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
Findings Of Fact The hearing proceeded and testimony was taken from Dr. Pillot, Mr. Bayard, and Mr. Brown regarding the composition and organization of the classified non-instructional employees of the school system. There are approximately 900 employees in the county's classified service who are all potential members of the employer group. This total number will be reduced because of lack of funds. Column A below shows the breakdown of employees by general job classification; Column B shows the number of employees after reductions are made. All figures taken from Exhibit 2. A B Secretarial/Clerical 174 167 Food Service 157 157 Custodial/Delivery 200 159 Maintenance 75 67 Teachers' Aides 12 1/ Data Processing 12 12 Transportation 93 2/ 93 There are 716 employees in the aforestated classifications. Approximately 525 employees would be encompassed in the group sought by the Petitioner. The clericals, teachers' adies, and data processing personnel total 191 employees. The Intervenor seeks to represent all 716, however, a unit composed solely of clericals would represent roughly 27 percent of the total. The figures used above are not adjusted for employees who are managerial, confidential, or "supervisory". ORGANIZATION The complete and detailed organization of the school system is set out in Exhibit 20, however, the system is generally organized as follows: | SCHOOL BOARD | | | | |Superintendent | | Superintendent | | | | | | Staff's | | | | | | | | Associate | | Director | | Associate | |Superintendent | | Data | | Superintendent | | Business | | Processing | | Instruction | | | | | | | | | | | | | | | | |Director | |Director | |Director | |Coord.| |Coord.| |School | |Transpor-| |Facilit- | | Finance | | Food | |Purch-| |Prin- | | tation | | ies | | | | Serv.| | asing| | cipals| | | | | | | | | | | | | | | | | | | | Bus | | Food | | Head | |Teachers'| |Clerical| |Drivers| |Service| |Custodian| | Aides | | Staff | | | |Manager| | | | | | | | | | | | | | | | | The system is basically broken into two portions, one dealing directly with educational services and the other with support services. The Data Processing Unit reports directly to the superintendent and performs work for both education and support. The support services branch contains the staff directors and administration for transportation, maintenance, food services, finance and purchasing. However, bus drivers from transportation, custodians from facilities, and food service employees are under the direction, directly or indirectly, of the principal of the school to which they are assigned. Principals are also responsible for the supervision, directly or indirectly, of the clerical staff and teachers' aides assigned to their school. JOB CLASSIFICATIONS AND DUTIES Secretarial and clerical personnel are found throughout the school system's organization, at various levels of the administrative staff and at the schools. On the staff they perform regular office clerical duties and at schools they perform bookkeeping, secretarial, maintain records of registration and attendance, and operate switchboards. There were at the time of hearing 174 such positions, however, a reduction of 8 secretarial positions in the central office was programmed. Note the stipulation by the parties and the positions expressed by the parties concerning exclusion of various secretarial positions at p. 398, Vol. II of Transcript. In brief this would exclude the superintendent's two secretaries, the secretaries of the two associate superintendents and the assistant superintendents. There were differences of opinion regarding whether the secretaries to the principals should be excluded. Based upon the testimony of Mr. Brown, who is a principal, it would appear that the duties of the principal's secretary are not clerical. According to his testimony, his secretary is solely in charge of specific administrative functions such as athletic ticket sales, registration and eligibility of athletes, etc. It would appear that she has broad powers and discretion in performing these tasks under the general supervision of the principal. Based on his testimony, a principal's secretary is more than a typist, and performs the functions of am administrative assistant to the principal administering specific programs under his direction. DATA PROCESSING There are 12 Data Processing employees. They perform various functions directly relating to the programming, operation, and analysis of the data processing function. The unit is under the control of a director, however, he reports to the superintendent as opposed to the associate superintendent for Business. Although the parties generally would exclude the other directors as managerial, they did not expressly agree to the exclusion of the director of Data Processing. The Hearing Officer cannot see any substantial difference in function which would warrant treating this position differently from the other directors. Because he reports directly to the superintendent, he actually holds a higher position in the system than other directors. The Data Processing Unit is located at the central office. TRANSPORTATION The Transportation Division is a part of the business branch, and is physically located adjacent to the central office. This division is responsible for school bus transportation and employs 116 drivers of which 93 are employed by tie system solely as drivers. There are 23 drivers who are also employed in some alternate capacity by the school system. The division is responsible for route planning and driver assignments. Drivers work approximately five hours a day and may be assigned two to three routes for different schools. However, while driving a particular route they are responsible to the principal of that school. In that respect the principal has effective powers of discipline through the Director of Transportation. In the director's office there are am assistant director, route coordinator, and assistant route coordinator for south county. There was mention of a chief mechanic who assigned work on the buses, however, there was no testimony relative to a mechanical section although the superintendent indicated that school system employees did perform the maintenance. P. 72, Vol. I. FACILITIES