Findings Of Fact At all times material, Respondent, Michael J. Warhola, D.O. (Warhola), was licensed as an osteopathic physician, license number 05 0001256, issued by the State of Florida. At all times material, Warhola was in general practice in Tampa, Florida. A large part of Respondent's practice consisted of patients wishing to lose or control weight. PATIENT CURTIS HANCOCK Between on or about September 25, 1984 and on or about June 10, 1985, Respondent treated patient Curtis Hancock for weight control primarily. On the first visit, a patient history was obtained from Hancock. The patient history was adequate for a weight control patient such as Hancock except that it did not include a detailed record as to the length of time Hancock has experienced the weight problem, what diet medications Hancock had taken, what kind of weight loss program Hancock had been involved in and the history of recent weight loss or gain and diet. On Hancock's first visit, Warhola also had Hancock's blood pressure, weight and pulse taken. Additionally, Hancock's age and height were recorded. Respondent did not listen to (auscultate) Hancock's heart sounds but did, and reviewed, an electrocardiogram. These physical examinations and other testing performed on Hancock on the first visit were inadequate for a patient such as Hancock only in that Warhola did not examine and palpate Hancock's neck (for thyroid abnormalities). One of the tests Warhola had performed on Hancock on September 25, 1984, was a SMAC 26 comprehensive blood test which includes T3, T4 and T7 studies. Those test results and the rest of the examination revealed no abnormalities in Hancock's thyroid function or metabolic function. On or about the first office visit, Respondent provided Hancock with literature about diet. The literature contained a recommendation that the patient abstain from alcohol and sugar intake. But Respondent did not attempt to treat Hancock by diet and exercise alone first. Respondent generally makes the presumption that by the time a patient comes to him for weight control the patient has tried an assortment of diet regimens, possibly supplemented by exercise and over-the-counter diet medications. He presumes that what the patient wants and needs in order to accomplish weight loss or weight control is prescription diet drugs. On the first visit on September 25, 1984, Warhola prescribed and dispensed to Hancock the following drugs: DRUG QUANTITY Multi Vitamin 28 Phentermine 8 mg. 56 Phendimetrazine 35 mg. 56 Promethazine HCL 12.5 mg. 28 On each subsequent office visit Warhola had his office staff take Hancock's blood pressure, weight and pulse rate. At no time during his treatment of Hancock did Respondent listen to Hancock's heart sounds. No additional electrocardiograms of Hancock were taken after the initial visit. Respondent performed no other physical examination of Hancock on any of the subsequent office visits. Between October 23, 1984 and June 10, 1985, Respondent prescribed and dispensed for Hancock the following drugs: DATE MEDICATION QUANTITY 10/23/84 Multi Vitamin 28 Thyroid 1 gr. 28 Ferrous Gluconate 28 Phentermine 30 mg. 112 Phendimetrazine 35 mg. 112 Prcmetharine HCL 12.5 mg. 28 11/20/84 Multi Vitamin 28 Thyroid 1 gr. 28 Ferrous Gluconate 28 Phentermine 30 mg. 112 Phendimetrazine 35 mg. 112 Phentermine 8 mg. 112 Promethazine HCL 12.5 mg. 28 12/11/84 Thyroid 1 gr. 28 Ferrcus Gluconate 28 Phentermine 30 mg. 112 Phendimetrazine 35 mg. 112 Promethazine HCL 12.5 Bran Fiber mg. 28 01/24/85 Multi Vitamin 28 Levo Thyroid 0.1 mg. 28 Ferrcus Gluconate 28 Phentermine 30 mg. 112 Phendimetrazine 35 mg. 112 Promethazine HCL 12.5 mg. 28 Fastamine 112 02/01/85 Multi Vitamin 28 Levo Thyroid 0.1 mg. 28 Ferrous Gluconate 28 Phentermine 30 mg. 112 Phendimetrazine 35 mg. 112 Promethazine HCL 12.5 mg. 28 Fastamine 112 Vistaril 50 mg. 28 03/14/85 Multi Vitamin 56 Levo Thyroid 0.1 mg. 56 Ferrous Gluconate 56 Phentermine 30 mg. 224 Phendimetrazine 35 mg. 224 Promethazine HCL 12.5 mg. 56 Vistaril 50 mg. 56 Hyosophen - 224 (Belladonna Alkaloids w/ Phenobarbital) Hydrochlorothiazide 50 mg. 56 w/Reserpine 0.25 mg. 04/30/85 Multi Vitamin 56 Levo Thyroid 0.1 mg. 56 Ferrous Gluconate 56 Phentermine 30 mg. 224 Phendimetrazine 35 mg. 224 Promethazine HCL 12.5 mg. 56 Vistaril 50 mg. 56 Hyosophen 224 (Belladonna Alkaloids w/ Phenobarbital) Hydrochlorothiazide 50 mg. 56 w/ Reserpine 0.25 mg. 06/10/85 Multi Vitamin 56 Levo Thyroid 0.1 mg. 56 Ferrous Gluconate 56 Phentermine 30 mg. 224 Phendimetrazine 35 mg. 224 Promethazine HCL 12.5 mg. 56 Vistaril 50 mg. 56 Hyosophen 224 (Belladonna Alkaloids w/ Phenobarbital) Hydrochlorothiazide 50 mg. 56 w/ Reserpine 0.25 mg. The labels for the drugs identified in the immediately preceding paragraph did not contain the name of the drugs dispensed. Hancock did not ask, and Respondent did not verbally advise Hancock of, the names of the drugs which Respondent dispensed or caused to be dispensed to Hancock. Phentermine 8 mg. and 30 mg. and phendimetrazine 35 mg. are sympathomimetic amines. Phendimetrazine is a schedule III controlled substance, under Section 893.03, Florida Statutes. Phentermine is a schedule IV controlled substance, under Section 893.03, Florida Statutes. Tolerance to the anorectic affects of both of these drugs usually develops within a few weeks. When this occurs, the recommended dose usually should not be exceeded in an attempt to increase the effect; rather, the drugs should be discontinued. One of the notable contra-indications of both of these drugs is elevated blood pressure (moderate and severe hypertension, any diastolic value of 100 or higher). Manifestations of chronic intoxication with anorectic drugs (like phentermine and phendimetrazine) include marked insomnia, irritability, hyperactivity and personality changes. Promethazine HCL is a sleep medication. Thyroid and Levo Thyroid are both thyroid medications which are indicated for use where hypothyroidism exists. Both drugs are metabolic stimulants given to compensate for decreased thyroid function. If either of these medications is administered to an individual who had a normal thyroid function or euthyroidism, the drugs would cause the individual to experience hyperthyroidism, or an increased metabolic condition, and the possibility of serious side effects. Fastamine is the brand name for a drug containing benzocaine and is used to curb appetite by numbing the stomach. Vistaril is a depressant which can function as an anti-anxiety agent. Hydrochlorothiazide 50 mg. is a diuretic which was dispensed by Respondent in a compound form which also contained Reserpine 0.25 mg. Reserpine is a drug that will cause an initial stimulation, like epinephrine, followed by a secondary effect of depression. Hydrocholorthiazide 50 mg. with reserpine 0.25 mg. is used as a diuretic and an anti-hypertensive agent. It is generally accepted that thyroid medications, such as Thyroid, Levo Thyroid and a drug named Cytomel (which is similar in action to the other thyroid medications), should not be prescribed, dispensed, or ordered with sympathomimetic amines. The combination of thyroid medications and sympathomimetic amines, when dispensed or prescribed to be taken together, can be very dangerous and can potentially result in cardiovascular shock. Unless caused by hypothyroidism, obesity is not an acceptable indication for thyroid hormone therapy. A review of Respondent's records for patient Hancock reveals that between September 25 and December 11, 1984, Hancock lost 12 1/2 pounds. Between January 24 and February 1, 1985, Hancock gained 4 1/2 pounds. Between