explaining that finding a licensee was previously on probation may support the aggravating factor of deterrent effect
How later courts described this case
- explaining that finding a licensee was previously on probation may support the aggravating factor of deterrent effect
Written by the judges who cited it.
The opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2023-2977
_____________________________
CHUNMEI LIANG, L.M.T.,
Appellant,
v.
FLORIDA DEPARTMENT OF
HEALTH,
Appellee.
_____________________________
On appeal from the Department of Health, Board of Massage
Therapy.
Allen Hall, Executive Director.
January 23, 2025
PER CURIAM.
Appellant Chunmei Liang appeals the final order by the
Florida Board of Massage Therapy (“Board”) revoking her license
to practice massage therapy. She argues that the Board abused
its discretion by deviating from the disciplinary guidelines and
applying an aggravating factor without factual support.
Liang was the owner and designated establishment manager
of a licensed massage establishment. The Department of Health
(“Department”) filed an administrative complaint with the Board,
charging Liang with violating section 480.046(1)(p), Florida
Statutes (2021), which provides that violating any provision of
chapter 480 is a ground for disciplinary action. The Department
alleged that Liang, as the owner and designated establishment
manager, violated section 480.043(1), Florida Statutes (2021),
because she is responsible for ensuring compliance with all
requirements related to operating the establishment. The
Department also alleged that Liang violated section 480.046(1)(f),
Florida Statutes (2021), by aiding, assisting, procuring, or advising
an unlicensed person to practice massage therapy.
At the hearing, Liang admitted the factual allegations in the
complaint and offered mitigation. The Board adopted the findings
of fact alleged in the complaint and concluded that Liang violated
chapter 480. The Department recommended that the Board
suspend Liang’s license for thirty days. The Board disagreed with
the recommendation and moved for revocation.
The Board Chair motioned for the Board to apply the
“deterrent effect” aggravator and explained that the aggravator
could apply so that Liang “doesn’t have any further violations in
the future, that this would prohibit behavior of this nature.” The
Board then voted for revocation based on the “deterrent effect”
aggravator. The Board entered a final order revoking Appellant’s
license. This appeal follows.
Section 120.68, Florida Statutes, governs our review of final
agency action. We review the Board’s factual findings for
competent, substantial evidence and its imposition of a penalty for
abuse of discretion. See § 120.68(7)(b), (e) Fla. Stat.; Kale v. Dep’t
of Health, 175 So. 3d 815, 817 (Fla. 1st DCA 2015).
While the Board has broad discretion when imposing
penalties, it is limited to the range delegated by law and must be
consistent with the Board’s promulgated rules.
See § 120.68(7)(e)1.–2., Fla. Stat. Florida law authorizes the Board
to adopt disciplinary guidelines by rule. § 456.079(1), Fla. Stat.
Accordingly, the Board adopted rule 64B7–30.002 of the Florida
Administrative Code, which provides the recommended ranges of
penalties to be imposed by the Board and a list of aggravating or
mitigating factors.
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Liang was subject to penalties under rule 64B7–30.002(2)(f)
for “[a]iding, assisting, procuring, or advising any unlicensed
person to practice massage contrary to the provisions of Chapter
480.” Fla. Admin. Code R. 64B7–30.002(2)(f). If the violation is
the first offense, the penalty is suspension. Id. Upon a subsequent
offense, the penalty range is “[s]uspension and $2,500 fine to
revocation and $2,500 fine.” Id. But the Board deviated from the
recommended penalty for a first offense and revoked Liang’s
license based on an aggravating factor—the “deterrent effect of the
penalty imposed” under rule 64B7–30.002(3)(f).
To impose a penalty outside the disciplinary guidelines, the
Board was required make “[a] specific finding in the final order of
mitigating or aggravating circumstances.” § 456.079(3), Fla. Stat.
Meaning, as explained in Brewer v. Fla. Dep’t of Health, Bd. of
Nursing, 268 So. 3d 871, 874 (Fla. 1st DCA 2019), that the Board
must find that the record supports application of a particular
aggravating factor. See also Aleong v. Dep’t of Bus. and Pro.
Regul., 16 So. 3d 190, 193 (Fla. 4th DCA 2009) (explaining that
finding a licensee was previously on probation may support the
aggravating factor of deterrent effect).
The record contains no facts to support application of the
aggravating factor of “deterrent effect of the penalty imposed.”
Because Liang proceeded to an informal hearing and admitted the
factual allegations in the complaint, the only facts before the Board
were those it adopted in the complaint. And the complaint alleged
only that Liang aided an unlicensed person in practicing massage
therapy. Without facts supporting application of a mitigating or
aggravating factor, the Board was required to impose a penalty
under disciplinary guidelines provided under rule 64B7–30.002(2).
Because no competent, substantial evidence supports the
aggravating factor applied, the Board abused its discretion by
deviating from the guidelines and revoking Liang’s license.
Therefore, we set aside the Board’s revocation order and remand
to the Board for further proceedings consistent with this opinion.
See § 120.68(7), Fla. Stat.
SET ASIDE AND REMANDED.
ROWE and LONG, JJ., concur; KELSEY, J., concurs in result.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Bernard M. Cassidy of Lubell & Rosen, Fort Lauderdale, for
Appellant.
Sarah Young Hodges, Chief Appellate Counsel, Tallahassee, for
Appellee.
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