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
The Issue The issue for consideration in this hearing is whether the Board of Medicine's proposed amendments to Rules 21M-49.002(6), 21M-50.002(3)(f) and (j), 21M-50.003(1), 21M-50.007(3) and (18), and 21M-50.009(1), F.A.C., are invalid because of being vague and an invalid exercise of delegated legislative authority.
Findings Of Fact At all times pertinent to the issues herein, the Florida Board of Medicine, (Board), was the state agency responsible for the licensing of medical professionals and the regulation of the medical profession in Florida. A sub- agency of the Board is the Dietetics and Nutrition Practice Council, (Council). The Council is the agency which drafted and initially promulgated the proposed rule amendments herein concerned, though the Board is ultimately responsible for the final promulgation of the rules and amendments thereto. The Florida Nutrition Counselors Association is an organization of approximately 150 Florida-licensed health care practitioners. No evidence was produced by either party to indicate how many individuals are licensed as nutrition counselors in this state or how many practitioners of that profession may be substantially affected by the proposed rule amendments. The Council was established in 1989, and since that time has been concerned with licensure issues regarding dietitians, nutritionists and nutrition counselors. Over the intervening years the Council became concerned that some nutrition counselors might be practicing outside the permissible parameters of their specialty and as a result, the Board directed the Council to draft proposed rules designed to insure the proper practice of that profession. Thereafter, workshops were held to solicit public input and collect documents to be used in the drafting of the proposed rules and amendments to existing rules. There is no allegation that the rule-making methodology followed by the Council was either inappropriate or unlawful and it is found that the process followed was lawful. As the drafting process continued, though no members of the Association were represented on the Council, Association members were afforded the opportunity to and did participate and/or observe. Much of the preliminary activity of the Council consisted of surveying the scientific community to identify the prevailing standards for the practice of nutrition. Encompassed within the framework of the National Nutritional Foods Association is a trade association for health food and supplement retailers and nutrition counselors. This organization, known as SoHo, has been involved in the legislative process relating to the practice of nutrition and dietetics in Florida for several years. Representatives of this organization were present during a portion of the rule-making process and were afforded the opportunity to discuss the possible economic impact the proposed rules and amendments would have on its membership. It was determined this effect would be minimal and this determination was made known to Petitioner by letter from counsel for the Board to counsel for Petitioner. In addition, Petitioner was invited to submit input on this issue before a joint session of the Board and Council but failed to do so. Therefore, the aforementioned letter from counsel was adopted as the economic impact statement. Whereas the legislature has recognized that the practice of dietetics and nutrition by unskilled and incompetent practitioners presents a danger to the public health and safety it has not, itself, set any standards for that practice. Instead, it has authorized the Board of Medicine and the Council to adopt rules to implement such standards in furtherance of the legislative purpose to protect the public. In some instances, the proposed rule amendments would prohibit or interfere with the currently existing practices of some nutrition counselors. In that regard, it should be noted that many nutrition counselors were licensed under a grandfather provision without examination or other means of establishing qualification to practice. Nutrition counseling is an emerging profession. Its orientation is to promote the health of people though nutrition. There are, currently, no national organizations for nutrition counselors and only twelve states require them to be licensed. Nutrition counselors, generally, perform an assessment of a client's nutritional condition and, thereafter, suggest foods or food supplements to provide for or rectify any deficiencies identified. Nutrition counselling can also be an educational tool, but the bona fide nutrition counselor does not prescribe items designed to cure conditions. Dietitians make up a much more established profession whose orientation is the delivery of foods, planning menus, institutional food service, recipe development and the quantitative analyses of foods. Having developed out of the home economics programs at university level, they are well organized nationally through the American Dietetic Association, and in Florida through the Florida Dietetics Association. As opposed to nutrition counselors, who perform in a community setting, dieticians work in a more clinical setting. Both are ancillary health professionals who work both with a physician and independently. There are many methods used to perform a nutrition assessment, but for the most part, all include the taking of simple measurements of the