The Issue Whether Respondents committed the offenses described in the Amended Administrative Complaints? If so, what disciplinary action should be taken against them?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Haro is now, and has been since April of 1980, a licensed pharmacist in the State of Florida. He holds license number PS 0017949. Rome is now, and has been since February of 1978, the holder of permit number PH 0007008, which authorizes it to operate La Generosa Pharmacy (hereinafter referred to as "La Generosa" or the "Pharmacy") as a community pharmacy in Dade County, Florida. At no time in the past has Rome, as the holder of permit number PH 0007008, been disciplined by the Board of Pharmacy. For the past eighteen years, Roger Diaz has been Rome's sole corporate shareholder and the owner of the Pharmacy. Haro was employed as the prescription department manager of La Generosa and its only pharmacist from approximately October 16, 1990, until some time after the dates of the alleged violations in these consolidated cases. He worked full-time (40 hours a week). Harold Gluck is an investigator with the Department. On December 4, 1990, at approximately 2:00 p.m., Gluck attempted to conduct a routine annual inspection of the Pharmacy, which had last been inspected 13 months previous. Upon entering the Pharmacy, Gluck found that there was no pharmacist on duty. Diaz was there, however. The lights in the prescription department were off and a "closed" sign was posted. A door to the prescription department, although closed, was unlocked. Gluck opened the door, walked in and turned on the lights. He saw Haro's license hanging on the wall. On the counter, he observed prescription vials containing pharmaceuticals. It appeared to Gluck that someone had been in the process of filling these vials and had been interrupted before completing the task. Gluck inquired of Diaz as to the whereabouts of the pharmacist. Diaz, in response to Gluck's inquiry, indicated that Haro had taken the day off to tend to some personal business. Gluck then asked Diaz who was filling the prescription vials "if the pharmacist isn't here." Diaz responded, "I don't know." Gluck continued his inspection. On the shelves in the prescription department he discovered a large number of expired drugs, some of which had expiration dates that predated the last inspection of the Pharmacy that had been conducted 13 months previous. None of the drugs that had been outdated for more than 13 months had been on the shelves during the last inspection. Gluck's inspection on December 4, 1990, also revealed prescription drugs in the Pharmacy outside of the prescription department. After cursorily examining the premises, Gluck left the Pharmacy. He told Diaz that he would be paying a return visit the following day to speak with Haro and to conduct a more thorough inspection. He warned Diaz not to enter the prescription department and asked him to lock the doors leading into that area of the Pharmacy. Diaz indicated that he would comply. Later that day at around 5:00 p.m., following Glucks's departure, Haro went to the Pharmacy "to observe how [it] was functioning." As he had promised, Gluck returned to the Pharmacy on December 5, 1990. He was accompanied by another of the Department's investigators, as well as three HRS drug inspectors. The prescription department was closed and Haro was nowhere to be seen. Diaz was present and Gluck asked him whether Haro had reported to work that day. Diaz told Gluck that Haro had again taken the day off to take care of a personal matter. Gluck tried to open the door he had used the day before to enter the prescription department, but it was locked and Diaz claimed not to know where to find a key to unlock the door. With Diaz's permission, Gluck and one of the HRS drug inspectors, Cesar Arias, walked into a back storage room that was adjacent the prescription department (hereinafter referred to as the "storage room") to ascertain if there was another entrance to the prescription department. There they spotted an unlocked door that led to the prescription department. After obtaining Diaz's authorization, they pushed the door open. In so doing, they moved an appliance, that had been behind the door, out of the way. They then walked into the prescription department. While in the prescription department, Gluck and Arias noticed a doorway that was covered, but not completely, by a piece of paneling. They removed the piece of paneling and then walked into the room (hereinafter referred to as the "hidden room"). The December 5, 1990, inspection of the Pharmacy revealed the following: Of the approximately 