14-001972PL Department Of Health, Board Of Nursing vs. Zauher Karim, C.N.A. Status: Closed Recommended Order on Friday, December 5, 2014.

Summary: Respondent exceeded the permitted scope of practice for a certified nursing assistant; made false and misleading representations; and held himself out as a medical doctor without being licensed as an M.D. His C.N.A. license should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 14 - 1972PL

ZAUHER KARIM, C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on August 27, 2014, in St. Petersburg,

Florida.

APPEARANCES

For Petitioner: Yolonda Y. Green, Esquire

Ana M. Gargollo - M cDonald, Esquire

Lauren A. Leikam, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Thomas W. Caufman, Esquire

David M. Greene, Esquire

Quintairos, Prieto, Wood and Boyer, P.A.

4905 West Laurel Street, Suite 200

Tampa, Florida 33607

STATEMENT OF THE ISSUE

The issue i n this case is whether the allegations set forth

in the Administrative Complaint filed by Petitioner, Department

of Health, Board of Nursing, against Respondent, Zauher Karim,

C.N.A., are correct, and, if so, what penalty should be imposed.

PRELIMINARY STA TEMENT

Petitioner filed a two - count Administrative Complaint

against Respondent on April 1, 2013. Respondent timely filed a

request for a hearing involving disputed issues of material fact

on April 22, 2013. The matter was referred to the Division of

Adm inistrative Hearings on April 29, 2014. The undersigned was

assigned as the administrative l aw j udge to preside over this

matter. After one continuance at the request of the parties, t he

final hearing took place on August 27, 2014, with both parties

repr esented by legal counsel. On August 25, 2014, two days prior

to the final hearing, Respondent filed a Motion in Limine to

Exclude RespondentÓs Uncounseled Request for Admissions Filed

(Motion in Limine) . At the beginning of the hearing on

August 27, the undersigned denied the Motion in Limine.

At the hearing, Petitioner presented the testimony of three

witnesses , Michael Smith, Department Investigator; John Daidone,

R.N.; and Respondent Za uh er Karim, C.N.A., all of whom appeared

in person. Petitioner als o offered into evidence the deposition

transcripts in lieu of live testimony of Victor Mendez, C.N.A.,

and Philip N. Styne, M.D., A.G.A.F., and offered 17 e xhibits, all

of which were admitted into evidence. Respondent testified on

his own behalf and offer ed 10 e xhibits, all of which were

admitted into evidence.

A one - volume Transcript was filed on September 29, 2014 .

Petitioner and Respondent filed their proposed findings of fact

and conclusions of law on November 10, 2014 .

References to statutes are to Florida Statutes (201 2 ) unless

otherwise noted.

FINDING S OF FACT

1. Petitioner is the state agency charged with regulating

the practice of nur sing assistan ce , pursuant to c hapters 20, 456,

and 464, Florida Statutes.

2. At all times material to the A dministrative Complaint,

Respondent was a certified nursing assistant (C.N.A.) in the

S tate of Florida, having been issued C ertificate No. C NA 191405.

The certificate was issued on June 27, 2009.

3. At all times material to the Administrative Complaint,

Respondent did not hold any other medical licenses or

certificates issued by the Florida Department of Health.

4. On October 17, 2010, Respondent submitted a H ealth C are

Clinic Establishment (HCCE) application to the Department of

Health for Chantilly Hea lth Research (Chantilly Health) located

at 12800 Indian Rocks Road, Indian Rocks, Florida 33774.

Chantilly Health was also known as Chantilly Health and Wellness.

5. At all times material to the Administrative Complaint,

the address of record listed on R espondentÓs C.N.A. certificate

was the same location as Chantilly Health. RespondentÓs current

address of record is 12199 Indian Rocks Road, Largo, Florida

33774.

6. In his application for HCCE license, Respondent listed

Dr. Dunja Boljesic as the Designa ted Qualifying Practitioner.

Respondent signed the application as the c linic m anager.

Dr. Bol j e s ic had retired and was no longer physically present at

Chantilly Health at the time of the investigation giving rise to

the Administrative Complaint. It is u nknown whether Dr. Bol j esic

currently maintains any ownership or financial interest in

Chantilly Health.

7. On November 30, 2010, the Florida D epartment of H ealth,

Division of Medical Quality Assurance, issued the HCCE license to

Chantilly Health, L icense No. 604026.

8. Chantilly Health was also licensed with the City of

Largo as a Ð C linic of D octors,Ñ a health food store, and a

dietary supplement store.

9. Respondent had three different filings with the Florida

Secretary of State, Division of Corporatio ns (Sunbiz): one for a

research company, one for Ðvitamin,Ñ and one for a health and

nutrition clinic.

10. On January 27, 201 2 , Department investigator

Michael Smith approached Respondent at Chantilly Health and told

him he had been diagnosed with multip le myeloma.

11. In response to Mr. SmithÓs questions regarding his

feigned illness, Mr. Smith testified that Mr. Karim informed him

that he could draw blood from him and utilize an independent

laboratory to obtain additional information about a specific t ype

of cancer. The laboratory testing would neither be done by

Respondent n or Chantilly Health, and would cost $195. Mr. Karim

denies having offered to draw blood from Mr. Smith, but testified

he could draw a small sample to send to an independent labora tory

for testing.

