STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAR PHARMACEUTICAL, INC., ) PHARMACEUTICAL RESOURCES, INC., ) QUAD PHARMACEUTICALS, INC., and ) PRX DISTRIBUTORS, )

)

Petitioners, )

) CASE NO. 97-2149CVL

vs. )

) STATE OF FLORIDA, DEPARTMENT OF ) MANAGEMENT SERVICES, )

)

Respondent. )

)

FINAL ORDER

This matter came before the Division of Administrative Hearings by its assigned Administrative Law Judge, Michael M. Parrish, after the parties submitted an Agreed Settlement that incorporated a waiver of their right to a formal hearing.

APPEARANCES

For Petitioner: Kenneth I. Sawyer

President and Chief Executive Officer Par Pharmaceutical, Inc.

One Ram Ridge Road

Spring Valley, New York 10977

For Respondent: Joan Van Arsdall, Esquire

Department of Management Services Knight Building, Suite 312

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

The issue is whether the petitioner companies should be placed on the convicted vendor list.

PRELIMINARY STATEMENT

This matter began on April 3, 1997, when Respondent, Department of Management Services, issued its notice of intent to place Petitioners, Par Pharmaceutical, Inc., Pharmaceutical Resources, Inc., Quad Pharmaceuticals, Inc., and PRX Distributors (hereinafter “Par and its affiliates”), on the convicted vendor list so as to disqualify the Petitioners from conducting business with the State of Florida.

A petition for formal administrative hearing was filed by the Petitioners on April 18, 1997. On that same date the parties executed a 21-page Agreed Settlement. The parties’ agreed settlement document contains extensive stipulated facts and incorporates numerous exhibits attached to the settlement document. The petition for hearing and the parties’ settlement document (with attachments) were forwarded to the Division of Administrative Hearings on May 8, 1997. The purpose of this order is to adopt the Agreed Settlement as required by Section 287.133(3)(e)2.f., Florida Statutes.

FINDINGS OF FACT

1. As noted above in the Preliminary Statement, the parties have entered into an Agreed Settlement. Their Agreed Settlement includes the following:

   1. This Agreed Settlement provides a full and complete factual basis for determining whether Par should be placed on the convicted vendor list. In light of the facts and criteria set forth in Subsubparagraph 287.133(3)(e)3.a. through k., Florida

      Statutes, there are no disputed issues of material fact between the Department of Management Services and Par, Quad and PRI which would require a formal hearing.

      
      

   2. The parties have stipulated to facts that indicate prompt payment of damages, cooperation with investigations, termination of employment and other relationships with employees responsible for the public entity crime, self-policing by Par to prevent public entity crimes, reinstatement and clemency in various jurisdictions in relation to the public entity crime, compliance with the notification provisions of section 287.133, Florida Statutes, the needs of public entities for additional competition in the procurement of goods produced by Par, and demonstrations of good citizenship. Therefore, pursuant to subparagraph 287.133(3)(e)4., Florida Statutes, the parties have stipulated to facts which create a rebuttable presumption that it is not in the public interest to place Petitioners on the convicted vendor list.

   3. The parties agree that it is not in the public interest to place Par or its affiliates on the Florida Convicted Vendor List and recommend that pursuant to subsubparagraph 287.133(3)(e)2.f., Florida Statutes, the . . . [Administrative Law Judge] issue a Final Order which adopts this Agreed Settlement and does not place Par or its affiliates on the convicted vendor list.

2. The parties’ Agreed Settlement constitutes an informal disposition of all issues in this proceeding.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57(1) and 287.133(3)(e)2., Florida Statutes.

4. Section 120.57(4), Florida Statutes (1996 Supp.), reads as follows:

   (4) INFORMAL DISPOSITION.- Unless precluded by law, informal disposition may be made of any proceeding by stipulation, agreed settlement, or consent order.

   
   

5. Section 287.133(3)(e)2.f., Florida Statutes (1996 Supp.), reads as follows:

   f. At any time after the filing of the petition, informal disposition may be made pursuant to s. 120.57(4). In that event, the administrative law judge shall enter a final order adopting the stipulation, agreed settlement, or consent order. [Emphasis added.]

   
   

6. Where, as here, the parties have informally disposed of all issues by entering into an agreed settlement, the mandatory nature of the statutory language underscored above does not appear to authorize the administrative law judge to exercise any discretion. Rather, the statute requires entry of “a final order adopting the stipulation, agreed settlement, or consent order.”

Consistent with the underscored mandate of Section 287.133(3)(e)2.f., it is ORDERED:

That the Agreed Settlement of the parties is hereby adopted, and the Petitioners shall not be placed on the convicted vendor list.

DONE AND ORDERED this 27th day of May, 1997, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1997.

COPIES FURNISHED:

Kenneth I. Sawyer

President and Chief Executive Officer Par Pharmaceutical, Inc.

One Ram Ridge Road

Spring Valley, New York 10977

Joan Van Arsdall, Esquire Department of Management Services Knight Building, Suite 312

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

Paul A. Rowell, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

William H. Lindner, Secretary Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO JUDICIAL REVIEW

Any party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing a copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the district where the party resides. The notice of appeal must be filed within thirty days of rendition of the order to be reviewed.

Docket for Case No: 97-002149CVL

Orders for Case No: 97-002149CVL