Judges: LINDA M. RIGOT
Agency: Department of Health
Latest Update: May 17, 1983
Summary: Dismissal of administrative complaint where pharmacist failed to verify one prescription which appeared valid on its face and for appropriate amount.
82-2104STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2104
) HOTEL PHARMACY and HARRY CARTUN, )
)
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2169
)
HARRY CARTUN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 21, 1982, in Miami, Florida.
APPEARANCES
For Petitioner: W. Douglas Moody, Jr., Esquire
119 North Monroe Street Tallahassee, Florida 32301
For Respondent: Vincent J. Flynn, Esquire
1414 Coral Way
Miami, Florida 33145
Petitioner filed Administrative Complaints seeking to suspend, revoke or take other disciplinary action against Respondents, and Respondents timely requested a formal hearing on the allegations contained within those Administrative Complaints. Accordingly, the issues for determination are whether Respondents are guilty of the charges contained in those Administrative Complaints and, if so, what disciplinary action should be taken, if any. By order entered August 20, 1982, these cases were consolidated for hearing.
Petitioner presented the testimony of John P. McDonough, Dr. Sol Colsky and Dr. Gustavo L. Arias. Additionally, Petitioner's Exhibits numbered 1, 2 and 4 were admitted in evidence.
Both parties have submitted post-hearing findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
At all times material hereto, Respondent Hotel Pharmacy was a pharmacy permit holder having been issued permit number 0006529.
At all times material hereto, Respondent Harry Cartun was a licensed pharmacist. having been issued license number 0011093.
At all times material hereto, Respondent Harry Cartun was the owner and manager of Respondent Hotel Pharmacy, located at 1201 Lincoln Road, Miami Beach, Florida.
Pursuant to a search of Respondent Hotel Pharmacy's Schedule II files, Petitioner seized the following prescriptions written for a patient named Edward Metzer, which prescriptions were filled by Respondents:
DATE PRESCRIBED BY MEDICATION
March 17, 1982 Elliot Trevian, M. D. Dilaudid, 4 mgs. No .36
March 25, 1982 Sol Colsky, M. D. Dilaudid, 4 mgs. No .40
March 31, 1982 Gustavo L. Arias, M. D. Dilaudid, 4 mgs. No .40
April 05, 1982 Gustavo L. Arias, M. D. Dilaudid, 4 mgs. No .40
None of the foregoing prescriptions were written by the physicians whose names appear on the prescription. No medical doctor named Elliot Trevian has ever been licensed in the State of Florida.
The two prescriptions bearing Dr. Arias' name indicate that he is a psychiatrist--Children and Adolescents.
Neither Respondent Harry Cartun nor Respondent Hotel Pharmacy verified the validity of any of the foregoing prescriptions.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes (1981).
At the conclusion of Petitioner's evidence, Respondents moved to dismiss Count I in each of the Administrative Complaints filed herein for failure to establish a prima facie case, and Petitioner agreed that it had not presented evidence as to Count I. Accordingly, Count I in each of the Administrative Complaints be and the same is hereby dismissed with prejudice.
Count II of each of the Administrative Complaints herein alleges, essentially, that Respondents dispensed, or permitted the dispensing of, 276 Dilaudid 4 mgs. tablets to Edward Halzer, a/k/a Edward Metzer, between the dates of February 17, 1982, and March 17, 1982; that Respondents knew or should have known that the prescriptions were fraudulent or forged; and that the Respondents failed to verify the prescriptions before filling them, which actions make
Respondents guilty of dispensing a controlled substance other than in the course of the professional practice of pharmacy, in violation of Sections 465.016(1)(e), 465.016(1)(i) and 465.023(1)(c), Florida Statutes. Petitioner has failed to meet its burden of proving Respondents guilty of the allegations alleged in the Administrative Complaints.
Three of the four prescriptions introduced into evidence bear a date outside the time period alleged in either Administrative Complaint. Accordingly, the only prescription pertinent to the charges alleged in the complaints is that allegedly written on March 17, 1982, by Dr. Elliot Trevian for 36 Dilaudid, 4 mgs. Although Petitioner proved that Dr. Trevian does not exist, Petitioner presented no evidence to show that either Respondent should have known there is no Dr. Trevian, that Edward Halzer is or was also known as Edward Metzer, that the prescription was forged or fraudulent, that the prescription was even suspicious, or that either a pharmacy or a pharmacist is under any moral or legal obligation to verify with the prescriber every prescription presented by anyone appearing at that pharmacy. Additionally, there is no evidence to indicate that a single prescription, appropriate on its face, for 36 Dilaudid would have put either Respondent on notice that the filling of that prescription would or could constitute dispensing a controlled substance other than in the professional practice of pharmacy.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents Hotel
Pharmacy and Harry Cartun not guilty of the allegations contained within the Administrative Complaints and dismissing the Administrative Complaints against them.
DONE and RECOMMENDED this 9th day of March, 1983, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT, 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 9th day of March, 1983.
COPIES FURNISHED:
W. Douglas Moody, Jr., Esquire
119 North Monroe Street Tallahassee, Florida 32301
Vincent J. Flynn, Esquire 1414 Coral Way
Miami, Florida 33145
Frederick Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Hinton F. Bevis, Executive Director
Board of Pharmacy Post Office Box 3355
Tallahassee, Florida 32302
Docket for Case No: 82-002104
Orders for Case No: 82-002104
| Issue Date |
Document |
Summary |
|
May 03, 1983 |
Agency Final Order
|
|
|
Mar. 09, 1983 |
Recommended Order
|
Dismissal of administrative complaint where pharmacist failed to verify one prescription which appeared valid on its face and for appropriate amount.
|
