STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF PHARMACY, )

)

Petitioner, )

)

v. ) CASE NO. 86-0287

)

HOWARD E. STAATS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held before William R. Cave, the designated Hearing officer of the Division of Administrative Hearings, on October 1, 1987, in Jacksonville, Florida. The issue for determination is whether, under the facts and circumstances of this case, Petitioner's license to practice pharmacy should be revoked, suspended or otherwise disciplined.

APPEARANCES

For Petitioner: Robert D. Newell, Jr., Esquire

Newell & Stahl, P.A.

102 South Monroe Street Tallahassee, Florida 32301

For Respondent: Robert Palmer, Esquire

Michael Edwards, Esquire

Suite 305, 24 North Market Street

Jacksonville, Florida 32202 BACKGROUND

Respondent was first charged by an Administrative Complaint dated December 24, 1985 which was filed with the Division of Administrative Hearings on January 30, 1986. On July 7, 1986 the Petitioner filed a Motion To Amend the Administrative Complaint with a six count Amended Administrative Complaint dated May 28, 1986 attached. The motion was granted and the matter moved forward on the Amended Administrative Complaint. By the Amended Administrative Complaint Petitioner seeks to revoke, suspend or otherwise discipline the Respondent's license to practice pharmacy in the State of Florida. As grounds therefor, it is alleged that: (1) Respondent made misleading, deceptive, untrue or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a), Florida Statutes; (2) Respondent violated Section 465.015(2)(c), Florida Statutes by selling or dispensing certain drugs without being furnished a prescription which is a violation of Section 465.016(l)(e), Florida Statutes;

1. Respondent dispensed or distributed a legend drug other than in the course of professional practice in violation of Section 465.016(1)(i), Florida Statutes and; (4) Respondent made or filed a false report or record in violation of Section 465.016(1)(j), Florida Statutes.

   In support of its charges, Petitioner presented the testimony of Ali Zomorodian, M.D., Ruth Hazelhurst, James Jowers, John E Danson and PeggyAnn Zaenger. Petitioner's exhibits nos. 1 through 9 were received into evidence. Respondent testified on his own behalf and presented the testimony of James R. Johnston. Respondent's exhibit no. 1 was received into evidence.

   
   

   The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

      
      

   2. At all times material to this proceeding, the Respondent, Howard E. Staats, was licensed as a pharmacist with license number PS 0007704.

      
      

   3. On July 15, 1985, Dr. Ali A. Zomorodian treated James C. Jowers for thrombose hemorrhoids at the Memorial Medical Center in Jacksonville, Florida and prescribed Proctofoam HC, allowing three (3) refills of the medication.

      
      

   4. Proctofoam HC is a "medicinal" drug which is commonly known as a "legend" or "prescription" drug which can only be dispensed by prescription.

      
      

   5. On July 15, 1985, James Jowers presented the prescription for Proctofoam HC issued by Dr. Zomorodian to the Respondent for filling at Scottie's Discount Drug Store, 41 Arlington Road South, Jacksonville, Florida.

      
      

   6. During the course of filling the prescription on July 15, 1985, the Respondent discussed genital cancer with Jowers and showed Jowers pictures of the genital area. There was insufficient evidence to show that Respondent asked Jowers to come behind the prescription counter that day on the pretense of checking Jowers' hemorrhoids, and then pulling down Jowers' shorts and touching Jowers' penis and testicles.

      
      

   7. After Respondent had filled Jowers' prescription for Proctofoam HC on July 15, 1985, Jowers decided that the price was too high and asked that Respondent return his prescription. Respondent returned the prescription to Jowers and Jowers had it filled at the Mayport Naval Station pharmacy on July 16, 1985.

      
      

   8. While Respondent had the prescription in his possession on July 15, 1985, and before returning it to Jowers, Respondent copied certain information from the prescription and gave the prescription a number (83116) on Respondent's prescription log. This information was placed on file at Scottie's.

      
      

   9. Based on information furnished by Jowers concerning Respondent's behavior on July 15, 1985, John Danson, Investigator for Petitioner and detectives from the Duval County Sheriff's Office asked Jowers to return to Scottie's and make contact with the Respondent on the pretense of needing the prescription for Proctofoam HC filled. On July 29, 1985, Jowers returned to Scottie's where Respondent was on duty and told Respondent that he had lost the prescription for Proctofoam HC but that he needed it filled. Using the information that he had copied from the original prescription on July 15, 1985, Respondent filled the prescription for Proctofoam HC and gave the medication to

      Jowers. Jowers upon leaving Scottie's gave the medication to Danson and the detectives from the Duval County Sheriff's Office. There was insufficient evidence to show that Respondent knew on July 29, 1985 that the prescription had been filled at the Mayport Naval Station pharmacy or that the prescription was on file at the Mayport Naval Station pharmacy. The medication given to Danson and the detectives contained the same prescription number (83116) that Respondent had given the prescription when presented to him on July 15, 1985.

