The Issue The question presented in this case, is whether or not the Respondent, James R. Gibbons, has violated the conditions of Section 465.22(1)(c), Florida Statutes, by failing to maintain on a current basis a complete and accurate record of each controlled substance controlled by Chapter 893, Florida Statutes; in particular controlled by Section 893.07, Florida Statutes. This violation is alleged to have occurred at Washington Park Pharmacy, Inc., 750 Northwest 22 Road, Ft. Lauderdale, Florida. The alleged violation was noted by V. K. Bell, agent, Florida Board of Pharmacy, based upon a drug accountability audit which covered the period from September 1, 1976 to October 3, 1977.
Findings Of Fact This cause comes on for consideration based upon the complaint and notice to show cause brought by the Petitioner, Florida Board of Pharmacy, in an action against James R. Gibbons, who is licensed to practice pharmacy by the Petitioner and who is the owner/operator of Washington Park Pharmacy, Inc., located at 750 Northwest 22 Road, Ft. Lauderdale, Florida. The action charges that James R. Gibbons, while licensed to practice pharmacy in the State of Florida, violated the provisions of Section 465.22(1)(c), Florida Statutes. This claim of violation is premised upon the alleged failure of the Respondent, James R. Gibbons, to comply with the conditions of Section 893.07, Florida Statutes, in that the Respondent permitted the improper keeping of records, by failing to maintain on a current basis a complete and accurate record of each controlled substance controlled by Chapter 893, Florida Statutes. This failure of control was alleged to have occurred at the Washington Park Pharmacy, Inc., at 750 Northwest 22 Road, Ft. Lauderdale, Florida. The prosecution is grounded on the investigation performed by V. K. Bell, agent, of the Petitioner and specifically arises from a drug accountability audit which covered the period from September 1, 1976 to October 3, 1977. As a part of his duties, agent V. K. Bell, an employee with the Florida Board of Pharmacy, conducted an audit of the Washington Park Pharmacy, Inc., located at 750 Northwest 22 Road, Ft. Lauderdale, Florida. The period of the audit covered September 1, 1976 through October 3, 1977. An element of the audit concerned the class II drugs, Dilaudid, 4mg. tablets and Quaalude, 300 mg. tablets. A synopsis or summary of the audit process pertaining to the two drugs by weight, may be found as Petitioner's Exhibit #1, admitted into evidence. In that audit report, agent Bell has broken down the amounts of the questioned drugs into categories. These categories begin with a zero initial inventory on September 1, 1976 and report the total number of tablets purchased; the amount of ending inventory; the amount of sales by prescription, both legitimate and possible forgeries; the amount of losses by theft; and the amount short, for which there is allegedly no explanation. By the figures reported by agent Bell; 59,100 Dilaudid 4mg. tablets were purchased in the audit period; 200 tablets remained as ending inventory; 49,869 tablets were reported as sales or loss by theft; and 9,031 tablets were reported short. Looking at the report rendered by agent Bell on the substance Quaalude, 300 mg. tablets, it shows a total purchase within the inventory period of 32,200; an ending inventory of 50; sales of 25,421 by prescription; and 6,729 tablets short. The Respondent has taken issue with the statistical data offered by the Petitioner. In its argument against the case of the Petitioner, the Respondent has offered Respondent's Exhibits 5 & 6, admitted into evidence. These exhibits are respectively a compilation of the sales made to the Respondent by the Gulf Drug Company and Crandon Drugs, Inc. The tapes which are attached to those exhibits act as a take-off in adding the amounts of the two questioned substances, and show that 54,200 Dilaudid 4mg. tablets were purchased during the audit period and 29,700 Quaalude 300mg. tablets were purchased during the audit period, according to the computations of the Respondent, James R. Gibbons. Gibbons also takes issue with the allegation found in the audit summary, to the effect that certain prescriptions were forged by the doctors listed. The depositions of Drs. Collier, Cohen, Morris, and Walker were taken prior to the hearing. Those depositions have been admitted into the record in lieu of testimony at the hearing. The deposition of David Collier, D.O., shows that during the audit period, he wasn't treating the patients who needed the two drugs Dilaudid and Quaalude. He did indicate that at one time he had left prescription pads in the treatment rooms where someone may have picked those prescription pads up. However, he denies signing any prescriptions which were shown to him and alleged to have been under his signature. He thereby states that those prescriptions are forgeries. He also denied that any prescription forms with the name Washington Park Pharmacy had been provided to him. Dr. Collier's partner for a time, was Bernard Cohen, D.O. Dr. Cohen states that he wrote prescriptions for Quaalude and Dilaudid in November, 1975, but not on pads from Washington Park Pharmacy. He also admitted that employees within his office other than he and Dr. Collier had access to the prescription pads. He recalls that during the audit period one patient was on