97-005276F Jesse Brancelone vs. Board Of Medicine Status: Closed DOAH Final Order on Monday, April 27, 1998.

Summary: Agency had substantial justification at the time it initiated administrative complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSE BRANCALEONE, N.C., )

)

Petitioner, )

)

vs. ) Case No. 97-5276F

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on February 10, 1998, at Tallahassee, Florida, before Claude B.

Arrington, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: E. Renee Alsobrook, Esquire

Alsobrook and Dove, P.A.

Post Office Box 10426

Tallahassee, Florida 32302-2426

For Respondent: John E. Terrel, Esquire

Senior Attorney

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32327-4299

STATEMENT OF THE ISSUES

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.

PRELIMINARY STATEMENT

Petitioner was the prevailing party in DOAH Case

No. 96-3354, a proceeding to discipline Petitioner's licensure as

a nutritional counselor. When the underlying matter was

initiated by the filing of the Administrative Complaint on April

25, 1996, the agency responsible for the discipline of

nutritional counselors was the Agency for Health Care

Administration (AHCA). On July 1, 1997, those responsibilities

were transferred to the Department of Health (DOH). The

Recommended Order in the underlying proceeding was issued by the

undersigned to AHCA on June 5, 1997. The Final Order in the

underlying proceeding, issued by the DOH on September 8, 1997,

adopted the findings of fact contained in the Recommended Order.

The Final Order also determined that there was competent,

substantial evidence to support the conclusions of law of the

Recommended Order and, consistent with the recommendation,

dismissed the Administrative Complaint.

On November 7, 1997, Mr. Brancaleone filed a timely

Application for Award of Attorney's Fees and Costs pursuant to

Florida Equal Access to Justice Act, Section 57.111, Florida

Statutes. DOH contested the application on the grounds that

Mr. Brancaleone was not a small business party when the agency

action was initiated against him, and asserted the statutory

defense that the agency action had substantial justification at

the time it initiated the disciplinary action.

At the formal hearing, the only witness for either party was

Mr. Brancaleone, who testified on his own behalf.

Mr. Brancaleone presented two exhibits, both of which were

admitted into evidence. DOH presented five exhibits, each of

which was accepted into evidence. The parties also stipulated to

certain facts, which will be reflected in the Findings of Fact

portion of this Final Order. At the request of the parties,

official recognition was taken of Chapters 120, 455, and 468,

Florida Statues; Section 57.111, Florida Statutes; Chapter 60Q-2,

Florida Administrative Code; Rule 64B8-43.002, Florida

Administrative Code; and the pleadings of DOAH Case No. 97-5276.

A transcript of the proceedings has been filed. At the

request of the parties, the time for filing post-hearing

submissions was set for more than ten days following the filing

of the transcript. Consequently, the parties waived the

requirement that a Final Order be rendered within thirty days

after the transcript is filed. Rule 60Q-2.031, Florida

Administrative Code.

The parties filed proposed final orders, which have been

duly considered by the undersigned in the preparation of this

Final Order. On March 30, 1998, DOH moved to strike the portion

of Mr. Brancaleone's Proposed Final Order that attacks the

qualifications of the probable cause panel. No response to that

motion has been filed by Mr. Brancaleone. Mr. Brancaleone's

argument that the probable cause panel was not properly

constituted was raised for the first time in his post-hearing

brief and has not been considered by the undersigned in resolving

this matter.

FINDINGS OF FACT

1. 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. . . .

2. 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.

3. 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.

4. By letter dated January 10, 1996, Mr. Pantano advised

Mr. Brancaleone of Dr. Belette's allegations and gave him an

opportunity to respond.

5. 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.

6. 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.

7. 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."

8. 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.

9. 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.

10. 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 1

then, too, do you?

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 2

license.

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.)

11. 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.

12. 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.

13. 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.

14. Based on the stipulation of the parties, it is found

that Mr. Brancaleone was a prevailing party in DOAH Case

No. 96-3354.

15. 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.

16. 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.

17. 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.

18. At all times pertinent to this proceeding, Section

468.518(1)(a) and (j), Florida Statutes, have provided as

follows:

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (2) may be taken:

(a) 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.

19. 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

20. 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

21. 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.

22. 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 o f two

million dollars or more at any time pertinent to this proceeding.

23. 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.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

25. Section 57.111, Florida Statutes, the Florida Equal

Access to Justice Act, provides, in pertinent part as follows:

(1) This section may be cited as the

"Florida Equal Access to Justice Act."

