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
Findings Of Fact Petitioners operate an adult congregate living facility, meeting the definition set forth in Part II of Chapter 400, Florida Statutes, for such a facility. The facility is known as "Florida Happiness" and is located at 174 N.W. Second Avenue, Homestead, Florida. On February 22, 1988, Respondent notified Petitioners that their application for increased capacity and application for license renewal were denied due to multiple and repeated violations of minimum standards governing the operation of such facilities. Certain violations with regard to Petitioners' facility were discovered during the course of inspections conducted by Respondent's employees in January, April and August of 1987. Some of the violations found in January, 1987, were related to food service requirements and were uncorrected by Petitioners at the time of subsequent visits by Respondent employees in April and August of that year. The noted deficiencies were determined by Respondent to have been corrected as the result of another survey conducted on October 23, 1987, but Respondent's subsequent inspections conducted on January 11, 15 and 19, 1988, revealed some of those violations were again in existence. Among the violations found were: Facility income and expense records were not available for review. Also, resident contracts did not contain a refund policy addressing disposition of resident prepayments in the event of transfer of ownership of Petitioners' facility, closing of the facility or discharge of a resident. Petitioners did not provide evidence demonstrating that food service personnel received orientation, training or supervision in regard to their duties, or that such duties were performed in a safe and sanitary manner. Evidence also was not provided that the food service personnel participated in required in service education or possessed requisite knowledge of food and dietary requirements. With regard to therapeutic diets, no evidence existed that documentation of meal patterns, including types and amounts to be served, were properly filed, or that diets were served as ordered. Petitioners did not demonstrate that regular diets were planned or served to meet the nutritional needs of residents in accordance with current recommended dietary allowances. Existing menus did not depict realistic portion amounts or document availability of basic food groups. Menus presented did not show that the food served supplied sufficient calories or quantities. There was no documentation that dietary allowances were met by offering a variety of foods adapted to the food habits, preferences and physical abilities of residents. Petitioners made no showing that substitute foods with comparable nutritive value were planned and offered to residents who refused the normal fare. Menus were not dated and planned one week in advance. The required one week's supply of emergency food and water was not maintained at the facility. The fire alarm system was found to be inoperative and laundry rooms did not have self closing doors. Live roaches were found on kitchen shelves, thermometers in the refrigeration facilities of the kitchen were not functioning correctly, generally refrigeration facilities were soiled and roach infestations were evident. Pots and pans evidenced poor sanitation in that particles of foreign matter were found adhered to many of the containers. Written schedules for cleaning of dietary equipment were not in evidence or supplied to Respondent inspectors. Repeated food service sanitary code violations were corroborated by a Dade County Health Department inspector who found consistent problems with roaches, cleanliness and refrigeration thermometer equipment malfunctions at Petitioners' facility from later 1986 through the beginning of 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' application for increased capacity and relicensure. DONE AND ENTERED this 27th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1880 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS. 1.-2. Addressed in findings 1 and 2. 3.-5. Rejected, not supported by the greater weight of the evidence. RESPONDENT'S PROPOSED FINDINGS. 1.-2. Addressed in findings 1 and 2. Addressed in finding 3. Addressed in finding 4. Addressed in finding 3. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services North Tower, Room 526 401 North West Second Avenue Miami, Florida 33128 S. Skip Taylor, Esquire 239 North East 20th Street Miami, Florida 33137 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several statutes and rules governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact Respondent Latin America Cafeteria, Inc. ("Cafeteria") is a licensed food service establishment. As such, Cafeteria is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants (the "Division"). On three occasions——February 11, 2005; February 15, 2005; and March 21, 2005——an inspector for the Division named Jorge Gandolff inspected a restaurant located at 2940 Coral Way in Miami, Florida, which establishment was operated by Cafeteria. During each visit, Mr. Gandolff noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. As of March 21, 2004, the following deficiencies subsisted: (1) Ready-to-eat, potentially hazardous food had been held more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(A)i; (2) The reach-in freezer door was not durable under normal use conditions, in violation of Food Code Rule 4-201.11; (3) The walk-in cooler door was in poor repair, in violation of Food Code Rule 4-501.11; (4) The gaskets in the walk-in door were in poor repair, also in violation of Food Code Rule 