The Issue Whether the Respondent violated provisions of Section 400.419(3)(c), Florida Statutes, and Chapter 10A-5, Florida Administrative Code, more specifically alleged in the Administrative Complaint dated April 10, 1992.
Findings Of Fact The Respondent, Sun 'N Lake Towers, is an ACLF located in Sebring, Florida, and is duly licensed for 224 beds. On May 14, 1991, the annual licensure survey of Sun 'N Lake Towers reviewed the facility's records to determine the current census and number of meals per day the facility had contracted to serve to its residents. The amount of non-perishable food that would be required to feed the facility's residents two meals per day for seven days was calculated. The supply of food in storage was deficient for every food group by about 50% of the necessary amount of food. A non-perishable food supply protects the residents in the event of a tornado, hurricane, or other disaster. Some of the residents at Respondent's facility were on physician ordered therapeutic diets. One resident, P.M., was on a diabetic diet, but was served orange juice. Orange juice is high in fructose and is not appropriate for such a diet. Tomato juice would have been appropriate, but it was not observed on hand at the facility. Another resident who was on a diabetic diet received a sugary dessert in violation of the physician's order. Another resident on a diabetic diet, M.F., received only one serving of bread and no milk instead of two servings of each group as ordered by the physician. Failure to comply with a physician ordered diabetic diet could result in very serious health problems for a patient. Resident, E.N., who was on a physician ordered 1200 calorie per day diet, received a 4 to 5 ounce serving of meat instead of the two ounce serving ordered by the physician. The facility served a boxed stuffing which was high in sodium content to six residents who were on physician ordered low sodium diets. The facility had no system in place to ensure that information regarding residents' therapeutic diets was transmitted to the food service staff, and the food service staff had no system in place to substitute a modified menu into the meal pattern when required. The food at Sun 'N Lake Towers is otherwise tasty and served in bountiful amounts. An advertisement for Sun 'N Lake Towers was placed the March 1991 edition of Senior Scene Magazine. The advertisement failed to state whether the facility was affiliated with any religious organization. Sun 'N Lake Towers' more recent advertisement now contains the requisite affirmative disclosure. Although the facility kept resident property in trust, it failed to provide a quarterly statements to the residents. The deficiencies cited following the May 14, 1991 visit were also cited during the licensure survey of April 24, 1990.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of all four citations, and that the Agency for Health Care Administration enter a Final Order imposing a fine of $850.00 ($100 suspended) upon the Respondent, Sun 'N Lake Towers. RECOMMENDED this 25th day of January, 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 25th day of January, 1993.
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaints dated August 31, 2009, and April 19, 2010, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent Tatu was a restaurant located at 1702 West University Avenue, Suite J, Gainesville, Florida 32603, holding Permanent Food Service license number 1102115. Tatu consists of a sushi bar and a restaurant serving Asian food, on the second floor of the UF Plaza directly across the street from the University of Florida campus. It is owned and operated by Chang Bahn. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. On July 8, 2009, Daniel Fulton, a senior inspector with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Fulton observed that cold foods were not being held at their proper temperature. This is a critical violation because foods held out of their proper temperatures for any length of time can grow bacteria that could cause food borne illnesses in persons who eat the food. Mr. Fulton also observed that Respondent’s cold holding equipment was not capable of maintaining potentially hazardous foods at their proper temperature. This is a critical violation because refrigeration equipment must be capable of holding foods below 41 degrees Fahrenheit for the safety of the consuming public. At the conclusion of his inspection, Mr. Fulton prepared and signed an inspection report setting forth the violations he encountered during the inspection. He notified Mr. Bahn’s wife, Suy Bahn, of the nature of the violations and she signed the inspection report. (Mr. Bahn was not present in the restaurant during the July 8, 2009, inspection.) Mr. Fulton informed Ms. Bahn that all of the violations noted in the inspection report would have to be corrected by the following day, July 9, 2009. Mr. Fulton performed a callback inspection at Tatu on July 14, 2009. Mr. Fulton’s callback inspection report noted that the critical violations found on July 8, 2009, had not been corrected. Uncooked fish was found held at temperatures of 45 to 46 degrees Fahrenheit, and the cold holding equipment