STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1135

)

WALTER DERYK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause cone on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on July 28, 1981, in Tampa, Florida.

APPEARANCES

For Petitioner: William M. Furlow, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: John D. Hooker, Esquire

Suite 100, The Legal Center 725 East Kennedy Boulevard Tampa, Florida 33602

The Petitioner, Department of Professional Regulation and the Board of Pharmacy, filed an administrative complaint against the Respondent, Walter Deryk, on March 18, 1981, charging him with one count of distributing a legend drug other than in the course of the professional practice of pharmacy, and one count of being unable to practice pharmacy because of alcoholism. On April 2, 1981, the Respondent answered the complaint denying all material allegations.

The Respondent also filed a motion in opposition to count two of the administrative complaint. A motion in opposition to count one of the complaint was filed June 15, 1981. Count two was voluntarily dismissed by the Petitioner. On July 20, 1981, the administrative complaint was amended by the Petitioner.

The only changes were an editorial addition to count one and the addition of a new count two which charged the Respondent with being adjudged guilty in circuit court of the crime of theft arising from the same factual transaction delineated in count one of the administrative complaint. At the formal hearing a motion to dismiss the amended administrative complaint was argued. The parties were allowed to brief the subject of the motion with the motion to be treated in the Recommended Order. Then, with all material witnesses and evidence present, the Respondent stipulated to the facts contained in the administrative complaint, but the parties stipulated and agreed that the cause remain a formal proceeding pursuant to Section 120.57(1), Florida Statutes. The parties availed themselves

of their right to submit proposed findings of fact and conclusions of law which were timely filed. The issues to be resolved are: whether the amendment of the complaint shortly prior to the hearing should be allowed; whether the theft of legend drugs from the employer hospital and the shipping of them to another person in another state is "distributing legend drugs other than in the course of the professional practice of pharmacy," and whether the crime for which the Respondent was adjudged guilty "directly relates to the ability to practice pharmacy or to the practice of pharmacy."

FINDINGS OF FACT

1. The Respondent Walter Deryk is a pharmacist licensed in the State of Florida, License No. 12139. On or about July 30, 1980, while in his employment as chief pharmacist at St. Joseph's Hospital in Port Charlotte, Florida, the Respondent took or converted to his own use, without prescription or permission of his employer, the legend drugs described in attachment one to the administrative complaint, and incorporated by reference herein, which were the property of St. Joseph's Hospital. On or about that same date the Respondent packaged the drugs and delivered them to the United Parcel Service in a package marked "souvenirs shells" for shipment to Kenneth J. Moffa in Long Island, New York. Kenneth J. Moffa is a pharmacist licensed in the State of New York. On a number of other occasions prior to July 30, 1980, while in his employment as chief pharmacist at St. Joseph's Hospital and without permission of that employer nor proper prescription, the Respondent similarly converted legend drugs belonging to the hospital to his own use and shipped them to New York. During a routine inspection for proper packaging by the United Parcel Service, it was discovered that the box shipped to New York on July 30, 1980, contained legend drugs which had been taken from St. Joseph's Hospital pharmacy. The Respondent was arrested for theft shortly thereafter and admitted taking the drugs from the pharmacy. Criminal charges were instituted against the Respondent and the Respondent made a motion to suppress the physical evidence based upon allegations of improper search and seizure. The motion was denied in Circuit Court and the Respondent entered a plea of nolo contendere, but reserving the right to appeal the court's ruling on the suppression issue. That appeal is still pending. The Respondent was convicted in Circuit Court for the theft and this administrative prosecution resulted.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

3. The following provisions of Section 465.016, Florida Statutes, the Pharmacy Act, are germane to this proceeding:

   
   

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

      * * *

      (f) Having been convicted or found guilty, regardless of adjudication, in a court of this state or other

      jurisdiction, of a crime which directly relates to the ability to practice pharmacy or to the practice of phar- macy. A plea of nolo contendere shall

      constitute a conviction for purposes of this provision.

      * * *

      (i) Compounding, dispensing, or distributing a legend drug, including any controlled substance, other than in the course of professional practice of pharmacy. For purposes of this

      paragraph, it shall be legally presumed that the compounding, dispensing, or distributing of legend drugs in excessive or inappropriate quantities is not in the best interests of the patient and is not in the course of

      the professional practice of pharmacy.

