STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) Case No. 97-5968

)

NURY D. SOLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on

June 29, 1998, by video teleconference.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Esquire Williams & Holz, P.A. The Cambridge Centre

355 North Monroe Street Tallahassee, Florida 32301

For Respondent: William M. Furlow, Esquire

Katz, Kutter, Haigler, Alderman, Byrant & Yon, P.A.

Post Office Box 1877 Tallahassee, Florida 32302-1877

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint1 and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By a seven-count Administrative Complaint, Petitioner charged Respondent, a licensed pharmacist, with the violation of various provisions of Chapter 465, Florida Statutes, the "Florida Pharmacy Act." Post-hearing, Petitioner dismissed Count II of the Administrative Complaint. Consequently, the complaint reads, in pertinent part, as follows:

1. On or about December 14, 1996, an inspection was performed on Westchester Pharmacy.

2. On or about December 14, 1996, during the aforementioned inspection, the permit owner, Noriel Baptista, supplied an investigator with twenty (20) amoxicillin tablets without the investigator providing a prescription.

3. On or about December 14, 1996, at approximately 11:15 a.m., the aforementioned inspection revealed the following violations:

   1. A prescription department hours sign was not posted;

   2. Respondent failed to adequately counsel patients;

   3. A pharmacist's certificate was not displayed;

   4. There were no pharmacists on duty when the prescription department was opened;

   5. Respondent failed to have the "Prescription Department closed" sign posted;

   6. Respondent's prescription records failed to document when controlled substances were dispensed.

4. On or about December 14, 1996, at approximately 11:15 a.m., Respondent was listed as the pharmacy manager for Westchester.

   
   

   Count I

   
   

5. Petitioner realleges and incorporates by reference the foregoing allegations of fact contained in paragraphs one (1) through

   seven (7) as if fully stated herein.

6. Based on the foregoing, Respondent's license to practice pharmacy in the state of Florida is subject to discipline pursuant to Section 465.016(1)(n), Florida Statutes, by violating Rule 59X-28.109, Florida Administrative Code, which states that the prescription department of any community pharmacy permittee shall be considered closed whenever the establishment is open and a Florida registered pharmacist[ ] is not present and on duty. A sign with bold letters not less than two inches in width and height shall be displayed in a prominent place in the prescription department so that it may easily be read by patrons of that establishment. The sign shall contain the following language: "Prescription Department Closed."

* * * Count III

1. Petitioner realleges and incorporates by reference the foregoing allegations of fact contained in paragraphs one (1) through seven (7) as if fully stated herein.

2. Based on the foregoing, Respondent's license to practice pharmacy in the state of Florida is subject to discipline pursuant to Section [465.015(1)(b)], Florida Statutes, by selling or dispensing drugs as defined in

   s. 465.003(7), Florida Statutes, without first being furnished with a prescription.

   Count IV

   
   

3. Petitioner realleges and incorporates by reference the foregoing allegations of fact contained in paragraphs one (1) through seven (7) as if fully stated herein.

4. Based on the foregoing, Respondent's license to practice pharmacy in the state of Florida is subject to discipline pursuant to Section 465.016(1)(n), Florida Statutes, by violating Rule 59X-27.100, Florida Administrative Code, which states that the wall certificate and license of each pharmacist engaged in the practice of the

   profession of pharmacy as defined by s.465.003(12), Florida Statutes, in any pharmacy shall be displayed, together with the current renewal certificate, when applicable, in a conspicuous place in or near the prescription department, and in such manner that said license can be easily read by patrons of said establishment.

   Count V

   
   

5. Petitioner realleges and incorporates by reference the foregoing allegations of fact contained in paragraphs one (1) through seven (7) as if fully stated herein.

6. Based on the foregoing, Respondent's license to practice pharmacy in the state of Florida is subject to discipline pursuant to Section 465.016(1)(n), Florida Statutes, by violating Rule 59X-27.820, Florida Administrative Code, which states that upon receipt of a new or refill prescription, the pharmacists shall ensure that a verbal and printed offer to counsel is made to the patient or the patient's agent when present.

