12-000135 Lucy Ellen Mollan vs. Department Of Health, Board Of Medicine, Dietetics And Nutrition Practice Council Status: Closed Recommended Order on Monday, July 16, 2012.

Summary: Petitioner failed to carry the burden of proof. The application for licensure by examination should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCY ELLEN MOLLAN , )

)

Petitioner , )

)

vs. ) Cas e No. 12 - 0135

)

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, DIETETICS AND )

NUTRITION PRACTICE COUNCIL , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 29, 2012, via video teleconference with sites in

Fort Myers and Tallahassee, Florida. The parties appeared before

Administrative Law Judge Lynne A . Quimby - Pennock of the Division

of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Derek B. Brett, Esquire

The Tate Law Firm, PLLC

1301 West Colonial Drive

Orlando, Florida 32 804

For Respondent: Lynette Norr, Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue is whether Petitione r ' s application for licensure

by examination as a d ietitian/ n utritionist should be granted or

denied for the reasons stated in the Corrected Notice of Intent

to Deny 1/ (CNOI).

PRELIMINARY STATEMENT

On December 16, 2011, the Department of Health, Board of

M edicine, Dietetics and Nutrition Practice Council (Council) ,

notified Petitioner, Lucy Ellen Mollan (Ms. Mollan) , that her

application for licensure by examination was denied. The Council

stated that her " Bachelor ' s degree in health and wellness Î

nutriti on " was " not equivalent to a degree in human nutrition,

food and nutrition, dietetics, or food management, because it

lacks sufficient courses including medical nutrition therapy. "

Ms. Mollan timely submitted a " Petition for Formal Administrative

Hearing (Premised Upon Respondent ' s " Corrected " Notice of

Denial) " (Petition) , wherein she requested:

that the hearing officer issue a recommended

order finding that (1) she is entitled to the

license in question; (2) the Respondent

either exceeded its legal dutie s and/or

erroneously denied the Petitioner the

requested licensenot [sic] in compliance; (3)

directing the Respondent to issue the license

to the Petitioner; and (4) directing the

Respondent to reimburse the Petitioner for

her incurred, reasonable attorney s ' fees and

costs resulting from the instant proceedings.

On January 11, 2012, the Council referred the Petition to

DOAH for the assignment of an Administrative Law Judge.

Following one continuance , the hearing was held on May 29, 2012.

At the final he aring , the parties offered two joint

exhibits , which were received into evidence. Ms. Mollan

testified in her own behalf, and Petitioner ' s Exhibit 1 was

received into evidence. The Council presented the testimony of

Ms. Mollan, Ivy Shivers, and Jodee Dor sey, Ph.D. Respondent ' s

Exhibits 1 through 5 were received into evidence. At the

Council ' s request, and with no objection from Ms. Mollan ,

official recognition was taken of c hapter 468, Part X (Dietetics

and Nutrition Practice) , Florida Statutes (2011) , 2 / and Florida

Administrative Code Chapters 64B8 - 40 and 64B8 - 42.

The one - volume Transcript was filed with DOAH on June 18,

2012. The parties agreed to file their proposed recommended

order (PRO) within ten days of the filing of the Transcript.

Prior to th e PRO filing day, Petitioner ' s Unopposed Motion for

Enlargement of Time for Filing of Proposed Recommended Order

(Motion) was filed. The Motion was granted, and both parties

timely submitted their PRO s . Each PRO has been considered in the

preparation of this Recommended Order.

FINDING S OF FACT

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

Board of Medicine, is the entity responsible for certifying

persons for licensure by examination as a dietitian/nutritionist.

§ 468.509, Fla. Stat. ; Fla. A dmin. Code R . 64B8 - 40.003(1)(a).

2. The requirements for licensure by examination as a

d ietitian/ n utritionist are found in section 468.509 3/ and rule

64B8 - 42.002. 4/

3. Ivy Shivers has worked for the Department of Health for

over 24 years in a variety of positions. Since 1997 , she has

worked in the Medical Quality Assurance (MQA) section. She is

currently a regulatory supervisor consultant. Ms. Shivers

supervises two MQA employees and has oversight of the

administrative processes for the Council, includ ing the

application process, Council agenda preparation, licensure

maintenance, continuing education activities, and related issues.

Neither she nor the two MQA employees she supervises have any

authority over any application other than to ensure that the

Council has a complete application for its review, consideration ,

and determination. Ms. Mollan ' s application was handled in a

routine fashion. Once the noted deficiencies were resolved , and

Ms. Mollan ' s application was complete, it was submitted to the

Council for its review and determination. Her testimony was

credible.

