The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaint dated March 3, 2000, and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Robert Gibson McLester, III ("McLester") is a licensed pharmacist 2 with a heretofore unblemished record. McLester graduated from the University of Florida with a degree in pharmacy in August 1977. He was licensed by the State of Florida to practice pharmacy in February 1978. He currently holds an Alabama pharmacy license, and was previously licensed in Mississippi but at some point ceased to pay the state's licensing fee; the license thus lapsed by operation of law. McLester received a Master of Science degree in hospital pharmacy from the University of Mississippi in December 1987 and a Master of Health Care Administration from the same institution the following May. McLester entered the Navy as an aviator cadet in June 1965, and was commissioned as a naval aviator in February 1967. He flew 103 missions with Attack Squadron 147 and was honorably discharged as a lieutenant in December 1970. Following a brief stint in the insurance and investment business, McLester applied unsuccessfully to medical school. McLester entered the University of Florida's pharmacy school in September 1974 and following his graduation in August 1977, has been continuously employed as a pharmacist when not pursuing advanced degrees in pharmacy and related fields. Much of McLester's pharmacy employment has been in the Navy, which he reentered in February 1978 as an ensign in the Medical Service Corps. McLester served in a variety of posts before retiring as a lieutenant commander in August 1992, including at the National Naval Medical Center in Bethesda, Maryland, where he supervised in excess of 25 pharmacists and pharmacy technicians in the preparation of an average of 1600 outpatient prescriptions per day. McLester continued the practice of pharmacy as a civilian, working briefly as a relief pharmacist for the Eckerd Drug chain in the Vero Beach area before being hired full time by Winn-Dixie in August 1992. Under McLester's supervision, Store No. 2358 enjoyed high sales volume and was used as a training site for other Winn-Dixie pharmacies. At all times during McLester's employment at Winn- Dixie, reports of annual inspections of his pharmacy conducted by the Agency for Health Care Administration ("AHCA") pursuant to law showed no deficiencies of any kind. McLester worked at the Winn-Dixie Store No. 2358 until June 17, 1998. McLester's separation from Winn-Dixie was voluntary. McLester left Winn-Dixie because he considered the hours assigned to him by his new supervisor, Steve Howard ("Howard") to be "slave hours." Following McLester's departure, sales and customer satisfaction at Store No. 2358 deteriorated. For most of the time relevant to this case, McLester was responsible for filling in the neighborhood of 150 prescriptions per day. That number placed his store at the high end of Winn- Dixie pharmacy productivity. 3 During the course of his employment at Winn-Dixie, McLester had occasion to report approximately a dozen instances of prescription drug fraud to the authorities, including St.Lucie County Detective Scott Silverman (Silverman). Following his resignation from Winn-Dixie, McLester worked briefly with various services which would find him work as a relief pharmacist. On the instructions of Howard, McLester was not permitted to work at any of the Winn-Dixie stores in the area. In October 1998, McLester found full-time employment with Doctors' Clinic Pharmacy in Vero Beach, a "closed pharmacy" which serves only the patients of that multi-specialty practice. During his term of employment at Winn-Dixie, McLester was assisted by about a half dozen pharmacy technicians. Pharmacy technicians are licensed by the state and must work under the close supervision of a registered pharmacist. Tasks which the law permits to be delegated to pharmacy technicians and which, in fact, are typically delegated to a pharmacy technician include ordering drugs, including controlled substances; receiving drugs and other inventory; counting and transferring drugs from their original containers to packages for individual prescriptions; shelf maintenance; department maintenance; and stocking shelves. Other tasks which pharmacy technicians may legally perform, and which were in fact performed by technicians at Winn-Dixie stores, include logging invoices into the computer system for payment; verifying orders shipped into the store; answering telephones; taking refills from patients or doctors provided that there is no change in any element of the prescription (i.e. instructions to the patient, dosage, etc.); requests to doctors to issue new prescriptions on behalf of a patient; preparing labels and delivering filled prescriptions to the pharmacist for final verification. Because of the nature of the tasks delegated to pharmacy technicians, the relationship between pharmacist and technician must be one of, as several witnesses testified, implicit trust. McLester trusted all of the pharmacy technicians with whom he worked at Winn-Dixie. One of the Winn-Dixie pharmacy technicians, Tonya Tipton ("Tipton") betrayed McLester's trust, along with the trust of the State of Florida which licensed her, Winn-Dixie which employed her, and several other pharmacists under whose supervision she worked. Weeks after McLester left Winn-Dixie, Tipton's betrayal of trust was discovered. Soon after, she was fired from Winn-Dixie and subsequently arrested for crimes she allegedly committed