DEPARTMENT This is the largest department having approximately 250 employees. The department consists of the Planning, Inspection, Maintenance, Signal Repair, and Custodial Sections. The Planning Section consists of an architect, who is excluded from the unit by the parties, and two draftsmen. The draftsmen have the necessary training or experience to perform engineering drafting. They were sought by Petitioner and Intervenor for inclusion in the proposed unit. The Inspection Section is actually one inspector who inspects all construction for compliance with specifications and applicable codes. The parties stipulated to his exclusion. The Signal Repair Section consists of the supervisor, who was excluded by stipulation, and 7-9 repairmen who worked on communications equipment, office machine repair, and audio visual equipment. The section is divided into signal and office machine and audio visual repair subsections. The repairmen are not interchanged between the subsections. MAINTENANCE SECTION This section has the most complex organization and varied functions. It is supervised by the supervisor of maintenance. It is divided into three subsections: mechanical, structural and south county. Each subsection is under the direction of a supervising foreman. All of the aforementioned positions are excluded by stipulation of the parties. Mechanical Subsection has 15-18 employees who work in one of the three trade arena found in the subsection: plumbing, electrical and air conditioning. Each trade area has a working foreman. A locksmith, who is a skilled worker, is normally assigned to carpentry. Grounds, which was formerly a separate section, is now a subsection and the working foreman in charge of grounds does the work formerly done by the supervising foreman of grounds, and the same job performed by the other supervising foremen but he receives a lower salary rate. The Petitioner and Intervenor would not stipulate to his exclusion. There are 8-10 skilled and semiskilled workers in grounds. There are no specific job titles in grounds. The South County Section employs 8-10 persons. This is a separate suborganization with one administrative secretary. There are no working foremen. The employees represent the various skills found in the headquarters sections, performing all maintenance functions on school facilities in South Sarasota County. The shop facility is supervised by the shop foremen who supervises 3-4 skilled and semiskilled employees who work on automobiles, welding, and steel fabrication. There are 5-6 school mechanics who perform general repairs and are on the Facilities Division payroll but who rotate around to the various schools and work directly for the principals. They are assigned duties by and report to the principal of the school at which they are working. These employees have carpentry backgrounds. CUSTODIAL SECTION This section is comprised of supervisor, who is excluded by stipulation by the parties, 6-7 roving custodians, and about 175 custodians who are assigned directly to one of the 28 county schools. At each school, the head custodian supervises the custodians assigned at that school. The head custodian receives a higher salary. Although the head custodian does assign work, has the authority to effectively recommend discipline, and evaluates those under him, he also performs custodial functions. The Petitioner and Intervenor would both include the head custodians within the proposed unit. TEACHERS' AIDES Teachers' aides dare not sides to teachers in the truest sense, but perform various duties as assigned by the principal of the school to which they are assigned. These duties may range from clerical to library assistants to hall and bus monitors. They are rated by the principals for whom they work. These positions are apparently funded for a school term and the number authorized may vary; however, a principal may also elect to convert teacher positions into teacher aide positions in order to obtain a greater total number of positions. The number of teacher aides is dependent, therefore, in part on how much money is available for such positions and how many positions are converted by principals. There were no usable estimates of how many teacher aides would be employed in 1975-76. However, since the school year has begun at this time, this would be a valid area for staff inquiry to supplement the record. CENTRAL ADMINISTRATIVE OFFICE The Central Administrative Office of the school system is composed of the following sections or offices and personnel: Superintendent's Office Superintendent 2 Secretaries 2 Associate Superintendents 2 Secretaries Personnel Office Coordinator of Personnel Assistant Coordinator 5 Secretaries Coordinator of Planning Coordinator Secretary Federal Project Coordinator Coordinator Secretary Vocational Adult Education Assistant Superintendent Secretaries Evaluations Coordinator Coordinator Secretary Test Control Clerk Pupil Services Coordinator Coordinator Secretary 4-5 Clerks Media Coordinator Audio Visual Supervisor Clerks Book Processing Department 6 Clerks Although those functional organizations differ somewhat from those depicted in Exhibit 20, they are included to indicate primarily the distribution and functions of clerical personnel within the central office. It should be noted that all of the proposed reductions in clerical staff were to occur at the central office, where 8 positions were to be eliminated. The parties would exclude nonclassified employees which would exclude the various coordinators. FOOD SERVICE Food Service Coordinator This is a staff position within the superintendent's office staff which consists of the coordinator and assistants who are charged with coordination of purchasing and bookkeeping. The coordinator has no direct control supervision over food service personnel who work at schools. At each school there is a food service manager and in some instances, an assistant manager, whose duties are to supervise the food program at that school. The manager is responsible for the financial management, assignment of duties, and has effective disciplinary control of the food service workers at the school. The assistant manager has essentially the same duties when the manager is not present. Because there are several schools