client's height, weight, mid-arm circumference, blood serum, albumin and serum transferrin, and a history of the client's diet and life-style. It is common for the nutrition counselor to have the client obtain a blood and urine test through a physician. Some practitioners utilize such procedures as hair analysis, biological ionization, herbology or iridology. All are non-invasive. These latter procedures are not well recognized in the mainstream of nutrition and dietetics, however, and are considered, by the mainstream medical and dietetics professionals, not to be standard tests for nutrition assessments. The major thrust of nutrition counseling is the improvement of nutritional intake and it is entirely appropriate for the nutrition counselor to confer with the client's physician to obtain information about medical conditions and medications being taken, and to seek the physician's assistance by ordering laboratory testing. The term, "nutrition counselor" is but a title. The practice of nutrition counseling is a technique utilized within the parameters of the broader field of nutrition. Both nutritionists and nutrition counselors provide counsel and are bound by appropriate standards for counseling. The proposed amendment to Rule 21M-49.002(6), which outlines those activities prohibited to nutrition counselors refers to such proscribed activities as diagnosis, treatment, operation, prescription for disease, pain, injury, deformity other physical or mental condition. The proposed amendment adopts the practice of medicine definition as outlined in Florida Statutes. Diagnosis is the identification of or the ruling out of specific disease states. Nutrition counselors do not diagnose disease, pain or injury. Identification of nutritional deficiencies and the recommendation of specific foods of food supplements to correct those nutritional deficiencies do not constitute the diagnosis, or treatment prohibited by the proposal. Assessment of physical and mental conditions, however, closely approaches diagnosis which is the sole purview of the physician. If a physician diagnoses a physical condition and identifies the cause thereof, and thereafter refers the patient to a nutrition counselor for development of a dietary plan, the counselor may, within those parameters, work with the client to develop a diet and supplement plan consistent with the physician's diagnosis and recommended treatment. Proposed amendment to Rule 21M-50.002(3), relating to fraudulent, false, deceptive or misleading advertising, prohibits reference to questionable methods of assessment or treatment or treatment which is experimental or without generally accepted scientific validation. As with any other science, experimentation is an acceptable part of research but it must always be conducted only under strictly regulated conditions, and only physicians may carry on patient experimentation. Patient experimentation is not a part of the scope and practice of nutrition counseling as defined by the Dietetics and Nutrition Practice Act. As mentioned previously, some nutrition counselors utilize certain procedures which are not accepted as valid by the more established medical and nutrition communities. These may include hair analysis, iridology, blood ionization and herbology, and have been characterized by some in the scientific community as "questionable methods." "Questionable methods" and "generally accepted scientific validation" are phrases which have a generally accepted meaning within the scientific community. In general, the latter refers to those principles and that pertinent information which has been effectively tested by qualified evaluators against known standards and validated by results found to be routinely consistent and reliable. This is neither difficult to understand or to follow. Proposed Rule amendment 21M-50.007(3) restricts the practice of nutrition counseling to generally accepted scientific principles and current information. To be sure, there is a plethora of information and procedures which exists on the periphery of established science and for which there is a fund of supporting information and a host of advocates. When tested in scientific evaluation against known standards and analyzed statistically for acceptance within the scientific community, this information and these procedures are usually found to be insufficiently supported and generally unaccepted in the better practice of nutrition and dietetics. Proposed Rule 21M-50.007(18) suggests, by the use of the operative word, "should", that nutrition counselors police themselves by upholding their standards for professional practice and by reporting violations to the Council, the Board, and the Department. While this provision is not mandatory, it is expected to be followed. Petitioners object to it as unnecessary and as having the potential for subjecting one practitioner to discipline because of the misconduct of another. As proposed, it is inartful, vague, and, conceivably, unenforceable. Petitioners also object to the provisions of Proposed Rule 21M- 50.009(1) which prohibits the use of instruments, devices or treatments not regularly taught in a recognized college or university. In that regard, most colleges do not treat extensively upon the subject of nutrition counseling which is, to a large extent, ignored by the mainstream medical profession. Most nutrition counseling techniques are taught at workshops and