in and against the Winn-Dixie pharmacy. Tipton's arrest set in motion a chain of events which led to this Administrative Complaint. Following a work-related injury suffered in the early 1990s, Tipton developed a dependence upon prescription painkilling medication, including the narcotic nasal spray Stadol.4 Unbeknownst to anyone, Tipton devised a scheme by which she could steal Stadol from Winn-Dixie, and also obtain Stadol under a forged prescription. At all times prior to Tipton's firing from Winn-Dixie, she was a trusted employee. Tipton fell under suspicion when she stated to a co- worker that a package would be arriving the following day and that it should not be opened. Store employees opened the package nevertheless and discovered it contained Stadol. Thereafter, a fellow pharmacy technician followed Tipton into the ladies' room and discovered empty bottles of Stadol in the wastebasket. Confronted by store employees about her inappropriate instruction to the co-worker not to open the package, as well as the empty Stadol containers in the ladies' room, Tipton admitted only to taking one bottle of Stadol from the Winn-Dixie pharmacy. Abundant circumstantial evidence suggests that Tipton's dependence upon Stadol led her to commit more than the one offense to which she admitted. McLester had been the primary pharmacist on duty at Store No. 2358 during many of the shifts when Tipton was alleged to have illegally obtained Stadol. Following a criminal investigation by Detective Silverman and the arrest of Tipton, McLester's former supervisor, Howard, lodged a complaint against McLester with the Board of Pharmacy. In his letter of complaint, Howard characterized his complaint as an effort to protect the interests of Winn-Dixie "in case this problem was found out." Howard claimed that Mostafa Macida ("Macida"), who had replaced McLester as the store's primary pharmacist,"discovered" that Stadol was being stolen from the pharmacy but this testimony is rejected as inconsistent with the testimony of numerous individuals who, unlike Howard, had personal knowledge of the events surrounding Tipton's arrest. Macida suspected nothing and discovered nothing. Tipton's employment at Winn-Dixie began in February 1995 when she was hired as a pharmacy technician by McLester.5 In that capacity, Tipton worked not only with McLester, but also with then-Head Technician Ava Forsythe (Forsythe). Forsythe trained Tipton in the technicians' duties, including the various methods by which prescription drugs, both controlled and non-controlled, may be ordered. At all times relevant to this case, there are three ways in which Winn-Dixie pharmacies may procure drugs and medical supplies requiring prescriptions for resale to the public. The primary system is a computer-generated daily order. The system was referred to by many witnesses as "the PDX system" ("PDX"). Technicians, working under the supervision of the pharmacist, would review the order to verify that the required types and quantities of supplies were being ordered. When the order was deemed complete, "the button was pushed" and the order electronically transmitted to Winn-Dixie's major drug supplier, Bindley-Western.6 In theory, the computer would accurately track stock in over 2,000 line items. The computer was supposed to automatically add to the inventory based upon what was ordered, and subtract based upon records of what was actually dispensed to customers. In reality, the computer-generated inventory was corrupt on a daily basis. Because of the PDX system's unreliability, technicians often had to make adjustments by hand so that the computerized records would match what was actually in stock. Orders could also be manually keypunched into a unit called a Telxon, which also transmitted orders to Bindley- Western. The Telxon unit is portable. The size of a telephone, the Telxon unit at Store No. 2358 was generally kept in a drawer when not being used. Finally, drugs can be ordered from Bindley-Western and/or from one of two secondary suppliers used by Winn-Dixie from any telephone, whether or not the telephone is located in a Winn-Dixie store. None of the systems used by Winn-Dixie, either singly or in combination, had the ability to flag the fact that hundreds of bottles of Stadol had been ordered and paid for by Winn-Dixie, yet not placed on the shelves as pharmacy inventory in Store No. 2358, during the period of Tipton's employment. Under Winn-Dixie's system, it is possible for a pharmacy technician to order medications unbeknownst to the pharmacist, to have them paid for by Winn-Dixie, and to physically divert them to his possession before the medications were logged in to pharmacy inventory. Once drugs are properly entered into inventory, it is reasonable to expect that the pharmacist could be aware of large amounts of a drug being stolen from the inventory. Any single incident of placing unauthorized drug orders could take place in the two or three minutes the duty pharmacist might be absent to go to the restroom, or have his attention diverted for any reason. Silverman is an experienced police officer, having served for over two decades in various law enforcement positions in Florida. For nearly five years Silverman has been exclusively assigned to work with pharmacies and other law enforcement agencies in St. Lucie County. Silverman's job is to assist in the prevention and prosecution of crimes involving the misuse of prescription drugs. Silverman's involvement in this case began when Tipton sought him out. Tipton