STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3868

)

CHARLES J. BESHARA, individually ) and as owner of FOREST HILL ) PHARMACY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 15, 1990, in West Palm Beach, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael A. Mone, Esquire

Department of Professional Regulation

1940 N. Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: M. Lee Thompson, Esquire

THOMPSON & REYNOLDS, P.A.

2628 Forest Hill Boulevard

West Palm Beach, Florida 33406 STATEMENT OF THE ISSUE

The issue in this case is whether the pharmacy license issued to the Respondent, Charles Beshara, should be revoked or otherwise disciplined based upon the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

In an Administrative Complaint dated June 12, 1989, the Petitioner, the Florida Department of Professional Regulation, charged the Respondent, Charles

1. Beshara, a licensed pharmacist, with violating certain portions of Chapter 465, Florida Statutes. The Administrative Complaint contained three counts: Count I alleges that Respondent unlawfully sold or dispensed drugs as defined in Section 465.003(7), Florida Statutes, without first being furnished with a prescription as required by Section 465.015(2)(c), Florida Statutes, and, as a result, is subject to discipline as set forth in Section 465.016(1)(e), Florida Statutes; Count II alleges that Respondent is subject to discipline pursuant to

   Section 465.016(1)(i), Florida Statutes, for compounding, distributing or dispensing a legend drug, including any controlled substance, other than in the course of the professional practice of pharmacy; Count III alleges that Respondent is subject to discipline under Section 465.016(1)(e), Florida Statutes by violating a requirement of Chapter 893, Florida Statutes, specifically, Section 893.04(1), Florida Statutes which states that a pharmacist may only dispense a controlled substance upon a written or oral prescription, in good faith and in the course of professional practice.

   
   

   The Respondent denied the allegations of the Administrative Complaint and timely requested a hearing on the charges. The case was referred to the Division of Administrative Hearings which noticed and conducted a formal hearing pursuant to Section 120.57(1), Florida Statutes.

   
   

   On March 27, 1990, Petitioner filed a Motion For Leave To Amend seeking to add an additional count to the Administrative Complaint. By Order dated April 2, 1990 entered by Hearing Officer Linda M. Rigot, that Motion For Leave To Amend was granted. The additional count (hereinafter referred to as Count IV) alleges that Respondent is subject to discipline pursuant to Section 465.016(1)(f), Florida Statutes, as a result of having pled guilty in the Circuit Court of Palm Beach County, Florida in Case No. 88-14590CF-A02 to the offense of the sale of a schedule IV controlled substance.

   
   

   At the hearing, Petitioner called two witnesses: Elizabeth Cline, an officer with the Organized Crime Bureau of the Palm Beach County Sheriff's Office; and Steve Bohannan, a/k/a David Bohannan, a/k/a Ray Bohannan, who was a confidential informant for the Palm Beach County Sheriff's Office. Petitioner offered four exhibits into evidence, all of which were accepted.

   
   

   Respondent testified on his own behalf and offered two exhibits into evidence. Respondent's Exhibit 2 was a letter that was purportedly prepared by Respondent's physician regarding Respondent's medical problems. That physician was not present to testify and/or to authenticate the letter. Therefore, the letter was not accepted into evidence.

   
   

   No transcript of the hearing has been provided. Both parties have submitted proposed recommended orders. In addition, Petitioner has filed a Memorandum In Support Of The Petitioner's Recommended Order. A ruling on each of the parties' proposed findings of fact is included in the Appendix attached to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.

   
   

   1. At all times pertinent hereto, Respondent has been a licensed pharmacist in the State of Florida having been issued license no. PS0021963.

      
      

   2. At all times pertinent hereto, Respondent was the owner and licensed pharmacist at Forest Hill Pharmacy ("the Pharmacy"), located at 2939 Forest Hill Boulevard, West Palm Beach, Florida. The Pharmacy has been issued permit no. 0009711.

   3. During the latter part of 1988, Steve Bohannan, a/k/a David Bohannan, a/k/a Ray Bohannan (the "Confidential Informant") was working at the Pharmacy on a part-time basis doing janitorial and other maintenance work.

      
      

   4. The Confidential Informant has had several physical ailments which have periodically caused him to take pain medication. In 1980, the Confidential Informant broke his back and in 1985 or 1986, the Confidential Informant injured his leg. On numerous occasions over the last several years, the Confidential Informant obtained legitimate prescriptions for pain medication related to these injuries.

      
      

   5. While he was working at the Pharmacy, the Confidential Informant presented several valid prescriptions for Darvocet N-100 which were filled by the Respondent.

      
      

   6. Darvocet N-100 is a brand name of a "medicinal drug" as defined in Section 465.003(7), Florida Statutes. It contains propoxyphene, which is listed as a Schedule IV drug in Chapter 893, Florida Statutes.

