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 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 Whether or not Petitioner's license to operate Jennifer's Adult Care should be renewed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jennifer Cason is the owner/operator of Jennifer's Adult Care. Jennifer's Adult Care is an adult congregate living facility (ACLF) situated at 1022 13th Avenue South in St. Petersburg, Florida. Petitioner's ACLF license expired by its terms on February 8, 1989. Petitioner's license renewal application was denied by the Respondent by letter dated May 25, 1989. Petitioner is the subject of a confirmed report of abuse dated October 19, 1988 confirming the exploitation of C.C. a resident in Petitioner's ACLF. Petitioner was advised that she could challenge the confirmed classification if she considered that the classification was inaccurate or that it should otherwise be amended or expunged. Petitioner failed to challenge the report. On October 21, 1988 Respondent imposed a moratorium on admissions at Petitioner's ACLF. The census at that time was eight residents. That moratorium has not been lifted and therefore remains in effect at this time. As of October 2, 1990, Petitioner has not requested an exemption of the confirmed abuse report to be qualified eligible to work with disabled adults or aged persons. Petitioner's ACLF has a history of deficiencies based on surveys dating from its inception. As example, Mrs. Diane Cruz, a human services surveyor specialist who has been employed by Respondent for more than eleven years conducted a survey of Petitioner's ACLF on May 17, 1988. As a result of that survey, the following deficiencies were noted: (a) The staff's time sheets were not posted or available for review; (b) the facility did not provide adequate staff and services appropriate to the needs of the residents, to wit: one resident required catheter care and there was either no staff person or other qualified third party provider available to provide the needed catheter care; (c) the food service staff was not knowledgeable regarding purchasing sufficient quantities of essential food, proper sanitary conditions necessary for safe food preparation and food types that meet the minimum requirements for a regular diet and (d) the staff person responsible for the supervision of self-medication was not trained. The deficiency relating to the lack of staff training and the supervision of self-medication was a repeat deficiency. Petitioner was allowed through June 17, 1988 to comply with the agreed corrective action plans. By July 18, 1988 most of the items cited as deficiencies were corrected however, Petitioner failed to correct two deficiencies relating to admission criteria and resident standards including (a) one resident's health assessment had not been completed more than 60 days prior to admission to the facility and five residents who were admitted to the facility for more than 30 days did not have a health assessment on file. Both of these deficiencies were corrected on October 5, 1988. Petitioner was also cited for certain deficiencies in the area of the physical plant in that (a) there was an inoperable ceiling light in Room 2; (b) there was no floor under the tub in the first floor corridor bath; (c) there were no non-slip safety devices in the tub of the upstairs corridor bath; (d) there was a hole in the ceiling at the south end of the first floor corridor and (e) the corners of the paneling in the first floor sitting room were broken off. Petitioner was allowed through June 17, 1988 to correct these deficiencies. As of July 18, items (a), (b), and (c) were corrected, however, items (d) and (e) remained uncorrected and were not in compliance until October 5, 1988. John C. Morton is Respondent's human services program director. He has been employed by the agency in excess of 11 years having served in his current position for approximately 3 1/2 years. As part of Morton's duties, he reviews survey reports, schedule surveys and respond to complaints received regarding ACLFs. Morton is familiar with Petitioner's facility from his review of survey findings and staff discussions. Morton prepared a deficiency report dated October 20, 1988 issued to Petitioner based on information he received from Respondent's office of adult protective services regarding a resident that Petitioner left in sole charge of Petitioner's ACLF. The resident that was left in charge was not trained to care for the residents of Petitioner's ACLF. As a result of that report, Morton cited Petitioner for failing to provide at least one staff member within the facility at all times; failure to provide sufficient staff to meet the needs of residents and leaving a resident in sole charge of other residents. The moratorium on admissions was issued effective October 21, 1988, based on that report. Mary Cook is employed by