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
The Issue The issue is whether Norwood Pines' annual licensure to operate an adult congregate living facility should be renewed. The Department denied renewal because of repeated failures to correct deficiencies at the facility, and due to the necessity to impose a moratorium on admissions on March 31, 1989, due to conditions at the home which threatened the health, safety, and welfare of residents.
Findings Of Fact Norwood Pines had been licensed as an Adult Congregate Living Facility (ACLF) under the "Adulte Congregate Living Facilities Act", Part II, Chapter 400, Florida Statutes. It had a licensed capacity of four beds. A survey of Norwood Pines was conducted by Lorraine Grissom, a registered nurse who serves as a senior community health nursing consultant for the Department. She regularly conducts ACLF licensure surveys. An ACLF is a home which provides housing, food service, and personal services for adults, which may include limited nursing services when the home is specifically licensed to do so. Section 400.402(2), Florida Statutes. An ACLF license is good for only one year. Section 400.417(1), Florida Statutes. At the time of the survey on March 31, 1989, four elderly women resided at the Norwood Pines ACLF: J.M., R.R., B.A.; and a fourth resident whose condition is not at issue in this proceeding. The home had been established by David Winfrey, and his wife, Barbara Winfrey, who is a registered nurse. Barbara Winfrey had been involved in the operation of the facility but had turned over responsibility for the ACLF to Mr. Winfrey. At the time of the survey on March 31, 1989, she was but of town, out of touch, and unavailable to consult with the aide at the home about problems with any of the residents. On her first visit Ms. Grissom observed one of the aides at the home was under the influence of come substance (whether alcohol or drugs could not be readily determined). The aide's gait was unsteady (she stumbled several times), her speech was slurred, and the content of her conversation was disorganized. The aides had never been given written job descriptions outlining their duties and responsibilities in providing personal care to the residents. Two residents at the ACLF were inappropriate for ACLF care. J.M. was incontinent, confused, and needed care beyond that which Norwood Pines was able to provide. Rule 10A- 5.0181(3)(a)1.e., Florida Administrative Code. B.A. was confused and disoriented; would wander outside in the rain, needed to be watched constantly; and needed to have drugs administered, because she was too disoriented to medicate herself. Rule 10A- 5.018(2)(a)4.c., Florida Administrative Code. B.A. was so disoriented that in case of fire she could not preserve herself or follow directions. Rule 10A-5.0181(2)(a)4.f., Florida Administrative Code. Food service at the home was inappropriate in that menus had not been dated and planned one week in advance, and menus were not followed in the preparation and service of food. Mr. Winfrey did not contest this survey finding, although he did maintain that residents got enough to eat. The administration of medications to residents was a severe problem at the home. There were problems with the supervision of administration of medications, the maintenance of proper medication records, and proper storage and labeling of medications. If a resident is fully capable of taking her own medication, she may purchase and maintain in her own room over- the-counter drugs such as aspirin or rolaids without a prescription, and without the necessity of a label showing the name of the resident, the name of the prescribing M.D. and instructions for the use of the medication. If the facility undertakes the responsibility for supervision of self- administered medications, staff must read the medication label to the resident when it is taken, check self-administered dosages against the label of the container, and assure that resident obtains and takes the dosage prescribed. Rules 10A-5.013(2)(jj) and 10A-5.024(1)(c), Florida Administrative Code. Medicines may be centrally stored but medicines so stored must be kept locked. Rule 10A-5.0182(3)(a)4.a., Florida Administrative Code. Resident R.R. was seen removing Excedrin from an unsecured cabinet in violation of the rule. The centrally stored medicines were not labeled with the name of the resident, the dose, the M.D. who prescribed it, and the directions for use, in violation of Rule 10A-5.0182(3)(a)5., Florida Administrative Code. A medication sheet was not kept for the medication administered to residents, contrary to Rule 10-5.024(1)(c), Florida Administrative Code. For example, resident R.R. had a prescription for 30 Tylenol #3 tablets filled on March 25, 1984. Although 5 tablets were left in the bottle on March 31, 1989, there is no indication on her medication sheet that she had been provided those tablets. This violates Rule 10A-5.0182(3)(b)2.h. and (c)1., Florida Administrative Code. In addition, there was no indication that Peri- Colace, which had been ordered by a physician for resident J.M., had been given. Staff advised