(2) The Legislature finds that certain

persons may be deterred from seeking review

of, or defending against, unreasonable

governmental action because of the expense of

civil actions and administrative proceedings.

Because of the greater resources of the

state, the standard for an award of

attorney's fees and costs against the state

should be different from the standard for an

award against a private litigant. The purpose

of this section is to diminish the deterrent

effect of seeking review of, or defending

against, governmental action by providing in

certain situations an award of attorney's

fees and costs against the state.

(3) As used in this section:

(a) The term "attorney's fees and costs"

means the reasonable and necessary attorney's

fees and costs incurred for all preparations,

motions, hearings, trials, and appeals in a

proceeding.

(b) The term "initiated by a state agency"

means that the state agency:

* * *

2. Filed a request for an administrative

hearing pursuant to chapter 120;

* * *

(c) A small business party is a

"prevailing small business party" when:

1. A final judgment or order has been

entered in favor of the small business party

and such judgment or order has not been

reversed on appeal or the time for seeking

judicial review of the judgment or order has

expired;

* * *

3. The state agency has sought a voluntary

dismissal of its complaint.

(d) The term "small business party" means:

1.a. A sole proprietor of an

unincorporated business, including a

professional practice, whose principal office

is in this state, who is domiciled in this

state, and whose business or professional

practice has, at the time the action is

initiated by a state agency, not more than 25

full-time employees or a net worth of not

more than $2 million, including both personal

and business investments; or

b. A partnership or corporation, including

a professional practice, which has its

principal office in this state and has at the

time the action is initiated by a state

agency not more than 25 full-time employees

or a net worth of not more than $2 million;

* * *

(e) A proceeding is "substantially

justified" if it had a reasonable basis in

law and fact at the time it was initiated by

a state agency.

(4)(a) Unless otherwise provided by law,

an award of attorney's fees and costs shall

be made to a prevailing small business party

in any adjudicatory proceeding or

administrative proceeding pursuant to chapter

120 initiated by a state agency, unless the

actions of the agency were substantially

justified or special circumstances exist

which would make the award unjust.

(b)1. To apply for an award under this

section, the attorney for the prevailing

small business party must submit an itemized

affidavit to the court which first conducted

the adversarial proceeding in the underlying

action, or to the Division of Administrative

Hearings which shall assign an administrative

law judge, in the case of a proceeding

pursuant to chapter 120, which affidavit

shall reveal the nature and extent of the

services rendered by the attorney as well as

the costs incurred in preparations, motions,

hearings, and appeals in the proceeding.

2. The application for an award of

attorney's fees must be made within 60 days

after the date that the small business party

becomes a prevailing small business party.

(c) The state agency may oppose the

application for the award of attorney's fees

and costs by affidavit.

(d) The court, or the administrative law

judge in the case of a proceeding under

chapter 120, shall promptly conduct an

evidentiary hearing on the application for an

award of attorney's fees and shall issue a

judgment, or a final order in the case of an

administrative law judge. The final order of

an administrative law judge is reviewable in

accordance with the provisions of s. 120.68.

If the court affirms the award of attorney's

fees and costs in whole or in part, it may,

in its discretion, award additional

attorney's fees and costs for the appeal.

1. No award of attorney's fees and costs

shall be made in any case in which the state

agency was a nominal party.

2. No award of attorney's fees and costs

for an action initiated by a state agency

shall exceed $15,000.

26. Mr. Brancaleone is a small business party within the

meaning of Section 57.111(3)(d), Florida Statutes, because he is

the sole proprietor of an unincorporated professional practice.

27. The parties stipulated that Mr. Brancaleone was a

prevailing party in the underlying action. Consequently, it is

concluded that he is a prevailing small business party.

28. Once Mr. Brancaleone established that he was a

prevailing small business party, the burden shifted to DOH to

show that its actions in initiating the disciplinary action was

"substantially justified." Gentele v. Department of Prof. Reg.,

Bd. of Optometry , 9 F.A.L.R., 310, 327 (Div. Of Admin. Hearings

1986), aff'd, 513 So. 2d 672 (Fla. 1st DCA 1987).

29. As set forth by Section 57.111(3)(e), Florida Statutes,

"[a] proceeding is 'substantially justified' if it had a

reasonable basis in law and fact at the time it was initiated by

a state agency." An analogous Federal standard has been

interpreted to require that the proceeding be justified to the

degree that it could satisfy a reasonable person. Pierce v.

