The Issue Whether Respondent's permit to operate a pharmacy should be suspended or revoked for alleged violations of Sections 465.18(1)(b), 465.18(2)(b), 465.22(1)(c), Florida Statutes, and Rule 21S-1.14, Florida Administrative Code. At the commencement of the hearing, counsel for Respondent moved to continue the proceedings in order that Detective Robert Delgado could be deposed. There being no showing that a timely notice of taking deposition had been issued or a subpoena requested therefor, the Motion was denied.
Findings Of Fact While on a routine inspection of a pharmacy, Vernon K. Bell, investigator for the Petitioner, obtained a prescription issued by Dr. Rafael Cardella, Miami, Florida for 30 tablets of cardilate, 10 miligrams, that had not been picked up at the pharmacy by the person designated in the prescription. Bell secured this prescription for use in investigation of other pharmacies. Cardilate is a vasodilator that is used by cardiac patients with angina pectoris as a maintenance medication to prevent one from having angina pectoris attacks. It is a product made by Burroughs Wellcome Pharmaceutical House and consists of scored white tablets. The tablets act similarly to nitroglycerin medication and are dispensed only upon prescription (Testimony of Bell, Petitioner's Exhibit 1.) Acting upon a prior complaint against Respondent's pharmacy, Bell conducted an investigation into its practices with regard to dispensing prescription medicine. At 8:50 P.M., January 14, 1976, he provided the cardilate prescription to officer Robert Delgado, intelligence investigator, Dade County Public Safety Department, who entered Respondent's pharmacy to see if the prescription would be filled during a period when it was assumed that the registered pharmacist was not on duty. He handed the prescription to Concepcion Prada and asked that it be filled. She went to the prescription area of the pharmacy through an unlocked door and in five or ten minutes came back with a bottle of pills labeled "cardilate 10". Delgado had been unable to observe who had filled the prescription. Mrs. Prada told him that she only had ten tablets, but that he could come the next day for the remainder of the prescription of thirty tablets. He paid her $1.50 for the medicine, left the pharmacy, and turned the bottle over to Bell who was outside (Testimony of Delgado, Petitioner's Exhibit 2.) Bell thereupon entered the Pharmacy, identified himself and asked Mrs. Prada if there was a pharmacist on duty. She responded in the negative. Bell then proceeded through an open door into the prescription department and picked up the prescription that he had given to Delgado. He then asked Mrs. Prada who had filled the prescription and she informed him that she had done so. He then told her that he would be issuing a violation complaint in the matter. Mrs. Prada had been a registered pharmacist in Cuba, but had informed Bell on a prior occasion that she was not a registered pharmacist in Florida. At the time of the incident described above, she told him that she was going to attend classes at Loyola School. This school prepares individuals who desire to obtain qualifications for taking examinations for registration before the Board of Pharmacy. Circumstances surrounding the statements made by Mrs. Prada to Bell establish that they were made voluntarily (Testimony of Bell.) It is possible that cardilate could save a life under certain circumstances. At the time of the dispensing of the medicine in question, three or four pharmacies within 10 blocks of Respondent's pharmacy were open (Testimony of Bell.)
Recommendation That a civil penalty in the sum of $500.00 be imposed against Respondent under the authority of Section 465.101(3), Florida Statutes, for violation of Section 465.18(1)(b), Florida Statutes, and Rule 21S-1.14, Florida Administrative Code. DONE and ENTERED this 19th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1976. COPIES FURNISHED: Michael Schwartz, Esquire 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 Stanley P. Kaplan, Esquire 404 Biscayne Building Miami, Florida Guillermo F. Mascaro, Esquire 301 Almeria, Suite 3 Coral Gables, Florida 33134 Emilio De La Cal, Esquire 301 Almeria Avenue Coral Gables, Florida
The Issue Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.: On January 2, 1977, Officer J.W. Carlyle of the Jacksonville Beach Police Department, Jacksonville Beach, Florida, acting in an undercover capacity, purchased from the licensee for $10.00, six capsules of what the licensee represented to him to be mescaline, which was in fact liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time the licensee threw to the ground, a vial containing six foil packets which upon analysis proved to be phenoharbitol, a controlled substance. Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.: Licensee was charged with felony of possession of a controlled substance, to wit: phenobarbital, in Case No. 77-249 CFS in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication was withheld and she was placed on probation for a period of two years, with a special condition that she enroll and follow through with a drug treatment program, in- patient if necessary. There were several other substantive violations found in the Administrative Complaint, specifically in paragraphs 1, 2 and 5 of that complaint. These substantive paragraphs were withdrawn from consideration upon the Motion to Withdraw by the Petitioner's attorney and the agreement of the Respondent's attorney.
