STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1628

) AMERICAN APOTHECARIES, INC., )

d/b/a SCOTTIE DRUG STORE and ) HOWARD STAATS, permittee, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on October 7, 1982, in Room 409, Richard P. Daniel Building, Jacksonville, Florida. The matter was considered on the basis of agreement of facts and law between counsel for the parties and their request that the matter be considered as a formal Subsection 120.57(1), Florida Statutes, hearing. This treatment of the action was allowed in view of the fact that the case had been referred to the Division of Administrative Hearings in a posture in which facts were then in dispute. Subsequent to that time, and in particular, at the point of final hearing, counsel reached accommodation on the question of disputed facts and law, leaving the matter to be considered for purposes of recommended disposition in this case. This Recommended Order is being entered following receipt and review of the transcript which was filed with the Division of Administrative Hearings on November 1, 1982. 1/

APPEARANCES

For Petitioner: Michael Schwartz, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Charles T. Boyd, Esquire

231 East Adams Street Jacksonville, Florida 32202

ISSUES

The issues to be determined here concern disciplinary action to be taken against Respondent for those administrative offenses pertaining to the controlled substances Talwin, Dilaudid and Paregoric dispensed by Scottie Drug Store in Duval County, Florida, during the period April 2, 1981, to March 23, 1982, in violation of various provisions of Chapter 465, Florida Statutes.

These contentions made by the State of Florida, Department of Professional

Regulation, are more particularly described in the Administrative Complaint, DPR Case No. 0022147.

FINDINGS OF FACT

1. Howard E. Staats is a pharmacist who has been issued a license by the State of Florida, Department of Professional Regulation, Board of Pharmacy. The license number is 0007704. At times relevant to this proceeding, Staats practiced pharmacy in Jacksonville, Florida. At all times pertinent to the Administrative Complaint, which is the focus of this action, Staats was the managing pharmacist at American Apothecaries, Inc., which does business as Scottie Drug Store at 41 Arlington Road South, Jacksonville, Florida.

   
   

2. A copy of Respondent's most recent license may be found as Petitioner's Exhibit No. 1, admitted into evidence. Petitioner's Exhibit No. 2, admitted into evidence, is a copy of the permit for American Apothecaries.

   
   

3. Sometime within the period March 23, 1982, through March 29, 1982, an audit was conducted at the Scottie Drug Store. The audit revealed that in the period April 2, 1981, through March 23, 1982, the drug store had purchased 66,900 tablets of Talwin, 50 mg., had sold 29,373 tablets of that drug, had lost by robbery or theft, 1,000 tablets of the drug, leaving 36,527 tablets of Talwin unaccounted for. During that same audit period, the pharmacy purchased 4,000 tablets of Dilaudid, 4 mg., selling 3,025 tablets of that drug, losing by robbery or theft, 200 tablets of the drug and failing to account for 775 tablets of the drug. Finally, during the audit period, 2,064 ounces of Paregoric had been purchased and 699 ounces sold, with the remaining amount of 1,285 ounces being unaccounted for. See Petitioner's Exhibit No. 4.

   
   

4. Talwin is a Schedule IV controlled substance within the meaning of Chapter 893, Florida Statutes. Dilaudid is a Schedule II controlled substance within the meaning of Chapter 893, Florida Statutes. Paregoric is a Schedule III controlled substance within the meaning of Chapter 893, Florida Statutes.

   
   

5. The audit which was conducted at the Scottie Drug Store revealed numerous prescriptions for the controlled substance Talwin, 50 mg., written on prescription blanks of Drs. W. W. Shell, Jr., and L. T. McCarthy, Jr., which had allegedly been signed by those physicians, when in fact the patients for whom the prescriptions were written were unknown to the physicians and the signatures of the physicians were forgeries. Those prescriptions are depicted in Petitioner's Exhibit No. 5, admitted into evidence.

   
   

6. During the period covered by the audit, it was shown that Staats filled a number of prescriptions for various patients for the controlled substance Talwin, which had been written on prescription pads of Methodist Hospital and Baptist Medical Center in Jacksonville, Florida, and signed by individuals who are not physicians having hospital privileges at those medical centers nor practicing as physicians in the Duval County area. Copies of those prescriptions may be found as Petitioner's Exhibit No. 6, admitted into evidence.

   
   

7. In the course of the time sequence related to the audit review process, it was discovered that Staats had refilled numerous prescriptions for controlled substances on more occasions than had been authorized by physicians, namely prescription No. 51632 was refilled twice although the physician indicated there were to be no refills; prescription No. 51579 was refilled once although the prescription indicated there should be no refills; prescription No. 51639 was

   refilled twice although the prescription indicated there should be no refills; prescription No. 51217 was refilled once although the prescription indicated there should be no refills; prescription No. 51238 was refilled once although the prescription indicated that there should be no refills; prescription No.

   53010 was refilled once although the prescription indicated that there should be no refills; prescription No. 53597 was refilled four (4) times although the prescription indicated that it should only be refilled once; prescription No.

   53537 was refilled once although the prescription indicated that it should not be refilled; and prescription No. 53592 was refilled twice although the prescription indicated that there should be no refills. Petitioner's Exhibit No. 7, admitted into evidence, is copies of prescriptions spoken to in this paragraph.

   
   

8. Respondent Staats had operated the Scottie store under a lease arrangement during 1979 and 1980, and in January of 1981, took a position as an active pharmacist in that store.

   
   

9. After becoming the principal operating pharmacist in the Scottie store, Staats began to receive prescriptions from doctors Shell and McCarthy for the substance Talwin and when a prescription purportedly written by those physicians was in question, Staats would call the office of the physicians for confirmation, which at times would be given over the phone and at other times an indication was made that a call back from the physician's office to Staats would be necessary.

