STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2819

)

MARIA C. PEREZ, )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 83-2820

)

SAN LAZARO PHARMACY, )

)

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 December 15, 1983, in Miami, Florida.

Petitioner Department of Professional Regulation, board of Pharmacy, was represented by Bruce D. Lamb, Esquire, Tallahassee, Florida. Respondents did not appear and were not represented.

Petitioner filed an Administrative Complaint against Respondent Maria C. Perez seeking to take disciplinary action against her license to practice as a pharmacist under the laws of the State of Florida. Petitioner filed a separate Administrative Complaint against Respondent San Lazaro Pharmacy seeking .to take disciplinary action against its permit to operate a community pharmacy under the laws of the State of Florida. 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.

By Order dated October 6, 1983, these causes were consolidated for hearing, and the motions to dismiss contained within the Responses to the Administrative Complaints were denied.

Petitioner presented the testimony of Georgina Jorge, Edward G. Bludworth, Walter R. Bodie, and Allen D. Klein. Additionally, Petitioner's Exhibits numbered 1 through 13 were admitted in evidence.

Only Petitioner submitted posthearing 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 Maria C. Perez has been licensed as a pharmacist under the laws of the State of Florida, having been issued license number 0018025. At all times material hereto, Respondent Perez has been the managing pharmacist at Respondent San Lazaro Pharmacy.

   
   

2. At all times material hereto, Respondent San Lazaro Pharmacy has been the holder of a permit to operate a community pharmacy under the laws of the State of Florida, having been issued permit number 0002864.

   
   

3. At all times material hereto, Olegario Cepro (or Cepero) was employed at Respondent pharmacy. At no time material hereto was Cepro licensed as a pharmacist or registered as a pharmacy intern in the State of Florida.

   
   

4. On March 1, 1983, Georgina Jorge, an investigator with the Department of Professional Regulation, entered the Respondent pharmacy. Jorge asked Cepro for 30 Berocca tablets, 10 Librax capsules, and 5 Darvon Compound capsules. Cepro went into the dispensary department and thereafter delivered to Jorge 45 pills. At no time during this transaction did Jorge present Cepro with a prescription.

   
   

5. On March 1, 1983, the pills received were taken to the Metropolitan Dade County Crime Laboratory. A subsequent chemical analysis of the pills revealed the presence of the controlled substance known as chlordiazepoxide, the active ingredient in Librax, a medicinal drug requiring a prescription for dispensing. Another sample which was analyzed revealed the presence of the controlled substance known as dextro propoxyphene, the active ingredient in Darvon Compound, a medicinal drug requiring a prescription to be dispensed. The suspected Berocca was not analyzed.

   
   

6. On March 8, 1983, Jorge returned to the Respondent pharmacy. She asked Cepro for 10 penicillin tablets, 20 Valium tablets, and 10 Darvon Compound capsules. Cepro obtained from the pharmacy dispensary and gave to Jorge 10 tablets which appeared to be penicillin, 20 tablets which appeared to be Valium, and 20 capsules which appeared to be Darvon Compound. At that time, Respondent Perez was in the pharmacy dispensary. At no time during this transaction did Jorge present Cepro with a prescription.

   
   

7. On March 8, 1983, the above substances were taken to the Metropolitan Dade County Crime Laboratory. A subsequent chemical analysis of the pills revealed in one sample the presence of penicillin, a medicinal drug requiring a prescription for dispensing. Analysis of another substance revealed the presence of the controlled substance diazepam, the active ingredient in Valium, a medicinal drug requiring a prescription for dispensing.

   
   

8. On March 25, 1983, Jorge went to the Respondent pharmacy and asked Cepro for prices on bottles of Valium, Mebaral, Lomotil, Ritalin, Trofanil, and Lasix. Prices were quoted to Jorge by Cepro. Thereafter, Cepro delivered to

   Jorge 20 apparent Valium tablets, 36 apparent Ritalin tablets, 250 apparent Mebaral tablets, and 20 apparent Darvon Compound capsules. On this occasion, Jorge observed Respondent Perez, the licensed managing pharmacist, in the dispensary. At no time during this transaction did Jorge present Cepro with a prescription.

