceeding, Respondent was a licensed massage therapist in the state of Florida, holding license number MA 0007149. At all times material to this proceeding, Frank Calta's Health Connection (Health Connection) was not licensed as a massage establishment in the state of Florida. At all times material to this proceeding, Respondent did hold a license for a massage establishment in the state of Florida. In October 1989, the Respondent filed a licensure application with Department of Professional Regulation, Board of Medicine, Dietetics and Nutrition Practice Council (Council) for licensure as a Nutritional Counselor. In answering a request for all work experience as a Nutritional Counselor in the application, Respondent listed the Health Connection as an employer from "11/87 to present" (October 1989) and as to the position held, listed "massage therapist". Respondent's answers to questions in the application were under oath wherein he declared under penalty of perjury that his statements were true and correct. As part of this application to the Council, Respondent submitted a notarized statement by Frank Calta of the Health Connection indicating that Respondent had worked as a massage therapist at the Health Connection from "September 5, 1987 to the present" (September 11, 1989). The testimony of both Respondent and Frank Calta at the hearing established that Respondent was not employed by the Health Connection as such in that he was not paid a salary by the Health Connection or that he worked regular hours for the Health Connection. However, this same testimony established that Respondent did perform massages for Frank Calta and members of the Health Connection in between sets of exercises and at the end of the exercises. These massages were conducted at either the Health Connection located at the 4626 Busch Boulevard, Tampa, Florida address or the Florida Avenue Tampa, Florida address during the period from September 5, 1987 through September 11, 1989. The Respondent was compensated for these massages by the individual members or by Frank Calta through the use of the Health Connection. Other than the individual members of the Health Connection, the Respondent did not solicit business from the "general public" as such. It was Respondent's contention that these massages were performed at sports events. However, there was no evidence that the individual members or Frank Calta were involved in any type of sport competition at the time of the massages by the Respondent, but only exercising to keep their bodies in shape. There was sufficient competent substantial evidence to establish facts to show that Respondent was practicing "massage" as that term is defined in Section 480.033(3), Florida Statutes, in an unlicensed "establishment" as that term is defined in Section 480.083(7), Florida Statutes, during the period from September 5, 1987 through September 11, 1989. There was no evidence presented to show that Respondent's license as a massage therapist had ever been disciplined or that any disciplinary action, other than the instant case, had been taken against the Respondent.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, and the penalty guidelines set out in Rule 21L-30.002, Florida Administrative Code, it is, accordingly, RECOMMENDED: That the Board enter a Final Order finding Respondent guilty of violating Section 480.036(1)(n), Florida Statutes, and for that violation issue the Respondent a letter of reprimand and assess an administrative fine of $250.00. DONE and ENTERED this 3rd day of February, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 3rd day of February, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2613 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. - 4. Adopted in substance as modified in the Recommended Order in Findings of Fact 1, 2, 3, and 4, respectively. 5. - 7. Adopted in substance as modified in the Recommended Order in Finding of Fact 5. 8. - 9. Adopted in substance as modified in the Recommended Order in Finding of Fact 6. Neither relevant nor material to this proceeding other than as to Respondent's credibility as a witness. - 13. Adopted in substance as modified in the Recommended Order in Finding of Fact 7 and 9. 14. Rejected as not supported by competent substantial evidence in the record but in any event, is neither material nor relevant to this proceeding other than as to the extent of the disciplinary action taken. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Respondent has submitted what is titled Proposed Finding of Facts. However, it more of a conclusion of law or legal argument than finding of fact. As to the facts set out in paragraph 5 (unnumbered) see Finding of Fact 7. COPIES FURNISHED: Lois B. Lepp, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Aaron Benjamin 8319 Cross Timbers Drive East Jacksonville, FL 32244 Anna Polk, Executive Director Board of Massage 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
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 in this case are whether Respondent, a massage therapist, obtained a license: (a) by means of fraudulent misrepresentations; (b) which she knew had been issued in error; and/or (c) without having completed a course of study at an approved school, as Petitioner alleges. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact The Department issued Hao license number MA 60237, which authorized her to practice massage therapy in the state of Florida. The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Hao. The Department provides investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done this instance, when cause exists to suspect that a licensee has committed a disciplinable offense. The Florida College of Natural Health ("FCNH") is an incorporated nonpublic postsecondary educational entity. FCNH holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes. In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033.2/ At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- (Apr. 25, 2010), which provided in pertinent part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.3/ Regarding these required practices, section 1005.04, Florida Statutes (2009), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; Ensure that all advertisements are accurate and not misleading; Publish and follow an equitable prorated refund policy for all students, and follow both the federal refund guidelines for students receiving federal financial assistance and the minimum refund guidelines set by commission rule; Follow the requirements of state and federal laws that require annual reporting with respect to crime statistics and physical plant safety and make those reports available to the public; and Publish and follow procedures for handling student complaints, disciplinary actions, and appeals. In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. * * * (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. If a licensed institution