STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3915

)

LESTER HENDERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on March 2, 1984 in Tampa, Florida by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The Board of Pharmacy filed a three-count Administrative Complaint against Lester Henderson. The first Count alleged that the Respondent dispensed medications outside the course of his professional practice; the second Count alleged that the Respondent's Prescription Department was left open while a pharmacist was not on duty and a sign was not posted indicating that the prescription Department was closed; and the third Count alleged that the Respondent failed to keep records of all controlled substances which he sold or which were otherwise disposed of.

Petitioner and Respondent submitted posthearing memoranda which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

APPEARANCES

For Petitioner: Bruce Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Lester Henderson, pro se

ISSUE

The issue is whether the Respondent violated the statutes and rules as alleged in the Administrative Complaint.

FINDINGS OF FACT COUNT I

1. Lester Henderson is a pharmacist holding license number 0015985 issued by the Department of Professional Regulation. The Respondent's last known address is 4029 Eastridge Drive, Valrico, Florida 33594.

2. At all times relevant to the allegations contained in the Administrative Complaint, the Respondent was the pharmacist of record at Tampa Park Plaza pharmacy, 1497 Nebraska Avenue, Tampa, Florida 33602.

   
   

3. On February 16, 1983, an audit of the Tampa Park Plaza Pharmacy was conducted by the Department. This audit revealed seven prescriptions purportedly issued by Dr. Vinai Artyamsoal for the following amounts Schedule II substances prescribed for Carrie (or Connie) Chambers:

   
   

   1. 5/18/82 Demerol 50 mg. 100 tabs

   2. 8/16/84 Demerol 50 mg. 100 tabs

   3. 9/10/82 Demerol 50 mg. 100 tabs

   4. 10/8/82 Dilaudid 50 mg. 200 tabs

   5. 11/23/82 Dilaudid 4 mg. 200 tabs

   6. 12/23/82 Dilaudid 4 mg. 100 tabs

   7. 1/20/84 Demerol 100 mg. 100 tabs (See petitioner's Exhibit 3(a) through (g).

4. Dr. Vinai Artyamsoal is a physician specializing in obstetrics and gynecology with offices in Plant City and Zephyr Hills, Florida. Notarized affidavits of Dr. Artyamsoal were received, each of which bears a copy of one of the prescriptions described in paragraph above. Each affidavit contains a statement of Dr. Artyamsoal that he did not issue, authorize, or consent to making the prescriptions depicted within the affidavit.

   
   

5. The Board's investigator who is a pharmacist stated "it was a good practice" to check with a doctor to see if the prescription was valid if the doctor was from out of town. (T-52). He also thought a pharmacist should scrutinize such prescriptions more carefully.

   
   

6. The Respondent testified that he attempted to contact Dr. Artyamsoal to check on one of the subject prescriptions; however, he was unable to contact the doctor. It was the doctor's practice to personally verify prescriptions with pharmacists by talking with the pharmacist directly.

   
   

7. A check of the doctor's records revealed no record for a Carrie (or Connie) Chambers.

   
   

8. The Respondent admitted that on April 19, 1983, the pharmacy was unlocked while he was not present at the pharmacy and although he was scheduled to work at that time.

   
   

9. There was not an appropriate door or similar structure which could be locked to bar access to the prescription department.

   
   

10. There was no sign displayed at said time stating the prescription department was closed.

    
    

11. There was a theft of controlled substances from the pharmacy. The Respondent reported this theft to the Federal Drug Enforcement Administration. The Respondent also reported the theft to the state authorities.

    
    

12. The Respondent, was one of four partners who owned the pharmacy. The FDEA sent certain forms to the Respondent to be filled out about the theft. The Respondent gave these forms to the partner in charge of business paperwork to

fill out. The forms were not sent to FDEA. Because the forms were not returned t FDEA, all of the records were not complete concerning the shortage.

1. The Respondent as the managing pharmacist was attempting to carry the sole work load of this business while working full time at another job which he could not do. This was the reason for the failure to get all of the records complete and be on duty as scheduled.