Underwood , 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490

(1988). The Court in Helmy v. Department of Business and

Professional Regulation , 23 F.L.W. 554a (Fla. 1st DCA Feb. 17,

1998) cited Pierce , supra , in support of its conclusion that the

"substantially justified" standard falls somewhere between the no

justiciable issue standard of Section 57.105, Florida Statutes

and an automatic award of fees to a prevailing party. Probable

cause exists if reasonable prudent persons in the conduct of

their affairs would think that a violation had taken place.

Kasha v. Department of Legal Affairs , 375 So. 2d 43 (Fla. 3RD DCA

1979).

30. The agency failed to establish that it was

substantially justified in filing Count I of the Administrative

Complaint against Mr. Brancaleone. There was no evidence

presented to the Probable Cause Panel that substantiates the

assertion that Mr. Brancaleone implemented a nutritional plan for

Christine B. without her doctor's authorization in violation of

Section 468.516(1)(a), Florida Statutes. Further, there was no

discussion and no showing by DOH at the formal hearing in this

proceeding how any of the statements Mr. Brancaleone allegedly

made to Christine B. would constitute an attempt to implement a

nutritional plan without her doctor's authorization in violation

of Section 468.516(1)(a), Florida Statutes. Finally, there was

no showing by DOH that an attempt to implement a nutritional plan

for a person without the authorization from that person's

physician would constitute a violation of Section 468.516(1)(a),

Florida Statutes. 5

31. In determining whether the agency was substantially

justified in alleging that Mr. Brancaleone was guilty of

"[t]reating or undertaking to treat human ailments by means other

than by dietetics and nutrition or nutritional counseling" within

the meaning of Section 468.518(1)(j), Florida Statutes, the

undersigned has considered certain definitions contained in

Section 468.503, Florida Statutes.

32. Section 468.503, Florida Statutes, provides, in

pertinent part, as follows:

As used in this part:

(1) "Agency" means the Agency for Health

Care Administration.

(2) "Board" means the Board of Medicine.

(3) "Dietetics" means the integration and

application of the principles derived from

the sciences of nutrition, biochemistry,

food, physiology, and management and from the

behavioral and social sciences to achieve and

maintain a person's health throughout the

person's life. It is an integral part of

preventive, diagnostic, curative, and

restorative health care of individuals,

groups, or both.

(4) "Dietetics and nutrition practice"

shall include assessing nutrition needs and

status using appropriate data; recommending

appropriate dietary regimens, nutrition

support, and nutrient intake; improving

health status through nutrition research,

counseling, and education; and developing,

implementing, and managing nutrition care

systems, which includes, but is not limited

to, evaluating, modifying, and maintaining

appropriate standards of high quality in food

and nutrition care services.

* * *

(8) "Nutrition assessment" means the

evaluation of the nutrition needs of

individuals or groups, using appropriate data

to determine nutrient needs or status and

make appropriate nutrition recommendations.

(9) "Nutrition counseling" means advising

and assisting individuals or groups on

appropriate nutrition intake by integrating

information from the nutrition assessment.

33. Rule 64B8-43.002(6), Florida Administrative Code,

provides as follows:

(6) Nutrition counseling does not include

diagnosis, treatment, operation, or

prescription for any human disease, pain,

injury, deformity, or other physical or

mental condition.

34. The information available to the Probable Cause Panel

was that Mr. Brancaleone told a cancer patient to stop taking the

medicine that had been prescribed for her by her treating

oncologist. The members of the Probable Cause Panel were

entitled to rely on the evidence they had before them pertaining

to the meeting Christine B. had with Mr. Brancaleone, the purpose

of the meeting, and the advice Christine B. said Mr. Brancaleone

gave her.

35. The question becomes whether the agency was

substantially justified in alleging that Mr. Brancaleone violated

the provisions of Section 568.518(1)(j), Florida Statutes, by

giving such advice.

36. As a nutritional counselor, Mr. Brancaleone is not

competent to advise a cancer patient that she should stop taking

her medicine. Such advise is clearly beyond the scope of

dietetics and nutrition or nutrition counseling as those terms

are defined in Section 458.503, Florida Statutes, and used in

Section 458.518(1)(a)(j), Florida Statutes, based on the facts

presented to the probable cause panel.

37. Mr. Brancaleone conceded at the formal hearing in this

proceeding that he was familiar with Rule 64B8-43.002(6), Florida

Administrative Code, and that he was aware that he could not

interfere with prescription writing of doctors.

38. It is concluded that the probable cause panel was

substantially justified in alleging that Mr. Brancaleone advised

Christine B. to stop taking the medicine that had been prescribed

by her doctor and that it was substantially justified in alleging

in Count Two of the underlying Administrative Complaint that by

giving such alleged advice, he violated Section 468.518(1)(j),

Florida Statutes. It is also concluded that because of the

definition provided by statute and rule, the probable cause panel

could find probable cause to file Count Two without the

presentation of an expert opinion.