2,000 containers on the shelves in the prescription department, approximately 200 contained expired pharmaceuticals. Expired pharmaceuticals that Haro had removed from the shelves were in boxes in the storage room. There were containers of pharmaceuticals on the shelves in the prescription department that had labels which understated the quantity of pharmaceuticals in the container. There were containers of pharmaceuticals on the shelves in the prescription department that had labels which inaccurately described the strength of the pharmaceuticals in the container. On the shelves in the prescription department were containers of pharmaceuticals to which samples, that had been removed from their original packaging, had been added. According to records in the prescription department, prescriptions had been filled on December 4, 1990. Prescriptions for controlled substances that had been filled by Haro within the past month were lacking the date the prescription had been filled, the patient's name and address, the dispensing pharmacist's initials and/or the prescribing physician's DEA registration number. A bottle of Uropol, which Haro had for his own personal use, was in the prescription department. Uropol is a foreign drug that has not been approved for use in the United States. Vials containing prescription drugs that had been dispensed by Jorge's Pharmacy, another local pharmacy, were in the hidden room, as well as in bags, ready for customer pick-up, in the storage area. These vials had labels prepared by Jorge's Pharmacy. References to Jorge's Pharmacy's appear- ing on the labels, however, had been "whited out" so as to make it appear that Jorge's Pharmacy's was not the dispensing pharmacy. Furthermore, some of these vials contained lesser quantities of drugs than indicated on their labels. As Diaz candidly admitted to the inspection team during the inspection, Jorge's Pharmacy had filled these prescriptions pursuant to an arrangement that it had with Diaz. These were Medicaid prescriptions. Jorge's Pharmacy was a participant in the Medicaid program. La Generosa had been suspended from the program and therefore, unlike Jorge's Pharmacy, was not able to fill Medicaid prescriptions. Wanting to keep his Medicaid customers, Diaz had devised and implemented a scheme that allowed him to continue to do business with these customers. He had his Medicaid customers present their prescriptions to him or Blanca Uzman, one of his subordinates, at a counter outside of the store's prescription department (hereinafter referred to as the "outside counter"). The prescriptions were thereafter taken to Jorge's Pharmacy, where they were filled. The labeled vials containing the dispensed drugs were then delivered to La Generosa, where they were ultimately picked up, at the outside counter, but not before an effort had been made to obliterate, by using white-out, all references to Jorge's Pharmacy appearing on the vials' labels. Although Haro knew of this scheme, he was in no way involved in it. A prescription balance and prescription weights were in the hidden room. Neither a copy of the laws and rules governing the practice of pharmacy, a negative formulary, nor a biennial inventory record of controlled substances were located by the inspection team, although these items were on the premises. Following the December 5, 1990, inspection of La Generosa, administrative charges were brought against both Haro and Rome. Subsequent inspections of the Pharmacy established that "everything was in proper order."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board, with respect to Case No. 91-6297, enter a final order finding Haro guilty of the violations alleged in Counts I, III, VIII, VIV, and XV of the Amended Complaint/Haro and disciplining him for having committed these violations by suspending his license for a period of 60 days, placing him on probation for a period of one year following the end of his suspension subject to such terms as the Board may specify, and requiring him to pay an administrative fine in the amount of $1,500.00, and, with respect to Case No. 92-0227, enter a final order finding Rome guilty of the violations alleged in Counts I, V, VII, IX, and XI of the Amended Complaint/Rome and disciplining it for having committed these violations by suspending its permit to operate La Generosa as a community pharmacy for a period of two years, placing it on probation for a period of one year following the end of its suspension subject to such terms as the Board may specify, and requiring it to pay an administrative fine in the amount of $2,500.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1993.
