STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1314

)

MARK S, GORSKY, )

)

Respondent. )

)

RECOMMENDED ORDER

THIS CAUSE came to be heard after due notice to the parties at Miami Beach, Florida, at 10:00 A.M. on September 25, 1975, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Stanley P. Kaplan, Esquire

KAPLAN, SCHWARTZ & SLEPIN

Suite 404 Biscayne Building

19 West Flagler Street Miami, Florida 33130

For Respondent: Mr. Mark S. Gorsky

Appeared on his own behalf 851 Three Island Boulevard Hallendale, Florida 33009

ISSUES PRESENTED

Whether or not the Respondent's license to practice pharmacy should be suspended or revoked pursuant to Section 465.101(1)(e) and 893.13(3)(a) 1 , Florida Statutes.

The Hearing Officer explained to the Respondent the nature of the hearing and his rights under the Administrative Procedure Act, including the right to be represented by counsel at his own expense, if he so desires. It was also explained to the Respondent that he could testify in his own behalf, but that he was not required to do so and that if he did so testify, he could be cross- examined by counsel for Petitioner. Respondent acknowledged understanding of these rights and elected not to testify in his own behalf during the course of the hearing; however, he did participate in the cross-examination of Petitioner's witnesses and made a closing statement in which he denied the allegations against him.

FINDINGS OF FACT

1. During the period in question, i.e., April, 1975, Mr. Stanley Margolis was the manager of Gray Drug Store, No. 365, located at 12852 Biscayne

   Boulevard, North Miami, Florida. He and the Respondent are the only licensed pharmacists employed at that store (testimony of Mr. Margolis).

   
   

2. "Eskatrol" is a trade name for a drug which is bottled and sold in capsules called "spansules". It contains dextro- amphetaminesulfate and acts as a stimulant on the central nervous system. It is used primarily as an appetite suppressant, although it also is sometimes prescribed in an emergency situation for narcolepsy to keep a person awake. It is a Schedule II drug under the Florida Comprehensive Drug Abuse and Prevention Act, Chapter 893, F.S. because it is an amphetamine (Testimony of Mr. Bell, Dr. Danoff).

   
   

3. The procedure employed by Gray Drug Store to order Schedule 11 drugs was for Mr. Margolis to write a narcotic order form which he sent to a wholesaler who would then fill the order and send back an invoice with the narcotics in a box that was signed for by one of the pharmacists. At that time, the drugs would be counted, checked off and written down. Either Margolis or Respondent was on duty at the drug store at all times when it was open for business and Respondent could sign for such deliveries if Margolis was not then present. On approximately April 10 or 11, the store had run out of narcotics order forms and had exhausted its supply of several drugs, including ones with the trade name of Eskatrol. However, on Saturday, April 12, a prior order for ten bottles of Eskatrol, each bottle containing 50 capsules or "spansules" as they were termed, were received at the store. Respondent was on duty at this time and signed for the shipment. It was his responsibility to check the numbers of bottles received, enter the amount in a narcotics journal and place the drugs in a locked cabinet. On Monday, April 14, Margolis came on duty, reviewed the receipt of Eskatrol and determined that the shipment was correct based upon his examination of the invoice. He did not check the drug cabinet at this time. About 6:00 or 7:00 p.m. he received a prescription for 50 sparsules of Eskatrol. At this time, he noticed that there were only eight bottles in the cabinet when there should have been ten. He thereupon checked his prescription files for narcotic and other drugs and found no prescription to cover the two missing bottles of Eskatrol ewhich would have contained a total of 100 spansules. The store maintained a daily prescription log which indicated the prescriptions filled and a "waiting" file which was used to hold prescriptions for emergency drugs which had been issued pursuant to a telephonic request of a physician while waiting for the written prescription from the physician to arrive at the store.

   
   

4. Mr. Margolis, on the morning of April 16, asked Respondent about the discrepancy. The Respondent told him that the wholesaler had been" short two bottles." Margolis was disturbed about this alleged shortage and therefore called the district manager of Gray Drugs, a Mr. Krake. On the morning of April 17, Margolis found a telephoned prescription form for 50, spansules of Estatrol in the "waiting" file (Petitioner's Exhibit 1). The Respondent told him that it had been called in and that he was waiting for the prescription. He said that he had written the prescription. Margolis identified the handwriting as being that of the Respondent. The prescription was in the name of Ron Richards and showed an address of "2405 Northeast 135". It did not bear a street, avenue, or city designation. There was no date entered in the "Date" space on the form, but the figures "4/14" appeared on the "RX" portion of the form. This portion also bore the handwritten number 221030, and showed the figures "825". The doctor's name was Danoff and shown with address of 4100 South Hospital at Plantation. The number 5870448 also appeared on the prescription form and the words "will mail".