Ms. Grissom that J.M. had not been given the medicine during the month of March because J.M. could not swallow it. This information was not given to J.M.'s physician. As a result, J.M. became impacted with feces. Staff was then instructed to administer Ex-lax to J.M. without a physician's order, and not to document its use on the medication sheet for J.M. Staff also gave J.M. a Fleet enema, without a physician's order. This was not proper treatment for the impaction. As a result of the impaction, JAM. had refused to eat for 2-3 days, was lethargic and was aspirating mucus. She also had difficulty breathing. The aide did not notify J.M.'s physician of this, even though her condition was a significant deviation from J.M.'s normal state of health, in violation of Rule 10A-5.0182 (1)(d), Florida Administrative Code. Resident B.A. needed to have her medication actually administered to her, rather than having supervision in taking her own medication. Staff at an ACLF may administer medication to a resident if there is a licensed RN or LPN on staff. There was no nurse at Norwood Pines to administer medication; it was done by an untrained, unlicensed aide, in violation of Rule 10A-5.0182(3)(b) and (c), Florida Administrative Code. This is especially significant because the medications involved were psychotropic drugs such as Mellaril, which the doctor ordered to be administered on an "as needed" basis for depression. This medication was given daily, because the aide did not know how to recognize behaviors which show that it was needed, something which a LPN or RN could be trained to recognize. Daily administration of Mellaril is dangerous, and contrary to the physician's instructions. The side effects of Mellaril can be severe shaking and involuntary movements, which is a particularly high risk for elderly persons, and can be irreversible. Other drugs which did appear on the medication sheets for patients on March 31, 1989, such as Lanoxin, and Haldol were not in the ACLF and therefore could not be administered as required. These violations found on March 31, 1989, had been brought to the attention of the Administrator before. Unlabeled medications, use of unlicensed staff to give medication and the lack of health assessments had been cited as deficiencies on the October 22, 1988, survey. Ms. Grissom returned on May 31, 1989, for a follow- up survey to see whether the deficiencies identified on March 31, 1989, had been corrected. All of the deficiencies remained uncorrected, including those related to proper storage, labeling, recording and supervision of the administration of medication; to the criteria for retaining residents at the home; to staff awareness of health and well-being of residents; and to provision of appropriate staff and food service. The Administrator, Mr. Winfrey, did not contest that these deficiencies had not been corrected on May 31, 1989. On May 31, 1989, Mellaril was still being given to R.R. by an untrained, unlicensed aide when the physician required that it be given on an "as needed" basis. Five hundred milligrams of calcium was being given to R.R., although the medication was unlabeled, and there was no doctor's order to provide it. A doctor had ordered that potassium be given to B.A. with plenty of water and with food, but she was given only a small amount of orange juice in a four ounce cup with the potassium. Ms. Grissom explained that it is dangerous to give potassium in a manner other than as ordered to patients with heart problems such as B.A. The medication records did not show that two other medications given for heart disease, Lanoxin and Lasix were being given daily as prescribed. B.A. was still a resident at the home on May 31, 1989, though she was still so disoriented that it was inappropriate for her to be in an ACLF. B.A. was only transferred to a facility appropriate for her care after Ms. Grissom made another visit on October 30, 1989. On May 31, 1989, staff was still unable to perform duties and ensure proper care of residents because the untrained aide was still responsible for administering psychotropic medications to residents. A final appraisal of the home was done on October 30, 1989, by Ms. Grissom. At that time, untrained, unlicensed staff was still administering medications and admitted doing so. As noted above, B.A. who was an inappropriate client, still resided at the facility. Medication records were still as inaccurate as they had been on March 31 and May 31, 1989. The daily records were not being kept as medications were given. When Ms. Grissom asked the aide for the resident's files, the aide brought menus. In short, the aide was unprepared to do those things expected of her. Health assessments for the residents were not available, although the facility had been cited for this deficiency in the October 28, 1988, survey. By the October visit, Haldol had been ordered for B.A. by her physician, to be administered "as needed," but was given as a regular dose. Mellaril, another dangerous drug, had been ordered to be given up to three times a day as needed for depression to R.R., but it was given three times a day as a regular dose, even though R.R. showed no signs of depression. None of the findings about the October 30, 1989, were controverted by Mr. Winfrey. As a result of the March 31, 1989, survey a moratorium on admissions was imposed at the Norwood Pines ACLF due to conditions which threatened the residents' health, safety, and welfare. Norwood Pines did not appeal the moratorium.