   
   

9. On March 25, 1983, the substances which Jorge had received at the Respondent pharmacy were taken to the Metropolitan Dade County Crime Laboratory. A subsequent chemical analysis of the substances revealed the presence of the controlled substance known as methylphenidate, the active ingredient in Ritalin, which is a medicinal drug requiring a prescription to be dispensed. Methylphenidate is a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Laboratory analysis of additional substances received from the March 25, 1983, transaction revealed the presence of the controlled substance known as mephobarbital, the active ingredient in Mebaral, a medicinal drug requiring a prescription for dispensing. In addition, one of the 20 capsules received was analyzed and revealed the presence of the controlled substance known as propoxyphene, the active ingredient in Darvon Compound, which is a medicinal drug requiring a prescription for dispensing.

   
   

10. On March 28, 1903, Jorge went to the Respondent pharmacy once again. She asked Cepro for 20 Valium tablets and 20 Lomotil tablets. Jorge saw Respondent Perez in the prescription department. Cepro went into the prescription or dispensary department and returned with suspected controlled substances. At no time during this transaction did Jorge present Cepro or Respondent Perez with a prescription.

    
    

11. On March 28, 1983, the suspected controlled substances were taken to the Metropolitan Dade County Crime Laboratory for analysis. A subsequent chemical analysis of the tablets revealed the presence of the controlled substance known as diazepam, the active ingredient in Valium, a medicinal drug requiring a prescription for dispensing.

    
    

12. On March 28, 1983, an audit of the controlled substances was conducted at the Respondent pharmacy by Edward Bludworth, an investigator with the Department of Professional Regulation. That audit revealed that Respondents could not provide prescriptions or other documentation to show the dispensing of

    41 Darvon Compound-65, 1,005 Valium 5 mg., 801 Valium 10 mg., 280 Tranxene 3.75 mg., 33,451 Talwin 50 mg., and 20 Talwin injectable vials.

    
    

13. Darvon, Tranxene, Valium, and Talwin are all compounds containing controlled substances as defined in Chapter 893, Florida Statutes.

    
    

14. Petitioner presented no evidence concerning the allegations of Count III [sic II; paragraphs 13, 14, 15, and 16] of the Administrative Complaint filed against Respondent Perez in DOAH Case No. 83-2918.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. 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 contain similar charges as follows: Count I-

-allowing an unlicensed individual to dispense controlled substances from the pharmacy without a valid prescription; Count II--dispensing medicinal drugs without prescriptions, as supported by the results of the audit conducted on March 28, 1983; and Count III (only as to the Respondent pharmacy)--dispensing of controlled substances without prescriptions in violation of Chapter 893, Florida Statutes. As to each count, Petitioner has clearly met its burden of proving the allegations made against each Respondent, except for the third count in the Administrative Complaint filed against Respondent Perez, on which there is an absence of any evidence. The Respondents' actions and omissions are in violation of Section 465.015(2)(c), Florida Statutes, incorporated by Sections 465.016(1)(e), as to Respondent Perez, and 465.023(1)(c), Florida Statutes, as to Respondent San Lazaro Pharmacy. In addition, the Respondent pharmacy dispensed controlled substances without prescription in violation of Section 893.04, Florida Statutes, and, therefore, in violation of Section 465.023(1)(c), Florida Statutes. Lastly, Respondents are guilty of violating Section 465.016(1)(c), Florida Statutes, by permitting an unlicensed person to dispense medicinal drugs and/or controlled substances.

RECOMMENDATION

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

Administrative Complaint filed against Respondent Maria C. Perez, finding her

guilty of Counts I and II of the Administrative Complaint filed against her, and revoking her license to practice pharmacy in the State of Florida. It is further

RECOMMENDED that a Final Order be entered finding Respondent San Lazaro Pharmacy guilty of each and every count in the Administrative Complaint filed against it and revoking its permit to operate a community pharmacy in the State of Florida.

DONE and RECOMMENDED this 27th day of March, 1984, 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 27th day of March, 1984.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

A. M. Schwitalla, Esquire

135 Almeria Avenue

Coral Gables, Florida 33134

Frederick Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wanda Willis, Executive Director Board of Pharmacy

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002819

Orders for Case No: 83-002819