The Issue The issue is whether the Respondent violated the statutes and rules as alleged in the Administrative Complaint.
Findings Of Fact Lester Henderson is a pharmacist holding license number 0015985 issued by the Department of Professional Regulation. The Respondent's last known address is 4029 Eastridge Drive, Valrico, Florida 33594. At all times relevant to the allegations contained in the Administrative Complaint, the Respondent was the pharmacist of record at Tampa Park Plaza pharmacy, 1497 Nebraska Avenue, Tampa, Florida 33602. On February 16, 1983, an audit of the Tampa Park Plaza Pharmacy was conducted by the Department. This audit revealed seven prescriptions purportedly issued by Dr. Vinai Artyamsoal for the following amounts Schedule II substances prescribed for Carrie (or Connie) Chambers: 5/18/82 Demerol 50 mg. 100 tabs 8/16/84 Demerol 50 mg. 100 tabs 9/10/82 Demerol 50 mg. 100 tabs 10/8/82 Dilaudid 50 mg. 200 tabs 11/23/82 Dilaudid 4 mg. 200 tabs 12/23/82 Dilaudid 4 mg. 100 tabs 1/20/84 Demerol 100 mg. 100 tabs (See petitioner's Exhibit 3(a) through (g). Dr. Vinai Artyamsoal is a physician specializing in obstetrics and gynecology with offices in Plant City and Zephyr Hills, Florida. Notarized affidavits of Dr. Artyamsoal were received, each of which bears a copy of one of the prescriptions described in paragraph above. Each affidavit contains a statement of Dr. Artyamsoal that he did not issue, authorize, or consent to making the prescriptions depicted within the affidavit. The Board's investigator who is a pharmacist stated "it was a good practice" to check with a doctor to see if the prescription was valid if the doctor was from out of town. (T-52). He also thought a pharmacist should scrutinize such prescriptions more carefully. The Respondent testified that he attempted to contact Dr. Artyamsoal to check on one of the subject prescriptions; however, he was unable to contact the doctor. It was the doctor's practice to personally verify prescriptions with pharmacists by talking with the pharmacist directly. A check of the doctor's records revealed no record for a Carrie (or Connie) Chambers. The Respondent admitted that on April 19, 1983, the pharmacy was unlocked while he was not present at the pharmacy and although he was scheduled to work at that time. There was not an appropriate door or similar structure which could be locked to bar access to the prescription department. There was no sign displayed at said time stating the prescription department was closed. There was a theft of controlled substances from the pharmacy. The Respondent reported this theft to the Federal Drug Enforcement Administration. The Respondent also reported the theft to the state authorities. The Respondent, was one of four partners who owned the pharmacy. The FDEA sent certain forms to the Respondent to be filled out about the theft. The Respondent gave these forms to the partner in charge of business paperwork to fill out. The forms were not sent to FDEA. Because the forms were not returned t FDEA, all of the records were not complete concerning the shortage. The Respondent as the managing pharmacist was attempting to carry the sole work load of this business while working full time at another job which he could not do. This was the reason for the failure to get all of the records complete and be on duty as scheduled.
