STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-719

)

MICHAEL ANTHONY NORMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal Subsection 120.57(1), Florida Statutes, hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on July 29, 1982, in Jacksonville, Florida. This Recommended Order is being entered following the receipt and review of the transcript of record filed with the Division of Administrative Hearings on August 12, 1982.

APPEARANCES

For Petitioner: Michael I. Schwartz, Esquire

General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Earl B. Hooten, II, Esquire

437 East Monroe Street Jacksonville, Florida 32202

ISSUES

The issues for consideration here are raised through the process of an Administrative Complaint filed by the Petitioner against the Respondent. In particular, by Amended Administrative complaint, Respondent is alleged to have been arrested for his involvement in illegal sale and/or delivery of a controlled substance, namely cocaine, to an undercover agent of the Jacksonville Sheriffs Office and that Respondent entered a plea of nolo contendere to the crime of possession of cocaine, and was placed on five (5) years probation and sentenced to serve three hundred sixty-four (364) days in the Duval County, Florida, jail. For these matters, Respondent is accused of violating Subsection 468.106(1)(i), Florida Statutes, by distributing a controlled substance other than in the course of professional practice of pharmacy and/or Section 893.13, Florida Statutes, by selling, manufacturing, delivering or possessing with intent to sell, manufacture, or deliver, a controlled substance. It is further asserted that Respondent has violated Subsection 465.016(1)(f), Florida Statutes, by having been convicted or found guilty, regardless of adjudication,

in a court of this state of a crime directly related to his ability to practice pharmacy or to the practice of pharmacy, in that the plea of nolo contendere constitutes a conviction for purposes of this provision.

EXHIBITS AND WITNESSES

This case was presented upon the factual stipulation entered into between the parties and upon the agreement that the matter be considered as a formal Subsection 120.57 (1), Florida Statutes, hearing, notwithstanding a lack of disputed facts. Petitioner offered four (4) exhibits which were received into evidence.

FINDINGS OF FACT

1. Michael Anthony Norman, Respondent, is licensed by the State of Florida, Department of Professional Regulation, Board of Pharmacy, to practice pharmacy in Florida.

   
   

2. On June 15, 1981, Respondent was arrested for sell or possession of a controlled substance, namely cocaine. Following this arrest by information in the Circuit Court, Criminal Division, in and for Duval County, Florida,, Case No. 81-5654-CF, Division Q, Respondent was charged with selling, manufacturing, delivering, bringing into the state or knowingly being in actual or constructive possession of twenty-eight (28) grams or more of cocaine or a mixture containing cocaine, to wit: twenty-eight (28) grams or more but less than two hundred

   (200) grams, contrary to the provisions of Subsection 893.135(1)(b)1, Florida Statutes. See Petitioner's Exhibit No. 3, admitted into evidence.

   
   

3. On January 18, 1982, Respondent entered a plea of nolo contendere to knowingly or being in actual or constructive possession of cocaine or a mixture containing cocaine, contrary to the provisions of Subsection 593.13(1)(a), Florida Statutes, and Subsection 893.03(2)(a)2, Florida Statutes.

   
   

4. The Court withheld adjudication of guilt and placed the Defendant on probation for a period of five (5) years upon condition that Defendant, among other requirements, serve three hundred sixty-four (364) days in the Duval County jail, with credit for two (2) days time served. See Petitioner's Exhibit No. 3, admitted into evidence.

   
   

5. At present, Petitioner is serving the condition of probation related to jail time by his participation in a work release program known as Fairfield House, in which Petitioner works each day at a job other than as a pharmacist and is required to remain at that facility at night. The anticipated date of release from this obligation at Fairfield House is October 29, 1982, at the latest.

   
   

6. During the period of Respondent's stay at Fairfield House, he has sought continuing education credits related to his profession through courses found in Pharmacy Times magazine. This action on the part of Respondent was through the mailing of certain course work.

   
   

7. This hearing was occasioned by an Administrative Complaint and subsequent amendment to the Administrative Complaint, for which Respondent requested a formal Subsection 120.57(1), Florida Statutes, hearing. The amended Administrative Complaint, which is the complete statement of present claims against Respondent was signed April 28, 1982.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The first allegation in Administrative Complaint, in its disciplinary phase, says that Respondent violated Subsection 465.016 (.1)(i), Florida Statutes, by the act of distributing a controlled substance other than in the course of professional practice of pharmacy, and/or Section 893.13, Florida Statutes, by selling, manufacturing, delivering or possession with intent to sell, manufacture, or deliver a controlled substance. The facts as stipulated to do not indicate a violation of those provisions, in that the Respondent has not been shown to have distributed a controlled substance other than in the course of the professional practice of pharmacy, or to have sold, manufactured, delivered or possessed with intent to sell, manufacture or deliver a controlled substance. Therefore, he is not in violation of those provisions.

   
   

10. The second allegation is that Respondent is guilty of a violation of Subsection 465.016(1)(f), Florida Statutes, by having been convicted or found guilty, regardless of adjudication, in a court of the State of Florida, of a crime which directly relates to the ability to practice pharmacy or to the practice of pharmacy and that a plea of nolo contendere constitutes a conviction for purposes of this allegation. By the facts shown, Respondent has in effect pled guilty to a crime in the State of Florida which relates to his ability to practice pharmacy or to the actual practice of pharmacy. Possession of cocaine, a controlled substance within the meaning of Subsection 893.03(2)(a)2, Florida Statutes, and in violation of Subsection 893.13(1)(a), Florida Statutes, causes Respondent to be guilty of Subsection 465.016(1)(f), Florida Statutes, and subject to the penalties of that latter provision.

    
    

11. Based upon a full consideration of the facts presented, the conclusions of law reached and the argument of counsel in which Petitioner offered no recommended disposition of the case, and in which Respondent has asked for a penalty which is concurrent with the punishment received from the Circuit Court in and for Duval County, Florida, it is

RECOMMENDED:

That a final order be entered which suspends Respondent Michael Anthony Norman's license to practice pharmacy for a period of two (2) years from the date of that final order.

DONE and ENTERED this 1st day of September, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS

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 1st day of September, 1982.

COPIES FURNISHED:

Michael I. Schwartz, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Earl B. Hooten, II, Esquire

437 East Monroe Street Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wanda Willis, Executive Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000719

Orders for Case No: 82-000719