was still incapable of maintaining food at the proper temperature. Mr. Fulton further observed that Respondent was misrepresenting a food product. In this case, imitation crab was being served in a dish labeled "Crab Delight," rather than under the name "krab" to indicate its ersatz nature. This is a critical violation, not just because of the misrepresentation involved, but because restaurant customers may have allergies to certain foods and therefore need to know exactly what they are eating. Mr. Bahn signed the July 14, 2009, callback inspection report. After the July 14, 2009, callback inspection, Mr. Fulton recommended that an Administrative Complaint be issued because Respondent had not corrected the critical violations found in the July 8, 2009, inspection. This Administrative Complaint was the basis for DOAH Case No. 10-2675. On April 5, 2010, Mr. Fulton performed a food service inspection at Tatu. During this inspection, Mr. Fulton found two critical violations. The first critical violation was that the restaurant was keeping potentially hazardous cold foods at temperatures greater than 41 degrees Fahrenheit. On the cooking line, Mr. Fulton found breading mix held at 66 degrees Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the front counter, seafood was held at 70 degrees Fahrenheit, and Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach- in cooler. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009, and during his callback inspection of July 14, 2009. The second critical violation noted by Mr. Fulton during his April 5, 2010, inspection was that the hand sinks were not accessible for employees’ use at all times. The hand- washing sink was blocked by a waste bucket and a wiping cloth bucket. This is a critical violation because employees are less likely to wash their hands if it is difficult for them to do so. The employees’ failure to wash their hands can lead to contamination of the food and consequently food-borne illnesses in the restaurant’s customers. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009.4/ Mr. Fulton prepared an inspection report. He notified Mr. Bahn of the violations. Mr. Bahn signed the report. Mr. Fulton recommended that an Administrative Complaint be issued in this case because Respondent had not corrected a violation for which it had already been cited within a one-year period. This Administrative Complaint was the basis for DOAH Case No. 10-3295. The Division presented evidence of prior disciplinary action against Respondent. Administrative complaints were filed against Respondent based on inspections conducted on September 26, 2008 and on February 18, 2009. Each of these cases was resolved by a Stipulation and Consent Order in which Respondent neither admitted nor denied the facts alleged in the respective administrative complaint. See Endnote 2, supra.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order imposing an administrative fine of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2010.
The Issue Whether the allegations set forth as count one in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Bistro on Park Avenue (Respondent) are correct, and if so, what penalty should be assessed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a public restaurant located at 348 North Park Avenue, Suite 5, Winter Park, Florida 32789. On December 14, 2012, Dennis Watson, a trained and experienced sanitation and safety specialist employed by the Petitioner, performed a routine inspection of the Respondent, during which Mr. Watson observed various violations of the Food Code. At the conclusion of the routine inspection, Mr. Watson prepared a written report documenting the Food Code violations that he had observed. Before leaving the premises, Mr. Watson discussed his observations with Mr. Boesch and provided him with a copy of the inspection report. According to the inspection report, the violations were to have been corrected by 8:00 a.m., on February 15, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Food Code violations identified during the routine inspection had been resolved. The callback inspection occurred on February 19, 2013. Some of the Food Code violations observed during the routine inspection were again observed during the callback inspection. Between the routine inspection and the callback inspection, the Petitioner amended its rules and began to apply an updated version of the Food Code. In relevant part, both versions of the Food Code identify proper food storage temperatures applicable to potentially hazardous food products. The storage of such products at improper temperatures can result in bacterial or pathogenic contamination of the product and can cause serious illness in humans who consume the contaminated products. Both versions of the Food Code require that certain cold food products be stored at temperatures of 41°F or less. At the time of the routine inspection, the applicable Food Code identified violations of the referenced food temperature standard as "critical" violations. By the time of the callback inspection, the updated Food Code being utilized by the Petitioner identified violations of the food temperature standard as "high priority" violations. According