STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-1634

) DPR CASE NO. 0037890

CHARLES McARTHUR, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was given and a hearing was held before Charles C. Adams, Hearing Officer, with the Division of Administrative Hearings. The date of the hearing was July 13, 1984, and the location of the hearing was Tallahassee, Florida.

This recommended order is being entered following the receipt and review of the transcript of proceedings and upon consideration of the proposed recommended orders of the parties. To the extent that those proposals are consistent with the recommended order they have been utilized. To the extent that the proposals did not correspond to the recommended order, they are rejected as being contrary to facts found, irrelevant or immaterial.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: William L. Grossenbacher, Esquire

HORNE, RHODES & JAFFRY

Post Office Box 1140 Tallahassee, Florida 32302

ISSUES

The issues are those promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation, against the Respondent, Charles McArthur. In particular, it is alleged that the Respondent practiced pharmacy in the state of Florida with an expired license, in violation of Subsection 465.015(2)(b), Florida Statutes (1981).

FINDINGS OF FACT

1. Respondent, Charles McArthur, is a pharmacist licensed by the State of Florida. His license number is 0012091.

2. On June 20, 1983, Respondent attempted to renew his pharmacy license issued by the state of Florida on a bi-annual basis. He attempted this renewal by appearing in person before officials with the State of Florida, Board of Pharmacy, entitled to grant renewal. That renewal was denied based upon the fact that the Respondent was unable to provide verification of the requisite continuing education credits necessary for relicensure. As a consequence, on June 21, 1983 Respondent's active pharmacy license expired, leaving the Respondent with an inactive pharmacy license.

   
   

3. For the period June 21, 1983 through July 20, 1983 Respondent practiced pharmacy with an inactive license. During that time frame, Thomas Hannah, an investigator with the State of Florida, Department of Professional Regulation, visited the Respondent in the pharmacy in which Respondent was practicing in Tallahassee, Florida. He observed the Respondent practice pharmacy and noted the presence of the expired active Florida pharmacy license. On that occasion, Hannah told the Respondent that he was operating without a current license. On the following day, July 20, 1953, Respondent paid the appropriate fees and made proof of the requisite continuing education credits and his active pharmacy license was re-issued. Subsequent to that date Respondent has held an active pharmacy license issued by the State of Florida.

   
   

4. In view of the Respondent's practice of pharmacy with an inactive license from the period of June 21, 1983 through July 20, 1983, Respondent was charged with the present offense and requested, and was granted, a formal Subsection 120.57(1), Florida Statutes, hearing.

   
   

5. In dealing with other recalcitrant licensees who have not renewed their licenses in the time allotted, the Board of Pharmacy, prior to February, 1980 sent a list to Board inspectors within one or two weeks following the due date of renewal and those inspectors contacted the licensees to ascertain whether the licensees had renewed their pharmacy licenses. If they found that the individual pharmacist did not renew his license that person was given an opportunity to fill out an application, to pay the fee, and to present his continuing education credits to the investigator. Persons who were not entitled to renew due to problems with the continuing education credits were told that they were delinquent, and practicing with a delinquent license was a violation of law. Those persons were given the opportunity to take leave of absence from their active pharmacy practice. Around February, 1980 due to the re- organization of the State of Florida, Department of Professional Regulation, insufficient work force was available to carry out this process of checking on the topic of the delinquent license renewals, and this sequence of inactivity continued until approximately December, 1981. During this period actions were not brought against pharmacists for failure to timely renew a license to practice pharmacy, within the meaning of Section 465.015(2)(b), Florida Statutes, provided they renewed licenses within one year of the appropriate renewal date. In December, 1981 the practice changed and the pharmacists would be prosecuted for failure to timely renew a license to practice pharmacy and continuing to practice with an expired license. This change in policy position which occurred in December, 1981 was not shown in the course of the hearing to be a matter noticed for the benefit of the practicing pharmacists in the State of Florida.

   
   

   CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with the provisions of Subsection 120.57(1), Florida Statutes and Chapters 455 and 465, Florida Statutes.

   
   

7. Respondent moved to dismiss this action and oral argument was considered on that motion at the commencement of the final hearing in this cause. The motion was denied as reflected in the transcript of proceedings. The question of the ability of the Hearing Officer to recommend a penalty for any violation established was left unresolved pending the entry of the recommended order. That issue shall be addressed in a subsequent paragraph to the conclusions of law.

   
   

8. Subsection 465.016(1)(e), Florida Statutes, allows for disciplinary action to be taken should a Respondent violate other provisions of Chapter 465, Florida Statutes. Subsection 465.015(2)(b), Florida Statutes (1981), still in effect at the time of hearing, makes it unlawful for a person, such as a pharmacist, to practice pharmacy without the benefit of an active pharmacy license. Between June 21, 1983 and July 20, 1983 Respondent practiced pharmacy without the benefit of an active pharmacy license in violation of this provision. As a consequence, he is subject to the disciplinary provisions of Section 465.016, Florida Statutes, for acting contrary to Subsection 465.015(1)(e), Florida Statutes.

