CASTRO v. DEPARTMENT OF HEALTH (2025)

When an administrative agency's action will determine a party's substantial interests within the executive branch, and there is a disputed-fact question material to that determination, Florida's Administrative Procedure Act (“APA”) empowers an administrative law judge (“ALJ”)—located within the independent Division of Administrative Hearings (“DOAH”)—to conduct an evidentiary hearing to resolve that dispute. See generally §§ 120.569, 120.57(1), Fla. Stat. The agency then is statutorily bound by the ALJ's factual findings unless, upon its “review of the entire record,” it determines that the findings “were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” § 120.57(1)(l), Fla. Stat. The issue we must address is to what extent an agency can rely on the just-quoted exception to reject an ALJ's factual finding—particularly when the agency action is license-revocation and the agency's proof-burden is clear and convincing evidence. Because we find that the Board of Massage Therapy's rejection of the ALJ's ultimate fact conclusion was the product of its improperly reweighing the evidence, we set aside the order revoking Raul Castro's license.

I

A

The Department of Health sought to discipline Castro's license to practice massage therapy based on allegations of sexual misconduct under section 480.0485, Florida Statutes (as well as administrative rule 64B7-26.010(1) and (3)). The supposed misconduct involved two of Castro's patients, E.V. and M.C.R. The two women worked with Castro at Shin Wellness, a chiropractic treatment business, and both alleged that Castro inappropriately touched them while giving them massages. M.C.R. additionally alleged that Castro propositioned her for an affair at the end of the massage in question.

Castro contested the allegations. He demanded and received a formal hearing before an ALJ. At the hearing, the department presented its case by calling M.C.R. to testify live and by submitting E.V.’s video deposition. The department also submitted the deposition transcript of Wendy Gallego, who owned Shin Wellness and in whom M.C.R. had confided about the alleged incident with Castro. Castro testified for himself, and he also called a forensic psychologist to testify.

Following the formal hearing, the ALJ issued a recommended order. In his findings of fact, the ALJ first described his doubt about the accuracy of E.V.’s recollections, calling some of her account “inexplicable.” He also found the “discrepancies in E.V.’s and [Castro's] testimony concerning the behavior of each [to be] so great as to render the entire alleged incident as having occurred in parallel universes.” And the ALJ additionally noted how the opinion of Castro's expert further called into question the reliability of E.V.’s evidence. The ALJ concluded that the department “failed to prove, by clear and convincing evidence, that [Castro] acted inappropriately when massaging E.V.”

The ALJ, in the next paragraph, contrasted E.V.’s testimony with M.C.R.’s testimony. According to the ALJ, M.C.R. “was a more compelling witness for the” department. “She was articulate, confident in her testimony, and, because she was a chiropractor, exhibited an understanding of the body and how it responds to massage at an expert level.” Still, like with E.V.’s testimony, there were discrepancies between M.C.R.’s testimony and Castro's about the alleged incident between them, which the ALJ described in his findings. The ALJ highlighted one portion of M.C.R.’s testimony that directly conflicted with Castro's version of the same incident, a conflict that created “substantial doubt” for him. The ALJ further noted how M.C.R. “could not recall how soon after the massage she said anything” to anyone—though she did testify that she reported the incident to Gallego at some point. According to the ALJ, there was credible evidence “that no action was taken against [Castro] by his employer, the Department, or anyone else at that time, as a result of” M.C.R.’s report of the incident. Indeed, M.C.R. “never heard anything from the Department about an action against [Castro] until ․ after the incident involving E.V. was reported”—which, of course, the ALJ found not to be credible.

Add to this Gallego's admitted deposition testimony, in which she stated she “had no recollection of having been advised of any inappropriate touching.” Moreover, from what Gallego apparently did recall, M.C.R. had reported that Castro “wanted to meet her outside the office ‘to go to a hotel or something like this,’ ” but Gallego could not say whether this proposition occurred during the massage or elsewhere in the office. The ALJ noted that both M.C.R.’s lack of memory and the fact that the department did “not even call[ ] upon [her] to testify” in person “substantially reduce her credibility as a witness in support of M.C.R.’s testimony.”

In paragraph ninety-six of the recommended order—which has become the central feature of this appeal—the ALJ stated the following:

The lack of corroborating evidence from Dr. Gallego, who had supposedly been told of the incident by M.C.R., due to her memory fails at the time of her deposition, compounded by the discrepancies in how M.C.R. described, versus how Respondent described, his manner of performing massages on her, make the evidence against Respondent less than clear and convincing. Therefore, the Department has failed to meet its burden of proving that Respondent violated his duty as a massage therapist.

The ALJ continued by highlighting M.C.R.’s and Castro's versions of a discussion between them—during the alleged massage incident—about a dream Castro had. His version characterized the dream as a reference to the two of them realizing their professional dreams—something they previously had discussed; her interpretation was that it sought a sexual liaison. This conflict took M.C.R.’s testimonial account “well beyond the clear and convincing standard required to prove any wrongdoing by” Castro. The ALJ recommended that Castro “be allowed to continue as a licensed massage therapist.”