   Count VI

   
   

7. Petitioner realleges and incorporates by reference the foregoing allegations of fact contained in paragraphs one (1) through seven (7) as if fully stated herein.

8. Based on the foregoing, Respondent's license to practice pharmacy in the state of Florida is subject to discipline pursuant to Section 465.016(1)n), Florida Statutes, by violating Rule 59X-28.140(3)(b)2., Florida Administrative Code, which states that a hard copy print out of a record of a prescription drug order shall contain the date of dispensing.

   Count VII

   
   

9. Petitioner realleges and incorporates by reference the foregoing allegations of fact contained in paragraphs one (1) through seven (7) as if fully stated herein.

10. Based on the foregoing, Respondent's license to practice pharmacy in the state of Florida is subject to discipline pursuant to

Section 465.016(1)(n), Florida Statutes, by violating Rule 59X-28.404, Florida Administrative Code, which states that a sign stating the hours the prescription department is open shall be displayed either at the main entrance of the establishment or at or near the place where prescriptions are dispensed in a prominent place that is in clear and unobstructed view.

For such violations, Petitioner proposed that one or more of the following penalties by imposed:

. . . Revocation or suspension of Respondent's license, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, costs, and/or any other relief that the Board [of Pharmacy] deems appropriate.

Respondent disputed the factual allegations contained in the Administrative Complaint, and Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner called Richard Castillo as a witness, and Petitioner's Exhibits 1, 2, 4, and 5 were received into evidence.2 Respondent called Raul Praea and Nury Soler as witnesses, and Respondent's Exhibits 1 through 3 were received into evidence.

The hearing transcript was filed July 24, 1998, and the parties were accorded ten days from that date to file proposed recommended orders. Both parties elected to file such proposals, and they have been duly considered.

FINDINGS OF FACT

Respondent's licensure and employment

1. Respondent, Nury D. Soler, is now, and was at all times material hereto, licensed as a pharmacist by the State of Florida, having been issued license number PS 0014628.

2. Pertinent to this case, Respondent was the prescription

   department manager for Westchester Pharmacy for a two-month period extending from some time in October 1996 and at least through December 13, 1996. Westchester Pharmacy is a community pharmacy licensed by Petitioner, pursuant to Section 465.018, Florida Statutes, and located at 7253 Southwest 24th Street, Miami, Florida. The pharmacy owner or permittee was Noriel Batista.

   The pharmacy inspection

   
   

3. On December 14, 1996, a Saturday, Richard Castillo, an investigator employed by the State of Florida, entered the Westchester Pharmacy to conduct a routine community pharmacy inspection. Upon entry, Mr. Castillo observed only one person in the pharmacy, a man later identified as the permittee

   (Mr. Batista). At the time, Mr. Batista was observed in the vicinity of the prescription area, at the rear of the store.

4. Mr. Castillo proceeded to the counter at the rear of the store, and was approached by Mr. Batista. Thereupon,

   Mr. Castillo feigned a toothache, and the following events transpired:

   . . . I put my hands on my face and I said I have some tooth pain, is there anything you can do about it.

   
   

   At which time, he said you really need to go see a dentist. I said that dentists cost a lot of money and that I believed that it was an infection.

   
   

   At which time he came back with a bottle of twenty Amoxicillin, 500 milligram capsules.

   He sold me the bottle for $10.00 and I gave

   him the $10.00.

   
   

   He then gave me some preliminary instructions, and went back into the prescription department area. He returned and said that as a gift I'm going to give you these medications; which was four capsules of Motrin 800 milligrams.

   
   

   Amoxicillin is a prescription drug, which Mr. Batista, who was not licensed as a pharmacist, sold without benefit of a prescription.

5. Following the sale, Mr. Castillo identified himself as an investigator, told Mr. Batista he was present to conduct a routine inspection, and asked to speak with the pharmacist. When told the pharmacist was not available, Mr. Castillo asked

   Mr. Batista to telephone her and ask her to come to the store. Mr. Batista did so, and about an hour later Respondent arrived.