Dilaudid and one patient was receiving Quaalude. The writing exemplars that were shown to him which are prescriptions allegedly written by him were felt to be forgeries, with the exception of his patients which he identified as his. From his recollection the Washington Park Pharmacy never called about any alleged forgeries that may have been received bearing his name. The deposition of William A. Morris, III, M.D. establishes that he has prescribed Dilaudid and Quaalude, but not in the amounts attributed to him in the audit. He also stated that in February, 1976, there was a "break-in" and certain prescription pads were missing. The signature on the exemplars shown to him were felt to be similar to his signature; however, he did not recognize any of the names to be his patients and therefore felt that the substance of the prescription was a forgery. The deposition of Dr. Thomas J. Walker, M.D., establishes that he was not prescribing the drugs Dilaudid and Quaalude at the time of the audit. After looking at the exemplars of the prescriptions presented him he stated that those prescriptions had not been written by him. In his estimation, the prescription pads in his office were secure during the audit period and no "break-ins" or thefts had occurred. The explanation which the Respondent gave on the question of any possible forgeries was to the effect that he has a duty to fill the prescriptions which are tendered to him by a treating physician, and further that his practice is to notify the alleged treating physician when there is some question about the authenticity of the prescription given to him by a customer. The Respondent's explanation for any shortage of prescriptions during the audit period was to the effect that either the agent for the Petitioner or the representatives of the United States Drug Enforcement Authority had lost some of the records in transporting his books and records to their office for examination, or in the alternative those records still remained in his pharmacy and were undiscovered by the Petitioner's representative and representatives of the Drug Enforcement Authority. The positions of the parties should be examined in view of the requirements of the law under which the charge is brought. Section 465.22(1)(c), Florida Statutes, reads as follows: 465.22 Authority to revoke or suspend pharmacy permits.- (1) The Board of Pharmacy may revoke or suspend the permit of any pharmacy after giving reasonable notice and an opportunity to be heard to any permittee who shall have: * * * (c) Violated any of the requirements of this chap- ter or any of the rules and regulations of the Board of Pharmacy, of chapter 500, known as the Florida Food, Drug and Cosmetic Law, of Chapter 893, or who has been convicted of a felony or any other crime involving moral turpitude in any of the courts of this state, of any other state, or of the United States. By this charging document, the Petitioner is claiming that the Respondents have violated Section 893.07, Florida Statutes. A portion of that section is Section 893.07(3), Florida Statutes, which calls for the record of all controlled substances sold, administered, dispensed, or otherwise disposed of to be kept; to the extent of among other things, showing the kind and quantity of controlled substances sold, administered, or dispensed. Section 893.07 (4), Florida Statutes, also states that these records shall be kept and made available for a period of at least two years for inspection and copying by law enforcement officials. Section 893.07(5), Florida Statutes, calls for the maintenance of records of any substances lost, destroyed or stolen, as to the kind and quantity of such controlled substances and the date of discovery of the loss, destruction or theft. In reviewing the facts offered into evidence at the hearing, in the context of the position taken by the Petitioner at that hearing, it appears that the Petitioner is most concerned with the shortages, as opposed to the questioned prescriptions which they feel might be forgeries. Moreover, the facts establish that there was a "break-in" on August 30, 1977, in which the Respondent, James R. Gibbons' inventory showed that 128 Dilaudid 4mg. tablets were stolen or missing, for which the Petitioner gives credit in the audit process. Therefore, the analysis to be given this case will center on the "so- called" shortages of the two substances. The undersigned has reviewed the Exhibits 5 & 6 by the Respondent and finds the computations of the Respondent to be incorrect. An examination of those exhibits shows that 55,400 Dilaudid 4mg. tablets were purchased in the audit period and 30,200 Quaalude 300mg. tablets were purchased in the audit period. Using those figures, and subtracting the amount of tablets dispensed by prescriptions or lost through theft, to include questioned prescriptions, it shows 5,531 Dilaudid 4mg. tablets are short and 4,779 Quaalude 300mg. tablets are short. These shortages are shortages in which no meaningful explanation has been offered. The substances Dilaudid and Quaalude are class II drugs, for which records must be kept in a manner described above, in keeping with Section 893.07, Florida Statutes. The Respondent, James R. Gibbons, has failed to maintain the records in accordance with Section 893.07, Florida Statutes, and has thereby violated Section 465.22(1)(c), Florida Statutes.
