The Issue The issues presented in this case are whether Respondent has violated the provisions of Chapters 456 and 480, Florida Statutes, and Florida Administrative Code Chapters 64B7-26, as alleged in the 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. At all times material to the allegations in this case, Respondent was an applicant for or licensed as a massage therapist in the State of Florida, having been issued license number MA52091 on or about December 7, 2007. Respondent's Application for Licensure Respondent applied for a license as a massage therapist in July 2007. His application for licensure was signed and submitted to the Department on or about July 12, 2007. The application includes the following question: 20. Have you ever been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if the court withheld adjudication so that you would not have a record of conviction. Driving under the influence or driving while impaired is not a minor traffic offense for purposes of this question. Respondent answered "no" to question 20 quoted above. At the end of the application is a place for a picture of the applicant and a section labeled "Affidavit of Applicant" which the applicant completes and signs. The affidavit states: AFFIDAVIT OF APPLICANT: I, Marcus McCastler, affirm that I am the person referred to in the foregoing massage therapy licensure application, and that the attached photograph is a true likeness of myself. I understand that it is my duty and responsibility as an applicant for licensure to supplement my application after it has been submitted if and when any material change in circumstances or conditions occur which might affect the Board's decision concerning my eligibility for examination or licensure. Such supplement is required by Chapter 456.013(1), F.S. Failure to do so may result in disciplinary action by the Board including denial of licensure. I have carefully read the questions in the foregoing application and have answered them completely, without reservation of any kind, and I declare that my answers and all statements made by me herein and in support of this application are true and correct. Should I furnish any false information on or in support of this application, I understand that such action shall constitute cause for denial, suspension, or revocation of any license to practice in the state of Florida in the profession for which I am applying. I have read, understand, and agree to comply with the statutes and rules applicable to the practice of my profession in Florida. Respondent signed and dated his application immediately following the declaration quoted above. The answer to question number 20 on his application was false. On August 28, 2002, in Case No. 2001-CT-30030 (Fourth Judicial Circuit, Duval County, Florida), Respondent pleaded nolo contendere to the second-degree misdemeanor of driving on a suspended or revoked license, in violation of Section 322.34(2), Florida Statutes. Adjudication was withheld and court costs were paid. On April 6, 2004, in Case No. 2003-CT-031996-AXXX (Fourth Judicial Circuit, Duval County, Florida), Respondent pleaded nolo contendere to driving with no valid driver's license, in violation of Section 322.03, Florida Statutes. Adjudication was withheld and court costs paid. 11. On December 15, 2004, in Case No. 2004-MM-041686 (Fourth Judicial Circuit, Duval County, Florida), Respondent pleaded nolo contendere to possession of less than 20 grams of cannabis, a first-degree misdemeanor, in violation of Section 893.13(6), Florid Statutes. Adjudication of guilt was withheld and court costs paid. On December 18, 2006, Respondent pleaded nolo contendere to the misdemeanor of permitting an unauthorized minor to drive, in violation of Section 322.35, Florida Statutes. In Case No. 2006-CT-004817 (First Judicial Circuit, Escambia County, Florida), Respondent was adjudicated guilty, fined $200.00, and ordered to pay court costs. On February 14, 2007, Respondent pleaded nolo contendere to possession of less than 20 grams of cannabis, a first-degree misdemeanor. In Case No. 07-00255-MM-MA (Fourth Judicial Circuit, Clay County, Florida), adjudication was withheld and Respondent was ordered to pay $205 in costs. On July 3, 2008, Respondent was arrested and charged with simple battery, in violation of Section 784.03(1)(b), Florida Statutes, a first-degree misdemeanor. On July 4, 2008, Respondent pleaded nolo contendere to the lesser included offense of fighting. In Case No. 2008-MO-18280 (Fourth Judicial Circuit, Duval County, Florida), the Court withheld adjudication and imposed a fine of $250.00. All of the offenses listed above with the exception of the offense described in paragraph 14 occurred before Respondent signed the application for a license as a massage therapist. Respondent claims that he answered question 20 no "reluctantly" on advice of a lawyer at his school. Respondent's claim is not credible. The July 6, 2008 Incident In July 2008, Respondent was employed as a massage therapist by Summit Regency, d/b/a Massage Envy, in Jacksonville, Florida. On or about July 6, 2008, Respondent gave a massage to A.M., a female client of Massage Envy. A.M. has been a licensed R.N. since 1979 and works as a public health nurse at the Duval County Health Department. A.M. had received