12. Respondent had a glucose and hemoglobin meter at

Chantilly Health which he used to draw small samples of blood to

determine iron and glucose levels. He did not perform these

tests on Mr. Smith , primarily since Mr. Smith refused to have any

actual tests performed upon him by Respondent .

13 . Had he drawn blood from Mr. Smith, Respondent would not

have received any direct or indirect financial benefit or

remuneration from the third - party laboratory.

14 . Respondent advised Mr. Smit h that multiple myeloma, a

form of cancer, is related to an inflammation in the gastro -

intestinal tract as well as suffering from Ð toxicity. Ñ He

offered to help Mr. Smith strengthen his immune system, which

would have included a liver detoxification.

15 . Respondent offered to have a blood test performed,

after which he would devise a holistic plan of detoxification for

Mr. Smith. Mr. Smith chose not to have any of these services

performed or ordered by Respondent since he was acting as an

investigator and not an actual potential customer of Chantilly

Health.

16. Mr. Smith asked R espondent if he was a doctor.

Respondent stated he was a doctor Ðin nutrition medicine and no

pharmaceuticals.Ñ He handed Mr. Smith two business cards. The

cards contained t he following language:

Card one:

Chantilly Natural H ealth Research, Functional Blood Nutrition &

Lipid - profile, Cardio Risk APW IN - Ratio, centres of enzyme

research, Functional Medicine and Orthomolecular Medicine

research, Board Certified Fellow of Americ an A ssociation of

Integrative M edicine, Board Certified Am Anti - Aging &

Regenerative Med, Board Certified American Alternative Medicine,

Reg/Lic: Washington, D . C . , West Virginia, DC . . . ; WV . . . dr.

karim , w ww.chantillyhealth.com

Card two:

Chantilly Natural H ealth Research, Functional Blood Nutrition &

Lipid - profile, Cardio Risk APW IN - Ratio, z.karim, centres of

enzyme research, Functional Medicine & Orthomolecular Medicine

Research, Board C ertified & Fell ow of American Association of

Integrative Medicine , Board Certified, Am Anti - Aging &

Regenerative Med, Board certified American Alternative Medicine,

Reg/Lic: Washington, D.C., West Virginia, Florida . . .

www.chantillyhealth.com www.chantillyhealth.us

1 7. The cards also displayed a logo that read ÐAmerican

Association of Integrative Medicine, The Medical Society for the

21st Century,Ñ and contained a logo of a staff with two snakes

entwined, commonly known as a Ðcaduceus.Ñ

18. Respondent testified he a pplied for all the b oard

certifications listed on his business cards and that he provided

these credentialing associations with documentation of his

credentials and transcripts. None of these board certifications

are related to a Florida license held by R espondent.

19. In January 2013, Mr. Smith returned to Chantilly Health

and observed a certificate on the wall with RespondentÓs name and

the initials ÐM.D.Ñ following his name. The initials ÐM.D.Ñ

commonly refer to Ðmedical doctor.Ñ

20. Respondent is no t licensed as a medical doctor in

Florida.

21. Respondent is not licensed as a naturopathic physician

in Florida.

22. Respondent admitted to Mr. Smith that he refers to

himself as a doctor on his business cards and on the internet.

He says he uses the t erm ÐdoctorÑ to mean a doctor of oriental

medicine.

23. Respondent is not licensed as an acupuncturist in

Florida.

24. Respondent admitted giving information about Vitamin E

supplements to Mr. Smith.

25. Respondent admitted having a glucose meter and a

hemoglobin meter at Chantilly Health.

26. Respondent admitted performing blood glucose level

screenings at Chantilly Health.

27. Respondent testified that he performed hemoglobin tests

at Chantilly Health to look at hematocrit iron levels and

cholesterol levels.

28. Respondent testified that he advised individuals on

whom he performed blood glucose level screenings to Ðcut downÑ on

their sugar intake.

29. Respondent admitted telling individuals on whom he

performed hemoglobin tests to increase their liv er intake by once

a week.

30. Respondent admitted he should not use the term ÐdoctorÑ

in Florida.

31. Respondent testified that he had never been licensed as

a medical doctor in any state.

32. Petitioner submitted into evidence in lieu of live

testimony , the deposition transcript of Victor Mendez, C.N.A.,

who is accepted as an expert in nursing assistance based upon his

credentials and experience . He testified as to the standard of

care and scope of practice for C.N.A.s.

33. A C.N.A. is restricted to working under the direct

supervision of a licensed practical nurse or registered nurse.

The job of a C.N.A. is to observe and assist patients. A C.N.A.

is not permitted to prescribe any type of supplement or

medication when performing his or her duties. A C.N.A. is not

permitted to recommend vitamins or supplements even if they are

available without a prescription, and may not recommend changes

in dietary intake.

34. According to Mr. Mendez, C.N.A.s are not permitted to

run diagnostic tests, diagnose p atients, evaluate diagnos e s, or

recommend treatments.

