STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1727

) FARMACIA LA FAMILIA, ALBERTO ) CALIL, and NELSON TORRES, )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1728

)

HILDELISA M. HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 10, 1982, and on November 29, 1982, in Coral Gables, Florida.

APPEARANCES

For Petitioner: W. Douglas Moody, Esquire

119 North Monroe Street Tallahassee, Florida 32301

For Respondent: Raul A. Cossio, Esquire

1900 Coral Way, Suite 404

Miami, Florida 33145

Petitioner filed an Administrative Complaint against Respondents Farmacia La Familia, Alberto Calil and Nelson Torres seeking to take disciplinary action against their permit to operate a pharmacy under the laws of the State of Florida, and a separate Administrative Complaint against Respondent Hildelisa M. Hernandez and her license as a pharmacist under the laws of the State of Florida based upon her alleged conduct as the managing pharmacist of Farmacia La Familia. All Respondents timely requested a formal hearing on the allegations contained within those Administrative Complaints. Accordingly, the issues for determination are whether Respondents are guilty of the charges contained in those Administrative Complaints and, if so, what disciplinary action should be taken, if any.

On August 3, 1982, these causes were consolidated for hearing.

Petitioner presented the testimony of Georgina T. Auspitz, Jack Genova, Miguel Palmer and Noel Rojas. Additionally, Petitioner's Exhibits numbered 1 through 8 were admitted in evidence.

Respondents presented the testimony of Nelson P. Torres, Hildelisa Mercedes Hernandez Sanchez, Dwayne J. Salmen, Manuel J. Diaz Garcia, Alberto Calil and Albert W. Loftus, Jr. Additionally, Respondents' Exhibits numbered 4 through 8 were admitted in evidence.

Petitioner submitted proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. At all times material hereto, Respondent Alberto Calil was the owner of Farmacia La Familia, the holder of a permit to operate a pharmacy under the laws of the State of Florida, having been issued permit number 0007056.

   
   

2. At all times material hereto, Respondent Hildelisa M. Hernandez has been licensed as a pharmacist under the laws of the State of Florida, having been issued license number 0016352. At all times material hereto, Hernandez has been the managing pharmacist at Farmacia La Familia and, specifically, has been the only pharmacist employed there.

   
   

3. Prior to the events alleged in the Administrative Complaints filed herein, Respondent Nelson Torres had an ownership interest in Farmacia La Familia. In February 1982, he transferred his interest in the business, and his shares of stock in the corporation owning the business, to Respondent Calil. At the time of the formal hearing in this cause, Torres did not own or operate a pharmacy.

   
   

4. The Miami office of the Department of Professional Regulation received an anonymous letter advising, essentially, that a number of pharmacies were being operated other than in compliance with the law. Georgina Auspitz, an investigator with the Department of Professional Regulation, was instructed by her supervisor to visit each of the pharmacies named in that letter to investigate the allegation.

   
   

5. On Friday, March 26, 1982, Auspitz entered the Farmacia La Familia. After a brief conversation with Respondent Hernandez and a customer of the pharmacy, Auspitz asked Hernandez for three dollars' worth of Tranxene 3.75 mg. Hernandez went into the dispensary part of the pharmacy and returned with a manila envelope containing 15 capsules. At no time during this transaction did Auspitz present Hernandez with a prescription.

   
   

6. On Monday, March 29, 1982, Auspitz took the envelope and its contents to the Dade County Public Safety Department. A subsequent chemical analysis of the capsules revealed the presence of the controlled substance known as clorazepate, the active ingredient in Tranxene.

7. On April 6, 1982, Auspitz returned to the Farmacia La Familia. She asked Manuel J. Diaz Garcia1 an employee of the pharmacy, for three dollars' worth of Tranxene 7.5 mg. Diaz went into the dispensary part of the pharmacy, had a discussion with an unidentified female, and returned to the main part of the pharmacy to wait on customers. After being advised that the order was ready, Diaz gave Auspitz a manila envelope containing 11 capsules. Auspitz paid Diaz, Diaz placed the money in the cash register, and Auspitz left the pharmacy. At no time during this transaction did Auspitz present to Diaz a prescription.

   
   

8. Auspitz took the manila envelope and its contents to the Dade County Public Safety Department. A subsequent chemical analysis of the capsules revealed the presence of the controlled substance known as clorazepate, the active ingredient in Tranxene.

   
   

9. After she had made her second "buy" at Farmacia La Familia, Auspitz contacted the City of Miami Police Department to ascertain if one of its narcotics detectives would accompany her on subsequent "buys." As a result of her request, Detective Noel Rojas was assigned to accompany her.