February 1 and April 30, 1985, Hancock lost 11 1/2 pounds. Between April 30 and June 10, 1985, Hancock gained 6 1/2 pounds. Respondent's records reflect Hancock's starting weight was 213 1/2 pounds. On the date of Hancock's last visit, almost ten months after the patient's first visit, Hancock weighed 200 1/2 pounds with a total weight loss of only 13 pounds. A review of Respondent's records for patient Hancock reveals that Hancock's blood pressure was 120/84 on September 25, 1984; 120/84 on October 23, 1984; 122/80 on November 20, 1984; 120/84 on December 11, 1984; 130/90 on January 24, 1985; 140/100 on February 21, 1985; 150/100 on March 14, 1985; 144/90 on April 30, 1985; and 130/80 on June 10', 1985. In an otherwise healthy adult, any diastolic (the second of the two numbers in a blood pressure reading) value of 90 or greater for an extended period of time is considered mild hypertension. A diastolic value of 100 or greater is considered serious hypertension. Despite the fact that the diastolic value of Hancock's blood pressure readings was 90 or higher between January 24, 1985 and April 30, 1985, Respondent did not reduce or eliminate the number of sympathomimetic amines and thyroid medications dispensed to patient Hancock. Respondent responded to the elevated blood pressure readings found in Hancock by adding an anti-hypertensive agent to the existing regimen of drugs. He hypothesized that the elevated blood pressure was a result of marital problems Hancock told him he was having. On March 14, 1985, April 30, 1985, and June 10, 1985, Respondent dispensed what was supposed to be a two months supply of the above-listed drugs. On April 30, 1985, Hancock returned for more medications after 46 days; and on June 10, 1985, Hancock returned for medications after only 40 days. Nonetheless, Respondent dispensed more medications on each occasion. Respondent's records indicate that on April 30, 1985, a two month supply was dispensed because the Respondent was going on vacation. Respondent told Ms. Gazverde during the course of an interview that if a patient returned earlier than scheduled, refills would be refused until the scheduled visit or proof of loss of medication was provided. But, if this was Respondent's policy, it was not followed in Hancock's case. Respondent inappropriately and excessively dispensed phentermine, phendimetrazine and thyroid medications, including Thyroid and Levo Thyroid, to patient Hancock in that: The phentermine and phendimetrazine were prescribed and dispensed in excessive dosages and for an excessive length of time; The phentermine and phendimetrazine were prescribed and dispensed in combination (and in excessive dosages); Thyroid medications were prescribed although Hancock's thyroid was normal; Thyroid medications were prescribed to be taken in combination with the phentermine and phendimetrazine; Respondent continued to prescribe phentermine, phendimetrozi and thyroid medications to Hancock despite moderate to severe hypertension (140/100 on 2/21/85 and 150/100 on 3/14/85); Respondent twice dispensed more drugs than he had prescribed for Hancock without requiring Hancock to account for the missing drugs; and Respondent made no effort to treat Hancock without drugs as first line of treatment. Respondent failed to practice osteopathic medicine with acceptable levels of care, skill and treatment for the reasons listed in paragraph 23, above, and because Respondent did not examine or palpate Hancock's neck for thyroid abnormalities on any visit and neither did an electrocardiogram nor listened to Hancock's heart sounds on follow-up visits. In addition to the matters set out in the two immediately preceding paragraphs, Respondent's records for patient Hancock were not adequate to justify Respondent's treatment of Hancock in that no information was recorded as to the length of time the patient had experienced a weight problem; what diet medications Hancock had taken; what kind of weight loss program Hancock had been involved in; and a history of recent weight loss or gain and diet. A reasonably prudent osteopathic physician, in obtaining a patient history for weight control purposes, would question the patient as to their normal weight, determine past techniques utilized for weight control (including medication, diet and exercise), and ascertain recent weight history and length of time the weight problem has existed. The information should be in the patient record. Additionally, a reasonably prudent physician, in examining a patient for weight control purposes, would perform a physical examination including, at a minimum, examination and palpation of the neck and auscultation of the heart. Alternatively, an electrocardiogram serves the purpose of auscultation of the heart. Respondent did not examine or palpate patient Hancock's neck. Furthermore, Respondent did not listen to patient Hancock's heart sounds. Respondent did and reviewed an electrocardiogram on Hancock's first visit but not on his follow-up visits. PATIENT HOPE ECHEZABAL Between on or about November 3, 1971 and April 21, 1984, Warhola intermittently treated patient Hope Echezabal for weight control. On Echezabal's first visit, Warhola took an adequate patient history of Echezabal except, like Hancock, the patient history does not record detailed information as to the length of time the patient had experienced a weight problem, what diet medications Echezabal had taken, what kind of weight loss program Echezabal had been involved in, or a history of recent weight loss or gain and diet. The patient history indicated normal menstruation. On Echezabal's first visit to Respondent's office, Respondent performed an inadequate physical examination only in that no pulse rate was taken and Warhola did not examine or palpate the patient's neck. Respondent also did not listen to Echezabal's heart sounds, but Warhola did have an electrocardiogram done on Echezabal. The testing did include testing with an achilleometer, an obsolete thyroid test. All of the testing and physical examination of Echezabal revealed no thyroid or metabolic abnormalities. Like Hancock after her, Echezabal was given diet literature, including a booklet called "Lo-Carbo Diet," and was advised to avoid starches, sugar, and alcoholic beverages. Respondent also discussed Echezabal's diet and eating habits. Echezabal returned to Respondent's office on December 3, 1971, January 12, 1972 and April 7, 1972. As was his practice on follow-up visits, Warhola had his office staff weigh Echezabal and take her blood pressure. Although no additional electrocardiogram was performed, Warhola did not take Echezabal's pulse rate or listen to her heart sounds. In fact, he did no further physical examination of Echezabal at all. He just discussed diet and whether Echezabal was following her diet. After a hiatus of two years, Echezabal went back to Respondent on or about August 20, 1973. In accordance with his practice, Warhola treated Echezabal as he would a new patient since she had not been to his office for over a year. Warhola had Echezabal update her patient history in the same manner in which he did her original patient history. His physical examination and testing also was the same as on the initial visit in 1971. Once again, the examination and testing revealed no thyroid or metabolic abnormalities. Warhola also discussed with the patient her diet and eating habits. Echezabal returned to Respondent's office on November 16, 1973. On this follow-up visit, Warhola had his office staff take Echezabal's blood pressure and weigh her. Otherwise, Warhola