6. Mr. Castillo inspected the pharmacy and completed a community pharmacy inspection report on which he noted a number of perceived deficiencies. (Petitioner's Exhibit 2). First, with regard to Mr. Batista's sale of amoxicillin, Mr. Castillo noted three deficiencies or violations against the pharmacy business, to-wit: (1) there was no pharmacist on duty when the prescription department was open (a perceived violation of Rule 64B16-28.109, Florida Administrative Code); (2) there was no pharmacist present to provide patient counseling, if requested (a perceived violation of Rule 64B16-27.820, Florida Administrative Code); and, (3) since Mr. Batista did not document the sale,

   Mr. Castillo considered the pharmacy records of dispensing to be

   incomplete (a perceived violation of Rule 64B16-28.140(3)(b), Florida Administrative Code). Other deficiencies noted by Mr. Castillo against the pharmacy business were as follows:

   (1) there was no sign displayed that the pharmacy was closed (a perceived violation of Rule 64B16-28.109(1), Florida

   Administrative Code); (2) the pharmacist's (Ms. Soler's) license was not displayed (a perceived violation of Rule 64B16-27.100(1), Florida Administrative Code); and, (3) there was no sign displayed which stated the hours the prescription department was open each day (a perceived violation of Rule 64B16-28.404, Florida Administrative Code). No further deficiencies were observed and, apart from those noted deficiencies, the prescription department appeared appropriately maintained and operated.

7. Following Respondent's arrival at the pharmacy,

   
   

   Mr. Castillo discussed with her the various deficiencies he had found and had noted on his report. Then, as the "Pharmacist," Respondent signed the report. By signing the report, she acknowledged that "I have read and have had this inspection report and the laws and regulations concerned herein explained, and do affirm that the information given herein is true and correct to the best of my knowledge." Among the information provided on the inspection report was the name of the prescription department manager, which was stated to be the Respondent.

   Respondent's employment status with Westchester Pharmacy on the date of the inspection

   
   

8. Notwithstanding her appearance at Westchester Pharmacy on Saturday, December 14, 1996, and her signing of the inspection report as the Pharmacist for Westchester Pharmacy, Respondent averred, at hearing, that by December 14, 1996, she was no longer affiliated with the pharmacy or responsible for the deficiencies noted. According to Respondent, by December 12, 1996, she had

   agreed with another pharmacy, Coral Way Pharmacy, Inc., (Coral Way Pharmacy) to serve as its pharmacist effective December 16, 1996, at its pharmacy located at 6965 Southwest 24th Street, Miami, Florida, and that her last date of employment with Westchester Pharmacy was December 13, 1996.

9. While perhaps not entirely free from doubt (given the facial inconsistency between Respondent's contention at hearing and the conclusion one could reasonably draw regarding her association with Westchester Pharmacy, as evidenced by her activities on the date of inspection), the proof demonstrates, more likely than not, that, as Respondent averred, she was no longer employed by Westchester Pharmacy on the day of inspection, her presence on the day of inspection was a matter of accommodation to Mr. Batista, and her signing of the report was a matter of misunderstanding.

10. In so concluding, it is observed that, while the pharmacy was open Monday through Saturday, the prescription department was not open on Saturday, or, stated differently, under the terms of Respondent's employment with Weschester Pharmacy she did not work week-ends. Given that Respondent and Coral Way Pharmacy, reached an agreement on December 12, 1996, for her to begin work at Coral Way Pharmacy on December 16, 1996, it is reasonable to conclude, given the nature of her work-week at Westchester Pharmacy, that her last day of employment with Westchester Pharmacy was Friday, December 13, 1996. Moreover,

    consistent with the conclusion that Respondent's association with Weschester Pharmacy terminated on December 13, 1996, is the absence of Respondent's wall certificate and license on the date of inspection. Notably, Respondent had not suffered prior disciplinary action in 19 years of practice, and presumably knew that, if employed, she was required to display her wall certificate and license in or near the prescription department.