Recommendation It is recommended that the permit to operate a pharmacy given to James R. Gibbons, owner/operator of Washington Park Pharmacy, Inc., be revoked. DONE AND ENTERED this 5th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert A. Pierce, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 W. George Allen, Esquire 116 Southeast Sixth Court Post Office Box 14738 Ft. Lauderdale, Florida 33302
The Issue The issue is whether the pharmacy permit issued to the Respondent, North Florida Drug Corporation, d/b/a Scottie Discount Drugs, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact North Florida Drug Corporation, d/b/a Scottie Discount Drugs, currently holds permit No. PH 0004096 as a Community Pharmacy. Respondent is located at 1448 Bakers Square, Macclenny, Florida. On December 24, 1987, Gustave Goldstein, who had been the designated prescription department manager for Respondent, resigned as a pharmacist at the Respondent's location. He notified Frankie Rosier, the owner and operator of the Respondent, that he was leaving and he notified the DPR that he would no longer be the designated prescription department manager. Carl Messina is the relief pharmacist for the Respondent. From the time of Goldstein's resignation, Messina has told Ms. Rosier many times that it is illegal to operate without a prescription department manager. DPR inspected the Respondent's pharmacy in December, 1987, and determined that there was no prescription department manager after Goldstein quit. DPR conducted an inspection of the Respondent's premises on February 16, 1988, and discovered that there still was no prescription department manager employed there. Frankie Rosier was made aware of this deficiency. On February 16, 1988, the official records of DPR showed that no new designation of a prescription department manager had been filed by Respondent and Goldstein was still listed as the prescription department manager by Respondent. On May 22, 1988, DPR again inspected the premises and determined that there was still no prescription department manager. It is important that each permittee have a designated prescription department manager to assure that all required records are kept and that the pharmacy complies with all legal requirements. This is especially important regarding control and accountability for controlled substances. Without a prescription department manager, a non-pharmacist owner, like Ms. Rosier, would and does have access to these controlled substances without any accountability. By Final Order entered and filed with the agency clerk on December 17, 1987, this same permittee was fined and placed on probation for operating a community pharmacy with an expired permit and for obtaining a permit by misrepresentation or fraud or through an error of the department or the board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Pharmacy, enter a Final Order finding North Florida Drug Corporation, d/b/a Soottie Discount Drugs, guilty of the violations alleged and revoking the community pharmacy permit No. PH 0004096. DONE and ENTERED this 14th day of October, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1988. COPIES FURNISHED: Michael A. Mone' Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 North Florida Drug Corporation Scottie Discount Drugs 1448 Bakers Square Macclenny, Florida 32063 Bruce Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent, Marshall Mounger is a licensed pharmacist holding license number 8778, and Dor Mar, Inc., is a pharmacy holding permit number 7310. The Respondents held these licenses at all times material to this proceeding. On or about January 9, 1980, Edward G. Bludworth, an investigator employed by the Petitioner, and Eugene F. O'Neill, a detective with the Okeechobee Police Department, conducted an audit of a variety of the Respondent's scheduled drugs. The audit period covered drug dispensation from March 1, 1979, through January 9, 1980. The drug categories chosen for audit were determined from the utilization of information acquired by Detective O'Neill concerning certain allegations of impropriety taking place at the Respondent's pharmacy. The target drugs in which shortages were discovered are as follows, together with the amounts of these shortages: DRUG Preludin SHORTAGE 0 SHORTAGE BY PERCENTAGE 0 Percocet 5 mg. 65 5 Eskatrol 10 5 Valium 5 mg. 1,968 46 Valium 10 mg. 629 39 Librium 10 mg. 820 39 Ionamin 30 mg. 850 26 Meprobamate 250 8 In conducting the audit, the Respondents were given all due benefit, as the initial inventory employed by Mr. Bludworth was zero; therefore, any drugs that may have been on hand at the beginning of the audit would have provided additional credit toward the final totals. Investigator Bludworth's qualifications to conduct a valid audit are unrefuted. He has had some twenty years experience in this field of expertise. The Respondents assert that the audit results are subject to question, as Detective O'Neill participated in the audit process without training as an auditor or pharmacist. However, Mr. Bludworth reviewed everything material to the integrity of the audit process, realizing that Detective O'Neill was inexperienced. In any event, Detective O'Neill's only assignment was to review some prescription forms and record the contents therein. This requires the ability to read and to count, and Detective O'Neill is qualified to perform these basic functions. The Respondent, Marshall Mounger, presented an audit performed by his wife, Dorothy Mounger, which still indicated substantial shortages in four of the target drug categories. The Respondent offered no credible and convincing evidence as to the inaccuracy of the initial audit, other than the contention that Detective O'Neill was not qualified to simply read the names and numbers on prescription forms. There was a subsequent audit performed at the Respondent's pharmacy which indicated further shortages. However, by the admission of the Petitioner's own witness, this audit was not properly conducted in that the Respondent was not given credit for the generic drugs he had on hand at the time of the second audit. Therefore, the results of this audit have been disregarded.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Pharmacy impose a single administrative fine on the Respondents, Marshall Mounger and Dor Mar, Inc., in the amount of $1,000. THIS RECOMMENDED ORDER entered this 26th day of May, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1982. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Mr. Marshall Mounger and Dor Mar, Inc. 107 South Parrott Avenue Okeechobee, Florida 33472 William L. Grossenbacher, Esquire Post Office Drawer 1140, Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PHARMACY DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY, CASE NOS. 82-062 82-063 Petitioner, 0018258 vs. 0019995 MARSHALL MOUNGER, Respondent. / DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY, Petitioner, vs. DOR MAR, INC., d/b/a MOUNGER PHARMACY, AND MARSHALL MOUNGER, owner/operator, Respondent. /
