STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF PHARMACY, )

and R & B PHARMACY, INC. )

)

Petitioners, )

)

vs. ) CASE NO. 77-615

)

ALBERT HOLTZBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on September 27, 1977,in the conference Room of the Offices of the Department of Health and Rehabilitative Services at 800 West Oakland Park Boulevard, Fort Lauderdale, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented on an Administrative Complaint filed by the State Board of Pharmacy against Albert Holtzberg and R & B Pharmacy, Inc. The complaint alleged that Holtzberg and R & B Pharmacy, Inc. had violated Chapter

465 by having improperly labeled and misbranded drugs contrary to the provisions of Chapter 500, Florida Statutes.

The parties stipulated prior to commencement of the hearing to present the cases against Albert Holtzberg and R & B Pharmacy, Inc. at the same time.

Holtzberg admitted that the drugs enumerated in the complaint were discovered at R & B Pharmacy by V. K. Bell, agent for the Board, during an inspection of the pharmacy.

The issue presented is whether Holtzberg violated Section 465.101, Florida Statutes and R & B Pharmacy, Inc. violated Section 465.22, Florida Statutes, by having misbranded drugs and improperly labeled drugs in the pharmacy contrary to the requirements of Section 500.15, Florida Statutes.

APPEARANCES

For Petitioner: Michael Schwartz, Esquire

Ellis Building, Suite 201 1311 Executive Center Drive Tallahassee, Florida 32301

For Respondent: Harvey I. Silverman, Esquire

4620 West Commercial Boulevard Suite 2

Tamarac, Florida 33319

FINDINGS OF FACT

1. Holtzberg is a pharmacist holding a license issued by the Florida Board of Pharmacy. R & B Pharmacy, Inc. is a permittee holding a permit issued by the Florida Board of Pharmacy. Albert Holtzberg is the owner/operator of R & B Pharmacy, Inc.

   
   

2. The drugs enumerated in the complaint were discovered on the premises of R & B Pharmacy by V. K. Bell, agent of the Board, during an inspection. These drugs were in containers which were not their original containers and which did not bear labels containing names and place of business of the manufacturer, packer, or distributor, and an accurate statement of the contents interms of weight, measure, or numerical count.

   
   

3. The drugs found by Bell and enumerated in the complaint were purchased by Holtzberg for the purpose of resale and delivered to Holtzberg in plastic bags with the labels inside the bags. These labels had not been placed on the containers in which Holtzberg had placed the drugs.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 500.15, Florida Statutes, provides that drugs will be labeled and that these labels shall contain the name and place of business of the manufacturer, packer, or distributor. The label shall also contain an accurate statement of the quantity of contents in terms of weight, measure, or numerical count. If the drug in packaged form does not bear such a label, it is deemed to be misbranded. Section 465.22, Florida Statutes, provides that the Board of Pharmacy may revoke or suspend the permit of any pharmacy which has violated any of the requirements of Chapter 500, Florida Statues. Section 465.101 provides that the Board may revoke or suspend the license of any pharmacist who violates the requirements of Chapter 500, Florida Statutes.

   
   

5. The facts show that Holtzberg had purchased and did maintain these misbranded drugs at R & B Pharmacy. Holtzberg testified that he had intended to sell the drugs with the exception of the antibiotics. The presence of these misbranded drugs constitutes a violation of Section 500.15, Florida Statutes, and thereby a violation of Section 465.22 and 465.101, Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Board of Pharmacy suspend the license of Holtzberg for one year and that the permit of R & B Pharmacy, Inc. be suspended until Albert Holtzberg has satisfied the Board that a qualified pharmacist has been appointed in the manner required by law as manager of the prescription department of R & B Pharmacy.

DONE and ORDERED this 6th day of October, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Harvey I. Silverman, Esquire 4620 West Commercial Boulevard Suite 2

Tamarac, Florida 33319

Michael Schwartz, Esquire Ellis Building

Suite 201

1311 Executive Center Drive Tallahassee, Florida 32301

Docket for Case No: 77-000615

Orders for Case No: 77-000615