    Conversely, she also knew, presumably, that she could not lawfully display them, if she was no longer employed by Westchester Pharmacy. Rule 64B16-27.100, Florida Administrative Code. Since it is presumed that persons will observe the law, the absence of Respondent's wall certificate and license on the date of inspection is consistent with her assertion that, by that date, she was no longer employed by Westchester Pharmacy.

    Atlantic Coast Line R. Co. v. Mach, 57 So. 2d 447 (Fla. 1952).

    
    

11. Finally, also consistent with the conclusion that Respondent's employment with Westchester Pharmacy terminated before the date of the inspection is a statement Respondent made to the inspector. According to the investigator, when asked about the infractions, Respondent stated the following:

    . . . She said that things needed to change. She asked if she were to leave the pharmacy whether that would change anything, and I said, no, it doesn't matter because you're the pharmacist of record at this point of time.

    
    

    Such statement, when considered in context with other proof of record, discussed supra, is consistent with Respondent having

    resolved, previously, to terminate her employment with Weschester Pharmacy and, since she did not specifically tell the

    investigator of her decision, his response evidenced a misunderstanding that resulted in Respondent's execution of the report.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

13. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). That standard requires that "the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

14. Regardless of the disciplinary action sought to be taken it may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of

    State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation, 458 So. 2d 844 (Fla.

    2d DCA 1984). Finally, in determining whether Respondent violated the provisions of Section 475.25(1), as alleged in the Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

15. Pertinent to this case, Section 465.016(1), Florida Statutes, provides that the following acts shall constitute grounds for which the Board of Pharmacy may take disciplinary action against a licensee:

    (e) Violating any of the requirements of this chapter . . .

    
    

    * * *

    
    

    (n) Violating a rule of the board or department.

    
    

16. For the perceived violation of subsection 465.016(1)(e), the Department contends (Count III of the Administrative Complaint) Respondent violated the provisions of Subsection 465.01(1)(b), Florida Statutes.3 That subsection provides:

    1. It is unlawful for any person to own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a pharmacy:

       
       

       * * *

       (b) In which a person not licensed as a pharmacist in this state or not registered as an intern in this state or in which an intern who is not acting under the direct and immediate personal supervision of a licensed pharmacist fills, compounds, or dispenses any prescription or dispenses medicinal drugs.

       
       

17. Here, on December 14, 1996, the date Mr. Batista unlawfully dispensed a prescription drug, Respondent was not affiliated with Westchester Pharmacy. Consequently, the proof fails to support the conclusion that Respondent violated the provisions of Subsection 465.015(1)(b) and, therefore, Subsection 465.016(1)(e), as alleged in Count III of the Administrative Complaint.4

18. For the perceived violations of Subsection 465.016(1)(n), the Department contends Respondent failed to comply with Rules 64B16-28.109 (Count I), 64B16-27.100 (Count IV), 64B16-27.820 (Count V), 64B16-28.140(3)(b)2

    (Count VI), and 64B16-28.404 (Count VII), Florida Administrative Code.5 These perceived violations will be addressed as they appear in the Administrative Complaint, by count.

19. Pertinent to Count I, Rule 64B16-28.109, Florida Administrative Code, provides:

    1. The prescription department of any community pharmacy permittee shall be considered closed whenever the establishment is open and a Florida registered pharmacist is not present and on duty. A sign with bold letters not less than two (2) inches in width and height, shall be displayed in a prominent place in the prescription department so that it may easily be read by patrons of that

       establishment. The sign shall contain the following language: "Prescription Department Closed."

       
       

       Here, Respondent avers she posted such a sign when she departed on December 13, 1996, and there is no reason to reject her testimony. Accordingly, given that she was no longer associated with the pharmacy on December 14, 1996, she is not responsible for the absence of the sign on that date, or Mr. Batista's opening of the prescription department, and Petitioner has failed to sustain Count I of the Administrative Complaint.

