STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-555

)

SPRING LAKE PHARMACY and )

NATALIE PATTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in Sebring, Florida, on September 17, 1981.

APPEARANCES

For Petitioner: William M. Furlow, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Michael J. Trombley, Esquire

329 South Commerce Avenue Sebring, Florida 33870

The Petitioner, the Department of Professional Regulation, Board of Pharmacy, filed its Amended Administrative Complaint seeking to revoke, suspend or take other disciplinary action against the Respondent as a licensed pharmacist, alleging that the Respondent dispensed a controlled substance to wit, Darvon, without a prescription in violation of Section 465.016(1)(e), Florida Statutes and Section 893.04(1), Florida Statutes, which violation allegedly occurred on March 22, 1980.

The issue involved herein is whether the Respondent's admitted conduct constitutes grounds for revocation or suspension of her license or other disciplinary measures taken by the Petitioner. In that regard the Petitioner presented no witnesses at the hearing. The Respondent presented one witness and one exhibit, which was admitted into evidence. At the outset of the hearing the parties stipulated that there was no dispute regarding the operative facts relevant to the case at bar, in that there was no question that the Respondent dispensed the drug without a prescription and that she was ultimately prosecuted for that offense in the Circuit Court in Highlands County. In that regard, adjudication was withheld and she was placed upon probation. The parties agreed to continue with a 120.57(1) formal proceeding, with the Respondent being given an opportunity to put on evidence in the nature of mitigation.

The parties elected to obtain a transcript of the proceedings and ultimately waived their right to file proposed findings of fact and conclusions of law. The transcript of the proceedings was filed with the undersigned Hearing Officer on October 1, 1981.

FINDINGS OF FACT

1. The Respondent, Natalie Patton, is a licensed pharmacist and has been licensed since 1959. She is a graduate of Sanford University, Birmingham, Alabama, and was initially licensed in Alabama as a pharmacist. She has worked as a licensed pharmacist for twelve years in Highlands County in the vicinity of Sebring. She is licensed as a pharmacy consultant as well and has been employed at several hospitals and pharmacies in that geographical area. She opened her present pharmacy' business in November, 1978, in a rural area southwest of Sebring at the community of Spring Lake. Her's is the only pharmacy in seventeen miles and her business volume reflects the rural nature of her business location and clientele in that she fills an average of thirty-five to fifty prescriptions a day.

   
   

2. On "Race Friday," the day prior to the Sports Car Race at Sebring, a man entered her pharmacy complaining of severe headache and allergy to fumes associated with the infield and pits at the racetrack. He asked for Darvon, explaining that this was the only medication successful in treating his headaches. He explained he was from another part of the State and had no way to contact his physician. She sold him a non-prescription drug. He came back the next day, the day in question, March 22, and explained that her suggestion that he go to the emergency room the day before was impractical because a newspaper ad he had seen described the emergency room as overloaded and turning patients away. He complained of a worsening headache. She testified that she felt sympathy for him and ultimately and reluctantly sold him, at her cost, four Darvon to be used that Saturday and four for that Sunday. The individual requesting the medication then revealed himself to be a Deputy Sheriff of Highlands County, who arrested her on the spot, charging her with dispensing the Darvon without a prescription in violation of the above authority. She ultimately was tried on the charges and convicted, but adjudication was withheld and she was placed on three years probation by the Circuit Judge. A second related criminal charge was ultimately dismissed. She has been under the direction of a probation officer since that time and must report all her activities and receive permission before traveling out of her county. She also has been required to pay fifty dollars a month to reimburse the public defender for his services on her behalf. She is still operating her business and her customers have professed loyalty to her and her business is still increasing in volume.

   
   

3. She has never had any altercation with law enforcement authorities of any type in her past and has never been convicted of any felony or misdemeanor. With the agreement of counsel for the Petitioner, certain testimonial letters on her behalf from persons who were not in attendance at the hearing were admitted as composite exhibit 1. These letters attest to and establish the fact, in corroboration of her testimony, that she is a decent and useful citizen and that she was totally unaware that she was committing a felonious act. These letters corroborate her testimony and establish that she is a crucial asset to her rural community. She is depended upon by numerous citizens, many of whom are of advanced years and who require frequent medication and are unable to travel any great distance. She has obviously gone to great lengths to operate her business in a professional and compassionate manner even to the extent of delivering medications to senior citizens and others long after the closing hours of her

   pharmacy. These letters in support of her position also are replete with instances described where she adheres strictly to the dictates of the various physicians' prescriptions and refused on a number of occasions to prescribe medication without a prescription.

   
   

4. There is no question that the evidence in this record establishes that the Respondent is clothed with the highest personal integrity and moral character and that the isolated incident when she dispensed medication in violation of the above authority is not characteristic of the regular and otherwise consistent manner in which she practices pharmacy and conducts her business.

