08-002241 Larisa Alonso vs. Board Of Medicine, Dietitian/Nutritionist Council Status: Closed Recommended Order on Friday, December 19, 2008.

Summary: Petitioner failed to prove that criteria for nutritionist license in Washington State were substantially equivalent to the criteria for dietitian/nutritionist license in Florida. The application for a nutritionist license by endorsement should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARISA ALONSO, )

)

Petitioner, )

)

vs. ) Case No. 08-2241

)

BOARD OF MEDICINE, )

DIETITIAN/NUTRITION COUNCIL, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on October 17, 2008, in Tallahassee, Florida, before Patricia M.

Hart, a duly-designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Rick K. Potter, Qualified Representative

Post Office Box 1552

Mesquite, Nevada 89024

For Respondent: Allison M. Dudley, Esquire

Office of the Attorney General

PL-01 The Capitol

Tallahassee, Florida 33021

STATEMENT OF THE ISSUE

Whether the Petitioner's application for licensure by

endorsement as a Dietitian/Nutritionist should be granted or

denied for the reasons stated in the Notice of Intent to Deny

dated April 15, 2008.

PRELIMINARY STATEMENT

In a Notice of Intent to Deny dated April 14, 2008, the

Board of Medicine, Dietetics and Nutrition Council ("Council")

notified Larisa Alonso that her application for a

Dietitian/Nutritionist license by endorsement was denied. The

Council stated that Ms. Alonso was licensed in Washington State

as a certified nutritionist and had failed to prove that "the

criteria for issuance of a Washington State nutritionist license

is substantially equivalent to the criteria for

Dietitian/Nutritionist license in the State of Florida, as

required by Section 468.513, F.S.” Ms. Alonso timely requested

an administrative hearing to resolve disputed issues of material

fact, and the Council forwarded the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. Pursuant to notice, the final hearing was held on

October 17, 2008.

At the hearing, Ms. Alonso testified in her own behalf, and

Petitioner's Exhibit 1 was offered and received into evidence.

The Council presented the testimony of Ivy Shivers, and

Respondent's Exhibit 1 was offered and received into evidence.

The parties also offered Joint Exhibit 1, which was received

into evidence. Finally, at the Petitioner's request, official

recognition was taken of Exhibit's A through G, attached to the

Petitioner's Motion for Official Recognition filed with the

Division of Administrative Hearings on October 10, 2008.

Exhibits A through G consisted of the Final Staff Analysis and

Economic Impact Statement for House Bill 161; the Staff Analysis

and Economic Impact Statement for Senate Bill 93; Final Bill

Analysis and Economic Impact Statement for House Bill 819; Staff

Analysis and Economic Impact Statement for Senate Bill 1062;

Section 456.003, Florida Statutes (2008); Chapter 468, Florida

Statutes (2008); and Chapter 18.138, Revised Code of Washington

(2008).

The one-volume transcript of the proceedings was filed with

the Division of Administrative Hearings on October 31, 2008, and

the parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Council, which serves under the supervision of the

Board of Medicine, is the entity responsible for certifying

persons for licensure by endorsement as a

dietitian/nutritionist. § 468.509, Fla. Stat. (2008) 1 ; Fla.

Admin. Code R. 64B8-40.003(1)(a).

2. On or about January 16, 2008, the Council received

Ms. Alonso's application for licensure by endorsement as a

dietitian/nutritionist pursuant to Section 468.513, Florida

Statutes.

3. At the time of her application, Ms. Alonso was a

certified nutritionist in the State of Washington, having been

issued license number NU00001939 on April 11, 2007. Ms. Alonso

is not licensed in the State of Washington as a certified

dietitian, nor has she taken a state or national examination for

licensure as a dietitian or as a nutritionist.

4. In 1994, Ms. Alonso earned a Bachelor's of Science

degree from Cornell University in biochemistry, and, in 2000,

she earned a Master's of Science degree from the University of

Texas, School of Public Health, in nutrition and immunology.

5. Prior to moving to Florida in early 2008, Ms. Alonso

worked as a nutritionist in Washington State. Prior to

receiving her certification as a nutritionist in Washington

State, she worked as a nutritionist in several clinics under the

supervision of medical and naturopathic doctors for

approximately four years. During this time, she performed

nutritional assessments and developed nutritional programs for

the clinics' patients and provided nutritional support for the

doctors working in the clinics.

6. Ms. Alonso was licensed pursuant to Section 18.138.030,

Revised Code of Washington, which sets forth the requirements

for certification as a dietitian and as a nutritionist in the

State of Washington. Section 18.138.030, Revised Code of

Washington, provides in pertinent part:

(1) An applicant applying for certification

as a certified dietitian or certified

nutritionist shall file a written

application on a form or forms provided by

the secretary setting forth under affidavit

such information as the secretary may

require, and proof that the candidate has

met qualifications set forth below in

subsection (2) or (3) of this section.

(2) Any person seeking certification as a

"certified dietitian" shall meet the

following qualifications:

(a) Be eighteen years of age or older;

(b) Has satisfactorily completed a major

course of study in human nutrition, foods

and nutrition, dietetics, or food systems

management, and has received a baccalaureate

or higher degree from a college or

university accredited by the Western

association of schools and colleges or a

similar accreditation agency or colleges and

universities approved by the secretary in

rule;

(c) Demonstrates evidence of having

successfully completed a planned continuous

preprofessional experience in dietetic

practice of not less than nine hundred hours

under the supervision of a certified

dietitian or a registered dietitian or

demonstrates completion of a coordinated

undergraduate program in dietetics, both of

which meet the training criteria established

by the secretary;

(d) Has satisfactorily completed an

examination for dietitians administered by a

public or private agency or institution

recognized by the secretary as qualified to

administer the examination; and

(e) Has satisfactorily completed courses of

continuing education as currently

established by the secretary.

