STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1552

)

ASA GENE PICKENS, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 12, 1993, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William A. Bausch, Qualified

Representative 1/

Department of Business and Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No appearance

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations described in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On October 2, 1991, the Department of Professional Regulation (now the Department of Business and Professional Regulation and hereinafter referred to as the "Department") issued an Administrative Complaint against Respondent, a Florida-licensed pharmacist, alleging that "[b]etween approximately February 4 and April 18, 1991, on approximately five occasions, a confidential informant for the Drug Enforcement Administration purchased quantities of Halcion, Xanax, Doral, and Tenuate Dospan from the Respondent without having presented a prescription." According to the Administrative Complaint, in engaging in such conduct Respondent "violated Section 465.015(2)(c), Florida Statutes, and is therefore subject to discipline as provided by Section 465.016(1)(e), Florida Statutes (Count One)," "violated Section 893.13(2)(a), Florida Statutes and is

therefore subject to discipline as provided by Section 465.016(1)(e), Florida Statutes (Count Two)," and "violated Section 893.13(1)(a), Florida Statutes and is therefore subject to discipline as provided by Section 465.016(1)(e), Florida Statutes (Count Three)."

Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On March 19, 1993, the Department referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.

At the final hearing held in this case on August 12, 1993, the Department presented the testimony of three witnesses: David Dimon, an investigator with the Department; Emilio John Chaves, a former diversion investigator with the Drug Enforcement Administration; and Melvin Owens, the confidential informant referred to in the Administrative Complaint. In addition to the testimony of these three witnesses, the Department offered, and the Hearing Officer received,

13 exhibits (Petitioner's Exhibits 1-2, 4-6, 8, 10-12 and 15-18) into evidence. Although provided notice in accordance with Section 120.57(1)(b)2, Florida Statutes, Respondent did not appear at the hearing, either in person or through a representative, and therefore presented no evidence in his defense. 2/

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, established a deadline for the filing of post-hearing submittals. The deadline set by the Hearing Officer was 15 days from the date of the Hearing Officer's receipt of the transcript of the hearing.

The Hearing Officer received the hearing transcript on September 22, 1993.

On October 5, 1993, the Department filed a proposed recommended order. The Department's proposed recommended order contains what are labelled as proposed "findings of fact." These proposed "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The Department is a state government licensing and regulatory agency.

   
   

2. Respondent is now, and has been since October 4, 1979, a licensed pharmacist in the State of Florida.

   
   

3. He holds license number PS 0017661.

   
   

4. In October of 1987, based upon Respondent's having the year before "pled guilty [in criminal court] to one count of grand theft and one count of possession of diazepam," the Board of Pharmacy suspended Respondent's license for a period of one year and placed him on probation for a period of three years, commencing upon the conclusion of his suspension.

   
   

5. On February 4, 1991, February 11, 1991, February 19, 1991, March 6, 1991, and April 18, 1993, in exchange for cash, Respondent sold to Melvin Owens, who was serving as a confidential informant for the Drug Enforcement Administration, 3/ various quantities of drugs, to wit: quazepam, under the brand name of Doral (February 4, February 19, and March 6), triazolam, under the

   brand name of Halcion (February 4, February 11, February 19, March 6, and April 18), alprazolam, under the band name of Xanax (February 11, February 19, March 6, and April 18), and diethylpropion hydrochloride, under the brand name of Tenuate Dospan (March 6), without first being presented with a prescription for these drugs.

   
   

6. All five transactions took place in Palm Beach County, Florida.

   
   

7. Although Respondent was employed as a pharmacist at a Phar-Mor Discount Pharmacy (hereinafter referred to as "Phar-Mor") located in Palm Beach County at the time of these transactions, in selling these controlled substances to Owens, Respondent was not acting in the usual course of his professional practice as a Phar-Mor pharmacist.

   
   

8. Respondent did not have a permit authorizing him to act as a drug wholesaler at the time of these transactions.

   
   

9. On April 24, 1991, Respondent was indicted in federal court on five counts of unlawful distribution of controlled substances for his role in the above-described transactions.

   
   

10. Subsequently, the Department issued a three-count Administrative Complaint charging Respondent with wrongdoing in connection with these transactions.

    
    

11. Respondent pled guilty to the federal criminal charges pursuant to a plea agreement.

    
    

12. Thereafter, Respondent was adjudicated guilty and sentenced to 60 days confinement, followed by two years of supervised release, on each count of the federal indictment, with the sentences to run concurrently.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Board of Pharmacy (hereinafter referred to as the "Board") is statutorily empowered to take disciplinary action against a Florida-licensed pharmacist, such as Respondent, based upon any of the grounds enumerated in Section 465.016(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: license revocation; license suspension; imposition of an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; and placement of the pharmacist on probation. Section 465.016(2), Fla. Stat.