      
      

   7. On one or two occasions, Respondent provided the Confidential Informant with Darvocet tablets when the Confidential Informant indicated that he was in pain and had been unable to renew his prescription. Because the Confidential Informant's physician could not be reached, the Respondent gave the Confidential Informant a few Darvocet tablets to "hold him over." On no occasion did Respondent provide the Confidential Informant with more than 10 Darvocet tablets without a prescription.

      
      

   8. Sometime in November 1988, the Confidential Informant was arrested in Palm Beach County on certain felony charges. The Confidential Informant had been convicted of "a few" crimes prior to this incident. He was in jail on the new charges for at least a couple of days. While he was in jail, he contacted the police and advised them that he knew a pharmacy where he could buy any quantity of Darvocet without a prescription. The Confidential Informant agreed to obtain the drugs from the pharmacy in return for favorable treatment in connection with his pending criminal case. The exact terms of the deal between the Confidential Informant and the police were not established in this proceeding. However, following the "purchase" of Darvocet as described below, the Confidential Informant was released from jail.

      
      

   9. The Confidential Informant informed the police that he could obtain 100 mg. Darvocet tablets from the Pharmacy for $1.00 a piece up to five hundred tablets.

      
      

   10. On November 8, 1988, the police fitted the Confidential Informant with a "body bug" (transmitter) and gave him $500.00 in marked money to purchase drugs from the Pharmacy.

       
       

   11. The police took the Confidential Informant to the Pharmacy and set up monitoring units outside. The Confidential Informant was given a code word to alert the police that the transaction had been completed so that they could enter the Pharmacy.

       
       

   12. There is a conflict in the testimony as to what transpired once the Confidential Informant entered the Pharmacy. The Confidential Informant claims that he gave the Respondent the marked money in return for 500 Darvocet tablets. Through the "body bug," the police were able to detect the presence of the Confidential Informant and other people inside the Pharmacy. However, they

       could not hear any communications between the Confidential Informant and the Respondent. Ultimately, the police heard the code word and entered the pharmacy and arrested the Respondent.

       
       

   13. The Respondent was arrested as he stood behind the counter of the Pharmacy. At the time of his arrest, the Respondent did not have the marked money in his possession. The money was recovered in the back room of the Pharmacy.

       
       

   14. The Confidential Informant had left the building through the locked back door. After the Confidential Informant exited the building, the police found a bottle containing Darvocet tablets in his pocket.

       
       

   15. Respondent contends that he did not deliver any Darvocet to the Confidential Informant on November 8, 1988. Instead, he claims that the Confidential Informant entered the Pharmacy while he was waiting on a customer. According to the Respondent, the Confidential Informant went to the back room of the Pharmacy. Since he worked at the Pharmacy, the Confidential Informant knew the layout of the store. After Respondent finished with the customer, he went to the back room and saw the Confidential Informant exiting the back door. He called out to the Confidential Informant who ignored him and continued out the door. Respondent suggests that the Confidential Informant must have taken the Darvocet from the Pharmacy and left the money in the back room. Respondent denies receiving any money from the Confidential Informant and/or providing him with any Darvocet on November 8, 1988.

       
       

   16. No corroborative evidence was presented of any discussions between the Respondent and the Confidential Informant regarding the sale of Darvocet. The Confidential Informant was familiar with the Pharmacy and clearly had a motive and opportunity to create the appearance of a sale for the police.

       
       

   17. The testimony of the Respondent is found to be more creditable than that of the Confidential Informant and Respondent's version of the events that took place in the Pharmacy on November 8, 1988 is accepted.

       
       

   18. Respondent was arrested and charged with the sale of a Schedule IV controlled substance. In April of 1989, Respondent had a heart attack which required hospitalization for an extended period. The Respondent's physicians advised him that his health would be seriously jeopardized by the stress of a trial. A "best interests" plea was negotiated on May 22, 1989 in front of the Honorable Deborah Puccillo at the Palm Beach County Courthouse. The plea documents indicate that the Respondent pled guilty but that adjudication was withheld. Respondent was placed on probation for eighteen months, accessed

       $255.00 in court costs and required to provide 50 hours community service.

       
       

   19. Respondent has never previously faced any charges related to his pharmacy license in this or any other state. He has been licensed in Florida for approximately 5 years and was licensed in New York for several years prior to coming to Florida.

       
       

   20. Respondent has cooperated with the Palm Beach County Police and helped them apprehend several people who have attempted to obtain drugs with forged prescriptions.

       CONCLUSIONS OF LAW

       
       

   21. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.57(1) and 455.225(5), Florida Statutes (1989).