Respondent as a public health nutrition consultant. Ms. Cook has been so employed in excess of three years. She is familiar with Petitioner's facility having surveyed it on several occasions during the last three years. On January 23, 1989, Ms. Cook conducted a follow-up survey to determine whether Petitioner was in compliance with the moratorium. Following her review of the staffing patterns as listed on work schedules provided her, Petitioner listed only one staff person to work for the entire day on Sunday. However, when Ms. Cook arrived at the facility, two staff members were present. Upon inquiry, Ms. Cook was able to determine that the staff person who was present but who was not listed as working according to the schedule, also indicated that she was on duty at another area ACLF, Anita's Personal Care. Ms. Cook also participated in a survey conducted at Petitioner's facility on April 6 and 14, 1989. As a result of that survey, Petitioner was cited with deficiencies of minimum staffing standards based on the following: Several residents were being utilized as staff members to provide services to other residents including transportation, housekeeping and personal services; the facility did not have trained staff present at the facility necessary to supervise the administration of medication; (c) insulin was injected into one resident by a staff member who is not licensed to administer such medications; and (d) staff did not consistently document the residents deviation from normal food intake. Petitioner acknowledged receipt of FPSS Report No. 88-075890. Petitioner also admitted that she did not send a written request to contest the confirmed report nor has she sought an exemption to be qualified to work with disabled adults or aged persons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's renewal application for licensure as an adult congregate living facility and cancel Petitioner's conditional license for that facility. DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida. Copies furnished to: Paula M. Kandel, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, FL 33614 William P. Murphy, Esquire 1500 Morgan Street Tampa, FL 33602 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990.
The Issue Whether Respondent violated Section 468.518(1)(j), Florida Statutes, as alleged in the Administrative Complaint, by treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice, and Section 468.518(1)(g), Florida Statutes, by advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.
Findings Of Fact Respondent is and has been at all times material hereto a licensed nutrition counselor in the State of Florida, having been issued license number NC 0000143. Respondent's last known address is 1901 Blackwood Avenue, Winter Garden, Florida 32787-4601. At the time of her application, Respondent did present evidence of education and experience in reflexology, but was certified only as a Nutrition Counselor. espondent's license is involuntarily inactive. Even through inactive, Respondent is still subject to discipline by the Board of Medicine. Respondent possessed an active license as a Nutrition Counselor at the time of the complaint and investigation. At all times relevant, Respondent possessed a current Orange County, Florida, occupational license as a reflexologist. The practice of reflexology does not fall under the Dietetics and Nutritional Practice Act, but rather requires licensure under the Massage Practice Act (Chapter 480, Florida Statutes). On or about July 2, 1992, Respondent scheduled reflexology appointments for patients. On that date, Respondent was not a licensed massage therapist and had only a county occupational license to operate a business as a reflexologist. Respondent was not aware of the requirement that she obtain certification as a reflexologist through the Board of Massage. Respondent performed reflexology two or three times a month during the period 1991 through July 1992. Respondent caused the following business card to be printed: Opal Fannin, Licensed Reflexologist Nutritional Counselor, 1901 Blackwood Avenue, Winter Garden, Florida 32787. Respondent caused the following advertisement to appear in the 1991 Southern Bell Yellow Pages: REFLEXOLOGY NUTRITIONIST, Licensed Reflexologist and Nutritionist, Computerized Analysis and Nutritionist Balancing of Your Body, 1901 Blackwood Avenue, Winter Garden. At all times material hereto, Respondent failed to obtain licensure from the Board of Massage as a massage therapist.