B

After the ALJ issued his recommended order, the department asked the board to return the order to DOAH so the ALJ could add credibility determinations regarding M.C.R. and Castro. The board granted the request. The ALJ then amended the recommended order, but only to add paragraphs explaining why the “remand ․ for a rewrite” was “not appropriate.” He noted that the original recommended order “made significant factual findings” already, findings that led to his conclusion that M.C.R.’s testimony alone “did not prove by clear and convincing evidence” that Castro did what the department alleged. As an aside, the ALJ remarked that Castro did not bear the burden to prove by the same standard “that he did not commit the alleged improper touching of M.C.R.,” which would be improper burden shifting in this “professional licensure disciplinary case[ ].”

The department next turned back to the board and argued that the ALJ's ultimate factual finding in paragraph ninety-six of the recommended order departed from the essential requirements of the law—relying on section 120.57(1)(l), Florida Statutes, quoted above, as the basis for modification. According to the department, there were two legal failings. First, the department highlighted the ALJ's apparent reliance on the “lack of corroborating evidence from Dr. Gallego” to conclude that the department failed to meet its burden, despite the ALJ's having found M.C.R.’s testimony to be “clear, distinctly remembered, direct and weighty, and lacking in confusion as to the facts at issue.” This, explained the department, violated section 120.81(4)(a), Florida Statutes—a provision stating that, in a professional licensure disciplinary proceeding that involves sexual misconduct allegations, the “testimony of the victim ․ need not be corroborated.” Second, the department asserted the ALJ improperly relied on the conflict between M.C.R.’s testimony and Castro's testimony to conclude it failed to meet its burden. The department, in turn, asked that the board modify paragraph ninety-six and issue a final order finding that Castro's alleged sexual misconduct had been sufficiently proven. Additionally, in reliance on that modification, the department urged the board to modify the ALJ's recommended disposition to reflect revocation of Castro's license.

Following a hearing, the board granted the department's exception as to paragraph ninety-six, accepting both the department's stated legal reasons for doing so. The board additionally observed that the ALJ found M.C.R. to be highly credible but failed to make any finding as to Castro's credibility—thereby undercutting the ALJ's conclusion, based on a conflict in the evidence, that the department did not meet its burden. The final order contained the following revised paragraph ninety-six:

While noting the lack of corroborating evidence from Dr. Gallego, and M.C.R.’s memory fails at the time of her deposition, the discrepancies in how M.C.R. described, versus how Respondent described his manner of performing massages on her, and the inconsistencies regarding the dream, nevertheless, Petitioner proved by clear and convincing evidence that Respondent engaged in sexual misconduct.

Based on this modified paragraph, the board's final order revoked Castro's license. This timely appeal followed.

II

Initially, we recall what this court said previously about the “essential requirements” provision of section 120.57(1)(l). The provision “authorizes an agency to test the procedural regularity of the proceedings before the hearing officer,” but not “to reevaluate the quantity and quality of the evidence beyond a determination of whether the evidence is competent and substantial.” Brogan v. Carter, 671 So. 2d 822, 823 (Fla. 1st DCA 1996). This court went on in Brogan to determine that a commission misapplied the statute when it overrode the hearing officer's findings based on its own assessment that they were not supported by clear and convincing evidence. Id. In the opinion, the Brogan Court observed, in setting aside the final order, that the commission “was without authority to determine whether the evidence presented in support of the administrative complaint was of sufficient quantity and quality to constitute clear and convincing evidence.” Id. So, if the hearing officer has “properly admitted the evidence and applied the correct burden of proof,” an agency can reject a factual finding “only if there was no competent substantial evidence to support it.” Id. (emphasis supplied). This principle governs here.

Indeed, this principle has firm roots in the APA. The supreme court has highlighted that the “modern APA” guarantees access to hearing officers as independent fact-finders “in the formulation of particular sensitive administrative decisions.” Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029, 1040 (Fla. 2001) (quoting State ex rel. Dep't of Gen. Servs. v. Willis, 344 So. 2d 580, 590 (Fla. 1st DCA 1977)). This guarantee provides a check against agency action where a citizen's substantial right is at stake. But this check can be effective only if the agency leaves to the hearing officer the role of weighing the evidence, assessing the credibility of witnesses, resolving conflicts in the evidence, drawing permissible inferences from the evidence, and reaching ultimate factual findings based on the evidence presented. See Heifetz v. Dep't of Bus. Regul., Div. of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). The agency cannot later “interpret the evidence” for itself “to fit its desired ultimate conclusion,” which would defeat the purpose of having an independent hearing officer. Id.

The protection provided by an independent fact-finder is especially apt when a licensee's livelihood is at stake, like it was for Castro. The supreme court has held that “the revocation of a professional license is of sufficient gravity and magnitude to warrant a [greater] standard of proof”: “clear and convincing proof of substantial causes justifying the forfeiture” by the licensee of his “right to the privilege” the license provides. Ferris v. Turlington, 510 So. 2d 292, 294–95 (Fla. 1987) (quoting Reid v. Fla. Real Est. Comm'n, 188 So. 2d 846, 851 (Fla. 2d DCA 1966)). “In a case where the proceedings implicate the loss of livelihood, [this] elevated standard is necessary to protect the rights and interests of the accused.” Id. at 295. And this ultimate fact question—whether a licensee has “deviat[ed] from [the] standard of conduct”—is “clearly within the realm of the hearing officer's fact-finding discretion.” Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985); see also Strickland v. Fla. A & M Univ., 799 So. 2d 276, 278 (Fla. 1st DCA 2001) (noting that “the weighing of evidence and judging of the credibility of witnesses by the Administrative Law Judge are solely the prerogative of the Administrative Law Judge as finder of fact”).