Conclusions Count I alleges that the Respondent violated Section 465.016(1)(i), Florida Statutes which provides as follows: Compounding, dispensing, or distributing a legend drug, including any controlled substance, other than in the course of professional practice of pharmacy. For purposes of this paragraph, it shall be legally presumed that the compounding, dispensing, or distributing of legend drugs in excessive or inappropriate quantities is not in the best interests of the patient and is not in the course of the professional practice of pharmacy. This count specifically alleges that the Respondent failed to verify the prescriptions. (See Prehearing Stipulation.) The facts reveal that the Respondent attempted to check the prescriptions on one occasion, and that the Board's own investigator did not say it was unprofessional not to check the prescriptions. It was not alleged and not proven the amounts of the, prescriptions were excessive. Therefore, proof of this Count is wholly dependent upon competent substantial testimony that it is outside the course of professional pharmacy to fill prescriptions without checking with the doctors. The Board's witness did not testify to such a standard. He said it was a good investigative practice to check out of town prescriptions. This is substantially short of stating a professional standard from which a pharmacist cannot depart. This Count was not proven. COUNT II Count II alleges the Respondent was not on duty from 10:15 a.m. until 2:00 p.m., on April 19, 1983 when the pharmacy was inspected. At said time, the pharmacy was not locked and a sign was not posted, contrary to Rule 21S-1.14, FAC, saying the department was closed. This rule says in pertinent part that when a pharmacist is not on duty the pharmacy department is considered closed even if the store is open. When the pharmacy department is closed, a sign shall be displayed saying it is closed. The rule also provides that the pharmacy department shall be locked to prevent entry when it is closed. The Respondent admits that on April 19, 1983 the pharmacy was not locked; that he was supposed to be on duty; that he was not at the pharmacy; that a sign was not so posted; and the pharmacy was not locked. However, the Administrative Complaint does not allege that this violation is punishable under the statute and the rules do not provide a penalty for violation. COUNT III Count III alleges Respondent violated 893.07(1)(b), Florida Statutes by failing to keep all of the records re- quired. The Respondent failed to complete the report of that theft to FDEA, although he reported the theft to federal and state authorities. The Respondent had turned the work over to one of the other partners to be done. It was not done. There was a technical failure to complete the reports to FDEA. The DEA elected not to act upon this violation. Ironically, the Department of Professional Regulation had apparently lost its copies of the Respondent's report of the theft in a move, and the Board did not have all of its records. The Respondent is in technical violation of 465.016(1)(e) MITIGATION The Respondent is a minority business man. He and his partners starred a pharmacy in a predominantly black area of their community. They borrowed money to do this and the Respondent has worked hard; in fact, too hard to make this success. Respondent was working at least one other full-time job and often two jobs to get additional money, for his family to protect the business. Because of this, the recommendation does not levy a civil fine. It does not provide for a suspension which would tend to penalize Respondent who was only one of four partners, at least one other of whom was a pharmacist. It appears many of their violations were the result of Respondent attempting to do too much and inadequate technical knowledge of the rules.
Recommendation Having found the Respondent guilty of a technical violation, as alleged in Count III, it is recommended that the Respondent be placed upon probation for two years during which he would be prohibited from working more than 60 hours per week as a pharmacist or working as a managing pharmacist and be required to take a course on the records required to be kept by Chapter 893 and the Federal DEA. DONE and RECOMMENDED this 24th day of October, 1984 in Tallahassee, Florida. STEPHEN F. DEAN 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 24th day of October, 1984. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lester Henderson 1497 Nebraska Avenue Tampa, Florida 33602 Wanda Willis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented at the final hearing was whether the Respondents' Eddy and Edith Portillo pharmacy permit should be revoked or suspended for the acts of a licensed pharmacist hired by the Respondents who engaged in unprofessional and bad faith dispensing of methaqualone as alleged in the Administrative Complaint filed May 26, 1982. John McDonough, a Department medical investigator, John Statnik, a community pharmacist and licensed pharmacist, and Sidney Simkovitz, a retired pharmacist, testified for the Petitioner. Petitioner's Exhibits 1-3 were offered and admitted into evidence. The Respondent Eddy Portillo testified on his own behalf and Respondents' Exhibit 1 was admitted as a late-filed exhibit. A proposed Recommended Order has been submitted by the Petitioner. To the extent that the proposed findings submitted by Petitioner are not reflected in this Order, they were rejected as being either not supported by the weight of admissible evidence or as being irrelevant to the issues determined here.