to the report of the routine inspection, Mr. Watson observed that both crème brulee and tiramisu were being held at 44 degrees. According to the report of the callback inspection, Mr. Watson observed that crème brulee was being held at 46 degrees and that butter was being held at 47 degrees. At the time of both inspections, the cited items were stored in a glass door cooler. At the hearing, Mr. Boesch asserted that the temperatures measured by Mr. Watson were not accurate. Mr. Boesch produced the thermometer he used at his restaurant and argued that the thickness of the cited food products was insufficient to permit an accurate determination of their temperatures with his thermometer. Mr. Watson testified that the construction of the thermometer used to measure food temperatures during inspections was superior to that of the thermometer being used by Mr. Boesch. Mr. Watson testified that his thermometer was capable of accurately determining the temperature of food products during the inspection and that he routinely calibrated the thermometer to make certain that it was performing properly. Mr. Watson's testimony and the measurements obtained through his thermometer have been accepted and are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $250 against the Respondent, and requiring that the Respondent complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 4th day of September, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2013.
The Issue The issue is whether Respondent is guilty of the violation described in the Administrative Complaint, and if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509. By rule, it has incorporated by reference the regulations in the federal Food Code. These regulations apply to all public food service establishments. See Fla. Admin. Code R. 61C-1.001(14). Respondent operates a public restaurant (using its corporate name) located at 12318 University Mall Court, Tampa, Florida, and is subject to Petitioner's regulatory jurisdiction. It holds license number NOS3917320 (Permanent Food Service). Rule 61C-1.005(5)(a)-(c) classifies violations of the Food Code as either "high priority," "intermediate," or "basic," essentially reflecting the level of threat to public health posed by the deficiency. A high priority violation is one that poses a direct or significant threat to public health. Id. This type of violation is at issue in this case. Around 12:24 p.m. on June 11, 2014, Ashley Herrmann, a trained and experienced sanitation and safety specialist employed by Petitioner, performed a routine inspection of Respondent's restaurant, during which Ms. Herrmann observed various violations of the Food Code, including a "high priority" violation. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous food must be maintained at a temperature of 41° Fahrenheit or less.2 See rule 3-501.16(A)(2)(a), Food Code. A violation of this regulation is classified a high priority violation because food maintained above that temperature is a major contributor to foodborne illnesses. Ms. Herrmann observed several potentially hazardous food items in the walk-in cooler, including (a) raw meat/ poultry, (b) cooked fruits/vegetables, and (c) cheese/milk/ creamer/other dairy products, that were maintained at a temperature greater than 41° Fahrenheit. See Ex. 2. At the conclusion of her inspection, Ms. Herrmann prepared a written report documenting the Food Code violations observed by her. A copy of the inspection report was given to Javari Moore, an employee who was present at that time, and the violations were explained to him. Also, he was told that the violations must be corrected by 10:30 a.m. the following day, June 12, 2014, and that a call-back inspection would be performed at that time to verify that the violations had been corrected. Around 10:30 a.m. on June 12, 2014, Ms. Herrmann performed a call-back inspection of Respondent's premises. While some violations had been corrected, she observed that the high priority Food Code violations observed during the routine inspection on June 11, 2014, had not been corrected. See Ex. 3. Before leaving, Ms. Herrmann provided a copy of the inspection report to Mr. Moore and discussed the violations with him. The findings contained in the inspection reports were used in the preparation of an Administrative Complaint issued against Respondent. Other than stating that no food had been taken out of the walk-in cooler that morning, Mr. Moore gave no further explanation for the high priority violation.3 There is no evidence that Respondent has been found guilty of a prior offense of this nature.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order finding that Respondent is guilty of one high priority violation, and imposing a fine of $250.00. Such fine shall be due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk. DONE AND ENTERED this 21st day of October, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2014.
The Issue Is Petitioner entitled to be licensed as a nutrition counselor consistent with Section 468.51(3), Florida Statutes (1995)?
