STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3090

)

THOMAS LIETCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on March 8, 1984 at Tampa, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Britt Whitaker, Esquire

620 East Madison Street Tampa, Florida 33602

By Administrative Complaint filed August 18, 1983, as amended, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Thomas Lietch as a pharmacist. As grounds thereof or it is alleged Lietch was found guilty of a crime directly relating to the practice of pharmacy or to the ability to practice pharmacy.

At the commencement of the hearing Respondent's Motion to Dismiss was denied. The parties stipulated that Respondent is licensed as a pharmacist as alleged and that he was the defendent in case no. CRC8200CFANOC in the Circuit Court of Pinellas County, Florida. Thereafter Petitioner called two witnesses, Respondent called three witnesses and one exhibit was admitted into evidence.

There was no dispute as to the material facts in this case.

Proposed findings submitted by the parties which are included herein are adopted; otherwise they are rejected as not supported by the evidence or immaterial or unnecessary to the results reached.

FINDINGS OF FACT

1. Thomas Lietch, Respondent, is a licensed pharmacist, having been issued license number 0007613 and was so licensed at all times material hereto.

2. On April 11, 1983, Respondent pleaded guilty in the Circuit Court in and for Pinellas County of the offenses of possession of Dextropropoxyphene and possession of a controlled substance outside its proper container. Adjudication of guilt was withheld by the court and Respondent was placed on five years probation.

   
   

3. Following the arrest of Respondent on or about January 21, 1983 and before his trial, Petitioner investigated the incident in which Respondent had been arrested for having two Darvon tablets in his pants pocket outside the container in which they were or should have been dispensed. When questioned by the investigator regarding the origin of the Darvon Respondent replied one time that he obtained them on prescription from his doctor and on another occasion replied that he may have obtained them from the pharmacy where he works. The doctor who Lietch stated had prescribed the Darvon was contacted and reported that he may have prescribed Darvon for Respondent when he treated Respondent some time ago; but, if he did, the prescription was written no later than September 1979, more than two years before Respondent's arrest. When this evidence was presented to the Board of Pharmacy the board failed to find probable cause that the Florida Pharmacy Act, Chapter 465, Florida Statutes, was violated.

   
   

4. Following Respondent's trial in the Circuit Court the offense here alleged was charged.

   
   

5. Respondent presented three witnesses, one of whom owns the pharmacy where Respondent has worked for more than one year. He has had no problem with Respondent's work and considers him a good employee and a competent pharmacist. Another witness is a licensed pharmacist in Florida who opined that possession of two Darvon tablets out of the container in which they were dispensed does not affect the person's ability to practice pharmacy; however if a pharmacist had unauthorized possession of a controlled substance outside the pharmacy that would constitute a violation of the Pharmacy Act. Respondent's third witness was his probation officer who testified that Respondent has fully complied with the terms of his probation and has exceeded the number of hours of community work required by the conditions of probation.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Section 465.016(1), Florida Statutes, provides in part, the following facts shall be grounds for disciplinary actions:

   
   

   (f) Having been convicted or found guilty, regardless of adjudication in a court of this state or another juris-

   diction of a crime which directly relates to the ability to practice pharmacy or to the practice of pharmacy. A plea of nolo contendere shall constitute a conviction for purposes of this provision.

   
   

8. Section 465.016(2), Florida Statutes, provides that when the Board finds a person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing revocation or suspension of license, impose an administrative fine, issue a reprimand, or place the pharmacist on probation.

9. A plea of guilty is a confession of guilt of the highest order. 9 Fla. Jur Crim Law section 358. A plea of guilty voluntarily and intelligently given, more than admissions of past conduct, involves defendent's consent that judgment of conviction may be entered without trial and therefore amounts to a waiver of defendent's right to a trial before a jury or a judge. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed. 2d 747(1970). See also Bruner v. Fla. Board of Real Estate, 399 So.2d 4 (Fla. 5th DCA 1981) which held a plea of guilty to grand theft is sufficient to "deem" one to have "been guilty".

   
   

10. Respondent's plea of guilty is adequate to sustain a finding that Respondent has been found guilty regardless of the withholding of adjudication, of unauthorized possession of a controlled substance. Unauthorized possession of a controlled substance by a pharmacist is an offense related to the practice of pharmacy, although under the evidence here presented does not affect Respondent's ability to practice pharmacy.

    
    

11. From the foregoing it is concluded that Respondent has been found guilty in the courts of this state of a crime which relates directly to the practice of pharmacy. Considering the evidence of Respondent's otherwise responsible behavior and the testimony of his employer and parole officer, it is

RECOMMENDED that Thomas Lietch be placed on probation for a period of four years to run concurrently with his court supervised probation and subject to such additional conditions as the board may deem appropriate.

ENTERED this 11th day of April, 1984, in Tallahassee, Florida.

K. N. AYERS, 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

11th day of April, 1984.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Britt Whitaker, Esquire 620 East Madison Street Tampa, Florida 33602

Wanda Willis, Executive Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY,

Petitioner,

vs. CASE NO. 0035978

DOAH NO. 83-3090

THOMAS LEITCH,

Respondent.

/

License No. 7613

FINAL ORDER

THIS CAUSE came on to be heard by the Florida Board of Pharmacy of the Department of Professional Regulation at a regularly scheduled meeting held on July 16, 1984, in Key West, Florida.

Appearance for Petitioner: Bruce D. Lamb

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Appearance for Respondent: Britt Whitaker, Esquire

620 East Madison Street Tampa, Florida 33602

After reviewing the entire record the Florida Board of Pharmacy ACCEPTS the Findings of Fact and Conclusions of Law in the Recommended Order of Hearing Officer, K. N. Ayers, dated April 11, 1984. The Board further agrees to the

exceptions filed by Petitioner in this cause and requires in addition to the recommended penalty of the Hearing Officer that a fine of $1,000.00 (one thousand dollars) be imposed upon Respondent. Said fine due and owing within 30 (thirty) days of the issuance of this Order and should be mailed to C. Rod Presnell, Board of Pharmacy, Post Office Box 6614, Tallahassee, Florida 32314.

The rationale for the increased fine is based upon the severity of the criminal charge especially in light of the fact that Respondent is a licensed pharmacist in this state and should never possess controlled substances outside of the container prescribed for said substances. This Order shall take effect upon filing with the Office of the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 17th day of August, 1984.

C. ROD PRESNELL, Executive Director Florida Board of Pharmacy

Copies furnished to:

Bruce D. Lamb, Esq.

Britt Whitaker, Esq.

Docket for Case No: 83-003090

Orders for Case No: 83-003090