STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2095

) CASE NO. 82-2096 BGJM, INC., d/b/a SAVE ON DRUGS )

and ROBERT E. LEVY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in these cases on February 15, 1983, in Ft. Lauderdale, Florida. The parties were afforded leave through April 8, 1983, to submit proposed memoranda supportive of their respective positions. Counsel for the parties submitted proposed memoranda which were considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: W. Douglas Moody, Esquire

119 North Monroe Street Tallahassee, Florida 32301

For Respondents: Keith Nassetta, Esquire

7770 West Oakland Park Boulevard Suite 470

Sunrise, Florida 33321 ISSUES

The issues posed for decision herein are whether or not the Respondent, Robert E. Levy, as the sole proprietor and pharmacist for BGJM, Inc., d/b/a Save on Drugs, dispensed controlled substances, not in good faith and/or in the course of his professional practice in excessive or inappropriate quantities, not in the best interest of the patient, and not in the course of the professional practice of pharmacy, in violation of subsections 464.023(1)(c), 465.016(1)(i) and 893.04(1), Florida Statutes; and whether, during the course of inspections conducted on Respondent's pharmacy on April 22 and 23, 1982, Respondent failed to note numerous prescriptions on file, or enter the date of filling, or initialing the prescriptions by the pharmacist who filled said prescriptions, in violation of subsections 465.023(1)(c), 893.04(1)5 and 893.04(1)6, Florida Statutes.

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found:

FINDINGS OF FACT

1. The Petitioner is the Department of Professional Regulation, Board of Pharmacy. Petitioner seeks to suspend, revoke or take other disciplinary action against the Respondents.

   
   

2. Respondent BGJM, Inc. (hereinafter "Save-on Drugs") holds Permit No. 7171 located at 4282 North State Road 7, Lauderdale Lakes, Florida. Save on Drugs has held said permit at all times material hereto.

   
   

3. Respondent Robert E. Levy holds Pharmacy License No. 0017283 and has held said license at all times material hereto.

   
   

4. Respondent Levy operated Save on Drugs as the sole proprietor and is the only pharmacist employed at the aforementioned store.

   
   

5. Respondent Levy, while working at Save on Drugs, between the dates October 16, 1981 and April 2, 1982, dispensed approximately 139,000 Methaqualone tablets on 3,136 prescriptions. Respondent Levy ceased dispensing Methaqualone tablets approximately three (3) weeks prior to the institution of Petitioner's investigation of Respondent Levy's dispensing of controlled substances.

   
   

6. The Respondent dispensed, over a three-month period, some 57,250 units of Methaqualone on behalf of one practitioner, a Dr. Lena. A specific breakdown of Dr. Lena's prescribing activity for part of the relevant period is as follows:

   
   

   DATE	PHARMACY	DRUG	AMOUNT	SCRIPT
   12/14/81	Save-On	Quaa-300 mg.	630	14
   12/15	Save-On		720	16
   12/16	Save-On		495	11
   12/17	Save-On		765	17
   12/18	Save-On		1,440	32
   12/21	Save-On		945	21
   12/22	Save-On	1 x 30 mg.	675	15
   12/23	Save-On	incl.	1,080	24
   12/24	Save-On		1,215	27
   12/28	Save-On		1,035	23
   12/29	Save-On		1,305	29
   12/30	Save-On		1,575	35
   12/31	Save-On		1,305	29

   
   

   Totals 13,185 293

7. The numerous prescriptions introduced into evidence by the Petitioner reflect circumstances where Respondent Levy failed to properly initial and date Schedule II prescriptions as they were filed. As example, Petitioner offered the following: prescription Nos. 48854, 48052, 50189, 48068, 48856, 48912 and 48905.

8. Louis Fisher 2/ , an employee of the Department of Justice, Drug Enforcement Administration, since approximately November, 1971, has been involved with the regulation of controlled substances. Mr. Fisher works with

   doctors as well as pharmacists at the retail level. Mr. Fisher is a registered pharmacist and has been charged with drafting regulations for controlled substances. Without question, Methaqualone is a Schedule II drug and is a sedative and hypnotic agent. The drug has a high abuse potential. During the summer of 1982, Methaqualone was changed from Schedule II to a Schedule I controlled substance.

   
   

9. After being provided with a hypothetical situation giving the number of prescriptions that Respondent Levy had filled during the time period involved, Mr. Fisher concluded that a pharmacist filling the number of prescriptions within the time period as is here involved by Respondent Levy was, in Mr. Fisher's opinion, unprofessional, excessive, outside the course of good professional practices, and not conduct amounting to professional practice in the patients' best interest. 3/

   
   

10. Dr. Lena was employed by Northeast Medical Services, a stress clinic. In this regard, the parties stipulated that all the prescriptions involved herein were written by a licensed medical doctor.

    
    

11. Daniel O'Connell, an investigator with the Department of Professional Regulation, visited the Respondent's store during approximately October 1981, and performed a routine change of ownership inspection. At that time, Respondent Levy engaged in a conversation with investigator O'Connell at which time Respondent Levy was apprised of the problem with respect to dispensing Methaqualone in the south Florida area.