Findings Of Fact On June 6, 1995, Petitioner made application with the Dietetics and Nutrition Practice Council to be certified as qualified to act as a nutrition counselor in Florida pursuant to Section 468.51(3), Florida Statutes (1995). On November 14, 1995, Petitioner appeared before the Dietetics and Nutrition Council to support his application. He was questioned by members of the council and requested to provide additional information to support the application. An order was entered on December 18, 1995 by Catherine Christie, Ph.D., R.D., council chair, continuing consideration of Petitioner's application to become a licensed nutrition counselor to allow Petitioner to supplement the application. The order described the council's expectations concerning the nature of the supplementary information. Supplemental information was provided by Petitioner to assist the council in its application review. The supplemental information was considered on February 26, 1996, when the council met. Council members voted to deny the application. On March 18, 1996, a proposed order was entered by the then vice-chair for the council, Clara Lawhead, M.S., R.D., denying the applications and stating the reasons for the denial. The proposed order created the opportunity for the Petitioner to contest the preliminary decision to deny his application for a license to practice as a nutrition counselor. Petitioner took advantage of the opportunity to contest the preliminary decision by filing a petition for formal hearing on April 15, 1996. The hearing ensued. At present Petitioner manages SIDDAH International Import and Export which deals in fragrance products imported for different industries, health food stores, book stores and gift stores. Petitioner has been involved with that business for twenty years. The business is a corporation. Petitioner is the sole shareholder in the corporation. At one time the corporation owned a store in Gainesville, Florida, the Crystal Forrest, which was sold in 1992. While the corporation owned the Crystal Forrest, the corporation marketed the store as a natural gift store. The store sold natural fiber clothing, rocks and crystals, herbs and vitamins, and jewelry. During the period when the store was owned by the corporation, Petitioner was employed in the store. Petitioner holds a massage therapy license issued by the State of Florida, but he does not currently practice massage therapy. Petitioner graduated from Coral Gables High School in Coral Gables, Florida, in 1966. He graduated from New College in Sarasota, Florida, in 1973 with a degree in psychology. While in college Petitioner took a course in human nutrition from a Dr. John Culbertson, who specialized in nutrition and physiology. Petitioner received a masters degree in somatic psychology and the relationship between mind and body from Goddard College in Plainfield, Vermont, in 1976. Petitioner is not presently licensed to practice psychology and has not practiced psychology in the past. Petitioner prepared papers in his undergraduate study related to the relationship of nutrition, psychology and psychiatry. While undergoing his undergraduate training and working with Dr. Culbertson Petitioner assisted Dr. Culbertson in teaching a course called "The Integrated Body". In that course Dr. Culbertson taught nutrition and physiology. Petitioner taught body-mind related subjects. They used Robert Simeon's book on psychosomatic illness in teaching this course. Dr. Culbertson's wife taught anatomy and physiology in the course. Petitioner's graduate degree was obtained through an external degree program accredited by the Northeastern Association of Colleges. While completing his graduate studies Petitioner worked under the supervision of Dr. Dale Townsend from New College involving persons being assisted through the counseling program at New College. Other unnamed professors were responsible for Petitioner's work in art therapy and counseling while obtaining his graduate degree. Petitioner was involved with studies in orthomolecular nutrition when he was a graduate student. The orthomolecular nutrition studies which Petitioner pursued in his graduate work focused on how normal human physiology can affect the mind and, once affected, how supplementing the physiology with nutrients can help to heal the mind. Before obtaining his graduate degree Petitioner had worked as a drug abuse counselor while working to obtain the graduate degree. Petitioner worked in that capacity from 1973 until 1976. In 1976 Petitioner began work with Dr. Bruce Pacetti, a dentist then practicing in Sarasota, Florida. Dr. Pacetti was emphasizing nutrition in treating his patients. Together Petitioner and Dr. Pacetti conducted seminars through Associates for Growth, Inc. The topics for the seminars related to nutritional awareness for optimum health and cooking natural food to improve health. Petitioner explains that the purpose of the nutrition seminars was to educate the public about the values of good nutrition and vitamin supplementation and to dispel myths about nutrition. Petitioner organized the seminars and was one of the speakers. Dr. Pacetti spoke at the seminars, as did also a Ph.D. psychologist. The Ph.D. Psychologist spoke to help motivate people to change their diet habits. Petitioner obtained some referrals from