39. Because Count One and Count Two of the underlying

Administrative Complaint were based on the same facts, it is

concluded that the inclusion of Count One did not cause

Mr. Brancaleone to incur fees and costs in addition to and

separate from those incurred because of Count Two. Because the

agency was substantially justified in filing Count Two, it is

concluded that Mr. Brancaleone is not entitled to an award of

attorney's fees and costs pursuant to Section 57.111, Florida

Statutes.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition for attorney's fees and

costs is DENIED.

DONE AND ORDERED this 27th day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of April, 1998.

ENDNOTES

1/ Section 469.518(h), Florida Statutes, provides that the

following acts constitute grounds for the imposition of

discipline against a licensee:

(h) Committing an act of fraud or deceit,

or of negligence, incompetency, or misconduct

in the practice of dietetics and nutrition or

nutrition counseling.

2/ The undersigned is mindful of Section 458.305(3), Florida

Statutes, which defines the "practice of medicine" to mean the

". . . diagnosis, treatment, operation, or prescription for any

human disease, pain injury, deformity, or other physical or

mental condition."

3/ Count One of the Administrative Complaint was voluntarily

dismissed by the attorney for AHCA at the beginning of the formal

hearing in DOAH Case No. 96-3354.

4/ The Recommended Order found that Mr. Brancaleone discussed

with Christine B. the severe side effects of Tamoxifen in a

manner designed to discourage her from taking the medicine. The

evidence was insufficient to support a finding that

Mr. Brancaleone told her to stop taking Tamoxifen. For that

reason, it was concluded that Mr. Brancaleone did not undertake

to treat Christine B. If the evidence had clearly and

convincingly established that he advised her to stop taking

Tamoxifen, the undersigned would have concluded that he was

guilty of Count Two.

5/ The language of Section 468.516(1)(a), Florida Statutes, that

the licensee "shall not implement" a dietary plan without the

approval of the patient's physician, can be contrasted with the

language of Section 468.518(1)(j), Florida Statutes, that

includes as grounds for imposing discipline the licensee

"[t]reating or undertaking to treat human ailments by means other

than by dietetics and nutritional practices or nutritional

counseling." Had the Legislature intended for an "attempt to

implement" a dietary plan without the attending physician's

authorization to be included as a violation of Section

468.516(1)(a), Florida Statutes, it would have clearly expressed

that intent.

COPIES FURNISHED:

Elizabeth Renee Alsobrook, Esquire

Alsobrook & Dove, P.A.

Post Office Box 10426

Tallahassee, Florida 32302-2426

John E. Terrell, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Dr. Marm Harris, Executive Director

Board of Medicine

Department of Health

1940 Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of

a Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the appellate

district where the party resides. The Notice of Appeal must be

filed within 30 days of rendition of the order to be reviewed.

1 Section 469.518(h), Florida Statutes, provides that the following acts

constitute grounds for the imposition of discipline against a licensee:

(h) Committing an act of fraud or deceit, or of

negligence, incompetency, or misconduct in the

practice of dietetics and nutrition or nutrition

2 counseling.

The undersigned is mindful of Section 458.305(3), Florida Statutes, which

defines the "practice of medicine" to mean the "… diagnosis, treatment,

operation, or prescription for any human disease, pain injury, deformity, or

other physical or mental condition." 3

Count One of the Administrative Complaint was voluntarily dismissed by the

attorney for AHCA at the beginning of the formal hearing in DOAH Case 96-3354. 4

The Recommended Order found that Mr. Brancaleone discussed with Christine

B. the severe side effects of Tamoxifen in a manner designed to discourage

her from taking the medicine. The evidence was insufficient to support a

finding that Mr. Brancaleone told her to stop taking Tamoxifen. For that

reason, it was concluded that Mr. Brancaleone did not undertake to treat

Christine B. 5

The language of Section 468.516(1)(a), Florida Statutes, that the licensee

"shall not implement" a dietary plan without the approval of the patient's

physician can be contrasted with the language of Section 468.518(1)(j),

Florida Statutes, that includes as grounds for imposing discipline the

licensee "[t]reating or undertaking to treat human ailments by means other

than by dietetics and nutritional practices or nutritional counseling." Had

the Legislature intended for an "attempt to implement" a dietary plan without

the attending physician's authorization to be included as a violation of

Section 468.516(1)(a), Florida Statutes, it would have clearly expressed that

intent.