35. Mr. Mendez observed that Chantilly Health was set up

much like a medical office with a seating or waiting area, the

credentials displayed, RespondentÓs attire ( personalized surgical

scrubs), and th e products displayed.

36. Mr. Mendez noted that the type of surgical scrubs worn

by Respondent were more akin to those worn by physicians in a

health care setting than those worn by non - medical health care

staff.

37. Mr. Mendez opined that Respondent tel ling Mr. Smith he

was suffering from Ðleaky gutÑ was a diagnosis of an individualÓs

condition which is clearly outside the scope of practice of a

C.N.A. Likewise, RespondentÓs offer both to conduct blood tests

and create a treatment plan was outside the s cope of a C.N.A.Ós

license.

38. Petitioner also presented the expert testimony of

Philip N. Styne, M.D., through a transcript of his deposition

taken in lieu of live testimony at the final hearing. Dr. Styne

was presented as an expert in the fields of in ternal medicine and

gastroenterology. Dr. Styne has been licensed as a medical

doctor in Florida since 1979, and is board certified in internal

medicine and gastroenterology. He is also the medical director

of Digestive Health Clinical Informatics and Li ver Services for

Florida Hospital. Based upon Dr. StyneÓs credentials and

experience, the undersigned accepts him as an expert for purpose

of offering opinion testimony in this matter.

39. Dr. S t yne provided a description of what characterizes

multiple myeloma, the disease feigned by Mr. Smith during his

investigation of Respondent. Dr. Styne testified that multiple

myeloma is treated by chemotherapy, an allogen e ic or autologous

blood or bone marrow transplant, or a combination of these.

Detoxifying t he liver is not an accepted form of medical

treatment in his opinion. If a patient presented himself to

Dr. Styne suffering from multiple myeloma, he would seek a

referral to a board - certified oncologist, an internist who

specializes in the treatment of c ancer. He would make the

referral since multiple myeloma is not particular to his

specialty, and because it is usually a lethal disease.

40. On December 30, 2013, Respondent submitted a copy of

John DaidoneÓs r egistered n ursing license to Petitioner al ong

with his request for a hearing before the Board of Nursing.

Respondent wrote on the copy of the license that Mr. Daidone had

supervised him since February 2003. Respondent has only held a

C.N.A. license since June 26, 2009.

41. Mr. Daidone testified on behalf of Petitioner at the

hearing. He has been licensed as a registered nurse in Florida

since around 1990. After presenting a detailed description of

his work experience, Mr. Daidone testified he had never

supervised Respondent.

42. Mr. Daidone was originally referred to Respondent when

he needed a blood test performed. Respondent pricked

Mr. DaidoneÓs finger to draw blood which he examined under a

microscope. Respondent advised Mr. Daidone that he was suffering

from mycoplasma pneumonia and g ave him some supplements to treat

his condition. Mycoplasma pneumonia is an infection of the lungs

caused by bacteria of a similar name. Respondent gave

Mr. Daidone a signed document stating he had the disease and

signing it ÐZ. Karim, N.D.Ñ The abbrevi ation N.D. stands for

naturopathic doctor. Respondent also attached a Chantilly Health

business card to the document listing him as an M.D.

43. Mr. Daidone last spoke with Respondent about two months

prior to the final hearing, at which time Respondent a sked him to

say he had supervised Respondent.

44. When testifying, Respondent claimed that Mr. Daidone

had signed RespondentÓs name on the document with the initials

ÐM.D.Ñ after it. Respondent stated he may have signed a blank

piece of paper that Mr. D a idone completed at a later time.

Respondent further testified that Mr. D a idone must have picked up

a business card from Chantilly Health and photocopied it to the

document he created at a later time. Respondent admitted he kept

his business cards in th e lobby of Chantilly Health in an area

accessible to the public.

45. Mr. Daidone could n ot recall whether he or Respondent

typed the letter, or whether it was his handwriting or that of

another person appearing on the letter. Mr. Daidone candidly

admitte d he has problems with his recall and memory.

46. In January 2013, Respondent was issued a Uniform

Unlicensed Activity Citation by the Florida Department of Health

for practicing medicine in violation of c hapters 456 and 458,

Florida Statutes. Respondent entered into a Settlement Agreement

in that matter in which he neither admitted nor denied the facts

alleged in the citation, and paid $4,754.11 (representing a fine

of $1,000.00 and costs of $3,754.11) to resolve the citation.

Respondent also agreed not to violate any provision of

ch apter 456 or any Florida statute or rule related to the

practice of any health care profession.

C ONCLUSIONS OF LAW

4 7 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to th is

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

4 8 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature. State

ex rel. Vining v. Fl a. Real Estate CommÓn , 281 So. 2d 487, 491

(Fla. 1973) . Since administrative penalties and fines are penal

in nature, Petitioner has the burden of proving by clear and

convincing evidence the allegations of the Administrative

Complaint. Dep't of Banking & Fin. v. Osborne Stern & Co. , 670

So. 2d 932, 933 - 34 ( Fla. 1996); Ferris v. Turlington , 510 So. 2d

292 , 294 - 95 (Fla. 1987).