massages before and Respondent had given her a massage on a previous occasion. On this particular day, she came to Massage Envy with her husband, W.M., who was also getting a massage. Both were using a prepaid plan whereby they received a set number of massages over a defined period of time. A.M.'s massage was scheduled for and took place at approximately 2:00 p.m. Upon entering the room, A.M. was provided with a sheet/drape and Respondent left the room while A.M. undressed, got on the table face down and covered herself with the drape. A.M. testified that, while she was face down on the table and during the massage, Respondent removed the drape, leaving her completely exposed. She testified that about 20 minutes into the massage, Respondent inserted his bare finger into her rectum and pushed his finger to the side of the rectum without her consent and without telling A.M. what he was doing or why. According to A.M., she did not say anything and did not attempt to get down from the table because she was in shock and frightened, and mortified at what Respondent had done. She did not ask him to return the drape until he instructed her to turn over. At that point, he handed her the drape and she turned over onto her back. He massaged her arms and then the massage was over. Respondent, on the other hand, denied removing the drape from A.M.'s body during the massage and adamantly denied inserting his finger into her rectum. A.M. and her husband left Massage Envy after their massages and returned home. A.M. did not tell her husband about the incident until they arrived home, at which time she told him that Respondent had "stuck his finger up her butt." W.M. advised her to report the matter to the police and to call the owner of Massage Envy, which she did. With respect to the owner of Massage Envy, she reported what she believed Respondent had done, and asked for her money back. Her money was refunded to her, and she was provided a copy of the complaint paperwork to file a complaint with the Department of Health. A.M. also reported the incident to the Jacksonville Police Department at approximately 7:00 p.m. that evening, but did not wish to file charges against Respondent. She said she simply wanted to "report it so that it would be on record." She also went to her family physician the next day because her hemorrhoids were bleeding, which she attributed to the incident with Respondent. Respondent was not charged with any crime as a result of events taking place July 6, 2008. However, he was terminated from his employment based on A.M.'s complaint. After careful review of all of the evidence presented at hearing, there is not clear and convincing evidence that Respondent removed the drape inappropriately during the exam or that he intentionally inserted his finger into A.M.'s rectum.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Board of Massage Therapy enter a Final Order finding that Counts I and II of the Administrative Complaint were not proven by clear and convincing evidence; that Respondent committed the acts charged in Counts III and IV of the Administrative Complaint and by doing so, violated Sections 456.072(1)(h) and (m); 480.046(1)(o); and 480.047(1)(f), Florida Statutes (2007); and revoking his license to practice massage therapy. DONE AND ENTERED this 18th day of October, 2010, 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 18th day of October, 2010.
The Issue An administrative complaint dated January 5, 1998, charges that Respondent violated rules governing the practice of massage by failing to have a current establishment license and failing to have a fire extinquisher on the premises maintained in good working condition. The issues for resolution are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact Respondent, Keith Richard Goldsmith, is now and has been at all relevant times a massage therapist licensed by the State of Florida with license no. 0011202. In 1996, Respondent's massage establishment, Bio-Spirit Bodywork Therapy, was licensed and located at 1089 Choke Cherry Road in Winter Springs, Seminole County, Florida. The property was sold and Respondent had to relocate in a move which he describes as "chaotic." At some point during or after the move Respondent sent his facility transfer fee to the Board of Massage. He apparently sent a letter, but not the proper application form. On July 31, 1997, after obtaining Respondent's phone number from telephone information and calling to get an appointment, investigators Dawn Witte and J. C. Russell conducted an inspection of Respondent's facility now located at 265 Stoner Road in Winter Springs, Florida. The inspection determined that all requirements were met, except for the following: No current establishment license; No establishment license displayed; and No fire extinquisher maintained on the premises. At the time of the inspection Respondent had not obtained the license for the new facility and did not display the license for the prior facility. His fire extinquisher was still packed away somewhere. In a follow-up visit from the inspectors, Respondent declined the option to accept a disciplinary citation and $250 fine for the violations. Respondent subsequently formally applied for, and was granted a temporary establishment license for the Stoner Road facility.