Findings Of Fact At all times material hereto, Respondent Hotel Pharmacy was a pharmacy permit holder having been issued permit number 0006529. At all times material hereto, Respondent Harry Cartun was a licensed pharmacist. having been issued license number 0011093. At all times material hereto, Respondent Harry Cartun was the owner and manager of Respondent Hotel Pharmacy, located at 1201 Lincoln Road, Miami Beach, Florida. Pursuant to a search of Respondent Hotel Pharmacy's Schedule II files, Petitioner seized the following prescriptions written for a patient named Edward Metzer, which prescriptions were filled by Respondents: DATE PRESCRIBED BY MEDICATION March 17, 1982 Elliot Trevian, M. D. Dilaudid, 4 mgs. No .36 March 25, 1982 Sol Colsky, M. D. Dilaudid, 4 mgs. No .40 March 31, 1982 Gustavo L. Arias, M. D. Dilaudid, 4 mgs. No .40 April 05, 1982 Gustavo L. Arias, M. D. Dilaudid, 4 mgs. No .40 None of the foregoing prescriptions were written by the physicians whose names appear on the prescription. No medical doctor named Elliot Trevian has ever been licensed in the State of Florida. The two prescriptions bearing Dr. Arias' name indicate that he is a psychiatrist--Children and Adolescents. Neither Respondent Harry Cartun nor Respondent Hotel Pharmacy verified the validity of any of the foregoing prescriptions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents Hotel Pharmacy and Harry Cartun not guilty of the allegations contained within the Administrative Complaints and dismissing the Administrative Complaints against them. DONE and RECOMMENDED this 9th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 9th day of March, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Vincent J. Flynn, Esquire 1414 Coral Way Miami, Florida 33145 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hinton F. Bevis, Executive Director Board of Pharmacy Post Office Box 3355 Tallahassee, Florida 32302
Findings Of Fact Dr. Lawrence A. Hall is licensed by the Florida State Board of Dentistry and the Hearing Officer has jurisdiction over the Respondent and the offenses alleged. During the time periods alleged Respondent smoked marijuana in the office after office hours in company with employees including a 16-year-old employee. During the time periods alleged Respondent wrote numerous prescriptions in the names of employees for controlled substances or drugs to be used for his personal use or for the use of his wife or friends. These drugs consisted of Eskatrol, Dexadrine, Dexamyl, Percodan, and Quaalude and were taken by Hall during office hours while he was performing work on dental patients. Some of these drugs made Respondent nervous and irritable and adversely affected his practice of dentistry. During the period between March, 1974 and July, 1975 Hall habitually used controlled substances add drugs. On many occasions he would be late getting to the office for morning appointments and late returning from lunch for afternoon appointments. Occasionally he would fail to come to the office at all and scheduled appointments would have to be cancelled - usually after the patient had appeared for the appointment. Hall wrote prescriptions for his wife and for his employees for controlled substances and drugs for uses not related to the practice of dentistry. These drugs consisted of amphetamines, Quaalude, and Percodan, and were often picked up from the pharmacy by one of his office employees not named in the prescription. Hall knew that his federal narcotics license did not authorize him to write prescriptions for drugs not intended for use in the practice of dentistry. Amphetamines are listed as Class II controlled substances in Chapter 893 F.S. On one occasion, while treating a small child, Hall became exasperated, threw a syringe across the room, then ran out of the office to jog around the adjacent shopping center for about 15 minutes to regain his composure. On another occasion a patient reacted adversely to an anesthetic and was thereafter properly treated by Hall to restore her breathing to normal. The dental procedure for which the anesthetic was given was then performed satisfactorily. The patient involved remained a patient of Hall until she moved to a location too far away to continue to use Hall as her dentist. She was satisfied with the dental treatment received from Hall. Hall sought help in his personal and drug related problems from his minister. No evidence was presented that Hall performed unsatisfactory dental work. To the contrary, all evidence presented in this regard was to the effect that Hall's dental work was above average. At the time of the hearing and for some months prior thereto Hall was not taking drugs.