49 . The Ðclear and convincingÑ standard requires:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion as

to the facts in issue. The evidence must be

of such weight that it produces in the mind

of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re: Davey , 645 So. 2d 398, 404 (Fla. 1994) ( quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

5 0 . Statutes that authorize the imposition of penal

sanctions are strictly construed. Any a mbiguity in the law is

construed in favor of the licensee . Elmariah v. DepÓt of ProfÓl

Reg. , Bd. of Med . , 574 So. 2d 164, 165 (Fla. 1st DCA 1990).

5 1 . The grounds proven in support of PetitionerÓs assertion

that RespondentÓs license should be disciplined must be those

specifically alleged in the administrative complaint. See , e.g. ,

Trevisani v. DepÓt of Health , 908 So. 2d 1108 , 1109 (Fla. 1st DCA

2005 ); Kinney v. DepÓt of State , 501 So. 2d 129 , 133 (Fla. 5th

DCA 1987); and Delk v. DepÓt of ProfÓl Reg. , 5 95 So. 2d 966, 967

(Fla. 2nd DCA 1984). Due process prohibits Petitioner from

taking disciplinary action against a licensee based on matters

not specifically alleged in the charging instrument, unless those

matters have been tried by consent. See Shore V ill . Prop.

OwnersÓ Ass Ón , Inc. v. DepÓt of Env tl. Prot . , 824 So. 2d 208, 210

(Fla. 4th DCA 2002).

5 2 . Petitioner brought a two - count Administrative Complaint

against Respondent. Each of the counts will be examined, in

turn, to determine whether violation s occurred and what, if any,

discipline should be imposed.

COUNT I

5 3 . In Count I of the Administrative Complaint, Petitioner

charged Respondent under section 464.204(1)(b), which provides

that discipline may be imposed for Ðintentionally violating any

provision of this chapter [464], chapter 456, or the rules

adopted by the board [of nursing].Ñ Further, this c ount charged

Respondent with violating section 456.072(1)(o), which provides

for the imposition of discipline for Ð[p]racticing or offering to

pr actice beyond the scope permitted by law or accepting and

performing professional responsibilities the licensee knows, or

has reason to know, the licensee is not competent to perform.Ñ

5 4 . Section 464.201 provides, in relevant part, the

following definiti ons:

(3) ÐCertified nursing assistantÑ means a

person who meets the qualifications specified

in this part and who is certified by the

board as a certified nursing assistant.

* * *

(5) ÐPractice of a certified nursing

assistantÑ means providing care and assisting

persons with tasks relating to the activities

of daily living. Such tasks are those

associated with personal care, maintaining

mobility, nutrition and hydration, toileting

and elimination, assistive devices, safety

and cleanliness, data gat hering, reporting

abnormal signs and symptoms, postmortem care,

patient socialization and reality

orientation, end - of - life care,

cardiopulmonary resuscitation and emergency

care, residentsÓ or patientsÓ rights,

documentation of nursing - assistant services,

and other tasks that a certified nurse

assistant may perform after training beyond

that required for initial certification and

upon validation of competence in that skill

by a registered nurse. This subsection does

not restrict the ability of any person w ho is

otherwise trained and educated from

performing such tasks.

5 5 . Florida Administrative Code Rule 64B9 - 15.002 further

delineates what the C.N.A. authorized duties are:

(1) A certified nursing assistant shall

provide care and assist residents with the

following tasks related to the activities of

daily living only under the general

supervision of a registered nurse or licensed

practical nurse:

(a) Tasks associated with personal care:

1. Bathing;

2. Dressing;

3. Grooming;

4. Shaving;

5. Shampooing and caring for hair;

6. Providing and assisting with oral

hygiene and denture care;

7. Caring for the skin;

8. Caring for the feet;

9. Caring for the nails;

10. Providing pericare;

11. Bed making and handling linen;

12. Maintaining a clean environm ent.

(b) Tasks associated with maintaining

mobility:

1. Ambulating;

2. Transferring;

3. Transporting;

4. Positioning;

5. Turning;

6. Lifting;

7. Performing range of motion exercises;

8. Maintaining body alignment.

(c) Tasks associated with nut rition and

hydration:

1. Feeding and assisting the resident with

eating;

2. Assisting the resident with drinking.

* * *

(3) A certified nursing assistant shall not

perform any task which requires specialized

nursing knowledge, judgment, or skills .

* * *

(5) A certified nursing assistant shall not

work independently without the supervision of

a registered nurse or a licensed practical

nurse.

Rule 64B9 - 15.001(6) provides, in relevant part, that:

ÐGeneral SupervisionÑ means a registered

nurse or a licensed practical nurse currently

licensed under Chapter 464, F.S., to the

extent allowed under Section 400.23(3), F.S.,

authorizing procedures being carried out by a

certified nursing assistant but who need not

be present when such procedures are

p erformed. The certified nursing assistant

must be able to contact the registered nurse

or licensed practical nurse acting in

accordance with Section 400.23(3), F.S., when

needed for consultation and advice either in

person or by communication devices.