   
   

10. On April 8, 1982, Auspitz and Rojas went to the Farmacia La Familia. Crus Caballero, an employee of the pharmacy, approached them. Auspitz told Caballero she wanted three dollars' worth of Ativan, and Rojas told Caballero he wanted five dollars' worth of Valium 5 mg. Caballero wrote something on a scrap piece of paper and went into the dispensary portion of the pharmacy, left the piece of paper, and returned to wait on other customers. Respondent Hernandez came to the door of the dispensary area, "looked over" Auspitz and Rojas, and returned to the dispensary. A few moments later, Caballero brought two manila envelopes to where Auspitz and Rojas were waiting. Although Auspitz had ordered three dollars' worth of Ativan, Caballero only brought her two dollars' worth. After Auspitz agreed to take the smaller quantity, Caballero placed both manila envelopes into one bag, and Auspitz and Rojas paid for their purchases and left the pharmacy. At no time during this transaction did Auspitz or Rojas present Caballero with a prescription.

    
    

11. Upon leaving the pharmacy, Auspitz and Rojas separated their purchases. Auspitz took hers to the Dade County Public Safety Department, and Rojas took his to the City of Miami Police Department. The chemical analysis performed on the six tablets purchased by Auspitz revealed the presence of the controlled substance lorazepam, the active ingredient in Ativan. The chemical analysis performed on the 23 tablets purchased by Rojas revealed the presence of the controlled substance diazepam, the active ingredient in Valium.

    
    

12. Neither Manuel J. Diaz Garcia nor Crus Caballero is licensed as a pharmacist or registered as a pharmacy intern in the State of Florida.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

14. Since Respondent Nelson Torres terminated his relationship with Respondent Farmacia La Familia prior to the events alleged in the Administrative Complaint filed herein, the Administrative Complaint against him should be dismissed with prejudice. The conclusions of law stated hereafter do not apply to Respondent Nelson Torres but do specifically apply to Respondents Farmacia La Familia, Alberto Calil and Hildelisa M. Hernandez.

15. Both Administrative Complaints charge the Respondents herein with violations of the Florida Pharmacy Act, Chapter 465, Florida Statutes, and the Florida Comprehensive Drug Abuse Prevention and Control Act, Chapter 893, Florida Statutes. Both complaints are the same in that they allege violations of the statutes by the Respondents as follow: Count I--the March 26, 1982, sale by Hernandez to Auspitz; Count II--the April 6, 1982, sale by Diaz to Auspitz; Count III--the April 8, 1982, sale by Caballero to Auspitz; and Count IV--the April 8, 1982, sale by Caballero to Rojas. As to each count, Petitioner has clearly met its burden of proving that the provisions of Chapter 893, as charged, were violated by the failure of the Respondents to require a prescription before distributing or dispensing controlled substances and by the failure of the Respondents to comply with the labeling requirements when controlled substances are dispensed, in violation of Sections 893.04(1) and 893.13(2)(a)1, Florida Statutes (1981).

    
    

16. Petitioner has met its burden of proving that Respondents are guilty of violating Section 465.015(2)(c), Florida Statutes, by selling or dispensing drugs without first being furnished with a prescription (as alleged in Counts I through IV); of violating Section 465.015(1)(b), Florida Statutes, by permitting unlicensed persons to dispense drugs (Counts II through IV); and of violating Section 465.016 (1)(e), Florida Statutes (all counts as to Hernandez), and Section 465.023(1)(c), Florida Statutes (all counts as to Farmacia La Familia and Alberto Calil, by violating the other provisions of Chapters 465 and 893, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative

Complaint filed against Respondent Nelson Torres with prejudice; finding Respondents Farmacia La Familia, Alberto Calil and Hildelisa M. Hernandez guilty of each and every count in the Administrative Complaints filed against them; and revoking pharmacy permit number 0007056 issued to Respondents Farmacia La Familia and Alberto Calil, and further revoking pharmacist license number 0016352 issued to Respondent Hildelisa M. Hernandez

DONE and RECOMMENDED this 5th day of April, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 5th day of April, 1983.

COPIES FURNISHED:

W. Douglas Moody, Esquire

119 North Monroe Street Tallahassee, Florida 32301

Raul A. Cossio, Esquire 1900 Coral Way, Suite 404

Miami, Florida 33145

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Hinton F. Bevis, Executive Director

Board of Pharmacy

130 North Monroe Street Tallahassee, Florida 3230123

Docket for Case No: 82-001727

Orders for Case No: 82-001727