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the request of Norwood Pines for a renewal license to operate an Adult Congregate Living Facility. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. WILLIAM R. DORSEY, JR. 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 March, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-4346 The substance of the proposals submitted by the Department have been accepted. No proposed findings of fact were submitted by Norwood Pines. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue North Tower, Room 526 Miami, Florida 33128 David G. Winfrey Norwood Pines 19021 Northwest 10th Street Miami, Florida 33169 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order dismissing the charge of violation of Section 458.331(1)(aa), finding Manuel M. Fajardo, M.D., guilty of violating Section 458.331(1)(g), (n), (t), and (w), Florida Statutes, and Section 893.07, Florida Statutes, and suspending Manuel M. Fajardo's license to practice medicine for a period of six (6) months to be followed by a probationary period of two (2) years during which Fajardo shall be permitted to practice medicine and dispense drugs only under the supervision of another licensed physician, who shall supervise Fajardo's record keeping and drug prescription and dispensing practices. DONE and ORDERED this 13th day of June, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Division of Administrative Hearings Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1986. COPIES FURNISHED: David Bryant, Esquire 1107 East Jackson Street Suite 104 Tampa, Florida 33602 Michael I. Schwartz; Esquire 119 North Monroe Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Department of Professional Regulation, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1. Proposed Finding of Fact 4 is adopted in substance as modified in Finding of Fact 13. Proposed Finding of Fact 5 is adopted in substance as modified in Findings of Fact 3-12. Proposed Findings of Fact 2, 3, 6-10, and 12-14 are rejected as being argumentative and conclusory. Proposed Finding of Fact 11 is rejected as unnecessary. Rulings on Proposed Findings of Fact of Respondent. Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1. Proposed Finding of Fact 6 is adopted in substance as modified in Finding of Fact 14, except that the last sentence is rejected as being argumentative and not supported by the competent; substantial and credible evidence. Proposed Findings of Fact 2 and 11 are rejected as unnecessary. Proposed Findings of Fact 3, 4, 5, 7-10 and 12-15 are rejected as not supported by the competent, substantial and credible evidence and as being subordinate to the facts found in the Recommended Order. Additionally, large portions of the proposed Findings of Fact are merely summaries of testimony and are not properly proposed findings.
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, the Respondent, Howard E. Staats, was licensed as a pharmacist with license number PS 0007704. On July 15, 1985, Dr. Ali A. Zomorodian treated James C. Jowers for thrombose hemorrhoids at the Memorial Medical Center in Jacksonville, Florida and prescribed Proctofoam HC, allowing three (3) refills of the medication. Proctofoam HC is a "medicinal" drug which is commonly known as a "legend" or "prescription" drug which can only be dispensed by prescription. On July 15, 1985, James Jowers presented the prescription for Proctofoam HC issued by Dr. Zomorodian to the Respondent for filling at Scottie's Discount Drug Store, 41 Arlington Road South, Jacksonville, Florida. During the course of filling the prescription on July 15, 1985, the Respondent discussed genital cancer with Jowers and showed Jowers pictures of the genital area. There was insufficient evidence to show that Respondent asked Jowers to come behind the prescription counter that day on the pretense of checking Jowers' hemorrhoids, and then pulling down Jowers' shorts and touching Jowers' penis and testicles. After Respondent had filled Jowers' prescription for Proctofoam HC on July 15, 1985, Jowers decided that the price was too high and asked that Respondent return his prescription. Respondent returned the prescription to Jowers and Jowers had it filled at the Mayport Naval Station pharmacy on July 16, 1985. While Respondent had the prescription in his possession on July 15, 1985, and before returning it to Jowers, Respondent copied certain information from the prescription and gave the prescription a number (83116) on Respondent's prescription log. This information was placed on file at Scottie's. Based on information furnished by Jowers concerning Respondent's behavior on July 15, 1985, John Danson, Investigator for Petitioner and detectives from the Duval County Sheriff's Office asked Jowers to return to Scottie's