Se ction 464.003(20), Florida Statutes, provides, in relevant

part, that:

ÐPractice of professional nursingÑ means the

performance of those acts requiring

substantial specialized knowledge, judgment,

and nursing skill based upon applied

principles of psycholo gical, biological,

physical, and social sciences which shall

include, but not be limited to:

(a) The observation, assessment, nursing

diagnosis, planning, intervention, and

evaluation of care; health teaching and

counseling of the ill, injured, or infirm ;

and the promotion of wellness, maintenance of

health, and prevention of illness of others.

(b) The administration of medications and

treatments as prescribed or authorized by a

duly licensed practitioner authorized by the

laws of this state to prescrib e such

medications and treatments.

5 6 . Certified nursing assistants, pursuant to section

464.204(1)(b), are subject to discipline for intentional

violations of chapters 456 and 464. Sections 456 and 464 and the

rules promulgated pursuant to these chapte rs clearly delineate

the duties of a certified nursing assistant, and limit those

duties by stating that a certified nursing assistant shall not

perform any task which requires specialized nursing knowledge,

judgment, or skills. In this matter, the clear and convincing

evidence supports a finding that Respondent intentionally

practiced, offered to practice, or attempted to practice, under

the auspices of Chantilly Health, beyond the scope permitted by

law for the only Florida health care license he possess ed, that

of a certified nursing assistant. While Respondent believed that

his training in naturopathic medicine, acupuncture, and any of

the other holistic or alternative medical disciplines he has

engaged in (and received licensure for) outside the S tate of

Florida qualified him to perform the health care services he

provided , he possesses no Florida licens e to perform these

services beyond those authorized to be performed by a c ertified

nursing assistant. Holding a valid C.N.A. license does not

authoriz e Respondent to perform a blood test, analyze the test

results, provide a diagnosis, and create a treatment plan for

Michael Smith, all of which the evidence demonstrates w ere

offered by Respondent in this case.

5 7 . RespondentÓs C.N.A. license in effect at the time he

saw Mr. Smith at Chantilly Health (C NA 191405) was issued on

June 27, 2009. While certified by the S tate of Florida, on

January 27, 2012, Respondent offered to perform a blood test ;

provided an alternative diagnosis to the serious disease p rocess

represented by m ultiple m yeloma (that it was an inflammation of

the gastro - intestinal tract and toxicity) ; offered to detoxify

Mr. SmithÓs liver ; and offered to create a holistic treatment

plan. Chapter 464, Florida Statutes, and Florida Administra tive

Code Rules 64B9 - 15.001 and 64B9 - 15.002 make it clear the

limitations imposed on a C.N.A., and what tasks must be performed

under the supervision of a registered nurse or licensed practical

nurse. Rule 64B9 - 15.002 specifically states what tasks a C.N. A.

is not to perform. Tasks that require specialized nursing

knowledge, judgment, or skills such as performing blood tests,

analyzing test results, providing diagnosis, and creating

treatment plans are tasks that C.N.A.s cannot perform. The

expert testim ony of Victor Mendez, C.N.A . , adds to this that

nursing assistants are not even allowed to recommend treatments

to patients that include over - the - counter products or

supplements. RespondentÓs testimony, the expert testimony of

Mr. Mendez , and PetitionerÓs exhibits and non - expert testimony ,

taken collectively, provide clear and convincing evidence to

support the allegations of the A dministrative C omplaint giving

rise to this action. Without question, Respondent intentionally

practiced or offered to practic e beyond the scope of his license

as a C.N.A.

5 8 . Respondent provided documentation to demonstrate he was

working as a C.N.A. under the supervision of a registered nurse

during the time alleged in the Administrative Complaint. On

December 30, 2013, when submitting his request for an

administrative hearing, Respondent provided Petitioner a copy of

John DaidoneÓs nursing license, and handwrote on the copy that

Mr. Daidone had been his supervisor from 2003 to the present. At

hearing, Mr. Daidone denied he had ever supervised Respondent.

Respondent even admitted, while testifying at hearing, that ÐI

donÓt think he really supervised me.Ñ However, this does not

negate the fact that Respondent held himself out as a C.N.A.

under the supervision of Mr. Daidone, a Florida registered nurse.

59 . In one defense to the charges , Respondent claims

Chantilly Health was not meant to be a health care clinic.

However, as noted previously, Chantilly Health, with Dr. Dunja

Bol j esic listed as the clinical director and Res pondent listed as

the clinic manager , submitted a HCCE a pplication and was awarded

L icense No. 604026 , which was valid from November 30 , 2010 , until

November 30 , 2012. Also, license applications filed with the

City of Largo and the Florida Division of Cor porations identified

Chantilly as a health care clinic. Dr. Bol j esic had retired and

was no longer affiliated with Chantilly Health at the time of the

visit by Mr. Smith which formed the basis for Count I of the

Administrative Complaint. Under no reasona ble reading of

chapter 464 does a C.N.A. have the authority to run, unsupervised

by medical personnel with a higher degree of licensure (e.g., an

M.D. or R.N.) , a health care clinic.