Recommendation Based on the foregoing it is hereby recommended that the Board of Massage Therapy enter its final order finding that Respondent committed two violations of Section 480.046(1)(k), Florida Statutes, and assessing a fine of $350. DONE AND ENTERED this 20th day of July, 1998, in Tallahassee. Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1998. COPIES FURNISHED: Joseph S. Garwood, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Post Office Box 14229 Tallahassee, Florida 32317-4229 Keith Richard Goldsmith 265 Stoner Road Winter Springs, Florida 32708 Joe Baker, Executive Director Board of Massage Therapy Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-4092
The Issue The issues are whether the Respondent, a licensed massage therapist, violated section 480.046(1)(c), Florida Statutes (2015),1/ by pleading nolo contendere to one count of prostitution; whether she violated section 456.072(1)(x), Florida Statutes, by failing to report the plea to the Board of Massage Therapy within 30 days, as alleged in the Administrative Complaint filed by the Petitioner; and, if so, the appropriate penalty.
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of massage therapy in Florida under section 20.43 and chapters 456 and 480, Florida Statutes (2017). At all times material to the Administrative Complaint, the Respondent was licensed to practice massage therapy in Florida, having been issued license number MA 76935 by the Board of Massage Therapy. On January 14, 2016, the Respondent entered a plea of nolo contendere in case 15-CM-019206-A in Hillsborough County, Florida, to one count of prostitution in violation of section 796.07(2)(e), Florida Statutes (2015), a second-degree misdemeanor. Adjudication was withheld, and the Respondent was required to pay $270 in court costs. The Respondent did not report her plea in that case to the Board of Massage Therapy within 30 days of entering the plea. The Respondent stipulated that the crime of prostitution is directly related to the practice of massage therapy, and that offering to perform a sexual act on a massage client during the course of a massage by a licensed massage therapist is outside the scope of the practice of massage therapy. Despite her nolo contendere plea, the Respondent testified in this case that she was not guilty of prostitution. She also testified that she entered the plea without fully understanding its meaning and consequences, and without legal counsel, and that she would not have entered the plea had she known its meanings and consequences. She introduced no other evidence to corroborate or support her claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: finding the Respondent guilty of violating section 480.046(1)(c) and section 456.072(1)(x); fining her $1,000; revoking her license to practice massage therapy; and awarding costs of investigation and prosecution of this matter to the Petitioner. DONE AND ENTERED this 29th day of August, 2017, 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 29th day of August, 2017.
The Issue The issues in this case are whether Respondent, a massage therapist, obtained a license: (a) by means of fraudulent misrepresentations; (b) which she knew had been issued in error; and/or (c) without having completed a course of study at an approved school, as Petitioner alleges. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact On February 26, 2008, the Department issued Peng license number MA 52684, which authorized her to practice massage therapy in the state of Florida. The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Peng. The Department provides investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done this instance, when cause exists to suspect that a licensee has committed a disciplinable offense. The Florida College of Natural Health ("FCNH") is an incorporated nonpublic postsecondary educational entity. FCNH holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes (2012). In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033.1/ At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- 32.003 (Oct. 30, 2007), which provided in pertinent part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.2/ Regarding these required practices, section 1005.04, Florida Statutes (2007), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; Ensure that all advertisements are accurate and not misleading; Publish and follow an equitable prorated refund policy for all students, and follow both the federal refund guidelines for students receiving federal financial assistance and the minimum refund guidelines set by commission rule; Follow the requirements of state and federal laws that require annual reporting with respect to crime statistics and physical plant safety and make those reports available to the public; and Publish and follow procedures for handling student complaints, disciplinary actions, and appeals. In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. * * * (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. If a licensed institution has entered into written articulation agreements with other institutions, a list of those other institutions may be provided to students, along with any conditions or limitations on the amount or kinds of credit that will be accepted. Such written agreements with other institutions must be valid and in effect at the time the information is disclosed to the student. The agreements shall be kept on file at all times and available for inspection by Commission representatives or students. Any change or termination of the agreements shall be disclosed promptly to all affected students. No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere——including from schools that were not Board-approved——could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.3/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. At all relevant times, FCNH's registrar was Glenda Johnson. As registrar, Ms. Johnson had actual authority to evaluate the transferability of credits and to execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination from FCNH graduates whose transcripts seemed irregular. (Peng's application was not among these; she had taken, and passed, the national examination in December 2007.) What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and they had fewer credit hours on their transcripts than FCNH's typical students. