STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-062

)

MARSHALL MOUNGER, )

)

Respondent. )

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-063

) DOR MAR, INC., d/b/a MOUNGER ) PHARMACY, AND MARSHALL MOUNGER, )

owner/operator, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal administrative hearing in this case on March 19, 1982, in West Palm Beach, Florida. The parties requested 20 days after the filing of the transcript to submit proposed findings of fact and conclusions of law. Subsequent to the hearing, this time was extended to May 10, 1982, and the parties waived the 30 day time period for issuance of this Recommended Order.

All of the proposed findings and conclusions submitted have been considered. Where not adopted, they have been found to be contrary to the weight of the credible evidence.

APPEARANCES

For Petitioner: W. Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

For Respondent: Marshall Mounger, in pro per Marshall Mounger: 107 South Parrott Avenue

Okeechobee, Florida 33472

For Respondent, Marshall Mounger and Dor Mar, Inc. : Dorothy Mounger

As witnesses for 107 South Parrott Avenue the Respondent Okeechobee, Florida 33472

By separate Administrative Complaints issued on December 8, 1981, the Petitioner seeks to suspend or revoke the licenses held by the Respondents, or otherwise discipline them, for violation of Section 893.07, Florida Statutes. Generally, this statute requires licensed pharmacists and pharmacies to keep accurate records of controlled substances. These cases were consolidated for hearing and disposition by Order dated February 17, 1982.

The Petitioner presented three witnesses in support of the Administrative Complaints, and offered four exhibits which were received in evidence. The Respondent, Marshall Mounger, testified in his own behalf and for the corporate Respondent, as did his wife, Dorothy Mounger.

FINDINGS OF FACT

1. The Respondent, Marshall Mounger is a licensed pharmacist holding license number 8778, and Dor Mar, Inc., is a pharmacy holding permit number 7310. The Respondents held these licenses at all times material to this proceeding.

   
   

2. On or about January 9, 1980, Edward G. Bludworth, an investigator employed by the Petitioner, and Eugene F. O'Neill, a detective with the Okeechobee Police Department, conducted an audit of a variety of the Respondent's scheduled drugs. The audit period covered drug dispensation from March 1, 1979, through January 9, 1980.

   
   

3. The drug categories chosen for audit were determined from the utilization of information acquired by Detective O'Neill concerning certain allegations of impropriety taking place at the Respondent's pharmacy.

   
   

4. The target drugs in which shortages were discovered are as follows, together with the amounts of these shortages:

   
   

   DRUG Preludin		SHORTAGE 0	SHORTAGE	BY PERCENTAGE 0
   Percocet	5 mg.	65		5
   Eskatrol		10		5
   Valium 5	mg.	1,968		46
   Valium 10 mg.		629	39
   Librium 10 mg.		820	39
   Ionamin 30 mg.		850	26
   Meprobamate		250	8

   
   

5. In conducting the audit, the Respondents were given all due benefit, as the initial inventory employed by Mr. Bludworth was zero; therefore, any drugs that may have been on hand at the beginning of the audit would have provided additional credit toward the final totals.

   
   

6. Investigator Bludworth's qualifications to conduct a valid audit are unrefuted. He has had some twenty years experience in this field of expertise.

   
   

7. The Respondents assert that the audit results are subject to question, as Detective O'Neill participated in the audit process without training as an

   auditor or pharmacist. However, Mr. Bludworth reviewed everything material to the integrity of the audit process, realizing that Detective O'Neill was inexperienced. In any event, Detective O'Neill's only assignment was to review some prescription forms and record the contents therein. This requires the ability to read and to count, and Detective O'Neill is qualified to perform these basic functions.

   
   

8. The Respondent, Marshall Mounger, presented an audit performed by his wife, Dorothy Mounger, which still indicated substantial shortages in four of the target drug categories.

   
   

9. The Respondent offered no credible and convincing evidence as to the inaccuracy of the initial audit, other than the contention that Detective O'Neill was not qualified to simply read the names and numbers on prescription forms.

   
   

10. There was a subsequent audit performed at the Respondent's pharmacy which indicated further shortages. However, by the admission of the Petitioner's own witness, this audit was not properly conducted in that the Respondent was not given credit for the generic drugs he had on hand at the time of the second audit. Therefore, the results of this audit have been disregarded.

    
    

    CONCLUSION OF LAW

    
    

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

    
    

12. Section 893.07, Florida Statutes, requires pharmacists and pharmacies to keep a complete and accurate account of all stocks of controlled substances on hand, and maintain a complete and accurate record of each substance received, sold, or delivered. Subsection (2) of this statute sets forth explicitly what this record of controlled substances must show. This includes the date of receipt, the name and address where received, and the kind and quantity received. Subsection (3) of this statute sets forth what the record of controlled substances sold or dispensed must show. This includes the date when and the person to whom sold or dispensed, and the kind and quantity sold or dispensed. In addition, this inventory or record must be maintained separately from all other records and made available for inspection for two years, and a separate record of lost, destroyed, or stolen substances must be kept.

