STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) Case No. 85-3552

)

BILLY H. DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the hearing officer designated by the Division of Administrative Hearings on May 8, 1986 in Miami, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mr. Billy H. Davis, pro se

1304 Northwest Third Avenue Miami, Florida 33136

At the hearing, eight exhibits submitted by the Department were received in evidence. A transcript of the hearing has been filed, and the Department has submitted Proposed Findings of Fact and Conclusions of Law; the substance of each proposed Finding of Fact has been adopted in the Recommended Order. No Proposed Recommended Order has been submitted by the Respondent.

ISSUE

The issue is whether Billy H. Davis, on two occasions, sold to undercover detectives of the Miami Police Department the medicinal drug Ampicillin without prescriptions in contravention of Section 465.015(2)(c), Florida Statutes (1985), and is therefore subject to discipline pursuant to Section 465.016(1)(e), Florida Statutes (1985)?

FINDINGS OF FACT

1. Respondent, Billy H. Davis ("Mr. Davis"), at all times relevant herein, has been licensed as a pharmacist in the State of Florida, and has been issued license number 0010622. During the period at issue here, Mr. Davis was prescription manager for Service Drugs, Inc. located at 1304 N.W. 3rd Avenue, Miami, Florida 33136 (Exhibits 1 and 2).

   
   

2. On March 27, 1985 Detective Carolyn Clarke of the Miami Police Department purchased thirteen red and gray capsules from Mr. Davis for $8.00 (T. 50, 54). She did not present a prescription during the transaction or represent that she had authorization from a physician to obtain any drugs for which a prescription is required (Tr. 52-3).

   
   

3. In March of 1985 Officer Jesse J. Williams purchased twelve red and green capsules from Mr. Davis for $8.00 (Tr. 58- 61). He did not present a prescription or indicate that he had authorization from a physician to receive prescription medication during the transaction (Tr. 60).

   
   

4. Upon analysis at the Metro Dade Police Department Crime Laboratory, the capsules purchased by Detectives Clarke and Williams proved to be Ampicillin (Tr. 63-77, Department Exhibits 7 and 8).

   
   

5. Ampicillin is a prescription or medicinal drug in the United States (Tr. 96). Mr. Davis has sold or dispensed drugs as defined in Section 465.003(7), Florida Statutes (1985) without first being furnished with a prescription.

   
   

6. When the drugs were sold, Mr. Davis had been told by the purchasers that they needed medication either for gonorrhea (Tr.

   50) or for an unspecified venereal disease (Tr. 59).

   
   

7. Oral antibiotics are not the appropriate treatment for drug-resistant strains of gonorrhea, such as penicillinase- producing neisseria gonorrhea ("PPNG") (Tr. 87). There has recently been a large outbreak of PPNG in Florida, and specifically Dade County and Miami (Tr. 89), with a large portion of the disease occurring in the black community in the Liberty City and Overtown areas (Tr. 90). Self-administration of antibiotics has played a role in the propagation of PPNG, because when there is a drug-resistant strain of venereal disease in a community and patients take antibiotics not appropriate to treat their condition, patients believe that they are getting better when they are still infectious (Tr. 93-94). This may cause those patients, if women, to develop pelvic inflammatory disease which can lead to infertility and occasionally users can develop an

   infection of the heart valves known as bacterial endocarditis (Tr. 94-95).

8. It is not possible for patients to tell from symptoms or by mere physical examination whether they have been- infected with a drug-resistant strain of PPNG: a patient must have a culture done by a physician to make this determination (Tr. 96).

   
   

   CONCLUSIONS OF LAW

   
   

9. The Department has met its burden and proved that Mr. Davis is guilty of the allegations in Counts I and II of the administrative complaint, and has violated Section 465.015(2)(c), Florida Statutes (1985) by dispensing a "medicinal drug" without being furnished a prescription. Mr. Davis has also violated Section 465.016(1)(e), Florida Statutes (1985)because he has violated the foregoing provision of Chapter 465, Florida Statutes.