   
   

9. Effective June 20, 1983 Respondent was aware that his attempted license renewal had been rejected and is presumed to know that the law would not allow for him to continue to operate as a pharmacist with an inactive license, which he held effective June 21, 1983 pursuant to Subsection 465.008(3), Florida Statutes, which prescribes that the failure to renew by the end of the biennium period of licensure, which expired on June 20, 1983 shall cause the automatic reversion of an active license to an inactive license status. Respondent was again reminded on July 19, 1983 by an investigator with the State of Florida, Department of Professional Regulation that he was operating on an inactive license, which is not authorized. Therefore, any claims by the Respondent related to estoppel against the state of Florida because of the hiatus in the enforcement of the provisions of Subsection 465.015(2)(b), Florida Statutes, between February 1980 and December 1981 is rejected. Respondent knew that they would not accept his attempt at renewal and the consequence of non-renewal. The reception given him on the question of an attempt to renew heralded a different response in policy choice than was the case in the period February 1980 through December 1981.

   
   

10. Respondent argues that notwithstanding the violation of law the Board may not impose a penalty or in the alternative any penalty imposed must be the least severe, for reason that the Board has failed to comply with the provisions of Section 465.016(4), Florida Statutes, which states:

    
    

    The Board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations. Such guidelines may include minimum and maximum fines, periods of supervision or probation, or conditions of probation or reissuance of a license.

    
    

11. As stated in the course of the hearing, the Board has failed to enact such rules. Rule 21S-9.03, Florida Administrative Code, identifies the

    procedural requirements for disposition of disciplinary cases in the general sense of recognizing that the Board must follow the procedures set forth in Chapter 120, Florida Statutes, and Chapter 28, Florida Administrative Code. It does not establish guidelines for specific types of violations, in terms of the treatment of those specific violations, in any sense, to include minimum and maximum fines, periods of supervision or probation, or conditions of probation or reissuance of a license.

    
    

12. Nonetheless, the failure to enact specific guidelines by rule does not prohibit the imposition of the penalty. It places the Board in the position of having to explicate its choice of penalty for a specific type of violation, as opposed to turning to those guidelines in arriving at a choice of penalty. This is in keeping with the rationale expressed in Katz v. Medical Examiners, 405 So. 2d 465 (Fla. 1st DCA 1981). In that instance, the failure to enact specific rules related to guidelines for reinstatement of medical doctors did not lead to the automatic reinstatement of the physician. The mandate for the enactment of such guidelines related to issuance of a license were deemed to be directory and not mandatory. In the same way, the guidelines related to the Board of Pharmacy as discussed herein are directory and not mandatory. In Katz, and in this instance, the absence of specific guidelines would require an agency to set out its policy reasons supporting the underlying decision to reinstate or, on this occasion, to impose a penalty.

    
    

13. The policy choice for imposition of the penalty here is inherent, in that Respondent was not allowed to renew his license in view of the failure to verify sufficient credits for continuing education. When he did present those credentials the license renewal was achieved. Therefore, it is the idea of acting as a pharmacist in a circumstance in which proof of continuing education has not been demonstrated and no active license is being utilized, that allows the imposition of the penalty. That circumstance warrants a 30 day suspension in keeping with Subsection 465.016(2), Florida Statutes.

It is, therefore, RECOMMENDED:

That a final order be entered finding the Respondent in violation of Subsection 465.015(2)(b), Florida Statutes (1981), and imposing a 30 day suspension.

DONE and ENTERED this 13th day of September, 1984 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 13th day of September, 1984.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

William L. Grossenbacher, Esquire HORNE, RHODES & JAFFRY

Post Office Box 1140 Tallahassee, Florida 32302

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wanda Willis Executive Director

Department of Professional Regulation Board of Pharmacy

130 North Monroe Street Tallahassee, Florida 32301

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PHARMACY

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY,

Petitioner,

vs. CASE NO. 0037890

DOAH NO. 84-1634

CHARLES MCARTHUR, LICENSE NO. 12O91

Respondent.

/

FINAL ORDER

The Florida Board of Pharmacy of the Department of Professional Regulation after determining that no Exceptions as to the Findings of Fact or Conclusions of Law have been filed with respect to the Recommended Order entered in this case by Charles C. Adams, Hearing Officer, Division of Administrative Hearings, on July 13, 1984 in Tallahassee, Florida, and after reviewing the complete record accompanying the Recommended Order, and being otherwise fully advised in

the premises, hereby adopts the Findings of Fact and Conclusions of Law. Further, Respondent's Exceptions to the recommended penalty are hereby accepted by the Board of Pharmacy and insofar as the Hearing Officer's recommended penalty is determined to be overly harsh in view of the fact that the Board's general penalty in similar cases is to levy a fine upon such a violation as set forth herein. Wherefore, Respondent is hereby fined $100.00. Said fine is to be due and owing 30 days from the issuance of this order.

DONE AND ORDERED this 5th day of February, 1985, by the Florida Board of Pharmacy.

C. Roof Presnell, Executive Director Florida Board of Pharmacy

Copies Furnished to:

Bruce D. Lamb Willian Grossenbacher Charles McArthur

Docket for Case No: 84-001634

Orders for Case No: 84-001634