vs. ) CASE NO. 79-178
PONCE DE LEON, INC., d/b/a ) CAPEL DRUGSTORE AND MILAGROS ) FERRERAS, EVINA VALEPA AND ) JULIO C. PASCUAL, PERMITTEE, )
Respondents. )
Pursuant to notice dated February 5, 1979, this hearing was held in Room 359, State of Florida Office Building, 1305 M 12th Avenue, Miami, Florida, at 2:30 p.m. on March 6, 1979, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings. The hearing was called to order late because the Petitioner's attorney and witnesses and the Hearing Officer waited for the arrival of the Respondents or their attorney, none of whom attended the hearing although the attorney of record was said to be within fifteen (15) minutes of the place of hearing.
Whether the permit held by the Respondents to operate a pharmacy in the State of Florida should be revoked.
A Complaint and Notice to Show Cause was filed against the Respondents, Ponce de Leon, Inc., doing business as Capel Drugstore, and Milagros Ferreras, Evina Valera and Julio C. Pascual, on December 27, 1978, alleging that the Respondents failed to maintain on a current basis a complete and accurate record of controlled substances controlled by Chapter 893, Florida Statutes, and that Respondents while holding a permit to operate a pharmacy in the State of Florida permitted the unlawful practice of pharmacy at Ponce de Leon, Inc., doing business as Capel Drugstore, located at 6661 SW 8th Street, Miami, Florida, by permitting a person not licensed or registered as a pharmacist or pharmacy intern in this state, to wit Milagros Ferreras, to fill and dispense a
controlled substance with prescriptions and without prescriptions to various people on various dates.
A hearing was requested by the Respondents on January 5, 1979. Notice of Hearing was sent to the parties on February 5, 1979.
The first witness called on behalf of the Petitioner was V. K. Bell, Agent for the Florida Board of Pharmacy and a licensed pharmacist. Agent Bell testified that while at a local wholesaler in the Miami area he noticed that Ponce de Leon, Inc., doing business as Capel Drugstore, had been buying a large volume of Quaalude tablets, which is a Schedule II controlled substance that has been the subject of high abuse in the Dade County area. Thereupon, he proceeded to Capel Drugstore in order to review their records. He said that he found the prescription records did not account for proper disposition through lawful dispensing of a large volume of the Quaalude tablets that were purchased and documented by the invoices. He testified that he talked with the pharmacist, Francisco DeQueuedo, and Respondent, Milagros Ferreras, one of the owners of Ponce de Leon, Inc., doing business as Capel Drugstore, and the President of the corporation. Mr. Bell advised Ms. Ferreras and Mr. DeQueuedo of their right to remain silent and not answer questions, that anything they said could be used against them, and that they had the right to have an attorney present if they desired. He then questioned the Respondent, Ms. Ferreras, and Mr. DeQueuedo. Ms. Ferreras stated that she had bought a bad business and found that she was having financial difficulties with the business, and she started to sell Quaalude tablets for 50 cents each to some 15 or 20 different people without prescriptions. Mr. Bell testified that Ms. Ferreras then stated that she had made sales of the controlled substance without prescriptions. Agent Bell testified that the pharmacist, Mr. DeQueuedo, admitted to him that he knew that Respondent Ferreras was making these sales, and that she would from time to time bring him prescriptions which he would sign, indicating on the prescriptions that he did in fact fill them, although he had not, and then put them on file at the pharmacy in an attempt to cover up some of the shortages due to the unlawful sales of the Quaalude tablets. After this conversation Mr. Bell testified that he proceeded to do a drug accountability audit. Mr. Bell said that even with giving the pharmacy credit for those prescriptions which were signed by the pharmacist, he could not account for 27,440 Quaalude tablets. The drug accountability report was identified by Mr. Bell and was introduced into evidence as Petitioner's Exhibit number 1.
Agent Bell identified a series of documents which constituted various invoices and prescriptions utilized in the drug accountability audit as well as a perpetual inventory, which the pharmacist had run. These documents were marked as Petitioner's Composite Exhibit number 2 and were introduced into evidence. Thereafter, Mr. Bell identified a document which he noted was a copy of a receipt which he gave to the pharmacist noting the various invoices contained in Composite Exhibit number 2, which were removed from the pharmacy. This receipt was marked as Petitioner's Exhibit number 3 and was introduced into evidence. Mr. Bell verified a document which was the receipt that he gave to the pharmacist, Mr. DeQueuedo, when he removed the original prescriptions from the pharmacy file, which prescriptions were also part of the Composite Exhibit number 2. This receipt was marked as Petitioner's Exhibit number 4 and was introduced into evidence.
Mr. Bell then identified another document, which was marked for identification as Petitioner's Exhibit number 5, and Agent Bell testified that this was a statement made to him in his conversations with the Respondent, Ms. Ferreras, and the pharmacist, Mr. DeQueuedo, which he reduced to writing and
which both the pharmacist and Respondent Ferreras signed. Exhibit number 5 substantiates the testimony which was given by Mr. Bell in respect to the unlawful dispensing of controlled substances by Ms. Ferreras, falsification of the prescription records by Mr. DeQueuedo, and the shortages found in the drug accountability audit.
