Opinion

Liang v. Department of Health

Court
District Court of Appeal of Florida
Filed
Jan 23, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 33.7%

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.

3

_____________________________

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.

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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