4-501.11; (5) There was no chemical test kit available for persons using chemical sanitizer at three compartment sinks, in violation of Food Code Rule 4-302.14; (6) There was a missing vacuum breaker on the hose bibb at the cookline, in violation of Food Code Rule 5-203.14; (7) Walls in the dishwashing area were soiled with accumulated debris, in violation of Florida Administrative Code Rule 61C-1.004(6); (8) Lights in the rear area of the kitchen lacked the proper shields, sleeve coatings, or covers in violation of Food Code Rule 6-202.11; and (9) Although four or more employees were engaged in food preparation, there was no currently certified food service manager on duty, in violation of Florida Administrative Code Rule 61C-4.023(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding Cafeteria guilty in accordance with the foregoing Recommended Order; (b) ordering Cafeteria to pay an administrative penalty in the amount of $3,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days after the filing of the final order with the agency clerk; and (c) directing Cafeteria to send an appropriate principal to an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 2nd day of November, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2005.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against it.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a public food service establishment, Cups & Cones Yogurt, located in Lake Worth, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a public food service establishment license (license number 60-12633-R) authorizing it to operate Cups & Cones Yogurt. On July 31, 2001, Addie Alice Manulis, an inspector with Petitioner, conducted an inspection of the premises of Cups & Cones Yogurt. Her inspection revealed, among other things, that: the establishment did not have a food service manager certified by Petitioner1 (which is a critical violation because of the important public health-related function that certified food managers play in supervising and training employees in food protection and handling); there was no documentation on the premises establishing that employees had received required food service training (which is a critical violation because such training helps to prevent the spread of food-borne illnesses); the exit sign at the rear emergency exit was not illuminated; and the establishment had 12 seats, notwithstanding that its licensed capacity was ten and it had only one restroom. During her July 31, 2001, inspection, Ms. Manulis issued and served on Respondent a written warning in which she advised Respondent that the conditions described above constituted violations of the law and that if these violations were not remedied by September 4, 2001, administrative penalties would be imposed against Respondent. Ms. Manulis had previously visited Cups & Cones Yogurt in early April of 2001, to inspect the establishment. Following that visit, she provided Respondent with a written "comments sheet," on which she wrote, among other things, the following: Proof of food employee training not available. . . . Note- Food manager card for Mohammed Chowdhurry expires 5/13/01.2 All managers must be certified- phone #s given. . . . Ms. Manulis returned to the premises of Cups & Cones Yogurt on September 4, 2001, and found that the violations described above had not been corrected. Respondent had replaced a light bulb in the rear emergency exit sign following the July 31, 2001, inspection, but, nonetheless, the sign was not illuminated when Ms. Manulis returned to the establishment on September 4, 2001. In addition, one of Respondent's employees, Mahmudul Haque, had attempted to become a certified food service manager, but he had been unable to pass the certification test prior to September 4, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in Counts 1 through 4 of the Administrative Complaint and disciplining Respondent therefor by imposing a fine in the amount of $2,500.00, which may be paid in one lump sum or in monthly installments of no less than $250, and suspending Respondent's license for a period of up to 12 months if it fails to pay the fine as required. DONE AND ENTERED this 28th day of February, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of February, 2002.
The Issue The issues to be resolved in this proceeding are whether Respondent committed the violations alleged in the Administrative Complaint dated August 31, 2012, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant, El Ceviche Del Rey, located at 9947 Southwest 142 Avenue, Miami, Florida 33186, holding food service license number 2324027. Critical violations are those violations that are more likely to result in food-borne illness if not corrected. Non- critical violations are those violations that, if not corrected, are less likely to contribute to food-borne illness. Gladys Diaz ("Inspector Diaz") is employed by the Department as a Sanitation Safety Specialist. Inspector Diaz has worked for the Department for approximately one and one-half years. Prior to working for the Department, Inspector Diaz managed a McDonalds franchise for 18 years. Upon gaining employment with the Department, Inspector Diaz received training in laws and rules pertaining to the public food service and public lodging establishments. She is a Certified Food Manager and continues to receive monthly training in the area of food management. On August 29, 2012, Inspector Diaz performed a routine food service inspection at El Ceviche Del Rey. During the inspection, Inspector Diaz observed El Ceviche Del Rey opened for business but operating with no running water. Inspector Diaz prepared and signed an inspection