has entered into written articulation agreements with other institutions, a list of those other institutions may be provided to students, along with any conditions or limitations on the amount or kinds of credit that will be accepted. Such written agreements with other institutions must be valid and in effect at the time the information is disclosed to the student. The agreements shall be kept on file at all times and available for inspection by Commission representatives or students. Any change or termination of the agreements shall be disclosed promptly to all affected students. No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere——including from schools that were not Board-approved——could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.4/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. At all relevant times, FCNH's registrar was Glenda Johnson. As registrar, Ms. Johnson had apparent authority, at a minimum, to evaluate the transferability of credits, and she possessed actual authority to generate and execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination from FCNH graduates whose transcripts seemed irregular. (Hao's application was not among these; she had taken, and passed, a national licensing examination in February 2010.) What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and they had fewer credit hours on their transcripts than FCNH's typical students. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected purported anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them. Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Ms. Wade later notified the Board that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH fully cooperated. The investigation uncovered some 200 graduates whose credentials FCNH could not confirm. One of them was Hao. Hao was born in China and at some point immigrated to the United States. In 2007 Hao studied massage therapy at Acupuncture and Massage Institute of America ("AMIA") in Hacienda Heights, California. At AMIA, Hao successfully completed a 750-hour curriculum in massage therapy, graduating on December 18, 2007. Thereafter, Hao relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Hao needed to obtain a Florida license. Because AMIA was not a Board-approved massage school, Hao needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. In June 2010, Hao went to the Pompano campus of FCNH, where she met with Ms. Johnson. Hao decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. Hao gave Ms. Johnson copies of her educational credentials from AMIA. In her capacity as registrar, Ms. Johnson completed a Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School. Ms. Johnson took Hao's FCNH enrollment forms and collected $400.00 in cash as the fee for handling the transfer of Hao's credits and her registration as a student of FCNH. Having collected the money, Ms. Johnson furnished Respondent with several items, including an FCNH document titled "Certificate of Completion — 15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" that bore Ms. Johnson's signature and the school's seal; an FCNH document titled "Certificate of Completion — 2 Hours of Prevention of Medical Errors," which bore FCNH's seal, as well as Ms. Johnson's signature; the Transfer of Credit Form signed by Ms. Johnson, which indicates that FCNH accepted Hao's credits from AMIA; and an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Hao had completed a 500- hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. The several documents comprising Hao's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." Ms. Johnson produced a Department of Health application for a massage therapy license and helped Hao fill it out. Hao then signed the three-page application, which is dated June 17, 2010. The application which Hao executed states, truthfully, that she obtained a massage therapy certificate in December of 2007 from AMIA and that the school is not Board approved. The application states, correctly, that Hao completed 750 hours of study at AMIA. The evidence does not establish that Hao knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department. Ms. Johnson forwarded Hao's application and supporting documents to the Department, and soon afterward the Department issued Hao a license to practice as a massage therapist. The evidence fails to support a finding that Hao misrepresented her educational attainments when she met with Ms. Johnson. The evidence, moreover, does not support a finding that Hao knew or should have known that Ms. Johnson's evaluation of her credits was anything but routine and in accordance with FCNH's academic policies. The evidence does not support a finding that Hao knew or should have known that FCNH, as the transferee school accepting her AMIA courses, would award her academic credit or credentials which she had not legitimately earned. Hao was not shown to have had any prior familiarity with FCNH forms and documents; its recordkeeping practices; or its internal policies regarding the registration and enrollment of students, the evaluation of transcripts for the purpose of transfer of credits, or the issuance of certificates and other educational credentials. Hao was not shown to have had any reason to suspect that the FCNH Enrollment Agreement she signed would not be properly entered into the school's records, or to believe that the FCNH transcript issued for her benefit purported to award her any credits other than those she rightfully had earned. To sum up Hao's transaction with FCNH, she went to the Board-approved, state-licensed massage school in June 2010, where she met with the registrar, Ms. Johnson, a member of the school's administration who she had no reason to believe would deceive her. It was reasonable under the circumstances for Hao to rely upon Ms. Johnson, and she was entitled under the law to receive accurate information from the registrar regarding, among other things, the transferability of credits to FCNH, and the relationship between FCNH's academic program and the state's licensure requirements for massage therapists. Further, Ms. Johnson, who at all times was acting within the course and scope of her employment as the school's registrar, had actual authority to prepare and certify educational credentials on behalf of FCNH. The evidence does not establish that Hao was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Hao gave Ms. Johnson false information. From Hao's perspective, Ms. Johnson had apparent authority, at least, to accept Hao's credits from AMIA and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Hao has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. FCNH has not initiated a legal proceeding to revoke or withdraw Hao's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Hao is without rights and privileges thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Hao not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2013.