the seminars which led to private nutritional counseling being performed by Petitioner. The details concerning those nutritional counseling sessions were not explained in the hearing. As described in a memorandum directed to the council, Dr. Pacetti recalls that Petitioner worked with Dr. Pacetti running the seminars in 1976 and served as a nutritional assistant in relation to Dr. Pacetti's post as clinician at the Melvin Page, D.D.S. Clinic, St. Petersburg, Florida, in the period 1976-1977. At the clinic, Dr. Pacetti relates that he directly supervised Petitioner, and that Petitioner gathered diet histories from patients, did morphological measurements, charted blood work and advised patients as to diet and use of supplements. Dr. Pacetti writes that Petitioner, as a staff nutritional assistant, received a salary for full time employment. Dr. Pacetti indicates in the correspondence that the Melvin Page Clinic received fees to include Dr. Pacetti's fees and those related to Petitioner's services. Dr. Pacetti in his correspondence indicates that Petitioner was included under his and the clinic's malpractice insurance. Finally, Dr. Pacetti writes to recommend Petitioner as a person careful in his research and dedicated to improving the diets of American citizens, expressing the belief that Petitioner should be licensed as a nutritionist in Florida. The details concerning the nature of the diet histories from patients, the meaning of morphological measurements, explanations about charting of blood work and advice to patients as to diet and supplements were not contained in the Pacetti memorandum. The work which Petitioner did while associated with Dr. Pacetti in the St. Petersburg dental office involved meeting people and going over their diets and supplements and making recommendations. In his role with the Page Dental Clinic Petitioner used blood work that had been done on the patients at the clinic for purposes of charting the calcium level of the patients. This information was correlated to improve the patient's dental health. Petitioner was involved with the measurement of the patient's arms and legs. Petitioner would meet with the patient and go over a specific diet that had been recommended by Dr. Page. The diet recommended the elimination of a lot of refined sugar and sweets from the patient's eating habits. In connection with the elimination of refined sugar, an explanation was made to the patient about how the patient would undertake the tasks of eliminating those items from the diet and how the patient could be motivated to adhere to the Page diet. Petitioner would go over the supplements that the patient was expected to take in this program. Usually there was a specific regime of supplements that each person was given. Often, Petitioner would develop supplementation recommendations for the patient and review those with Dr. Pacetti before advising the patient to take the supplements. When working for Dr. Pacetti, Petitioner might hand reports of blood work to Dr. Pacetti and Dr. Pacetti might tell Petitioner to write up what Petitioner thought the person should have by way of supplementation. Petitioner would write up the suggested supplementation to be given back to Dr. Pacetti for approval. If the supplement was approved Petitioner might meet with the patient and go over the Page Clinic diet which was low in refined carbohydrates, as a means to avoid tooth decay. Petitioner recalls that while working with Dr. Pacetti at the Page Clinic he was paid a salary of $150.00 a week. In 1977, Petitioner moved to Gainesville, Florida, and was attending school and working for Bruce Rappaport, D.C., in the Bruce Rappaport Chiropractic Clinic. Petitioner's position with the clinic was as a clinic nutritionist. In that capacity, Dr. Rappaport would refer patients to Petitioner. Petitioner would evaluate the patient's diet histories and work out specific diet recommendations. Petitioner would go over supplements with the patients and recommend that the patients take the supplements. Dr. Rappaport had supplements available for sale in the chiropractic office or the patients could buy those supplements from a health food store. Petitioner worked for Dr. Rappaport for approximately two years, ending in 1979. As described in a deposition given on December 24, 1996, and through correspondence dated September 18, 1995 and January 17, 1996, Dr. Rappaport outlines Petitioner's employment in Dr. Rappaport's chiropractic office. Dr. Rappaport recalls that Petitioner evaluated the diet histories of patients and helped the patients keep a diet log. Dr. Rappaport recalls that Petitioner recommended that patients change their diet. Dr. Rappaport recalls that Petitioner recommended that patients take nutritional supplements. He recalls that Petitioner helped Dr. Rappaport's office keep track of the supplements that had been supplied through the chiropractic office. Dr. Rappaport recalls that Petitioner made referrals to the doctor for further musculoskeletal problems that had been reported to Petitioner by the patients. As Dr. Rappaport establishes it, Petitioner was in Dr. Rappaport's office several times weekly performing his tasks. As Dr. Rappaport recalls, Petitioner