STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-0375

)

DEBORAH S. BOWEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in Gainesville, Florida, on October 4, 1985, before Donald D. Conn, a duly designate. Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Deborah S. Bowen, pro se

1033 Northeast 8th Avenue Gainesville, Florida 32601

The Department of Professional Regulation, Petitioner, has issued an Administrative Complaint before the Board of Pharmacy charging Deborah S. Bowen, Respondent, with violating Sections 893.13( )(a)l. and 465.016(1)(e), Florida Statutes, by obtaining a controlled substance through misrepresentation, fraud, forgery, deception or subterfuge. At the hearing, Petitioner introduced three (3) exhibits and called Jacqueline McManus, J. Marc Simard, M.D., and Russell Blaser. Respondent introduced four (4) exhibits, testified on her own behalf and also called her husband, George W. Bowen. At the conclusion of its case in

chief Petitioner was allowed to amend, ore tenus, paragraph 3 of the Administrative Complaint to conform to proof and change the date June 21, 1984 to June 20, 1984. A transcript of the hearing was filed on October 17, 1985.

The parties were allowed to submit proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on proposed findings is included in an Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto Respondent has been licensed as a pharmacist having been issued license number 0015784. Respondent's license was previously suspended for a period of five (5) years by Final Order of the Florida Board of Pharmacy on June 15, 1984 in Case Number 0036893. In that prior case Respondent admitted to self medicating herself with controlled substances in violation of Section 465.016(1)(d)2, Florida Statutes. Respondent's license is therefore currently under suspension and has been suspended since June 15, 1984.

   
   

2. Respondent was hospitalized at Shands Teaching Hospital in June, 1984 by George W. Sypert, M.D., for back and chest pains resulting from an automobile accident in May, 1983. This was Respondent's second hospitalization for treatment resulting from the accident. While hospitalized Dr. Sypert performed surgery on Respondent who was also attended by J. Marc Simard, M.D., a resident at the time. It was Dr. Simard who prepared the discharge summary on Respondent on June 19, 1984 and also wrote a discharge prescription for 10 Percodan which were to be taken one every six hours for severe pain remaining from the surgery which Dr. Sypert had performed.

   
   

3. Both Respondent and her husband, George W. Bowen, were under the belief that Respondent would be "adequately medicated" for pain after her operation and upon her discharge. Mr. Bowen was formerly a licensed pharmacist in Florida, but his license has been revoked due to violations involving controlled substances. Mr. Bowen was extremely frustrated and concerned about the pain his wife was suffering and did not feel that 10 Percodan would be sufficient for her discharge. The Percodan prescription was given to Mr. Bowen who admitted during his testimony that he altered the prescription by adding a zero so that the prescription was then for 100 Percodan. Respondent never saw the prescription before or after it was altered, and her husband did not tell her what he had done. Mr. Bowen took

   this action out of concern for his wife and the pain she was suffering, and he did not take any of the Percodan himself. He had attempted to contact Dr. Sypert to request an increase in the prescription when he saw that Dr. Simard had written it for only 10 Percodan, but he was unsuccessful.

   
   

4. Mr. Bowen presented the altered prescription at Eckerd's Drugs on June 20, 1984 and Russell Blaser, a licensed pharmacist, filled the prescription with 100 Percodan, which was paid for by Mr. Bowen and given to Mr. Bowen. Respondent was with her husband when he filled the prescription, but was almost immobile, having just been discharged.

   
   

5. Blaser called Dr. Simard after he had filled the prescription to advise Dr. Simard that, due to Respondent's previous drug dependency, he felt that any further prescriptions should be for a lesser amount. It was at this time that Dr. Simard said the prescription he had written was for only 10 Percodan, not 100.

   
   

6. Respondent was arrested on or about June 22, 1984, for obtaining a controlled substance by fraud. Following the arrest she learned for the first time that her husband had altered the prescription, and she thereupon destroyed the remaining Percodan.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 465.016(1)(e), Florida Statutes, authorizes license disciplinary action by Petitioner against any licensed pharmacist who is in violation of Chapter 893, Florida Statutes. Section 893.13(3)(a)1., Florida Statutes, declares it to be unlawful for any person to obtain a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.

   
   

9. Since this is a license disciplinary case, Petitioner has the burden of proving the charges Set forth in the Administrative Complaint by clear and convincing evidence. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977) Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981). Petitioner has failed to meet its burden in this case.

10. The evidence establishes that Respondent's husband obtained 100 Percodan by fraud, forgery and deception. It was unrefuted that he altered the prescription, and that Respondent had no knowledge of her husband's action until after her arrest. The mere fact that Respondent was given some of the illegally obtained Percodan by her husband while she was recovering from her surgery, does not establish that she has violated Chapter 893. Therefore, there is no basis for disciplinary action against Respondent in this case.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Board of Pharmacy issue a Final Order dismissing these charges against Respondent.

DONE and ENTERED this 5th day of November, 1985, at Tallahassee, Florida.

DONALD D. CONN, 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 5th day of November, 1985.'

APPENDIX

1. Adopted in Finding of Fact 1.

2. Rejected in Findings of Fact 3 and 4.

3. Adopted in Findings of Fact 2 and 6.

4. Rejected in Findings of Fact 3, 4 and 7.

5. Rejected as a conclusion of law which is not based on evidence

in the record.

COPIES FURNISHED:

Rod Presnell, Executive Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Deborah S. Bowen 1033 N.E. 8th Avenue

Gainesville, Florida 32601

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-000375

Orders for Case No: 85-000375