did not physically examine Echezabal. Her pulse rate was not taken, there was no additional electrocardiogram, and Respondent did not listen to her heart. Warhola did, however, again discuss Echezabal's diet and eating habits. It is clear from Echezabal's testimony that Respondent's treatment of her before May, 1979, included the use of medications. Echezabal did not ask, and was never advised either verbally or by labeling, of the names of the drugs which were dispensed to her by Respondent. As with all his patients, Respondent documented the drugs dispensed to Echezabal by utilizing medication codes instead of the common name for the drugs. The medication codes were then recorded in the patient charts. Because the medication codes have changed over the years, the identities of the drugs dispensed to Echezabal before May, 1979, are unknown. Echezabal did not return to Respondent's office again until May 29, 1979. Because it had been about 5 1/2 years since Echezabal's last visit, Respondent treated her as a new patient, requiring the same updates to her patient history and having the same examinations and tests performed, including an electrocardiogram. Testing indicated that Echezabal was marginally anemic, and Respondent prescribed and dispensed iron tablets only and told her to return for a follow-up visit. Otherwise, the examination and testing revealed no abnormalities. Echezabal returned for a follow-up visit on June 11, 1979. On that date, Warhola had his office staff take Echezabal's blood pressure and weigh her. Additionally, office staff obtained a hemoglobin and hematocrit count on Echezabal and drew blood for analysis at an outside laboratory. Warhola did not take Echezabal's pulse rate or do another electrocardiogram or listen to her heart sounds. Warhola did no other physical examination of Respondent on June 11, 1979, but only discussed diet and eating habits. On or about June 11, 1979, Respondent dispensed to Echezabal 28 ferrous sulfate 5 gr. tablets, 28 Thyroid 2 gr. tablets, 112 phendimetrazine 35 mg. tablets, 28 Benadryl 50 mg. tablets, and 28 multi vitamin/mineral tablets, with instructions to begin taking the pills on the next day. When Respondent dispensed the above-mentioned drugs on June 11, 1979, Respondent did not have the results of tests which were to be performed by an outside laboratory on blood drawn by office staff. (Respondent had ordered a SMA 15 profile, which includes testing for glucose levels, and a thyroid study done on the blood specimen.) However, Respondent would have contacted patient Echezabal when the results came back the next day if he thought the results contra-indicated any of the medications. On or about June 12, 1979, Respondent received the results of a thyroid study and SMA 15 profile at Patterson Coleman Laboratories. The tests revealed no metabolic abnormalities. The test did reveal a slight abnormality in the T3 value, which was "34". The T3 value measures thyroid uptake and was only marginally below normal limits. In determining whether there is abnormal thyroid function, the "T3" value is only one factor to be considered. In view of the fact that the two other pertinent values, the thyroxine, or T4 value, and the "FTI" value were within normal limits, Echezabal could not properly have been diagnosed as suffering from abnormal thyroid function. Furthermore, it would be inappropriate to prescribe thyroid medication, given the results of the thyroid study done in June 1979. Respondent's records for Echezabal do not document any history of an abnormal thyroid function or any history involving thyroid medications taken by Echezabal prior to 1971. Despite the fact that patient Echezabal revealed no conclusive evidence of an abnormal thyroid function, Respondent failed to discontinue the thyroid medication which he ordered for Echezabal on June 11, 1979. On or about August 2, 1983, Echezabal returned to Respondent's office and was, again, treated like a new patient. Accordingly, Echezabal was asked to update her patient history. Additionally, office staff took Echezabal's blood pressure and pulse, and weighed Echezabal. This was the first occasion on which Echezabal's pulse rate was taken. On August 2, 1983, office staff obtained a hemoglobin and hematocrit count, performed a urinalysis and performed an electrocardiogram on Echezabal. Additionally, office staff drew blood for analysis by an outside laboratory. Finally, Warhola again discussed diet and eating habits with Echezabal. On or about August 2, 1983, Respondent dispensed or caused office staff to dispense to Hope Echezabal Cytomel 50 mg. (which is a thyroid medication similar to Thyroid and Levo Thyroid discussed above), phendimetrazine 35 mg., ferrous sulfate 5 gr. (iron), and Benadryl 50 mg., an antihistamine. Again, Respondent dispensed these medications without waiting for the results of SMA 26 profile which was to be performed on the blood specimen drawn by office staff at outside laboratories. On or about August 3, 1983, Respondent received the results of the SMA 26 which was performed at Central Medical Laboratory, Inc., which included an analysis of thyroid function. The tests revealed completely normal thyroid function. Despite evidence of normal thyroid function, Respondent failed to discontinue the Cytomel 50 mg. which he had prescribed for Echezabal. On or about September 8, 1983, Echezabal returned to Respondent's office. On that date, office staff took Echezabal's blood pressure and pulse. Additionally, office staff weighed Echezabal. Finally, as was his practice, Respondent spoke to Echezabal about her diet and eating habits. Respondent failed to conduct any kind of examination of Echezabal on September 8, 1983. Nor did Warhola do another electrocardiogram. On or about September 8, 1983, Respondent caused office staff to dispense 28 Cytomel 50 mg. tablets, 112 phendimetrazine 35 mg. tablets, 28 Benadryl 50 mg. tablets and 28 multi vitamin/mineral tablets to patient Echezabal. At the time Respondent caused these medications to be dispensed, his records reflected normal thyroid function in Echezabal. On or about April 21, 1984, Echezabal again came to Respondent's office for weight control purposes. On that date, office staff obtained an update in patient history, and obtained the patient's blood pressure, pulse, and weight. Also on that date, office staff obtained hematocrit and hemoglobin levels for the patient, a two hour post prandial blood sugar, and a urinalysis. Echezabal's blood pressure was 130/90 on April 21, 1984. Respondent spoke with Echezabal about her diet and eating habits. Respondent did not examine patient Echezabal at all on April 21, 1984. Nor did Warhola do another electrocardiogram. On or about April 21, 1984, Respondent caused office staff to dispense 28 Hydroreserpine .25 mg. tablets, 28 Levo Thyroid .1 mg. tablets, 56 phentermine 30 mg. tablets, 28 Benadryl 50 mg. tablets, and 28 multi vitamin/mineral tablets to Echezabal with instructions to start taking the pills the next day. At the time Respondent dispensed the above-mentioned drugs, his own records for patient Echezabal revealed normal thyroid function. Hydroreserpine is the brand name for a compound containing a diuretic and reserpine (which has previously been described above). Hydroreserpine is typically given as an anit-hypertensive agent. On or about April 22, 1984, Echezabal began to take the medications dispensed by Respondent on April 21, 1984, in the manner directed by Respondent. Accordingly, Echezabal would have taken 4 tablets by noon on that date. Echezabal should have taken