Findings Of Fact The Respondent, Natalie Patton, is a licensed pharmacist and has been licensed since 1959. She is a graduate of Sanford University, Birmingham, Alabama, and was initially licensed in Alabama as a pharmacist. She has worked as a licensed pharmacist for twelve years in Highlands County in the vicinity of Sebring. She is licensed as a pharmacy consultant as well and has been employed at several hospitals and pharmacies in that geographical area. She opened her present pharmacy' business in November, 1978, in a rural area southwest of Sebring at the community of Spring Lake. Her's is the only pharmacy in seventeen miles and her business volume reflects the rural nature of her business location and clientele in that she fills an average of thirty-five to fifty prescriptions a day. On "Race Friday," the day prior to the Sports Car Race at Sebring, a man entered her pharmacy complaining of severe headache and allergy to fumes associated with the infield and pits at the racetrack. He asked for Darvon, explaining that this was the only medication successful in treating his headaches. He explained he was from another part of the State and had no way to contact his physician. She sold him a non-prescription drug. He came back the next day, the day in question, March 22, and explained that her suggestion that he go to the emergency room the day before was impractical because a newspaper ad he had seen described the emergency room as overloaded and turning patients away. He complained of a worsening headache. She testified that she felt sympathy for him and ultimately and reluctantly sold him, at her cost, four Darvon to be used that Saturday and four for that Sunday. The individual requesting the medication then revealed himself to be a Deputy Sheriff of Highlands County, who arrested her on the spot, charging her with dispensing the Darvon without a prescription in violation of the above authority. She ultimately was tried on the charges and convicted, but adjudication was withheld and she was placed on three years probation by the Circuit Judge. A second related criminal charge was ultimately dismissed. She has been under the direction of a probation officer since that time and must report all her activities and receive permission before traveling out of her county. She also has been required to pay fifty dollars a month to reimburse the public defender for his services on her behalf. She is still operating her business and her customers have professed loyalty to her and her business is still increasing in volume. She has never had any altercation with law enforcement authorities of any type in her past and has never been convicted of any felony or misdemeanor. With the agreement of counsel for the Petitioner, certain testimonial letters on her behalf from persons who were not in attendance at the hearing were admitted as composite exhibit 1. These letters attest to and establish the fact, in corroboration of her testimony, that she is a decent and useful citizen and that she was totally unaware that she was committing a felonious act. These letters corroborate her testimony and establish that she is a crucial asset to her rural community. She is depended upon by numerous citizens, many of whom are of advanced years and who require frequent medication and are unable to travel any great distance. She has obviously gone to great lengths to operate her business in a professional and compassionate manner even to the extent of delivering medications to senior citizens and others long after the closing hours of her pharmacy. These letters in support of her position also are replete with instances described where she adheres strictly to the dictates of the various physicians' prescriptions and refused on a number of occasions to prescribe medication without a prescription. There is no question that the evidence in this record establishes that the Respondent is clothed with the highest personal integrity and moral character and that the isolated incident when she dispensed medication in violation of the above authority is not characteristic of the regular and otherwise consistent manner in which she practices pharmacy and conducts her business. The Respondent's probation officer sent a letter which is incorporated in Respondent's Exhibit 1 attesting to her conscientious efforts to obey the law and her usefulness as a citizen. He expressed the belief that she was unaware that she was actually committing a crime when the subject violation occurred and that she was simply and compassionately attempting to help a customer in trouble. He is convinced that revoking her pharmacy license would serve no useful purpose and would indeed impose a hardship on the rural customers she serves. He firmly believes she would not consciously violate the law or purposefully commit an illegal act. The Respondent was authorized by the Circuit Judge in the Respondent's criminal proceeding to make the following statement on the record in this proceeding: In re Natalie Patton: In open Court, in disposing of this case, and putting Natalie Patton on probation without adjudication, I made note of the numerous letters I received from people in the community, urging the Court to be lenient. The Respondent then noted that there were a hundred and forty signatures on those testimonial letters. At the conclusion of the Respondent's case the Respondent requested that the penalty herein be limited to a letter of reprimand. The Petitioner introduced no evidence and otherwise took no position with regard to the question of an appropriate penalty.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witness and the evidence in the record, it is RECOMMENDED: That Natalie N. Patton and Spring Lake Pharmacy remain licensed and that Natalie Patton be accorded a written reprimand by the Board regarding the subject violation and that she be placed on probation by the Board for a period of time coextensive with the probation imposed in the criminal proceeding related hereto during which time her conduct of the practice of pharmacy be subjected to periodic monitoring by the Board. DONE AND ENTERED this 2nd day of November, 1981, in Tallahassee, Florida. COPIES FURNISHED: William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael J. Trombley, Esquire 329 South Commerce Avenue Sebring, Florida 33870 P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1981.