20. Pertinent to Count IV, Rule 64B16-27.100, Florida Administrative Code, provides:

    1. The wall certificate and license of each pharmacist engaged in the practice of the profession of pharmacy as defined by Section 465.003(12), Florida Statutes, in any pharmacy shall be displayed, together with the current renewal certificate, when applicable, in a conspicuous place in or near the prescription department, and in such manner that said license can be easily read by patrons of said establishment.

       Pharmacists employed in secondary practice sites shall present a valid wallet license as evidence of licensure upon request.

    2. No pharmacist shall display, cause to be displayed or allow to be displayed, his license in any pharmacy where said pharmacist is not engaged in the practice of the profession as defined in Section 465.003(12, F.S.

       Given that Respondent was not employed at Westchester Pharmacy on the date of inspection, Petitioner has failed to demonstrate a violation of Rule 64B16-27.100, as alleged in Count IV of the Administrative Complaint.

21. Pertinent to Count V, Rule 64B16-27.820, Florida Administrative Code, provides:

    1. Upon receipt of a new or refill prescription, the pharmacist shall ensure that a verbal and printed offer to counsel is made to the patient or the patient's agent when present. If the delivery of the drugs to the patient or the patient's agent is not made at the pharmacy the offer shall be in writing and shall provide for toll-free telephone access to the pharmacist. If the patient does not refuse such counseling, the pharmacist, or the pharmacy intern, acting under the direct and immediate personal supervision of a licensed pharmacist, shall review the patient's record and personally discuss matters which will enhance or optimize drug therapy with each patient or agent of such patient. Such discussion shall be in person, whenever practicable, or by toll-free telephonic communication and shall include appropriate elements of patient counseling. . . .

       Given that Respondent did not dispense the prescription drug, was not present at the time, and was no longer associated with Westchester Pharmacy, Petitioner has failed to demonstrate a violation of Rule 64B16-27.820 as alleged in Count V of the Administrative Complaint.

22. Pertinent to Count VI, Rule 64B16-28.140(3)(b), Florida Administrative Code, provides:

    (3) Records of dispensing.

    1. Each time a prescription drug order is filled or refilled, a record of such dispensing shall be entered into the data processing system.

    2. The data processing system shall have the capacity to produce a daily hard-copy printout of all original prescriptions dispensed and refilled. This hard copy printout shall contain the following

    information:

    1. Unique identification number of the prescription;

    2. Date of dispensing;

    3. Patient name;

    4. Prescribing practitioner's name;

    5. Name and strength of the drug product actually dispensed, if generic, name, the brand name or manufacturer of drug dispensed;

    6. Quantity dispensed;

    7. Initials or an identification code of the dispensing pharmacist. . . .

    
    

    Given that Respondent did not dispense the prescription drug, was not present at the time, and was no longer associated with Westchester Pharmacy. Petitioner has failed to demonstrate a violation of Rule 64B16-28.140(3)(b) as alleged in Count VI of the Administrative Complaint.

23. Pertinent to Count VII, Rule 64B16-28.404, Florida Administrative Code, provides:

    Any person who receives a community pharmacy permit pursuant to Section 465.018, Florida Statutes, and commences to operate such an establishment shall, for the benefit of the public health and welfare, keep the prescription department of the establishment open for a minimum of forty (40) hours per week and a minimum of five (5) days per week. . . . A sign in block letters not less than one inch in height shall be displayed either at the main entrance of the establishment or at or near the place where prescriptions are dispensed in a prominent

    place that is in clear and unobstructed view.

    Such sign shall state the hours the prescription department is open each day.

    
    

24. The clear wording of rule 64B16-28.404 places the responsibility for displaying an appropriate sign on the "person who receives a community pharmacy permit," here Mr. Batista, not

the pharmacist. Moreover, Respondent was no longer associated with Westchester Pharmacy when the deficiency was perceived.

Consequently, Petitioner has failed to demonstrate a violation of Rule 64B16-28.404, Florida Administrative Code, as alleged in Count VII of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint.

DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1998.

ENDNOTES

1/ In its Proposed Recommended Order, Petitioner dismissed Count II of the Administrative Complaint. Count III of the Administrative Complaint was amended at hearing, without objection, to replace the statutory reference to Section 465.015(2)(c), Florida Statutes, with a reference to Section 465.015(1)(b), Florida Statutes.