    
    

14. Where the disciplinary action sought is the revocation or suspension of the pharmacist's license, the proof of guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

15. Where the discipline does not involve the loss of licensure, the accused's guilt need be established by only a preponderance of the evidence.

    See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

16. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

17. Furthermore, in determining whether Section 465.016(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute . . . .

    This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it.

    Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

18. The Administrative Complaint issued in the instant case alleges that "[b]etween approximately February 4 and April 18, 1991, on approximately five occasions," Respondent, "without having [been] presented a prescription," sold to "a confidential informant for the Drug Enforcement Administration . . .

    quantities of Halcion [triazlam], Xanax [alprazolam], Doral [quazepam], and Tenuate Dospan [diethylpropion hydrochloride]."

    
    

19. It further alleges that, in engaging in such conduct, Respondent violated Section 465.015(2)(c), Florida Statutes (Count I), Section 893.13(2)(a), Florida Statutes (Count II), and Section 893.13(1)(a), Florida Statutes (Count III), and that he "is therefore subject to discipline as provided by Section 465.016(1)(e), Florida Statutes."

    
    

20. Section 465.016(1)(e), Florida Statutes, authorizes the Board to discipline a Florida-licensed pharmacist for, among other things, "[v]iolating any of the requirements of this chapter [Chapter 465, Florida Statutes]."

    
    

21. The "requirements of this chapter," Chapter 465, Florida Statutes, include those found in Section 465.015(2)(c), Florida Statutes, which provides as follows:

    
    

    It is unlawful for any person:

    
    

    To sell or dispense drugs as defined in s. 465.003(7) without first being furnished with a prescription.

    
    

22. The term "drugs," as used in Section 465.015(2)(c), Florida Statutes, is defined in Section 465.003(7), Florida Statutes, as "those substances or preparations commonly known as 'prescription' or 'legend' drugs which are required by federal or state law to be dispensed only on a prescription, but shall not include patents or proprietary preparations as hereafter defined."

    
    

23. Quazepam, triazolam, alprazolam, and diethylpropion hydrochloride are "drugs," as defined in Section 465.003(7), Florida Statutes. See Sections 893.03(4) and 893.04, Fla. Stat.

    
    

24. The evidence clearly and convincingly establishes that, during the period from February 4, 1991, to April 18, 1991, Respondent sold these "drugs" to a confidential informant "without first being furnished with a prescription," in violation of Section 465.015(2)(c), Florida Statutes.

25. Accordingly, Respondent should be found guilty of this violation of Chapter 465, Florida Statutes, and disciplined therefor pursuant to Section 465.016(1)(e), Florida Statutes, as asserted in Count I of the Administrative Complaint.

    
    

26. Section 465.016(1)(e), Florida Statutes, also authorizes the Board to discipline a Florida-licensed pharmacist for "[v]iolating . . . chapter 893."

    
    

    27. Sections 893.04(1), 893.13(1)(a) and 893.13(2)(a), Florida Statutes, are among the statutory provisions that comprise Chapter 893, Florida Statutes. They provide in part as follows:

    
    

    Section 893.04(1)- A pharmacist in good faith and in the course of professional practice only, may dispense controlled

    substances upon a written or oral prescription of a practitioner.

    Section 893.13(1)(a)- Except as authorized

    by this chapter and chapter 499, it is unlawful for any person to sell . . . a controlled substance.

    Section 893.13(2)(a)- It is unlawful for any person:

    1. To distribute or dispense a controlled substance in violation of the provisions of this chapter relating thereto.

1. Quazepam, triazolam, alprazolam, and diethylpropion hydrochloride are "controlled substances," as that term is used in Sections 893.04(1), 893.13(1)(a) and 893.13(2)(a), Florida Statutes. See Section 893.03(4), Fla. Stat.

   
   

2. The evidence clearly and convincingly establishes that, during the period from February 4, 1991, to April 18, 1991, acting outside the "course of professional practice" and not "upon a written or oral prescription of a practitioner," Respondent sold and distributed these "controlled substances" to a confidential informant, in violation of Sections 893.04(1), 893.13(1)(a) and 893.13(2)(a), Florida Statutes.

   
   

3. Accordingly, he should be found guilty of these violations of Chapter 893, Florida Statutes, and disciplined therefor pursuant to Section 465.016(1)(e), Florida Statutes, as asserted in Counts II and III of the Administrative Complaint.

