STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2591

)

TAMPA PARK PLAZA PHARMACY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tampa, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on September 13, 1983. The Division of Administrative Hearings received a transcript of the proceedings on September 26, 1983. At hearing, Andrew Mobley appeared for respondent. See Magnolia Nursing and Convalescent Center v. Department of Health and Rehabilitative Services, 428 So.2d 256 (Fla. 1st DCA 1982). Petitioner was represented by counsel:

Bruce D. Lamb, Esquire

130 North Monroe Street Tallahassee, Florida 32301

By administrative complaint dated July 5, 1983, petitioner alleged that respondent "a community pharmacy," employed Lester Henderson at all pertinent times as its pharmacy manager and that, on "February 16, 1983, the . . . pharmacy had no pharmacist on duty from 10:15 a.m. until 12 noon. The prescription department was open and there was not [a] sign saying that the prescription department was closed"; and that the same situation obtained on "April 19, 1983 . . . from 10:15 a.m. until 2:00 p.m. . . . . [all] in violation of Rule 21S-1.14 by failing to properly lock the pharmacy and display a 'closed' sign when the pharmacist was not present, and in violation of Sections 465.023(1)(c), Florida Statutes (1981)." In count two, the administrative complaint alleged that "an audit was conducted for controlled substances for the period between June 9, 1981 and February 16, 1983 . . . [and] showed a shortage of Dilaudid 2 mg., 396, Percodan, 41 and an overage of Demerol Tablets 50 mg.,

97 . . . in violation of Subsection 893.07(2), . . . and Subsection 465.023(1)(c), Florida Statutes (1951)."

FINDINGS OF FACT

1. Respondent holds community pharmacy license No. PH0007711, renewed January 13, 1983. On May 21, 1981, Lester J. Henderson signed a new establishment permit application as owner, officer, manager and registered pharmacist. On June 9, 1981, petitioner conducted a new establishment inspection of Tampa Park Plaza Pharmacy. On June 19, 1981, Mr. Henderson wrote that "Andrew Mobley is no longer the Pharmacy Manager of Tampa Park Plaza Pharmacy, but I am . . . ." Petitioner's Exhibit No. 1. Petitioner received

   this notification on June 24, 1981, and, on the following day, wrote Mr. Henderson "to advise that effective as of June 19, 1981, our records were amended to reflect that you are the pharmacist manager."

   
   

2. MBHS Corp., Inc. (MBHS), owns Tampa Park Plaza Pharmacy, (the pharmacy) and MBHS is owned in turn by its three officers. MBHS' president, Andrew Mobley, and Lester Henderson, an MBHS vice-president, are registered pharmacists. Samuel Snowden, also an MBHS vice-president and the third stockholder, is not a pharmacist.

   
   

3. After the pharmacy opened for business, Andrew Mobley left Florida, and left the every day operation of the pharmacy to Lester Henderson, whom he knew to have had no retail experience as a pharmacist. In December of 1981, Mr. Mobley returned from Oklahoma to find a complete dearth of pharmaceutical records. Mr. Henderson explained that he did not like paperwork.

   
   

4. Mr. Mobley returned to Oklahoma, again leaving the every day operation of the pharmacy to Mr. Henderson, but returned to Tampa when a bank that had made the pharmacy a loan threatened to call it in. He found scheduled drugs mixed in together, with unscheduled drugs, and a continued lack of records. Mr. Mobley then set up an inventory control book, something that had been neglected to that point. It developed that some Dilaudid was missing, which seemed to be news to Mr. Henderson. Mr. Mobley told Mr. Henderson the fact that the drugs were missing would have to be reported to the Department of Professional Regulation and Mr. Mobley got forms from the Department of Professional Regulation's office on Henderson Boulevard, which he gave to Mr. Henderson to fill out. Mr. Henderson never did fill them out and reportedly said "Andrew . .

   . must be crazy if he thinks I'm going to fill out those papers and send them in to those people." (T. 35) Mr. Mobley worked with Mr. Henderson in an effort to straighten out record keeping at the pharmacy, but also took a job at Walgreen's beginning in February of 1983. He left this job in June to take over from Mr.

   Henderson as pharmacy manager at the pharmacy. Mr. Henderson has not been employed at the pharmacy since.

   
   

5. Edward G. Bludworth and Merry L. Paige, investigators in petitioner's employ, visited the pharmacy about ten o'clock on February 16, 1983. The prescription department was open; it was unlocked and there was no "closed" sign, but there was no pharmacist on duty. When the investigators asked to speak to the pharmacist, the store clerk made several telephone calls. She was only able to locate Mr. Henderson at about two o'clock, after the investigators had left.

   
   

6. Mr. Bludworth and Ms. Paige conducted an audit of scheduled drugs at the pharmacy on February 16, 1983. Because of the lack of an inventory report as of the spring of 1981, they assumed no drugs on hand as of June 9, 1981. On this assumption they concluded that 296 tablets of Dilaudid 2 mg. were missing and unaccounted for. Dilaudid contains dihy dromorphinone [sic]. On the same assumption, they found a shortage of 41 Percodan tablets, which contain oxycodone, and an overage of 97 Demerol tablets 50 mg. Petitioner's Exhibit No.