report setting forth the violation she encountered during her inspection. Inspector Diaz prepared the inspection report on- site at El Ceviche Del Rey. The inspection report was signed by Inspector Diaz and a representative of the El Ceviche Del Rey. Inspector Diaz specifically noted the violation as being out of compliance and stated, "At the time of the inspection, there was no water at establishment." The Division determined that operating a food service establishment without water was a critical violation because an establishment cannot clean utensils and employees cannot wash their hands without water. Unclean utensils and dirty hands can lead to contamination of food. The Division closed the restaurant with an Emergency Order of suspension of license for the critical violation. On or about August 31, 2012, the Division issued an Administrative Complaint against El Ceviche Del Rey for operating a food service establishment with no water at the establishment in violation of Food Code Rule 5-103.12. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed. Additional evidence introduced at hearing showed that El Ceviche Del Rey received previous discipline by Final Order in case 2011-040929, entered on December 7, 2011.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding El Ceviche Del Rey violated section 509, Florida Statutes, through a violation of Food Code Rule 5- 103.12; and Imposing an administrative fine in the amount of $1000.00 against El Ceviche Del Rey, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the agency clerk. DONE AND ENTERED this 11th day of April 2013, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 11th day of April, 2013. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399-2202 Alberto Villalobos El Ceviche Del Rey 9947 Southwest 142nd Avenue Miami, Florida 33186 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
Findings Of Fact By letter dated November 9, 1995, Dr. Francisco Belette, an oncologist, filed a complaint with the Department of Professional Regulation pertaining to Mr. Brancaleone's dealings with Christine B., a cancer patient who was being treated by Dr. Belette. That letter describes the unfortunate progression of his patient's breast cancer and includes the following: It was decided to start Christine on Tamoxifen therapy on 10/18/95. This therapy is being given in conjunction with aggressive chemotherapy and ultimately a stem cell transplant. It is my intention to offer Christine a chance at long term survival. Christine returned on 10/24/95 for f/u (a follow up visit). At this time she informed me of her conversations with Mr. Jesse Brancaleone. This gentlemen is a "nutritionist" who works at the Palm Lakes Natural Food Market. According to Christine this "nutritionist" advised her to stop taking the Tamoxifen immediately since he feels "Tamoxifen like other drugs we administer, are poisons." He claims that he "has treated thousands of cancer patients and that what we doctors do to patients is a travesty. We poison them without research." On the contrary, Tamoxifen has more than proven its role in the treatment of breast cancer. I am deeply troubled by what this gentlemen has said to my patient. He has jeopardized my patient/doctor relationship. I feel he is giving false information to patients and therefore practicing medicine without a license. I would appreciate your immediate intervention and investigation into this matter. . . . Thereafter, Daniel A. Pantano investigated the complaint on behalf of the agency and submitted an Investigative Report that was made available to the probable cause panel when it considered this matter. As part of his investigation, Mr. Pantano interviewed Dr. Belette and Christine B. by telephone. The Investigative Report reflected that Dr. Belette's telephone interview confirmed the allegations made in his letter of November 9, 1995. The Investigative Report reflected that the telephone interview of Christine B. confirmed that Mr. Brancaleone told Christine B. that she should stop taking the Tamoxifen medication that had been prescribed by Dr. Belette. By letter dated January 10, 1996, Mr. Pantano advised Mr. Brancaleone of Dr. Belette's allegations and gave him an opportunity to respond. By letter dated January 23, 1996, Mr. Brancaleone wrote the following letter in response to Mr. Pantano's letter of January 10, 1996: Please allow this letter to be my response to a complaint made by a Dr. Belette concerning one of his patients. Christine [B.] came to me for help due to her concerns over the failure of Dr. Belette in treating her breast cancer as her cancer markers continue to increase along with malignant cells over the past three years. She wanted me to build her immune system, nutritional status, and to supply her with information concerning the use of drugs and alternative methods of treatment. It was my intention to give Christine all of the information she desired concerning what nutrition and lifestyle changes have to offer her, the well known and documented side effects of taking drugs, alternative medical doctors and treatments she should consider in order to make an informed and educated decision as to what treatment she deems best for herself. I tell my clients only to be aware of the dangers and side effects of taking drugs as well as other chemicals. I do not give false information as Dr. Belette contends. The toxic reactions and side effects of drugs and other chemicals are stated in the Physicians Desk Reference, reported in prestigeous [sic] medical journals and institutions by research scientists and medical doctors throughout this country and world. This information is available