Findings Of Fact Theresa Kathleen Stewart, R.N., holds License No. 73310-2, with the State of Florida, Board of Nursing. In the course of the hearing, the following factual stipulation was entered into between the parties: On January 2, 1977, Officer J. W. Carlyle of the Jacksonville Beach Police Department, acting in an undercover capacity, purchased from the licensee for $10.00 six capsules of what the licensee represented to be mescaline. In fact, the substance was liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time, (January 2, 1977), the licensee threw to the ground the vial containing six foil packets which upon analysis proved to be phenobarbital, a controlled substance. The charges brought from the arrest for the possession and sale of the alleged mescaline were dropped when the chemical analysis of the substances proved them to be liver pills and/or vitamins. Out of the events of January 2, 1977, the licensee was charged with a felony of possession of a controlled substance, to wit: phenobarbital, in Case NO. 77-249 CFS, in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication of guilt was withheld and she was placed on probation for a period of two years with a special condition that she enroll and follow through with a drug treatment program, in-patient if necessary. Based upon the facts recited, the Petitioner claims that the Respondent has violated 464.21(1)(b)(c) and (d), F.S. which states: "GROUNDS FOR DISCIPLINE-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (b) Unprofessional conduct which shall include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which proceeding, actual injury need not be established." An examination of the facts stipulated to as the basis for consideration of this case, do not constitute a sufficient showing that the Respondent has been guilty of unprofessional conduct within the meaning of 464.21(1)(b), F.S. The second substantive violation alleged by the Petitioner pertains to 464.21(1)(c), F.S., which reads as follows: "GROUNDS FOR DISCIPLINE.-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (c) Habitual intemperance or addiction to the use of controlled substances as set forth in chapter 893." Again, an analysis of the facts presented did not warrant the conclusion that the Respondent is guilty of habitual intemperance or addiction to the use of controlled substances found in 893, F.S. The third substantive violation asserted by the Petitioner pertains to 464.21(1)(d), F.S., whose provisions are: "GROUNDS FOR DISCIPLINE-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (d) Engaging in the possession, sale or distribution of controlled substances as set forth in chapter 893, [for any other than legitimate purposes]." The facts agreed to in this cause establish that the Respondent was in possession of a controlled substance as set forth in 893, F.S., for other than legitimate purposes. Therefore, the licensee is held accountable for the penalties which may be imposed from such possession.
Recommendation At the conclusion of the factual stipulation, the parties were given an opportunity to present matters in aggravation and mitigation. Counsel for the Petitioner waived the opportunity to submit matters in aggravation. The Respondent presented mitigation. Some of the items of mitigation may be found in the Respondent's Exhibits 1 through 3 admitted into evidence. Exhibit 1 is a letter from a counselor with the Peninsula Manpower Training Skills Center in Hampton, Virginia. This letter states that the Respondent is enrolled in a horticulture class at the Vocational Technical Education Center of Hampton, Virginia, and is maintaining excellent grades and attendance standards. It also states that Respondent is working part-time at a local florist. The second Respondent's exhibit is a letter from the Commonwealth of Virginia, Department of Corrections, Division of Probation and Parole Service, District 19. This is a letter from the Probation/Parole Officer, Drug/Alcohol Specialist, who states that the Respondent is doing well in her probation period. The final Exhibit No. 3, by Respondent, is a letter from a Rehabilitation Counselor with the Drug Rehabilitation Program of the City of Hampton, Virginia, which shows that Respondent is progressing well in the drug rehabilitation program. Respondent at present lives with her husband and eighteen months old child. It is the Respondent's desire that she be given probation for the offense, in order to allow her a clean record, should she apply for a license to be a registered nurse in the State of Virginia. It is her intention to make such application if possible. After considering the nature of the factual stipulation and the matters offered in mitigation, it is recommended that the license of Respondent to practice nursing in the State of Florida be suspended for a period of two years. DONE and ENTERED this 25th day of October, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Herbert V. Kelly, Jr., Esquire 2600 Washington Avenue First and Merchants National Bank Building Post Office Box 78 Newport News, Virginia 23607 Ms. Theresa Kathleen Stewart 5927 Madison Avenue Newport News, Virginia 23605 William Travis, Esquire 4611 Pinewood Road Jacksonville, Florida 32210