      
      

4. The provisions of Section 465.003, Florida Statutes, are also germane to this proceeding as quoted below:

   
   

   (6) "Practice of the profession of pharmacy" includes compounding, dis- pensing, and consulting concerning contents, therapeutic values, and uses of any medicinal drug and consulting concerning therapeutic values and interactions of patent or proprietary preparations, whether pursuant to pre- scriptions or in the absence and entirely independent of such pre- scriptions or orders, or any other

   act, service, operation, or transaction incidental to, or forming a part of, any of the foregoing acts, requiring, involving, or employing the science or art of any branch of the pharmaceutical profession, study, or training.

   
   

5. The administrative complaint herein was amended after the Petitioner was advised by the Respondent and his counsel at the informal conference held pursuant to Section 120.60(6), Florida Statutes (1979), that the Respondent had entered a plea of nolo contendere in the criminal case and that he had been convicted, although his conviction was pending appeal. It is a separate and distinct violation of the Pharmacy Practice Act to be "convicted or found guilty, regardless of adjudication, in a court of this State or other jurisdiction, of a crime which directly relates to the ability to practice pharmacy or to the practice of pharmacy. A plea of nolo contendere shall constitute a conviction for purposes of this provision." Section 465.016(1)(f), Florida Statutes (1979). The administrative complaint was thus amended to reflect this additional information regarding the criminal case emanating from the same acts or conduct by the Respondent. This was done by the addition of a new count two. Count one was also slightly amended to clarify the charge that the legend drugs in question were the property of St. Joseph's Hospital. The Respondent prior to and at the hearing asserted a motion to strike and dismiss the administrative complaint, averring that this amendment was too immediate to the hearing date for him to adequately prepare a defense. This argument is specious, however, in that the record reflects that the Respondent himself informed the Petitioner of the events and disposition of the criminal case which

   constituted the subject matter of the amended count two of the administrative complaint, and also his stipulation as to certain of the facts here involved reveals that he agreed and never contested the fact that the subject drugs were the property of the St. Joseph's Hospital with regard to the amendment to count one. .In short, the amended complaint did not depart from principles of notice pleading embodied in the Florida Rules of Civil Procedure in that it raised no substantially new and different charges or allegations for the Respondent to have to prepare a defense against and indeed merely asserted additional matters and an additional charge which the Respondent had been aware of even before the Petitioner. The Respondent was furnished with a copy of the Petitioner's entire investigatory file in response to his interrogatory on May 14, 1981. Further, by analogy, Section 120.57(1)(b) 2d, Florida Statutes, allows, with regard to notice of issues to be litigated, the furnishing of a "more definite and detailed statement . . . not less than three days prior to the date set for the hearing." The Respondent has thus failed to show any prejudice due to the late amendment of the administrative complaint. Therefore, the motions to dismiss and strike should be denied.

   
   

6. Regarding the issue raised concerning whether the removal of legend drugs from the Respondent's employer/hospital and shipping them to another person constitutes distributing legend drugs other than in the course of the professional practice of pharmacy," the Respondent does not deny that he removed drugs which did not belong to him from the hospital's pharmacy and shipped them to a friend in New York. The Respondent is charged with violation of that portion of the above-quoted authority prohibiting the compounding, dispensing or distributing of legend drugs other than in the course of the professional practice of pharmacy. That prohibition carries with it the legal presumption that compounding, dispensing or distributing of legend drugs in excessive or inappropriate quantities is not in the best interests of the patient and is not in the course of the professional practice of pharmacy. See Section 465.016(1)(i), Florida Statutes (1979). The terms "compounding" and "dispensing" are not involved herein, since the Respondent is not charged with furnishing excessive amounts of drugs to the ultimate consumer of the drug, but rather illegally distributing the drugs to one not authorized to have them by purloining them from his employer's possession and shipping them to one in another jurisdiction without authority to do so.