seminars and in apprenticeships. For this reason and because of their belief that the proposed rule does not accurately reflect the current standard of practice in the profession, Petitioners object to it. Little, if any, evidence in support of this position was set forth, however. Proposed Rule 21M-50.009(1) also lists those procedures which are prohibited to the practice of nutrition counseling and which include biological ionization, biomagnetic devices, cytoloxic testing, hair analysis, herbology, homeopathy, iridology, nutropathy, and oxidation/ionization devices or psychotronics-radiation devices. Those in issue here are herbology, iridology, hair analysis and biological ionization. Petitioners have abandoned their challenge to the remainder. Herbology is not an assessment tool but a modality. It comes closest to being classified as current information within the definition of the proposed rules. Iridology, which is an analysis of the human condition through examination of the iris, is considered by the Board to be within the parameters of the practice of medicine. It is non-invasive and has not been shown to cause physical harm. It is an assessment technique but not a diagnostic tool, a cure or treatment. It is designed to show cholesterol and body acid levels, but it is, however, felt to be unproven and bordering on quackery by the mainstream medical profession whether accomplished by a medical doctor or a nutrition counselor. Hair analysis, a procedure utilized by an unknown number of Association members, including its President, involves the analysis of hair samples taken from the client to determine the presence of trace minerals, and as a toxic metal screen. Though used in criminology and by the Environmental Protection Agency to detect toxic metal exposure in environmental enforcement, hair analysis is not mainstream practice and it can be influenced by numerous outside factors, including hair dye and other preparations, the age of the sample, and the like. Hair is considered a tissue sample which, under Florida law, can be submitted to a properly licensed clinical laboratory only by appropriately licensed persons. Nutrition counselors do not fall within this category. Hair analysis is not invasive nor is the gathering of hair for analysis. Most clinical laboratories recognize approximately 2,000 laboratory tests. Hair analysis in not one of them. While there are many licensed clinical laboratories in this state, only eight laboratories, nationwide, do hair analysis. None are in Florida except for laboratories which perform analysis of hair samples for forensic purposes. In biological ionization, used in conjunction with iridology, urine and saliva samples are provided by the client and are measured for ph factor. While this procedure is done by an unknown number of Association members, it is not considered by the medical profession to be an acceptable assessment.
The Issue Whether the Petitioner's application for licensure by endorsement as a Dietitian/Nutritionist should be granted or denied for the reasons stated in the Notice of Intent to Deny dated April 15, 2008.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Council, which serves under the supervision of the Board of Medicine, is the entity responsible for certifying persons for licensure by endorsement as a dietitian/nutritionist. § 468.509, Fla. Stat. (2008)1; Fla. Admin. Code R. 64B8-40.003(1)(a). On or about January 16, 2008, the Council received Ms. Alonso's application for licensure by endorsement as a dietitian/nutritionist pursuant to Section 468.513, Florida Statutes. At the time of her application, Ms. Alonso was a certified nutritionist in the State of Washington, having been issued license number NU00001939 on April 11, 2007. Ms. Alonso is not licensed in the State of Washington as a certified dietitian, nor has she taken a state or national examination for licensure as a dietitian or as a nutritionist. In 1994, Ms. Alonso earned a Bachelor's of Science degree from Cornell University in biochemistry, and, in 2000, she earned a Master's of Science degree from the University of Texas, School of Public Health, in nutrition and immunology. Prior to moving to Florida in early 2008, Ms. Alonso worked as a nutritionist in Washington State. Prior to receiving her certification as a nutritionist in Washington State, she worked as a nutritionist in several clinics under the supervision of medical and naturopathic doctors for approximately four years. During this time, she performed nutritional assessments and developed nutritional programs for the clinics' patients and provided nutritional support for the doctors working in the clinics. Ms. Alonso was licensed pursuant to Section 18.138.030, Revised Code of Washington, which sets forth the requirements for certification as a dietitian and as a nutritionist in the State of Washington. Section 18.138.030, Revised Code of Washington, provides in pertinent part: An applicant applying for certification as a certified dietitian or certified nutritionist shall file a written application on a form or forms provided by the secretary setting forth under affidavit such information as the secretary may require, and proof that the candidate has met qualifications set forth below in subsection (2) or (3) of this section. Any person seeking certification as a "certified dietitian" shall meet the following qualifications: Be eighteen years of