would consult with him concerning recommendations that patients change their diets. Dr. Rappaport recalls that Petitioner was paid directly for evaluating the patients. In the instance where a patient would be seen by Dr. Rappaport, the diet history that was taken would be associated with having the patient keep track, for Petitioner's benefit, of those things that were eaten over a period of three to seven days. Petitioner would look at what the patient's diet consisted of and would ask the patient to list all supplements being taken by the patient, and if caffeine and drugs were being used. Follow-up questions were directed to the patient. For example, did the patient feel more tired in the morning, after breakfast or do you feel more tired in the evening? No equipment would be involved in this consultation in Dr. Rappaport's office that was conducted by Petitioner. The Petitioner did not take the height and weight of the patient, but might ask the patient to give his or her height and weight. Petitioner kept a patient file in a manila folder with the diet history and notes of what had been discussed in the interview. The patient would be asked about the specific complaint that he or she had and what medicines were being taken by the patient. The patient would be asked why he or she was there to see Dr. Rappaport. The patient would be asked what was going on in the patient's life in terms of stress. The counseling session would take 30 to 60 minutes and, on occasion, longer. Petitioner would conduct 5 to 8 sessions a day when at Dr. Rappaport's office. Each individual patient would be seen three to four times over a six week period. In 1979, Petitioner returned to Sarasota, Florida, where he remained for about four years. During that period Petitioner conducted a full time massage practice and, depending on the patient, would let the patient know that Petitioner was available to do nutritional consultation. Approximately one out of five persons who received massage therapy would opt for nutritional counseling sessions for which Petitioner received a separate fee. In 1983 Petitioner returned to Gainesville, Florida, and began devoting considerable time to the management of the SIDDAH Corporation. Commencing in 1983 while working in the Crystal Forrest store Petitioner was responsible for the supervision of telemarketing products sold by the store and a warehouse associated with the business. The store had a manager and one or two employees. The warehouse had a manager in charge of stocking products. Petitioner decided upon the mix of products sold in the store, the presentation of those products and the advertising associated with the products. Petitioner would consult with store clientele concerning nutritional products sold. The consultation was on the basis of referrals from store employees. There was a loft above that store where Petitioner spoke with store customers concerning the nutritional products sold for the most part. Petitioner charged a fee for these consultations which was placed in the cash register for the store under the category "miscellaneous". Petitioner received an overall salary for his work with the corporation, to include all duties for the corporation. While employed by the corporation from 1983 through approximately April 1, 1988, Petitioner devoted 5 to 10 percent of his time to the process of consulting with customers concerning the nutritional products. Petitioner spent from 2 to 4 hours a week dealing with that issue. This entailed a discussion of what Petitioner refers to as a "state of wellness". The customers were interested in specific herbs or vitamins and having assistance in "fine tuning" their diets and accomplishing specific goals. Petitioner would refer customers to professionals in the instance where the customers were "doing not so well". Petitioner gave advice on how to use a nutritional supplements being purchased. For example, he would consult with a person who was a runner about the runner's desire to increase strength or to receive help in maintaining endurance. No records were maintained concerning these consultations. This work was different from the responsibilities which Petitioner had when working for Dr. Rappaport. The difference was that Dr. Rappaport's clinic dealt with people with problems that were sometimes serious. In that setting, Petitioner was working with Dr. Rappaport. Petitioner described the persons he saw in the store as not in ill health, but not in great health either, who were interested in improving their health by using the supplements sold by the store. Therefore, the consultation was with a different kind of client through a different form of consultation. In the store Petitioner worked alone, not in conjunction with a health care professional. When seeing customers at the Crystal Forrest Petitioner would ask the customer about the customer's interest in a particular supplement being sold or what the customer's specific goals were, "health wise." The Petitioner and the customer would discuss the customer's concept of what the customer and what Petitioner thought was available for them in the store and what Petitioner thought was available for them in their diets