STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF PHARMACISTS, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2032

)

HARVEY STEINBERG, )

Registered Pharmacist )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on February 27, 1976, at Miami, Florida.

APPEARANCES

For Petitioner: Stanley P. Kaplan, Esquire

404 Biscayne Building

19 West Flagler Street Miami, Florida

For Respondent: Al Sepe, Esquire

City National Bank Building

25 West Flagler Street Miami, Florida 33130

By Complaint and Notice to Show Cause filed November 3, 1975 the Florida Board of Pharmacy seeks to revoke or suspend the license of Harvey Steinberg, Respondent herein, on the grounds that he failed to maintain on a current basis complete and accurate records of controlled substances as defined in Chapter 893, Florida Statutes, while working at Halcal, Inc. d/b/a North Bay Village Pharmacy during the period January 1, 1975 through August 5, 1975, in violation of 465.101(1)(e) Florida Statutes. The parties stipulated that Respondent was employed at Halcal, Inc. from January 2 through the period of the audit August 5, 1975; that in January three pharmacists were employed at Halcals; and from February 1 through date of audit only two pharmacists were employed, viz.

Steinberg and the owner of Halcal, Inc., Carl Leis. They further stipulated that during this period incomplete and inaccurate records were maintained at Halcals. Thereafter one witness testified on behalf of the Board and the Respondent and two character witnesses testified on behalf of Respondent.

FINDINGS OF FACT

1. During an audit conducted in early August, 1975 by an agent for the Board of Pharmacy a substantial shortage of Dilaudid, Quaalude, and Tuinal was noted between the record of the amounts of these controlled drugs received and dispensed. Since no running inventory is required to be maintained the auditor

   commenced his audit with crediting Halcals with having none of these controlled drugs on hand January 1, 1975 and thereafter checking the prescriptions for drugs dispensed against the invoice of drugs received subsequent to January 1. In looking through the prescriptions numerous prescriptions appeared to the investigator to be forged and a subsequent check with the purported issuer disclosed that many of the prescriptions on file were in fact forged prescriptions. The Respondent stipulated that many of the prescriptions on file at Halcals were forged. No deduction was taken for the forged prescriptions, yet the audit showed more than 1600 tablets of the above based drugs had been received than could be accounted for by the prescriptions on file.

   
   

2. Further, the audit revealed that approximately 80 percent of the forged prescriptions had been filled out by Respondent; and, also, that of the prescriptions audited, Steinberg filled 80 percent of the prescriptions for those controlled drugs found short on the inventory.

   
   

3. Section 893.07 Florida Statutes requires every person dispensing controlled substances (e.g. pharmacists) to maintain on a current basis a complete and accurate record of each substance received and sold, delivered or otherwise disposed of by him.

   
   

4. During the course of the audit Respondent acknowledged that on one occasion he "refilled" a prescription for 50 tablets of Dilaudid without recording same when the purchaser told him the original tablets given him tasted like saccharin.

   
   

5. Testifying in his own behalf Respondent told of at least one theft in the pharmacy where drugs were stolen. He had no idea what happened to the missing drugs. Each pharmacist on duty is required to date and file all prescriptions and to keep the records of all invoices of controlled substances received. No running inventory is required; therefore, none is kept.

   
   

6. Considerable evidence was presented that Respondent filled numerous prescriptions for the controlled drugs noted in the audit which he knew, or should have known, were forged. For filling many of these prescriptions Respondent received "tips". In his testimony Respondent recounted the situation which frequently occurred viz. that at frequent intervals A would present a prescription to Respondent and as soon as Respondent filled this prescription several other prescription holders immediately followed with similar prescriptions. Respondent further testified that he had no reason to suspect anything was wrong with these prescriptions.

   
   

7. No charges were preferred against Respondent respecting the filling of any of those forged prescriptions, so all evidence with respect thereto is irrelevant to these proceedings and is disregarded by the hearing officer.

   
   

   CONCLUSIONS OF LAW

   
   

8. The evidence is clear that proper records of controlled substance were not maintained at Halcal's Inc. while Respondent was working there as a pharmacist. But for his admission that he had dispensed a second order of 50 tablets of Dilaudid without a second prescription any finding that the shortage in drugs discovered in the audit was the result of Respondent failing to maintain records would be speculative. This is so because for one month covered by the audit two other pharmacists were also required to maintain records and for the remaining six months one other pharmacist shared the record keeping responsibilities.

9. Respondent's admission that he refilled a prescription without recording same, coupled with the evidence of shortage of the controlled drug, is sufficient to sustain a finding that Respondent failed to maintain records of controlled drugs in violation of Section 465.101 (1)(e), Florida Statutes.

   
   

10. From the foregoing it is concluded that Harvey A. Steinberg failed to maintain on a current basis a complete and accurate record of each controlled substance controlled by Chapter 893 Florida Statutes. This constitutes a violation of 465.101(1)(e), Florida Statutes. It is therefore,

RECOMMENDED that the license of Harvey Steinberg be suspended for a period of six (6) months.

DONE and ENTERED this 7th day of April, 1976 in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1976.

COPIES FURNISHED:

Stanley P. Kaplan, Esquire Al Sepe, Esquire

Docket for Case No: 75-002032

Orders for Case No: 75-002032