by 10:00 a.m., on April 22, 1984, a green Hydroreserpine .25 mg. tablet (probably before breakfast), a yellow phentermine 30 mg. tablet (probably before breakfast), a yellow Levo Thyroid .1 mg. tablet (probably at 10:00 a.m.) and a white phentermine 30 mg. tablet (at 10:00 am.). After taking her 10:00 a.m. medication, Echezabal experienced a reaction to the medication. Specifically, Echezabal vomited and was hyperventilating. Echezabal rested for a period of time and was later transported to University Community Hospital in Tampa, Florida, by ambulance, where she was treated for a drug overdose. At no time during his treatment of patient Echezabal did Echezabal ask, or did Respondent advise Echezabal of, the names of the drugs which were dispensed by his office staff to Echezabal. Furthermore, the labeling for the substances dispensed to Echezabal did not contain the name of the medications dispensed. When Echezabal arrived at University Community Hospital, neither Echezabal nor her husband, Henry, who drove her to the hospital, knew what drugs Mrs. Echezabal had taken on the morning of April 22, 1984. At the time of admission at University Community Hospital, blood and urine specimens were taken from Echezabal for analysis. A comprehensive drug profile showed no alcohol. A second test performed on gastric blood serum revealed ethanol in the blood serum in the amount of 0.016 GM percent. The amount would be relatively negligible. Respondent inappropriately dispensed medications to patient Echezabal in that: Thyroid medications were prescribed although Echezabal's thyroid was normal; Sympathomimetic amine was prescribed to be taken in combination with thyroid medication; Phentermine was prescribed on April 21, 1984, in excess of maximum dosages; and Respondent made no effort to treat Echezabal without drugs as a first line of treatment (especially when she lost a pound between May 28 and June 11, 1979, without any medication prescription.) Respondent failed to practice osteopathic medicine with acceptable levels of care, skill and treatment for the reasons listed in paragraph 55, above, and because Respondent did not examine or palpate Echezabal's neck for thyroid abnormalities on any visit, neither did an electrocardiogram nor listened to her heart sounds on follow-up visits or on April 21, 1984, and did not take her pulse on some visits. In addition to the matters set out in paragraphs 55 and 56, above, Respondent's records for patient Echezabal were not adequate to justify Respondent's treatment in that: The records do not detail weight control programs the patient had tried, diet medications taken or recent history of weight loss or gain and diet; The records do not justify starting Echezabal at relatively high dosages of phendimetrazine on June 11, 1979 and August 2, 1983; The records do not justify the Benadryl prescriptions; and; The records do not state whether the patient was on a diet or explain why she lost a pound between May 28 and June 11, 1979, without any medication prescription. PATIENT BETH HELLE Between on or about November 8, 1971, and on or about May 4, 1984, Respondent intermittently treated Beth Helle for weight control. On Helle's first visit, Warhola required a patient history which was adequate except it but did not detail the length of time the patient had experienced a weight problem, what diet medications she had taken, what kind of weight loss program she had been involved in or a history of the recent weight loss or gain and diet. It indicated a normal menstrual history. Warhola also performed an inadequate physical examination only in that Warhola did not take Helle's pulse or examine or palpate her neck for thyroid abnormality. He did not listen to her heart sounds, but he took Helle's cardiogram. Warhola also discussed diet with Helle. He told her what foods she could eat and gave her a book dealing with carbohydrate counts in different foods designed to assist the patient in limiting carbohydrate intake. The examination and testing of Helle on November 8, 1971, which included testing with an achilleometer, did not reveal any abnormal thyroid or metabolic function. Helle's patient history revealed hypertension in 1970, but that condition probably related to a pregnancy and miscarriage at that time. On or about November 8, 1971, Respondent caused office staff to dispense medications to Helle. Helle never asked, and Respondent never told Helle, what the medication were. The labels on medication dispensed to Helle (like Echezabal) did not contain the common name of the drug dispensed. In Respondent's records, the medication names are indicated in a code, which has since changed. The names of the medications dispensed by Respondent to Helle before 1984 are unknown. On or about May 12, 1975, Helle returned to Respondent's office for treatment. Since 3 1/2 years had passed, Helle was treated as a new patient. Helle's patient history was updated in the same manner as the original patient history. Again Warhola inadequately examined Helle only in that Helle's pulse rate was not taken, and Respondent did not examine and palpate Helle's neck. Warhola did not listen to her heart sounds, but he did perform an electrocardiogram of Helle among the tests he performed. Again, the examination and tests, which included testing with an achilleometer, revealed no abnormal thyroid or metabolic function. In addition to the examination and testing on May 12, 1975, Warhola again discussed diet with Helle. He had his office staff dispense medications to Helle. Helle did not ask, and Respondent did not verbally advise Helle of, the names of the drugs dispensed. Again, the labels were in code, and identities of the drugs are not now known. On or about June 16, 1975, Helle returned to Respondent's office. On this follow-up visit, Warhola had his office staff take and record Helle's blood pressure and weight. Her pulse was not taken, and no electrocardiogram was made. Warhola did not physically examine Helle and specifically did not listen to her heart sounds or examine or palpate her neck. Warhola again discussed eating habits and diet with Helle and had his office staff dispense medications. Again, Helle did not ask, and was not told, what the medications were, and the medication labeling did not reflect the drug name. The code on the label has been changed, and the identities of the drugs are not now known. Helle returned for another follow-up visit on October 30, 1975. Again, Warhola had his office staff take and record Helle's blood pressure and weight. Her pulse rate was not taken, and no electrocardiogram was made. Warhola did no physical examination and specifically did not listen to Helle's heart sounds or examine or palpate her neck. Respondent again discussed diet and eating habits with Helle. Helle did not return to Warhola's office for treatment until May 4, 1984. Since eight and 1/2 years had elapsed since her last visit, Helle was treated as a new patient the same type of update of her patient history was taken. Warhola also had his office staff take and record Helle's blood pressure, pulse and weight. Blood specimens for analysis at an outside laboratory also were drawn. Warhola did not listen to Helle's heart sounds but did make and review an electrocardiogram. He did not examine or palpate her neck. Finally, Respondent talked with Helle about her diet and eating habits, specifically advising her to avoid fatty foods. On or about May 4, 1984, Respondent caused office staff to dispense 28 trichloromethiazide 4-mg. tablets, 28 Levo Thyroid .1 mg. tablets, 112 phendimetrazine 