6 0 . Even if , as Respondent alternatively argues , he was

merely working in a retail, non - clinic al facility, he can still

be disciplined by the Board of Nursing for intentionally

violating any provision of chapter 464, 456, or any of the rules

promulgated pursuant to those regulatory statutes.

§ 464.204(1)(b), Fla. Stat. Sta tutes that govern the Regulation

of Professionals and Occupations, chapters 454 - 493, and all

applicable rules adopted pursuant to these statutes, do not limit

the authority of the licensing board to discipline a licenseeÓs

license or certification, based u pon the location of where a

licensee performs duties related to, or beyond the scope of, the

license. See DepÓt of Health, Bd. o f Med . v. Coker, P.A. , Case

No. 03 - 2690PL (Fla. DOAH Oct. 31, 2003; Fla. DOH Dec. 15,

2003)(finding Respondent violated practic e act while seeing

patients at adult entertainment clubs). See also r ule 64B16 -

27.100(5)(stating that a pharmacist performing . . . any of the

acts defined as Ðthe practice of the profession of

pharmacyÑ . . . shall be actively licensed as a pharmacist in

this state, regardless of whether the practice occurs in a

permitted location (facility) or other location ) .

6 1 . Respondent argu es that he did not hold himself out as a

C.N.A. while working at Chantilly Health. Section 456.072(1)(t),

subjects a health care professional to discipline for failing to

identify himself or herself through the wearing of a badge (or

other written means like a name tag, or, presumably, a lab coat

or scrubs with name embroidered), or orally. However, if a

facility is licensed under chapter 394, 395, 400, or 429, such

identification is not required. Respondent testified, and

P etitioner confirmed, that Chantilly Health had applied for and

held a license as a HCCE , licensed under chapter 400. Therefore,

Respondent was not requir ed to identify himself through written

notice, which included the wearing of a name tag, or to orally

state the type of license under which he was practicing .

62 . In order to justify performing services beyond those

authorized to be performed by a C.N.A ., Respondent testified that

he is a licensed phlebotomist and therefore authorized to draw

blood for testing purposes . However, he neither produced a

license nor could identify when he became licensed.

Additionally, Respondent failed to produce any evid ence that he

received additional training that would permit him to analyze

test results, provide diagnoses, and create treatment plans.

Therefore, Respondent failed to prove that he is authorized to

perform any health care related services in Florida beyo nd those

enumerated in section 464.201(5) and rule 64B9 - 15.002.

6 3 . Petitioner has proved, by clear and convincing

evidence, that Respondent committed the violations contained in

Count I of the Administrative Complaint. Respondent

intentionally practiced or offered to practice beyond the scope

permitted by law or accepted and performed professional

responsibilities the licensee knows, or has reason to know, the

licensee is not competent to perform in violation of section

464.204(1)(b), by intentionally vi olating section 456.07 2 (1)(o).

The evidence established that Respondent was a certified nursing

assistant, and that the scope of practice for his profession was

limited by section 464.201, and r ule s 64B9 - 15.001 and .002 .

Offering to perform glucose and h emoglobin tests, giving medical

advice based upon the test results, providing a diagnosis of an

individualÓs condition , and developing a treatment plan are

beyond the scope permitted by RespondentÓs nursing assistant

certification. Therefore, Petitioner h as proven, by clear and

convincing evidence, that Respondent has violated section

464.20 4 (1)(b), by intentionally violating section 456.072(1)(o) .

COUNT II

6 4 . Count II of the Administrative Complaint charged

Respondent under section 464 .20 4 (1)(b), which provides that,

Ð Intentionally violating any provision of this chapter, chapter

456, or the rules adopted by the board Ñ through an intentional

violation of section 456.072(1)(m), which provides that , Ð Making

deceptive, untrue, or fraudulent representations in or related to

the practice of a profession or employing a trick or scheme in or

related to the practice of a profession Ñ constitute s grounds for

which the disciplinary actions may be taken. In Count I,

Petitioner established that Respondent was engage d in activities,

while licensed as a C.N.A., beyond the scope of his

certification. Under section 456.072(1)(m), a r espondent is not

required to have committed the violation in or related to the

practice of the licenseeÓs profession, as is specifically

re quired by section 456.072(1)(a) of that same statute. Here,

based upon clear and convincing evidence, Respondent has held

himself out as a medical doctor while only being certified as a

C.N.A. in Florida. As a health care licensee in Florida,

Respondent is subject to the applicable statutes and rules

related to his area of practice. He is therefore responsible for

any violations of section 464.204(1)(b), whether committed in or

related to his profession or a profession. § 456.072(1)(m), Fla.

Stat.; Sanf iel v. DepÓt of Health , 749 So. 2d 525 , 526 (Fla. 5th

DCA 1999). Accordingly, it is not required that Respondent act

within the scope of his license to have violated section

456.072(1)(m).