   
   

7. Although the term "distribute" is not defined in Chapter 465, it should be given the plain meaning ordinarily applied to it by "reasonably prudent persons . . . in the conduct of their affairs." Thus, Webster's Dictionary defines "distribute" in such terms as: "to divide and dispense in portions, parcel out, deliver and pass out, spread or diffuse," etc. The Respondent argues that his actions were not outside the "professional practice of pharmacy" because it is a normal situation for one pharmacist to ship legend drugs to another pharmacist. In this instance, however, the record establishes that there was no bona fide reason for the Respondent to be shipping legend drugs to a pharmacist in another state and further, the act of distribution of the drugs began with the theft of the drug, the fact of which theft is not controverted. The fact that the distribution scheme had its genesis in an illegal act, renders the entire scheme illegal and a violation of the above-quoted authority. Although the Respondent attempts to argue that the general prohibition in Section 465.016(1)(i), Florida Statutes, should only be interpreted narrowly to mean that "over dispensing" or dispensing or distributing excessive quantities of legend or controlled drugs is presumed to be outside the professional practice of pharmacy, it should be borne in mind that although the last sentence establishing the presumption may be deemed to only apply in "over dispensing" cases insofar as a presumption is concerned, a broader and more logical

   construction of that entire section would obviously dictate that an illegal distribution of drugs initiated by the theft of those drugs cannot be in the course of the professional practice of pharmacy as defined above. It certainly is not an act ". . . requiring, involving or employing the science or art of any branch of the pharmaceutical profession, study or training."

   
   

8. The Respondent also argues that the theft of the drugs from the hospital pharmacy does not directly relate to the practice of pharmacy or to the ability to practice pharmacy for purposes of the above statutory authority. There is no question that the circuit judge adjudged the Respondent guilty of the crime involving larceny of the subject drugs and in any event the above statutory authority renders the mere plea of nolo contendere to constitute a conviction for purposes of the above section. It is difficult to conceive how this crime does not relate to the Respondent's practice of pharmacy or his ability to practice pharmacy in that it would not have occurred had he not been employed at the hospital as a pharmacist with access to the stock of drugs. The act of stealing drugs is not "practicing pharmacy," but the act occurred because it was facilitated and the opportunity for it was created by the Respondent's act of practicing pharmacy for his employer with access to the drugs.

   
   

9. The Respondent reserved the right upon pleading nolo contendere to appeal the denial of his motion to suppress evidence obtained at the subject search and seizure which culminated in his criminal prosecution. This does not undo the fact that the Respondent pled nolo contendere and ultimately was actually adjudged guilty by the circuit judge which triggers the above prohibition which can result in suspension, revocation or other disciplinary action. Even if the search and seizure is ultimately held by an appellate court to have been performed illegally, that is not to say that the conviction in the criminal case will be thereby overturned, since it may be sustainable on other grounds. Further, the fact that the Respondent pled nolo contendere and was adjudged guilty is sufficient to establish guilt of this violation for purposes of this administrative proceeding and for purposes of Chapter 465, Florida Statutes, even though the Respondent might conceivably have grounds for overturning his administrative adjudication of guilt should the criminal conviction ultimately be overturned.

   
   

10. In summary then, the undersigned concludes that the Respondent admitted theft of legend drugs from his employer and the subsequent shipment of them to another individual constitutes "distributing legend drugs other than in the course of the professional practice of pharmacy." The undersigned further concludes that the Respondent's plea of nolo contendere and his subsequent adjudication of guilt by the Circuit Court regarding theft of the legend drugs arising out of the same factual circumstances and transaction as alleged in the amended administrative complaint herein constitutes "having been . . . found guilty in a court of this State of a crime which directly relates to the ability to practice pharmacy or to the practice of pharmacy."

RECOMMENDATION

Having considered the foregoing findings of fact, the evidence in the record and the pleadings and arguments of counsel, it is

RECOMMENDED that the license of Walter Deryk authorizing him to practice pharmacy in the State of Florida be REVOKED.

DONE AND ENTERED this 6th day of October, 1981, in Tallahassee, Leon County, Florida.

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 6th day of October, 1981.

COPIES FURNISHED:

William M. Furlow, Esquire Department of Professional

Regulation

130 North Monroe St. Tallahassee, Florida 32301

John D. Hooker, Esquire Suite 100, The Legal Center 725 E. Kennedy Boulevard Tampa, Florida 33602

Docket for Case No: 81-001135

Orders for Case No: 81-001135