Findings Of Fact The Respondent Palma Pharmacy and Discount, Inc. holds pharmacy permit number 7654. The Respondent Pharmacy is a corporation owned by Reinaldo Pino, corporate president and Daniel Hollingsworth, corporate vice-president. On or about January 11, 1982, Olga Garcia Allemond, the wife of the Respondent Pino, dispensed to Georgina George, an investigator with the Petitioner Department, 13 capsules of Tranxene, 7.5 milligrams, a controlled substance, without first being furnished with a valid prescription for the drug. On or about January 20, 1982, Olga Garcia Allemond, dispensed to Ms. George, 11 capsules of Tranxene, 7.5 milligrams, without first being furnished with a valid prescription for the drug. On or about February 1, 1982, Olga Garcia Allemond, dispensed to Ms. George 20 capsules of Tranxene, 7.5 milligrams, without first being furnished with a valid prescription for the drug. On or about February 17, 1982, Olga Garcia Allemond, dispensed to Ms. George 12 capsules of Tranxene, 7.5 milligrams, without first being furnished with a valid prescription for the drug. All of the prescriptions dispensed by Olga Garcia Allemond, who is neither licensed as a pharmacist nor registered as a pharmacy intern in Florida, were dispensed from the prescription department of the Respondent Pharmacy. At the final hearing the Petitioner Department took a voluntary dismissal as to Count IV of the Administrative Complaint. Additionally, no evidence was presented concerning Count VI of the Administrative Complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Pharmacy enter a Final Order revoking the pharmacy permit of the Respondents Palma Pharmacy & Discount, Inc. d/b/a Farmacia Palma Discount, Inc., and Reinaldo Pino and Daniel Hollingsworth. DONE and ENTERED this 19th day of October, 1983, in Tallahassee, Florida. SHARYN L. SMITH 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 19 day of October, 1983. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Reinaldo Pino and Daniel Hollingsworth Farmacia Palma Discount, Inc. 4367 Southwest Eighth Street Miami, Florida Wanda Willis, Executive Director Frederick Roche, Secretary Florida Board of Pharmacy Department of Professional Old Courthouse Square Building Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
Findings Of Fact Respondent Dora Villanueva, is a licensed pharmacist, having been issued license number PS 0014957, and whose last known address is 3017 Southwest 107the Avenue, Miami, Florida 33165. At all times material hereto, Respondent Villanueva was the prescription department manager and part-owner of Century Pharmacy, 3017 Southwest 107th Avenue, Miami, Florida 33165. Respondent Century is permitted to operate a community pharmacy under the laws of the State of Florida, having been issued permit number PH 0006839 and operating at 3017 Southwest 107th Avenue, Miami, Florida 33165. On or about August 5, 1983, a Department of Professional Regulation investigator purchased 20 Librax and 20 Donnatal from Century Pharmacy, without first presenting a prescription. The aforementioned Librax and Donnatal were dispensed by Jose Ceferino Calvera, not a licensed pharmacist in the State of Florida. Librax and Donnatal are medicinal drugs as defined in Subsection 465.003(7), Florida Statutes (1983)(F.S.), and require a prescription to be dispensed. Respondent Dora Villanueva was not present in the pharmacy when the Librax and Donnatal were dispensed on August 5, 1983, and the prescription department of the pharmacy had a sign stating that the prescription department was closed. On or about August 17, 1983, a Department of Professional Regulation investigator purchased ten Dalmane, 20 Librax and 20 Donnatal, from Respondent Villanueva at the Respondent Century Pharmacy, Inc. without first furnishing a prescription. Dalmane, Librax and Donnatal are medicinal drugs as defined in Section 465.003(7), F.S. and require a prescription to be dispensed. On or about August 22, 1983, a Department of Professional Regulation investigator purchased ten Tranxene 7.5 mg and ten Dalmane, 30 mg, from Respondent Villanueva at the Respondent Century Pharmacy, Inc., without a prescription. Tranxene and Dalame are medicinal drugs as defined in Section 465.003(7), F.S., and require a prescription to be dispensed. On or about September 8, 1983, an audit was conducted of the controlled substances at Respondent Century Pharmacy, Inc., for the time period of January 1, 1983 through September 8, 1983. Said audit revealed the following shortages in the drugs which were audited: DRUG SHORTAGE Dalmane 30 mg 1,590 Dalmane 15 mg 799 Ativan 1 mg 151 Ativan 2 mg 4,163 Talwin Injectable 22 Dalmane, Ativan and Talwin are controlled substances as defined in Chapter 893, F.S. and are medicinal drugs as defined in Subsection 465.003(7), F.S. Respondent Villanueva denied making the August 17, 1983 sale. However, she did remember Petitioner's investigator from the August 22, 1983, transaction. Since Petititoner's investigator kept a contemporaneous record of her purchases, Respondent's denial is rejected as not credible. Both Respondent Villanueva and Petitioners investigator are immigrants from Cuba. Respondents claim the investigator was allowed to make the August 22, 1983 purchase without a prescription because she stated she had recently arrived from Cuba and had no doctor or money to pay one. Even if this were an accurate account of the transaction (which Petitioner denies) it would not provide grounds for dispensing controlled drugs without a prescription.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner issue a final order suspending the license of Respondent Dora Villanueva and the permit of Century Pharmacy, Inc. for a period of 90 days. DONE and ENTERED this 31st day of July, 1984 in Tallahassee, Florida. R. T. CARPENTER, 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 31st day of July, 1984. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Blas E. Padrino, Esquire 2355 Salzedo Street, Suite 309 Coral Gables, Florida 33134 Wanda Willis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether the Board of Pharmacy (board) should revoke or otherwise discipline the Respondent’s license as a registered pharmacy technician (RPT) because his application for licensure failed to disclose a felony criminal conviction.