      
      

   10. There was insufficient evidence to show that Respondent asked Jowers into his office and pulled down Jowers' pants and touched Jowers' penis or testicles on July 29, 1985.

       
       

   11. At all times relevant to this proceeding, the original prescription for Proctofoam HC used by Dr. Zomorodian to Jowers on July 15, 1985 was on file at the Mayport Naval Station pharmacy.

       
       

   12. The Mayport Naval Station pharmacy did not transfer the prescription for Proctofoam HC issued by Dr. Zomorodian to Jowers on July 15, 1985.

       
       

   13. Neither Dr. Zomorodian nor his staff "called-in" the prescription for Proctofoam HC given to Jowers by Dr. Zomorodian on July 15, 1985 to Scottie's or the Respondent.

       
       

   14. The Respondent did not call Dr. Zomorodian or his staff for authorization to dispense Proctofoam HC to Jowers under the prescription issued by Dr. Zomorodian to Jowers on July 15, 1985.

       
       

   15. Respondent prepared and maintains in his files a written record of the information copied from the original prescription presented to him by Jowers issued by Dr. Zomorodian for Poctofoam HC on July 15, 1985. In addition to the number (83116) being listed in the Scottie's prescription log, it is also listed on the above-referenced record.

       
       

   16. Respondent's dispensing of the Proctofoam HC to Jowers on July 29, 1985 under the circumstances of this cause was done in good faith.

       
       

   17. Although there was conflicting expert testimony, Respondent's dispensing of the Proctofoam HC to Jowers on July 29, 1985 under the circumstances of this cause was done in the course of professional practice of pharmacy.

       
       

       CONCLUSIONS OF LAW

       
       

   18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding, pursuant to Section 120.57(1), Florida Statutes.

       
       

   19. Section 455.227, Florida Statutes and Section 465.016, Florida Statutes, both empower the Board of Pharmacy to revoke, suspend or otherwise discipline the license of Respondent if he is found guilty of any one of those enumerated acts listed in Section 455.227, Florida Statutes or Section 465.016, Florida Statutes.

       
       

   20. The alleged misconduct of which Respondent is accused purportedly violates Section 455.227(1)(a), Florida Statutes, Section 465.015(2)(c), Florida Statutes and Section 465.016(1)(e)(i) and (j), Florida Statutes.

   21. Section 455.227(1) (a), Florida Statutes provides in pertinent part:

       
       

       1. The board shall have the power to revoke, suspend,...or otherwise discipline a licensee, if the board finds that:

          1. The licensee has made misleading, deceptive, untrue, or fraudulent representation in the practice of his profession.

             
             

             Section 455.20, Florida Statutes defines "board" to mean any board or commission within the Department of Professional Regulation. Section 465.004, Florida Statutes brings the Board of Pharmacy within the Department of Professional Regulation

             
             

   22. Section 465.015(2)(c), Florida Statutes provides as follows:

       
       

       (2) It is unlawful for any person:

       * * *

       (C) To sell or dispense drugs as defined in

       s. 465.003(7) without first being furnished with a prescription.

       
       

       Section 465.003(7), Florida Statutes defines "medicinal drugs" or "drugs" to mean "those substances or preparations commonly known as 'prescription' or 'legend' drugs which are required by federal or state law to be disbursed only on a prescription. "

       
       

   23. Section 465.016(1)(e)(i)(j), Florida Statutes provides in pertinent part as follows:

       
       

       1. The following acts shall be grounds for disciplinary action set forth in this section:

          * * *

          (e) Violating any of the requirements of this chapter....

          * * *

          1. Compounding, dispensing, or distributing a legend drug, including any controlled substance, other than in the course of the professional practice of pharmacy....

          2. Making or filing a report or record which the licensee knows to be false. Such reports or records include only those which the licensee is required to make or file in his capacity as a licensed pharmacist.

