STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4663

)

STANLEY SANDBANK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 9, 1989, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael A. Mone', Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Stanley Sandbank

4300 Sheridan Street

Hollywood, Florida 33021 INTRODUCTION

On August 4, 1988, the Department of Professional Regulation filed an Administrative Complaint alleging that Stanley Sandbank, a licensed pharmacist, engaged in misconduct for which he should be disciplined by the Board of Pharmacy. More specifically, the complaint alleges that Sandbank unlawfully diverted for his own personal gain various controlled substances from a pharmacy where he had worked and delivered these controlled substances to others without first being furnished with a prescription. Sandbank, on September 9, 1988, signed an election of rights form on which he indicated that he disputed the allegations against him and desired a formal hearing on these charges.

Pursuant to Sandbank's request, the matter was referred to the Division of Administrative Hearings on September 21, 1988, for the assignment of a hearing officer to conduct a formal hearing on the allegations against Sandbank.

At hearing, the Department had three witnesses testify. It also offered three exhibits into evidence. All three exhibits were admitted without objection. The only evidence Sandbank presented at hearing was his own testimony.

On February 15, 1989, following the conclusion of the hearing, the Department filed a motion requesting that the Hearing Officer delay the issuance

of his Recommended Order inasmuch as the parties had reached a tentative settlement of their dispute. The motion was granted on February 23, 1989. Two days later, the transcript of the February 9, 1989, hearing was filed with the Division.

On March 28, 1989, the Department notified the Hearing Officer that the parties had been unable to finalize their settlement agreement. It therefore requested that the Hearing Officer establish a schedule for the filing of Proposed Recommended Orders. This request was granted and the parties were given until April 17, 1989, to file Proposed Recommended Orders. The Department filed its Proposed Recommended Order on April 6, 1989. All of the factual findings proposed by the Department in its Proposed Recommended Order have been incorporated in substance in this Recommended Order. Sandbank has filed neither a Proposed Recommended Order nor any other post-hearing pleading.

FINDINGS OF FACT

Based on the record evidence and the admissions made by Sandbank at hearing, the Hearing Officer makes the following findings of fact:

1. Stanley Sandbank has been a licensed pharmacist in the State of Florida since 1975 and has actively engaged in the practice of pharmacy in this state since 1982.

   
   

2. During the Fall of 1987, Sandbank was employed as a pharmacist at Rite- Aid Discount Pharmacy 2165 in Miami Beach, Florida. Toward the latter part of November of that year, Rite-Aid management received a telephone call from a Drug Enforcement Administration (DEA) agent, who stated that she had obtained a tip from a reliable informant that Sandbank "was selling drugs on the street." The DEA agent suggested that a controlled audit be conducted to ascertain whether these drugs were being misappropriated from the pharmacy at which Sandbank worked.

   
   

3. Rite-Aid management followed the DEA agent's suggestion and performed such a controlled audit. The audit was completed on November 25, 1987. It revealed that 154 dosage units of Percocet and 201 dosage units of Percodan were unaccounted for and missing from the pharmacy's inventory of controlled substances.

   
   

4. Percocet is a brand name of a "medicinal drug," as defined in Section 456.003(7), Florida Statutes, which contains Oxycodone, a controlled substance listed in Schedule II of Chapter 893, Florida Statutes.

   
   

5. Percodan is a brand name of a "medicinal drug," as defined in Section 465.003(7), Florida Statutes, which also contains Oxycodone.

   
   

6. Because Sandbank was the only pharmacist on duty during the time the audit was conducted, Rite Aid management believed that he was responsible for the shortages that had been discovered. Sandbank initially denied knowing anything about the matter, but later admitted his transgression.

7. As Sandbank freely admitted, he had removed from the pharmacy and delivered to relatives and neighbors the following approximate quantities of controlled substances without first having been presented with a valid prescription and without Rite-Aid having received payment in full for these controlled substances:

   
   

   CONTROLLED SUBSTANCE	QUANTITY
   Valium 10 mg.	300
   Diazepam 10 mg.	400
   Percodan	375
   Percocet	360
   Dilaudid	100
   Hycodan Syrup	240
   Placidyl 750 mg.	30

   
   

8. Valium, Dilaudid, Hycodan Syrup, and Placidyl are brand names of "medicinal drugs," within the meaning of Section 465.003(7). Valium contains Diazepam, which is a controlled substance listed in Schedule IV of Chapter 893, Florida Statutes. Dialudid contains Hydromorphone, which is a controlled substance listed in Schedule II of Chapter 893, Florida Statutes. Hycodan Syrup contains Hydrocodone, which is a controlled substance listed in Schedule III of Chapter 893, Florida Statutes. Placidyl contains Ethchlorvynol, which is a controlled substance listed in Schecdule IV of Chapter 893, Florida Statutes.