Findings Of Fact The Respondent was convicted of the crime of committing a lewd act upon a child in 1996. In 2015, the Respondent took a course at Anthem College, now called Florida Career College, to qualify to be licensed as an RPT in Florida. Towards the end of the course, an application for licensure was submitted to the department. The application required the Respondent to answer the question whether he had been convicted of a crime other than a minor traffic offense. The answer on the application said, “NO.” Based on the application, the department issued the Respondent license RPT 64709 in January 2016. Later, the Respondent’s criminal conviction came to the attention of the department and board, and an Administrative Complaint was filed charging the Respondent with violating section 465.016(1)(a) for obtaining his license by misrepresentation or fraud or through an error of the department or board. The Respondent explained at the hearing that he was not being dishonest and did not willfully obtain his license by fraud or intentional misrepresentation. He testified that he disclosed his criminal conviction to Beth Shelton, his instructor at Anthem, when he went online to create an account to apply for licensure and saw the application and the question regarding his criminal conviction. He testified that she told him his conviction was not an absolute bar to licensure, but that he would have to write a letter explaining the conviction and his rehabilitation from it to submit to the department with his application, along with copies of the court records. The Respondent testified that he put his application on hold and logged out of his account. He testified that the answer on the application at the time he logged out was, “YES.” He testified that he then wrote the letter suggested by his instructor, got the court records, and gave them to her. He testified that he assumed she took care of it for him. He was thrilled when he received his license in the mail in January 2016, and he was crestfallen and dismayed when he received the Administrative Complaint a few months later. Charles Stuard, who was Ms. Shelton’s supervisor at Anthem in 2015, and is now the associate director of education at Florida Career College, testified that it would have been against Anthem’s policy for Ms. Shelton to help the Respondent answer questions on the application or offer to help the Respondent as he said she did. Neither party called Beth Shelton to testify. Some of the Respondent’s testimony could be interpreted as inconsistent, but those possible inconsistencies seemed to arise from misunderstandings and confusion. The essence of the Respondent’s testimony is accepted as true—namely, he was not being dishonest and did not willfully obtain his license by fraud or intentional misrepresentation. The Petitioner did not prove by clear and convincing evidence that the Respondent was dishonest or willfully obtained his license by fraud or intentional misrepresentation, or that the Respondent’s license was issued through an error of the department or board. However, it is clear that the Respondent’s license was obtained by a misrepresentation of fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pharmacy enter a final order revoking his license RPT 64709, which was obtained by an honest and unintentional negligent misrepresentation, and allowing him to reapply so that the board can consider the true facts regarding his criminal conviction. DONE AND ENTERED this 23rd day of November, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2016.