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties: The Respondent pharmacy, Drug Mart, Inc., of Lake Wales, doing business as Drug Mart, is a corporation holding community pharmacy permit number 0007122. The Respondent Gerald W. Gettel is a pharmacist licensed under the laws of the State of Florida, license number 0015091, whose last known address is 168 Poe Drive, Winter Haven, Florida 33890. Pursuant to Section 465.081, Florida Statutes, Gettel was employed as the pharmacy department manager at Drug Mart, Inc., of Lake Wales, 608 Lake Wales Plaza, Lake Wales, Florida 33853. On or about March 30, 1982, when inspected, the Respondents did not have on file Schedule II controlled substance prescriptions for the period of June 1980 through and including August 1980. If a hearing had been held in this case, Respondent Gettel would have testified that the destruction of the Schedule II controlled substance prescriptions mentioned above was unintentional . Gettel's testimony would have been supported by two witnesses whose affidavits are attached to this Recommended Order as Exhibits A and B. At a hearing, Gettel would have testified he could reproduce from computer records all of the dispensing information contained on the original prescriptions but admits it is accepted practice of pharmacists to maintain the original Schedule II controlled substance prescriptions for a period of two years. It is specifically stipulated that Schedule II controlled substance prescriptions are not subject to the exceptions provided by Section 893.07(4)(b), Florida Statutes. The responsibility for maintaining Schedule II controlled substance records is imposed upon the pharmacy manager (per the stipulation of the parties; however, the law is contrary). The permit holder, Drug Mart, Inc., of Lake Wales, is not directly responsible for the maintenance of said records. The Respondent Gettel notified the Drug Enforcement Administration of the destruction of the subject prescriptions. (See Exhibits C and D attached hereto.) At a hearing, Gettel would have stated that he also notified the Board of Pharmacy and would have introduced a letter and certified mail receipt relating to this notice to the Board. (See Exhibit E attached hereto.) If called to testify, the custodian of records of the Board of Pharmacy would state that the Board does not have a copy of the above-referenced letter (Exhibit E) in Respondent Gettel's file or in the Board's records of correspondence relating to lost or destroyed drugs or records. At a hearing, the Petitioner would offer no testimony contrary to the tendered testimony of Respondent Gettel and the referenced exhibits regarding the destruction of the subject records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint filed against the Respondents be dismissed. DONE AND ENTERED this 3rd day of May, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1984. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Gerald W. Gettel 168 Poe Drive Winter Haven, Florida 33880 Drug Mart, Inc., of Lake Wales 608 Lake Wales Plaza Lake Wales, Florida 33853 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent is guilty of being convicted or found guilty of a crime directly relating to the ability to practice pharmacy or the practice of pharmacy and, if so, what penalty should be imposed.
Findings Of Fact Respondent received his license to practice pharmacy in Pennsylvania in 1962. He has been continuously licensed in Florida since December 31, 1973, through March 28, 1995, when his Florida license was suspended by emergency order of the Board of Pharmacy for the reasons set forth below. His Florida license number was PS0013841. Respondent has not previously been disciplined. Respondent has been employed for many years with a large pharmacy chain. Over the years, he was promoted into positions of increasing managerial responsibility. At one point, he was in charge of the operations of over 25 stores. Sometime prior to the incidents described below, Respondent's responsibilities were reduced, evidently due to corporate restructuring. At the same time, his wife of 15 years had an affair. Respondent suffered other stresses, including a homicide involving someone in a close relationship. Respondent was ill-equipped to deal with these setbacks. He was a hard- working, intense person with no emotional outlets. Two prior marriages had failed in part due to Respondent's lack of emotional insight. Respondent has long defined his role in relationships almost entirely in terms of his income- earning ability. Unable to deal with the stress, Respondent one night picked up a streetwalker in Bradenton and paid her to have sex with him. Respondent identified himself to her. A sexual relationship ensued. The woman had a child, and they lived in squalor. Respondent' initial sexual impulse toward the woman yielded to an impulse by Respondent to rescue the mother and child and serve as their savior or hero. The woman made increasing demands of Respondent. Several times, Respondent tried to end the relationship, but the woman threatened to disclose the relationship to Respondent's wife and employer. Respondent informed her that he had no more money to give her, but she continued her demands. Eventually, Respondent began to steal from the pharmacy store at which he worked. At first, he stole boxes of cigarettes. Later, he stole prescription drugs, including various Schedule III and IV controlled substances. The drugs contained codeine, and Respondent knew that the woman was selling the drugs on the street. At least one of the drugs was popular among drug abusers. About a year after meeting the woman, Respondent was caught in the act of stealing drugs in the early-morning hours at the store. He immediately made a full confession and was prosecuted by federal authorities for the controlled substances and by state authorities for the cigarettes and other miscellaneous merchandise. In Count I of the federal indictment, Respondent was charged with a violation of 21 U.S.C. 846 by knowingly and intentionally combining, conspiring, confederating, and agreeing with the woman and other persons to possess with intent to distribute acetaminophen with codeine and hydrocodone bitartrate, which are Schedule III controlled substances, and