The Issue Whether Respondents committed the offenses described in the Amended Administrative Complaints? If so, what disciplinary action should be taken against them?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Haro is now, and has been since April of 1980, a licensed pharmacist in the State of Florida. He holds license number PS 0017949. Rome is now, and has been since February of 1978, the holder of permit number PH 0007008, which authorizes it to operate La Generosa Pharmacy (hereinafter referred to as "La Generosa" or the "Pharmacy") as a community pharmacy in Dade County, Florida. At no time in the past has Rome, as the holder of permit number PH 0007008, been disciplined by the Board of Pharmacy. For the past eighteen years, Roger Diaz has been Rome's sole corporate shareholder and the owner of the Pharmacy. Haro was employed as the prescription department manager of La Generosa and its only pharmacist from approximately October 16, 1990, until some time after the dates of the alleged violations in these consolidated cases. He worked full-time (40 hours a week). Harold Gluck is an investigator with the Department. On December 4, 1990, at approximately 2:00 p.m., Gluck attempted to conduct a routine annual inspection of the Pharmacy, which had last been inspected 13 months previous. Upon entering the Pharmacy, Gluck found that there was no pharmacist on duty. Diaz was there, however. The lights in the prescription department were off and a "closed" sign was posted. A door to the prescription department, although closed, was unlocked. Gluck opened the door, walked in and turned on the lights. He saw Haro's license hanging on the wall. On the counter, he observed prescription vials containing pharmaceuticals. It appeared to Gluck that someone had been in the process of filling these vials and had been interrupted before completing the task. Gluck inquired of Diaz as to the whereabouts of the pharmacist. Diaz, in response to Gluck's inquiry, indicated that Haro had taken the day off to tend to some personal business. Gluck then asked Diaz who was filling the prescription vials "if the pharmacist isn't here." Diaz responded, "I don't know." Gluck continued his inspection. On the shelves in the prescription department he discovered a large number of expired drugs, some of which had expiration dates that predated the last inspection of the Pharmacy that had been conducted 13 months previous. None of the drugs that had been outdated for more than 13 months had been on the shelves during the last inspection. Gluck's inspection on December 4, 1990, also revealed prescription drugs in the Pharmacy outside of the prescription department. After cursorily examining the premises, Gluck left the Pharmacy. He told Diaz that he would be paying a return visit the following day to speak with Haro and to conduct a more thorough inspection. He warned Diaz not to enter the prescription department and asked him to lock the doors leading into that area of the Pharmacy. Diaz indicated that he would comply. Later that day at around 5:00 p.m., following Glucks's departure, Haro went to the Pharmacy "to observe how [it] was functioning." As he had promised, Gluck returned to the Pharmacy on December 5, 1990. He was accompanied by another of the Department's investigators, as well as three HRS drug inspectors. The prescription department was closed and Haro was nowhere to be seen. Diaz was present and Gluck asked him whether Haro had reported to work that day. Diaz told Gluck that Haro had again taken the day off to take care of a personal matter. Gluck tried to open the door he had used the day before to enter the prescription department, but it was locked and Diaz claimed not to know where to find a key to unlock the door. With Diaz's permission, Gluck and one of the HRS drug inspectors, Cesar Arias, walked into a back storage room that was adjacent the prescription department (hereinafter referred to as the "storage room") to ascertain if there was another entrance to the prescription department. There they spotted an unlocked door that led to the prescription department. After obtaining Diaz's authorization, they pushed the door open. In so doing, they moved an appliance, that had been behind the door, out of the way. They then walked into the prescription department. While in the prescription department, Gluck and Arias noticed a doorway that was covered, but not completely, by a piece of paneling. They removed the piece of paneling and then walked into the room (hereinafter referred to as the "hidden room"). The December 5, 1990, inspection of the Pharmacy revealed the following: Of the approximately 2,000 containers on the shelves in the prescription department, approximately 200 contained expired pharmaceuticals. Expired pharmaceuticals that Haro had removed from the shelves were in boxes in the storage room. There