6 5 . Even where a relationship is required, Florida courts

have construed the statutory language Ðrelating toÑ the practice

of a licenseeÓs profession under section 456.072(1)(c), broadly

to encompass conduct that constitutes danger to the public health

or welfare. For example, in Rush v. Dep artment of Prof essiona l

Re g ulation , Board o f Podiatry , 448 So. 2d 26 , 27 - 28 ( Fla. 1st DCA

1984), the court found that the crime of importation of marijuana

need not be directly related to the technical practice of

podiatry, but can relate to crimes arising out of misconduct in

the office setting. Similarly, other Florida courts have made

findings that crimes other than those specifically proscribed by

a licenseeÓs practice act may nonetheless be related to the

practice of the profession. See Ashe v. DepÓt of ProfÓl Reg . ,

Bd. o f Ac countancy , 467 So. 2d 814 , 815 (Fla. 5th DCA

1985)(accountant convicted of wire fraud and interstate

transportation of false and forged securities found to have

committed a crime related to the practice of accountancy);

Greenwald v. DepÓt of ProfÓl Reg . , 5 01 So. 2d 740 (Fla. 3d DCA

1987)(physician solicits an individual to murder his wife related

to the practice of medicine); and Doll v. DepÓt of Health , 969

So. 2d 1103 , 1106 (Fla. 1st DCA 2007)(chiropractorÓs guilty plea

to conspiracy to defraud a health b eneficiary program was related

to the practice of chiropractic medicine).

6 6 . The language Ðrelating to the practice of a professionÑ

found in section 456.072(1)(m) , regarding making deceptive,

untrue, or fraudulent representations and/or employing a tric k or

scheme in or related to the practice of a profession should also

be construed broadly to encompass behavior that poses a danger to

the public welfare. In this case, the misrepresentations

R espondent made despite only possessing a C.N.A. license in

Fl orida constitute a level of fraud and deception that clearly

pos e a danger to the public. Contrary to R espondentÓs assertion

that Chantilly Health was merely a retail store, the record at

hearing clearly proves that Respondent held out his facility to

the public as some sort of medical clinic and held himself out as

a doctor licensed in Florida. Chantilly Health was licensed as a

HCCE by the Department of Health and classified as a ÐClinic of

DoctorsÑ with the City of Largo. Dr. Dunja Bol j esic was listed

as Chantilly HealthÓs designated physician. No evidence was

produced at hearing that any other physician licensed in Florida

was affiliated in any manner with this ÐClinic of DoctorsÑ or

that Dr. Bol j esic had been involved with the clinic since shortly

a fter the license was obtained. Within the facility itself,

Respondent sold products that had been privately labeled to make

them appear to be specially formulated for sale at Chantilly

Health. Respondent displayed a diploma, in an area viewable by

the pu blic, indicating the credentials of M.D., a designation not

given him by the S tate of Florida. Respondent wore medical

scrubs and dispensed business cards referring to himself as

Ðdr. karim,Ñ and listing several medical board certifications,

none of which confer upon him any Florida licensure or

certification. His method of listing the certifications,

followed by telephone numbers in three different states

(including Florida) give the misleading impression that he is

licensed in Florida in more than just his C.N.A. designation.

Respondent also displayed a large caduceus, a symbol depicting a

staff with two snakes entwined, which many take as a symbol for a

physician.

6 7 . As explained above, PetitionerÓs investigator,

Michael Smith, posing as a sufferer o f m ultiple m yeloma was

provided a diagnosis by R espondent, offered diagnostic tests to

be run, and was offered the option of having a holistic treatment

plan for an initial fee of $195. Further, Respondent

specifically told Mr. Smith that he was a doctor (although he

said Ðdoctor without pharmaceuticalsÑ). Later, after complaints

arose from Petitioner, Respondent said he meant a doctor of

oriental medicine.

6 8 . John Daidone, a Florida registered nurse, had his blood

analyzed by Respondent under a microsc ope. Respondent determined

he suffered from mycoplasma pneumonia, and created a medical

record of Mr. DaidoneÓs visit. That document was signed

ÐDr. Karim, N.D.Ñ and a business card was attached displaying the

credentials M.D. after his name. Respondent admitted under oath

that he administered glucose and hemoglobin blood tests to

customers, provided the customers with the test results, and

advised them to adjust their dietary intake.

69 . To summarize, the only valid Florida license held by

Respondent i s as a C.N.A. Respondent has never held a license as

a medical doctor in any state in the United States. Further,

naturopathic physicians and acupuncturist s in Florida do not

advertise board certifications, yet medical doctors are allowed

to advertise bo ard certifications from accrediting agencies that

have been approved by the B oard of M edicine. RespondentÓs

business cards were clearly an attempt to defraud or mislead the

public into believing he has medical credentials in Florida far

greater than those of a C.N.A. As a C.N.A., Respondent was

permitted to act , under direct supervision of a registered or

licensed practical nurse, within the limited scope of practice

which was specifically defined in the Florida A dministrative

Code. In addition to the li mitations imposed, Respondent as a

C.N.A. is prohibited from performing any task which requires

Ðspecialized nursing knowledge, judgment, or skills.Ñ

Fla. Admin. Code R. 64B - 15.002(6). Additionally, Victor Mendez,

C.N.A., PetitionerÓs expert, noted that C.N.A.s are not permitted

to run diagnostic tests, diagnose patients, or recommend

treatments to patients including over - the - counter products or

supplements.