diazepam and alprazolam, which are Schedule IV controlled substances. A Schedule III controlled substance has a potential for abuse less than substances contained in Schedules I and II and has a currently accepted medical use in treatment in the United States. Abuse of a Schedule III controlled substance may lead to moderate or low physical dependence or high psychological dependence. A Schedule IV controlled substance has a potential for abuse less than substances contained in Schedules I, II, and III and has a currently accepted medical use in treatment in the United States. Abuse of a Schedule IV controlled substance may lead to limited physical or psychological dependence. Respondent pleaded guilty to Count I, which carried a maximum sentence of five years, fine of $250,000, and probation of three years, as well as restitution. The United States noted Respondent's acceptance of responsibility as a factor in mitigation. In the plea agreement, Respondent acknowledged that he began diverting controlled substances, once or twice a week, in September 1993. He had been caught and arrested in April 1994. On February 24, 1995, The United States District Court entered a judgment adjudicating Respondent guilty of Count I, placing him on six months' house arrest, placing him on five years' probation, and ordering restitution to the pharmacy chain of $10,574.84 for the diverted controlled substances. The judge stated her desire that Respondent continue to work as a pharmacist in order to pay for what he had stolen. Respondent's conviction directly relates to his ability to practice pharmacy or to the practice of pharmacy. At the time of Respondent's arrest, the pharmacy chain had fired him. Following the arrest but before the conviction, Respondent worked as a pharmacist for a corporation that supplies licensed replacement pharmacists on a short-term or indefinite basis. Primarily assigned to one client working with terminally ill patients, Respondent was valued as a pharmacist by the clients and his employer for the six months that he was so employed. Respondent's employment as a licensed pharmacist ended when the Board of Pharmacy issued an emergency order suspending his license on March 28, 1995. Respondent has since attempted to find employment, but he has found none. His ability to make restitution has been impeded, although he has made some payments. Respondent has received private psychological counselling since October 1994. The psychologist's diagnosis was that Respondent was suffering from an adjustment reaction with depressed mood. Helping Respondent to analyze his past mistakes and equip himself to deal with stress, the psychologist opines that it is very unlikely that Respondent would repeat this behavior and would not represent a threat to the public safety, health, or welfare if he were to continue practicing pharmacy. Respondent has participated in the PRN since August 1994. The impaired practitioner program typically serves licensees who are unable to practice due to mental illness, substance abuse, or physical disability. The program has determined that Respondent suffers from no chemical dependency, sexual disorder, or psychiatric illness. Rather, at the time of the criminal behaviors, Respondent was under extreme stress. However, the director of the program testified that Respondent is progressing very well, free of all illness, and gaining insight into his difficulties so that he can now express his feelings and handle his stresses. The director also opines that Respondent would not pose a threat to public safety, health, or welfare if he were to continue practicing pharmacy. Respondent has entered into a five-year contract with the PRN. The program monitors Respondent for a lifetime. If at anytime the director were to determine that Respondent is not progressing, such as by failing to renew a contract when asked to do so by the program, the director would file a complaint with Petitioner. It has been almost two years since Respondent began diverting controlled substances to the prostitute and almost a year and one-half since he was caught. This relatively recent behavior was not isolated, but lasted six months. Respondent was caught and did not turn himself in. Respondent's behavior harmed himself, his family and friends, and his employer, which spends considerable resources to develop public trust and employee morale, both of which were damaged by Respondent's actions. Respondent's behavior also harmed the woman, whose squalid circumstances were worsened by Respondent's "generosity." And his criminal behavior threatened the safety, health, and welfare of numerous persons who purchased the controlled substances that Respondent had stolen and given to the woman. On the other hand, Respondent poses no risk to the public. This is the opinion of two mental-health professionals working closely with Respondent. Also, Respondent did not steal controlled substances while working for six months as a temporary pharmacist and while under considerable stress from the criminal prosecutions. Although Respondent did not turn himself in, he did confess immediately and completely. As a practical matter, his ability to make restitution is dependent on his ability to practice pharmacy. Respondent and Petitioner each present numerous final orders of the Board of Pharmacy evidencing past penalties. Petitioner's final orders include Newman, Case No. 94- 20465 (five years' suspension and $2000 fine for state conviction for sale, purchase, or delivery of Schedule IV controlled substance; and Dunayer, Case No. 07300 (revocation for shortage of over 500,000 dosage units of many of the same codeine- containing drugs). Respondent's final orders include Feldman, Case No. 92- 07313 (three years' suspension, retroactive 14 months to when licensee was ordered by court to surrender license, three years' probation, and $3000 fine for federal conviction for distributing and dispensing outside course of professional practice of pharmacy--although some of the same codeine-containing drugs were involved, it appears that considerably greater quantities may have been involved); Swoy, Case No. 93-11716 (two years' suspension, of which 22 months were stayed and several years' probation for state conviction of delivery of one of the same codeine-containing drugs--quantity unclear); and Levine, Case No. 92-04729 (two years' suspension that was stayed and four years' probation for state conviction of impaired practitioner for theft from pharmacy of relatively small quantities of Schedule II controlled substances).
