STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY )

)

Petitioner, )

)

vs. ) CASE NOS. 84-1612

) 85-0968

MARIA I. CASAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above cases 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: Rolando A. Amador, Esquire

799 Galiano, Suite 206 Coral Gables, Florida 33134

BACKGROUND

By administrative complaint filed on March 30, 1984, petitioner, Department of Professional Regulation, Board of Pharmacy charged that respondent, Maria I. Casas, a licensed pharmacist, had violated various provisions within Chapter 465, Florida Statutes. According to the complaint, respondent (a) dispensed drugs (cocaine) to undercover agents of the Drug Enforcement Agency (DEA) without first being furnished with a prescription in violation of Subsection 465.015(2)(c), Florida Statutes (Count I), (b) dispensed a controlled substance (cocaine) outside the course of professional practice and in bad faith and without a prescription in violation of Subsection 465.016(1)(e) Florida Statutes (Count II), and (c) dispensed or distributed a legend drug (cocaine) other than in the course of the professional practice of pharmacy in violation of Subsection 465.016(1)(i), Florida Statutes (Count III). This case was assigned Case No. 84-1612.

By second administrative complaint filed on February 8, 1985, petitioner alleged that respondent had also committed additional violations of certain provisions in Chapters 455 and 465, Florida Statutes. In the second complaint petitioner has charged that (a) a kilogram of cocaine was displayed by the Pharmacy permittee to special agents for the Drug Enforcement Agency in the presence of respondent, and that she had no records to establish the legitimate receipt of the controlled substance as required by Subsections 893.07(1) and

1. , Florida Statutes, and that she had accordingly violated Subsection 465.016(1)(e), Florida Statutes (Count I), (b) respondent allowed an unlicensed person (the pharmacy permittee) to dispense a prescription in violation of Subsection 465.016(1)(c), Florida Statutes (Count II), (c) respondent operated a pharmacy where an unlicensed person dispensed medicinal drugs in contravention of Subsection 465.016(1)(e) Florida Statutes; and (d) respondent intentionally violated Rule 21S-1.23, Florida Administrative Code, by operating a pharmacy where a drug was transferred in violation of federal law, and by so doing, also violated Subsection 455.227(1)(b), Florida Statutes, which proscribes a licensee from intentionally violating an agency rule (Count IV) . The second complaint was assigned Case No. 85-0968. Both cases were consolidated for hearing purposes with Case Nos. 84-1611 and 85-0969 which involved an action against the permittee of the pharmacy where Casas was employed. However, separate recommended orders have been entered in the two matters.

   
   

   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 hearings dated May 8, 1985, the final hearing was scheduled for 18 and 19, 1985 in Miami Florida. At the request of petitioner, the matter was rescheduled to September 6, 1985 at the same location.

   
   

   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 practiced 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 notified 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. None were filed by respondent. 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 pharmacist should be disciplined for the alleged violations set forth in the first and second administrative complaints.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, respondent Maria I. Casas, held license number PS0014711 issued by petitioner, Department of Professional Regulation, Board of Pharmacy. When the events herein occurred, respondent was prescription

      department manager for Cuca Pharmacy, Inc. (Cuca) at 11048 West Flagler Street, Miami, Florida. The president and permittee of the pharmacy was Hortensia Lopez-Perez who does not hold a pharmacist license. Respondent has been licensed as a pharmacist in the State of Florida since 1975.

      
      

   2. In February, 1984 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. Be was told the cocaine was stored at Cuca. Fernandez arranged a meeting with Zayas and Santos in Hialeah, but no sale was consummated since Zayas and Santos were unable to produce any cocaine.

      
      

   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 dealing some cocaine. There he was introduced to Avila by an undisclosed individual, and the three negotiated a sale of ten kilograms at the rear of the store. There is no evidence that Casas was aware of these negotiations or that she was even on duty at this time. In any event, Avila agreed to sell ten kilograms to Fernandez for an undisclosed price. As a good faith gesture, the two further agreed to meet at a nearby shopping center where Fernandez would display the money and Avila would show the drugs. if both parties were satisfied, the sale would be consummated at Cuca.

      
      

   4. Fernandez went to the shopping center at the designated time, but Avila never showed. Fernandez then returned to the drug store where the permittee (Lopez-Perez) told him the cocaine was on its way and not to worry. Although Casas was on duty when Fernandez met with Lopez-Perez, it is found she was not privy to the conversation as it related to a shipment of cocaine. Several hours later Fernandez received a telephone call advising that the cocaine had arrived and to return to Cuca. He did so and met with Avila and Lopez-Perez in the rear of the store. The three agreed on a sale within a few days. Again Casas was not a party to these discussions.