35 mg. tablets, 112 phentermine 8 mg. tablets, 28 branfiber tablets, and 28 Benadryl 50 mg. tablets. Respondent dispensed these medications without waiting for the analysis by the outside laboratory of blood drawn from Helle on that date. Trichloromethiazide is an oral diuretic and anti- hypertensive agent. On or about May 5, 1984, Respondent received the results of a SMA 26 profile run on the blood specimen obtained from Helle on May 4, 1984. The laboratory results revealed normal thyroid function, normal glucose levels and normal metabolic function. On or about May 8, 1984, Respondent received the results of a TSH profile run on May 4, 1984. The test again revealed normal thyroid function. Respondent's records for patient Helle do not reveal any documentation of a history of abnormal thyroid function even though Helle testified at the formal hearing that she had experienced abnormal thyroid function previously. Proper documentation would include a description of the abnormality (hypothyroidism or hyperthyroidism); a statement as to how long the condition existed; and a description of how the condition was treated. This last factor would be most significant in this case because Respondent dispensed Levo Thyroid although Helle testified that she had previous reactions to another thyroid medication (Cytomel). Respondent's records contain no documentation of any abnormal thyroid function during Respondent's treatment of the patient. None of the medications dispensed by Respondent's office staff on May 4, 1984, were labeled in a manner which would identify the common name of the drug. Respondent inappropriately and excessively prescribed phentermine, phendimetrazine and Levo Thyroid to patient Helle, in that: The phentermine and phendimetrazine were prescribed and dispensed in excessive dosages; The phentermine and phendimetrazine were prescribed and dispensed on May 4, 1984, in combination (and in excessive dosages); Thyroid medication was prescribed on May 4, 1984, although Helle's thyroid was normal, according to information known to Warhola at that time; Thyroid medication was prescribed to be taken in combination with phentermine and phendime- trazine; and Respondent made no effort to treat Helle without drugs as a first line of treatment. Respondent failed to practice osteopathic medicine with acceptable levels of care, skill and treatment for the reasons listed in paragraph 72, above, and because Respondent did not examine or palpate Helle's neck for thyroid abnormalities on any visit, neither did an electrocardiogram nor listened to her heart sounds on two follow-up visits, and did not take her pulse on the first four of her five visits. In addition to the matters set out in paragraphs 72 and 73, above, Respondent's records for patient Helle were not adequate to justify Respondent's treatment in that: The records do not detail weight control programs the patient had tried, diet medications taken or recent history of weight gain or loss and diet; The records do not justify starting Helle at high dosages of phentimetrazine (much less in combination with the other drugs) on May 4, 1984; The records do not justify the Benadryl prescription; and the records do not detail what "swelling always" and "some fluid retention" notations mean, including the part of the body affected, the results of examination and Respondent's diagnosis.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Osteopathic Medical Examiners enter a final order holding Respondent, Michael J. Warhola, D.O., guilty of violating Sections 459.015(n),(q) and (t), Florida Statutes (1985), and suspending his license to practice osteopathic medicine for six months. RECOMMENDED this 4th day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1987.
The Issue The issues in this case are whether Respondent has violated Food Code Rules 3-501.17(B), 3-501.16(A), 3-501.15, and 3-305.11, and, if so, what discipline should be imposed.
Findings Of Fact Mama B.’s is a restaurant located in Orlando, Florida. The Department is the state agency which is charged with the licensing and regulation of public food establishments in Florida pursuant to Section 20.165 and Chapter 509, Florida Statutes. On July 13, 2005, Andrea Piel, an inspector for the Department, went to Mama B.’s to perform a food service inspection. Ms. Piel found that the sandwich cooler located at Mama B.’s was not maintaining potentially hazardous food at 41 degrees Fahrenheit or below. Specifically, she found that the temperature of the ham, turkey, and seafood in the reach-in cooler was 47 degrees Fahrenheit. The temperature of the salami in the reach-in cooler was 50 degrees Fahrenheit, and the temperature of the pepperoni and pastrami stored in the reach-in cooler was 48 degrees Fahrenheit. The temperature of the cheese in the reach-in cooler was 42 degrees Fahrenheit. On the same inspection, Ms. Piel also found that hot foods were not being held at a temperature of at least 135 degrees Fahrenheit. She found the following on the front line: cooked mushrooms at 115 degrees Fahrenheit, pastrami at 112 degrees Fahrenheit, and cooked onions at 130 degrees Fahrenheit. On her inspection on July 13, 2009, Ms. Piel also observed that Mama B.’s was not using proper cooling methods to cool hot food from 135 to 41 degrees Fahrenheit within six hours. Steak was being cooled in deep containers with tight fitting lids. Ms. Piel saw tomatoes being stored less than six inches above the floor. There was ready-to-eat cheese, which had been rewrapped and undated, stored in a cooler. On July 13, 2009, Mama B.’s was given a warning by Ms. Piel, and a call-back inspection was scheduled for July 14, 2009. Ms. Piel went back to Mama B.’s on July 15, 2009, for the call-back inspection. She again observed that tomatoes were being stored about an inch off the ground. There was food being stored in the sandwich cooler at temperatures above 41 degrees Fahrenheit. The cooler contained ham and salami at 48 degrees Fahrenheit; capicola and seafood at 50 degrees Fahrenheit; turkey, cheese, and egg salad at 46 degrees Fahrenheit; and gyro meat at 45 degrees Fahrenheit. On July 15, 2009, Ms. Piel also saw steak and onions, which were being cooled in deep containers with tight fitting lids. She also saw hot pastrami being held at 125 degrees Fahrenheit. Ms. Piel testified that the pastrami being held was not for orders waiting to be filled. Ms. Piel did not explain how she knew that there were no other orders for pastrami sandwiches. Mr. Adamik, an owner of Mama B.’s who was present at the time of the July 15, 2009, inspection, testified that there were several orders for pastrami sandwiches, which were being filled at the time Ms. Piel observed the pastrami. According to Mr. Adamik, the rolls were already placed on the board awaiting the placement of the pastrami, but, because the preparation area was so small, it was impossible to completely prepare more than one pastrami sandwich at a time. Mr. Adamik’s testimony is credited. The pastrami, which Ms. Piel observed, was being used for immediate service in response to consumer orders. The cooler in which the food was being stored above 41 degrees Fahrenheit had been in operation at Mama B.’s since the late 1990’s. The machine cools from beneath and does not also cool from the top as newer models do. After the violations were noted on July 15, 2009, the old cooler was replaced. Mama B.’s had contacted a repairman after the July 13, 2009, inspection, but the cooler could not be repaired so as to make it cool foods at 41 degrees Fahrenheit or less. Mr. Adamik knew that the location of the tomatoes was a violation, but he did not correct it by the July 15, 2009, because he was busy trying to get the cooler repaired. Mr. Adamik had no explanation why the ready-to-eat food, which had been opened at Mama B.’s, did not have appropriate date marks. Violations of Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B) are considered to be critical violations by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mama B.’s violated Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B); imposing a fine of $250 for the violation of Food Code Rule 3-305.11; imposing a fine of $300 for the violation of Food Code Rule 3-501.15; imposing a fine of $500 for the violation of Food Code Rule 3-501.16(A); and imposing a fine of $400 for a violation of Food Code Rule 3-501.17(B). DONE AND ENTERED this 16th day of February, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 16th day of February, 2010.
