STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) Case No. 91-6605
)
ROCKY F. SCHIERHOFF, )
)
RESPONDENT. )
)
RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on January 29, 1992, in Sebring, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Tracey S. Hartman, Esquire
Senior Attorney
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida
For Respondent: Rocky F. Schierhoff
(pro se)
407 South Egret Street Sebring, Florida
STATEMENT OF THE ISSUES
Whether Respondent is unfit or incompetent to practice pharmacy for the misuse or abuse of any medicinal drug appearing in any Schedule set forth in Chapter 893, Florida Statutes, in violation of Section 465.016(1)(d)(2), Florida Statutes. Whether Respondent failed to maintain on a current basis a complete and accurate record of each controlled substance manufactured, received, sold, delivered or otherwise disposed of, in violation of Section 893.07 and therefore, Section 465.016(1)(e), Florida Statutes.
PRELIMINARY STATEMENT
Petitioner filed an Administrative Complaint against Respondent on April 4, 1991, charging that Respondent misused or abused Scheduled drugs and failed to maintain a complete and accurate record of each controlled substance dispensed or disposed of by him. Respondent demanded a formal hearing by filing an Election of Rights on April 22, 1991. This matter was referred to the Division for hearing on October 16, 1991.
Following discovery, the formal hearing was held. Being unable to agree, the Petitioner filed a Unilateral Prehearing Stipulation. At the hearing, the Petitioner announced that it would not be presenting evidence relating to Count I of the Administrative Complaint, but was proceeding on Count II. The Petitioner presented the testimony of four witnesses, Donald Boger, Patricia Plott, James E. Potter and Ronald A. Moss, and exhibits 1-10 were admitted in evidence. Respondent presented the testimony of one witness and testified himself. No exhibits were admitted in evidence on behalf of the Respondent.
Both parties agreed to file their proposed recommended orders within 10 days of the filing of the transcript. The transcript of the proceedings was filed with the Clerk of the Division on February 25, 1992. Petitioner filed its proposals on March 6, 1992. Respondent has not filed proposed findings as of the date of this order. The proposed findings have been given careful consideration and have been incorporated where appropriate. Specific rulings on proposed findings are addressed in the Appendix attached to this order. Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
The Respondent, Rocky F. Schierhoff, was licensed by the Board of Pharmacy as a pharmacist on January 17, 1979, and was issued license number PS 0017217, and at all times relevant hereto was a licensed pharmacist.
The Respondent was employed as a pharmacist by Walker Memorial Hospital, Avon Park, Florida and was assigned as the staff pharmacist at the Lake Placid Medical Center Pharmacy in Lake Placid, Florida for approximately one and one-half years until April 18, 1990.
The Lake Placid pharmacy is an institutional as well as a community type pharmacy.
The Respondent was the sole pharmacist in charge the Lake Placid pharmacy including all medications, inventories, day-to-day ordering and receiving of drugs for the Lake Placid pharmacy.
It was the responsibility of either the Respondent or Mr. Donald Boger, Director of Pharmacy, Walker Memorial Hospital, to fill out all DEA order forms. The Respondent was placed on suspension from Lake Placid pharmacy on April 16, 1990.
On April 18, 1990, a shortage of Meperidine 100 from the Lake Placid pharmacy was discovered.
The Meperidine shortage was discussed with the Respondent on April 19th at which time the Respondent admitted he was aware of the shortage but did not know the proper procedure for recording it and did not record the shortage.
April 20, 1990, an audit of the Lake Placid pharmacy was conducted by the Director of the pharmacy which revealed shortages of Hydrocodone, generic Fiorinal and Fioricet.
At the Lake Placid pharmacy, during the time of his employment there, it was the Respondent's responsibility to record, or at least report shortages or theft at the pharmacy.
On July 10, 1990, an audit was conducted of the Lake Placid pharmacy by Investigator James Potter of the Department of Professional Regulation.
The results of the audit conducted by Mr. Potter, of the Lake Placid pharmacy, on July 10, 1990, revealed the following shortages for the period ending June 1, 1990.
Fastin short 270
Fiorinal short 159
Fioricent short 300
Tylenol short 73
Hydrocodone liquid short 1,547 oz. Meperidine 300 mg short 56 syringes
Meperidine 50 mg short 360 milliliters Meperidine 75mg short 141 milliliters Meperidine 100mg short 540 milliliters Morphine 8mg short 60 milliliters
Morphine 10mg short 9 milliliters
From the time of the Respondent's suspension until the DPR audit, Donald Boger was in charge of dispensing medications at the Lake Placid pharmacy, who recorded all transactions that took place in the pharmacy for the period April through June, 1992.
Fastin is a Schedule III prescription drug, and is a medicinal drug as defined in Section 465.003(7), Florida Statutes.
Fiorinal is a medicinal drug as defined under Section 465.003(7), Florida Statutes, and falls within Schedule III prescription drugs.
Fioricent is also a medicinal drug as defined by Section 465.003(7), Florida Statutes, and falls within Schedule III prescription drugs.
Tylenol Number 3 is also a medicinal drug as defined by Section 465.003(7), Florida Statutes, and falls within Schedule III prescription drugs.