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected purported anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them. Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Ms. Wade later notified the Board that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH fully cooperated. The investigation uncovered some 200 graduates whose credentials FCNH could not confirm. One of them was Peng. Peng was born in China, immigrated to the United States, and became a citizen of this country. In 2005 and 2006 Peng studied massage therapy at BodyConcepts Wellness Institute ("BodyConcepts") in East Rutherford, New Jersey. At BodyConcepts, Peng successfully completed a 610-hour curriculum in massage therapy. Her certificate was issued on February 10, 2006. In 2007, Peng moved to California. There, Peng attended Royal Irvin College in Monterey Park, where she completed a 250-hour course for which she was issued a Massage Technician II certificate on November 7, 2007. Soon after graduating from Royal Irvin College, as mentioned above, Peng took and passed the National Certification Examination for Therapeutic Massage and Bodywork. Thereafter, Peng relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Peng needed to obtain a Florida license. Because neither Royal Irvin College nor BodyConcepts was a Board- approved massage school, Peng needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. Opting for the former, Peng researched Board-approved schools on the Board's website and identified FCNH as a potential school. On or about January 22, 2008, Peng went to the Pompano campus of FCNH. Upon her arrival at FCNH, Peng signed her name at the reception desk and waited to be seen. After some time, an FCNH employee, identified by Peng as Glenda Johnson, emerged from the offices behind the reception area. Ms. Johnson brought Peng back to her office. Once inside the office, Peng inquired as to whether she could transfer her out-of-state credits to FCNH in order to obtain a Florida license. After reviewing Peng's transcripts from Royal Irvin College and BodyConcepts, Ms. Johnson advised Peng that her credits could be transferred to FCNH. Ms. Johnson informed Peng that she would have to take two Florida-specific classes, namely Prevention of Medical Errors and Florida Laws and Rules. Peng decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. As part of the enrollment process, Peng executed an Enrollment Agreement, a release, a Drug Free School Statement, and a privacy rights disclosure statement. Among other things, the Enrollment Agreement provided that "[t]he school will evaluate collegiate and post secondary training, military experience, or civilian occupations, and students will be given appropriate credit if criteria to measure the value of such training and/or experience are met, as determined by the school." For her part, Ms. Johnson completed several forms in her capacity as registrar. These documents included portions of the Enrollment Agreement, the Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School. Ms. Johnson produced a Department of Health application for a massage therapy license. Peng filled out the parts of the application requesting personal information such as name, Social Security number, date of birth, and phone number, and Ms. Johnson completed the rest. Peng then signed the three- page application, which is dated January 22, 2008. The application which Peng executed states, truthfully, that she obtained a massage therapy certificate in November of 2007 from Royal Irvin College, and that the school is not Board approved. The application states, inaccurately, that Peng completed 610 hours of study at Royal Irvin College, when in fact she earned only 250 hours of credit there. The 610-hour massage therapy program which Peng completed was offered not at Royal Irvin College, but at BodyConcepts, a fact which for reasons unknown was omitted in response to the pertinent question on the application. This was obviously a mistake, however, and not——as the Department now contends——a "false statement" intended to deceive, for Peng's application package included the diplomas and transcripts from both Royal Irvin College and BodyConcepts. These credentials clearly state Peng's educational attainments and the number of hours completed at each institution. The evidence does not establish that Peng knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department. Ms. Johnson took Peng's FCNH enrollment forms and collected $520.00 in cash as the fee for handling the transfer of Peng's credits and her enrollment in the required courses. The total reflects a $250.00 fee for transferring credits to FCNH and a $270.00 fee for tuition. Peng paid the fees to Ms. Johnson in cash because she did not have a checking account or credit card at that time. Ms. Johnson signed a receipt for the $520.00 payment and handed it to Peng. After Peng had completed the paperwork in Ms. Johnson's office, an unidentified female FCNH employee escorted Peng to a classroom on the campus. This woman provided Peng with materials for the Prevention of Medical Errors and Florida Laws and Rules courses she was to take. While at FCNH, Peng apparently received some classroom instruction. She remained in class at FCNH into the night of January 22, 2008, and departed campus after completion of an exam. The next day, Peng returned to FCNH, where she spent all day in a classroom, departing the campus via taxi in the evening. During these two days of study, Peng made handwritten notes on nearly every page of the written materials she was provided. She used a translating device to translate difficult English words into her native Mandarin Chinese. After completion of the courses at FCNH, Peng submitted her application for licensure. By letter dated February 4, 2008, the Department notified Peng that her application was incomplete due to some missing documents. Specifically, the letter requested additional information regarding her legal name change as well as proof of attendance at a Board-approved school. Peng sent the Department a copy of her divorce decree, satisfying the first part of the request. Because