For the board, the only question was whether the ALJ's ultimate finding in that paragraph had “no competent substantial evidence to support it.” Brogan, 671 So. 2d at 823. This assessment is a straightforward, objective one. Cf. Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981), aff'd sub nom. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (noting distinction between “[t]he weight and the sufficiency of evidence”—the latter being “a test of adequacy” and the former being more “subjective”). If M.C.R. had been the only witness testifying, but the ALJ found that the department had not met its burden—despite the ALJ's assessing her to testimony to be “clear, distinctly remembered, direct and weighty, and lacking in confusion as to the facts at issue”—the board would have been justified in rejecting the ALJ's ultimate finding, since corroboration is not required in this type of proceeding and that ultimate finding would otherwise have been wholly unsupported by the record. Cf. § 120.81(4)(a), Fla. Stat.

Contrariwise, if “there [was] any theory or principle of law which would support” the ALJ's ultimate factual conclusion, the board would have no choice but to adopt it. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995). This is where the board went astray. Rather than simply determine whether the evidentiary conflict identified by the ALJ appeared in the record and whether the ALJ resolved that conflict under the correct burden of proof, the board went much further. It impermissibly examined the ALJ's assessment of M.C.R.’s credibility and concluded that her testimony alone should have been enough to satisfy the department's higher burden of proof—ignoring the fact that Castro also testified. Castro gave an account of the incident, under oath, that conflicted with M.C.R.’s account of it, and the ALJ did not expressly reject Castro's testimony as being uncredible. The record evidence supported the ALJ's determination there was a conflict in testimony—in other words, there was a “theory” to support the ALJ's conclusion as to the facts. The board did not have the authority to assess for itself whether the clear-and-convincing evidentiary burden had been met and render a final order based on its assessment rather than the ALJ's.

There functionally was no way the board could have done that anyway. The conflict in credible testimony—between two witnesses appearing live before the ALJ—could be resolved only by the ALJ. See Heifetz, 475 So. 2d at 1281 (explaining that when “the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other”). Again, “[i]t is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.” Id. Only the ALJ—who was present and able to observe the witnesses—could decide how to assign respective weight to the conflicting accounts and conclude whether the department had met its burden of proof. See id. at 1282 (noting that the question whether professional misconduct had been sufficiently proven is an “ultimate finding[ ] of fact clearly within the realm of the hearing officer's fact-finding discretion”); cf. In re Zimmerman's Est., 84 So. 2d 560, 561 (Fla. 1956) (noting that it was “[t]hrough [the fact-finder's] direct contact with the case” that “he was in a position to carry in his own mind the continuity of events as they unfolded before him on the witness stand”).

In granting the department's exception to paragraph ninety-six, the board invaded the ALJ's exclusive, evidence-weighing province. Provided the ALJ applies the correct burden of proof, how the ALJ applies that burden is personal to him and is not subject to reevaluation by the board. The burden speaks to the effect all the evidence, taken together, has on the factfinder's mind. When license revocation is at stake, the heightened burden “adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.” Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (emphasis supplied). The department's burden was to present evidence of “such weight that it produce[d] in the mind of the [ALJ] a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 139 So. 3d 869, 872–73 (Fla. 2014) (quoting In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (emphases supplied)).

The ALJ expressly weighed the conflicting testimony under the proper burden of proof and identified a testimonial conflict supported by the record, so it was incumbent on the board to “resist th[e] temptation” to overturn the ALJ's ultimate fact conclusions simply because it would “have reached an opposite conclusion.” Heifetz, 475 So. 2d at 1282. Upon his hearing and observing the witnesses who testified in person, and considering the other evidence submitted, the ALJ clearly had some hesitancy about concluding that Castro engaged in the alleged professional misconduct. The board, at that point, had no capability—no authority—to second-guess the subjective impact the department's case may or may not ultimately have had on the ALJ.

That, in the end, is the main purpose behind having an independent ALJ hear the evidence on which significant agency action might turn, especially when someone's livelihood is at stake. The APA placed the ALJ between the department—which sought to take Castro's license—and Castro—who vigorously denied any misconduct. The department had the opportunity to convince the ALJ—through its own evidence and by undermining Castro's—of the misconduct it claimed justified license revocation. It failed, as the ALJ explained, and there was support for that explanation in the record. The board's final order to the contrary infringed the ALJ's statutory role and was rendered in error. Cf. § 120.68(7)(c)–(e), Fla. Stat. On remand, the board must enter the ALJ's recommended final order.

Set Aside and Remanded with instructions.

Tanenbaum, J.

Ray and Nordby, JJ., concur.