STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2139

)

RALPH A. SHUTTERLY, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held in Sarasota, Florida, on June 23, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Nancy M. Snurkowski

Agency for Health Care Administration

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Salvatore A. Carpino

8001 North Dale Mabry Highway, Suite 301-A Tampa, Florida 33614

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of being convicted or found guilty of a crime directly relating to the ability to practice pharmacy or the practice of pharmacy and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed March 7, 1995, Petitioner alleged that Respondent was a licensed pharmacist who, on February 24, 1995, entered a plea of guilty and was sentenced in United States District Court to one felony count of knowingly and intentionally combining, conspiring, confederating, and agreeing with other persons to possessing with intent to distribute acetaminophen with codeine and hydrocodone bitartrate, which are Schedule III controlled substances, and diazepam and alprazolam, which are Schedule IV controlled substances.

On March 28, 1995, Petitioner issued an emergency order suspending Respondent's license to practice pharmacy.

At the hearing, Petitioner called one witness and offered into evidence five exhibits. Respondent called 11 witnesses and offered into evidence five exhibits. All exhibits were admitted except Respondent Exhibits 1-4.

The transcript was filed July 26, 1995. Both parties' proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. Respondent received his license to practice pharmacy in Pennsylvania in 1962. He has been continuously licensed in Florida since December 31, 1973, through March 28, 1995, when his Florida license was suspended by emergency order of the Board of Pharmacy for the reasons set forth below. His Florida license number was PS0013841. Respondent has not previously been disciplined.

   
   

2. Respondent has been employed for many years with a large pharmacy chain. Over the years, he was promoted into positions of increasing managerial responsibility. At one point, he was in charge of the operations of over 25 stores.

   
   

3. Sometime prior to the incidents described below, Respondent's responsibilities were reduced, evidently due to corporate restructuring. At the same time, his wife of 15 years had an affair. Respondent suffered other stresses, including a homicide involving someone in a close relationship.

   
   

4. Respondent was ill-equipped to deal with these setbacks. He was a hard- working, intense person with no emotional outlets. Two prior marriages had failed in part due to Respondent's lack of emotional insight. Respondent has long defined his role in relationships almost entirely in terms of his income- earning ability.

   
   

5. Unable to deal with the stress, Respondent one night picked up a streetwalker in Bradenton and paid her to have sex with him. Respondent identified himself to her. A sexual relationship ensued.

   
   

6. The woman had a child, and they lived in squalor. Respondent' initial sexual impulse toward the woman yielded to an impulse by Respondent to rescue the mother and child and serve as their savior or hero.

   
   

7. The woman made increasing demands of Respondent. Several times, Respondent tried to end the relationship, but the woman threatened to disclose the relationship to Respondent's wife and employer. Respondent informed her that he had no more money to give her, but she continued her demands.

   
   

8. Eventually, Respondent began to steal from the pharmacy store at which he worked. At first, he stole boxes of cigarettes. Later, he stole prescription drugs, including various Schedule III and IV controlled substances. The drugs contained codeine, and Respondent knew that the woman was selling the drugs on the street. At least one of the drugs was popular among drug abusers.

   
   

9. About a year after meeting the woman, Respondent was caught in the act of stealing drugs in the early-morning hours at the store. He immediately made a full confession and was prosecuted by federal authorities for the controlled substances and by state authorities for the cigarettes and other miscellaneous merchandise.

10. In Count I of the federal indictment, Respondent was charged with a violation of 21 U.S.C. 846 by knowingly and intentionally combining, conspiring, confederating, and agreeing with the woman and other persons to possess with intent to distribute acetaminophen with codeine and hydrocodone bitartrate, which are Schedule III controlled substances, and diazepam and alprazolam, which are Schedule IV controlled substances.

    
    

11. A Schedule III controlled substance has a potential for abuse less than substances contained in Schedules I and II and has a currently accepted medical use in treatment in the United States. Abuse of a Schedule III controlled substance may lead to moderate or low physical dependence or high psychological dependence.

    
    

12. A Schedule IV controlled substance has a potential for abuse less than substances contained in Schedules I, II, and III and has a currently accepted medical use in treatment in the United States. Abuse of a Schedule IV controlled substance may lead to limited physical or psychological dependence.

    
    

13. Respondent pleaded guilty to Count I, which carried a maximum sentence of five years, fine of $250,000, and probation of three years, as well as restitution. The United States noted Respondent's acceptance of responsibility as a factor in mitigation. In the plea agreement, Respondent acknowledged that he began diverting controlled substances, once or twice a week, in September 1993. He had been caught and arrested in April 1994.