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections 468.518(1)(g) and (j), Florida Statutes. As punishment therefore, it is FURTHER RECOMMENDED: Respondent be issued a reprimand in which Respondent is ordered to cease and desist from engaging in any activity defined in Chapter 480, Florida Statutes, and Rule 21L-30.001, Florida Administrative Code, dealing with the practice of reflexology, until she obtains the proper licensure. Respondent shall not advertise, in any manner or medium, that she provides reflexology services until properly licensed to do same. Respondent shall pay a fine of $1,000.00 Respondent shall be permitted to voluntarily surrender her license as a Nutrition Counselor. DONE and ENTERED this 18th day of October 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-805 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-12. Rejected as a conclusion of law: paragraph 13. Respondent's proposed findings of fact. Respondent did not submit proposed findings of fact, but did submit a response to Petitioner's proposals. COPIES FURNISHED: William Frederick Whitson Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801 Dorothy Faircloth Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, David James Pesek (Respondent) was licensed in the State of Florida as a nutrition counselor, having been issued license number NC 0000199 on February 21, 1990. Respondent’s last known address is 375 Paradise Lane, Waynesville, North Carolina 28786. At all times material hereto, Respondent was the owner of the Center for Effective Living (Center) in Deerfield Beach, Florida. On June 11, 1992, Patient A. S. presented to the Center for treatment of an eating disorder. Patient A. S. was overeating and wanted to lose weight. Patient A. S. was examined by Dr. Schocoff, M.D. that same day. Dr. Schocoff performed a brief physical examination of Patient A. S. Dr. Schocoff’s medical impression was that Patient A. S. suffered from a food addiction, food allergy, and aerophagia. At no time did Dr. Schocoff diagnose Patient A. S. as suffering from fatigue, hypercholesterolemia, or abnormal liver function. At no other time did Dr. Schocoff evaluate Patient A. S. At no other time was Dr. Schocoff involved in any way in the treatment of Patient A. S. Dr. Schocoff was employed by Respondent and the Center. Dr. Schocoff’s duties were to obtain patient history and perform physical examinations only. At no time did Dr. Schocoff give any opinion as to a patient’s health or perform any treatment of a patient or supervise patient treatment. On July 29, 1992, lab work was performed on Patient A. S., as ordered by Dr. Schocoff. The lab work consisted of blood and urine chemistry tests. The results of the tests did not indicate a need for nutritional supplements. Patient A. S. was referred to Respondent for a supervised nutritional and dietary program. On September 1, 1992, Patient A. S. presented to Respondent for the supervised program. After reviewing the blood test results, Respondent informed Patient A. S. that his liver was breaking down and that something had to be done for his liver problem immediately. Respondent had diagnosed Patient A. S. with suffering from a liver disorder. Patient A. S.’ medical records indicate that, among other things, the levels of three substances were tested by the blood test: two liver enzymes (GGT and SGPT) and cholesterol. The blood test results indicated that the levels of all three substances were elevated; however, increased levels of GGT, SGPT, and cholesterol are not conclusive indices of liver disorder. A nutrition counselor is not qualified to make a diagnosis of a liver disorder. It is below the acceptable standards of practice2 as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to diagnose a liver disorder. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by inappropriately diagnosing Patient A. S. with a liver disorder. Respondent did not refer Patient A. S. to a physician for his suspected liver disorder. Instead, Respondent prescribed treatment for the disorder in the form of nutrients and dietary supplements. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to fail to refer a patient to a physician for diagnosis and treatment of a suspected liver disorder. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by inappropriately attempting to treat Patient A. S. for a liver disorder. Eventually, Respondent suggested iridology analysis to Patient A. S. On October 28, 1992, Respondent performed iridology analysis on Patient A. S. Iridology is not an accepted diagnostic procedure by the Board of Medicine and Nutrition Council. Respondent treated and undertook treatment of a human ailment by means other than dietetics and nutrition practice. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to use forms of treatment and diagnosis which are not accepted. On October 28, 1992, Respondent also ordered testing of Patient A. S.’ nutrient mineral levels. The testing of Patient A. S.’ nutrient mineral levels was performed by Analytical Research Labs, Inc., on November 5, 1992. The test results were inconclusive, since they failed to reflect specific units based on amount/volume in which each mineral was measured, and no determination of nutritional recommendations could be effectively made, or, stated differently, the results did not support a need for nutritional supplements. Notwithstanding, Respondent ordered and sold to Patient A. S. multiple nutritional supplements. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to diagnose and undertake to treat nutrient mineral deficiencies from inconclusive test results. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by diagnosing Patient A. S. with nutrient mineral deficiency from inconclusive test results. On November 13, 1992, as ordered by Respondent, food sensitivity testing was performed on Patient A. S. at Immuno Laboratories, Inc. The results of the test included foods that Patient A. S. should and should not eat, and Immuno Laboratories provided a diet for Patient A. S. Respondent’s assessment of the lab work performed by Analytical Research Labs and Immuno Laboratories was insufficient to determine the appropriateness of the diet provided for Patient A. S. Furthermore, Respondent failed to develop a personalized, specific diet plan for Patient A. S., which included a target weight and caloric intake requirements. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to fail to develop a personalized diet plan which includes a target weight and caloric intake requirements. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by allowing someone other than himself to develop a diet for Patient A. S. and by failing to develop a personalized diet plan for Patient A. S., which included a target weight and caloric intake requirements. During Respondent’s treatment of Patient A. S., Respondent advised him that his addictive behavior was caused by nutrient imbalances. This advice from Respondent was false. During the first two months under Respondent’s care and treatment for an overeating disorder and to lose weight, Patient A. S. gained 17 pounds. During the three-month period from June to September 1992, Patient A. S. gained a total of 25 pounds. For the period from September 1, 1992 through February 22, 1993, Respondent submitted insurance claims for the services and treatment that he provided to Patient A. S., utilizing the medical diagnoses determined by Respondent. Moreover, Respondent filed the claims under the name of the Center's physician, Dr. Schocoff, with a signature purporting to be that of Dr. Schocoff. However, Dr. Schocoff was not aware that his name appeared on the claim forms; and neither did he sign the claim forms nor authorize Respondent to use or sign his name on the claim forms. Claims paid by the insurance company were paid to the Center, which was wholly owned by Respondent. An inference is made and a finding of fact is made that Respondent knowingly used Dr. Schocoff's name and signature on the claim forms without Dr. Schocoff's knowledge and authorization. Moreover, due to this finding of fact, it is further found that Respondent knew that he was fraudulently submitting claims to an insurance company for the payment of services provided by himself, not by a physician. By submitting claims for services provided to Patient A. S. under the name of the Center's physician, Dr. Schocoff, Respondent committed an act of fraud or deceit in the practice of dietetics and nutrition.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license as a nutrition counselor. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 15th day of January, 1999.
Findings Of Fact The Hearing Officer entered his Recommended Order on February 28, 1980. A copy of the Recommended Order of the Hearing Officer, including his Findings of Fact, is fully set forth in the appendix of this Order. On March 19, 1980, the Executive Director, Intervenor herein, filed his exceptions to the Hearing Officer's Recommended Order. Petitioner subsequently joined in and adopted the Intervenor's exceptions. On April 11, 1980, Respondent Leon County School Board filed its response to Intervenor's exceptions. Briefs and supporting legal memoranda were also filed by the parties. On April 21, 1980, the oral argument was held on the exceptions to the Hearing Officer's Recommended Order and the response thereto. Having reviewed the transcript of the proceedings, and having considered the exceptions, briefs and oral arguments of the parties, we find that the Hearing Officer's Findings of Fact are supported by competent, substantial evidence of record and are hereby adopted by this Commission as its Findings of Fact and are incorporated herein. II CONCLUSIONS OF LAW Unlawful Employment Practice. Section 23.167, Florida Statutes, provides in pertinent part, as follows: 23.167 Unlawful employment practices: remedies; construction. -- (1) It is an unlawful employment practice for an employer: (a) To . . . fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment, because of such individual's race, color, . . . . * * * (13) In the event that the commission, in the case of a complaint under subsection (10) . . . finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees. Since the Florida statute is patterned after the federal law on the same subject (Title VII of the Civil Rights Act of 1964), then the Florida statute should be given "the same construction in the Florida Courts as its prototype has been given in the federal Courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the same subject." Pasco County School Board v. Florida Public Employees Relations Commission, 353 So. 2d 108, 116 (Fla. 1st DCA 1977). The standard of proof applicable in cases of individual actions involving disparate treatment is as delineated by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792(1973). Under McDonnell Douglas and subsequent cases, the Petitioner bears the initial burden of establishing a prima facie case of racial discrimination by showing: (1) that she belongs to a protected class (racial minority); (2) that she applied and was qualified for a job for which the employer was seeking applicants; (3) that despite her qualifications, she was not hired (promoted); and (4) the employer hired/promoted a Caucasian for the job prior to the published closing date for the position. It is clear, from McDonnell Douglas, that Petitioner "carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the Act." Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1977). To dispel the adverse inference from the petitioner's prima facie case, the burden then shifts to the employer. The employer then must articulate some legitimate, non-discriminatory reason for not hiring or promoting the petitioner. McDonnell Douglas v. Green, Supra, at 802. Finally, the petitioner is required to rebut the employer's stated reason for failure to hire or promote by showing that the employer's alleged non- discriminatory motive is in fact a pretext. Furnco Construction Corp. v. Waters, Supra, at 578. In order for the Petitioner to prevail in this case, she must convince the Commission by a preponderance of the evidence that Respondent's failure to hire/promote her to the Food Service Worker- 5 1/2 hour position was based on the fact that she is black, rather than any legitimate non-discriminatory reason. There is substantial competence evidence in the record to support the Commission's conclusion that Ms. Hargis established a prima facie case. Petitioner is the only black food service worker employed at Fairview Middle School. Petitioner was qualified for the position she sought and had more seniority than the white female chosen for the position. She was the only person who sought to make formal application for the vacancy listing which appeared in the Leon County School's September 5, 1978, Job Opportunities Bulletin. When she attempted to make formal application for the position, she was informed that the position had already been filled. Petitioner's formal application was effectively frustrated and would have been futile at that point. Despite her superior past record of performance as a food service worker, Petitioner was neither advised of the vacancy nor permitted to apply, so that Respondent might promote/hire Mrs. Minnie Barfield, a white female, for the position. Therefore, Petitioner's establishment of a prima facie case raises an inference that Respondent's failure to hire/promote her was racially premised. The Respondent seeks to rebute Petitioner's prima facie case by articulating as its legitimate, non-discriminatory reason for not hiring/promoting Mrs. Hargis, to a lack of coordination and communication in advertising the vacancy, between the Central Kitchen and the Dining Hall manager at Fairview Middle School, who was also responsible for making the final employment decision. Respondent also places great reliance on an informal October, 1977, meeting in which Petitioner indicated that she was unable to assume the additional hours of the 5 1/2 hour position, for various personal reasons at that time. It is undisputed that Respondent failed to comply with its existing collective bargaining agreement in filling the vacancy that Petitioner sought. The contract requires that existing employees be considered for a vacancy before a decision on employment is reached. Upon being informed that the advertised position vacancy had already been filled, Mrs. Hargis complained to the Fairview Middle School principal on or about September 11, 1978, prior to the announced closing date for the position. The principal took no positive actions to correct an obvious error, but instead informed Petitioner that if she was not satisfied with the situation, she could check with Mrs. Linton, the Director of School Food Service. Mrs. Linton is the same management official who had already filled the Food Service Worker position by hiring/promoting the white employee with less seniority than Petitioner. In light of these substantial procedural irregularities in the filling of