to the general public. As a professional, I have an obligation to my clients to make them aware of any substance that will retard their nutritional status and immunity. I work with many wholestic [sic] medical doctors, knowledgable [sic] in the need to nutritionally support the body. They know the importance nutrition plays in their patients [sic] ability to recover. In my twenty-five years as a practicing nutritionist and six years on the radio helping people recover form illness and educating them as to a healthy lifestyle, I have never hurt anyone or had a complaint such as this. It is unfortunate that Dr. Belette is so ill-informed about orthomolecular [sic] medicine and nutritional biochemistry. Full disclosure, effects of treatments, success and failure rates, the right to a second opinion and alternative treatments are a basic right [sic] of all people. Dr. Belette, in my opinion, has compromised his patient's ability to make an informed choice and his desire to keep her ill- informed is the basis of this complaint. Please feel free to contact me at anytime. At the times pertinent to this proceeding, the North Probable Cause Panel for the Board of Medicine consisted of Dr. George Slade, M.D., Fred Varn, and Dr. Georges El-Bahri. Randy Collette, Esquire, was the attorney representing the Agency for Health Care Administration. Michael A. Mone', Esquire, was acting counsel for the Board of Medicine. The North Probable Cause Panel of the Board of Medicine considered this matter at a meeting on April 24, 1996. At the beginning of the meeting, Mr. Varn, Mr. Mone', and Mr. Collette were physically present at the Northwood Center in Tallahassee, where the meeting took place. Dr. El-Bahir participated in the meeting by telephone. Also present were Jim Cooksey and Bob Gary. Mr. Cooksey identified himself as being with "investigations." Mr. Gary identified himself as "OMC manager for north Florida." At the beginning of the meeting, certain precautionary instructions were given by the attorneys. Dr. Slade arrived at the meeting after the precautionary instructions were given but before the consideration of Mr. Brancaleone's case. Mr. Mone' advised Mr. Varn and Dr. El-Bahir that any questions concerning interpretation of the laws or rules, including the questions as to the duties of the probable cause panel, should be directed to him. Mr. Mone' also advised that Mr. Collette, as the attorney for the agency, had the responsibility of explaining the facts of the case, the reasons the agency was making its recommendation, and of answering any questions concerning the facts, the investigation, and the recommendation. Mr. Mone' further advised that the probable cause panel should not "rubber stamp" the proposed agency action, but that it should have a meaningful discussion of the reasons why probable cause is found. Both Mr. Varn and Dr. El-Bahir acknowledged they had the Investigative Report and the attachments, including the letters discussed above. Dr. Slade arrived after these acknowledgments were made. The transcript of the Probable Cause Panel meeting reflects, in pertinent part, the following: MR. COLLETTE: A-15, Jesse Brancaleone, nutrition counselor 95-17792. In February of 1993 patient CB was diagnosed as suffering from breast cancer by physician [sic], the patient had stage-two invasive duct carcinoma and started on four cycles of admiacin (ph) and two cycles of Cytosan is that it? C-y-t- o-s-a-n. MR. MONE: Cytosan. MR. COLLETTE: Cytosan. Okay. In October of '95, the patient was also started on tamoxifen therapy to be given in conjunction with aggressive chemotherapy. The patient subsequently presented to Respondent for nutritional counseling. Respondent advised the patient to discontinue taking the tamoxifen. Respondent advised the patient that the tamoxifen and other drugs prescribed by patient's physician were poisons. Respondent presented the petitioner with a written statement in January '96 which states that the patient presented to him to obtain information regarding her immune system, nutritional status and to supply her with information regarding the use of drugs and alternative methods for treatment of cancer. Respondent further indicated he advised the patient of the side effects of the medication prescribed by her physician. It's therefore alleged Respondent attempted to implement a dietary plan for a condition for which the patient was under active care of a physician, without the oral or written dietary order of the patient's physician, in violation of the provisions of Section 468.516(1)(a). It's further alleged Respondent inappropriately attempted to treat the patient's condition by means other than by dietetics and nutrition practice. Based on these facts, the Agency is alleging violations of 468.518(1)(a) and (j), recommends probable cause be found and an administrative complaint be filed. Because of the facts of the case the Agency recommends permanent revocation or suspension be sought as the maximum penalty available in the case. DR. SLADE: Motion? DR. EL-BAHRI: Moved. DR. SLADE: Second. This is certainly an egregious violation, it seems to me. MR. MONE': You don't have an (h) violation then, too, do you?1 MR. COLLETTE: No. DR. SLADE: (h) violation? MR. MONE': Is there an (h) violation that you are suggesting in there as well? MR. COLLETTE: I don't think so. MR. MONE': Committing an act of fraud or deceit or negligence or competency or misconduct. MR. COLLETTE: I don't have an opinion that backs me up to go that far. MR. MONE': Okay. MR. COLLETTE: I think that's something that we maybe were looking at at one time, but I didn't have enough to go forward on it. DR. SLADE: It