5. Mr. Margolis then reviewed what had been entered on Sunday in the prescription log book and discovered that prescription number 221030 showed a patient named Kasen and a price of $1.95 for the prescription (Petitioner's Exhibit 2) . The practice of the pharmacy had been to use a numbering machine which would stamp the prescription and the patient's receipt with the prescription number. Although 99 percent of the prescriptions are marked with the numbered stamp, occasionally there can be some mistake if the machine jumps, and the same number can only be stamped two times by the machine. On April 14, while Mr. Margolis was checking the non-narcotic prescription files, he had seen a prescription numbered 221030 for 15 Actifed tablets, prescribed by a Dr. Wrench for a patient named Kasen. The retail price of 15 Actifed tablets is

   $1.95. His log book also reflected that the next number in sequence, prescription no. 221031, was also prescribed by Dr. Wrench for patient Kasen for Keflex (Petitioner's Exhibit 3). Both of these prescriptions were entered on the log for April 13th. Margolis does not know what happened to the other prescription bearing the number 221030; he saw it last on the night of April 15 (testimony of Mr. Margolis; Petitioner's Exhibits 1-3).

   
   

6. Dr. Sherwood Danoff, a licensed physician who practices at Plantation, Florida, specializes in dermatology. He is not familiar with the name of Ron Richards and did not call the Gray Drug Store of North Miami, Florida, on April 13, 1975, to order Eskatrol for that individual. He had never written a prescription for Eskatrol, which is a combination of an amphetamine and a barbituate used in diet control as an appetite suppressant. He did not receive a phone call on April 13 from the Gray Drug Store and has never spoken on the phone to anyone representing himself to be the Respondent Mark Gorsky. The normal dosage of Eskatrol is one or two capsules a day and, although he has prescribed Schedule II drugs on an emergency basis over the phone, he would never issue a prescription for a dosage that would cover more than a 10-day period. An emergency prescription by telephone is usually given only for the period until the patient can get in to see the doctor. This is known as an oral prescription and the doctor must follow this up with a written prescription within 72 hours. Although Petitioner's Exhibit 1 reflects Dr. Danoff's phone number, he did not phone in the prescription (testimony of Dr. Danoff).

   
   

7. On April 17, Mr. William W. Smith, the regional

   manager of Professional Services for Gray Drug Stores, Mr. Anthony Difulio, the Director of Loss Prevention for the drug Store chain for Florida, and Mr. Vernon

   K. Bell, an agent for the Florida Board of Pharmacy, met at the Gray Drug Store in North Miami to look into the discrepancy reported by Mr. Margolis. Mr. Smith made an inspection of the books and records of the store and discovered that certain narcotic drugs were missing, including two bottles of Eskatrol. He checked with Dr. Danoff's nurse and Gulf Company, the wholesaler of Eskatrol.

   He tried to find the address of Ron Richards, as shown on the prescription in an incomplete form, but any projection of the address by avenues or streets would place it in Biscayne Bay or the ocean. Mr. Smith, together with Mr. Difulio, Mr. Bell, and Mr. Krake, went into a back room of the drug store to discuss the situation and later asked the Respondent to join them. Neither Mr. Difulio nor Mr. Bell arc law enforcement officers and do not have the power to take a person into custody other than that effected under an ordinary citizen's powers.

   During this period, not all of the above-mentioned individuals remained in the room during the entire period of approximately an hour or an hour and a half. Mr. Gorsky left the room on two occasions. Prior to questioning the Respondent, Mr. Bell advised him that he did not have to answer any questions, that he had a right to remain silent and a right to counsel. He did not threaten him or offer him any inducements to answer questions. After this warning, Respondent decided

   not to take the polygraph or make a written statement, but he did make oral statements. At no time was Respondent told he was under arrest.