Findings Of Fact At all times material hereto, the Respondent has been licensed as an ACLF by the Petitioner. During an inspection of Respondent's facility by Loveda Perry, public health nutritionist, on October 29, 1986, Perry observed a large, industrial size can opener which was used during food preparation. The can opener was dirty, and the gears and blade of the opener were filled with food and metal shavings. Perry considered the food to be old since it appeared that the food had built up and caked on the opener. On a revisit to the facility on November 12, 1986, Perry found that the can opener was clean. During an inspection of Respondent's facility on November 9, 1987, Perry again found the can opener was dirty, with built up food deposits and metal shavings on the blade and gears. There was also a build up of old food on the base of the can opener. On a revisit to the facility on March 21, 1988, Perry found that the can opener was clean. Metal shavings and a food build up on a can opener is likely to lead to the build up of bacteria, and can lead to food borne illnesses. According to Respondent's Administrator, it was the policy of the facility to clean the can opener once a week during the time these inspections took place. At the current time, however, employees are instructed to clean the can opener three to five times a day. In order to meet the minimum standards established by the Petitioner for ACLFs, can openers have to be cleaned after each use.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order imposing an administrative penalty against the ACLF license of Respondent in the amount of 325.00. DONE AND ENTERED this 29th day of December, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4755 Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Rulings on the Respondent's Proposed Findings of Fact: The Respondent filed a letter which summarizes testimony resented at hearing. The letter does not present specific proposed rindings of fact, but is generally contrary to Findings of Fact 2 through 5. COPIES FURNISHED: Edward Haman, Esquire Office of Licensure and Certification 7827 North Dale Mabry Tampa, Florida 33614 Delema Rogers, Administrator The Verandah 4301 31st Street South St. Petersburg, Florida 3371 Sam Power, Clerk 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue The issue is whether Petitioner's application for licensure by examination as a dietitian/nutritionist should be granted or denied for the reasons stated in the Corrected Notice of Intent to Deny1/ (CNOI).
Findings Of Fact The Council, which serves under the supervision of the Board of Medicine, is the entity responsible for certifying persons for licensure by examination as a dietitian/nutritionist. § 468.509, Fla. Stat.; Fla. Admin. Code R. 64B8-40.003(1)(a). The requirements for licensure by examination as a dietitian/nutritionist are found in section 468.5093/ and rule 64B8-42.002.4/ Ivy Shivers has worked for the Department of Health for over 24 years in a variety of positions. Since 1997, she has worked in the Medical Quality Assurance (MQA) section. She is currently a regulatory supervisor consultant. Ms. Shivers supervises two MQA employees and has oversight of the administrative processes for the Council, including the application process, Council agenda preparation, licensure maintenance, continuing education activities, and related issues. Neither she nor the two MQA employees she supervises have any authority over any application other than to ensure that the Council has a complete application for its review, consideration, and determination. Ms. Mollan's application was handled in a routine fashion. Once the noted deficiencies were resolved, and Ms. Mollan's application was complete, it was submitted to the Council for its review and determination. Her testimony was credible. Jodee Dorsey, Ph.D., has an extensive educational and professional background in dietetics and nutrition. Dr. Dorsey is a Florida-licensed dietitian/nutritionist, and she is also a registered dietitian. She served on the Council from 2004 through 2009. While on the Council, Dr. Dorsey performed those duties as set forth in the statutes and rules governing the Council. Those duties included reviewing applicants (and applications) for licensure, reviewing requests for temporary permits, establishing fees, adopting rules as necessary,5/ and other responsibilities. Dr. Dorsey was accepted as an expert in dietetics and nutrition, including the educational requirements for licensure in Florida. Several years ago, Ms. Mollan attended Florida Southern College6/ in Lakeland, Florida. Thereafter Ms. Mollan obtained an associate of arts (AA) degree from Valencia Community College, in Orlando, Florida.7/ Her AA was in general education and business courses. In 2008, Ms. Mollan transferred her AA (108 credits) to and enrolled in Kaplan University, Online (KU). Ms. Mollan enrolled in the KU program "XVI Advanced Start Bachelor of Science in Health and Wellness – Nutrition." The KU course catalog reflected that two of the prerequisite requirements for the program included anatomy and physiology I and II. Ms. Mollan did not complete either course at her undergraduate programs, nor did she complete either course while at KU. Ms. Mollan chose KU based on its representation that, once she was finished, she "would have a bachelor's degree in Health and Wellness in their health science college and that's what" she was pursuing. On January 26, 2010, Ms. Mollan earned a "Bachelor of Science" (Degree) from KU. On August 31, 2011, the Council received Ms. Mollan's application for licensure by examination. Her initial application failed to contain all the required information. The Council staff requested the missing information from Ms. Mollan. Once the additional information was received, Ms. Mollan's completed application was placed on the Council agenda. The KU course descriptions provided did not reflect a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study.8/ The KU courses did not specify the requisite dietary or nutritional elements for courses to be deemed equivalent. When asked about specific KU courses she had taken, Ms. Mollan's testimony was frequently couched in phrases of "I believe" it met the requirements, or it was "my understanding" that the courses were aimed specifically at becoming a dietician. Her persuasiveness was diminished greatly by the multiple uses of these equivocal terms. Further, based on her description of one specific course, HW 499 (Bachelors Capstone in Health and Wellness), Ms. Mollan confirmed that she did not make any progress towards any new nutritional or dietary