were containers of pharmaceuticals on the shelves in the prescription department that had labels which understated the quantity of pharmaceuticals in the container. There were containers of pharmaceuticals on the shelves in the prescription department that had labels which inaccurately described the strength of the pharmaceuticals in the container. On the shelves in the prescription department were containers of pharmaceuticals to which samples, that had been removed from their original packaging, had been added. According to records in the prescription department, prescriptions had been filled on December 4, 1990. Prescriptions for controlled substances that had been filled by Haro within the past month were lacking the date the prescription had been filled, the patient's name and address, the dispensing pharmacist's initials and/or the prescribing physician's DEA registration number. A bottle of Uropol, which Haro had for his own personal use, was in the prescription department. Uropol is a foreign drug that has not been approved for use in the United States. Vials containing prescription drugs that had been dispensed by Jorge's Pharmacy, another local pharmacy, were in the hidden room, as well as in bags, ready for customer pick-up, in the storage area. These vials had labels prepared by Jorge's Pharmacy. References to Jorge's Pharmacy's appear- ing on the labels, however, had been "whited out" so as to make it appear that Jorge's Pharmacy's was not the dispensing pharmacy. Furthermore, some of these vials contained lesser quantities of drugs than indicated on their labels. As Diaz candidly admitted to the inspection team during the inspection, Jorge's Pharmacy had filled these prescriptions pursuant to an arrangement that it had with Diaz. These were Medicaid prescriptions. Jorge's Pharmacy was a participant in the Medicaid program. La Generosa had been suspended from the program and therefore, unlike Jorge's Pharmacy, was not able to fill Medicaid prescriptions. Wanting to keep his Medicaid customers, Diaz had devised and implemented a scheme that allowed him to continue to do business with these customers. He had his Medicaid customers present their prescriptions to him or Blanca Uzman, one of his subordinates, at a counter outside of the store's prescription department (hereinafter referred to as the "outside counter"). The prescriptions were thereafter taken to Jorge's Pharmacy, where they were filled. The labeled vials containing the dispensed drugs were then delivered to La Generosa, where they were ultimately picked up, at the outside counter, but not before an effort had been made to obliterate, by using white-out, all references to Jorge's Pharmacy appearing on the vials' labels. Although Haro knew of this scheme, he was in no way involved in it. A prescription balance and prescription weights were in the hidden room. Neither a copy of the laws and rules governing the practice of pharmacy, a negative formulary, nor a biennial inventory record of controlled substances were located by the inspection team, although these items were on the premises. Following the December 5, 1990, inspection of La Generosa, administrative charges were brought against both Haro and Rome. Subsequent inspections of the Pharmacy established that "everything was in proper order."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board, with respect to Case No. 91-6297, enter a final order finding Haro guilty of the violations alleged in Counts I, III, VIII, VIV, and XV of the Amended Complaint/Haro and disciplining him for having committed these violations by suspending his license for a period of 60 days, placing him on probation for a period of one year following the end of his suspension subject to such terms as the Board may specify, and requiring him to pay an administrative fine in the amount of $1,500.00, and, with respect to Case No. 92-0227, enter a final order finding Rome guilty of the violations alleged in Counts I, V, VII, IX, and XI of the Amended Complaint/Rome and disciplining it for having committed these violations by suspending its permit to operate La Generosa as a community pharmacy for a period of two years, placing it on probation for a period of one year following the end of its suspension subject to such terms as the Board may specify, and requiring it to pay an administrative fine in the amount of $2,500.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 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 27th day of September, 1993.
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997.
Findings Of Fact Dora F. Villanueva is a licensed pharmacist in the State of Florida, holding license number PS 0014957. 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. 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. 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. While Ms. Villanueva was absent, there was no sign indicating the pharmacy prescription department was closed due to the absence of a pharmacist. 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.