   
   

10. Some of the indications of physicians' prescription authority of the substances in question would be placed on a separate log and not on the back of the prescription and on other occasions, the note of the prescription information would be placed on the back of the prescription form and not in the log. Normally, this information would be reflected both in the log and on the back of the prescription. There were occasional circumstances in which the authority was not stated in either place.

    
    

11. At approximately the same time as was covered by the audit, Staats began to ask for identification from customers who were seeking prescriptions for Talwin and noted that the demand for that substance declined with the advent of the request for identification. Staats posted a notice in the window of the pharmacy to the effect that state law imposed a fine of $5,000.00 or might cause incarceration for five (5) years for presenting forged prescriptions or conspiring or agreeing with another to have a forged prescription filled. On two (2) occasions Staats called law enforcement officials on a circumstance involving suspect prescriptions and those persons were apprehended.

    
    

12. (Poor record keeping and mistakes in estimating the amount of losses due to a robbery and a larceny which occurred in the period covered by the audit contributed to the unaccounted for controlled substances, but those matters of record keeping and theft reports would cause only a slight differential in the disparity, as opposed to explaining the whereabouts of a substantial portion of the missing controlled substances.)

    
    

13. Beginning on March 25, 1982, Staats began to keep a daily inventory log on the substance Talwin and a number of other controlled substances. A copy of that log may be found as Respondent's Exhibit No. 9, admitted into evidence. In addition, certain out-of-date and otherwise undesirable controlled substances, Schedules II, III and IV, have been removed from inventory and turned over to appropriate authorities for destruction.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Section 120.57, Florida Statutes.

    
    

15. Respondent American Apothecaries, Inc., is accused of violating Subsections 893.07(1), (2), and (3), Florida Statutes, related to the missing 36,527 tablets of Talwin, 50 mg.; 775 tablets of Dilaudid, 4 mg.; and 1,285 ounces of Paregoric, which are Schedule IV, Schedule II and Schedule III, controlled substances, respectively, within the meaning Chapter 893, Florida Statutes, and in turn, of violating Subsection 465.023(1)(c), Florida Statutes. Respondent acknowledges and the facts in this case reveal that the Respondent, through its managing pharmacist, has failed to comply with Subsections 893.07(1), (2), and (3), Florida Statutes, and for that violation has also violated Subsection 465.023(1)(c), Florida Statutes, and is subject to the penalties set forth in Subsection 465.023(1), Florida Statutes.

    
    

16. As alleged, prescriptions have been honored by Howard Staats for the controlled substance Talwin, 50 mg., on prescription blanks from doctors Shell and McCarthy, patients unknown to those physicians and upon forged signatures of the physicians. By its positions Respondent has acknowledged and it is concluded that those matters constitute a violation of Subsections 893.04(1) and 893.13(2)(a)1., Florida Statutes, and are also in violation of Subsections 465.015(2)(c) and 465.023(1)(c), Florida Statutes. These violations subject Respondent to the penalties set forth in Subsection 465.023(1), Florida Statutes.

    
    

17. As alleged, the facts in this case reveal that Respondent, through its pharmacist, filled a number of prescriptions for patients for the controlled substance Talwin written on prescription pads of Methodist Hospital and Baptist Medical Center, and signed by individuals who were not physicians having hospital privileges in those medical centers and who were not practicing physicians in the Duval County, Florida, area. By its position, Respondent has acknowledged that those matters constitute a violation of Subsections 893.04(1) and 893.13(2)(a)1., Florida Statutes, and are also in violation of Subsections 465.015(2)(c) and 465.023(1)(c), Florida Statutes, and it is concluded that those provisions have been violated. These violations subject Respondent to the penalties set forth in Subsection 465.023 (1), Florida Statutes.

    
    

18. As alleged, the facts in this case reveal that Howard Staats refilled numerous prescriptions for controlled substances more times than were authorized by a physician. By its position in this case, Respondent acknowledges that these matters violate Subsections 893.04(1) and 893.13(2)(a)1., Florida Statutes, and Subsections 465.015(2)(c) and 465.023(1)(c), Florida Statutes, and it is concluded that those provisions have been violated. These violations subject Respondent to the penalties set forth in Subsection 465.023 (1), Florida Statutes.

    
    

19. In the way of aggravation and mitigation, there is no indication of previous disciplinary action having been taken against Respondent. During the course of the period which is covered by the audit, Howard Staats, managing pharmacist, had encountered problems with his business affairs and with the health of family members which distracted him and contributed to the problems described in the Administrative Complaint. Nothing in the facts presented indicates that Staats was pursuing a deliberate course of dispensing drugs illegally. Finally, evidence was presented to the effect that Staats is well

received by his peers in the pharmacy profession and has been an active participant in professional associations, with emphasis on addressing the abuse of controlled substances. It is, therefore,

RECOMMENDED:

That a final order be entered which revokes the permit of American Apothecaries, Inc., d/b/a Scottie Drug Store and Howard Staats, permittee.

DONE and ENTERED this 17th day of November, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1982.

ENDNOTE

1/ Petitioner, through counsel, has submitted a closing memorandum an it has been reviewed prior to the entry of this Recommended Order. To the extent that that memorandum is consistent with the Recommended order, it has been utilized. To the extent that the memorandum is inconsistent, it is rejected.

COPIES FURNISHED:

Michael Schwartz, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Charles T. Boyd, Esquire

231 East Adams Street Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wanda Willis, Executive Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001628

Orders for Case No: 82-001628