7 0 . Given the entire picture painted by the testimony and

evidence at the hearing, the only reaso nable conclusion to reach

in this matter is that RespondentÓs behavior and actions owning

and operating Chantilly Health is that he was operating a health

clinic as a licensed Florida physician, whether it be a medical

doctor, naturopathic physician, nutri tionist, and/or

acupuncturist regulated by the Florida Department of Health. His

business cards, which were available to the public and handed out

to at least two witnesses who testified at the hearing, Michael

Smith and John Daidone, would lead anyone to conclude, albeit

wrongly, that Respondent is some sort of licensed Florida

physician. Respondent is not a Florida licensed, qualified

medical provider, and by holding himself out as one, he has

subjected himself to penalties and sanctions. Based upon cl ear

and convincing evidence, R espondent had held himself out as a

Florida physician and has provided services that only a physician

(or perhaps a registered nurse in specific circumstances) may

provide. His representations were deceptive, untrue, and

frau dulent, and he had reason to know, based upon his licensure

as a C.N.A. in Florida, as well as those licenses he held in

other disciplines in states outside Florida, that he was

performing tasks in Florida for which he was neither licensed,

certified, n or formally trained according to the requirements of

the licensing authority in this state.

7 1 . The appropriate discipline to be imposed in this case

is listed in rule 64B9 - 15.009, which provides for penalties

ranging from fines and probation to denial of ce rtification or

revocation for a first offense ; and slightly higher fines with

the same option of probation, denial of certification or

revocation for a second offense. The clear and convincing

evidence in this matter support findings that Respondent viola ted

section 464.204(1)(b), by knowingly violating section

456.072(1)(o) and (m), as described above. Rule 64B9 -

15.009 (5)(a) , allows Petitioner to deviate from the foregoing

guidelines upon a showing of aggravating or mitigating

circumstances by clear and convincing evidence:

(b) Circumstances which may be considered

for purposes of mitigation or aggravation of

penalty shall include, but are not limited

to, the following:

1. The danger to the public

2. Previous disciplinary action against the

registrant in this or any other jurisdiction.

3. The length of time the registrant has

practiced.

4. The actual damage, physical or otherwise,

caused by the violation.

5. The deterrent effect of the penalty

imposed.

6. Any efforts at rehabilitation.

7. Attempts by the registrant to correct or

stop violations, or refusal by the registrant

to correct or stop violations.

8. Cost of treatment.

9. Financial hardship.

10. Cost of disciplinary proceedings.

Rule 64B9 - 15.009(6) adds the following:

In instances when a registrant or applicant

is found guilty of any of the above offenses

involving fraud or making a false or

fraudulent representation, the Board shall

impose a fine on $10,000.00 per count or

offense.

In this case there are several aggravating factors. Pe titioner

has shown by clear and convincing evidence that R espondent made

numerous fraudulent or false representations, thereby subjecting

him to the $10,000 fine. In addition to performing services far

exceeding the scope of his C.N.A. license, Respondent endangered

the public, as evidenced by the testimony of John Daidone, upon

whom Respondent not only performed a blood test, but who also

followed RespondentÓs recommendation to take certain supplements

which did not improve his serious health condition. Respondent

also admitted he knew he should not refer to himself as a doctor

in Florida since he did not possess any type of doctor license or

certificate in Florida and he was not licensed as a medical

doctor in any other state. However, he chose to hold himself out

as a doctor in Florida and handed out misleading business cards

that would lead the public to believe he was either an M.D. or

some other Florida licensed physician. Additionally, in a

further attempt to deceive or mislead Petitioner, Responde nt

provided documentation to Petitioner that indicated John Daidone,

R.N., supervised him as a C.N.A. since 2003 with his request for

an informal hearing before the Board of Nursing. Moreover ,

Respondent entered into a consent agreement in January 2013 wi th

the Department of Health, under which he made no admission of

guilt to the charges of practicing medicine in Florida without a

license, but paid a fine and investigative costs totaling

$4,754.11. Finally, RespondentÓs interference with Petitioner ' s

inv estigation demonstrates that he is willing to go to great

lengths to deceive both the public and the Department. Such

behavior is unlikely to be deterred with simple fines or

probation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

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

order:

1. Adopting the Findings of Fact and Conclusions of Law;

2. Finding that Respondent violated section 464.204(1)(b),

Florida Statutes, by intentionally violating section

456.072(1) (o) and (m), Florida Statutes, as alleged in the

Administrative Complaint; and

3. Revoking RespondentÓs certificate to practice as a

certified nursing assistant.

DONE AND ENTERED this 5th day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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

Divis ion of Administrative Hearings

this 5th day of December , 2014 .

COPIES FURNISHED:

Thomas W. Caufman, Esquire

David M. Greene, Esquire

Quintairos, Prieto, Wood and Boyer, P.A.

4905 West Laurel Street , Suite 200

Tampa, Florida 33607

(eServed)

Yolonda Y. Green, Esquire

Ana M. Gargollo - McDonald, Esquire

Lauren A. Leikam, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Depart ment of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399

(eServed)

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Lavigna A. Kirkpatrick, BS, RN, Ch air

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399

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.