4. Jodee Dorsey , Ph.D., has an extensive educational and

professional background in dietetics and nutrition. Dr. Dorsey

is a Florida - licensed dietitian/nutritionist, and she is also a

registered dietitian. She served on the Council from 2004

through 2009. While on the Council , Dr. Dorsey performed those

duties as set forth in the statutes and rules governing the

Council. Those duties included reviewing applicants (and

applications) for licensure, reviewing requests for temporary

permits, establishing fees, adopting rules as necessary , 5/ and

other responsibilities. Dr. Dorsey was accepted as an expert in

dietetics and nutrition, including the educational requirements

for licensure i n Florida.

5. Several years ago, Ms. Mollan attended Florida Southern

College 6/ in Lakeland, Florida. Thereafter Ms. Mollan obtained an

a ssociate of a rts (AA) degree from Valencia Community College, in

Orlando, Florida. 7/ Her AA was in general education and business

courses. In 2008, Ms. Mollan transferred her AA (108 credits) to

and enrolled in Kaplan University, Online (KU). Ms. Mollan

enrolled in the KU program " XVI Advanced Start Bachelor of

Science in Health and Wellness Î Nutrition. " The KU cour se

catalog reflected that two of the prerequisite requirements for

the program included a natomy and p hysiology I and II. Ms. Mollan

did not complete either course at her undergraduate programs, nor

did she complete either course while at KU.

6. M s. Molla n chose KU based on its representation that ,

once she was finished , she " would have a bachelor ' s degree in

Health and Wellness in their health science college and that ' s

what " she was pursuing.

7. On January 26, 2010, Ms. Mollan earned a " Bachelor of

Scie nce " (Degree) fr om KU.

8. On August 31, 2011, the Council received Ms. Mollan ' s

application for licensure by examination. Her initial

application failed to contain all the required information. The

Council staff requested the missing information from Ms . Mollan.

Once the additional information was received, Ms. Mollan ' s

completed application was placed on the Council agenda.

9. The KU course descriptions provided did not reflect a

major course of study in human nutrition, food and nutrition,

dietetics, or food management, or an equivalent major course of

study. 8/ The KU courses did not specify the requisite dietary or

nutritional elements for courses to be deemed equivalent.

10. When asked about specific KU courses she had taken,

Ms. Mollan ' s testimon y was frequently couched in phrases of " I

believe " it met the requirements, or it was " my understanding "

that the courses were aimed specifically at becoming a dietician.

Her persuasiveness was diminished greatly by the multiple uses of

these equivocal te rms. Further, based on her description of one

specific course, HW 499 (Bachelors Capstone in Health and

Wellness), Ms. Mollan confirmed that she did not make any

progress towards any new nutritional or dietary educational goals

or objectives in that parti cular class, but rather " they just

took all of the stuff that we had done over the years and put it

all together in a neat little package and said this is everything

that you ' ve accomplished. " Ms. Mollan 's course description does

not match the course desc ription that was provided in the KU

cata log.

11. KU measures its course credits in quarter hours. It

was established that , although Ms. Mollan had 40 quarter hours of

credit in her major program , not all of those courses met the

" major course in human nu trition, food and nutrition, dietetics,

or food management, or an equivalent major course study "

requirement. Additionally, when converted to semester hours, she

only had 26.67 semester hours of the requisite course of study.

Thus, Ms. Mollan failed to o btain the requisite semester hours or

equivalent major course of study hours.

12. At the October 28, 2011, general meeting, the Council

was to make a " review of her [Ms. Mollan ' s] education and

experience. " Based on that review, the Council unanimously v oted

to deny the application for licensure by examination " on the

basis the course of study was not deemed equivalent as specified

in the Section 468.509, Florida Statutes. "

13. The degree Ms. Mollan obtained from KU does not reflect

a baccalaureate degre e with a major course of study in human

nutrition, food and nutrition, dietetics, or food management, or

an equivalent major course of study.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subj ect matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

15. Ms. Mollan has applied to the Council for licensure by

examination to practice as a dietitian/nutritionist. As the

applicant for a new license by examination, Ms. Mollan has the

burden of presenting evidence of her fitness for licensure.

Dep ' t of Banking & Fin. v. Osborne Stern , 670 So. 2d 932, 934

(Fla. 1996). If Ms. Mollan presented evidence supporting her

fitness for licensure by examination, the burden of going forward

with eviden ce would shift to the Council to show any violation of

statutes or rules supporting denial. However, the ultimate

burden of persuasion remains upon Ms. Mollan, the applicant. Id.

