STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3521

) NORTH FLORIDA DRUG CORPORATION, ) d/b/a SCOTTIE DISCOUNT DRUGS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 27, 1988, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Michael A. Mone'

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No Appearance

ISSUE

The issue is whether the pharmacy permit issued to the Respondent, North Florida Drug Corporation, d/b/a Scottie Discount Drugs, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

BACKGROUND AND PROCEDURAL MATTERS

Notice of the hearing was sent to Respondent on August 23, 1988. On September 21, 1988, Frankie Rosier, on behalf of the Respondent and as owner of the Respondent, advised the Division of Administrative Hearings by telephone that she would be out of town and would not be coming to the hearing. She advised that she would send a request for a continuance by Federal Express. No request for continuance was ever filed. On September 23, 1988, and again on September 26, 1988, the Division of Administrative Hearings called Ms. Rosier to advise that the hearing would go forth as scheduled since no request for continuance had been filed. Additionally, the Petitioner, Department of Professional Regulation, Board of Pharmacy, (DPR), served a subpoena for appearance at the hearing on Ms. Rosier and Ms. Rosier failed to comply with that subpoena. Finally, an Order was entered on July 26, 1988, setting certain time limits for Ms. Rosier to seek to be qualified as the representative of the Respondent. That Order was never complied with by the Respondent. Despite

these numerous contacts with the Respondent regarding these proceedings and the hearing scheduled, the Respondent failed to appear at the formal hearing.

The DPR presented the testimony of Charles Coates, Gustave E. Goldstein, Carl Messina, and William J. Bowen. Petitioner's Exhibits 1-3 were admitted in evidence. DPR waived the filing of a transcript and a proposed order.

FINDINGS OF FACT

1. North Florida Drug Corporation, d/b/a Scottie Discount Drugs, currently holds permit No. PH 0004096 as a Community Pharmacy. Respondent is located at 1448 Bakers Square, Macclenny, Florida.

   
   

2. On December 24, 1987, Gustave Goldstein, who had been the designated prescription department manager for Respondent, resigned as a pharmacist at the Respondent's location. He notified Frankie Rosier, the owner and operator of the Respondent, that he was leaving and he notified the DPR that he would no longer be the designated prescription department manager.

   
   

3. Carl Messina is the relief pharmacist for the Respondent. From the time of Goldstein's resignation, Messina has told Ms. Rosier many times that it is illegal to operate without a prescription department manager.

   
   

4. DPR inspected the Respondent's pharmacy in December, 1987, and determined that there was no prescription department manager after Goldstein quit.

   
   

5. DPR conducted an inspection of the Respondent's premises on February 16, 1988, and discovered that there still was no prescription department manager employed there. Frankie Rosier was made aware of this deficiency.

   
   

6. On February 16, 1988, the official records of DPR showed that no new designation of a prescription department manager had been filed by Respondent and Goldstein was still listed as the prescription department manager by Respondent.

   
   

7. On May 22, 1988, DPR again inspected the premises and determined that there was still no prescription department manager.

   
   

8. It is important that each permittee have a designated prescription department manager to assure that all required records are kept and that the pharmacy complies with all legal requirements. This is especially important regarding control and accountability for controlled substances. Without a prescription department manager, a non-pharmacist owner, like Ms. Rosier, would and does have access to these controlled substances without any accountability.

   
   

9. By Final Order entered and filed with the agency clerk on December 17, 1987, this same permittee was fined and placed on probation for operating a community pharmacy with an expired permit and for obtaining a permit by misrepresentation or fraud or through an error of the department or the board.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division o Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

11. Section 465.018, Florida Statutes, provides in pertinent part:

    
    

    Any person desiring a permit to operate a community pharmacy shall apply to the

    department. . . . No permit shall be issued unless a licensed pharmacist is designated as the prescription department manager responsible for maintaining all drug records, providing for the security of the prescription department, and following such other rules as relate to the practice of the profession of pharmacy. The permittee shall notify the department within 10 days of any change in prescription department manager.

    
    

    Section 465.023 provides for disciplinary action against a pharmacy permittee who has:

    
    

    (1)(c) Violated any of the requirements of this chapter or any rules of the Board of Pharmacy; . . .

    
    

12. It is undisputed that the permittee here has violated Section 465.018 by failing to notify the department within 10 days of the change in prescription department managers. In fact, this permittee has operated for an extensive period of time with no prescription department manager.

    
    

13. The permittee through Ms. Rosier, already has a history of failure to comply with the statutes and rules governing operation of a community pharmacy. Additionally, this permittee has been advised about this violation both by DPR and the relief pharmacist employed in this community pharmacy. Despite this knowledge and prior disciplinary history, this permittee was in violation of the law seven days after entry of the Final Order in the earlier case. The Final Order was entered on December 17, 1987, and Goldstein left as prescription department manager on December 24, 1987. These factors must be considered as aggravating circumstances when a penalty is considered for this violation.

    
    

14. Rule 21S-17.001(2)(e)1h(i) & (ii), Florida Administra- tive Code, provides guidelines for the disciplinary offenses at issue here. For failure to notify the board of the departure of the prescription department manager, the suggested penalty is a fine of $1,000 if the permittee ultimately notified the department or ceased to practice. For failure to have a prescription department manager, the penalty is revocation of the permit.

    
    

15. In this case, because of the obvious disregard for the law shown by the permitte, it is concluded that revocation is the appropriate penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of

Pharmacy, enter a Final Order finding North Florida Drug Corporation, d/b/a Soottie Discount Drugs, guilty of the violations alleged and revoking the community pharmacy permit No. PH 0004096.

DONE and ENTERED this 14th day of October, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

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 14th day of October, 1988.

COPIES FURNISHED:

Michael A. Mone' Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

North Florida Drug Corporation Scottie Discount Drugs

1448 Bakers Square

Macclenny, Florida 32063

Bruce Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Rod Presnell, Executive Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-003521

Orders for Case No: 88-003521