STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0805

)

OPAL FANNIN, N.C., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on September 8, 1993, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: William Frederick Whitson, Senior Attorney Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: William J. Sheaffer, Esquire

609 East Central Boulevard Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent violated Section 468.518(1)(j), Florida Statutes, as alleged in the Administrative Complaint, by treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice, and Section 468.518(1)(g), Florida Statutes, by advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.

PRELIMINARY STATEMENT

On November 12, 1992, Petitioner filed an Administrative Complaint in DPR Case Number 92-08445 against Respondent alleging that she violated Sections 468.519(1)(g) and (j), Florida Statutes. Respondent denied the allegations and requested a formal hearing.

On August 31, 1993, Petitioner filed a Motion to take Official recognition of Sections 468, Part X and 480.033, Florida Statute, Chapters 21L-30 and Chapter 21M-49, Florida Administrative Code, and Orange County Code 25, Art.

1. Petitioner also filed a Motion to Deem Respondent's Admissions admitted as evidence. Both Motions were granted without objection.

   
   

   At the hearing, Petitioner offered eight (8) exhibits with seven (7) exhibits admitted into evidence. One exhibit (marked Petitioner's Exhibit No. Seven (7) prior to the start of the hearing) was withdrawn by Petitioner during the hearing. Petitioner offered the testimony of three witnesses, Joe Stuckey, Specialist for the Board of Medicine, Dietetics and Nutrition Practice Council; Rickie Broach, Investigative Specialist II with DBPR; and Jeannie Huff, DBPR Investigator.

   
   

   Respondent did not personally appear but was represented by counsel who offered two (2) exhibits, both of which were admitted into evidence. Respondent presented no live testimony, but participated in the cross-examination of Petitioner's witnesses.

   
   

   On or about September 13, 1993, a copy of an excerpt (the portion pertaining to Opal Fannin) of the minutes of the Florida Board of Medicine Meeting, February 5-7, 1993, was submitted as a joint (Petitioner and Respondent) exhibit. The transcript of the proceedings was filed on September 17, 1993. Petitioner filed proposed findings of fact and conclusions of law on October 6, 1993. Respondent filed a response to Petitioner's proposed findings on October 14, 1993. My specific rulings on the proposals are contained in the Appendix attached hereto.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Respondent is and has been at all times material hereto a licensed nutrition counselor in the State of Florida, having been issued license number NC 0000143.

      
      

   2. Respondent's last known address is 1901 Blackwood Avenue, Winter Garden, Florida 32787-4601.

      
      

   3. At the time of her application, Respondent did present evidence of education and experience in reflexology, but was certified only as a Nutrition Counselor.

      
      

   4. espondent's license is involuntarily inactive.

      
      

   5. Even through inactive, Respondent is still subject to discipline by the Board of Medicine.

      
      

   6. Respondent possessed an active license as a Nutrition Counselor at the time of the complaint and investigation.

      
      

   7. At all times relevant, Respondent possessed a current Orange County, Florida, occupational license as a reflexologist.

   8. The practice of reflexology does not fall under the Dietetics and Nutritional Practice Act, but rather requires licensure under the Massage Practice Act (Chapter 480, Florida Statutes).

      
      

   9. On or about July 2, 1992, Respondent scheduled reflexology appointments for patients. On that date, Respondent was not a licensed massage therapist and had only a county occupational license to operate a business as a reflexologist. Respondent was not aware of the requirement that she obtain certification as a reflexologist through the Board of Massage.

      
      

   10. Respondent performed reflexology two or three times a month during the period 1991 through July 1992.

       
       

   11. Respondent caused the following business card to be printed: Opal Fannin, Licensed Reflexologist Nutritional Counselor, 1901 Blackwood Avenue, Winter Garden, Florida 32787.

       
       

   12. Respondent caused the following advertisement to appear in the 1991 Southern Bell Yellow Pages: REFLEXOLOGY NUTRITIONIST, Licensed Reflexologist and Nutritionist, Computerized Analysis and Nutritionist Balancing of Your Body, 1901 Blackwood Avenue, Winter Garden.