age or older; Has satisfactorily completed a major course of study in human nutrition, foods and nutrition, dietetics, or food systems management, and has received a baccalaureate or higher degree from a college or university accredited by the Western association of schools and colleges or a similar accreditation agency or colleges and universities approved by the secretary in rule; Demonstrates evidence of having successfully completed a planned continuous preprofessional experience in dietetic practice of not less than nine hundred hours under the supervision of a certified dietitian or a registered dietitian or demonstrates completion of a coordinated undergraduate program in dietetics, both of which meet the training criteria established by the secretary; Has satisfactorily completed an examination for dietitians administered by a public or private agency or institution recognized by the secretary as qualified to administer the examination; and Has satisfactorily completed courses of continuing education as currently established by the secretary. * * * Any person seeking certification as a "certified nutritionist" shall meet the following qualifications: Possess the qualifications required to be a certified dietitian; or Has received a master's degree or doctorate degree in one of the following subject areas: Human nutrition, nutrition education, foods and nutrition, or public health nutrition from a college or university accredited by the Western association of schools and colleges or a similar accrediting agency or colleges and universities approved by the secretary in rule. The State of Washington has two certifications, one for dietitians and one for nutritionists. Pursuant to Section 18.139.030(4), Revised Code of Washington, a person qualifies to be licensed as a "certified nutritionist" if the person either meets the requirements for certification as a dietitian or has received a master's degree in the enumerated areas of study. Section 468.509, Florida Statutes, provides: Any person desiring to be licensed as a dietitian/nutritionist shall apply to the agency [for Health Care Administration] to take the licensure examination. The agency shall examine any applicant who the board certifies has completed the application form and remitted the application and examination fees specified in s. 468.508 and who: 1. Possesses a baccalaureate or postbaccalaureate degree with a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study, from a school or program accredited, at the time of the applicant's graduation, by the appropriate accrediting agency recognized by the Commission on Recognition of Postsecondary Accreditation and the United States Department of Education; and 2. Has completed a preprofessional experience component of not less than 900 hours or has education or experience determined to be equivalent by the board; or 1. Has an academic degree, from a foreign country, . . . * * * The board shall waive the examination requirement for an applicant who presents evidence satisfactory to the board that the applicant is a registered dietitian. The agency shall license as a dietitian/nutritionist any applicant who has remitted the initial licensure fee and has passed the examination in accordance with this section. In contrast to Washington State, Florida has only one certification for dietitians and nutritionists. Pursuant to Section 468.509, Florida Statutes, a person qualifies to be licensed as a "dietitian/nutritionist" if the person either meets the requirements for certification set forth in Section 468.509(2), Florida Statutes, or is a registered dietitian. The requirements for licensure as a dietitian in Washington State are substantially equivalent to the requirements for certification as a dietitian/nutritionist in Florida. The requirements for certification as a nutritionist in Washington State are not, however, substantially equivalent to the requirements for licensure as a dietitian/nutritionist in Florida, because a person in Washington State can be certified as a nutritionist without meeting the requirements for certification as a dietitian if the person has an advanced academic degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Larisa Alonso failed to satisfy the requirements of Section 468.513(2), Florida Statutes, and denying her application for licensure by endorsement as a dietitian/nutritionist. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2008.
The Issue Whether Respondent failed to timely correct discrepancies noted during the survey of January 31, 1992 and, if so, what penalty is appropriate.
Findings Of Fact During the Annual Survey of Respondent ACLF on January 31, 1992 numerous discrepancies were found and at the exit interview Respondent was notified of these discrepancies and given a time frame in which to correct these discrepancies. In a follow-up inspection on April 29, 1992 more than one month later than Respondent was given to correct the discrepancies, the following deficiencies reported on the January 31, 1992 survey still existed. Residents were not provided the opportunity to plan the menus; Menus were not reviewed by a registered or licensed dietitian on a regular basis; The therapeutic diets provided did not document on the menu the food items which enable residents to comply with their therapeutic diet; and Respondent failed to have an annual nutritional review by a registered or licensed dietitian.