       
       

   22. The Petitioner has the burden of establishing the basis for the proposed disciplinary action by clear and convencing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hestentcy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

       
       

   23. Pursuant to Section 465.016(2), Florida Statutes, the Board of Pharmacy is empowed to revoke, suspend or otherwise discipline the license of any pharmacist in the state of Florida found guilty of the acts enumerated in Section 465.016(1), Florida Statutes (1989).

       
       

   24. Counts I, II, and III of the Administrative Complaint all relate to the same basic factual allegations. Those alelgations arise from the alleged sale of 500 Darvocet tablets to the Confidential Informant on November 8, 1988. Count I of the Administrative Complaint charges Respondent with violating Section 465.015(2)(c) by selling or dispensing drugs as defined in Section 465.003(7) without first being furnished with a prescription. Count II alleges that Respondent violated Section 465.016(1)(i) by distributing or dispensing a legend drug, including any controlled substance, other than in the course of the professional practice of pharmacy. Count III alleges that Respondent is subject to discipline pursuant to Section 465.1016(1)(e), Florida Statutes, as a result of a violation of Chapter 893, Florida Statutes, specifically, Section 893.04(1), which states that a pharmacist may only dispense a controlled substance upon a written or oral prescription in good faith and in the course of professional practice.

       
       

   25. The evidence did not establish that the Respondent sold the Confidential Informant Darvocet on November 8, 1988, as alleged. The testimony of the Confidential Informant was not found to be credible. The evidence did show that on one occassion when the Confidential Informant's valid prescription had run out and he was complaining of pain, the Respondent provided him with a small number of pills to carry him over until his prescription could be renewed. While Respondent's actions in this regard may constitute a violation of Section 475.016(1)(c) and (i), the Administrative Compliant does not contain any counts related to these actions by Respondent. Therefore, the Respondent's activities in this regard can not serve as a basis for disciplinary action in this proceeding. Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).

       
       

   26. Count IV charges Respondent with a violation of Section 465.01(6)(f) as a result of his plea of guilty to the offense of selling a Schedule IV controlled substance. The evidence established that Petitioner entered a "best interests" plea as part of a plea bargain arrangement pursuant to which adjudication of guilt was withheld. Under subsection 465.016(1)(f), the Respondent is subject to disciplinary action as a result of his plea regardless of adjudication of guilt. However, the circumstances surrounding his plea should be considered. See, Ayala vs. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985) (dealing with a plea of nolo contendere). After hearing the evidence surrounding the underlying criminal charges, the undersigned Hearing Officer did not find the testimony of the Confidential

       Informant to be convincing. His demeanor, character and obvious self interest raised considerable doubt as to the veracity of his testimony. The Respondent's health problems prompted him to a plea arrangement which resulted in a relaltively minor penalty of eighteen months probation.

       
       

   27. Petitioner has suggested that the Respondent's pharmacy license should be revoked. However, the evidence does not support such a harsh result. While Respondent was wrong in supplying the Confidential Informant with a small number of Darvocet when his prescription ran out such was not charged in the Administrative Complaint. Further, the evidence did not indicate that Respondent was illegally supplying controlled substances for profit or was engaged in a pattern of dispensing illicit drugs without a prescription.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Pharmacy enter a Final Order dismissing Counts I, II, and III of the Administrative Complaint, finding the Respondent, Charles J. Beshara, guilty of Count IV of the Amended Administrative Complaint, placing Respondent on probation for a period of two years and ordering him to pay a fine

$250.00.

RECOMMENDED in Tallahassee, Leon County, Florida, this 25th day of April, 1991.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3868

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact 2.

3. Rejected as not supported by competent substantial evidence.

4. Adopted in substance in Findings of Fact 6.

5. Subordinate to Findigns of Fact 7.

6. Subordinate to Findings of Fact 5 and 7.

7. Rejected as not supported by competent substantial evidence.

8. Subordinate to Findings of Fact 5, 12 and 15-17.

9. Subordinate to Findings of Fact 18.

10. Rejected as irrelevant and as constituting a legal conclusion rather than a Finding of Fact.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact 2.

3. Adopted in substance in Findings of Fact 3, 4 and 5.

4. Adopted in substance in Findings of Fact 7.

5. Adopted in substance in Findings of Fact 8.

6. Subordinate to Findings of Facat 8.

7. Rejected as unnecessary.

8. Adopted in substance in Findings of Fact

   12 and 14.

9. Subordinate to Findings of Fact 12-17.

10. Adopted in substance in Findings of Fact 16.

11. Adopted in substance in Findings of Fact 18.

COPIES FURNISHED:

Michael A. Mone, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

M. Lee Thompson, Esquire THOMPSON & REYNOLDS, P.A. 2628 Forest Hill Boulevard

West Palm Beach, Florida 33406

John Taylor Executive Director Board of Pharmacy

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-003868

Orders for Case No: 89-003868