   
   

8. Mr. Bell asked Respondent if he could explain or know anything about the shortage of Eskatrol. The Respondent stated that he had received a call from Dr. Danoff on Sunday, April 13, concerning the prescription and that he called the doctor back to make sure that it was authentic; that he had placed the `number at the right bottom of the prescription and in his mind it was legitimate. When asked about the existence of Ron Richards, Respondent told Bell that Richards had been in the store several times. Respondent admitted to Bell that he had written the prescription (Petitioner's Exhibit l) and that it was his handwriting. There is a certain conflict in what Respondent stated at this meeting in view of the fact that Mr. Difulio testified that Respondent had said a customer had come into the store on April 13 and said that a doctor wanted him to have Eskatrol; that he had called the doctor and verified the prescription. Difulio did not recall if Respondent had stated that he had first had a call from the doctor, although he testified that Respondent said that he had prepared the prescription and filled it for Richards. When shown by Difulio that the cash register tapes for April 13 did not reflect an entry of $8.25, and Respondent was asked for an explanation, he stated that he had probably "got taken" by believing the telephone number he called was that of the doctor. In addition, Respondent told Difulio that after filling the prescription, he became scared and put a number on it from another patient and, when asked by Difulio what had happened to it, Respondent stated that he had torn it up and destroyed it. Difulio did not recall Respondent telling Mr. Bell about Dr. Danoff calling Respondent concerning the prescription. However, Respondent made several different statements during the course of his interrogation while various of the parties to the meeting went in and out of the room (testimony of Mr. Smith, Mr. Difulio, Mr. Bell).

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner has alleged that Respondent, on or about April 13, 1975, did, in violation of Sections 465.101(1)(e) and 893.13(3)(a) 1, Florida Statutes, acquire or obtain, or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge, to wit, 50 Eskatrol spansules, in that he did fill a prescription for said controlled substance made out in the name of Ron Richard, which prescription was not lawfully obtained from a practitioner, or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice.

10. Section 465.101(1)(e) , Florida Statutes, provides in part as follows: "(1) The board of pharmacy may revoke or suspend

    the license and registration certificate of any registered pharmacist, after giving such pharmacist reasonable notice and an opportunity to be heard, who shall have:

    (e) Violated any of the requirements of this chapter or of...chapter 893.

11. Section 893.13(3)(a) 1 , Florida Statutes, provides: "(3)(a) It is unlawful for any person:

    l. To acquire or obtain, or attempt to acquire or obtain, possession of a controlled substance

    by misrepresentation, fraud, forgery, deception, or subterfuge."

    
    

12. A "controlled substance" is defined in Section 893.02(3) as any substance named or described in Schedules I through V of Section 893.03.

    
    

13. Eskatrol is a trade name for a drug which contains dextroampheta- minesulfate. It is, therefore, a controlled substance within the purview of Section 893.13(3)(a)1, because amphetamine is listed in Section 893.03(2)(c) (Schedule II) . Substantial evidence of a clear and convincing nature establishes that the Respondent on or `about April 13 wrote a "telephone prescription" for Eskatrol in the amount of 50 spansules allegedly called in by Dr. Danoff for a patient named Ron Richards. The evidence further establishes that this was a false prescription in that Dr. Danoff had not called it in nor authorized its issuance. The evidence further shows that the address listed for Mr. Richards is of a fictitious nature and does not exist; that Respondent did not call Dr. Danoff or his office to verify the said prescription; that the

    ,books and records of Gray's Drug Store reflect that two bottles of Eskatrol containing 50 spansules each were missing from the store's controlled drug supplies on April 14, 1975; that Respondent received ten bottles of Eskatrol on Saturday, April 12, and that two of the bottles were missing on April 14. The evidence further establishes that the prescription in question was written by Respondent in the place of an authentic prescription for another drug bearing the same number to cover the shortage in question. The evidence further shows that Respondent made a voluntary statement in which he admitted writing the prescription in question and destroying the authentic prescription. In view of the foregoing, it is concluded that Respondent obtained possession of a controlled substance by misrepresentation, fraud, deception and subterfuge, as alleged, in violation of Section 893.13(3)(a) 1

    
    

14. In view of the above conclusion, it necessarily follows that sufficient grounds exist for the Board of Pharmacy to revoke or suspend the Respondent's license and registration certificate as a registered pharmacist under the provisions of Section 465.101(1)(e) , for violation of Chapter 893, Florida Statutes.

RECOMMENDED ORDER

It is recommended that the license and registration certificate of Respondent as a registered pharmacist be revoked pursuant to Section 465.101(1)(e) , Florida Statutes, for violation of Chapter 893, Florida Statutes.

DONE and ENTERED this 22nd day of October, 1975, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1975.

COPIES FURNISHED:

Michael I. Schwartz, Esquire

207 Office Plaza Tallahassee, Florida 32301

Stanley P. Kaplan, Esquire

207 Office Plaza Tallahassee, Florida 32301

Mr. Mark S. Gorsky

851 Three Island Boulevard Hallandale, Florida 33009

Docket for Case No: 75-001314

Orders for Case No: 75-001314