      
      

   5. On February 29, Fernandez received another telephone call from his informant and was told the cocaine could be purchased at Cuca around 3:00 p.m. At the designated time, Fernandez, Lopez-Perez and the informant went to the rear of the store. Casas joined them a moment later to use the restroom which was also located in the rear of the store. As Casas came out of the restroom, Lopez-Perez pulled a clear plastic bag containing a white powdery substance from a metal cabinet and gave it to Fernandez. Although Casas was in the vicinity of the transfer, it is found she did not know the nature of the transaction. This is because Casas had no reason to believe that drugs were being illicitly transferred, and she was only in the rear of the premises for a matter of moments to use the restroom. After her business was completed she returned to the front of the store. Shortly thereafter, both Casas and Lopez-Perez were arrested by federal agents for allegedly violating federal narcotic laws.

      
      

   6. The contents of the bag transferred from Lopez-Perez to Fernandez were subjected to a chemical analysis and found to contain 2.2 pounds (one kilogram) of 95 percent cocaine hydrochloride, a controlled substance and legend drug which requires a prescription to dispense. The drug was dispensed to Fernandez without a prescription.

      
      

   7. Records of Miami area drug wholesalers introduced into evidence reflected that Cuca did not order any cocaine for prescription purposes during

      the period from January 1, 1982 - through June 30, 1984. This was confirmed by Casas' testimony. As prescription manager it was her responsibility to maintain all drug records providing for the security of the prescription department.

      
      

   8. Lopez was convicted on August 16, 1984 on two counts of violating federal statutes. She is now appealing her conviction. Although Casas was arrested with Lopez-Perez Casas was not convicted of any crime relating to the illicit drug transactions in question.

      
      

   9. There is no evidence that Casas was involved in or knowingly condoned the illegal drug activity, or that she was negligent in supervising the licensed premises.

      
      

      CONCLUSIONS OF LAW

      
      

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

       
       

   11. The two complaints charge Casas with a multitude of statutory and rule violations surrounding the delivery of cocaine by the pharmacy permittee to an undercover agent. In the first complaint she is charged with having dispensed drugs (cocaine) without first being furnished a prescription (Subsections 465.015(2)(c) and 465.016(1)(e), Florida Statutes), dispensing a controlled substance outside the course of the professional practice; and in bad faith and without a prescription (Subsections 893.04(1) and 465.016(1)(e), Florida Statutes), and dispensing or distributing a legend drug other than in the course of professional practice of pharmacy (section 465.016(1)(i), Florida Statutes).

       
       

   12. In the second complaint it is alleged that Casas failed to keep accurate records of controlled substances received by the pharmacy (Subsections 893.07(1) and (2) and 465.016(1)(e) Florida statutes) permitted a person (Lopez- Perez) not licensed as a pharmacist or registered as an intern to dispense a prescription in a pharmacy (Subsection 465.016(1)(c), Florida Statutes), operated a pharmacy where an unlicensed person dispensed medicinal drugs (Subsection 465.016(1)(e), Florida statutes), and intentionally violated Rule 21S-1.23 which prohibits the operation of a pharmacy where a transfer of drugs is done in violation of a federal law (Section 455.227(1)(b), Florida Statutes). Most, if not all of the charges hinge on whether Casas knew or should have known that an illicit drug transfer was taking place. If such knowledge or negligence cannot be imputed the charges must fail. Compare for example Mel Heifetz d/b/a Key Wester Inn v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco 475 So.2d 1277 (Fla. 1st DCA 1985).

       
       

   13. The evidence reveals that Casas was not privy to any conversations concerning cocaine between Fernandez and the permittee. The evidence also shows she had no reason to suspect that drugs of this nature were being illegally sold, or that the permittee was in this business. Further, there is no evidence that she was negligent in supervising the licensed premises. Therefore, it is concluded that the two administrative complaints should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the two administrative complaints against respondent be

DISMISSED, with prejudice.

DONE and ORDERED this 20th 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 20th day of January 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 84-1612

& 85-0968

PETITIONER:

1. Covered in finding of fact 1.

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. Covered in finding of fact 1.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

130 N. Monroe St.

Tallahassee, FL32301

Rolando A. Amador, Esquire 799 Galiano, Suite 206 Coral Gables, Florida 33134

Docket for Case No: 84-001612

Orders for Case No: 84-001612