16. Section 468.509 sets out the requirements for licensure

by examinatio n as a dietitian/nutritionist and provides in

pertinent part:

(1) Any person desiring to be licensed as a

dietitian/nutritionist shall apply to the

agency to take the licensure examination.

(2) The agency shall examine any applicant

who the board certif ies has completed the

application form and remitted the application

and examination fees specified in s. 468.508

a nd who:

(a)1. Possesses a baccalaureate . . . 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 appli cant ' 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 tha n

900 hours or has education or experience

determined to be equivalent by the

board; . . . . [ 9/ ]

17. Rule 64B8 - 42.002(1)(a)1., in pertinent part, provides:

(1) Every applicant for certification by

examination shall file the Application for

Dietitian/Nut ritionist Licensure, DOH Form

DH - MQA 1161, ND APP, Rev. 10/2009, which can

be accessed at www.doh.state.fl.us/mqa, and

demonstrate to the Council that he meets one

of the following:

(a)1. Has a baccalaureate or post

baccalaureate degree with a major in h uman

nutrition, food and nutrition, dietetics,

food management or equivalent major as

determined by the Council from a school or

program accredited by the appropriate

accrediting agency recognized by the Council

on Post - secondary Accreditation or its

succe ssor and the United States Department of

Education . . . .

18. Rule 64B8 - 42.002(2) provides:

(2) An equivalent major as mentioned in

subparagraph 64B8 - 42.002(1)(a)1., F.A.C.,

shall be a course of study specially designed

to prepare an individual to inte grate and

apply principles of nutrition under varying

conditions of health, social, physical,

psychological, and economic status to the

appropriate care, nourishment and education

of individuals or groups throughout the life

cycle. Any major must include at least

thirty semester hours covering human

nutrition, nutrition in health and disease,

nutrition education and counseling, food

science, nutrition in the community, and

administration of food service or nutrition

programs.

19. Based on the F indings of F act above, Ms. Mollan failed

to prove by a preponderance of the evidence that the KU degree

contained a major course of study in human nutrition, food and

nutrition, dietetics or food management , or an equivalent major

course of study. Ms. Mollan failed to provide persuasive

evidence that she met the statutorily - required education.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Medicine, Dietetics and Nutrition Prac tice Council , enter a final

order denying Ms. Mollan ' s application for licensure by

examination as a dietitian/nutritionist in Florida.

DONE AND ENTERED this 16th day of July , 2012 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Di vision of Administrative Hearings

this 16th day of July , 2012 .

ENDNOTE S

1/ A Notice of Intent to Deny was issued on November 21, 2011,

based on the October 28, 2011, meeting of the Council. There

was an error in that document, and the CNOI was issued on

December 16, 2011. This case proceeded to hearing on the CNOI.

2/ References to Florida Statutes are to Florida Statutes (2011),

unless otherwise indicated.

3/ It is noted that section 468.509 has not been amended by the

Florida L egislature since 1 996.

4/ On January 26, 2010, this rule was amended solely as to the

date of a revision to the " Application for Dietitian/Nutritionist

Licensure, DOH Form DH - MQA 1161, ND APP, Rev. 10/2009 ( 12/2008 ) . "

5/ According to rule 64B8 - 40.003(2), the Council pro poses

rules which relate to dietetics and nutrition, and " make[s]

recommendations to the Board [of Medicine] as to the appropriate

action to be taken. "

6/ The Florida Southern College transcript reflects 5.00 credits

earned in an elective 300 level cours e, 3.00 credits earned in an

elective 100 level course, 5.00 credits earned in a humanities

elective course, and 5.00 credits earned in a social science

elective course.

7/ Ms. Mollan testified she " took courses " from Appalachian State

University, but sh e did not provide any specific testimony about

or transcripts of courses taken there.

8/ Dr. Dorsey testified that the KU degree does not contain a

science - based curriculum including organic chemistry,

biochemistry, or biology; however , those requirement s are not

explicitly set forth in section 468.509. Rule 64B8 - 42.002

alludes to a science - based curriculum.

9/ Ms. Mollan does not have a foreign degree ; thus , that section

of the statute is not applicable and will not be addressed.

COPIES FURNISHED:

Derek B. Brett, Esquire

The Tate Law Firm, PLLC

1301 West Colonial Drive

Orlando, Florida 32804

Lynette Norr, Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

Jennifer A. Tschetter, General Counsel

Dep artment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Allen Hall, Executive Director

Dietetics and Nutrition

Practice Council

Department of Health

4052 Bald Cypress Way, Bin C05

Tallahassee, Florida 32399 - 1701

NOTICE OF RI GHT 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 .