knew Silverman because her husband is a fellow St. Lucie County detective, and Tipton herself was a sworn St. Lucie officer. Tipton approached Silverman to confess that she had taken a bottle of Stadol from the Winn-Dixie store where she worked. Tipton's confession was not provoked by an attack of conscience. Rather, after she was fired by Winn-Dixie, she began damage control. As Silverman's investigation progressed, substantial effort was made to determine how Tipton had diverted Stadol and what, if any, other crimes may have been committed. Documents collected in the course of the investigation revealed that Tipton had developed a dependency on prescription painkillers dating to a back injury in 1990 in which she suffered a herniated disc. Tipton developed a dependency on Stadol in 1996, after dealing with pain related to the 1990 injury. Tipton claimed to Winn-Dixie security supervisor Robert Blakely ("Blakely") that she had told McLester of the problem, and that he referred her to her doctor for help. Ultimately, Silverman arrested Tipton on 17 counts of insurance fraud and one count of felony possession of a controlled substance. No evidence was offered regarding the disposition of Tipton's case. No evidence was presented of what, if any, effort was made to determine from Tipton if McLester had any complicity in her crimes. It was clear to Silverman that while Tipton had figured out a way to illegally divert Stadol to her unauthorized use, as of the date of the final hearing, "nobody knows how it was done." 7 There was conflicting testimony as to precisely how much Stadol was diverted by Tipton over the relevant period of time but Tipton's ability to obtain the drug through the use of fraudulent prescriptions and outright theft was audacious in scale. Stadol was a legend drug until June 1997 when the Drug Enforcement Agency upgraded its status to a Schedule IV controlled substance. Prior to October 19, 1996, Tipton had a legitimate prescription for Stadol. On that date, Les Gessley ("Gessley"), a relief pharmacist at Store No. 2358, approved a new Stadol prescription for Tipton under a legend number. Tipton used this approved prescription number subsequently when she herself prepared numerous unauthorized refills under this same number. Each of these unauthorized refills was listed on daily pharmacy logs certified mostly by McLester, but also by other duty pharmacists as well. Because these unauthorized prescriptions were refills rather than original prescriptions, the duty pharmacist was not required to personally view the original written prescription. McLester was the pharmacist on duty a majority of the days on which Tipton is believed to have diverted Stadol illegally. Somewhere between ten and twenty percent of the Stadol believed to have been unlawfully diverted by Tipton from Store No. 2358 was diverted after McLester had ceased to be employed there. Some of the Stadol obtained by Tipton under fraudulent prescription at Store No. 2358 was obtained on days when McLester was not the pharmacist on duty. In addition to Les Gessley and Mostafa Macida, other pharmacists on duty while Tipton was believed to have engaged in the criminal diversion of Stadol are Ted Kline and Al Leota. McLester admitted knowing Tipton had a problem with Stadol but did not know the extent of her problem. Forsythe told McLester that she thought there might be some Stadol missing from the shelves. When she shared her concern with McLester, he instructed Forsythe not to leave Tipton alone in the pharmacy. No evidence placed McLester's conversation[s] with Tipton and other parties about her use of Stadol in the context of when Tipton's alleged diversions occurred. According to Forsythe's unrebutted testimony, If you were that desperate you could order any medication you wanted on the Telxon machine or verbally order without knowledge of the pharmacist knowing what you were doing. And then when the medication comes in, you pay the invoice. You throw the invoice away. You throw the copy that you received from the computer away. The invoice is paid. The only person that will know about it will be the person at the headquarters that pays the payment on the invoice without knowing what is on it and the person gets the medication. Take the medication home via however and no one is the wiser. Winn-Dixie has no security procedures in place, such as searching handbags or packages, to prevent employee theft in the pharmacy. Winn-Dixie's ordering system is tailor-made to be abused by individuals who are, in Forsythe's words, "that desperate." It is not illegal for pharmacy technicians to fill their own prescriptions. It is possible for a pharmacy technician to fill or refill a prescription without the pharmacist knowing that had been done if he was absent from the pharmacy or had his attention diverted in some fashion. It appears that Tipton refilled her own fraudulent prescription on a number of occasions, but that her preferred method of diverting Stadol was outright theft. The Winn-Dixie system by which the pharmacies are stocked is flawed in a manner which allowed Tipton to divert Stadol without being detected by the duty pharmacist. The Department failed to show that McLester knew or should have known that Tipton had diverted Stadol to her unauthorized use at Store No. 2358.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges in the Administrative Complaint be dismissed. DONE AND ENTERED this 17th day of November, 2000, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2000.