Robert S. Pacitti, a police officer with the Dade County Public Safety Department, was called as a witness for Petitioner. Officer Pacitti stated that he had received a telephone call from Agent Bell with reference to Ms. Ferreras and Mr. DeQueuedo.
Officer Pacitti testified that he went to the Capel Drugstore and advised both the Respondent Ferreras and Mr. DeQueuedo, the pharmacist, of their Miranda rights. Officer Pacitti obtained a verbal statement from Mr. DeQueuedo that he was aware of the fact that Ms. Ferreras was dispensing Quaalude tablets. Officer Pacitti then took Respondent Ferreras down to the Dade County Public Safety Department, where she made a statement taken by a stenographer in Officer Pacitti's presence confirming the testimony of Agent Bell and Officer Pacitti. Respondent Ferreras stated that the individuals to whom she had sold Quaalude tablets promised to bring her prescriptions for them at a later date but did not do so. Officer Pacitti identified a document marked as Petitioner's Exhibit number 6 as a copy of the statement of Respondent Milagros Ferreras, and thereafter this statement was introduced into evidence as Petitioner's Exhibit number 6.
Officer Pacitti testified that even though the large quantity of Quaalude tablets was being sold for 50 cents each, the street value of these tablets was between $3.00 and $5.00 per tablet.
The secretary of Jack R. Blumenfeld, the attorney of record for Respondent Milagros Ferreras, presented photocopies of letters from two physicians indicating that Ms. Ferreras had been in the hospital and then had been advised to restrict her physical activity and avoid emotional strain. These letters were marked and filed by the Hearing Officer.
After listening to the testimony of Agent Bell and Officer Pacitti, and after examining the exhibits introduced into evidence, it is the finding of this Hearing Officer that the Respondent, Milagros Ferreras, did permit the improper keeping of records at Ponce de Leon, Inc., doing business as Capel Drugstore, and that complete and accurate records of controlled substances were not maintained on a current basis.
It is the further finding of this Hearing Officer that the Respondent, Milagros Ferreras, allowed the pharmacist, Francisco DeQueuedo, to file false information in the files of Ponce de Leon, Inc., doing business as Capel Drugstore, by placing prescriptions in the files which were not actually dispensed by the pharmacist to the individuals named thereon.
The Hearing Officer finds that the Respondent, Milagros Ferreras, President of the corporation doing business as Capel Drugstore, improperly dispensed and sold Quaalude tablets to individuals with prescriptions and to individuals without prescriptions.
CONCLUSIONS OF LAW
Section 465.101(1)(e) Authority to revoke or suspend licenses.-- provides as follows:
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:
Violated any of the requirements of this chapter, of chapter 500, known as the Florida Food, Drug, and Cosmetic Law," of ss. 301 through 392 of Title 21, United States Code, known as the "Federal Food, Drug and Cosmetic Act," or of chapter 893.
Section 893.07(1)(b) Records.-- provides as follows:
Every person who engages in the manufacture, compounding, mixing, cultivating, growing, or
by any other process producing or preparing, or in the dispensing, importation, or, as a whole- saler, distribution, of controlled substances shall:
(b) On and after January 1, 1974, maintain, on a current basis, a complete and accurate
record of each substance manufactured, received, sold, delivered, or otherwise disposed of by him, except that this subsection shall not re- quire the maintenance of a perpetual inventory.
The Respondents violated the foregoing statutes by failing to maintain records of controlled substances sold on a current basis.
Section 893.13(3)(a)3 Prohibited acts; penalties.-- provides as follows:
(3)(a) It is unlawful for any person:
3. To furnish false or fraudulent material information in, or omit any material informa- tion from, any report or other document required to be kept or filed under this chapter or any record required to be kept by this chapter.
The Respondents violated the foregoing statute as well as Section 465.101(1)(e), supra, by allowing the employee pharmacist to sign or initial prescriptions for Quaalude and to put these prescriptions in the pharmacy files, when in fact none of the Quaalude noted on those prescriptions were dispensed by the pharmacist to the individuals named thereon. The Respondents, Evina Valera and Julio C. Pascual, knew or should have known that prescriptions were being used to cover the unlawful sale of Quaalude 300 mg. tablets by Respondent Milagros Ferreras, co-owner and President of the corporation. Respondent Ferreras sold Quaalude without prescriptions, and the co-owners knew or should have known of these sales.
Revoke the permit to operate a pharmacy in the State of Florida issued to Ponce de Leon, Inc., doing business as Capel Drugstore, and Milagros Ferreras, Evina Valera and Julio C. Pascual.
DONE and ORDERED this 15th day of March, 1979, in Tallahassee, Leon County, Florida.
DELPHENE C. STRICKLAND
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Jack R. Blumenfeld, Esquire 619 NW 12th Avenue
Michael Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301
H. F. Bevis Executive Secretary