   
   

4. In determining what disciplinary action should be taken against Respondent for having committed the violations found above, it is necessary to consult Chapter 21S-30, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Board. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

   
   

5. Subsection (2) of Rule 21S-30.001, Florida Administrative Code, sets forth "the range of penalties which will normally be imposed" for a "single count violation" of particular statutory and rule provisions.

6. For a "single count" of "selling or dispensing drugs without a prescription," where the "drugs" involved are "controlled substances," the normal range of penalties, as prescribed by subsection (2) of Rule 21S-30.001, Florida Administrative Code, is a minimum of a $1,000.00 fine plus one year of probation up to a maximum of revocation.

   
   

7. For a "single count" violation of "dispensing or distributing legend drugs outside professional practice of pharmacy," the normal range of penalties, as prescribed by subsection (2) of Rule 21S-30.001, Florida Administrative Code, is a minimum of one year of probation up to a maximum of revocation.

   
   

8. Subsection (3) of Rule 21S-30.001, Florida Administrative Code, provides that the Board may impose a penalty outside the normal range where there are mitigating or aggravating circumstances.

   
   

9. The mitigating or aggravating circumstances that may warrant such a deviation are described in subsection (3)(a) of Rule 21S-30.001, Florida Administrative Code, as follows:

   
   

   Aggravating circumstances: circumstances which may justify deviating from the above set forth disciplinary guidelines and cause enhancement of a penalty beyond the maximum level of discipline in the guidelines shall include but not be limited to the following:

   
   

   1. History of previous violations of the practice act and rules promulgated thereto.

   2. In the case of negligent acts, the magnitude and scope of the damage or potential damage inflicted upon the patient or the general public by the licensee's misfeasance.

   3. Evidence of violation of professional practice acts in other jurisdictions wherein the licensee has been disciplined by the appropriate regulatory authority.

   4. Violation of a provision of the practice act wherein a letter of guidance as provided in F.S. 455.255(3) has previously been issued to the licensee.

      
      

      (b) Mitigating circumstances; circumstances which may justify deviating from the above set forth disciplinary guidelines and cause the lessening of a penalty beyond the minimum level of discipline in the guidelines shall include but not be limited to the following:

      
      

      1. In cases of negligent acts, the minor nature of the damage or potential damage to the patient's or the public's health, safety and welfare resulting from the licensee's misfeasance.

      2. Lack of previous disciplinary history in this or any other jurisdiction wherein the licensee practices his profession.

      3. Restitution of any monetary damage suffered by the patient

      4. The licensee's professional standing among his peers.

      5. Steps taken by the licensee to insure the nonoccurrence of similar violations in the future including continuing education.

      6. The degree of financial hardship incurred by a licensee as a result of the imposition of fines or the suspension of his practice.

      
      

10. Subsection (1) of Rule 21S-30.001, Florida Administrative Code, provides that "[m]ultiple counts of violations of the same provision of Chapter

    465 or the rules promulgated thereto, or other unrelated violations contained in the same administrative complaint will be grounds for enhancement of penalties."

    
    

11. Having carefully considered the facts of the instant case in light of the provisions of Chapter 21S-30, Florida Administrative Code, set forth above, the Hearing Officer concludes that the Board should discipline Respondent for having committed the violations alleged in Counts I, II, and III of the Administrative Complaint found above by revoking his license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint and disciplining him for having committed these violations by revoking his license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1993.

STUART M. LERNER

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 12th day of October, 1993.

ENDNOTES

1/ On August 10, 1993, upon Petitioner's written request, which was accompanied by an affidavit signed by Bausch, the Hearing Officer issued an order accepting Bausch as Petitioner's qualified representative in the instant case.

2/ The Department initially requested that a default be entered against Respondent based upon his failure to appear at hearing, but, in a pleading filed October 5, 1993, it withdrew its request and asked that the charges against Respondent be resolved on their merits.

3/ The cash that Owens used to make these purchases was supplied by the Drug Enforcement Administration.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-1552

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order:

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

   
   

2. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3-4. Accepted and incorporated in substance.

1. First sentence: To the extent that this proposed finding refers to the purchase of "non-controlled substances," it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

2. Accepted and incorporated in substance.

   
   

3. To the extent that this proposed finding states that, on the dates recited therein, Respondent received money "in exchange for the controlled . . . drugs listed in [Petitioner's Exhibit] 11," it has been accepted and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

4. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

5. Accepted and incorporated in substance.

   
   

6. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

William A. Bausch, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Asa Gene Pickens, Jr.

210 17th Avenue South Lake Worth, Florida 33460

John Taylor, Executive Director Board of Pharmacy

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency 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.

Docket for Case No: 93-001552

Orders for Case No: 93-001552