that might be changed; or in some instances, Petitioner might recommend certain kinds of exercise. Petitioner would try to match the appropriate supplements to meet the life style of the customer. When consulting persons at the Crystal Forrest Petitioner might suggest changes to supplements that were being used by the customer. With the advent of Part X, Dietetics and Nutrition Practice, Chapter 468, Florida Statutes, enacted in 1988, Petitioner did not feel that he was doing enough work in the nutrition field to get involved with that field. Therefore, after April 1, 1988, Petitioner did not see people individually for consultation concerning client nutrition practices. After that time Petitioner would refer persons who needed assistance concerning nutrition to the Chance Chiropractic Clinic. One person whom Petitioner had seen and consulted with concerning nutrition was Brooke Domke. He had seen Ms. Domke in Dr. Rappaport's office when Ms. Domke was a minor. Ms. Domke continued to check with Petitioner throughout her young adulthood. Ms. Domke had been brought to Dr. Rappaport's office because of problems with asthma. On that occasion Petitioner recommended vitamin C, vitamin A and that Ms. Domke be taken off milk products. Beyond this circumstance Petitioner kept in touch with Ms. Domke through April, 1, 1988. As Ms. Domke describes, Petitioner asked her to keep a record of her diet and to use less refined sweets as well as using vitamins C and A and reducing dairy products. In correspondence, Ms. Domke states that she consulted with Petitioner until April 1, 1988, at the Crystal Forrest store where Petitioner sold gifts, body care items and supplements. Over time Petitioner would recommend different forms of vitamin C as they became available, as example, calcium ascorbate. The charge for consultation, as Ms. Domke recalls, was $25.00 or less. Another person whom Petitioner saw and consulted with concerning nutrition was Judy Taylor. She consulted with Petitioner concerning her general health in March 1988. In this consultation, as described in correspondence by Ms. Taylor, Petitioner inquired about her diet and health history and suggested a preventative health care program of high protein and low refined carbohydrates. Further, Petitioner suggested a multiple vitamin/mineral supplement, calcium ascorbate and extra calcium supplementation in view of the existence of osteoporosis in her family. According to the correspondence from Ms. Taylor, Petitioner charged $25.00 or less for his consultations. Other correspondence concerning consultation with Petitioner on nutrition subjects is from Elsie Clay, whom Petitioner saw starting in 1980 in Sarasota, Florida. As Ms. Clay explains, because her doctors had been concerned about osteoporosis, Petitioner recommended calcium supplementation and vitamin C and asked her to keep a record of her diet and recommended more dairy products and less refined sweets. Ms. Clay continued to consult with Petitioner until 1988 at the Crystal Forrest. In her correspondence Ms. Clay indicates that Petitioner recommended different forms of calcium as they became available, such as chelated calcium, and non-acidic forms of vitamin C, such as calcium ascorbate. As Petitioner explains, beyond the time at which he saw Ms. Clay in Sarasota, Ms. Clay would come to Gainesville occasionally and be seen by him. N. Franklin Walters, CPA, PA, is an accountant in Gainesville, Florida, who as of September 21, 1995, had done tax returns for the SIDDAH Corporations in recent years. Mr. Walters identifies SIDDAH as a Florida corporation since 1980, with Petitioner as its sole stockholder. Petitioner is one of several paid employees in the corporation. Mr. Walters identifies the fact that the business opened a store in 1983 in Gainesville, Florida, and kept the store until October 1992, when the retail store was sold. This refers to the Crystal Forrest. Mr. Walters sets out that the Crystal Forrest sold gifts, body care items, herbs, vitamins and books relating to the aforementioned items. Mr. Walters recounts that Petitioner's duties in the store included overseeing the day manager, participating in purchasing, assisting special customers, and until April 1, 1988, offering nutritional advice to customers pertaining to herbs and vitamins carried by the store. After that time, according to Mr. Walters, Petitioner did not specifically recommend items or counsel customers on dietary supplements for a fee. After April 1, 1988, Petitioner has continued doing business in the health food industry. For that reason he obtains a lot of trade journals which have information about health care products, vitamins and minerals. Petitioner has read journals and books and researched articles from various nutritional organizations concerning the topic of nutrition. He also has access to med-line which medical doctors use to research different subjects. With the application is found a list of reference books, magazines and journals which Petitioner had read during the time in which his application was under consideration. That list is found within Joint Exhibit No. 1. With the application is included a letter dated January 16, 1996, from Robin