   
   

   CONCLUSIONS OF LAW COUNT I

2. Count I alleges that the Respondent violated Section 465.016(1)(i), Florida Statutes which provides as follows:

   
   

   Compounding, dispensing, or distributing a legend drug, including any controlled substance, other than in the course of professional practice of pharmacy. For purposes of this paragraph, it shall

   be legally presumed that the compounding, dispensing, or distributing of legend drugs in excessive or inappropriate quantities is not in the best interests of the patient and is not in the course of the professional practice of pharmacy.

   
   

3. This count specifically alleges that the Respondent failed to verify the prescriptions. (See Prehearing Stipulation.) The facts reveal that the Respondent attempted to check the prescriptions on one occasion, and that the Board's own investigator did not say it was unprofessional not to check the prescriptions.

   
   

4. It was not alleged and not proven the amounts of the, prescriptions were excessive. Therefore, proof of this Count is wholly dependent upon competent substantial testimony that it is outside the course of professional pharmacy to fill prescriptions without checking with the doctors. The Board's witness did not testify to such a standard. He said it was a good investigative practice to check out of town prescriptions. This is substantially short of stating a professional standard from which a pharmacist cannot depart. This Count was not proven.

   
   

   COUNT II

   
   

5. Count II alleges the Respondent was not on duty from 10:15 a.m. until 2:00 p.m., on April 19, 1983 when the pharmacy was inspected. At said time, the pharmacy was not locked and a sign was not posted, contrary to Rule 21S-1.14, FAC, saying the department was closed. This rule says in pertinent part that when a pharmacist is not on duty the pharmacy department is considered closed even if the store is open. When the pharmacy department is closed, a sign shall be displayed saying it is closed. The rule also provides that the pharmacy department shall be locked to prevent entry when it is closed.

   
   

6. The Respondent admits that on April 19, 1983 the pharmacy was not locked; that he was supposed to be on duty; that he was not at the pharmacy; that a sign was not so posted; and the pharmacy was not locked. However, the

   Administrative Complaint does not allege that this violation is punishable under the statute and the rules do not provide a penalty for violation.

   
   

   COUNT III

   
   

7. Count III alleges Respondent violated 893.07(1)(b), Florida Statutes by failing to keep all of the records re- quired. The Respondent failed to complete the report of that theft to FDEA, although he reported the theft to federal and state authorities. The Respondent had turned the work over to one of the other partners to be done. It was not done. There was a technical failure to complete the reports to FDEA. The DEA elected not to act upon this violation. Ironically, the Department of Professional Regulation had apparently lost its copies of the Respondent's report of the theft in a move, and the Board did not have all of its records. The Respondent is in technical violation of 465.016(1)(e)

MITIGATION

The Respondent is a minority business man. He and his partners starred a pharmacy in a predominantly black area of their community. They borrowed money to do this and the Respondent has worked hard; in fact, too hard to make this success. Respondent was working at least one other full-time job and often two jobs to get additional money, for his family to protect the business.

Because of this, the recommendation does not levy a civil fine. It does not provide for a suspension which would tend to penalize Respondent who was only one of four partners, at least one other of whom was a pharmacist. It appears many of their violations were the result of Respondent attempting to do too much and inadequate technical knowledge of the rules.

RECOMMENDATION

Having found the Respondent guilty of a technical violation, as alleged in Count III, it is recommended that the Respondent be placed upon probation for two years during which he would be prohibited from working more than 60 hours per week as a pharmacist or working as a managing pharmacist and be required to take a course on the records required to be kept by Chapter 893 and the Federal DEA.

DONE and RECOMMENDED this 24th day of October, 1984 in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1984.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Lester Henderson 1497 Nebraska Avenue

Tampa, Florida 33602

Wanda Willis, Executive Director Board of Pharmacy

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

Please be advised that pursuant to Section 120.68, Florida Statutes, a party Who is adversely affected by a final order is entitled to judicial review. To preserve its right to judicial review, a party must file a Petition for Review in the District Court of Appeal in the Appellate District where the agency maintains its headquarters or where the party resides within 30 days after rendition of the final order, and file a copy with the Clerk of the Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida

Docket for Case No: 83-003915

Orders for Case No: 83-003915