vs. ) CASE NO. 79-179
Respondent. )
Pursuant to notice dated February 5, 1979, this hearing was held in Room 359, State of Florida Office Building, 1305 NW 12th Avenue, Miami, Florida, at 2:30 p.m. on March 6, 1979, before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings. The Petitioner's attorney and witnesses and the Hearing Officer waited for the arrival of the Respondent or his attorney, neither of whom attended the hearing, although the attorney of record was in his office in Miami, Florida.
Whether disciplinary action should be taken against the license of Respondent to practice pharmacy.
A Complaint and Notice to Show Cause was filed against the Respondent, Francisco DeQueuedo, a registered pharmacist, on December 27, 1978, alleging that the Respondent failed to maintain on a current basis a complete and accurate record of controlled substances, and that he placed false or fraudulent information in the files of Ponce de Leon, Inc., doing business as Capel Drugstore, located at 6661 SW 8th Street, Miami, Florida.
A hearing was requested by the Respondent 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 he found that 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 Respondent, Francisco DeQueuedo, and Milagros Ferreras, one of the owners of Ponce de Leon, Inc., doing business as Capel Drugstore. Mr. Bell advised the Respondent and the owner of the drugstore of their right to remain silent and not answer any 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 and Ms. Ferreras. Ms. Ferreras stated that she had bought a bad business and found 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 the various sales without prescriptions and that the pharmacist, Respondent DeQueuedo, did not dispense any of the controlled substances. Agent Bell testified that the Respondent admitted to him that he knew that Ms. Ferreras was making these sales, and that she would from time to time bring him several prescriptions which he would sign, indicating 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 Quaalude tablets. After this conversation Mr. Bell testified that he proceeded to do a drug accountability audit for the period of time the Respondent worked at the pharmacy. Mr. Bell said that even with giving the pharmacy credit for those prescriptions which were signed by the Respondent, 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 Respondent 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 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 a copy of the receipt that he gave to the Respondent when he removed the original prescriptions from their 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 testified that this was a statement made to him in his conversations with the Respondent and owner, which he reduced to writing and which both the Respondent and the owner, Ms. 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, one of the owners, falsification of the prescription records by the Respondent, 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 the Petitioner. Officer Pacitti stated that he had received a telephone call from Agent Bell with reference to the Respondent and to Ms. Ferreras.
Officer Pacitti testified that he went to the Capel Drugstore and advised both the Respondent and Ms. Ferreras, the owner, of their Miranda rights. Officer Pacitti obtained a verbal statement from the Respondent, Francisco DeQueuedo, that he was aware of the fact that the owner was dispensing the Quaalude tablets. Officer Pacitti then took Ms. 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. Officer Pacitti identified a document marked as Petitioner's Exhibit number 6 as a copy of the statement of 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 somewhere between $3.00 and $5.00 per tablet.
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 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 filed 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 Respondent to the individuals named thereon.
The Hearing Officer finds that the Respondent knew the owner of the business was improperly dispensing and selling the Quaalude tablets.
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:
(e) 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 wholesaler, dis- tribution, 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 Respondent 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 Respondent violated the foregoing statute as well as Section 465.101(1)(e), supra, by receiving prescriptions from Milagros Ferreras for Quaalude 300 mg., a controlled substance, and did sign or initial and put these prescriptions in the pharmacy files, when in fact none of the Quaalude noted on those prescriptions were dispensed by the Respondent to the individuals named thereon. The Respondent knew that these prescriptions were being used to cover the unlawful sale of Quaalude 300 mg. tablets by Milagros Ferreras.
Revoke the license to practice pharmacy in the State of Florida issued to Francisco DeQueuedo, the Respondent.
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