The Issue The issue in this case is whether the Department of Health, Board of Massage Therapy, should discipline the Respondent, Meihua Qiu, based on the manner in which she applied for and obtained her license.
Findings Of Fact The Respondent, who was born in China, came to the United States in 2001. She enrolled in Royal Irvin College in California to study massage therapy. She completed a 500-hour course of study and graduated in September 2007. The course of study included classes on HIV/AIDS and prevention of medical errors. In November 2007, she sat for and passed the examination administered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB). The Respondent moved to Florida because she had family and friends there. One of her friends knew someone who had gone to the Florida College of Natural Health (FCNH), which is approved by the Board of Massage Therapy (Board). In December 2007, the Respondent went to FCNH’s Pompano campus to determine what was necessary for the Respondent to be licensed in Florida as a massage therapist. When the Respondent arrived at FCNH's Pompano campus on December 21, 2007, the receptionist directed her to see Glenda Johnson, who was the school's student coordinator and functioned as the registrar. The Respondent showed Johnson a copy of her Royal Irvin College diploma and transcript and her NCBTMB certificate, which Johnson reviewed. The diploma and transcript were not official, but the Department does not dispute that they are true and correct. It was not FCNH's normal practice at the time for Johnson to review transcripts to determine how much credit to accept from another school. This was normally done by the school's education department. However, Johnson was acting as the school’s registrar and appeared to have the authority to make the determination; and it was reasonable for the Respondent to believe that Johnson was authorized to do so. Johnson then had the Respondent fill out and sign an application for licensure in Florida by examination based on her 500-hour course of study at, and diploma from, Royal Irvin College and her NCBTMB certificate. Everything in the application filled out and signed by the Respondent was true and correct at that time. Johnson also had the Respondent fill out and sign an FCNH enrollment agreement. Johnson signed the agreement, acting as school registrar, to enroll the Respondent at FCNH. The enrollment agreement included a statement that FCNH would evaluate collegiate and post-secondary training, military experience, or civilian occupations, and that the Respondent would be given appropriate credit, if criteria to measure the value of such training and experience were met, as determined by FCNH. Johnson then gave the Respondent a copy of the April 2003 edition of the statutes and rules governing the practice of massage therapy in Florida and materials for FCNH’s course in Prevention of Medical Errors and brought her to a classroom. There was an instructor in the classroom who explained the materials to the Respondent and answered her questions as she read and studied the materials for about three to four hours. There were other students and staff in the classroom with the Respondent but they were not studying the same materials as the Respondent and the instructor was directing his explanations and answers to questions to the Respondent, not the other students. The Respondent was not tested or graded on what she studied. When the Respondent finished studying the materials, Johnson told her that she had completed the course requirements. The Respondent did not have any reason to doubt Johnson, who was acting as the school’s registrar. Cf. § 1005.04(1)(a) & (d), Fla. Stat. (2012)(a nonpublic, secondary institution accredited by the Commission for Independent Education must disclose to prospective students the transferability of credit to and from other institutions and accurate information regarding the relationship of its programs to state licensure requirements). Actually, even if credit for all other educational requirements for Florida licensure by examination were transferred from the Royal Irvin College, the Respondent was required to complete a ten-hour class in Florida statutes and rules. Fla. Admin. Code R. 64B7-32.003 (Apr. 25, 2007). (Notwithstanding some testimony to the contrary, other mandatory courses of study are not required by rule to be Florida- specific.) Id. Like all other educational requirements for licensure by examination, this class had to be taken in-person, with a faculty member present. Fla. Admin. Code R. 64B7-32.001 (Mar. 25, 1986). Johnson had the Respondent pay $520 for FCNH's tuition and the Board's $205 license application fee. Johnson said she would file the application for the Respondent. The Respondent did not speak to Johnson again or return to FCNH’s Pompano campus after December 21, 2007. At some point in time on or after December 21, 2007, Johnson completed section III of the Florida license application, which is a transfer of credit form, and the Respondent's FCNH transcript. The transfer of credit form indicated that FCNH was accepting: 150 credit hours from Royal Irvin College in the category Anatomy and Physiology (for a course titled Musculoskeletal); 225 credit hours in the category Basic Massage Therapy and Clinical Practicum (for a course titled Neuromuscular Massage); 15 credit hours in the category Theory and Practice of Hydrotherapy (without specifying the course taken); 95 credit hours in the category Allied Modalities (for a course titled Sports Massage); and 3 hours in the category HIV/AIDS (for a course titled HIV/AIDS). The form indicated that to qualify for examination the Respondent needed to take ten hours in the category Statutes/Rules and History of Massage and two hours in the category Allied Modalities (for medical errors prevention) at FCNH. Finally, the form showed the total credit hours for all schools: 150 credit hours in the category