Findings Of Fact The Respondents Eddy and Edith Portillo hold pharmacy permit number 7276 for Federgo Discount Center, which is located at 1881 79th Street Causeway, North Bay Village, Miami Beach, Florida. Federgo Discount Center is a discount dry goods facility housed in a building of approximately 3,000 square feet. A small portion of the store is occupied by a pharmacy. The Respondent Eddy Portillo is the manager of the entire facility. Since Portillo was not a licensed pharmacist, he hired Michael Interess, a state licensed pharmacist, to operate the pharmacy portion of the store. Pursuant to a "contract work agreement" executed between the Respondent Eddy Portillo and Interess, net profits from the operation of the pharmacy were divided 40 percent to the pharmacist and 60 percent to the store following the deduction of certain delineated items from gross profits. In effect, the pharmacist's wages were based on his success in operating the pharmacy since he was not paid any guaranteed wage. A drug diversion audit conducted by the Petitioner established that the following amounts of methaqualone were dispensed by the pharmacy: November 1, 1981 through February 15, 1982; 56,386 Methaqualone dispensed. June 1, 1980 through February 15, 1982; 251,230 Methaqualone dispensed. When compared to all other Schedule II drugs dispensed by the pharmacy, the percentage of methaqualone dispensed during the audit period was 76.96 percent. No evidence was presented concerning the amount of methaqualone as a percentage of total prescription sales. Based on a seven-day week, approximately 14 methaqualone prescriptions were filled every day of the audit period by the pharmacy. As manager and cashier of the center, the Respondent Eddy Portillo spent a considerable amount of time within the store. The Respondent Portillo received a daily log of all drug sales which indicated the amount of sales in order to compensate Interess, the pharmacist. Although the Respondent Eddy Portillo knew the pharmacy was filling methaqualone prescriptions, he believed the percentage of methaqualone dispensed to be reasonable in relation to total prescription sales. The pharmacy received a large number of methaqualone prescriptions due to its geographical proximity to physicians who apparently frequently prescribed this drug.
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 Pharmacy dismissing the Administrative Complaint against the Respondents. DONE and ORDERED this 17th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 17th day of June, 1983.
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
Findings Of Fact Dora F. Villanueva is a licensed pharmacist in the State of Florida, holding license number PS 0014957. Ms. Villanueva is an elderly woman who owns the Century Pharmacy, a community pharmacy located at 3017 S.W. 107th Avenue in Dade County, which holds permit number PH 0006839. She depends on the pharmacy for her livelihood and is manager of its prescription department. An investigator for the Department of Professional Regulation, Thomas Daniels, entered the Century Pharmacy in the early afternoon on January 7, 1988. He was there to follow up on a previous inspection of the Century Pharmacy. When Mr. Daniels arrived at the pharmacy, Ms. Villanueva, the registered pharmacist, was not there. It is Ms. Villanueva's practice to open the prescription department from 9:00 a.m. to 1:00 p.m. and 3:00 p.m. to 8:00 p.m. She returns to her home for lunch from 1:00 p.m. to 3:00 p.m. While there, Mr. Daniels, observed a person in the pharmacy department, who was visible through a pass-through window which connects the prescription department with the over- the-counter drug section of the pharmacy. That person was Mary Washington, a pharmacy technician who works at the Century Pharmacy. Ms. Washington is not, and never has been a licensed pharmacist. No other licensed pharmacist was present and on duty at the pharmacy. Ms. Villanueva is the only pharmacist employed at the Century Pharmacy. While Ms. Villanueva was absent, there was no sign indicating the pharmacy prescription department was closed due to the absence of a pharmacist. The records of the Board of Pharmacy admitted into evidence indicate that Ms. Villanueva was placed on probation on November 5, 1984, for one year. The reason for the probation cannot be determined from the records offered in evidence.
Recommendation It is, therefore, RECOMMENDED that Dora F. Villanueva and Century Pharmacy receive a reprimand and a fine of $400 for violations of Rule 21S-1.014, Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1988. APPENDIX Rulings on the proposed findings of fact and conclusions of law of the petitioner. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 4. Covered in finding of fact 4. Covered in finding of fact 4. Covered in finding of fact 5. Rulings on the proposed findings of fact and conclusions of law of the respondent. Covered in finding of fact 1. Covered in finding of fact 2. Covered in findings of fact 2 and 3. Generally covered in findings of fact 2 and 3. Rejected because I accepted the testimony of Mr. Daniels on this point, that there was no closed sign at all. Whether Dr. Villanueva places a sign in the dispensing window on most days cannot be determined from the evidence, but she did not do so on January 7, 1988. Rejected because I have accepted the testimony of Mr. Daniels that he saw Mary Washington in the pharmacy department. Rejected for the reasons stated in the preceding paragraph. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Regla M. Sibila-Zaidner, Esquire 2260 S.W. 8th Street Suite 204 Miami, Florida 33135 Rod Presnell, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times 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
The Issue Whether disciplinary action should be taken against the license of the Respondent, Roger Allen Bowers, to practice pharmacy in, the State of Florida.