    
    

14. On February 24, 1995, The United States District Court entered a judgment adjudicating Respondent guilty of Count I, placing him on six months' house arrest, placing him on five years' probation, and ordering restitution to the pharmacy chain of $10,574.84 for the diverted controlled substances. The judge stated her desire that Respondent continue to work as a pharmacist in order to pay for what he had stolen.

    
    

15. Respondent's conviction directly relates to his ability to practice pharmacy or to the practice of pharmacy.

    
    

16. At the time of Respondent's arrest, the pharmacy chain had fired him. Following the arrest but before the conviction, Respondent worked as a pharmacist for a corporation that supplies licensed replacement pharmacists on a short-term or indefinite basis. Primarily assigned to one client working with terminally ill patients, Respondent was valued as a pharmacist by the clients and his employer for the six months that he was so employed.

    
    

17. Respondent's employment as a licensed pharmacist ended when the Board of Pharmacy issued an emergency order suspending his license on March 28, 1995. Respondent has since attempted to find employment, but he has found none. His ability to make restitution has been impeded, although he has made some payments.

    
    

18. Respondent has received private psychological counselling since October 1994. The psychologist's diagnosis was that Respondent was suffering from an adjustment reaction with depressed mood. Helping Respondent to analyze his past mistakes and equip himself to deal with stress, the psychologist opines that it is very unlikely that Respondent would repeat this behavior and would not represent a threat to the public safety, health, or welfare if he were to continue practicing pharmacy.

19. Respondent has participated in the PRN since August 1994. The impaired practitioner program typically serves licensees who are unable to practice due to mental illness, substance abuse, or physical disability. The program has determined that Respondent suffers from no chemical dependency, sexual disorder, or psychiatric illness. Rather, at the time of the criminal behaviors, Respondent was under extreme stress. However, the director of the program testified that Respondent is progressing very well, free of all illness, and gaining insight into his difficulties so that he can now express his feelings and handle his stresses. The director also opines that Respondent would not pose a threat to public safety, health, or welfare if he were to continue practicing pharmacy.

    
    

20. Respondent has entered into a five-year contract with the PRN. The program monitors Respondent for a lifetime. If at anytime the director were to determine that Respondent is not progressing, such as by failing to renew a contract when asked to do so by the program, the director would file a complaint with Petitioner.

    
    

21. It has been almost two years since Respondent began diverting controlled substances to the prostitute and almost a year and one-half since he was caught. This relatively recent behavior was not isolated, but lasted six months. Respondent was caught and did not turn himself in. Respondent's behavior harmed himself, his family and friends, and his employer, which spends considerable resources to develop public trust and employee morale, both of which were damaged by Respondent's actions. Respondent's behavior also harmed the woman, whose squalid circumstances were worsened by Respondent's "generosity." And his criminal behavior threatened the safety, health, and welfare of numerous persons who purchased the controlled substances that Respondent had stolen and given to the woman.

    
    

22. On the other hand, Respondent poses no risk to the public. This is the opinion of two mental-health professionals working closely with Respondent. Also, Respondent did not steal controlled substances while working for six months as a temporary pharmacist and while under considerable stress from the criminal prosecutions. Although Respondent did not turn himself in, he did confess immediately and completely. As a practical matter, his ability to make restitution is dependent on his ability to practice pharmacy.

    
    

23. Respondent and Petitioner each present numerous final orders of the Board of Pharmacy evidencing past penalties.

    
    

24. Petitioner's final orders include Newman, Case No. 94- 20465 (five years' suspension and $2000 fine for state conviction for sale, purchase, or delivery of Schedule IV controlled substance; and Dunayer, Case No. 07300 (revocation for shortage of over 500,000 dosage units of many of the same codeine- containing drugs).

    
    

25. Respondent's final orders include Feldman, Case No. 92- 07313 (three years' suspension, retroactive 14 months to when licensee was ordered by court to surrender license, three years' probation, and $3000 fine for federal conviction for distributing and dispensing outside course of professional practice of pharmacy--although some of the same codeine-containing drugs were involved, it appears that considerably greater quantities may have been involved); Swoy, Case No. 93-11716 (two years' suspension, of which 22 months were stayed and several years' probation for state conviction of delivery of one of the same codeine-containing drugs--quantity unclear); and Levine, Case No. 92-04729 (two years' suspension that was stayed and four years' probation for

    state conviction of impaired practitioner for theft from pharmacy of relatively small quantities of Schedule II controlled substances).