and make contact with the Respondent on the pretense of needing the prescription for Proctofoam HC filled. On July 29, 1985, Jowers returned to Scottie's where Respondent was on duty and told Respondent that he had lost the prescription for Proctofoam HC but that he needed it filled. Using the information that he had copied from the original prescription on July 15, 1985, Respondent filled the prescription for Proctofoam HC and gave the medication to Jowers. Jowers upon leaving Scottie's gave the medication to Danson and the detectives from the Duval County Sheriff's Office. There was insufficient evidence to show that Respondent knew on July 29, 1985 that the prescription had been filled at the Mayport Naval Station pharmacy or that the prescription was on file at the Mayport Naval Station pharmacy. The medication given to Danson and the detectives contained the same prescription number (83116) that Respondent had given the prescription when presented to him on July 15, 1985. There was insufficient evidence to show that Respondent asked Jowers into his office and pulled down Jowers' pants and touched Jowers' penis or testicles on July 29, 1985. At all times relevant to this proceeding, the original prescription for Proctofoam HC used by Dr. Zomorodian to Jowers on July 15, 1985 was on file at the Mayport Naval Station pharmacy. The Mayport Naval Station pharmacy did not transfer the prescription for Proctofoam HC issued by Dr. Zomorodian to Jowers on July 15, 1985. Neither Dr. Zomorodian nor his staff "called-in" the prescription for Proctofoam HC given to Jowers by Dr. Zomorodian on July 15, 1985 to Scottie's or the Respondent. The Respondent did not call Dr. Zomorodian or his staff for authorization to dispense Proctofoam HC to Jowers under the prescription issued by Dr. Zomorodian to Jowers on July 15, 1985. Respondent prepared and maintains in his files a written record of the information copied from the original prescription presented to him by Jowers issued by Dr. Zomorodian for Poctofoam HC on July 15, 1985. In addition to the number (83116) being listed in the Scottie's prescription log, it is also listed on the above-referenced record. Respondent's dispensing of the Proctofoam HC to Jowers on July 29, 1985 under the circumstances of this cause was done in good faith. Although there was conflicting expert testimony, Respondent's dispensing of the Proctofoam HC to Jowers on July 29, 1985 under the circumstances of this cause was done in the course of professional practice of pharmacy.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Amended Administrative Complaint be DISMISSED. Respectfully submitted and entered this 12th day of November, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 12th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0287 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Findings of Fact 4 and 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 8. Adopted in Findings of Fact 8 and 15 but clarified. Adopted in Finding of Fact 8. Adopted in Findings of Fact 6 and 12 but clarified. Rejected as not supported by substantial competent evidence, as being hearsay and as not being material or relevant. 11-13. Adopted in Findings of Fact 13 and 14 but clarified. 14.-15. Although Dr. Zaenger's background and the fact that she testified as an expert witness on the standards of practice in pharmacy are important to determine the weight given her testimony, these findings are not necessary and add nothing to the finding of fact in this order. Rejected as being a conclusions of law rather than a Finding of Fact. Rejected as not being material or relevant since it is not a finding of fact but only a statement of a hypothetical situation. Rejected as not supported by substantial competent evidence. 19.-23. Rejected as not being material or relevant. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 4. 4. Adopted in Finding of Fact 13 but clarified. 5.-6. Adopted in Findings of Fact 13 and 14 but clarified. 7.-8. Paragraph 7 and the first sentence of paragraph 8 rejected as a restatement of the testimony and not a finding of fact. The balance of paragraph 8 is adopted in Findings of Fact 6, 7 and 8 but clarified. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 5 but clarified. 12.-14. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Rejected as not being material or relevant. 17.-19. Adopted in Finding of Fact 8. Adopted in Finding of Fact 12. Adopted in Finding of Fact 14 but clarified. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. 24.-27. The first two (2) sentences of paragraph 25 are adopted in Findings of Fact 3 and 10. The balance of paragraphs 24-27 are rejected as being a restatement of the testimony and not a finding of fact. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 102 S. Monroe St. Tallahassee, Florida 32301 Robert Palmer, Esquire Michael Ed wards, Esquire Suite 305, 24 N. Market St. Jacksonville, Florida 32202 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 N. Monroe St. Tallahassee, Florida 32399-0750
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint1 and, if so, what penalty should be imposed.