   
   

10. In regard to the appropriate penalty, the Department has not proven, by the introduction of final orders or otherwise, the range of penalties ordinarily imposed for the offense of dispensing medicinal drugs without prescriptions. The Department did prove that dispensing medicinal drugs for self- administration in cases of venereal disease can contribute to a significant public health problem. on the other hand, there was no evidence that Mr. Davis profited significantly from the sale of these drugs; the charge made for the pills was trivial. There is no evidence that Mr. Davis is guilty of other than a well- intentioned, but misguided attempt to assist residents in the local community in dealing with health problems. The evidence presented, which related only to two incidents, is not sufficient to establish a pattern or practice of dispensing drugs without prescription. Neither has the Department proven, or cited, to guidelines for the disposition of disciplinary cases required by Section 465.016(4), Florida Statutes (1985) with regard to the appropriate penalty to be imposed in this case.

RECOMMENDATION

Based on the foregoing, it is recommended that a final order be entered finding Mr. Davis guilty of violating Sections 465.015(2)(c) and 465.016(1)(e), Florida Statutes (1985). In view of the well-intentioned nature of Mr. Davis' actions, the apparent absence of any profit motive, but keeping in mind the potential public health hazard involved in dispensing of medicinal drugs for the relief of venereal disease without prescription, it is recommended that pursuant to Section 465.016(2)(b), Florida Statutes, his license to practice pharmacy be suspended for a period of thirty days; pursuant to Section 465.016(2)(c), Florida Statutes, that he be fined a total of

$250.00; and pursuant to Section 465.016(2)(e), Florida Statutes, within one year he be required to attend continuing education

courses pertaining or relating to the appropriate use of medicinal drugs in the treatment of venereal disease.

DONE AND ORDERED this 17th day of June 1986 in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June 1986.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Billy H. Davis 1304 N.W. Third Avenue Miami, Florida 33136

Mr. Rod Presnell Executive Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY,

Petitioner,

vs. Case No. 85-3552

0059900

BILLY H. DAVIS,

Respondent.

/

FINAL ORDER

The Florida Board of Pharmacy of the Department of Professional Regulation, after determining that no exception had been filed with respect to the Recommended Order entered in this case by Hearing Officer, William R. Dorsey, Jr., Division of Administrative Hearings, on June 17, 1986, and after reviewing the complete record accompanying the Recommended Order, and being otherwise fully advised in the premises, hereby accepts the Findings of Fact and Conclusions of Law with the exception that paragraph two (2) of the Conclusions of Law is deleted as a Conclusion of Law and is instead considered as part of the Hearing Officer's Recommended Penalty.

Petitioner filed exceptions to the Recommended Penalty and the Board, after reviewing the complete record, hereby determines that the Recommended Penalty is insufficient in light of the danger to the public caused by a pharmacist dispensing antibiotics improperly-which, in the case of the disease in question in the instant cause will enhance its spread to a larger extent than the already existing near epidemic proportions.

Further, the Board considers that the Hearing Officer did not appropriately take into account the blatancy of the violation contained herein i.e., dispensing medication without a prescription, which is abhorrent to all pharmacists.

WHEREFORE, it is hereby

ORDERED and ADJUDGED that Respondent's license is hereby SUSPENDED for a period of six (6) months. During the period of such suspension, Respondent shall not enter a prescription department. Further, Respondent's license to practice pharmacy in this state shall be placed on probation subsequent to the suspension for a period of one year and as a condition of the probation, Respondent shall complete a continuing education course in venereal disease treatment, in addition to that, required by Chapter 465, F.S. Finally, Respondent is fined S500.00, said fine to be due and owing within 30 days of the filing of this order.

DONE AND ORDERED this 25th day of July, 1986, by the Florida Board of Pharmacy.

C. Rod Presnell Executive Director Board of Pharmacy

COPIES FURNISHED:

Billy H. Davis Bruce D. Lamb, Esq

William R. Dorsey, Jr., Hearing Officer

Docket for Case No: 85-003552

Orders for Case No: 85-003552