    
    

13. Section 893.03, Florida Statutes, which specifies what substances are controlled by the Florida Comprehensive Drug Abuse Prevention and Control Act, Chapter 893 of the Florida Statutes, includes each of the target drugs which were the subject of the audit conducted by the Petitioner.

    
    

14. Under the provisions of Section 465.016(2), Florida Statutes, the Board of Pharmacy is authorized to impose penalties upon licensees ranging from license revocation to the issuance of a reprimand, and may levy an administrative fine not to exceed $1,000 for each count or separate offense, when the licensee is found guilty of violating any of the provisions of Chapter 893, Florida Statutes.

    
    

15. From the shortages of controlled substances as disclosed by the first audit conducted by the Petitioner's representatives, it is determined that the available pharmacy records of the Respondents did not completely and accurately

account for the controlled substances in their control. This constitutes a violation of Section 893.07, Florida Statutes. However, since the second audit was not properly conducted, and the results thereof have been disregarded, the Respondents are found guilty of only one count or separate offense.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Pharmacy impose a single administrative fine

on the Respondents, Marshall Mounger and Dor Mar, Inc., in the amount of $1,000.

THIS RECOMMENDED ORDER entered this 26th day of May, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1982.

COPIES FURNISHED:

W. Douglas Moody, Jr., Esquire

119 North Monroe Street Tallahassee, Florida 32301

Mr. Marshall Mounger and Dor Mar, Inc.

107 South Parrott Avenue Okeechobee, Florida 33472

William L. Grossenbacher, Esquire Post Office Drawer 1140, Tallahassee, Florida 32302

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PHARMACY

DEPARTMENT OF PROFESSIONAL

REGULATION, BOARD OF PHARMACY, CASE NOS. 82-062

82-063

Petitioner,

0018258

vs. 0019995

MARSHALL MOUNGER,

Respondent.

/ DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY,

Petitioner,

vs.

DOR MAR, INC., d/b/a MOUNGER PHARMACY, AND MARSHALL MOUNGER,

owner/operator,

Respondent.

/

FINAL ORDER

THIS CAUSE came on to be heard before the Florida Board of Pharmacy at a regularly scheduled meeting held in Gulf Breeze, Florida, on August 13, 1982.

Appearance for Petitioner: Michael Schwartz

General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Appearance for Respondent: Edward S. Jaffry, Esquire

Horne, Rhodes, Jaffry, Horne & Carrouth

800 Barnett Bank Building Post Office Drawer 1140 Tallahassee, Florida 32302

Upon review of the Recommended Order filed in this cause on May 26, 1982 and the exceptions to said Recommended Order filed by Respondents on July 21, 1982, the Florida Board of Pharmacy makes the following findings after reviewing the complete record in this cause;

1. Exceptions number 1, 2, 4, & 5, are hereby rejected insofar as the Florida Board of Pharmacy finds adequate competent evidence in the record to support the Hearing Officer's Findings of Fact.

   
   

2. Exception number 3 is rejected insofar as it is the Board's professional opinion that the Hearing Officer's binding that Officer O'Neill was competent to read prescriptions in the manner and for the purposes set forth in the record is correct.

   
   

3. Exception number 6 is rejected insofar as it

   is the opinion of the Florida Board of Pharmacy that the Hearing Officer's finding was not a deter- mination with regard to the burden of proof,

   but rather a commentary on the weight of the evidence.

   
   

4. Exceptions number 7 & number 9 are rejected insofar as said "exceptions" are not in fact exceptions but rather conclusions or actual agreements with the Hearing Officer.

   
   

5. Exception number 8 is hereby excepted and the Recommended Order rejected to the extend that

   any reliance upon subsequent audits other than that conducted by investigators Bloodworth and O'Neill are not relevant to the issue at hand.

   
   

6. Exception number 10 is hereby rejected insofar as it is the position of the Florida Board of Pharmacy that insofar as Chapter 893 is a ground for discipline under F.S. 465.016 that the provision for a routine inspection under F.S.465.017 was properly exercised in this case.

Wherefore, it is hereby

ORDERED AND ADJUDGED that with the exception of the above-mentioned paragraph 5, the Hearing Officer's findings of facts, conclusions of law and recommended penalty are hereby accepted by the Florida Board of Pharmacy and made a part of this final order. The FINE in question is due and owing within

30 days of issuance of this order:

DONE AND ORDERED this 19th day of August, 1982, by the Florida Board of Pharmacy.

WANDA WILLIS

Executive Director Florida Board of Pharmacy

cc: Michael Schwartz, Esquire Edward S. Jaffry, Esquire William B. Thomas, Esquire

Docket for Case No: 82-000062

Orders for Case No: 82-000062