       
       

   13. At all times material hereto, Respondent failed to obtain licensure from the Board of Massage as a massage therapist.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Section 120.57(1), Florida Statutes.

       
       

   15. Petitioner is the state agency charged with regulating the practice of nutrition counseling pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes, and Chapter 468, Florida Statutes.

       
       

   16. Pursuant to Sections 468.503(1) and 468.507, Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a Nutritional Counselor for violations of Section 468.518(1), Florida Statutes.

       
       

   17. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). In this disciplinary licensing proceeding, Petitioner must prove the alleged violations of Section 468.518(1)(g) and (j), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); See Addington v. Texas, 441 U.S. 426 (1979).

       
       

   18. Section 480.033(3), Florida Statutes, defines the practice of massage as the manipulation of the superficial tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device; or the application to the human body of a chemical or herbal preparation.

       
       

   19. A "grandfather" clause was not adopted when reflexology was included with the Massage Practice Act. (Chapter 480, Florida Statutes).

   20. Rule 21L-30.001, Florida Administrative Code, provides that reflexology is defined as the manipulation of the superficial tissues of the feet, based on the theory that manipulation of body reflex areas or zones can affect other body functions.

       
       

   21. On or about September 25, 1985, the Board of Massage determined the practice of reflexology is within the Massage Practice Act, and amended Rule 21L-30.001 to provide that disciplinary action would be brought against licensees who engaged in the practice of reflexology without a current massage license pursuant to Chapter 480, Florida Statutes. No "grandfather" clause was included.

       
       

   22. Respondent did present evidence of education and experience in reflexology in her application to the Florida Board of Medicine, Dietetics/Nutrition Practice Council. She was then certified by the Council for Licensure as a Nutrition Counselor and required to obey the laws and regulations of that profession. In order to use her knowledge and experience in reflexology, Respondent should also have made application to the Board of Massage for licensure.

       
       

   23. Petitioner has proved, clearly and convincingly, by the evidence and testimony in this cause, that Respondent violated Section 468.518(1)(j), Florida Statutes, by treating or undertaking to treat human ailments by reflexology. This is a treatment other than dietetics and nutrition practice.

       
       

   24. Petitioner has proved, clearly and convincingly, by the evidence and testimony in this cause, that Respondent violated Section 468.518(1)(g), Florida Statutes, by advertising in the yellow pages and by business card, goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content by indicating she was a licensed reflexologist.

       
       

   25. The disciplinary guidelines of the Board of Medicine for Nutritional Counselors found in Rule 21M-50.003, Florida Administrative Code, provides a range of penalties for violations of the provisions of Section 468, Part X, Florida Statutes. The Rule provides in part:

(2) Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Section 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below . . .

(g) False, deceptive (g) From probation or misleading adver- to one year suspen- tising (468.518(1)(g)) sion or denial and

an administrative fine from $250.00 to $1000.00

(j) Treating ailments (j) From one year by means other than suspension or dietetics and denial to revoca-

nutrition practice tion and an

(468.518(1)(j)) administrative fine from $50.00 to

$1000.00

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections

468.518(1)(g) and (j), Florida Statutes. As punishment therefore, it is FURTHER

RECOMMENDED:

1. Respondent be issued a reprimand in which Respondent is ordered to cease and desist from engaging in any activity defined in Chapter 480, Florida Statutes, and Rule 21L-30.001, Florida Administrative Code, dealing with the practice of reflexology, until she obtains the proper licensure.

   
   

2. Respondent shall not advertise, in any manner or medium, that she provides reflexology services until properly licensed to do same.

   
   

3. Respondent shall pay a fine of $1,000.00

   
   

4. Respondent shall be permitted to voluntarily surrender her license as a Nutrition Counselor.

DONE and ENTERED this 18th day of October 1993, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 18th day of October 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-805

The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Accepted in substance: paragraphs 1-12. Rejected as a conclusion of law: paragraph 13.

Respondent's proposed findings of fact.

Respondent did not submit proposed findings of fact, but did submit a response to Petitioner's proposals.

COPIES FURNISHED:

William Frederick Whitson Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801

Dorothy Faircloth Executive Director Board of Medicine Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, Esquire Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-000805

Orders for Case No: 93-000805