STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-2261

)

WILLIAM VAN DER VELDEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearing, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on July 23, 1986, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: William van der Velden, pro se

2373 Southeast 10th Court Pompano Beach, Florida 33062

PRELIMINARY STATEMENT

By Administrative Complaint filed June 23, 1986, Petitioner, Department of Professional Regulation, Board of Pharmacy (Department), seeks to discipline Respondent, William van der Velden, a licensed pharmacist in the State of Florida, for allegedly making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a), Florida Statutes.

At final hearing the Department called William van der Velden, Debra Slocum, and Rod Presnell as witnesses. The Department offered Exhibits 1-5, and they were received into evidence. The Respondent testified on his own behalf, and his Exhibits 1-7 were received into evidence. The transcript of hearing was filed August 4, 1986, and the parties were granted 10 days within which to file proposed findings of fact and conclusions of law. The Department has submitted proposed findings of fact, and they have been considered and addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, William van der Velden, was at all times material hereto a licensed pharmacist in the State of Florida, having been issued license number 0017023.

   
   

2. During the month of October, 1985, while employed as a relief pharmacist at Lakeside Pharmacy, Pompano Beach, Florida, Respondent personally placed a flyer on the door of approximately 100 neighborhood residents which read as follows:

We make house calls!

I can cut your medical costs and save you hundreds to thousands of dollars each year!

Now, you may not have to see your physician in order to be issued a prescription and then make a second stop at a pharmacy to have the prescription filled.

According to a new Florida Law, I can issue you a prescription and fill that prescription in the nearby Lakeside Pharmacy.

And if your [sic] can't get out of the house, I even make house calls. And I can bring you your medicine when I make my next visit.

I am Dr. William van der Velden, Doctor of Pharmacy and Certified Consultant Pharmacist. I am an expert in the knowledge and usage of all Prescription Medicines, Patent Medicines, Vitamins and Nutrition.

I can answer all of your medicine questions. Questions like:

Are there any serious side effects to my medicines?

What interactions should I watch out for?

Are there newer or better medicines for my condition?

Are there less expensive medicines that will work just as well for my condition?

What about generics?

How long should I expect to take this medicine?

Get the most out of your prescriptions, vitamins and nutrition. Make sure they all work well together.

By having your medication regimen tailor-made to individual requirements you will ...

1. Gain better health

2. Save money by taking only the medicines best suited for you.

   
   

   Don't buy inappropriate remedies in a supermarket.

   Some Patent Medicines may do more harm than good.

   First call me -- The Medicine Expert.

   
   

   I can either treat you or, if necessary, refer you to an equally well qualified physician.

   At Home Consultations allow me to look at the whole patient and then prescribe the best medicines for your condition.

   
   

   Call for an appointment today and start feeling healthier, wealthier and wiser about your medicines.

   
   

   I do make house calls!

   
   

   Call 782-0580

   or

   946-1717

   
   

   The impetus for Respondent's action was, in his words:

   
   

   The store was not doing well in filling prescriptions, so the idea of prescribing was thought a means to possibly increase the volume of prescriptions . . .

   
   

3. Respondent's efforts apparently engendered no interest except that of the Broward County Sheriff's Office, Organized Crime Division. On December 16, 1985, Detective Debra Slocum placed a telephone call to the number advertised on the flyer, 946-1717, 1/ and spoke with the Respondent at his residence. She informed Respondent that she had one of his flyers, that she was suffering from anxiety and insomnia because of a bad divorce, and requested an appointment. Respondent advised Detective Slocum that he worked through Lakeside Pharmacy and that she should call there to make an appointment with him or his associate, Bob Rideman. 2/

   
   

4. Later that day, Detective Slocum called the pharmacy and spoke with Mr. Rideman, who had been alerted by Respondent to expect her call. Following that conversation, Detective Slocum met Mr. Rideman at the pharmacy and, without benefit of a prescription, was given two tablets of Ergoloid. Ergoloid is a medicinal drug which requires a prescription to be dispensed.