educational goals or objectives in that particular class, but rather "they just took all of the stuff that we had done over the years and put it all together in a neat little package and said this is everything that you've accomplished." Ms. Mollan's course description does not match the course description that was provided in the KU catalog. KU measures its course credits in quarter hours. It was established that, although Ms. Mollan had 40 quarter hours of credit in her major program, not all of those courses met the "major course in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course study" requirement. Additionally, when converted to semester hours, she only had 26.67 semester hours of the requisite course of study. Thus, Ms. Mollan failed to obtain the requisite semester hours or equivalent major course of study hours. At the October 28, 2011, general meeting, the Council was to make a "review of her [Ms. Mollan's] education and experience." Based on that review, the Council unanimously voted to deny the application for licensure by examination "on the basis the course of study was not deemed equivalent as specified in the Section 468.509, Florida Statutes." The degree Ms. Mollan obtained from KU does not reflect a baccalaureate degree with a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, Dietetics and Nutrition Practice Council, enter a final order denying Ms. Mollan's application for licensure by examination as a dietitian/nutritionist in Florida. DONE AND ENTERED this 16th day of July, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 16th day of July, 2012.
The Issue Whether or not Petitioner's license to operate Jennifer's Adult Care should be renewed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jennifer Cason is the owner/operator of Jennifer's Adult Care. Jennifer's Adult Care is an adult congregate living facility (ACLF) situated at 1022 13th Avenue South in St. Petersburg, Florida. Petitioner's ACLF license expired by its terms on February 8, 1989. Petitioner's license renewal application was denied by the Respondent by letter dated May 25, 1989. Petitioner is the subject of a confirmed report of abuse dated October 19, 1988 confirming the exploitation of C.C. a resident in Petitioner's ACLF. Petitioner was advised that she could challenge the confirmed classification if she considered that the classification was inaccurate or that it should otherwise be amended or expunged. Petitioner failed to challenge the report. On October 21, 1988 Respondent imposed a moratorium on admissions at Petitioner's ACLF. The census at that time was eight residents. That moratorium has not been lifted and therefore remains in effect at this time. As of October 2, 1990, Petitioner has not requested an exemption of the confirmed abuse report to be qualified eligible to work with disabled adults or aged persons. Petitioner's ACLF has a history of deficiencies based on surveys dating from its inception. As example, Mrs. Diane Cruz, a human services surveyor specialist who has been employed by Respondent for more than eleven years conducted a survey of Petitioner's ACLF on May 17, 1988. As a result of that survey, the following deficiencies were noted: (a) The staff's time sheets were not posted or available for review; (b) the facility did not provide adequate staff and services appropriate to the needs of the residents, to wit: one resident required catheter care and there was either no staff person or other qualified third party provider available to provide the needed catheter care; (c) the food service staff was not knowledgeable regarding purchasing sufficient quantities of essential food, proper sanitary conditions necessary for safe food preparation and food types that meet the minimum requirements for a regular diet and (d) the staff person responsible for the supervision of self-medication was not trained. The deficiency relating to the lack of staff training and the supervision of self-medication was a repeat deficiency. Petitioner was allowed through June 17, 1988 to comply with the agreed corrective action plans. By July 18, 1988 most of the items cited as deficiencies were corrected however, Petitioner failed to correct two deficiencies relating to admission criteria and resident standards including (a) one resident's health assessment had not been completed more than 60 days prior to admission to the facility and five residents who were admitted to the facility for more than 30 days did not have a health assessment on file. Both of these deficiencies were corrected on October 5, 1988. Petitioner was also cited for certain deficiencies in the area of the physical plant in that (a) there was an inoperable ceiling light in Room 2; (b) there was no floor under the tub in the first floor corridor bath; (c) there were no non-slip safety devices in the tub of the upstairs corridor bath; (d) there was a hole in the ceiling at the south end of the first floor corridor and (e) the corners of the paneling in the first floor sitting room were broken off. Petitioner was allowed through June 17, 1988 to correct these deficiencies. As of July 18, items (a), (b), and (c) were corrected, however, items (d) and (e) remained uncorrected and were not in compliance until October 5, 1988. John C. Morton is Respondent's human services program director. He has been employed by the agency in excess of 11 years having served in his current position for approximately 3 1/2 years. As part of Morton's duties, he reviews survey reports, schedule surveys and respond to complaints received regarding ACLFs. Morton is familiar with Petitioner's facility from his review of survey findings and staff discussions. Morton prepared a deficiency report dated October 20, 1988 issued to Petitioner based on information he received from Respondent's office of adult protective services regarding a resident that Petitioner left in sole charge of Petitioner's ACLF. The resident that was left in charge was not trained to care for the residents of Petitioner's ACLF. As a result of that report, Morton cited Petitioner for failing to provide at least one staff member within the facility at all times; failure to provide sufficient staff to meet the needs of residents and leaving a resident in sole charge of other residents. The moratorium on admissions was issued effective October 21, 1988, based on that report. Mary Cook is employed by Respondent as a public health nutrition consultant. Ms. Cook has been so employed in excess of three years. She is familiar with Petitioner's facility having surveyed it on several occasions during the last three years. On January 23, 1989, Ms. Cook conducted a follow-up survey to determine whether Petitioner was in compliance with the moratorium. Following her review of the staffing patterns as listed on work schedules provided her, Petitioner listed only one staff person to work for the entire day on Sunday. However, when Ms. Cook arrived at the facility, two staff members were present. Upon inquiry, Ms. Cook was able to determine that the staff person who was present but who was not listed as working according to the schedule, also indicated that she was on duty at another area ACLF, Anita's Personal Care. Ms. Cook also participated in a survey conducted at Petitioner's facility on April 6 and 14, 1989. As a result of that survey, Petitioner was cited with deficiencies of minimum staffing standards based on the following: Several residents were being utilized as staff members to provide services to other residents including transportation, housekeeping and personal services; the facility did not have trained staff present at the facility necessary to supervise the administration of medication; (c) insulin was injected into one resident by a staff member who is not licensed to administer such medications; and (d) staff did not consistently document the residents deviation from normal food intake. Petitioner acknowledged receipt of FPSS Report No. 88-075890. Petitioner also admitted that she did not send a written request to contest the confirmed report nor has she sought an exemption to be qualified to work with disabled adults or aged persons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's renewal application for licensure as an adult congregate living facility and cancel Petitioner's conditional license for that facility. DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida. Copies furnished to: Paula M. Kandel, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, FL 33614 William P. Murphy, Esquire 1500 Morgan Street Tampa, FL 33602 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990.