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Respondent's license and employment Respondent, Patrick O. Ojo, is now, and was at all times material hereto, licensed as a pharmacist by the State of Florida, having been issued license number PS 0032023. At all times pertinent hereto, Respondent was under contract with Healthcare Consultants of Central Florida, Inc., d/b/a Healthcare Consultants Pharmacy Staffing (Healthcare Consultants) , a corporation engaged in "the business of placing licensed pharmacists on a temporary and permanent basis" with businesses in need of their services. Pursuant to the agreement, Healthcare Consultants would "from time to time during the term of . . . [the] agreement offer [the] pharmacist the right to perform pharmaceutical services at the location of various clients, " which the pharmacist had the option to accept or reject. If accepted, for temporary services provided under the agreement, Healthcare Consultants would pay the pharmacist $25.50 per hour, except for legal holidays when the rate would be $41.25 per hour. Pursuant to a referral from Healthcare Consultants, Respondent accepted a position, on a temporary basis, as pharmacy manager for A & N Discount Pharmacy on June 2, 1997. A & N Discount Pharmacy is a community pharmacy licensed by Petitioner pursuant to Section 465.018, Florida Statutes, and located at 900 Alton Road, Miami Beach, Florida. The pharmacy inspection On June 24, 1997, Harold Gluck, a senior pharmacist employed by the Agency for Health Care Administration (AHCA), entered A & N Discount Pharmacy to conduct a routine community pharmacy inspection. Pertinent to this case, that inspection noted three deficiencies or violations against the pharmacy business, to wit: (1) there was a 2:1 technician to pharmacist ratio, without prior approval of the Board of Pharmacy (a perceived violation of Rule 64B16-27.410, Florida Administrative Code); (2) the two technicians were not wearing identification badges ( a perceived violation of Rule 64B16-27.410, Florida Administrative Code); and (3) the prescription department was only open 24 hours per week, as opposed to 40 hours per week (a perceived violation of Rule 64B16-28.404, Florida Administrative Code). Mr. Gluck's visual observations are supported by compelling proof, and are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which dismisses Counts I and IV of the Administrative Complaint; finds Respondent guilty of violating Section 465.016(1)(n), Florida Statutes, by failing to comply with Rule 64B16-27.410, Florida Administrative Code, as alleged in Counts II and III of the Administrative Complaint; and, which imposes, as a penalty for such violations, the issuance of a letter of guidance. DONE AND ENTERED this 15th day of September, 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 15th day of September, 1998.
The Issue Whether Respondent committed the acts alleged in the Administrative Actions dated July 7, 2008, and September 5, 2008, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact At all times material to this matter, Respondent was licensed under the Florida Beverage Law by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued License Number 26-07803, Series KLD, by Petitioner. A Series KLD license is one issued by Petitioner to distribute alcoholic beverages. Petitioner seeks to impose sanctions on Respondent for violations of Subsection 561.29(1)(a), within Subsection 561.29(1)(a), within Subsection 561.55(3)(a), Florida Statutes, on February 18, 2008. Petitioner also seeks to impose sanctions on Respondent for violations of Subsections 561.411(1)(a) and (b), Florida Statutes, for the period on December 1, 2006, through November 30, 2007. Christopher John Eiras (Eiras) is the managing director of Respondent distributing company. Eiras closed on the purchase of Respondent on August 31, 2007. Although he took over ownership of Respondent on that date, he had been involved with helping the company since its inception and had been directly involved in the creation of the business. Respondent, as a corporate entity and the holder of the license, is ultimately responsible for the violations alleged in the Administrative Action, if proven. Moreover, Eiras kept the records for the audit period at issue in his house and, therefore, had control over the records requested by Petitioner. Petitioner performed an audit of Respondent for the time period of December 1, 2006, through November 30, 2007. In the course of the audit, and pursuant to Subsection 561.29(1)(j), Florida Statutes, Petitioner requested that Respondent produce certain records. Pursuant to Florida Administrative Code Rule 61A-4.023, "distributors shipping or delivering alcoholic beverages for consumption outside the confines of the State of Florida must supply the Division with a copy of the bill of lading, must show the type of beverages, amount by size container and gallonage of each type shipped by common carrier or licensees' vehicles and a certificate from a representative of the appropriate agency of the jurisdiction into which the alcoholic beverages were shipped stating the shipment has been reported properly to that agency." Respondent supplied general documentation from FedEx and UPS regarding shipments, but Petitioner believes this documentation falls short of what is required by Florida Administrative Code Rule 61A-4.023. The records requested by Petitioner are significant because they form the basis for giving a distributor a deduction from the payment of