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. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 4. Covered in finding of fact 4. Covered in finding of fact 4. Covered in finding of fact 5. Rulings on the proposed findings of fact and conclusions of law of the respondent. Covered in finding of fact 1. Covered in finding of fact 2. Covered in findings of fact 2 and 3. Generally covered in findings of fact 2 and 3. Rejected because I accepted the testimony of Mr. Daniels on this point, that there was no closed sign at all. 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. Rejected because I have accepted the testimony of Mr. Daniels that he saw Mary Washington in the pharmacy department. 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
Findings Of Fact At all times relevant hereto, respondent, Mark L. Klugman, was licensed as an optometrist having been issued license number OP 1758 by petitioner, Department of Professional Regulation, Board of Optometry (Board). He currently resides at 16021 Villa Drive, Hudson, Florida. On or about August 15, 1987 respondent had an occasion to examine Sandra J. Dinkins for the purpose of diagnosing her eyes and to prescribe and furnish contact lenses. She had never previously warn contact lenses. Dinkins selected respondent at random from the telephone directory because his office was nearby and open on Saturdays. At that time, respondent had an office in Tampa, Florida. After being given contact lenses, and making a total of six office visits, Dinkins was unhappy with the lenses and eventually went to another optometrist. A complaint was later filed with the Board, and this culminated in the issuance of an administrative complaint charging respondent with incompetence, gross or repeated malpractice and violating a Board rule. Respondent requested a hearing to contest these charges. According to Dinkins, the contact lenses prescribed by Dr. Klugman caused "total blurriness" and "hurt her eyes." After Dinkins complained about this condition, respondent told her to "wear them for a week and come back." Because she could not see with the lenses, Dinkins was forced to take them out after the first day. On her next appointment, respondent ordered a new left lens. When this did not correct the problem, Dinkins complained again. Respondent told her to keep wearing them and return in a week. This process continued for several weeks until she gave up and went to another optometrist. By this time, Dr. Klugman had ordered another set of lens, but these were never dispensed since the patient did not return. Doctor Klugman suspected that Dinkins' problems were due to the type of lenses he had prescribed rather than the prescription. He acknowledged at hearing, however, that although his suspicion was "logical," it was not correct. He now agrees the patient needed a corrected prescription for astigmatism to resolve her problem. After Dinkins' complaint was filed with the Board, she was examined by a DPR consultant, Dr. John R. Walesby, who has been in the practice of optometry for over thirty years. Doctor Walesby found that respondent's prescription for Dinkins' left eye was in error by 1.00 diopter of cylinder. After obtaining a corrected prescription and new contact lenses, Dinkins' vision measurably improved although she acknowledged she still has a few problems with her left eye. By failing to properly diagnose her acuity, Dr. Walesby concluded that, while respondent exerted a considerable amount of time and effort in trying to fit the patient, he had failed to conform with the minimum standards of optometry in the community. By rule 21Q-3.007 the Board has mandated that, at a minimum, certain procedures be performed by an optometrist while conducting a visual analysis of a patient, and that evidence of the performance of these procedures be recorded on the patient's records. A copy of Dinkins' patient records has been received in evidence as petitioner's exhibit 1. While the Board's complaint charged that respondent violated the foregoing rule in seven respects, at hearing its expert conceded that he had overlooked or misinterpreted certain entries. While the record is less than a model of clarity as to which procedures were performed and recorded on the records, it is found that procedures regarding the family medical history, family ocular history, and visual field testing were not performed or recorded on the records and therefore such deficiencies constitute a violation of the rule. Respondent pointed out that Dinkins could only visit his office on Saturdays and this made reexaminations difficult. However, his principal defense is that the customer wanted a refund and he did not give one, and this prompted the complaint. According to Dr. Klugman, he would not give a refund because the final set of lenses ordered for Dinkins was nonexchangeable and he could not return them to the manufacturer. In addition, he offered various financial records to show that he is heavily burdened with college loans and credit card bills and did not have the financial ability to make a refund. Even so, this does not excuse respondent from complying with Board rules and statutory requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 463.016(1)(g) and (h), Florida Statutes (1987), that he be fined $1000, and that his license be placed on probation for twelve months under such conditions as the Board may deem appropriate. The remaining charge should be dismissed. DONE and ORDERED this 23rd day of March, 1989 in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 6. Covered in finding of fact 4. Covered in finding of fact 3. Covered in finding of fact 5. 7-8. Covered in finding of fact 8 to the extent they are consistent with the evidence. Covered in finding of fact 9. Rejected as unnecessary. COPIES FURNISHED: Laura P. Gaffney, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark L. Klugman, O.D. 3611-49th Street North St. Petersburg, Florida 33710 Pat Guilford Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
