STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Pharmacy, )

)

Petitioner, )

)

vs. ) CASE NO. 81-977

)

OTMARA PINA, )

)

Respondent. )

) DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Pharmacy, )

)

Petitioner, )

)

vs. ) CASE NO. 81-978

)

ALI's PHARMACY, et al., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in the above consolidated cases on May 15, 1981 in Coral Gables, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: William M. Furlow, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondents: Otmara Pina, Pro Se

c/o Ali's Pharmacy

3825 West Flagler Street Miami, Florida 33134

Gerardo Vigoa, Pro Se Alis Pharmacy

3825 West Flagler Street Miami, Florida 33134

ISSUE

The issue presented in this case is whether the Respondents', Otmara Pina and Ali's Pharmacy, licenses should be revoked, suspended or otherwise disciplined for allegedly violating the Florida Pharmacy Act, Chapter 465, Florida Statutes, when filling a series of unauthorized prescriptions for a controlled drug.

FINDINGS OF FACT

1. Respondent, Otmara Pina, is a pharmacist licensed by the State of Florida and holds license number 14075.

   
   

2. Respondent, Ali's Pharmacy, is owned by Cerardo Vigoa and Pedro Diaz, and is registered as a pharmacy by the State of Florida under permit number 750.

   
   

3. Ali's Pharmacy is located at 3825 West Flagler Street, Miami, Florida where Otmara Pina is and has been during all pertinent times the managing pharmacist for Ali's.

   
   

4. Between March 1, 1978 and January 4, 1980, Otmara Pina, while engaged in her employment as managing pharmacist at Ali's, filled and dispensed fifteen

   (15) prescriptions for 10 mg. Valium tablets, with varying refills thereof, to Mrs. Lila Tomlinson.

   
   

5. The fifteen (15) prescriptions filled by Otmara Pina for Mrs. Tomlinson bore the name of Dr. Claudio R. Villoch as prescribing physician.

   
   

6. None of the fifteen (15) prescriptions were authorized or signed by Dr. Villoch.

   
   

7. Pursuant to Section 893.03(4)(h), Florida Statutes, Valium or Diazepam is a Schedule IV Controlled Substance.

   
   

8. At the hearing, the Department voluntarily dismissed that portion of the Amended Administrative Complaint involving the dispensing of 426 Lomotil tablets.

   
   

9. The Respondents did not dispute the factual allegations of the Amended Administrative Complaint but did present testimony in mitigation of their position.

   
   

10. The individual to whom the drug was dispensed by Respondent Pina was an elderly widow with extremely limited resources who suffered from terminal cancer.

    
    

11. The drug was dispensed by Respondent Pina in order to alleviate Mrs. Tomlinson's terminal condition rather than for monetary gain.

    
    

12. Respondent Pina attempted to contact Dr. Villoch's office and spoke to an unidentified person in the office who verbally authorized a prescription.

    
    

13. The Respondents enjoy an excellent reputation in the community and provide a valuable service for the largely Hispanic neighborhood in which they are located.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the cause and the parties hereto pursuant to Section 120.57, Florida Statutes.

    
    

15. Pursuant to Section 465.016(1)(e), Florida Statutes, the Florida Board of Pharmacy is authorized to take disciplinary action against the holder of a license to practice pharmacy for violating any of the requirements of, inter alia, Chapter 465, Florida Statutes or, Chapter 893, Florida Statutes. Section 465.023(1)(c), Florida Statutes, authorizes the Florida Board of Pharmacy to take disciplinary action against the permit to operate a pharmacy for violating, inter alia, Chapter 465, Florida Statutes or Chapter 893, Florida Statutes.

    
    

16. Section 465.015(2)(c), Florida Statutes, states that it is unlawful for any person:

    
    

    [t]o sell or dispense drugs as defined in 465.003(7) without first being furnished with a prescription.

    
    

    Similarly, Section 893.13(2)(a)(1) , Florida Statutes, makes it unlawful for any person:

    
    

    [t]o distribute or dispense a controlled substance in violation of the provisions of the chapter relating thereto.

    
    

    A pharmacist may in good faith dispense controlled substances upon a written or oral prescription of a practitioner when the oral prescription is promptly reduced to writing by the pharmacist. See Section 893.04(1)(a), Florida Statutes. A prescription is defined at Section 893.02(15), Florida Statutes, to include an order for drugs or medicinal supplies communicated "... by a duly licensed practitioner licensed by the laws of the state to prescribe such drugs

    ..."

    
    

17. By her failure to obtain proper authorization from a practitioner prior to dispensing a controlled substance, the Respondent Pina has violated Sections 465.015(2)(c), 465.016(1) (e), and 893.13(2)(a)(1), Florida Statutes, in the course of her employment as managing pharmacist of Ali's Pharmacy. The number and frequency of prescription refills requested by the customer should have alerted the Respondent to the problem and reasonable inquiry would have shown that the prescriptions were not authorized. A reasonable standard of care as required by Florida law was not followed in this case and an appropriate penalty must be imposed.

    
    

18. The Respondent Pina enjoys a good professional reputation in the community and among her peers. This incident is an isolated one and occurred largely because of the Respondent's desire to help a person faced with a tragic problem. The Respondent obtained no unusual monetary benefit from the dispensing of the valium and the individual who received the prescriptions used them for herself and did not sell or distribute the tablets.

    
    

19. As to the Respondents Vigoa and Diaz, no evidence was presented to show that they knew or should have known or were in anyway involved either directly or indirectly with the unauthorized dispensing of controlled drugs to Mrs. Tomlinson.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby,

RECOMMENDED:

That the Respondent Otmara Pina be found to have violated Sections 465.015(2)(c), 465.016(1)(e), and 893.13(2)(a)(1), Florida Statutes, and that pursuant to Section 465.016(2), Florida Statutes, she be placed on probation for one year, be issued a letter of reprimand and be required to take an appropriate continuing education course dealing with procedures to be followed in dispensing controlled drugs.

Since no evidence was presented concerning Respondents Vigoa and Diaz, the Amended Administrative Complaint filed against them should be dismissed.

DONE and ORDERED this 10th day of July, 1981 in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1981.

COPIES FURNISHED:

William M. Furlow, Esquire Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Otmara Pina

c/o Ali's Pharmacy

3825 West Flagler Street Miami, Florida 33134

Gerardo Vigoa and Pedro Diaz

Ali's Pharmacy

3825 West Flagler Street Miami, Florida 33134

Docket for Case No: 81-000977

Orders for Case No: 81-000977