Recommendation RECOMMENDED that Willie Mae Johnson d/b/a Leisure Living be assessed an administrative fine of $250 each for the two violations for a total administrative fine of $500. RECOMMENDED this 3rd day of March, 1993, at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1993. COPIES FURNISHED: Thomas W. Caufman, Senior Attorney Agency for Health Care Administration Office of Licensure and Certification 7827 North Dale Mabry Drive Tampa, Florida 33614 Willie Mae Johnson, Owner Leisure Living 401 S.W. 9th Avenue Mulberry, Florida 33860 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 John Knox Road Tallahassee, Florida 32303
The Issue Whether Respondent, a licensed nutritional counselor, committed the offenses alleged in the administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nutritional counseling pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes, and Chapter 468, Florida Statutes. Respondent was licensed as a nutritional counselor at all times pertinent to this proceeding. Respondent was issued license number NC 0000427 in 1990. At the time of the formal hearing, Respondent’s address was 6661 Royal Palm Boulevard, Margate, Florida 33063-2108. At all times pertinent to this proceeding, C. B. was a female cancer patient of Franciso Bellette, M.D., a physician specializing in the field of oncology. Before Dr. Bellette moved to Florida in 1993, C. B. was treated by another physician in the practice group that Dr. Bellette subsequently joined. Prior to 1993, C. B. had chemotherapy, which she tolerated poorly. In October 1995, Dr. Bellette diagnosed C. B. as having Stage 4 breast cancer with bony metastasis. Although the preferred treatment was chemotherapy, C. B. refused further chemotherapy because of her poor prior experience with chemotherapy. As the alternative treatment, Dr. Bellette prescribed the drug Tamoxifen for C. B., and she began taking that medicine. Tamoxifen has been used to treat cancer patients for several years. There are documented side effects and risks associated with taking the drug. Dr. Bellette was aware of those side effects and risks and explained them to C. B. before she began taking Tamoxifen. It was Dr. Bellette’s opinion that for C. B. the benefits of taking Tamoxifen outweighed the known side effects and risks. In January 1996, C. B. traveled to Mexico to investigate an alternative treatment plan that included special diets. Because of the language barrier, she was not certain she understood the nutritional counseling she had received in Mexico. After she returned from Mexico, C. B. made an appointment with Respondent to discuss her nutritional needs. C. B. and Respondent met only on one occasion in late January or early February 1996. Respondent’s nutritional counseling typically includes three visits. The first visit is typically an informal meeting during which he explains nutritional counseling to the prospective client, which includes a discussion as to the client’s nutritional needs and goals. If the client wants to continue with the other two visits, Respondent prepares and thereafter implements a nutritional plan for the client. C. B. decided that she did not want to pursue the other two visits with Respondent. Consequently, Respondent did not prepare a nutritional assessment of C. B., did not prepare a nutritional plan for C. B., and did not become her nutritional counselor. During his meeting with C. B., Respondent discussed her illness and the fact that she was taking Tamoxifen. C. B. testified in her deposition that Respondent told her that Tamoxifen was a killer drug and that she should stop taking the drug. C. B. also testified that she was sure Respondent had told her to stop taking Tamoxifen. Respondent testified, credibly, that he did not tell C. B. to stop taking Tamoxifen, but that he discussed the drug and its severe side effects with her so she could make an informed decision as to her course of treatment. C. B. was in hospice at the time of her deposition and heavily medicated. C. B. readily conceded that the medication she was on impaired her memory. It is not clear whether C. B. accurately recalled the statements made by Respondent, as opposed to recalling her interpretation of what Respondent had said. This conflict in the evidence is resolved by finding that Respondent discussed with C. B. the severe side effects of Tamoxifen in a manner designed to discourage C. B. from taking the medicine. The testimony of C. B. is insufficient to establish by clear and convincing evidence that Respondent told her to stop taking Tamoxifen. Respondent did not hold himself out as a physician or as a pharmacist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order dismiss the administrative complaint against Respondent. DONE AND ENTERED this 5th day of June, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative 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 this 5th day of June, 1997
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.
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
The Issue The issue is whether Respondent, in the operation of a public food establishment, is guilty of various violations of the law governing such establishments and, if so, what penalty should be imposed.
Findings Of Fact Gigi's Restaurant, LLC, holds Permanent Food Service license 2331011, which authorizes the operation of a public food establishment at 3585 Northeast 207th Street in Aventura, Florida, and expires October 1, 2011. Respondent last renewed its license on September 21, 2010. On January 13, 2010, at 11:29 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. At the time, Respondent's license had expired. The inspector also observed, among other things, the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate-strength dishmachine sanitizer; not-sanitized- properly-after-cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three-compartment sink. The inspector notified Respondent that a reinspection would take place on March 13, 2010, at 11:30 a.m. On April 21, 2010, the inspector performed a reinspection of the public food establishment. At the time, Respondent still had not renewed its license. The inspector observed the recurrence or continuation of the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate- strength dishmachine sanitizer; not-sanitized-properly-after- cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three- compartment sink. The five remaining violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause food-borne illness.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the five violations identified above and revoking the public food establishment license of Respondent. DONE AND ENTERED this 8th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Arner Gigi Gigi’s Cafe 3585 Northeast 207 Street, No.C302 Miami, Florida 33180 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399