Hydrocodone is also a medicinal drug as defined by Section 465.003(7), Florida Statutes, and falls within Schedule III prescription drugs.
The Respondent was incapable of determining how many drugs were in the pharmacy, but relied on the computer records as his system for keeping track of the drug inventory.
Responsibility for operation of the pharmacy lies not only with the consultant pharmacist, but also with the Respondent.
No evidence was presented which demonstrated that Respondent was unfit or incompetent to practice pharmacy.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
Petitioner is charged with the duty to investigate and prosecute all those engaged in the practice of the profession of pharmacy throughout the
state, who violate the standards of practice or disciplinary action, as set forth in Section 465.016, Florida Statutes, and to seek to discipline those licensed thereunder who violate the law, pursuant to Section 455.225, Florida Statutes.
The Petitioner has the burden to prove, by clear and convincing evidence, the violations of Section 465.016, Florida Statutes, as alleged in the administrative complaint issued against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The Department has presented evidence on the charge in Court II of the Administrative Complaint that the Respondent violated Section 465.016(1)(e), Florida Statutes 1991.
Section 465.016, Florida Statutes, relating to Disciplinary actions, provides in pertinent part:
The following acts shall be grounds for disciplinary actions set forth in this section:
Violating any of the requirements of this chapter; or if licensed as a practitioner in this or
any other state, violating any of the requirements of their respective practice act or violating Chapter 499;
21 USC. ss. 301-392, known as the Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 82 et seq., known as the Federal Drug Abuse Act; or Chapter 893.
Section 893.07, Florida Statutes, relating to records states in pertinent portion as follows: (1) Every person who engages in the . . . compounding, mixing, . . . or in the dispensing . . . of controlled substances shall maintain on a current basis a complete and accurate record of each substance manufactured, received, sold, delivered or otherwise disposed of by him, except that this subsection shall not require the maintenance of a perpetual inventory .
(5) Each person shall maintain a record which shall contain a detailed list of controlled substances lost, destroyed or stolen, if any; the kind and quantity of such controlled substance; and the date of the controlled substances; and the date of the discovering of such loss, destruction and theft.
The Respondent has failed to maintain records as required by Section 893.07, Florida Statutes.
The Department has proven by clear and convincing evidence that Respondent was responsible for serious shortages of medicinal drugs in violating Section 465.016(1)(e), Florida Statutes.
The Respondent cannot rely on the excuse that "It's not my fault because someone else is responsible." It was apparent to Respondent that the computer records were inadequate, but took no steps to correct the procedure. Although a thorough audit was not conducted until several months after
Respondent left the pharmacy, the amounts of the shortages are so great that it indicates a long term problem with the inventory existed which clearly implicates Respondent. Respondent had an absolute responsibility under the law to record the shortages that he was aware of.
Based on the foregoing, it is
RECOMMENDED that the Board of Pharmacy enter a Final Order finding that Respondent Rocky Schierhoff, has violated Section 465.016(1)(e), Florida Statutes (1991). It is further
RECOMMENDED that the Respondent should be reprimanded by the Board for failure to maintain proper records, and the Respondent should be assessed an administrative fine of $1000.00 dollars and placed on probation for a period of two years with such reasonable terms and conditions as the Board may prescribe.
DONE AND ENTERED this 31st day of March, 1992, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.
COPIES FURNISHED:
Tracey S. Hartman, Esquire
Dept. of Professional Regulation 1940 N. Monroe Street, Suite. 60
Tallahassee, Florida 32399-0792
Rocky R. Schierhoff
407 S. Egret Street Sebring, Florida 33872
Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe Street, Ste. 60
Tallahassee, Florida 32399-0792
John Taylor Executive Director
Dept. of Professional Regulation 1940 N. Monroe Street, Ste. 60
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
Issue Date | Proceedings |
---|---|
Jun. 22, 1992 | Final Order filed. |
Mar. 31, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 1-29-92. |
Mar. 06, 1992 | Petitioner`s Proposed Recommended Order filed. |
Feb. 25, 1992 | Transcript filed. |
Jan. 30, 1992 | CASE STATUS: Hearing Held. |
Jan. 22, 1992 | (Petitioner) Unilateral Prehearing Stipulation filed. |
Nov. 20, 1991 | Notice of Hearing and Initial Prehearing Order sent out. (hearing set for Jan. 29, 1992; 9:00am; Sebring). |
Nov. 07, 1991 | (Petitioner) Notice of Substitution of Counsel filed. |
Nov. 01, 1991 | (Petitioner) Notice of Service of Petitioner`s Request for Admissions and First Set of Interrogatories to Respondent; Petitioner`s First Request for Admissions and Interrogatories filed. |
Oct. 30, 1991 | (Petitioner) Response to Order filed. |
Oct. 23, 1991 | Initial Order issued. |
Oct. 16, 1991 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
Issue Date | Document | Summary |
---|---|---|
May 26, 1992 | Agency Final Order | |
Mar. 31, 1992 | Recommended Order | Respondent failed to maintain records of Schedule III medicinal drugs and should be fined and placed on probation |