   
   

5. Respondent avers that his actions were authorized by Section 465.186, Florida Statutes, since they occurred subsequent to October 1, 1985.

   Respondent's assertion demonstrates an appalling lack of comprehension of the English language or a blatant fabrication.

   
   

6. Section 465.186, Florida Statutes, effective October 1, 1985, provided:

   
   

   Pharmacist's order for

   medicinal drugs; dispensing procedure:

   development of formulary.-

   1. There is hereby created a

      committee composed of two members of the Board of Medical Examiners licensed under chapter 458 chosen by said board, one member of the Board of Osteopathic Medical Examiners licensed under chapter

      459 chosen by said board, three members of the Board of Pharmacy licensed under this chapter and chosen by said board, and one additional person with a background in health care or pharmacology chosen by the committee. The committee shall establish a formulary of medicinal drugs which may be made available to the public upon the order of a pharmacist which is issued pursuant to a dispensing procedure established by the committee for each drug contained in such formulary. . .

      * * *

   2. The Board of Pharmacy, the Board of Medical Examiners, and the Board of Osteonathic Medical Examiners shall adopt by rule a formulary of medicinal drugs and dispensing procedures as established by the committee. A pharmacist may order and dispense a product from the formulary pursuant to

      the established dispensing procedure, as adopted by the boards, for each drug in conjunction with its inclusion in the formulary. Any drug product ordered by a pharmacist shall be selected and dispensed only by the pharmacist so ordering, and said order shall not be refilled, nor shall another medicinal drug be ordered for the same condition unless such act is consistent with dispensing procedures established by the committee. (Emphasis added)

      
      

      Not until May 1, 1986, was a formulary of medicinal drugs and dispensing procedures established. Rule 21S-18.001-18.004, Florida Administrative Code. Accordingly, pharmacists had no authority in 1985 to issue prescriptions, treat patients, or prescribe medicinal drugs, and Respondent could not have reasonably believed otherwise.

      CONCLUSIONS OF LAW

      
      

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. The Administrative Complaint charges that the following specific representations contained in Respondent's flyer:

   
   

   According to a new Florida Law, I can issue you a prescription . . .

   * * *

   I can either treat you or, if necessary, refer you to an equally well qualified physician.

   * * *

   At Home Consultations allow me to look at the whole patient and then prescribe the best medicines for your condition.

   
   

   were misleading, deceptive, untrue, or fraudulent representations, in violation of Section 455.227(1)(a), Florida Statutes.

   
   

9. The evidence is clear that during 1985 Respondent had no authority to issue prescriptions, treat patients, or prescribe medicinal drugs. Accordingly, the foregoing representations constituted misleading, deceptive, untrue or fraudulent representations in the practice of pharmacy, which resulted in the issuance of a medicinal drug without benefit of prescription, in violation of Section 455.227(1)(a), Florida Statutes.

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order imposing an

administrative fine in the sum of one thousand dollars ($1,000.00), and suspending Respondent's license for sixty (60) days.

DONE AND ENTERED this 27th day of August, 1986, at Tallahassee, Florida.

WILLIAM J. KENDRICK,

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 August, 1986.

ENDNOTES

1/ Telephone number 946-1717 was Respondent's home telephone number, and number 782-0580 that of Lakeside Pharmacy.

2/ Mr. Rideman is the owner of Lakeside Pharmacy.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2261

The Department's proposed Findings of Fact are addressed as follows:

1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2.

4-10. To the extent relevant, addressed in paragraphs 5 and 6.

11. Addressed in paragraphs 3 and 4. 12-15. Not relevant.

16-19. Addressed in paragraphs 5 and 6.

20. Not relevant.

COPIES FURNISHED:

Rod Presnell, Executive Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. William van der Velden 2373 S.E. 10th Court

Pompano Beach, Florida 33062

Docket for Case No: 86-002261

Orders for Case No: 86-002261