    
    

12. Jim R. Golden, an investigator with the Department of Professional Regulation since approximately September 1981, visited Respondent Levy's store during April 1982, to perform a routine inspection to determine the amount of Schedule II drug prescriptions that Respondent was filling. Investigator Golden reviewed a large number of prescriptions that were filled by Respondent for Dr. Lena and inquired of Respondent the reason for dispensing such a large number of prescriptions for Methaqualone tablets. Respondent Levy replied that it was the "money end of it" and that he (Respondent) could fill six (6) Methaqualone prescriptions and do better with those prescriptions from a profit viewpoint than he could with the remainder of his other prescribing activities in the store for the remainder of any given day. Further, Respondent related that he hand to do extensive repairs to make the store operational. (Testimony of Investigator Golden)

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

15. The authority of the Petitioner is derived from Chapter 465, Florida Statutes.

    
    

16. Respondent, Robert E. Levy, a licensed pharmacist (license No. 0017283) and as the holder of Permit No. 7171 for Respondent, BGJM, Inc. (Save on Drugs), is subject to the disciplinary guides of Chapter 465, Florida Statutes (1981).

17. Respondent, Robert E. Levy, as the sole proprietor and only pharmacist employed at "Save on Drugs", is responsible for, inter alia, maintaining all drug records, security of the prescription department, and following other rules in the best interest of patients in the practice of the profession of pharmacy. Section 465.018, Florida Statutes (1981).

    
    

18. Respondent, based on an examination of numerous prescriptions noted on file during April 22 and 23, 1982, by failing to enter the date of filling, or initialling the prescription, or to indicate that some pharmacist other than himself filled said prescriptions, violated subsections 465.023(1)(c) and 893.04(1)5 and 6, Florida Statutes (1981).

    
    

19. Respondent, Robert E. Levy, by dispensing 139,000 Methaqualone tablets on 3,136 prescriptions during the period October 16, 1981 through April 2, 1982, while working at Save on Drugs, amounts to dispensing controlled substances, not in good faith aid/or in the course of his professional practice in excessive or inappropriate quantities, not in the best: interest of patients, and not in the course of the professional practice of pharmacy. By so doing, Respondent Levy thereby violated subsections 465.023(1)(c), 465.016(1)(i) and 893.04(1), Florida Statutes (1981)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED:

1. That Respondent BGJM, Inc.'s Permit No.7171 be REVOKED.

   
   

2. That Respondent Robert E. Levy's Pharmacy License No. 0017283 be placed on probation for a period of two (2) years.

RECOMMENDED this 12th day of May, 1983, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 12th day of May, 1983.

ENDNOTES

1/ To the extent that the parties' proposed findings, etc. are not incorporated in this Recommended Order, said proposed findings, etc. were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

2/ Received as an expert knowledgeable in the regulation of pharmacists in Florida, and more particularly in south Florida.

3/ Other pharmacists who testified at the hearing herein and who were received as experts in the practice of pharmacy in south Florida, rendered a similar opinion. (Testimony of Ralph Weiner, Jr. and Connstantine Lopilato; TR. pp. 66,

85 through 08).

4/ In making this recommendation, consideration was given to the fact that Respondent Levy ceased dispensing Methaqualone tablets approximately three (3) weeks prior to Petitioner's investigation. However, the exercise of sound judgment by Respondent Levy, as he admitted, should have put an end to his dispensing activities as relates to Methaqualone tablets--a controlled substance with high abuse potential.

COPIES FURNISHED:

W. Douglas Moody, Esquire

119 North Monroe Street Tallahassee, Florida 32301

Keith Nassetta, Esquire Suite 470

7770 W. Oakland Park Blvd. Sunrise, Florida 33321

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Wanda Willis Acting Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 82-2095

PERMIT NO. 7171

BGHM, INC., d/b/a LICENSE NO. 17283 SAVE ON DRUGS and

ROBERT E. LEVY,

Respondents,

/

FINAL ORDER

The Florida Board of Pharmacy of the Department of Professional Regulation hereby accepts the Recommended Order enters in this case by James E. Bradwell, Hearing Officer, Division of Administrative Hearings, on May 12, 1983.

The Florida Board of Pharmacy after reviewing the complete record in the above-styled cause determined that the penalty recommended by the Hearing Officer is too lenient under the circumstances of these cases, therefore, Respondent, Robert E. Levy is hereby FINED $2,000.00. Respondent, BGJM, INC., d/b/a SAVE ON DRUGS, is also FINED $2,000.00 for a total of $4,000.00 and Respondent's license to practice pharmacy in the State of Florida is hereby SUSPENDED for a period of 1 year. Fines to be due and owing within thirty (30) days of the issuance of this order.

DONE AND ORDERED this 29th day of August, 1983, by the Florida Board of Pharmacy.

Copies furnished to:

Bruce D. Lamb, Esquire Keith Nasseta, Esquire

WANDA WILLIS, Acting Director Florida Board of Pharmacy

Docket for Case No: 82-002095

Orders for Case No: 82-002095