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Pharmacy enter a final order finding Respondent guilty of violating Section 465.016(1)(f), suspending his license for one year from the date of the emergency suspension, imposing a $3000 fine to be paid within 90 days after the end of the suspension, and placing Respondent on probation for a period of five years. ENTERED on August 8, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on August 8, 1995. COPIES FURNISHED: John Taylor, Executive Director Board of Pharmacy 1940 North Monroe Street Tallahassee, FL 32399-0792 Nancy M. Snurkowski Agency for Health Care Administration 1940 North Monroe St., Suite 60 Tallahassee, FL 32399-0792 Salvatore A. Carpino 8001 North Dale Mabry Hwy. Suite 301-A Tampa, FL 33614
The Issue The issue in this case is whether Respondent, Peter N. Brawn, M.D., committed violations of Chapter 458, Florida Statutes (2001), as alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on November 23, 2005, in DOH Case Number 2002-12896, as amended; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact Petitioner, the Department of Health (hereinafter referred to as the "Department") is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Peter N. Brawn, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 75202. Dr. Brawn is board-certified in pathology. Dr. Brawn's address at the times relevant to this proceeding was 525 Caroline Street, Key West, Florida 33040. Dr. Brawn's Status as a Dispensing Practitioner. At the times relevant to this proceeding, Dr. Brawn was registered with the Board of Medicine (hereinafter referred to as the "Board"), as a "Dispensing Practitioner." Dr. Brawn had informed the Department on March 25, 2002, that he did not dispense medical drugs for a fee, but also stated that he wished to remain on the dispensing practitioner register. He, therefore, was registered as a dispensing practitioner at the times relevant. The Department is statutorily required to conduct inspections at the offices of dispensing practitioners for the purpose of determining whether the practitioner is in compliance with the statutes and rules applicable to his or her dispensing practice. The Events of April 15-16, 2002. On or about April 15, 2002, Jaiser Figuereo, an investigator for the Department's Investigation Services Unit, traveled to Dr. Brawn's office to conduct an inspection of his dispensing practice. Dr. Brawn had no prior notice of the inspection. Upon arriving at Dr. Brawn's premises, which were located in a "typical Key West home," Investigator Figuereo entered an unlocked front gate and walked up the front porch to the front door. Finding the front door open, Investigator Figuereo entered the building where she found several ladies in a room who appeared to be accessing the internet at computer terminals. She identified herself to the ladies and asked to speak with Dr. Brawn. Shortly thereafter, a gentleman came downstairs and indicated he was Dr. Brawn. Investigator Figuereo verified Dr. Brawn's identity with his driver's license. Investigator Figuereo, who was new to her position, did not feel comfortable proceeding with the inspection alone because of her concern that the office was being used to dispense medications via the internet. Therefore, she told Dr. Brawn that she would return the following day to conduct the office inspection. After leaving the office, Investigator Figuereo returned to the hotel where she was staying with other investigators with whom she had traveled to Key West. Those investigators were employees of the Agency for Health Care Administration (hereinafter referred to as "AHCA"). Investigator Figuereo explained what she had seen at Dr. Brawn's office and requested assistance from fellow Investigators Evelyn Garrido-Morgan, Jose Rodriguez, and Paul Randall. On April 16, 2002, Investigators Figuereo, Garrido- Morgan, Rodriquez, and Randall drove to Dr. Brawn's office to conduct the inspection, where they were met by Dr. Brawn. As the inspection progressed, Investigator Figuereo, among other things, completed an AHCA Investigative Services Inspection Form for Dispensing Practitioners (hereinafter referred to as the "Inspection Form"). The Inspection Form lists 28 inquiries which investigators are to make during the inspection of a dispensing practitioner. The investigator is supposed to make a determination of and note on the form whether the 28 areas of inquiry are "satisfactory." Dr. Brawn's personal office was accessible by walking around the front porch of the house to the left side of the building. Sitting outside the door to his office was a refrigerator, which Dr. Brawn identified as the one he used to store medications which required refrigeration. The refrigerator, which had no visible means of being locked, could be accessed by anyone who entered the front gate and climbed the stairs to the porch. Investigators Figuereo and Garrido-Morgan found the inside of the refrigerator to be dirty and observed a foul smell about it. The following was found inside the refrigerator: (1) insulin, which requires refrigeration to remain safe and effective for patient use; (2) uncapped, unlabeled syringes containing an unidentified clear liquid; (3) a vial, which was leaking, containing a brown substance which appeared to be blood (this observation was not, however, proved); and (4) a substance that was described as either "spoiled food" or "fish or bait or something." When asked by Investigator Figuereo why he had stored the uncapped, unlabeled syringes in the refrigerator, Dr. Brawn responded that he could not otherwise dispose of them because he did not know where his "sharps container" was located. Upon entering Dr. Brawn's office, the investigators found it cramped in size, dusty, and messy. It