FCNH had not provided Peng any certificates of completion, however, she returned to FCNH on February 22, 2008, seeking proof of attendance. There, Peng again met with Ms. Johnson. Ms. Johnson assured Peng that she had completed all of the requirements. Peng asked Ms. Johnson to send the Department proof of such completion, as requested in the letter dated February 4, 2008. Ms. Johnson gave copies of two Certificates of Completion to Peng and promised her that they would be sent to the Department. Ms. Johnson forwarded the documents to the Department, and soon afterward Peng's application was deemed complete. The Department notified Peng by letter dated February 26, 2008, that she had been issued a license to practice as a massage therapist. At the time Peng obtained her license, Florida law required as a condition of licensure that an applicant take a three-hour course on HIV/AIDS. See § 456.034, Fla. Stat. (2007).4/ Peng credibly testified that Ms. Johnson, when evaluating her transcript, had asked whether Peng had taken an HIV/AIDS course. Peng told Ms. Johnson that she had taken the course at both Royal Irvin College and at BodyConcepts. Ms. Johnson informed Peng that so long as she had taken the course within the past year, the credits would transfer to FCNH and she would not have to take the course again.5/ Among the documents that were sent to the Department in connection with Peng's application was the Transfer of Credit Form. This form states that FCNH has evaluated and agreed to accept 485 hours of Peng's previously awarded credits. The form is signed by Ms. Johnson, as evaluator and registrar, who certified "that the transcript credit for the . . . courses [applicant previously attended for credit] is acceptable credit from . . . Royal Irvin College." Ms. Johnson prepared this document on her own without input or review by Peng. The evidence provides no explanation for why Ms. Johnson did not identify BodyConcepts on the credit-transfer form itself. She evidently included the credits earned from that school in her calculation, however, because the majority of Peng's previously earned credits were from BodyConcepts. Ms. Johnson also signed and submitted to the Department an FCNH transcript showing that Peng had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." Ms. Johnson did not show this document to Peng. Even if she had, however, the transcript would not have seemed irregular to Peng because it appears on its face to be an official FCNH credential, listing the courses that FCNH had accepted for transfer credit as well as those that Peng had completed at FCNH on January 22 and 23, 2008. Peng was not shown to have had any prior familiarity with FCNH documents; she had no reason to believe that the FCNH transcript purported to award her any credits other than those she rightfully earned at FCNH or one of the other schools she had attended. Finally, as mentioned above, Ms. Johnson prepared, signed, and submitted to the Department two Certificates of Completion reflecting Peng's completion of: "15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" and "2 Hours Prevention of Medical Errors." Because Peng had taken courses at FCNH on January 22 and 23, 2008, her receipt of these certificates did not signify anything unusual. As far as Pend knew, she had taken the courses Ms. Johnson informed her she needed to take and, accordingly, had earned the certificates presented to her. Collectively, the credit-transfer form, the transcript, and the certificates "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8). The several documents comprising Peng's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." The evidence does not support a finding that Peng misrepresented her educational attainments when she met with Ms. Johnson. The evidence does not support a finding that Peng knew or should have known that Ms. Johnson's evaluation of her credits was anything but routine and in accordance with FCNH's academic policies. The evidence does not support a finding that Peng knew or should have known that FCNH, as the transferee school accepting her Royal Irvin College and BodyConcepts courses, would award her academic credit or credentials which she had not legitimately earned. Peng had no reason to suspect the FCNH Enrollment Agreement she signed would not be properly entered into the school's records. Nor did Peng have any reason to suspect that the courses she completed would not be properly credited to her academic record. To sum up Peng's transaction with FCNH, she went to the Board-approved, state-licensed massage school on January 22, 2008, where she met with the registrar, Ms. Johnson, a member of the school's administration who she had no reason to believe would deceive her. It was reasonable under the circumstances for Peng to rely upon Ms. Johnson, and she was entitled under the law to receive accurate information from the registrar regarding, among other things, the transferability of credits to FCNH, and the relationship between FCNH's academic program and the state's licensure requirements for massage therapists. It was also reasonable for Peng to assume that the course materials and courses she took were part of her apparently legitimate enrollment in FCNH. Moreover, Ms. Johnson, who at all times was acting within the course and scope of her employment as the school's registrar, had actual authority to evaluate transfer credits on behalf of FCNH. The evidence does not establish that Peng was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Peng gave Ms. Johnson false information. From Peng's perspective, Ms. Johnson had apparent authority, at least, to accept Peng's credits from Royal Irvin College and BodyConcepts, and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Peng has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. Although Ms. Wade testified at hearing that Ms. Johnson should not have awarded Peng an FCNH Diploma based on Peng's Royal Irvin College and BodyConcepts credits, FCNH has not initiated a legal proceeding to revoke or withdraw Peng's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Peng is without rights and privileges thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Peng not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2013.