Findings Of Fact Respondent's licensure and employment Respondent, Nury D. Soler, is now, and was at all times material hereto, licensed as a pharmacist by the State of Florida, having been issued license number PS 0014628. Pertinent to this case, Respondent was the prescription department manager for Westchester Pharmacy for a two-month period extending from some time in October 1996 and at least through December 13, 1996. Westchester Pharmacy is a community pharmacy licensed by Petitioner, pursuant to Section 465.018, Florida Statutes, and located at 7253 Southwest 24th Street, Miami, Florida. The pharmacy owner or permittee was Noriel Batista. The pharmacy inspection On December 14, 1996, a Saturday, Richard Castillo, an investigator employed by the State of Florida, entered the Westchester Pharmacy to conduct a routine community pharmacy inspection. Upon entry, Mr. Castillo observed only one person in the pharmacy, a man later identified as the permittee (Mr. Batista). At the time, Mr. Batista was observed in the vicinity of the prescription area, at the rear of the store. Mr. Castillo proceeded to the counter at the rear of the store, and was approached by Mr. Batista. Thereupon, Mr. Castillo feigned a toothache, and the following events transpired: . . . I put my hands on my face and I said I have some tooth pain, is there anything you can do about it. At which time, he said you really need to go see a dentist. I said that dentists cost a lot of money and that I believed that it was an infection. At which time he came back with a bottle of twenty Amoxicillin, 500 milligram capsules. He sold me the bottle for $10.00 and I gave him the $10.00. He then gave me some preliminary instructions, and went back into the prescription department area. He returned and said that as a gift I'm going to give you these medications; which was four capsules of Motrin 800 milligrams. Amoxicillin is a prescription drug, which Mr. Batista, who was not licensed as a pharmacist, sold without benefit of a prescription. Following the sale, Mr. Castillo identified himself as an investigator, told Mr. Batista he was present to conduct a routine inspection, and asked to speak with the pharmacist. When told the pharmacist was not available, Mr. Castillo asked Mr. Batista to telephone her and ask her to come to the store. Mr. Batista did so, and about an hour later Respondent arrived. Mr. Castillo inspected the pharmacy and completed a community pharmacy inspection report on which he noted a number of perceived deficiencies. (Petitioner's Exhibit 2). First, with regard to Mr. Batista's sale of amoxicillin, Mr. Castillo noted three deficiencies or violations against the pharmacy business, to-wit: (1) there was no pharmacist on duty when the prescription department was open (a perceived violation of Rule 64B16-28.109, Florida Administrative Code); (2) there was no pharmacist present to provide patient counseling, if requested (a perceived violation of Rule 64B16-27.820, Florida Administrative Code); and, (3) since Mr. Batista did not document the sale, Mr. Castillo considered the pharmacy records of dispensing to be incomplete (a perceived violation of Rule 64B16-28.140(3)(b), Florida Administrative Code). Other deficiencies noted by Mr. Castillo against the pharmacy business were as follows: (1) there was no sign displayed that the pharmacy was closed (a perceived violation of Rule 64B16-28.109(1), Florida Administrative Code); (2) the pharmacist's (Ms. Soler's) license was not displayed (a perceived violation of Rule 64B16-27.100(1), Florida Administrative Code); and, (3) there was no sign displayed which stated the hours the prescription department was open each day (a perceived violation of Rule 64B16-28.404, Florida Administrative Code). No further deficiencies were observed and, apart from those noted deficiencies, the prescription department appeared appropriately maintained and operated. Following Respondent's arrival at the pharmacy, Mr. Castillo discussed with her the various deficiencies he had found and had noted on his report. Then, as the "Pharmacist," Respondent signed the report. By signing the report, she acknowledged that "I have read and have had this inspection report and the laws and regulations concerned herein explained, and do affirm that the information given herein is true and correct to the best of my knowledge." Among the information provided on the inspection report was the name of the prescription department manager, which was stated to be the Respondent. Respondent's employment status