          
          

   24. A pharmacist may receive authorization to dispense medications requiring a prescription by: (a) the patient or the patient's representative transmitting the prescription directly from the doctor to the pharmacist; (b) the doctor or the doctor's representative telephoning the prescription in to the pharmacist directly or; (c) the patient requesting that a valid prescription on file at one pharmacy be transferred to another pharmacy. See Sections 465.003(13) and 465.026, Florida Statutes

   25. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which it allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, (1 DCA Fla. 1977). The Petitioner has failed to meet its burden to show that Respondent's conduct violated Section 455.227(1)(a), Florida Statutes, Section 465.015(2)(c), Florida Statutes, or Section 465.016(1) (e) (i) (j), Florida Statutes.

       
       

   26. Petitioner contends that Respondent's filling of the prescription on July 29, 1985 violates Section 465.015(2)(c), Florida Statutes and therefore, a violation of Section 465.016(1)(e), Florida Statutes, without the Respondent first having the original prescription in his possession on July 29, 1985 or a transfer of the prescription from Mayport Naval Station pharmacy. The evidence is clear that the Respondent did not have a transfer of the prescription from the Mayport Naval Station pharmacy on July 29, 1985. However, the Respondent did have on file a written record of all the information necessary to fill the prescription on July 29, 1985 that he had copied from the original prescription given to him by Jowers on July 15, 1985. Without knowledge of the prescription being filled at the Mayport Naval Station pharmacy, the fact that Jowers had informed him that the prescription had been lost and the fact that the original prescription had been in his possession on July 15, 1985, the Respondent, in what he considered good faith and in the course of professional practice of pharmacy, filled the prescription. I find nothing in Chapter 455 and 465, Florida Statutes or Chapter 215, Florida Administrative Code which prevents the Respondent from exercising his professional judgment in this manner under the circumstances of this cause.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED that the Amended Administrative Complaint be DISMISSED. Respectfully submitted and entered this 12th day of November, 1987, in

Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0287

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 3.

4. Adopted in Findings of Fact 4 and 6.

5. Adopted in Finding of Fact 6.

6. Adopted in Finding of Fact 8.

7. Adopted in Findings of Fact 8 and 15 but clarified.

8. Adopted in Finding of Fact 8.

9. Adopted in Findings of Fact 6 and 12 but clarified.

10. Rejected as not supported by substantial competent evidence, as being hearsay and as not being material or relevant.

11-13. Adopted in Findings of Fact 13 and 14 but clarified. 14.-15. Although Dr. Zaenger's background and the fact that

she testified as an expert witness on the standards of practice in pharmacy are important to determine the weight given her testimony, these findings are not necessary and add nothing to the finding of fact in this order.

1. Rejected as being a conclusions of law rather than a Finding of Fact.

2. Rejected as not being material or relevant since it is not a finding of fact but only a statement of a hypothetical situation.

3. Rejected as not supported by substantial competent evidence.

19.-23. Rejected as not being material or relevant.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 4.

4. Adopted in Finding of Fact 13 but clarified.

5.-6. Adopted in Findings of Fact 13 and 14 but clarified. 7.-8. Paragraph 7 and the first sentence of paragraph 8

rejected as a restatement of the testimony and not a finding of fact. The balance of paragraph 8 is adopted in Findings of Fact 6, 7 and 8 but clarified.

1. Adopted in Finding of Fact 6.

2. Adopted in Finding of Fact 7.

3. Adopted in Finding of Fact 5 but clarified. 12.-14. Adopted in Finding of Fact 8.

1. Adopted in Finding of Fact 6.

2. Rejected as not being material or relevant. 17.-19. Adopted in Finding of Fact 8.

1. Adopted in Finding of Fact 12.

2. Adopted in Finding of Fact 14 but clarified.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 8.

24.-27. The first two (2) sentences of paragraph 25 are adopted in Findings of Fact 3 and 10. The balance of paragraphs 24-27 are rejected as being a restatement of the testimony and not a finding of fact.

COPIES FURNISHED:

Robert D. Newell, Jr., Esquire Newell & Stahl, P.A.

102 S. Monroe St. Tallahassee, Florida 32301

Robert Palmer, Esquire Michael Ed wards, Esquire Suite 305, 24 N. Market St.

Jacksonville, Florida 32202

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Rod Presnell, Executive Director Board of Pharmacy

Department of Professional Regulation

130 N. Monroe St.

Tallahassee, Florida 32399-0750

Docket for Case No: 86-000287

Orders for Case No: 86-000287