STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY )

)

Petitioner, )

)

vs. ) CASE NOS. 84-1611

) 85-0969

CUCA PHARMACY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer Donald R. Alexander, on September 6, 1985 in Miami, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance.

BACKGROUND

By administrative complaint filed on April 2; 1984, petitioner, Department of Professional Regulation, Board of Pharmacy, charged that respondent, Cuca Pharmacy, Inc., a licensed community pharmacy, had violated various provisions within Chapter 465, Florida Statutes. In brief the complaint alleged that in February, 1984, respondent, through its agents or employees, (a) dispensed one kilogram of cocaine to special agents of the Drug Enforcement Agency (DEA) without a prescription thereby violating Subsection 465.023(1)(c) Florida Statutes (Count I), (b) dispensed a controlled substance outside the course of professional practice in violation of Subsection 465.023(1)(c), Florida Statutes (Count II), and (c) dispensed or distributed a legend drug other than in the course of the professional practice of pharmacy in violation of Subsection 465.023(1)(c), Florida Statutes (Count III). This case was assigned Case No.

84-1611. On March 28, 1985, petitioner filed a second administrative complaint alleging that respondent's permittee, Hortensia Lopez, was found guilty of possession with intent to distribute cocaine in violation of federal law; that this crime is a felony or crime involving moral turpitude; and that respondent had accordingly violated Subsection 465.023(1)(d); Florida Statutes, which makes it unlawful for a licensee to be found guilty of a felony or crime involving moral turpitude. 1/ This complaint was assigned Case No. 85-0969. Both matters were later consolidated.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1); Florida Statutes. The matter was referred to

the Division of Administrative Hearings by petitioner on May 4, 1984, with a request that a hearing officer be assigned to conduct a final hearing. At the request of respondent's counsel, and without objection by petitioner, the cases were held in abeyance pending disposition of criminal charges in federal court. Thereafter by notice of hearing dated May 8, 1985, the final hearing was scheduled for July 18 and 19, 1985 in Miami, Florida. At the request of petitioner, the matter was rescheduled to September 6, 1985 at the same location. The cases were heard on a consolidated record with Case Nos. 84-1612 and 85-0968 which involve similar allegations against respondent's prescription department manager. However, separate Recommended Orders have been entered in the cases.

At final hearing petitioner presented the testimony of Alberto Fernandez, a special agent for DEA, Harold E. Hanel, a DEA chemist accepted as an expert in chemistry and analysis of controlled substances, Louis Fisher, a DEA pharmacist accepted as an expert in drug regulations and the practice of pharmacy, Constantine Lopilato, an expert in the practice of pharmacy, and Hugh Francis Fitzpatrick, a DPR investigator. It also offered petitioner's exhibits 1-7.

All were received in evidence except exhibit 4. At the request of petitioner, the record remained open for the sole purpose of allowing petitioner to take the deposition of Jorge Bacallao who failed to honor a subpoena to appear at final hearing. On December 2, 1985 petitioner advised the undersigned that it did not intend to file the deposition.

The transcript of hearing was filed on September 25, 1985. Proposed findings of fact and conclusions of law were filed by petitioner on December 16, 1985. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

At issue herein is whether respondent's license as a community pharmacy should be disciplined for the alleged violations set forth in the first and second administrative complaints.

Based upon all of the evidenced the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Cuca Pharmacy, Inc. (Cuca), held community pharmacy license number PH007348 issued by petitioner, Department of Professional Regulation Board of Pharmacy. When the events herein occurred, Hortensia Lopez-Perez was its president and permittee. Its location is 11048 West Flagler Street, Miami, Florida. After the events herein occurred, the pharmacy was closed by emergency suspension order and it has remained closed since that time.

   
   

2. In February, 1984 special agent Alberto Fernandez was performing undercover operations in the Miami area for the Drug Enforcement Agency (DEA) for the purpose of enforcing federal narcotic laws. On February 17, he received information from an informant that ten kilograms of cocaine could be purchased for $21,000.00 per kilogram from two individuals named Zayas and Santos. He was told the cocaine was stored at respondent's pharmacy. Fernandez met the two "dealers" in Hialeah but Zayas and Santos were unable to produce any drugs. Consequently, no sale took place.

   
   

3. On February 25, Fernandez again received a telephone call from his informant and was told to go to Cuca and meet an individual named Jesus Avila

   who was interested in selling some cocaine. Fernandez, Avila and the informant met in the rear of the pharmacy where Avila agreed to sell ten kilograms of cocaine to Fernandez for an undisclosed price. They further agreed to meet in a nearby shopping center where Fernandez would show his money and Avila would show the drugs as a good faith gesture. If both parties were satisfied, they agreed to then make the transfer at Cuca. Fernandez went to the shopping center but when Avila did not appear at the designated time, Fernandez returned to Cuca.