did not appear that the office was air-conditioned and the atmosphere was described as "musty." Medications were stored on Dr. Brawn's desk, three shelves on the side of the office, and in a closet. Dr. Brawn's office was the only place the investigators found on the premises where non-refrigerated medications were being stored. The investigators observed that opened medicine bottles containing pills were scattered among boxes lying around the office. Uncontained pills were also found lying on a counter and Dr. Brawn's desk. Open manufacturer-type medicine containers were also found. Investigators Figuereo and Garrido-Morgan also found expired and unexpired medications stored mixed together in Dr. Brawn's office. The investigators found 19 boxes of expired "Baycol" during their inspection of Dr. Brawn's office. Baycol is a medication that was recalled by its manufacturer on August 8, 2001. The recall was supported by the Food and Drug Administration in a publication bearing the same date. Because of the recall, the investigators confiscated the 19 boxes of medication. Following the removal of the Baycol from Dr. Brawn's office, the medication was transferred to the Department's evidence custodian. Investigator Garrido-Morgan gathered the remaining expired medications found during the inspection and, while accompanied by Dr. Brawn, proceeded to dispose of them down a toilet within the office. Of the 28 areas of inquiry on the Inspection Form completed by Investigator Figuereo during the inspection of Dr. Brawn's office, it was found that 15 of the 28 areas of inquiry were not satisfactory. Petitioner's Exhibit 1. Relevant to the charges of the Administrative Complaint, as amended, the following areas of inquiry were determined to be unsatisfactory: . . . . Generic drug sign displayed. {465.025(7), F.S.}{64B8-8.011(3)(b)10, F.A.C.} Stock medications appropriately labeled for dispensing from a licensed manufacturer. {499.007(2), F.S.} . . . . Outdated medications removed from stock. {499.007(2), F.S.}{64B16-28.110, F.A.C.} Medications requiring refrigeration appropriately stored. {64B16-28.104, F.A.C.} . . . . Patient record contains medical history required for counseling. {64B16-27.800, F.A.C.} Controlled substances securely maintained and stored in a locked cabinet. {21 CFR 1301.75} . . . . 20. Controlled substance prescriptions provide practitioner's name/address and DEA number. {893.04(1)(c)2, F.S.} . . . . 25. Controlled substance biennial inventory conducted. {893.07(1)(a), F.S.} Dr. Brawn did not display in a prominent, clear, and unobstructed place at or near where prescriptions were being dispersed by him, the notice required by Section 465.025(7), Florida Statutes. Dr. Brawn's office contained medications which were loose and, therefore, not properly labeled. The syringes stored in the refrigerator lacked proper labels, required by Section 499.007(2), Florida Statutes. There were expired prescription medications (outdated) stored, unquarantined, in Dr. Brawn's office inconsistent with Florida Administrative Code Rule 64B16-28.110. The medications stored within Dr. Brawn's refrigerator were not properly stored. The refrigerator was unlocked and easily accessible and unsanitary. The only patient records maintained by Dr. Brawn, as he admitted during the investigation, consisted of a copy of an internet questionnaire completed by patients and submitted via computer. The questionnaire lacked information about a patient's date of birth, age, gender, medical and drug history, and new and refilled prescriptions received from Dr. Brawn's office. The evidence failed to prove that Dr. Brawn had any controlled substances on the premises. The only direct testimony on this issue was that of Ms. Figuereo who indicated that she saw unsecured controlled substances. She did not, however, indicate what controlled substances or how she identified them, or where she saw the medications. Given this lack of specificity and testimony that Dr. Brawn had indicated he had no controlled substances, it is found that the Department failed to prove there were any controlled substances found during the inspection. It cannot, therefore, be found that Dr. Brawn did not use a proper prescription form for controlled substances. While the form provided to the investigators was not adequate, the evidence failed to prove that Dr. Brawn used that form to prescribe controlled substances. Dr. Brawn admitted that he did not have a biennial inventory of controlled substances, stating that he was not aware one was required. At the conclusion of the inspection, Dr. Brawn signed the Inspection Form which had been completed by Investigator Figuereo. Dr. Brawn was told that the investigators would return in 30 days to see if the deficiencies noted had been rectified. Upon returning the Dr. Brawn's office, Ms. Figuereo was told that Dr. Brawn was out of town.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine finding that Peter M. Brawn, M.D., has violated Section 458.331(g), Florida Statutes (2001), as described in this Recommended Order, issuing a reprimand of Dr. Brawn's license to practice medicine, requiring that he pay an administrative fine of $4,000.00, and requiring that he attend appropriate continuing education classes in number and of a nature determined by the Board. DONE AND ENTERED this 28th day of December, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2006. COPIES FURNISHED: April Dawn M. Skilling Warren James Pearson Assistants General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Shawn M. Ellsworth, Esquire Ellsworth Law Firm, P.A. 404 Washington Avenue, Suite 750 Miami Beach, Florida 33139 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. M. Rony François, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