doesn't speak for itself, though? It seems to me. MR. MONE': The problem is that while you and I and most of the medical world may agree that it speaks for itself, in the course of a prosecution, the hearing officer is going on those types of violations to rely on an expert opinion and some expert to come in and say that it is. MR. COLLETTE: I think it's much more evident on its face for the violation of inappropriately attempting to treat patient's means, by means other than dietetic or nutrition practices. I think that's something that anybody can see, you know. Nutrition counselors and dieticians are not in the realm of deciding when or when not to prescribe tamoxifen or other chemotherapy or treatment drugs of that nature; that's strictly the purview of specialized physicians and not nutrition counselors. DR. EL-BAHRI: Dr. Slade. DR. SLADE: Yes. DR. EL-BAHRI: Isn't it clear that he attempted to discontinue or he discontinued the tamoxifen, right? DR. SLADE: Yes. MR. COLLETTE: That's what the patient is alleging and will swear to, is that the nutrition counselor told her to stop taking the tamoxifen. DR. EL-BAHRI: Which is, by itself, is a pretty serious violation. MR. COLLETTE: Yes, it is; but it's the violation of attempting to treat a patient by means other than nutrition counseling. He is basically - DR. EL-BAHRI: Practicing without a license. 2 MR. COLLETTE: He is very, very close to that offense, yes, sir. Very close. DR. SLADE: And we -permanent record-okay, I just wanted to make sure. MR. COLLETTE: Yes. DR. SLADE: Okay. All in favor? (Chorus of ayes.) Based on the stipulation of the parties, it is found that the amount of attorney's fees and costs reflected by the affidavit filed prior to hearing were reasonable and necessary up to the point of October 29, 1997. Based on the stipulation of the parties, it is found that the there are no circumstances which would make an award of fees and costs unjust. Based on the stipulation of the parties, it is found that the DOH and AHCA were not nominal parties in DOAH Case No. 96-3354. Based on the stipulation of the parties, it is found that Mr. Brancaleone was a prevailing party in DOAH Case No. 96-3354. The affidavit filed at the formal hearing in this proceeding, is, in the absence of any evidence to the contrary, found to be for services that were reasonable and necessary. At all times pertinent to this proceeding, Part X of Chapter 468, Florida Statutes, consisting of Sections 468.501 through 458.518, constituted the Florida Dietetics and Nutrition Practice Act. At all times pertinent to this proceeding, Section 468.516(1)(a), Florida Statutes, has provided as follows: (1)(a) A licensee under this part shall not implement a dietary plan for a condition for which the patient is under the active care of a physician licensed under chapter 458 or chapter 459, without the oral or written dietary order of the referring physician. In the event the licensee is unable to obtain authorization or consultation after a good faith effort to obtain it from the physician, the licensee may use professional discretion in providing nutrition services until authorization or consultation is obtained from the physician. At all times pertinent to this proceeding, Section 468.518(1)(a) and (j), Florida Statutes, have provided as follows: The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken: Violating any provision of this part, any board or agency rule adopted pursuant thereto, or any lawful order of the board or agency previously entered in a disciplinary hearing held pursuant to this part, or failing to comply with a lawfully issued subpoena of the agency. The provisions of this paragraph also apply to any order or subpoena previously issued by the Department of Business and Professional Regulation during its period of regulatory control over this part. * * * (j) Treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice or nutritional counseling. Count One of the Administrative Complaint in DOAH Case No. 96-3354 charged that Mr. Brancaleone attempted to implement a dietary plan for Christine B., thereby violating the provisions of Section 468.516(1)(a), Florida Statutes. The violation of Section 468.516(1)(a), Florida Statutes, was alleged to be a violation of Section 468.518(1)(a), Florida Statutes.3 Count Two of the Administrative Complaint in DOAH Case No. 96-3354 charged that Mr. Brancaleone attempted to treat Christine B.'s condition by means other than by dietetics and nutrition practice.4 Mr. Brancaleone is the owner of a Subchapter S corporation named Palm Lakes Natural Food Market and Café, Incorporated, which operates as a natural food market and café in Margate, Florida. At the times pertinent to this proceeding, Mr. Brancaleone engaged in the practice of nutritional counseling in the back of the natural food market and café. The fees earned by Mr. Brancaleone as a nutritional counselor are paid directly to him, not to his corporation. Although he testified that he was an employee of that corporation and that he practiced from facilities owned by that corporation, Mr. Brancaleone did not establish that he practiced nutritional counseling through his corporate entity. Mr. Brancaleone did not have a net worth of two million dollars or more at any time pertinent to this proceeding. Mr. Brancaleone's corporation did not have a net worth of two million dollars or more at any time pertinent to this proceeding. Mr. Brancaleone did not employ more than twenty-five full time employees at any time pertinent to this proceeding. Mr. Brancaleone's corporation did not employ more than twenty- five full time employees at any time pertinent to this proceeding.