excise tax, the tax required to be remitted to the State of Florida, for out-of-state sales. The distributor must pay the excise tax on the sale of alcoholic beverages within Florida. Petitioner had worked closely with Respondent and made numerous attempts to bring Respondent into compliance through its records production. Because Eiras was the new owner of Respondent, and because the former auditor (with 37 years of experience) passed away during the audit of Respondent, the new auditor, Margaret Perez, gave Respondent what she termed "an enormous gift" by settling the audit for liabilities of $829.39 and $45.22, with the understanding that Respondent would still produce the requested records. Petitioner issued two letters related to the audit. The first, dated August 15, 2008, found a liability of $45.22, and required payment within ten days of receipt of the letter. No mention was made in the letter of any documents required to be produced by Respondent. Respondent timely paid the $45.22 liability. The second, dated August 18, 2008, found a liability of $828.39 and required payment within 10 days of receipt of the letter. No mention was made in the letter of any documents required to be produced by Respondent. Respondent timely paid the $828.39 liability. Petitioner testified that acceptance of the payments from Respondent did not excuse the production of documents, yet no official communication was issued by Petitioner requiring such production following the August letters and payment of the liabilities set forth in those communications by Respondent. Additionally, pursuant to Subsections 561.411(1)(a) and (b), Florida Statutes, Respondent is required to own "an inventory of alcoholic beverages which is equal to at least 10 percent of the distributor's annual case sales to licensed vendors within this state or to licensed vendors within the malt beverage distributor's exclusive sales territory; or [a]n inventory for which the cost of acquisition is not less than $100,000." The Distributor Qualifications audit showed that Respondent had zero value for its inventory. Further, although Respondent claimed inventory for two supplier products, Urban Brands and Happy Vodka Corporation, both of which are owned by Eiras, Petitioner has not received proof of payment for these products from Respondent that satisfies its interpretation of the requirements of law. Respondent supplied company-generated spreadsheets which, it argues, are sufficient to comply with Petitioner's requirements. These spreadsheets specifically list the inventory as of August 31, 2007, the date of the purchase of Respondent by Eiras from Gray Solomon, the previous owner. The inventory is listed by item number, item description, number of items on hand, average cost per item, percent of total asset, sales price, retail value, percent of total retail, and owned inventory. This detailed spreadsheet shows a total owned inventory of $139,964.24, an asset value of $480,731.15 (most of which is under bailment for other suppliers), and a total retail value of $624,140.59 for all product, whether owned or under bailment. Petitioner expected to receive the source documents or back-up for the inventory and sales. Respondent provided canceled checks and invoices at some point that it believed satisfied this request. Clearly, Respondent was not timely in its response to Petitioner's document requests. Respondent supplied documents such as invoices and bills of lading showing deliveries to Respondent's warehouse in Jacksonville and shipments to locations both within Florida and out-of-state. A question remains as to whether the back-up material fully responds to Respondent's requests for production of documents under Subsection 561.29(1)(j), Florida Statutes, for the audit period. Petitioner has not accepted the documentation provided by Respondent as proof of Respondent's compliance with the audit document request. No complete explanations were offered by Petitioner as to why it would not accept Respondent's documentation as at least some evidence of Respondent's intent to comply with Petitioner's document request. Petitioner offered testimony that it believed shipments were being made by entities other than Respondent. The documentation supplied by Respondent, however, shows numerous shipments and receipts of alcoholic beverage products in the name of "Liquor Group Florida" or "Liquor Group Florida, LLC."
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order as follows: Assessing a $500.00 fine against Respondent for violating Subsection 561.29(1)(j), Florida Statutes; Ordering Respondent to produce all reasonably requested records for any and all future audits, including, but not limited to, bills of lading as required by Florida Administrative Code Rule 61A-4.023, for sales made outside of Florida; Dismissing the Administrative Action against Respondent alleging violations of Subsection 561.411(1)(a) or (b), Florida Statutes; and Dismissing the Administrative Action against Respondent alleging violations of Subsection 561.55(3)(a), Florida Statutes. DONE AND ENTERED this 4th day of June, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2009. COPIES FURNISHED: Sarah Christine Naf, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Joshua B. Moye, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Christopher John Eiras 830-13 A1A North, No. 155 Ponte Vedra Beach, Florida 32082 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerry Geier, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
