STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1679

)

DORA F. VILLANVUEVA, as an )

individual pharmacist and as ) owner of CENTURY PHARMACY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Dorsey, Jr., held a formal hearing in this matter on July 7, 1988, in Miami, Florida. The parties filed proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are made in the appendix to this Recommended Order.

APPEARANCES

For Petitioner: Michael A. Mone', Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Regla M. Sibila-Zaidner, Esquire

2260 S.W. 8th Street, Suite 204

Miami, Florida 33135 STATEMENT OF THE ISSUES

The issue is whether Ms. Villanueva is subject to discipline for leaving the prescription department at the Century Pharmacy unlocked when no registered pharmacist was present, but only a pharmacy technician, and for failing to post a "closed" sign during her absence.

FINDINGS OF FACT

1. Dora F. Villanueva is a licensed pharmacist in the State of Florida, holding license number PS 0014957.

   
   

2. Ms. Villanueva is an elderly woman who owns the Century Pharmacy, a community pharmacy located at 3017 S.W. 107th Avenue in Dade County, which holds permit number PH 0006839. She depends on the pharmacy for her livelihood and is manager of its prescription department. An investigator for the Department of Professional Regulation, Thomas Daniels, entered the Century Pharmacy in the

   early afternoon on January 7, 1988. He was there to follow up on a previous inspection of the Century Pharmacy.

   
   

3. When Mr. Daniels arrived at the pharmacy, Ms. Villanueva, the registered pharmacist, was not there. It is Ms. Villanueva's practice to open the prescription department from 9:00 a.m. to 1:00 p.m. and 3:00 p.m. to 8:00

   p.m. She returns to her home for lunch from 1:00 p.m. to 3:00 p.m.

   
   

4. While there, Mr. Daniels, observed a person in the pharmacy department, who was visible through a pass-through window which connects the prescription department with the over- the-counter drug section of the pharmacy. That person was Mary Washington, a pharmacy technician who works at the Century Pharmacy. Ms. Washington is not, and never has been a licensed pharmacist. No other licensed pharmacist was present and on duty at the pharmacy. Ms. Villanueva is the only pharmacist employed at the Century Pharmacy.

   
   

5. While Ms. Villanueva was absent, there was no sign indicating the pharmacy prescription department was closed due to the absence of a pharmacist.

   
   

6. The records of the Board of Pharmacy admitted into evidence indicate that Ms. Villanueva was placed on probation on November 5, 1984, for one year. The reason for the probation cannot be determined from the records offered in evidence.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

8. Rule 21S-1.014, Florida Administrative Code, governs the manner in which a community pharmacy shall be closed when a pharmacist is not present, and provides

   
   

   If a community pharmacy is open for business and a Florida registered pharmacist is not present and on duty, the prescription department shall be considered closed; and a sign shall be displayed in a prominent place in the prescription department in such manner that it can be easily read by patrons of said establishment, and each letter on said sign shall not be less than two (2) inches in width and height, in bold print, and such a sign shall read: "Prescription Department Closed"; provided that at all times when the prescription department is closed, either because of the absence of a Florida registered pharmacist or for any other reason, the said prescription department shall be separated from the remainder of the community pharmacy by a partition or other means of enclosure, and said enclosure shall be locked or padlocked so as to prevent the entry into said department by persons not

   licensed to practice pharmacy in the State of Florida, and at such times no person other than a person licensed to practice pharmacy in Florida shall enter or be permitted to enter the prescription department of any community pharmacy provided, further, that at all such times only a Florida registered pharmacist shall have the means to gain access to the said prescription department.

   
   

9. The presence of Mary Washington in the pharmacy department during Ms. Villanueva's absence is a violation of Rule 21S-1.014, Florida Administrative Code.

   
   

10. The absence of a prominently displayed sign indicating that the pharmacy was closed is also a violation of that same rule. Violation of a Board rule subjects a pharmacist to discipline under Section 46s.016(1)(n), Florida Statutes (1987).

    
    

11. The disciplinary guidelines for the Board of Pharmacy required by Section 465.016(4), Florida Statutes (1987), are found in Chapter 21S-17, Florida Administrative Code. The penalty range prescribed for violating Rule 21S-1.014 found in Rule 21S-17.001(2)(k)1., Florida Administrative Code, is from a letter of guidance to probation for one year and $1,000 fine.

    
    

12. In determining an appropriate penalty, the following factors listed in Rule 21S-17.001(3) are instructive. There is no evidence in the record explaining the factual background for the prior action of the Board of Pharmacy placing Ms. Villanueva on probation, or whether she received prior letters of guidance. These factors, therefore, do not weight heavily in determining the penalty. There is no indication she has been guilty of violations of pharmacy laws in other jurisdictions. See Rule 21S-17.001(3)(a)1. 3. and 4., Florida Administrative Code. The presence of the pharmacy technician in the pharmacy while Ms. Villanueva was not at the pharmacy was not shown to be a serious violation, because there was no proof that Ms. Washington attempted to operate the pharmacy by dispensing medication in Ms. Villanueva's absence. See Rule

    21S-17.001(3)(a)2., Florida Administrative Code. The potential damage to the public from the violation was slight, for there is no evidence that Marv Washington is untrustworthy or attempted to use or remove any drugs. Rule 21S- 17.001(3)(b)1., Florida Administrative Code. The imposition of a substantial fine would cause a hardship on Ms. Villanueva who is elderly, and who depends on the pharmacy for her livelihood. Rule 21S-17.001(3)(b)6., Florida Administrative Code.

    
    

13. After considering all the facts, the Hearing Officer declines to recommend the penalty contained in the proposed recommended order from the Board of Pharmacy, which is a reprimand, a fine of $1,000, placing Ms. Villanueva on probation for one year with two inspections of the pharmacy being conducted at her cost and 12 hours of continuing education on the laws and rules pertaining to the practice of the profession of pharmacy. That penalty would be disproportionate to the violations. A reprimand and a fine of $400 is the appropriate penalty.

RECOMMENDATION

It is, therefore, RECOMMENDED that Dora F. Villanueva and Century Pharmacy receive a reprimand and a fine of $400 for violations of Rule 21S-1.014, Florida Administrative Code.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of August, 1988.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

(904) 488-9765

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1988.

APPENDIX

Rulings on the proposed findings of fact and conclusions of law of the petitioner.

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 2.

4. Covered in finding of fact 4.

5. Covered in finding of fact 4.

6. Covered in finding of fact 4.

7. Covered in finding of fact 5.

Rulings on the proposed findings of fact and conclusions of law of the respondent.

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in findings of fact 2 and 3.

4. Generally covered in findings of fact 2 and 3.

5. Rejected because I accepted the testimony of Mr. Daniels on this point, that there was no closed sign at all.

6. Whether Dr. Villanueva places a sign in the dispensing window on most days cannot be determined from the evidence, but she did not do so on January 7, 1988.

7. Rejected because I have accepted the testimony of Mr. Daniels that he saw Mary Washington in the pharmacy department.

8. Rejected for the reasons stated in the preceding paragraph.

COPIES FURNISHED:

Michael A. Mone', Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Regla M. Sibila-Zaidner, Esquire 2260 S.W. 8th Street

Suite 204

Miami, Florida 33135

Rod Presnell, Executive Director Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001679

Orders for Case No: 88-001679