STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA KLONIS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2707

) BOARD OF MEDICINE, DIETETICS ) AND NUTRITION PRACTICE COUNCIL, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held in Naples, Florida, on July 26, 1995, before Robert

1. Meale, Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   The parties were represented at the hearing as follows: For Petitioner: Craig R. Woodward

   Woodward Pires

   Post Office Box One

   Marco Island, Florida 33969

   
   

   For Respondent: Ann Cocheu

   Assistant Attorney General Office of the Attorney General Suite PL01, The Capitol Tallahassee, Florida 32399-1050

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue in this case is whether Petitioner is entitled to licensure as a nutrition counselor.

   
   

   PRELIMINARY STATEMENT

   
   

   By Order filed October 28, 1994, the Dietetics and Nutrition Practice Council of the Board of Medicine denied Petitioner's application for licensure as a nutrition counselor.

   
   

   By Petition and Request for a Formal Administrative Hearing served November 28, 1994, Petitioner requested a formal hearing on its application for licensure as a nutrition counselor.

   
   

   At the hearing, both parties called one witness and admitted into evidence three joint exhibits.

   The transcript was ordered but not filed. By Order entered August 30, 1995, the hearing officer gave the parties until September 14, 1995, to file proposed findings of fact. Both parties timely filed proposed findings of fact, and rulings on the proposed findings are in the appendix.

   
   

   FINDINGS OF FACT

   
   

   1. By undated application, Petitioner requested licensure as a nutrition counselor on the basis of initial employment in Florida on or before April 1, 1988.

      
      

   2. Petitioner was a registered nurse at various times since 1978 and is presently licensed in Florida as a registered nurse.

      
      

   3. Since 1982, she has provided nutrition counseling in Florida. In 1987, she formed a corporation known as Profit by Loss, Inc., d/b/a Diet Center of Marco Island.

      
      

   4. Diet Center is a franchisor of nutritional programs dedicated to weight management. Diet Center supplies franchisees and subfranchisees with products, such as vitamins and prepackaged food, for sale at retail. Petitioner was a subfranchisee of Diet Center.

      
      

   5. On and before April 1, 1988, Petitioner maintained an office out of which she provided nutritional assessment and counseling services to clients, some of whom were referred to her by physicians. The majority of her services have been and are devoted to weight management, although she also provides nutrition counseling to persons suffering from diabetes and, when appropriate, fatigue.

      
      

   6. Drawing on her training as a nurse and subfranchisee, as well as other sources of information, Petitioner typically provided extensive services to each client. She did not sell Diet Center products to each client, and she paid franchise fees only on products sold, not on fees for services. In fact, more than 75 percent of her revenues were derived from providing services, not selling Diet Center products, and the services were available without regard to whether the client purchased Diet Center or other products.

      
      

   7. Typically, Petitioner took from each client an extensive health history and took measurements of the client's height, weight, and body fat composition. She reviewed the client's medications, health status, current eating and exercise habits, and any health problems. If the client were not a referral from a physician and had health problems, Petitioner referred the client to a physician. She discussed the client's health and fitness goals. Before prescribing an individualized nutrition program, Petitioner obtained the approval of a licensed dietician, Ida Laquatra.

      
      

   8. After April 1, 1988, Petitioner continued to conduct her nutritional counseling business in the same fashion until a few months ago, at which time she terminated her Diet Center franchise and renewed her Florida license as a registered nurse.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   10. Section 468.51(3) provides:

       
       

       The board shall certify as qualified any applicant who documents that the applicant was employed as a practitioner of nutrition counseling previous to and on April 1, 1988.

       
       

   11. Section 468.503 supplies the following relevant definitions:

       
       

       1. "Nutrition assessment" means the evaluation of the nutrition needs of individuals or groups, using appropriate data to determine nutrient needs or status and make appropriate nutrition recommendations.

       2. "Nutrition counseling" means advising and assisting individuals or groups on appropriate nutrition intake by integrating information from the nutrition assessment.

          
          

   12. Petitioner is not seeking licensure as a dietician/nutritionist, which requires more demanding qualifications than a nutrition counselor. The sole question here is whether Petitioner was employed as a "practitioner of nutrition counseling" on and before April 1, 1988.

       
       

   13. Respondent is concerned that Petitioner continued to provide nutritional advice after April 1, 1988, under an exemption provided in Section

       468.505 for activities involving the sale of weight management products. Respondent is also concerned that Petitioner's nutrition-counseling experience has been limited to weight management.

       
       

   14. The former concern is misplaced. There is nothing mutually exclusive between the use of an exemption from licensing and the practice of nutrition counseling. In other words, an unlicensed person taking advantage of an exemption might nonetheless be practicing nutrition counseling.

       
       

   15. The second point involves whether Petitioner was practicing nutrition counseling on and before April 1, 1988. Most of her practice was in weight management, although she had other areas of practice as well. But weight management is an important element of nutrition counseling. Respondent's witness could describe the scope of practice of dietician/nutritionists, but not of practice by nutrition counselors, for which Petitioner seeks licensure. This is a less-demanding classification, and it is an area in which Petitioner was practicing on and before April 1, 1988.

RECOMMENDATION

It is

RECOMMENDED that the Dietetics and Nutrition Practice Council enter a final order granting the application of Petitioner for licensure as a nutrition counselor.

ENTERED on September 18, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on September 18, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

All adopted or adopted in substance except 2, which is rejected as subordinate.

Rulings on Respondent's Proposed Findings

All adopted or adopted in substance except 15, which is rejected as legal argument, and 16, which is rejected as unsupported by the appropriate weight of the evidence.

COPIES FURNISHED:

Catherine Christie, Chair Dietetics and Nutrition

Practice Council Northwood Centre

1940 North Monroe St. Tallahassee, FL 32399-0792

Craig R. Woodward Woodward Pires

P. O. Box One

Marco Island, FL 33969

Ann Cocheu, Assistant Attorney General Office of the Attorney General

Suite PL01, The Capitol Tallahassee, FL 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final order in this case concerning agency 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: 95-002707

Orders for Case No: 95-002707