this position, Respondent asserts that although its procedures and collective bargaining agreement may not have been properly complied with in this case, its actions were not motivated by discriminatory intent. There is no direct evidence of discriminatory intent in the instant case, and such evidence is seldom present. Therefore, circumstantial evidence, or inferences, may be relied upon to establish discriminatory motive. Page v. Bolger, 21 EPD paragraph 30,500 (4th Cir. 12/19/79), citing the U.S. Court decisions in International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335, n. 15 (1976), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973). The ultimate inquiry, in examination of the issue of discriminatory intent, is whether the decision or action in question was racially premised, i.e., was it a cover-up for a racially discriminatory purpose. B. Schlei and P. Grossman, Employment Discrimination Law, 1153-1154 (1976). An examination of the totality of the circumstances in this case leads this Commission to the conclusion that the Respondent's stated reasons of error and negligence in its failure to promote/hire the Petitioner for the Food Service Worker-5 1/2 hour position are merely a pretext for racial discrimination against Mrs. Hargis. It is beyond question that Petitioner was thoroughly qualified for the position sought. The procedures utilized by Respondent to fill this position afford too much opportunity for subjective evaluation by a single supervisor with no clear standards for making crucial employment decisions. Mrs. Linton entirely controlled the promotion/hiring process in this case. The vacancy was filled prior to the proper posting of notices and without complying with Respondent's collective bargaining agreement. Such procedures must be subjected to close scrutiny by this Commission. Respondent had ample opportunity to remedy its actions, but failed to take any corrective measures. Instead, Respondent simply suggested that Petitioner contact the very individual who had committed the unlawful employment practice in the first instance. It can only be concluded that Respondent knew of the racially discriminatory impacts of its decision and that Respondent sought to cover-up its unlawful activity by posting of vacancy announcements after the employment decision had been made. As the United States Supreme Court noted in Local 189, Papermakers & Paperworkers v. United States, 416 F.2d 980, 997 (5th Cir. 1969), cert. denied 397 U.S. 919 (1970), "the conduct engaged in (here) had racially-determined effects. The requisite intent may be inferred from the fact that the (respondents) persisted in the conduct after its racial implications had become known." Section 23.167 requires no more. In summary then, the Commission finds that the Respondent unlawfully discriminated against the Petitioner on account of her race by failing to hire/promote her to the position of Food Service Worker-5 1/2 hours, and instead promoted a white person, in violation of Section 23.167(1), Florida Statutes. Admissibility of Executive Director's Determination. On page 2 of his Recommended Order, the Hearing Officer notes that: "At the hearing, the Intervenor sought to introduce in evidence the Executive Director's Determination: Cause, issued August 31, 1979, under the public records exception to the hearsay rule, pursuant to Section 90.803(8), Florida Statutes. After having considered post-hearing submissions filed by the parties, the Hearing Officer ruled that the Executive Director's Determination was: received in evidence as a public record exception to the hearsay rule solely for the purpose of establishing the fact that the (Executive Director) complied with pertinent rules of the Commission in processing this case, but not for the truth of the matters contained in the summary of the investigation or the validity of the (Executive Director's) findings therein. We reject this conclusion of the Hearing Officer. It is well settled in Florida that the contents of public records may be introduced as an exception to the hearsay rule. Smith v. Mott, 100 So. 2d 173 (Fla. 1959); Wilkerson v. Grover 181 So. 2d 591 (Fla. 3d DCA 1965). All that Florida law requires is that the reporting be made pursuant to law, Bell v. Kendrick, 25 Fla. 778 6 So. 868 (1889), and that the document be credible and trustworthy. Smith v. Mott, supra. As the court in Mott held, "the secondary character of the evidence . . . only affects the weight to be accorded it and not its competency." We also conclude that the Determination is admissible "for the purpose of supplementing or explaining other evidence even though it may not be sufficient in itself it support a finding." Section 120.58(1)(a), Florida Statutes; Pasco County School Board v. PERC, supra. This Commission concludes, as did the Fifth Circuit Court of Appeals in Smith v. Universal Services, Inc., 454 F 2d 154, 4 FEP Cases 187 (5th Cir. 1972), that the Determination is admissible as it tends to ease the agency's fact-finding burden. However, the fact-finder is not bound by the findings in the Determination and it is to be given no more weight than any other evidence or testimony received at the hearing. No due process violation occurs as a result of the admission of the Determination. Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979); Pantechenko v. C.B. Dolge Co., 18 FEP Cases 686 (D.C. Conn. 1977). The Executive Director's Determination, consisting of a summary of the allegations of discrimination, a brief summary of the facts developed in the investigation, and the Executive Director's finding of reasonable cause to believe that a violation of the Human Rights Act has occurred, is analogous to other reports admissible under Section 90.803(8) and (6), Florida Statutes. See Smith v. Mott, supra; Wilkerson v. Grover, supra, (admitting hospital records). The report was prepared in the regular course of the Executive Director's duties and in accordance with Section 23.166(5), Florida Statutes, and Rule 9D- 9.04(2), Florida Administrative Code. In view of the general presumption under Florida law that public officials perform their duties in accordance with law, and the absence of any evidence to the contrary, the Determination of the Executive Director is admissible in evidence. Hillsborough County Aviation Authority v. Taller and Cooper, 245 So. 2d 100 (Fla. 2d DCA 1971). In reaching this conclusion, we have not considered and do not have decide whether the Investigatory Report, upon which the Determination is based, is admissible. See Gillin v. Federal Paper Board Co., 52 FRD 838, 2 FEP Cases 507 (D.C. Conn. 1979), aff'd 479 F.2d 97, 5 FEP Cases 1094 (2d Cir. 1973), where the EEOC Determination was admitted in evidence while the rest of the investigatory materials were excluded. In their exceptions to the Recommended Order, Intervenor and Petitioner assert that the Hearing Officer's Conclusions of Law re in error and should not be adopted by the Commission. To the contrary, Respondent asserts that the Hearing Officer's Conclusions are correct and should be upheld. Having fully considered the exceptions and briefs of the parties, as well as the Conclusions of Law reached by the Hearing Officer, in view of the foregoing Conclusions reached by the Commission, those portions of said exceptions and Recommended Order not incorporated in this Order are deemed to be unnecessary, irrelevant or unwarranted in law or fact, and are rejected. Having considered all of the foregoing, it is therefore ORDERED AND ADJUDGED: Petitioner shall be promoted by Respondent to the Food Service Worker-5 1/2 hour position at Fairview Middle School, or to an equivalent position within the Leon County School System that is within a reasonable convenient commuting distance for Petitioner; such promotion to be retroactive to September 12, 1978, and to take place no later than August 1, 1980. Petitioner shall receive from Respondent back pay equivalent to the salary she would have been paid in the position for the period which she has been illegally denied employment; such back pay to be reduced by the amount of income Petitioner received from her interim employment with the Leon County School Board. Petitioner is awarded attorney's fees. Petitioner has seven working days from the date of this Order to submit affidavits on attorney's fees to Respondent. Respondent has seven working days in which to respond. Following such response the parties have seven working days in which to negotiate a settlement of the amount to be awarded. If, at the end of the seven-day negotiation period, the parties have been unable to reach settlement amount, Petitioner shall immediately file a notice of failure of settlement with the Clerk of the Commission requesting that an evidentiary hearing be set on the award of attorney's fees. It is so Ordered: Dated this 29th day of May, 1980. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS Reese Marshall, Commission Chair Florida Commission on Human Relations FILED this 29th day of May, 1980, at Tallahassee, Florida. BY: Sondra J. Anderson Acting Clerk of the Commission
Recommendation That the complaint and petition herein be dismissed by the Florida Commission on Human Relations. DONE AND ENTERED this 28th day of February 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ralph Armstead, Esquire Legal Service of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida Reese Marshall, Chairperson Florida Commision on Human Relations 2562 Executive Center Circle, E. Tallahassee, Florida 32301 Charles A. Johnson, Esquire Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Aurelio Durana, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, E. Tallahassee, Florida 32301
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