   Respondent's permittee, Hortensia Perez, advised him the drugs were on the way and not to worry. Later on that day, Fernandez received a telephone call from his informant advising that two kilograms had just arrived at Cuca and to return there for the buy. When he returned he met Avila and Lopez-Perez and went to the back of the store. Avila told Fernandez he couldn't sell cocaine that day but could arrange to do so in a few days.

   
   

4. On February 29, Fernandez received another telephone call from his informant who advised him that the cocaine was at Cuca and to be there at 3:00

   p.m. At the designated time, Fernandez, the informant and Lopez-Perez went to the rear of the pharmacy where Lopez-Perez pulled a clear plastic bag containing a white powdery substance from a metal cabinet and gave it to Fernandez. The transfer of the substance was made without a prescription. Lopez-Perez was then arrested for allegedly violating federal narcotic laws. The contents of the bag were later subjected to a chemical analysis and found to weigh 2.2 pounds (one kilogram) and to be 95 percent pure cocaine hydrochloride, a controlled substance and legend drug which requires a prescription for dispensing.

   
   

5. Records of Miami area drug wholesalers introduced into evidence reflected that Cuca had not ordered any cocaine for prescription purposes between 1982 and June, 1984. This was confirmed by testimony from Cuca's prescription department manager.

   
   

6. Lopez was charged with one count of conspiring to possess with intent to distribute a controlled substance (cocaine) in violation of Title 21, U.S.C., Section 846, and with one count of possessing with intent to distribute a controlled substance (cocaine) in violation of Title 21, U.S.C., Section 841(a)(1) and Title 18, U.S.C., Section 2. She was found guilty on both counts, and a certified copy of the judgment and probation/commitment order dated August 16, 1984 was received in evidence. That document reflects she was sentenced to five years confinement and three years of special parole on count two and five years probation on the first count. Lopez is free on bond while she appeals that judgment.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

8. In the two administrative complaints filed in this cause, respondent is charged with dispensing a drug (cocaine) without a prescription (s.465.023(1)(c), Florida Statutes), dispensing a controlled substance outside the course of professional practice (s.465.023(1)(c), Florida Statutes), dispensing a legend drug other than in the course of the professional practice of pharmacy (s.465.023(1)(c) Florida Statutes) and having its permittee being found guilty of a felony or crime involving moral turpitude (s.465.023(1)(d) Florida Statutes).

9. Subsections 465.023(1)(c) and (d), Florida Statutes, authorize disciplinary action against a pharmacy permittee if the permittee has:

   
   

   1. Violated any of the requirements of this chapter or any of the rules of the Board of Pharmacy; of chapter 499, known as the "Florida Drug and Cosmetic Act"; of 21 U.S.C.

      ss.301-392, known as the "Federal Food, Drug, and Cosmetic Act"; of 21 U.S.C. ss.821 et seq., known as the Federal Drug Abuse Act; or of Chapter 893; or

   2. Been convicted or found guilty, regardless of adjudication, of a felony or any

      other crime involving moral turpitude in any of the courts of this state, of any other state, or of the United States.

      
      

10. By certified copy of judgment introduced into evidence petitioner has established that respondent's permittee was convicted of a felony or crime involving moral turpitude, namely, possessing with intent to distribute a controlled substance (cocaine) and conspiring to possess with intent to distribute a controlled substance (cocaine). Accordingly, respondent has violated Subsection 465.023(1)(d), Florida Statutes.

    
    

11. The evidence is also clear and convincing that respondents through its permittee, (a) dispensed a legend drug other than in the course of professional practice, (b) dispensed drugs without first being furnished a prescription, and

    (c) dispensed a controlled substance outside the course of professional practice. The conduct in (a), (b) and (c) violates Subsections 465.016(1)(i), 465.015(2)(c), and 893.04(1), Florida Statutes, respectively. By violating these statutes respondent has violated Subsection 465.023(1)(c), Florida Statutes, which makes it unlawful to violate "any of the requirements of this chapter . . . or of chapter 893."

    
    

12. Given the nature of the transgressions, the license of respondent should be revoked.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the first and

second administrative complaints and that its license as a community pharmacy be REVOKED.

DONE and ORDERED this 13th day of January 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 13th day of January, 1986.

ENDNOTE

1/ Although the second complaint refers to Subsection 465.023(1)(c), it is assumed this is a typographical error and that petitioner intended to rely upon Subsection 465.023(1)(d).

APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 84-1611

85-0969

PETITIONER:

1. Relates to Case Nos. 84-1612 and 85-0968.

2. Covered in finding of fact 1.

3. Covered in finding of fact 1.

4. Covered in finding of fact 2.

5. Covered in finding of fact 2.

6. Relates to Case Nos. 84-1612 and 85-0968.

7. Covered in finding of fact 3.

8. Covered in finding of fact 3.

9. Partially covered in findings of fact 4 and 5.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

130 N. Monroe St. Tallahassee, Florida 32301

Ms. Hortensia Lopez 901 S. W. 136th Place Miami, Florida

Docket for Case No: 84-001611

Orders for Case No: 84-001611