STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 79-682

)

ROGER ALLEN BOWERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, on August 22, 1979, at the Richard P. Daniel State Regional Office Building, 111 Coastline Drive East, Jacksonville, Florida, commencing at 2:00 o'clock p.m.

APPEARANCES

For Petitioner: Michael Schwartz, Esquire

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

For Respondent: William J. Sheppard, Esquire

215 Washington Street Jacksonville, Florida 32202

ISSUE

Whether disciplinary action should be taken against the license of the Respondent, Roger Allen Bowers, to practice pharmacy in, the State of Florida.

FINDINGS OF FACT

1. The Respondent, Roger Allen Bowers, a registered pharmacist in the State of Florida, practiced pharmacy and was the manager of the prescription department at Scotty Discount Drugs at 3620 Blanding Boulevard in Jacksonville, Florida, during the period of time from May 1, 1978, to February 10, 1979.

   
   

2. On February 28, 1979, a Complaint and Notice to Show Cause was issued by the Petitioner Board charging Respondent with violation of Sections 465.101(1)(e) and 893.07, Florida Statutes, for permitting improper maintenance of records in that he failed to keep "on a current basis a complete and accurate record of each controlled substance, controlled by Chapter 893, Florida Statutes," at said community pharmacy. Respondent Bowers requested an administrative hearing.

   
   

3. Mary Haddad, a pharmacist licensed in the State of Florida and employed at Scotty Discount Drugs during January, February and March of 1979, noticed

   that large quantities of Percocet-5 were being ordered by Respondent Bowers. Ms. Haddad felt such an order was unusual, inasmuch as she did not fill any prescriptions for this medication during her first month of employment. She checked the pharmacy Schedule II files for a one-month period and found approximately three (3) prescriptions for Percocet-5 during that period. She noticed, however, that numerous narcotic forms were signed by Respondent reordering this medication. Ms. Haddad noted on February 9, 1979, that there was one 500 stock bottle of Percocet-5 on the shelf which was about three-

   quarters full. She reported her findings to Owen Scott, a supervisor for Scotty Discount Drugs.

   
   

4. Mr. Scott considered the communication from Ms. Haddad and called David Hodge, an agent for Petitioner Board, and requested an immediate audit of the pharmacy. After Mr. Hodge's report was filed with Mr. Owen, Mr. Owen terminated Respondent from the employ of Scotty Discount Drugs.

   
   

5. David L. Hodge, the inspector-investigator for the Petitioner Board, audited the pharmacy for a period of approximately nine (9) months previous to February, 1979. The audit showed that during the said nine (9) months' period there was a shortage of 17,628 Percocet-5 tablets, 4,097 Percodan tablets, 609 Dilaudid 4 mg. tablets, and 610 Dilaudid 2 mg. tablets. The audit was introduced into evidence without objection. Mr. Hodge made copies of all the order forms for the said nine (9) months' period at Lawrence Pharmaceuticals which had been sent to said firm and were signed by Respondent Bowers. These copies were introduced into evidence without objection.

   
   

6. The Respondent properly filled out the forms, signed them, and properly filed the forms on which the narcotics were ordered. He properly filed the prescriptions that were filled.

   
   

7. No explanation was given for the discrepancy between the large amount of narcotics ordered by Respondent as the manager of the pharmacy and the small number of prescriptions filled for these narcotics and the absence of these narcotics in the pharmacy at the time of the audit by Mr. Hodge.

   
   

8. There were seven (7) licensed pharmacists employed by the pharmacy managed by Respondent. The store in which the pharmacy was located remained locked until unlocked by an employee, and the pharmacy remained locked. Several people had keys to the store, and the licensed pharmacists had keys to the pharmacy. There was a spare key to the pharmacy within the store in the store manager's office under a ledge by a small door next to the pharmacy. The assistant manager of the store, an unlicensed person, knew the location of this key, as perhaps did other people, inasmuch as it was left on the ledge when not in use.

   
   

9. Petitioner submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of this cause and the parties thereto pursuant to Section 120.57, Florida Statutes.

11. Section 465.21 Pharmacies; permits.-- provides:

    
    

    1. As a prerequisite to operating a community pharmacy, all owners and proprietors of commun- ity pharmacies in this state shall secure from the Board of Pharmacy a permit for each such community pharmacy. Application for such permit shall be made on a form or forms to be furnished by the Board of Pharmacy showing the name and address of the community pharmacy for which a permit is sought, the name and address of the

       owner, or owners, and the manager of the establish- ment, if there be one, and the names of all reg- istered pharmacists employed in such community pharmacy, together with the certificate date and number of each such registered pharmacist. In addition, the applicant shall designate a pharm- acist registered and licensed to practice in Flor- ida as the manager of the prescription department located in the establishment for which a permit

       is sought, who shall be in charge of the practice of the profession of pharmacy within said pre- scription department, including, but not limited to, maintaining all drug records as required by law and the security of the said prescription department....

       
       

12. The Respondent in this proceeding, as a pharmacy manager, was in charge of the practice of the profession of pharmacy within said prescription department" and had the duty under the foregoing statute to not only maintain all drug records but also to maintain the security of said prescription department. Respondent Bowers failed to maintain the security of the prescription department for which, as manager, he was responsible, which was in violation of the foregoing statute.

    
    

13. Section 893.07 Records.-- provides:

    
    

    1. The record of all controlled substances sold, administered, dispensed, or otherwise disposed of shall show:

       1. The date of selling, administering, or dispensing.

       2. The correct name and address of the person to whom or for whose use, or the owner and species of animal for which, sold, administered, or dispensed.

       3. The kind and quantity of controlled substances sold, administered, or dispensed....

    (b) Each person shall maintain a record which shall contain a detailed list of controlled substances lost, destroyed, or stolen, if any; the kind and quantity of such controlled substances; and the date of the dis- covering of such loss, destruction, or theft.

    
    

14. Respondent Bowers did not explain why during a period of nine (9) months some 17,628 tablets of the narcotic Percocet-5 were lost, destroyed or stolen. Respondent knew or should have known of such loss, destruction or theft, and should have maintained a record which contained a detailed list of

controlled substances lost, destroyed, or stolen, if any; the kind and quality of such controlled substances; and the date of the discovering of such loss, destruction, or theft" as required by the foregoing statute. The audit showed that there were more than 22,000 tablets of Schedule II controlled substances not accounted for in the pharmacy managed by Respondent Bowers.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the license of the Respondent, Roger Allen Bowers, be revoked.

DONE and ORDERED this 12th day of October, 1979, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

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

William J. Sheppard, Esquire

215 Washington Street Jacksonville, Florida 32202

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Docket for Case No: 79-000682

Orders for Case No: 79-000682