* * *

(4) Any person seeking certification as a

"certified nutritionist" shall meet the

following qualifications:

(a) Possess the qualifications required to

be a certified dietitian; or

(b) Has received a master's degree or

doctorate degree in one of the following

subject areas: Human nutrition, nutrition

education, foods and nutrition, or public

health nutrition from a college or

university accredited by the Western

association of schools and colleges or a

similar accrediting agency or colleges and

universities approved by the secretary in

rule.

7. The State of Washington has two certifications, one for

dietitians and one for nutritionists. Pursuant to

Section 18.139.030(4), Revised Code of Washington, a person

qualifies to be licensed as a "certified nutritionist" if the

person either meets the requirements for certification as a

dietitian or has received a master's degree in the enumerated

areas of study.

8. Section 468.509, Florida Statutes, provides:

(1) Any person desiring to be licensed as a

dietitian/nutritionist shall apply to the

agency [for Health Care Administration] to

take the licensure examination.

(2) The agency shall examine any applicant

who the board certifies has completed the

application form and remitted the

application and examination fees specified

in s. 468.508 and who:

(a)1. Possesses a baccalaureate or

postbaccalaureate degree with a major course

of study in human nutrition, food and

nutrition, dietetics, or food management, or

an equivalent major course of study, from a

school or program accredited, at the time of

the applicant's graduation, by the

appropriate accrediting agency recognized by

the Commission on Recognition of

Postsecondary Accreditation and the United

States Department of Education; and

2. Has completed a preprofessional

experience component of not less than 900

hours or has education or experience

determined to be equivalent by the board; or

(b)1. Has an academic degree, from a

foreign country, . . .

* * *

(3) The board shall waive the examination

requirement for an applicant who presents

evidence satisfactory to the board that the

applicant is a registered dietitian.

(4) The agency shall license as a

dietitian/nutritionist any applicant who has

remitted the initial licensure fee and has

passed the examination in accordance with

this section.

9. In contrast to Washington State, Florida has only one

certification for dietitians and nutritionists. Pursuant to

Section 468.509, Florida Statutes, a person qualifies to be

licensed as a "dietitian/nutritionist" if the person either

meets the requirements for certification set forth in

Section 468.509(2), Florida Statutes, or is a registered

dietitian.

10. The requirements for licensure as a dietitian in

Washington State are substantially equivalent to the

requirements for certification as a dietitian/nutritionist in

Florida. The requirements for certification as a nutritionist

in Washington State are not, however, substantially equivalent

to the requirements for licensure as a dietitian/nutritionist in

Florida, because a person in Washington State can be certified

as a nutritionist without meeting the requirements for

certification as a dietitian if the person has an advanced

academic degree.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

12. Because this case involves a determination of

Ms. Alonso's eligibility for certification for licensure by

endorsement as a dietitian/nutritionist, she has the burden of

proving by a preponderance of the evidence that she meets all of

the requirements for necessary for such certification. See

Department of Banking & Fin. v. Osborne Stern , 670 So. 2d 932,

934 (Fla. 1996)("[W]hile the burden of producing evidence may

shift between the parties in an application dispute proceeding,

the burden of persuasion remains upon the applicant to prove her

entitlement to the license."); § 120.57(1)(j), Fla. Stat.

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute . . . .").

13. Section 468.513, Florida Statutes, sets out the

requirements for licensure by endorsement as a

dietitian/nutritionist and provides in pertinent part:

(1) The agency shall issue a license to

practice dietetics and nutrition by

endorsement to any applicant who the board

certifies as qualified, upon receipt of a

completed application and the fee specified

in s. 468.508.

(2) The board shall certify as qualified

for licensure by endorsement under this

section any applicant who:

(a) Presents evidence satisfactory to the

board that he or she is a registered

dietitian; or

(b) Holds a valid license to practice

dietetics or nutrition issued by another

state, district, or territory of the United

States, if the criteria for issuance of such

license are determined by the board to be

substantially equivalent to or more

stringent than those of this state.

14. Based on the findings of fact herein, Ms. Alonso has

failed to prove by a preponderance of the evidence that she is

qualified for licensure by endorsement in Florida as a

dietitian/nutritionist. She is not a certified dietitian in the

State of Washington, and the requirements for certification as a

nutritionist in the State of Washington are not substantially

equivalent to the requirements for licensure as a

dietitian/nutritionist in Florida. 2

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Nursing enter a final

order finding that Larisa Alonso failed to satisfy the

requirements of Section 468.513(2), Florida Statutes, and

denying her application for licensure by endorsement as a

dietitian/nutritionist.

DONE AND ENTERED this 19th day of December, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of December, 2008.

ENDNOTES

1 / All references to the Florida Statutes herein shall be to the

2008 edition unless indicated otherwise.

2 / This is not to say, however, that Ms. Alonso may not qualify

for certification as a dietitian/nutritionist pursuant to

Section 468.509(4), Florida Statutes, by submitting proof to the

Board that she meets the requirements in Section 468.509(2)(a),

Florida Statutes, and passing the licensure examination.

COPIES FURNISHED:

Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Rick K. Potter

Post Office Box 1552

Mesquite, Nevada 89024

Allison M. Dudley, Esquire

Office of the Attorney General

PL-01 The Capitol

Tallahassee, Florida 32399

Larisa Alonso

900 Tallwood Avenue, No. 107

Hollywood, Florida 33021

Larry McPherson, Executive Director

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Edward A. Tellechea, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Rosanna Catalano, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.