STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-814

) BLACKSTONE DRUG COMPANY, INC. ) and LEO COLODNY, )

)

Respondents. )

) FLORIDA BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-815

)

LEO COLODNY, )

)

Respondent. )

)

RECOMMENDED ORDER

These cases were heard pursuant to notice on June 28, 1978 in the offices of Horvath and Horvath, court reporters, 1124 Alfred I. duPont Building, Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

These cases were presented upon administrative complaints filed by the Florida Board of Pharmacy against Blacks tone Drug Company, Inc. (hereafter Blackstone Drug) and Leo Colodny as permittee and as registered pharmacist. The administrative complaint against Leo Colodny as permittee of Blackstone Drug alleged that he failed to keep current, accurate records of controlled substances contrary to Section 465.22(1)(c) and Section 893.07, Florida Statutes; and that Colodny filled prescriptions for controlled substances other than in good faith contrary to Section 465.22(1)(c) and Section 893.13(1)(a), Florida Statutes, 21 CFR 1306.04. The administrative complaint against Leo Colodny as a registered pharmacist alleged same facts and violations of Section 465.101(1)(e), Section 893.07, Section 893.13(1)(a), Florida Statutes; 21 CFR 1306.04 and 21 USC 829.

These cases were consolidated for hearing because they arose from the same factual allegations.

APPEARANCES

For Petitioner: Paul Watson Lambert, Esquire and

Michael I. Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

For Respondent: Richard J. Hays, Esquire

Suite 608, Ainsley Building

14 Northeast 1st Avenue Miami, Florida 33132

ISSUE

The Board presented evidence that Leo Colodny a permittee of Blackstone Drug and as a registered pharmacist had failed to keep adequate records of controlled substances as revealed by an actual audit of his inventory at Blackstone Drug. The Board also presented evidence that Colodny had filled prescriptions which were forgeries without taking reasonable and adequate precautions before filling them. Colodny presented long distance telephone billings showing that he had in fact called one of the physicians whose name had been forged to the prescriptions, and testified that he had similarly called the number given for a local physician whose name appeared on other forged prescriptions which he had filled. The factual issues presented were whether Colodny had maintained accurate records on controlled substances as required by law and had filled prescriptions in good faith as required by law?

FINDINGS OF FACT

1. Leo Colodny is a registered pharmacist and permittee of Blackstone Drug Co., Inc., a pharmacy permitted by the Florida Board of Pharmacy.

   
   

2. An inventory was conducted of Blackstone Drug by a staff member of the Florida Board of Pharmacy which revealed that the inventory records maintained by Colodny were not accurate in that Colodny had shortages and overages of controlled substances. The fact that Blackstone Drug had been burglarized possibly contributed to these inaccuracies; however, this only mitigates the inaccuracy of the records and does not excuse the fact that there were substantial errors.

   
   

3. Copies of prescriptions filled by Leo Colodny at Blackstone Drug were introduced as Exhibit 3 and Exhibit 5. The prescriptions in Exhibit 3 were purportedly written by a doctor in Hollywood, Florida. The prescriptions in Exhibit 5 were purported to have been written by a physician in the Miami area.

   
   

4. Although evidence was submitted which show's Colodny called numbers given on the prescription blanks for the physician in the Hollywood area, the records of the Florida Board of Medical Examiners does not show any physician by that name licensed to practice in the State of Florida.

   
   

5. Colodny stated that when he called the number in Hollywood, the telephone was answered by a man who identified himself as the doctor and validated the prescriptions.

   
   

6. The prescriptions in Exhibit 5 revealed on their face certain inconsistencies of handwriting both in the body of the prescription and in the

   signature. The most glaring inconsistency in these prescriptions was the misspelling of the drug Tuinal, which was spelled in several prescriptions, “Tunial.”

   
   

7. Colodny stated that he had also called the Miami doctor to validate prescriptions and that the doctor in every occasion had validated the prescription.

   
   

8. The Board's inspectors indicated that they had earlier counseled Colodny on filling forged prescriptions for Dilaudid, and that as a result, Colodny ceased dispensing that drug altogether.

   
   

9. The inspectors of the Board of Pharmacy indicated that Blackstone Drug was economically dependent upon its prescription business, particularly those prescriptions for controlled substances. Colodny stated that Blackstone Drug had a fair financial structure and was dependent upon its prescription business. See T-159. Colodny stated that he was dependent upon Blackstone Drug for his livelihood, and that he had tried to obtain relief work unsuccessfully in the Miami area.

   
   

10. The inspectors for the Board of Pharmacy indicated that they had received reports from local law enforcement officers indicating that many street drugs were traceable to Blackstone Drug, which was a major source of street drugs in the Miami area. While the comments of the inspectors were hearsay, the quantity of prescriptions indicated in Exhibits and 5 show that forged many prescriptions were filled by Colodny at Blackstone Drug.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 465.22(1)(c) and Section 465.101(1)(e), Florida Statutes, engraft the provisions of Chapter 893 into Chapter 465. The aforementioned sections make violations of the provisions of Chapter 893 grounds for discipline. It is alleged that Colodny violated Section 893.13(1)(a), Florida Statutes, which provides as follows:

    
    

    Except as authorized in this chapter and chapter 500 it is unlawful for any person

    to sell, manufacture, or deliver, or possess, with intent to sell, manufacture, or deliver a controlled substance...