   
   

9. Sandbank kept at least a portion of the money he had been given by this neighbors and relatives for having delivered to them the above-described controlled substances. He therefore reaped a financial gain as a result of his unauthorized and surreptitious diversion of these controlled substances from Rite-Aid Discount Pharmacy #2165.

   
   

   CONCLUSIONS OF LAW

   
   

10. Pharmacists licensed to practice in the State of Florida may be disciplined for committing any of the acts described in Section 465.016(1), Florida Statutes, including the following offenses set forth in subsection (1)(e) of Section 465.016:

    
    

    Violating any of the requirements of this chapter; chapter 499, known as the Florida Drug and Cosmetic Act; 21 U.S.C. ss. 301-392, known as the Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss.821 et seq., known as the Federal Drug Abuse Act; or chapter 893.

    
    

11. Section 465.015(2)(c), Florida Statutes, makes it unlawful for any person to "sell or dispense drugs as defined in s. 465.003(7) without first being furnished with a prescription."

    
    

12. Section 893.13(3)(a) prohibits any person from acquiring or obtaining, or attempting to acquire or obtain, "possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subertuge."

    
    

13. By deceitfully diverting from Rite-Aid Discount Pharmacy 2165 the controlled substances enumerated in paragraph 7 of the above findings of fact and selling them to his neighbors and relatives without first having been

    furnished with a valid prescription and without fully compensating Rite-Aid for these controlled substances, Stanley Sandbank violated Section 465.015(2)(c) and Section 893.13(3)(a), Florida Statutes, and therefore Section 465.016(1)(e), Florida Statutes, as charged by the Department of Professional Regulation in its administrative complaint. There is thus cause to take disciplinary action against him.

    
    

14. The Department of Professional Regulation has proposed that Sandbank receive the following penalty for his misconduct:

    
    

    1. The Respondent's license shall be suspended for a period of three

       (3) years.

    2. The Respondent shall be assessed an Administrative Fine of

       $2,000.00 which shall be paid by Respondent to the Executive Director of the Board of Pharmacy, within twenty (20) months after the initiation of probation.

    3. The Respondent's license shall be placed on probation for a period of three (3) years after the termination of the suspension, during which time the Department shall conduct semi-annual inspections at all places of employment, the costs of which are to be paid by the Respondent.

    4. The Respondent shall complete

       100 hours of Board Approved community service during each year of the probation.

    5. Respondent shall keep a perpetual inventory of all Schedule II controlled substances at all places of employment.

    6. The Respondent shall be required to take and pass the Florida Section of the Board Exam prior to the commencement of the probation and shall pay the appropriate fees.

    7. The Respondent shall practice under a Board approved monitor/preceptor during the term of probation who shall provide quarterly reports to the Board of Pharmacy on the progress of the Respondent.

    8. The Respondent shall be required to notify all employers of the terms of [his probation].

    9. The Respondent cannot be a Prescription Department Manager during the time of his probation unless the Board otherwise approves.

This proposed penalty is consistent with the provisions of Section 465.016(2), Florida Statutes, and within the range of penalties permitted by Florida Administrative Code Rule 21S-17.001, from which there is no reason to deviate in the instant case given the absence of any compelling mitigating or aggravating circumstances. It therefore is an appropriate punishment which should be imposed by the Board of Pharmacy.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pharmacy enter a Final Order finding that

Stanley Sandbank violated Section 465.016(1)(e), Florida Statutes, as alleged in

the Administrative Complaint, and imposing the above-described disciplinary action which the Department of Professional Regulation has proposed.

DONE and ENTERED this 25th day of April, 1989, in Tallahassee, Florida.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1989.

COPIES FURNISHED:

Michael A. Mone', Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Stanley Sandbank 4300 Sheridan Street

Hollywood, Florida 32399-0750

Rod Presnell, Executive Director Board of Pharmacy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth D. Easley, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-004663

Orders for Case No: 88-004663