2/ Petitioner withdrew its Exhibit 3. Petitioner's Exhibit 5 was the return of service, reflecting service of a subpoena on Noriel Batista.

3/ The provisions of Subsection 465.016(1)(c), Florida Statutes, would support a similar charge and, given the proof in this case, the conclusion reached would be the same.

4/ Moreover, even if a person in "charge of . . . a pharmacy," Respondent could not be found guilty of allowing an unlicensed person (Mr. Batista) to dispense a prescription drug where, as

here, there is no showing of personal wrongdoing on her part. Cf. Pic N' Save v. Department of Business Regulation, 601 So. 2d

245, 250 (Fla. 1st DCA 1992) ("Although the statutory language in section 561.29(1) has since 1957 spoken in terms of the Division's power to revoke or suspend a beverage license for violations of the beverage law committed by a licensee, or 'its agents, officers, servants, or employees,' the courts of this state have consistently construed and applied this disciplinary authority only on the basis of personal misconduct by the licensee. Thus, while an employee may violate the beverage law in making illegal sales of alcoholic beverages to minors, the licensee's culpable responsibility therefor is measured in terms of its own intentional wrongdoing or its negligence and lack of diligence in training and supervising its employees regarding illegal sales."); McDonald v. Department of Professional Regulation, Board of Pilot Commissioners, 582 So. 2d 660, 669 (Fla. 1st DCA 1991) ("There is no language to clearly evidence a legislative intent to impose on a state licensed pilot vicarious responsibility for the neglect or misconduct or others, i.e., to hold the pilot strictly responsible for the conduct of all other personnel involved in operating and maneuvering the vessel at the time the [co]llision occurred. The statute does not purport to impose any nondelegable duties on a state licensed harbor pilot that would give rise to personal responsibility for the negligent acts of others. [W]ithout

a clear, unambiguous provision in the statute indicating

legislative intent to hold the licensee responsible for the negligent or wrongful acts committed by another, the administrative agency is not authorized to so extend the effect of the statute."); Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So. 2d 1063, 1066 (Fla. 3d DCA 1984) ("We conclude that if the Legislature desired to make community pharmacy permittees strictly liable for the acts of pharmacists who are separately licensed by the state, then it could have done so in no uncertain terms. In the absence of a clear expression from the Legislature making these permittees subject to discipline for the misdeeds of their chosen licensed pharmacist, we are obliged to reverse the Board's order of revocation.")

Here, there is no evidence of intentional wrongdoing by Respondent and, given the isolated nature of the offense by the permittee, there is no basis on which to conclude that Respondent fostered, condoned, or negligently overlooked such unlawful conduct. See Lash, Inc. v. Department of Business Regulation, 411 So. 2d 276 (Fla. 3d DCA 1982), and Pauline v. Lee, 147 So. 2d 359 (Fla. 2d DCA 1962). Consequently, even if Respondent was still employed on December 14, 1996, the proof was insufficient to demonstrate, with the requisite degree of certainty, that she violated the provisions of Subsection 465.01(1)(b), Florida Statutes, and therefore, Subsection 465.016(1)(e), Florida Statutes.

5/ The Administrative Complaint cites the rule provisions as being codified at Chapter 59X-27 and 59X-28, Florida Administrative Code; however, those provisions have been transferred to Chapters 64B16-27 and 64B16-28, Florida Administrative Code, respectively.

COPIES FURNISHED:

John O. Williams, Esquire Maureen L. Holz, Esquire Williams & Holz, P.A.

The Cambridge Centre

355 North Monroe Street Tallahassee, Florida 32301

William M. Furlow, Esquire

Katz, Kutter, Haigler, Alderman, Byrant & Yon, P.A.

Post Office Box 1877 Tallahassee, Florida 32302-1877

Nury D. Soler

4251 Southwest 107th Court Miami, Florida 33165

John Taylor, Executive Director Board of Pharmacy

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-005968

Orders for Case No: 97-005968