   
   

5. The Respondent's probation officer sent a letter which is incorporated in Respondent's Exhibit 1 attesting to her conscientious efforts to obey the law and her usefulness as a citizen. He expressed the belief that she was unaware that she was actually committing a crime when the subject violation occurred and that she was simply and compassionately attempting to help a customer in trouble. He is convinced that revoking her pharmacy license would serve no useful purpose and would indeed impose a hardship on the rural customers she serves. He firmly believes she would not consciously violate the law or purposefully commit an illegal act.

   
   

6. The Respondent was authorized by the Circuit Judge in the Respondent's criminal proceeding to make the following statement on the record in this proceeding:

   
   

   In re Natalie Patton: In open

   Court, in disposing of this case, and putting Natalie Patton on probation without adjudication, I made note of the numerous letters I received from people in the community, urging the Court to be lenient.

   
   

   The Respondent then noted that there were a hundred and forty signatures on those testimonial letters. At the conclusion of the Respondent's case the Respondent requested that the penalty herein be limited to a letter of reprimand. The Petitioner introduced no evidence and otherwise took no position with regard to the question of an appropriate penalty.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

8. The Respondent is being prosecuted for the violation stipulated to have occurred on March 22, 1980, involving dispensing Darvon to Deputy Sheriff Tommy Mills, without a prescription in violation of Section 465.016(1)(e), Florida Statutes and Section 893.04(1), Florida Statutes. Section 465.016(1)(e), Florida Statutes, provides in pertinent part:

   
   

   1. The following acts shall be grounds for disciplinary action set forth in this section:

      (e) Violating any of the require- ments of this chapter; chapter 500,

      known as the "Florida Food, Drug, and Cosmetic Law"; 21 U.S.C., ss. 301-392, known as the "Federal Food, Drug, and Cosmetic Act"; or chapter 893.

      
      

9. Chapter 893.04 then establishes the illegality of selling or dispensing controlled substances without a written prescription or an oral prescription not promptly reduced to writing and contains additional related requirements regarding record-keeping of sales of controlled substances.

   
   

10. The parties have stipulated that the Respondent has been convicted, with adjudication withheld, and probation imposed regarding the violations of these two statutory sections. There is also no question that this lady is not a willful perpetrator of the subject criminal act. She was merely guilty of an excess of compassion for the individual to whom she dispensed the controlled substance. The unrefuted evidence in the record, as indeed the Circuit Judge in her criminal proceeding acknowledged by his disposition in that case, establishes that she is an upstanding, responsible and compassionate member of her community. She is an ethical, and generally conscientious, professional practicing pharmacist. She contritely admitted her error without making an attempt to excuse it. Her explanation that she did not intentionally violate the law is accepted by the Hearing Officer as credible.

    
    

11. In recommending the penalty described below, the Hearing Officer finds, based upon the unrefuted evidence in this record, that the Respondent has suffered sufficient and substantial punishment and humiliation for her isolated and unintentional departure from the strictures of the law she is bound to observe as a professional licensed pharmacist. She is already subject to close monitoring by the Department of Corrections, Division of Probation and Parole Services, and has paid substantial costs, both pecuniarily and in terms of embarrassment, to the people of Florida for this single misdeed in her record as a citizen and professional pharmacist. There is no showing in this record that the State of Florida and its citizens generally and the citizens she serves as a pharmacist particularly, would benefit from any more severe sanction in the way of a suspension or revocation of her license to practice. Indeed those citizens she presently serves would suffer substantial detriment if her business were to be closed down through her loss of the privilege of practicing pharmacy.

    
    

12. The evidence in the record also indicates that the Respondent has learned a valuable lesson in that her compassion for her neighbors and fellowman must be kept in rein and within the strict requirements of the pharmacy laws she is legally and professionally bound to observe. There is no question that she is not and has never been a "trafficker in narcotics" and certainly did not commit the crime in question from a profit motive.

    
    

13. In summary, the substantial detriment to be occasioned her clientele and potential clientele in the rural area dependent on her pharmacy by her loss of licensure for any significant period of time greatly outweighs any additional public benefit which might conceivably be derived from any further strict enforcement of the Pharmacy Practice Act in this instance. The undersigned accordingly concludes that the only appropriate penalty justified by the evidence in this record is that of a written reprimand, with the Respondent to be accorded probationary status by the Board with regard to her licensure and with continued supervision by the Board for a period of time coextensive with the probationary period imposed by the Circuit Court in the criminal proceeding related hereto.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witness and the evidence in the record, it is

RECOMMENDED:

That Natalie N. Patton and Spring Lake Pharmacy remain licensed and that Natalie Patton be accorded a written reprimand by the Board regarding the subject violation and that she be placed on probation by the Board for a period of time coextensive with the probation imposed in the criminal proceeding related hereto during which time her conduct of the practice of pharmacy be subjected to periodic monitoring by the Board.

DONE AND ENTERED this 2nd day of November, 1981, in Tallahassee, Florida.

COPIES FURNISHED:

William M. Furlow, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Michael J. Trombley, Esquire

329 South Commerce Avenue Sebring, Florida 33870

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1981.

Docket for Case No: 81-000555

Orders for Case No: 81-000555