with Westchester Pharmacy on the date of the inspection Notwithstanding her appearance at Westchester Pharmacy on Saturday, December 14, 1996, and her signing of the inspection report as the Pharmacist for Westchester Pharmacy, Respondent averred, at hearing, that by December 14, 1996, she was no longer affiliated with the pharmacy or responsible for the deficiencies noted. According to Respondent, by December 12, 1996, she had agreed with another pharmacy, Coral Way Pharmacy, Inc., (Coral Way Pharmacy) to serve as its pharmacist effective December 16, 1996, at its pharmacy located at 6965 Southwest 24th Street, Miami, Florida, and that her last date of employment with Westchester Pharmacy was December 13, 1996. While perhaps not entirely free from doubt (given the facial inconsistency between Respondent's contention at hearing and the conclusion one could reasonably draw regarding her association with Westchester Pharmacy, as evidenced by her activities on the date of inspection), the proof demonstrates, more likely than not, that, as Respondent averred, she was no longer employed by Westchester Pharmacy on the day of inspection, her presence on the day of inspection was a matter of accommodation to Mr. Batista, and her signing of the report was a matter of misunderstanding. In so concluding, it is observed that, while the pharmacy was open Monday through Saturday, the prescription department was not open on Saturday, or, stated differently, under the terms of Respondent's employment with Weschester Pharmacy she did not work week-ends. Given that Respondent and Coral Way Pharmacy, reached an agreement on December 12, 1996, for her to begin work at Coral Way Pharmacy on December 16, 1996, it is reasonable to conclude, given the nature of her work-week at Westchester Pharmacy, that her last day of employment with Westchester Pharmacy was Friday, December 13, 1996. Moreover, consistent with the conclusion that Respondent's association with Weschester Pharmacy terminated on December 13, 1996, is the absence of Respondent's wall certificate and license on the date of inspection. Notably, Respondent had not suffered prior disciplinary action in 19 years of practice, and presumably knew that, if employed, she was required to display her wall certificate and license in or near the prescription department. Conversely, she also knew, presumably, that she could not lawfully display them, if she was no longer employed by Westchester Pharmacy. Rule 64B16-27.100, Florida Administrative Code. Since it is presumed that persons will observe the law, the absence of Respondent's wall certificate and license on the date of inspection is consistent with her assertion that, by that date, she was no longer employed by Westchester Pharmacy. Atlantic Coast Line R. Co. v. Mach, 57 So. 2d 447 (Fla. 1952). Finally, also consistent with the conclusion that Respondent's employment with Westchester Pharmacy terminated before the date of the inspection is a statement Respondent made to the inspector. According to the investigator, when asked about the infractions, Respondent stated the following: . . . She said that things needed to change. She asked if she were to leave the pharmacy whether that would change anything, and I said, no, it doesn't matter because you're the pharmacist of record at this point of time. Such statement, when considered in context with other proof of record, discussed supra, is consistent with Respondent having resolved, previously, to terminate her employment with Weschester Pharmacy and, since she did not specifically tell the investigator of her decision, his response evidenced a misunderstanding that resulted in Respondent's execution of the report.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1998.
The Issue Whether respondent's license as a registered nurse should be disciplined on charges that she improperly recorded the administration and disposal of controlled substances in violation of Section 464.018(1)(d) and (f), Florida Statutes (1981).
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be administratively fined $500.00 and reprimanded for violating Section 464.018(1)(f) on three separate occasions. DONE and RECOMMENDED this 6th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of May, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Betty Bowman Fulk, pro se Apartment 1221 1500 N.W. 12th Avenue Miami, Florida 33136 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Department of Professional Regulation Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32202
