STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2260

)

WILLIAM E. P. SHAW, )

)

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 17, 1987, at Clearwater, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Michael Monet, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: C. Philip Campbell, Jr., Esquire

John Cacciatore, Esquire James D. Whittemore, Esquire

One Tampa City Center, Suite 2470 Tampa, Florida 33602

By Administrative Complaint filed May 17, 1986, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of William E.P. Shaw, Respondent. As grounds therefor, it is alleged that Respondent has been found guilty of a crime which directly relates to the practice of pharmacy.

At the hearing Petitioner called one witness, Respondent called two witnesses, including himself, and three exhibits were admitted into evidence. There is no dispute as to the facts in this case. Accordingly, proposed findings of fact submitted by the respondent are accepted. Those proposed findings not included herein were deemed immaterial or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. At all times relevant hereto, William E.P. Shaw was licensed as a pharmacist in the State of Florida, having been issued license number 0008802.

2. On January 21, 1986, Respondent, in the United States District Court for the Northern District of Georgia, pleaded guilty and was convicted of the offense of

   
   

   conspiracy to obtain drugs at a low purchase price under false and fraudulent pretenses and representations to various drug manufacturers that drugs were for use in Palms of Pasadena Hospital, St. Petersburg, Fla., which drugs were then diverted from said hospital use and resold at substantial profit, this being done by use of interstate Wire Communications and the U.S. Mail - all in violation of Section 1343, and 1341 and

   2 - Title 18, and 371 - Title 18, U.S.C., as charged in the within indictment.

   (Exhibit 1).

   
   

3. At the time of the alleged offense, Respondent was a staff pharmacist at Palms of Pasadena Hospital. Prior thereto he headed a company or group which managed several hospital pharmacies including that of Palms of Pasadena. His contract with Palms of Pasadena Hospital expired in 1984 and was not renewed.

   
   

4. Drug manufacturers sell drugs to hospitals at a much lower price than they sell to wholesalers. Respondent set up an account on which the hospital comptroller had check writing authority, and as a pharmacist ordered specific drugs under the hospital's drug account number to be delivered to the hospital. Upon arrival at the hospital these drugs were immediately reshipped to a contact in Miami, who was a licensed drug wholesaler, or to a contact in Atlanta, who was not so licensed. To the hospital's price for the drugs, which was paid by the hospital's comptroller from the account established by Respondent, Respondent added ten percent. This sum was remitted to him by these two purchasers and the account from which the supplier was paid was reimbursed.

   
   

5. Respondent testified that he was unaware that his scheme was in violation of the law; however, Respondent was aware that he was defrauding the drug companies and violating the hospital's agreement with these companies to dispense all drugs purchased only to hospital patients.

   
   

6. Drugs so ordered and resold by Respondent were primarily prescription drugs slow-K and nitro patches.

   
   

7. Following his conviction in the U.S. District Court Respondent was sentenced to three years imprisonment the execution of which was suspended and Respondent was placed on probation for three years, ordered to pay a fine of

   $7,500.00 and perform 400 hours of community service work (Exhibit 1). At the time of this hearing, Respondent had satisfied the sentence but for the unexpired probation.

   
   

8. Respondent has been a licensed pharmacist since 1958 and, but for the federal charge and conviction, has enjoyed a good reputation in the field of pharmacy and in the community in which he lived.

   
   

   CONCLUSIONS OF LAW

   
   

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

10. The sole allegation in this administrative complaint is that Respondent violated Section 465.016(1)(f), Florida Statutes, which provides, inter alia, the following act shall be grounds for disciplinary actions:

    
    

    Having been convicted or found guilty, regardless of adjudication, in a court of this state or other jurisdiction of a crime which directly relates to the ability to practice pharmacy or to the practice of pharmacy. A plea of nolo contendre constitutes a conviction for purposes of this provision.

    
    

11. The evidence is uncontradicted that Respondent pleaded guilty to the charge of conspiring to obtain drugs at a low purchase price under false and fraudulent pretenses then reselling them at a substantial profit. It is a priori that this offense related directly to the practice of pharmacy and that conclusion is clearly supported by the evidence.

    
    

12. The leaves only the determination of an appropriate punishment.

    
    

13. Evidence was presented regarding the shelf life of the two drugs Respondent ordered and resold, i.e. slow-K and nitro patches. While there was some disagreement regarding this shelf life all agreed the shelf life was at least two years. This evidence was introduced to show the potential for harm to the public by Respondent's illegal activities. While such harm is a possibility, under the circumstances in which Respondent operated, that possibility was infinitely small.

    
    

14. From the foregoing, it is concluded that Respondent is guilty of violating Section 465.016(1)(f), Florida Statutes, as alleged. It is

    
    

15. RECOMMENDED that Respondent's license to practice pharmacy be suspended for a period of two years and Respondent pay a fine of $1,000.00. It is further

    
    

16. RECOMMENDED that the license suspension be stayed for a probationary period of three years upon such terms as the Board of Pharmacy deems appropriate and, upon the expiration of which, unless sooner revoked, the suspension be set aside and Respondent restored to good standing.

ENTERED this 7th day of May, 1987, in Tallahassee, Florida.

K. N. AYERS 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 7th day of May, 1987.

COPIES FURNISHED:

Mr. Rod Presnell, Executive Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Van Poole, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joe Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce Lamb, Esquire Michael Monet, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

C. Philip Campbell, Jr., Esquire John Caccitore, Esquire

James D. Whittemore, Esquire

One Tampa City Center, Suite 2470 Tampa, Florida 33602

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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 : 86-2260

WILLIAM E. P. SHAW,

Respondent.

/

FINAL ORDER

THIS CAUSE CAME on to be beard before the Florida State Board of Pharmacy at a regularly scheduled meeting held in Jacksonville, Florida on June 24, 1987.

The Florida Board of Pharmacy of the Department of Professional Regulation having reviewed the Recommended Order this case by K. N. Ayers, Hearing Officer, Division of Administrative Hearings, on April 1, 1987, and after reviewing the complete record accompanying the Recommended Order, and being otherwise fully advised in the premises, hereby ACCEPTS the Findings of Fact, and Conclusions of Law contained in the Recommended Order. The exception to the Hearing Officers finding is hereby REJECTED insofar as there is competent evidence in the record to support the fact that agreements existed between the hospital and various drug companies as noted by the Hearing Officer. The Recommended Penalty is hereby ACCEPTED, except that the suspension is stayed and Respondent is placed on 3 years probation with the terms of probation being that Respondent shall submit quarterly reports to the Board and shall not violate the rules and statutes governing the practice of pharmacy in Florida. Failure to comply with the terms of probation shall result in the imposition of the entire 2 year period of suspension. Said Recommended Order is hereby declared to be and this Order becomes the Final Order of the board of Pharmacy.

DONE and ORDERED this 23rd day of July, 1987, by the Florida Board of Pharmacy.

C. ROD PRESNELL EXECUTIVE DIRECTOR

COPIES FURNISHED TO:

C. Phillip Cambell, Esquire William Furlow, Esquire

Docket for Case No: 86-002260

Orders for Case No: 86-002260