1. During the audit period, the pharmacy purchased 400 tablets of Dilaudid 2 mg. and 500 Percodan tablets. Id. The discrepancies uncovered by the audit exceeded significantly the five percent error rate that the investigators commonly see.

   
   

   1. Mr. Bludworth and Ms. Paige returned for a second visit on April 19, 1983, at about ten o'clock in the morning. Once again, the prescription

      department was unlocked and open. There was no "closed" sign and no pharmacist to be seen. This time Mr. Henderson's presence was procured by noon.

      
      

   2. On one of their visits, Mr. Henderson told the investigators that there had been a break-in at the pharmacy more than a year earlier. He said he had reported the incident at the time to the authorities but was unable to produce documentation of any such report. The investigators requested such documentation at the time of the visit, and Ms. Paige later telephoned him to ask again for documentation.

      
      

      CONCLUSIONS OF LAW

      
      

   3. Petitioner is authorized to "revoke or suspend the permit of any pharmacy permittee who has"

      
      

      (c) Violated any of the requirements of . . . chapter [465] or any of the rules of the Board of Pharmacy . . . or of chapter 893 . . . .

      
      

      Section 465.023(1), Florida Statutes (1981).

      
      

      Among the rules of the Board of Pharmacy is Rule 21S-1.14, Florida Administrative Code, which has been pleaded in the present case and which provides, in pertinent part:

      
      

      If a community pharmacy is open for business and a Florida registered pharmacist is not present and on duty, the prescription department shall be considered closed; and a sign shall

      be displayed in a prominent place in the prescription department in such manner that it can be easily read by patrons of said establishment, and each letter on said sign shall be not less

      than two (2) inches in width and height, in bold print, and such a sign shall read: "Prescription Department Closed"; pro- vided that at all times when the pre- scription department is closed, either because: of the absence of a Florida registered pharmacist or for any other reason, the said prescription department shall be separated from the remainder of the community pharmacy by partition or other means of enclosure, and said enclosure shall be locked or padlocked

      so as to prevent the entry into said department by persons not licensed to practice pharmacy in the State of Florida, and at such times no person other than

      a person licensed to practice pharmacy in Florida shall enter or be permitted to enter the prescription department of any community pharmacy provided, further, that at all

      such times only a Florida registered

      pharmacist shall have the means to gain access to the said prescription department.

      
      

      The administrative complaint alleges, in count two, a violation of Section 465.023(1)(c), Florida Statutes (1981), on account of a violation of Section 893.07(2), Florida Statutes (1981), which requires that records of uncontrolled substances reflect certain specified information.

      
      

   4. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling. v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 457, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980).

      
      

   5. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

      
      

   6. With respect to both counts, petitioner readily met its burden. On two occasions, respondent, a community pharmacy, was without a Florida registered pharmacist but failed to display any sign to indicate that the prescription department was closed and failed to lock the enclosure to prevent access by nonlicensed persons during the registered pharmacist's absence. The audit revealed and Mr. Mobley testified that crucial records regarding controlled substances were not kept with the result that some controlled substances could not be accounted for. Dilaudid and Percodan do contain controlled substances, as Mr. Mobley conceded. Section 893.03(1)(b) and (2)(a), Florida Statutes (1981), and Section 893.03(2)(a), Florida Statutes (1982 Supp.). Nor, on the facts of this case, is there any obstacle to imputing at least the record keeping violations to the corporate permittee, a majority of whose owners are the very pharmacists whose derelictions petitioner established. Mr. Henderson failed to keep necessary records. Mr. Mobley's response, when he first learned of it, was to return to Oklahoma.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for one (1) year.

DONE and ENTERED this 20th day of October, 1983, in Tallahassee, Florida.

ROBERT T. BENTON II

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 20th day of October, 1983.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Andrew Mobley

Tampa Park Plaza Pharmacy 1497 Nebraska Avenue

Tampa, Florida 33602

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wanda Willis, Executive Director Department of Professional Regulation

Board of Pharmacy

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY,

Petitioner,

vs. CASE NO. 35195

DOAH NO. 83-2591

TAMPA PARK PLAZA PHARMACY, PERMIT NO. 7711

Respondent.

/

FINAL ORDER

The Florida Board of Pharmacy of the Department of Professional Regulation after determining that no exceptions had been filed with respect to the Recommended Order entered in this case by Robert T. Benton, II, Hearing Officer, Division of Administrative Hearings, on October 20, 1983 and after reviewing the complete record accompanying the Recommended Order and being otherwise fully advised in the premises, hereby adopts the Findings of Fact and Conclusions of Law contained in the attached Recommended Order, however, the Florida Board of Pharmacy hereby reduces the Recommended Penalty to a FINE of $250.00 (two hundred fifty dollars) said fine due and owing within 30 (thirty) days of the date of this Order and the permit of TAMPA PARK PLAZA PHARMACY shall be placed on PROBATION for a period of 2 (two) years.

This Order shall take effect upon filing with the Office of the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 23rd day of January, 1984, by the Florida Board of Pharmacy.

WANDA WILLIS, Executive Director Florida Board of Pharmacy

COPIES FURNISHED:

Tampa Park Plaza Pharmacy Bruce D. Lamb, Esquire

Robert T. Benton, II, Hearing Officer, DOAH

Docket for Case No: 83-002591

Orders for Case No: 83-002591