    
    

12. Section 893.04, provides that a pharmacist, in good faith and in the course of professional practice only, may dispense controlled substances upon oral or written prescription of a practitioner (doctor). Section 893.13(1)(a), is a criminal statute and as such must be construed narrowly when applied in a penal cause such as an administrative proceeding to revoke a license. Section 893.13(1)(a), must be read together with Section 893.04, which authorizes a pharmacist to dispense on the oral or written prescription of a doctor. Section 893.04, also states that a pharmacist may dispense only on good faith and in the course of his professional practice.

    
    

13. There are no cases which interpret "good faith," as that term is used in Section 893.04. In the case of State v. Weeks, 335 So.2d 274 at page 277, the Florida Supreme Court addressed the meaning of "good faith" as it is used in Section 893.05, stating as follows:

    Like the court in Needelman, supra, we approve the definition of 'good faith', in the context of this statute, to mean that the practitioner has got to act in an honest endeavor to carry on his profession of healing patients.

    
    

14. Applying this definition to Section 893.04 in the instant case, good faith by a pharmacist is acting in an honest endeavor to carry on his profession of dispensing medication. Based upon that definition, the issue is whether Colodny made an honest endeavor to dispense properly.

    
    

15. Colodny made an effort to validate these prescriptions, and appears to have honestly felt that he had carried out his responsibility under the law. However, it appears that his age and possibly the economic dependence of his pharmacy on this business colored his judgement of whether these prescriptions were valid. In either event, a reasonably observant person would not have filled a prescription for tuinal spelled, tunial, even after checking with the physician who purportedly signed the prescription. The fact that Colodny filled not one but several such prescriptions is indicative of the fact that he failed to meet his total responsibility to honestly endeavor to dispense properly.

    
    

16. Colodny is also charged with the failure to maintain records as required by Section 893.07, which is engrafted into Chapter 465 through Sections 465.22(1)(c) and 465.101 (1)(e), supra, as stated above. The testimony of the Board's investigators indicates that Colodny had failed to maintain accurate records as revealed by their audit of his inventory on hand at Blackstone Drug. This failure to a degree is mitigated by the fact that Blackstone Drug had been burglarized; however, the magnitude of the discrepancies is not totally explained by the burglary.

    
    

17. There is, however, no evidence of any attempt by Colodny to fraudulently maintain these records. This violation appears to arise from a failure on Colodny's part to pay close attention to the details of his inventory and records.

    
    

    MITIGATION

    
    

18. The findings of fact and conclusions of law above support disciplinary action against Leo Colodny as a registered pharmacist and as permittee for Blackstone Drug. However, the facts indicate that Colodny is 78 years old, has no other livelihood other than operating Blackstone Drug Company, and has been unable to obtain employment as a relief pharmacist. The evidence indicates that Colodny's violation of Section 893.07 is the result of negligence as opposed to fraud or an attempt to cover up the illegal dispensing of drugs. Similarly, Colodny's violation of Section 893.04, arises from his failure to exercise reasonable caution necessary today in the profession to prevent improper dispensing of controlled substances, as opposed to intentionally supplying illicit drugs for profit. Because of the Respondent's age, his lack of any criminal intent, and his dependency upon his profession, the Hearing Officer would recommend that the Board consider probation with such conditions as the Board of Pharmacy feels are necessary to protect against Colodny dispensing controlled substances which are subject to regular abuse. In making this recommendation, the Hearing Officer notes the testimony of the Board's investigators that after counseling Colodny, concerning prescriptions he was "filling for Dilaudid, Colodny ceased dispensing that drug all together.

Colodny appears to have cooperated generally with the Board's investigators but lacks a real understanding of the problem surrounding drug abuse and the

attempts to obtain drugs illegally. This lack of understanding appears to be primarily because of Colodny's advanced years.

RECOMMENDATION

Based upon the findings of fact, conclusions of law, and matters in mitigation the Hearing Officer recommends that the Florida Board of Pharmacy suspend the license of Leo Colodny for a period of two years; and further, that the suspension be established on such conditions as the Board deems appropriate and necessary to limit Colodny from the dispensing controlled substances subject to frequent abuse.

DONE AND ORDERED this 8th day of August, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

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

COPIES FURNISHED:

Michael I. Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

Richard J. Hays, Esquire Suite 608, Ainsley Building

14 N.E. 1st Avenue Miami, Florida 33132

H. F. Bevis

Florida State Board of Pharmacy 252.East 6th Avenue

Box 3355

Tallahassee, Florida 32303

Docket for Case No: 78-000814

Orders for Case No: 78-000814