STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-554

) (DPR NO. 79-MS-L-17)

MICHAEL HORNSTEIN, )

)

Respondent. )

) STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-555

) (DPR NO. 79-MS-P-11)

)

ROLETTE DRUGS, INC., d/b/a )

CURTISS PHARMACY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in these cases on June 11, 1980, in Miami, Florida. A transcript of the proceedings was received by the Division of Administrative Hearings on June 24, 1980.

APPEARANCES

For Petitioner: Michael I. Schwartz, Esquire

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

For Respondents: Arthur W. Tifford, Esquire

1531 Northwest 15th Street Road Miami, Florida 33125

ISSUES

The issues posed for decision herein are whether or not the Respondent, Michael Hornstein, registered pharmacist, individually and as owner/operator of Rolette Drugs, Inc., d/b/a Curtiss Pharmacy, has engaged in conduct which will

be set forth hereinafter in detail which warrants disciplinary action by the Board of Pharmacy. 1/

FINDINGS OF FACT

1. Based upon my observation of the witness and his demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found.

   
   

2. Michael Hornstein is a registered pharmacist and is the owner/operator (licensee) of Rolette Drugs, Inc., d/b/a Curtiss Pharmacy. Pursuant to a Complaint and Notice to Show Cause filed December 20, 1979, 2/ against Respondent, individually and as owner/operator of Curtiss Pharmacy, the subject administrative hearing was convened to consider allegations that the Respondent, as alleged in the Complaint and Notice to Show Cause, permitted the keeping of improper records, in that he failed to maintain current and accurate records of scheduled controlled substances during the period January 1 through November 30.

   
   

3. Pursuant to information furnished by the Drug Enforcement Administration (DEA) in Miami, Florida, a drug accountability audit was performed at Curtiss Pharmacy covering the period January 1 through November 30. The subject audit covered the controlled drugs, Quaalude, Dilaudid, Biphetamine, Tuinal and Desoxyn.

   
   

4. Vernon K. Bell, the investigative supervisor for Region V investigative services (Miami, Florida), conducted the drug accountability audit of Curtiss Pharmacy by conducting an on-site review and reconciliation of Respondent's scheduled drug purchases and prescription files respecting the subject drugs. Investigator Bell started the audit period with a beginning inventory for the subject drugs of zero, making no allowances for drugs the Respondent had on hand on January 1. Investigator Bell also allowed Respondent a credit for those scheduled drugs claimed to have been lost due to thefts and robberies.

   
   

5. Respondent introduced records which revealed that as a result of robberies of the pharmacy on February 5 and September 26, approximately two hundred (200) Biphetamine capsules and three hundred (300) Quaalude tablets were taken. Examination of the drug accountability report reveals that during the audit period, from total purchases of approximately ten thousand six hundred (10,600) Quaalude 300 mg tablets, Respondent was short approximately eight thousand six hundred nine (8,609) tablets when the drug report was completed for the audit period on December 7 by Investigator Bell. For the scheduled drug, Dilaudid four mg tablets, of total purchases of one thousand four hundred (1,400) tablets, Respondent was short one thousand two hundred eighty (1,280) tablets as of the audit period ending November 30. Biphetamine 20 mg capsules were short approximately one thousand six hundred fourteen (1,614) tablets from total purchases of two thousand three hundred (2,300) tablets during the audit period. Allowing for adjustments, there is still an outstanding shortage of approximately one thousand three hundred fourteen (1,314) Biphetamine capsules. Of total purchases of two thousand (2,000) Tuinal three gram capsules, Respondent's records revealed a shortage of approximately one thousand eight hundred sixty-four (1,864) capsules. Finally, of seven hundred (700) Desoxyn 15 mg tablets, Respondent's records reflect a shortage of six hundred forty (640) tablets. (Petitioner's Exhibit 1 and testimony of Vernon K. Bell.) 3/

   RESPONDENT'S DEFENSE

   
   

6. Respondent introduced exhibits which substantiated that Respondent's pharmacy was robbed on at least two occasions and police incident reports were completed, as well as DEA controlled drug loss forms to substantiate Respondent's claimed loss for the subject drugs, Biphetamine and Quaalude. Allowances were made herein for the claimed losses. (Respondent's Composite Exhibits 1 through 5.) Thereafter, Respondent invoked the Fifth Amendment privilege based on the claimed pendency of other criminal litigation. Respondent also allowed that the instant administrative proceedings herein should have been abated based on the pending or imminent criminal proceedings involving the subject drug losses by DEA. Respondent requested leave to

   supplement the record at such time as immunity is granted or jeopardy is removed when the related criminal proceedings have been terminated. This request was considered and denied based on the undersigned's conclusion that the Petitioner is authorized and is in fact duty bound to proceed as the regulating agency charged with protecting the public. See Schwartz v. Florida Board of Pharmacy, 302 So.2d 423 (1DCA 1974), cert. denied, 314 So.2d 151 (,Fla. 1975). Finally, Respondent questioned the accuracy of the audit based on the adjustments made when the police incident and DEA 106 forms were presented. Respondent also claimed that there was a possibility that there should be an additional downward adjustment of approximately nine hundred (900) Quaalude tablets. 4/

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

9. The authority of the Petitioner is derived from Chapters 465 and 893, Florida Statutes.

Based on the foregoing Findings of Fact, competent and substantial evidence was offered to establish that the Respondent, Michael Hornstein, individually and as the owner/operator of Rolette Drugs, Inc., d/b/a Curtiss Pharmacy, permittee, failed to maintain on a current basis a complete and accurate record of the controlled substances received by him during the audit period, January 1 through November 30, as alleged by the Complaints and Notices to Show Cause filed herein on December 20, 1979. As such, he engaged in conduct in violation of Chapter 893.07(1)(b), Florida Statutes. Based thereon, the Respondent has thus engaged in conduct violative of Chapter 465.023(1)(c), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's license to practice pharmacy and permit to operate a pharmacy in this State be SUSPENDED FOR A PERIOD OF TWO (2) YEARS.

RECOMMENDED this 16th day of July, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

ENDNOTES

1/ The cases were consolidated for hearing on May 30, 1980, due to the similarity of the parties, facts and issues. Rule 28-5.07, Florida Administrative Code.

2/ Unless otherwise noted, all dates are in 1979.

3/ Petitioner, through its witness, Investigator Bell, advised that Respondent's drug purchases were audited based on the Federal 222 Form, which is used by pharmacists to purchase scheduled drugs. All purchase forms were presented with the exception of one order of Dilaudid and Quaalude tablets in tide amount of approximately two hundred (200) Quaalude tablets. The missing invoice was dated November 14, with the Form 222 Serial No. J 2250581. Petitioner's counsel was granted leave to supplement the record to present the missing invoice. For purposes herein, the purchase of the subject drugs was adjusted accordingly. (Petitioner's Composite Exhibits 2, 3 and 4.)

4/ Assuming arguendo that Respondent is successful in tendering documentation which would substantiate a downward adjustment of the Quaalude tablet shortage for the full amount represented by counsel, the fact remains that there would still be several thousand Quaalude tablets unaccounted for.

COPIES FURNISHED:

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

Arthur W. Tifford, Esquire

1531 Northwest 15th Street Road Miami, Florida 33125

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 80-000554

Orders for Case No: 80-000554