without kitchens, food must he brought in for students. These are satellite operations, and have a satellite manager whose duties are similar but not as complex as a manager's duties because there are no cooking facilities. The Petitioner would exclude all three of the foregoing positions, while the Intervenor would include these positions. The School Board has no position regarding these positions. It would appear from the authority vested in the managers that they are solely responsible for the program at their school but report to the principal. The assistant managers and satellite managers have essentially the same duties, authority, and functions. The food service workers work directly for tie food service manager and either cook or prepare food, serve food, or clean up the food preparation and service areas of the cafeteria. They are assisted to 50150 degree by custodial personnel in cleaning duties. There ore approximately 157 food service workers. FINANCE DIVISION Coordinator or Director is responsible for the internal audit functions. He is assisted by several bookkeepers. In addition there is the manger of investments, the payroll office and several special project bookkeepers. PURCHASING DIVISION The coordinator or director of Purchasing is responsible for ordering and warehousing equipment, materials, and supplies for the school system. He is assisted by an assistant who is a working foreman, 3-4 secretary-bookkeepers, a warehouse manager, and several warehousemen. COMMUNITY OF INTEREST In addition to the organization of the school system and the duties of the various personnel discussed above, the following factors also bear on the community of interest of the employees. Clearly all the full time appointed classified employees have the same fringe benefits regarding holidays, retirement, insurance, sick and annual leave. All salaries are established by the same procedure, starting with a study by the staff, a proposal from the superintendent's office to the School Board, and concluding with board amendment, if necessary, and final approval. The five salary schedules in effect are all keyed to a base of the basic instructional salary. Some employees are paid more and some less than starting teachers but that salary range is the base from which non-instructional salaries are developed. Separate salary schedules exist for secretarial-clerical, supervisory, maintenance, custodial, and data processing personnel. The hours worked by various personnel differ. Secretarial-clerical and data processing personnel work 371/2 hours per week, while all other personnel work 40 hours per week. All members of classified service have the same basic right of employment regarding grievances and appeals of personnel action. This report respectfully submitted this 22nd day of January, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is whether Petitioner is entitled to licensure as a nutrition counselor.
Findings Of Fact By undated application, Petitioner requested licensure as a nutrition counselor on the basis of initial employment in Florida on or before April 1, 1988. Petitioner was a registered nurse at various times since 1978 and is presently licensed in Florida as a registered nurse. Since 1982, she has provided nutrition counseling in Florida. In 1987, she formed a corporation known as Profit by Loss, Inc., d/b/a Diet Center of Marco Island. Diet Center is a franchisor of nutritional programs dedicated to weight management. Diet Center supplies franchisees and subfranchisees with products, such as vitamins and prepackaged food, for sale at retail. Petitioner was a subfranchisee of Diet Center. On and before April 1, 1988, Petitioner maintained an office out of which she provided nutritional assessment and counseling services to clients, some of whom were referred to her by physicians. The majority of her services have been and are devoted to weight management, although she also provides nutrition counseling to persons suffering from diabetes and, when appropriate, fatigue. Drawing on her training as a nurse and subfranchisee, as well as other sources of information, Petitioner typically provided extensive services to each client. She did not sell Diet Center products to each client, and she paid franchise fees only on products sold, not on fees for services. In fact, more than 75 percent of her revenues were derived from providing services, not selling Diet Center products, and the services were available without regard to whether the client purchased Diet Center or other products. Typically, Petitioner took from each client an extensive health history and took measurements of the client's height, weight, and body fat composition. She reviewed the client's medications, health status, current eating and exercise habits, and any health problems. If the client were not a referral from a physician and had health problems, Petitioner referred the client to a physician. She discussed the client's health and fitness goals. Before prescribing an individualized nutrition program, Petitioner obtained the approval of a licensed dietician, Ida Laquatra. After April 1, 1988, Petitioner continued to conduct her nutritional counseling business in the same fashion until a few months ago, at which time she terminated her Diet Center franchise and renewed her Florida license as a registered nurse.
Recommendation It is RECOMMENDED that the Dietetics and Nutrition Practice Council enter a final order granting the application of Petitioner for licensure as a nutrition counselor. ENTERED on September 18, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on September 18, 1995. APPENDIX Rulings on Petitioner's Proposed Findings All adopted or adopted in substance except 2, which is rejected as subordinate. Rulings on Respondent's Proposed Findings All adopted or adopted in substance except 15, which is rejected as legal argument, and 16, which is rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Catherine Christie, Chair Dietetics and Nutrition Practice Council Northwood Centre 1940 North Monroe St. Tallahassee, FL 32399-0792 Craig R. Woodward Woodward Pires P. O. Box One Marco Island, FL 33969 Ann Cocheu, Assistant Attorney General Office of the Attorney General Suite PL01, The Capitol Tallahassee, FL 32399-1050