S. Larson, DMD, PA, who practices family dentistry in Gainesville, Florida. She makes reference to information obtained from Petitioner about a sublingual vitamin C test used specifically by dentists. She relates that Petitioner ordered that test and trained her office personnel to administer it. This allowed Dr. Larson to gauge vitamin C tissue concentration in patients with gum problems. As related by Dr. Larson, Petitioner also provided information to her concerning research articles on vitamin C and gum disease. Included with the application is correspondence of January 9, 1996, from Bruce J. Rogers, M.D., who specializes in internal medicine and endocrinology in Gainesville, Florida. In his correspondence Dr. Rogers relates that Petitioner on several occasions has spoken to Dr. Rogers concerning nutritional issues and qualities of nutritional supplements. Dr. Rogers notes that Petitioner is well-read on the current research and subjects that Dr. Rogers has asked Petitioner about. In Dr. Rogers' view Petitioner has adequate understanding of biochemistry to deal with nutritional counseling. In particular, the subjects that have been discussed in greater detail between Dr. Rogers and Petitioner, and for which Petitioner has brought Dr. Rogers copies of current research articles include: (1) Trace Minerals Absorption Throughout the Blood-Brain Barrier (2) Qualities of Melatonin Tablets, including dosages and time-released availability, and macro-molecular absorption in the GI tract. Petitioner had sought the assistance of Elias Sarkis, M.D., a psychiatrist practicing in Gainesville, Florida, in child adolescent and general psychiatry, concerning his desire to submit a grant to the Alternative Medicine Council at the National Institute of Health. With this application is April 7, 1995, correspondence from Dr. Sarkis remarking that Petitioner is doing interesting in-depth reading in nutrition and its interface with psychiatry; that Dr. Sarkis has read the Letter of Intent by Petitioner to the National Institute of Health, Alternative Medicine Division and that Dr. Sarkis finds the letter of intent to be insightful and worth pursuing. Dr. Sarkis writes that he agrees to serve as an advisor for the grant, should the application be approved by the National Institute of Health. Dr. Sarkis also recommends Petitioner as a practicing nutritionist "given his previous experience". Dr. Sarkis does not explain what is meant by Petitioner's previous experience as related in 4the correspondence. Petitioner perceives that dietitians are highly trained to work with specific disease states and with institutional diets. He perceives that persons who have been nutritionists or worked in the health food industry have specifically focused on supplements and minerals more so than diets. Petitioner desires to be a nutrition counselor, not a dietitian. Ms. Lawhead is the nutrition director for the Pasco County Public Health Department in Pasco County, Florida. She has worked in public health for 25 years and in Pasco County since 1979. She has a baccalaureate degree from the University of Florida in clinical and community dietetics and a masters degree in human nutrition from Florida State University. She is currently undertaking post-graduate work toward a doctorate at the College of Public Health in the University of South Florida in the field of public health. She holds a number of certifications and registrations in the field of dietetics. As described, Ms. Lawhead was recognized as an expert in nutrition, nutrition counseling and nutrition education related to informing the public concerning nutrition. As it pertains to Petitioner's application to be licensed pursuant to Section 468.51(3), Florida Statutes, to practice as a nutrition counselor, Ms. Lawhead describes that level of activity which Petitioner must demonstrate to constitute nutrition counseling previous to and on April 1, 1988. This involves the full gamut of knowledge of individual patients, the patient's history, the patient's cultural background, other medical devices, drugs, treatments that the patient is undergoing, family history of the patient, height, weight and any available blood work, as well as explanation of a dietary supplement(s) and its use. Ms. Lawhead's opinion concerning the minimum requirements for nutrition counseling is credited. Petitioner was employed as a practitioner of nutrition counseling during the time that he worked for Drs. Pacetti and Rappaport. At no other time was Petitioner employed as a practitioner of nutrition counseling previous to April 1, 1988, nor was he employed as a practitioner of nutrition counseling on April 1, 1988.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered denying Petitioner's certification to practice nutrition counseling in Florida. DONE and ENTERED this 21st day of February, 1997, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1997. COPIES FURNISHED: Julie Gallagher, Esquire Post Office Box 10948 Tallahassee, FL 32302 Ann Cocheu, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, FL 32399-1050 Marm Harris, Executive Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0192 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32309