Anatomy and Physiology; 225 credit hours in the category Basic Massage Therapy and Clinical Practicum; ten credit hours in the category Statutes/Rules and History of Massage; 15 credit hours in the category Theory and Practice of Hydrotherapy; 97 credit hours in the category Allied Modalities; and 3 credit hours in the category HIV/AIDS. At some point in time on or after December 21, 2007, Johnson also completed a FCNH transcript for the Respondent indicating that the Respondent completed all the credit hours on the credit transfer form (a total of 500 credit hours, including 12 hours having been taken at FCNH), and assigning credits for those credit hours (a total of 25.84 credits, including 0.8 credit earned at FCNH). At some point in time on or after December 21, 2007, Johnson also completed FCNH certificates of completion for the Respondent indicating that the Respondent took and successfully completed FCNH's two-hour class titled Prevention of Medical Errors and 12 hours of FCNH's Therapeutic Massage Training Program (Transfer of License). Johnson sent the Respondent's license application (with $205 fee), Royal Irvin College diploma and transcript, and NCBTMB certificate, together with the documents Johnson completed on or after December 21, 2007. She did not provide copies to the Respondent. The Board received the submission on December 27, 2007. On December 28, 2007, the Board sent the Respondent a copy of her application, without the supporting documentation, and a letter saying the application was incomplete because her driver license number was omitted. The Respondent added the driver license number and re-submitted the application on January 7, 2008. On January 9, 2008, the Board issued the Respondent massage therapy license MA 52312. The Respondent paid Johnson by check. There was no evidence as to what happened to the balance of the money paid to Johnson. No canceled check was produced, and the evidence is not clear if the check was made payable to FCNH or to Johnson. Either way, subsequent events suggest Johnson probably pocketed the difference between the $520 paid and the $205 license application fee. The Respondent's license application included both the representation that the answers and statements in or in support of her application were true and correct and the acknowledgement that any false information on or in support of the application was cause for denial, suspension, or revocation of her license. Although true and correct when the Respondent filled it out and signed it, the Respondent's application was not true and correct as submitted to the Board on her behalf, with the false supporting documentation prepared by Johnson. In December 2011, it came to the attention of Melissa Wade, FCNH's vice-president for Compliance and Institutional Effectiveness, that a number of people were claiming to have graduated from FCNH's Pompano campus based on documentation indicating that they did not complete FCNH's 768-hour course of study that was approved by the Board. Wade investigated and was unable to find any record of the individuals having been students at FCNH. Wade investigated further and discovered discrepancies in the documentation being submitted by those individuals. Wade investigated further and discovered that Johnson never registered these individuals as enrolled students. Johnson was terminated from her employment as registrar for the school. Beginning in January or February 2012, Wade began notifying the Board about the individuals purporting to be FCNH graduates, but who never actually were registered as enrolled students and did not complete the school's Board-approved course of study. As more such individuals were identified, the Board was notified. The Respondent was one of the individuals reported to the Board. At some point in time, the Respondent became aware of the Department’s concerns about the manner in which she obtained her Florida massage therapist license. In October 2012, in an attempt to resolve the Department's issues regarding her license, the Respondent took and successfully completed a Board-approved continuing education (CE) course consisting of six hours of Ethics and Standards, two hours of Preventing Medical Errors, two hours of Laws and Rules Massage Practice, two hours of Pathology of Chronic Conditions for Massage Therapists, and Living with HIV/AIDS. In October 2012, the Department filed emergency suspension orders and administrative complaints against a number of licensees who submitted suspect FCNH documentation with their applications, including the Respondent. Between her licensure and the emergency suspension order, the Respondent practiced massage therapy in Florida. During that time, there were no complaints of any kind against the Respondent either by the Department or any consumer. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, even assuming that Johnson had at least apparent authority to transfer credit hours from Royal Irvin College and assign FCNH credit, it is clear that the application submitted on the Respondent's behalf by Johnson was supported by documentation that falsely represented that the Respondent took 12 hours of classes at FCNH, including a ten-hour class on Florida statutes and rules and a two-hour class in Prevention of Medical Errors. At the same time, those false misrepresentations were made by FCNH, through its registrar, not by the Respondent.
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 against the Respondent. DONE AND ENTERED this 17th day of June, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2013. COPIES FURNISHED: Candace Rochester, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Maggie M. Schultz, Esquire Rutledge, Ecenia and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32302 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health Bin C06 4052 Bald Cypress Way Tallahassee, Florida 32399-3256 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