Findings Of Fact The Respondent, Roger Allen Bowers, a registered pharmacist in the State of Florida, practiced pharmacy and was the manager of the prescription department at Scotty Discount Drugs at 3620 Blanding Boulevard in Jacksonville, Florida, during the period of time from May 1, 1978, to February 10, 1979. On February 28, 1979, a Complaint and Notice to Show Cause was issued by the Petitioner Board charging Respondent with violation of Sections 465.101(1)(e) and 893.07, Florida Statutes, for permitting improper maintenance of records in that he failed to keep "on a current basis a complete and accurate record of each controlled substance, controlled by Chapter 893, Florida Statutes," at said community pharmacy. Respondent Bowers requested an administrative hearing. Mary Haddad, a pharmacist licensed in the State of Florida and employed at Scotty Discount Drugs during January, February and March of 1979, noticed that large quantities of Percocet-5 were being ordered by Respondent Bowers. Ms. Haddad felt such an order was unusual, inasmuch as she did not fill any prescriptions for this medication during her first month of employment. She checked the pharmacy Schedule II files for a one-month period and found approximately three (3) prescriptions for Percocet-5 during that period. She noticed, however, that numerous narcotic forms were signed by Respondent reordering this medication. Ms. Haddad noted on February 9, 1979, that there was one 500 stock bottle of Percocet-5 on the shelf which was about three- quarters full. She reported her findings to Owen Scott, a supervisor for Scotty Discount Drugs. Mr. Scott considered the communication from Ms. Haddad and called David Hodge, an agent for Petitioner Board, and requested an immediate audit of the pharmacy. After Mr. Hodge's report was filed with Mr. Owen, Mr. Owen terminated Respondent from the employ of Scotty Discount Drugs. David L. Hodge, the inspector-investigator for the Petitioner Board, audited the pharmacy for a period of approximately nine (9) months previous to February, 1979. The audit showed that during the said nine (9) months' period there was a shortage of 17,628 Percocet-5 tablets, 4,097 Percodan tablets, 609 Dilaudid 4 mg. tablets, and 610 Dilaudid 2 mg. tablets. The audit was introduced into evidence without objection. Mr. Hodge made copies of all the order forms for the said nine (9) months' period at Lawrence Pharmaceuticals which had been sent to said firm and were signed by Respondent Bowers. These copies were introduced into evidence without objection. The Respondent properly filled out the forms, signed them, and properly filed the forms on which the narcotics were ordered. He properly filed the prescriptions that were filled. No explanation was given for the discrepancy between the large amount of narcotics ordered by Respondent as the manager of the pharmacy and the small number of prescriptions filled for these narcotics and the absence of these narcotics in the pharmacy at the time of the audit by Mr. Hodge. There were seven (7) licensed pharmacists employed by the pharmacy managed by Respondent. The store in which the pharmacy was located remained locked until unlocked by an employee, and the pharmacy remained locked. Several people had keys to the store, and the licensed pharmacists had keys to the pharmacy. There was a spare key to the pharmacy within the store in the store manager's office under a ledge by a small door next to the pharmacy. The assistant manager of the store, an unlicensed person, knew the location of this key, as perhaps did other people, inasmuch as it was left on the ledge when not in use. Petitioner submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the license of the Respondent, Roger Allen Bowers, be revoked. DONE and ORDERED this 12th day of October, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michael I. Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Respondent holds community pharmacy license No. PH0007711, renewed January 13, 1983. On May 21, 1981, Lester J. Henderson signed a new establishment permit application as owner, officer, manager and registered pharmacist. On June 9, 1981, petitioner conducted a new establishment inspection of Tampa Park Plaza Pharmacy. On June 19, 1981, Mr. Henderson wrote that "Andrew Mobley is no longer the Pharmacy Manager of Tampa Park Plaza Pharmacy, but I am . . . ." Petitioner's Exhibit No. 1. Petitioner received this notification on June 24, 1981, and, on the following day, wrote Mr. Henderson "to advise that effective as of June 19, 1981, our records were amended to reflect that you are the pharmacist manager." MBHS Corp., Inc. (MBHS), owns Tampa Park Plaza Pharmacy, (the pharmacy) and MBHS is owned in turn by its three officers. MBHS' president, Andrew Mobley, and Lester Henderson, an MBHS vice-president, are registered pharmacists. Samuel Snowden, also an MBHS vice-president and the third stockholder, is not a pharmacist. After the pharmacy opened for business, Andrew Mobley left Florida, and left the every day operation of the pharmacy to Lester Henderson, whom he knew to have had no retail experience as a pharmacist. In December of 1981, Mr. Mobley returned from Oklahoma to find a complete dearth of pharmaceutical records. Mr. Henderson explained that he did not like paperwork. Mr. Mobley returned to Oklahoma, again leaving the every day operation of the pharmacy to Mr. Henderson, but returned to Tampa when a bank that had made the pharmacy a loan threatened to call it in. He found scheduled drugs mixed in together, with unscheduled drugs, and a continued lack of records. Mr. Mobley then set up an inventory control book, something that had been neglected to that point. It developed that some Dilaudid was missing, which seemed to be news to Mr. Henderson. Mr. Mobley told Mr. Henderson the fact that the drugs were missing would have to be reported to the Department of Professional Regulation and Mr. Mobley got forms from the Department of Professional Regulation's office on Henderson Boulevard, which he gave to Mr. Henderson to fill out. Mr. Henderson never did fill them out and reportedly said "Andrew . . . must be crazy if he thinks I'm going to fill out those papers and send them in to those people." (T. 35) Mr. Mobley worked with Mr. Henderson in an effort to straighten out record keeping at the pharmacy, but also took a job at Walgreen's beginning in February of 1983. He left this job in June to take over from Mr. Henderson as pharmacy manager at the pharmacy. Mr. Henderson has not been employed at the pharmacy since. Edward G. Bludworth and Merry L. Paige, investigators in petitioner's employ, visited the pharmacy about ten o'clock on February 16, 1983. The prescription department was open; it was unlocked and there was no "closed" sign, but there was no pharmacist on duty. When the investigators asked to speak to the pharmacist, the store clerk made several telephone calls. She was only able to locate Mr. Henderson at about two o'clock, after the investigators had left. Mr. Bludworth and Ms. Paige conducted an audit of scheduled drugs at the pharmacy on February 16, 1983. Because of the lack of an inventory report as of the spring of 1981, they assumed no drugs on hand as of June 9, 1981. On this assumption they concluded that 296 tablets of Dilaudid 2 mg. were missing and unaccounted for. Dilaudid contains dihy dromorphinone [sic]. On the same assumption, they found a shortage of 41 Percodan tablets, which contain oxycodone, and an overage of 97 Demerol tablets 50 mg. Petitioner's Exhibit No. During the audit period, the pharmacy purchased 400 tablets of Dilaudid 2 mg. and 500 Percodan tablets. Id. The discrepancies uncovered by the audit exceeded significantly the five percent error rate that the investigators commonly see. Mr. Bludworth and Ms. Paige returned for a second visit on April 19, 1983, at about ten o'clock in the morning. Once again, the prescription department was unlocked and open. There was no "closed" sign and no pharmacist to be seen. This time Mr. Henderson's presence was procured by noon. On one of their visits, Mr. Henderson told the investigators that there had been a break-in at the pharmacy more than a year earlier. He said he had reported the incident at the time to the authorities but was unable to produce documentation of any such report. The investigators requested such documentation at the time of the visit, and Ms. Paige later telephoned him to ask again for documentation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for one (1) year. DONE and ENTERED this 20th day of October, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 20th day of October, 1983. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Andrew Mobley Tampa Park Plaza Pharmacy 1497 Nebraska Avenue Tampa, Florida 33602 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Department of Professional Regulation Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