Findings Of Fact Respondent, John L. Viscelli, operates a twenty-five bed adult congregate living facility under the name of South Moor Retirement Home at 1722- 26 Madison Street, Hollywood, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. Viscelli serves as administrator of the facility. On or about March 14, 1986, Martha M. Perez, then an HRS nutritional consultant, conducted a routine annual inspection of respondent's facility in the presence of the facility's cook/manager, John Logan. The inspection focused on the facility's food service section which consisted of a kitchen area and an adjoining dining room. It was Perez' purpose to review required documentation which would show if the facility was in compliance with certain requirements of Chapter 10A-5, Florida Administrative Code (1987). Perez first requested documentation to demonstrate that all food service personnel had received proper orientation, training and supervision. This type of documentation is normally kept in the personnel files of the employees, and insures that such employees have been properly trained in such duties as preparing food, controlling the portions served, preparing a menu and using proper hygiene. No such documentation was on file for any employee as required by Rule 10A-5.020(1)(b), Florida Administrative Code (1987). Perez next asked for documentation to verify that "food service was coordinated with other services" as required by the same rule. This type of documentation is normally found in a "staffing plan" and is required whenever an employee is involved in more than one facility service, including food. Its purpose is to assure that no cross-contamination occurs when an employee comes from another work area to the food service area. Again, no such records were produced. Perez then inspected the kitchen area facilities to determine if all "duties were being performed in a safe and sanitary manner" as required by the same rule. She detected numerous violations of Chapter 10D-13, Florida Administrative Code (1987), which governs this type of facility as well as commercial food establishments. For example, she found food improperly stored in the refrigerator, no thermometer on the refrigerator and a torn gasket on the refrigerator. She also noted such deficiencies as greasy and soiled pots and pans, glasses being carried by employees with their fingers inside the glasses, a cat in the kitchen area, and dirty and moldy plastic wares. All constituted a violation of Chapter 10D-13 standards. Perez next asked to see the facility's standardized recipes but was told there were none. These recipes must show such things as the foods involved, method of preparation, total yield in portion size, and the quantities necessary to meet the facility's requirements. The recipes are required by Rule 10A-5.020(1)(b), Florida Administrative Code (1987). The facility was also unable to provide documentation showing that appropriate substitutes of food with comparable nutritive value were planned and offered when a resident refused food, and that food adapted to the food habits, preferences and physical abilities of residents was being served. Such documentation is required by the same rule. Collectively, the above deficiencies constituted two Class III violations, or violations which indirectly or potentially threatened the physical or emotional health, safety and security of the residents. During the same visit, Perez explained and discussed all such deficiencies with Logan. She also told Logan that such deficiencies would have to be corrected by a date certain and that a repeat inspection would occur within the next few months to verify if corrections had been made. Perez thereafter prepared a typed report known as a "Notification of Deficiencies" which detailed the findings of her inspection. A copy of same was mailed to Viscelli on an undisclosed date. At hearing, Viscelli acknowledged receiving the same. According to the Notice, Viscelli had until May 4, 1986 in which to correct all deficiencies. A follow-up visit was made by Perez in the presence of Logan on July 7, 1986. On that visit, she found that most of the previously cited deficiencies had not been corrected. More specifically, she found numerous Chapter 10D-13 deficiencies in the kitchen area which indicated that the duties were not being performed in a safe and sanitary manner. She noted further a lack of standardized recipes. There was also no coordination of food service duties with other services and a lack of documentation to show that food service personnel received orientation, training and supervision. Perez again discussed these violations with Logan and told him that a further inspection would be made. On September 10, 1986 Perez visited respondent's facility for a third time. She found essentially the same deficiencies that had been noted in her two prior inspections. On January 7, 1987 Mildred Hipsman, an HRS clinical dietician, made a full survey inspection of respondent's facility. She found the same violations that Perez had noted during her three visits in 1986. These deficiencies were discussed at length with Logan, who was present during the inspection. Some nine months later, HRS issued the administrative complaint which triggered this proceeding. Viscelli acknowledged that he was aware of the cited deficiencies. He spoke with Perez on several occasions in 1986 in an attempt to learn what type of documentation he was required to have. However, even at the time of hearing, his "standardized" recipes did not comply with HRS rules. Viscelli stated that, because of the facility's small size, he could not afford a full-time dietician to advise him on how to prepare certain documentation. He also suggested that some of the rule requirements were not realistic given the size of his facility. Both he and his wife pointed out that, despite the lack of standardized menus, all residents are well-fed. Viscelli offered no explanation for the other deficiencies cited by HRS inspectors.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of two Class III violations and that he be assessed a $500 civil fine for each violation, to be paid within thirty days after the date of the final order entered in this matter. DONE AND ORDERED this 14th day of January, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1988. COPIES FURNISHED: Leonard T. Helfand, Esquire 5190 Northwest 167th Street Miami, Florida 33014 John L. Viscelli 1722-26 Madison Street Hollywood, Florida 33020 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