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

27. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

28. Section 465.016(1)(f) provides that the Board of Pharmacy may discipline a licensee for being "convicted or found guilty . . . of a crime which directly relates to the ability to practice pharmacy or to the practice of pharmacy."

    
    

29. Petitioner has proved that Respondent violated Section 465.016(1)(f).

    
    

30. Section 465.016(2) provides that, for any violation of Section 465.016(1), the Board may impose the penalties of revocation, suspension, $1000 fine per count, reprimand, and probation "for a period of time and subject to such conditions as the board may specify "

    
    

31. Rule 59X-30.001(2)(f) provides a penalty range for a pharmacy-related felony conviction of a minimum of one year's suspension, two years' probation, and a $1000 fine to a maximum of revocation. Rule 59X-30.001(3) identifies mitigating circumstances of lack of prior discipline, restitution, steps taken to insure the absence of similar violations, and financial hardship resulting from fines and suspension.

    
    

32. Respondent does not represent a continued threat to the public, so revocation is not necessary to protect the public. Respondent is making restitution and would suffer financial hardship from fines and suspension. But the conviction is based on egregious behavior that exposed numerous persons to harm over a period of several months. Any penalty must account for all of these circumstances, although Petitioner's proposed penalty of five years' suspension, two years' probation, and a fine of $3000 seems excessive and Respondent's alternative proposed penalty of a reprimand, five years' probation, and a $3000 fine seems insufficient.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Board of Pharmacy enter a final order finding Respondent guilty of violating Section 465.016(1)(f), suspending his license for one year from the date of the emergency suspension, imposing a $3000 fine to be paid within 90 days after the end of the suspension, and placing Respondent on probation for a period of five years.

ENTERED on August 8, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on August 8, 1995.

COPIES FURNISHED:

John Taylor, Executive Director Board of Pharmacy

1940 North Monroe Street Tallahassee, FL 32399-0792

Nancy M. Snurkowski

Agency for Health Care Administration 1940 North Monroe St., Suite 60

Tallahassee, FL 32399-0792

Salvatore A. Carpino

8001 North Dale Mabry Hwy. Suite 301-A

Tampa, FL 33614

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.

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

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF PHARMACY

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs CASE NO. 94-07532

DOAH CASE NO. 95-2139

RALPH A. SHUTTERLY,

Respondent.

/

FINAL ORDER

THIS CASE came on to be heard by the Florida State Board of Pharmacy at a regularly scheduled meeting held in Miami, Florida on December 4, 1995, pursuant to a Recommended Order filed in this cause by Hearing Officer Robert E. Meale on August 8, 1995. The Board, having reviewed the complete record, including all exhibits and transcripts, hereby agrees with tile one exception filed by Respondent on August 23, 1995. This exception requested that the fourth sentence of paragraph 21 of the Hearing Officer's Proposed Findings of Fact was not supported by competent substantial evidence, and should be struck. The Petitioner did not dispute Respondent's position and the Board hereby strikes the fourth sentence of paragraph 21 of the Hearing Officer's Proposed Findings of Fact as not being supported by competent substantial evidence.

With the abovementioned modification, the Proposed Findings of Fact, Conclusions of Law and Recommendation of the Hearing Officer be and the same are hereby ACCEPTED and become the Final Order of the Florida Board of Pharmacy.

Pursuant to that portion of the recommendation which requires that Respondent be placed on probation for a period of five (5) years, Respondent be and the same is hereby placed on Probation for said period under the following terms and conditions:

1. Respondent shall not violate any of the law and rules governing the practice of pharmacy in the State of Florida.

   
   

2. Respondent shall not act as a prescription department manager for the first year of probation Thereafter, Respondent may apply to the Board for permission to act in that capacity.

   
   

3. Respondent shall undergo one additional inspection in the first year of probation by inspectors of the Agency for Health Care Administration. The cost of the inspection shall be borne by Respondent

   
   

4. Random yearly audits of five controlled substances during the first two years shall be made by inspectors of the Agency for Health Care Administration at Respondent'5 expense at any pharmacy wherein Respondent is employed as a pharmacist.

   
   

5. Respondent shall complete twelve (12) hours of continuing education course in pharmacy laws and rules during the first year of probation, and this course shall not count toward his pharmacy renewal requirements.

DONE and ORDERED this 22nd day of December, 1995, by the Florida Board of Pharmacy.

JOHN D. TAYLOR EXECUTIVE DIRECTOR

COPIES FURNISHED:

Ralph Shutterly

Robert E. Meale, Hearing Officer Wendy S. Hansen, Esquire

Sal Carpino, Esquire

Docket for Case No: 95-002139

Orders for Case No: 95-002139