Findings Of Fact At all times relevant hereto, respondent, Cuca Pharmacy, Inc. (Cuca), held community pharmacy license number PH007348 issued by petitioner, Department of Professional Regulation Board of Pharmacy. When the events herein occurred, Hortensia Lopez-Perez was its president and permittee. Its location is 11048 West Flagler Street, Miami, Florida. After the events herein occurred, the pharmacy was closed by emergency suspension order and it has remained closed since that time. In February, 1984 special agent Alberto Fernandez was performing undercover operations in the Miami area for the Drug Enforcement Agency (DEA) for the purpose of enforcing federal narcotic laws. On February 17, he received information from an informant that ten kilograms of cocaine could be purchased for $21,000.00 per kilogram from two individuals named Zayas and Santos. He was told the cocaine was stored at respondent's pharmacy. Fernandez met the two "dealers" in Hialeah but Zayas and Santos were unable to produce any drugs. Consequently, no sale took place. On February 25, Fernandez again received a telephone call from his informant and was told to go to Cuca and meet an individual named Jesus Avila who was interested in selling some cocaine. Fernandez, Avila and the informant met in the rear of the pharmacy where Avila agreed to sell ten kilograms of cocaine to Fernandez for an undisclosed price. They further agreed to meet in a nearby shopping center where Fernandez would show his money and Avila would show the drugs as a good faith gesture. If both parties were satisfied, they agreed to then make the transfer at Cuca. Fernandez went to the shopping center but when Avila did not appear at the designated time, Fernandez returned to Cuca. Respondent's permittee, Hortensia Perez, advised him the drugs were on the way and not to worry. Later on that day, Fernandez received a telephone call from his informant advising that two kilograms had just arrived at Cuca and to return there for the buy. When he returned he met Avila and Lopez-Perez and went to the back of the store. Avila told Fernandez he couldn't sell cocaine that day but could arrange to do so in a few days. On February 29, Fernandez received another telephone call from his informant who advised him that the cocaine was at Cuca and to be there at 3:00 p.m. At the designated time, Fernandez, the informant and Lopez-Perez went to the rear of the pharmacy where Lopez-Perez pulled a clear plastic bag containing a white powdery substance from a metal cabinet and gave it to Fernandez. The transfer of the substance was made without a prescription. Lopez-Perez was then arrested for allegedly violating federal narcotic laws. The contents of the bag were later subjected to a chemical analysis and found to weigh 2.2 pounds (one kilogram) and to be 95 percent pure cocaine hydrochloride, a controlled substance and legend drug which requires a prescription for dispensing. Records of Miami area drug wholesalers introduced into evidence reflected that Cuca had not ordered any cocaine for prescription purposes between 1982 and June, 1984. This was confirmed by testimony from Cuca's prescription department manager. Lopez was charged with one count of conspiring to possess with intent to distribute a controlled substance (cocaine) in violation of Title 21, U.S.C., Section 846, and with one count of possessing with intent to distribute a controlled substance (cocaine) in violation of Title 21, U.S.C., Section 841(a)(1) and Title 18, U.S.C., Section 2. She was found guilty on both counts, and a certified copy of the judgment and probation/commitment order dated August 16, 1984 was received in evidence. That document reflects she was sentenced to five years confinement and three years of special parole on count two and five years probation on the first count. Lopez is free on bond while she appeals that judgment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the first and second administrative complaints and that its license as a community pharmacy be REVOKED. DONE and ORDERED this 13th day of January 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of January, 1986.
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 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 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 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.
Findings Of Fact At all times pertinent to the issues herein, the Department of Business and Professional Regulation's Division of Alcoholic Beverages and Tobacco, (Division), was the state agency responsible for regulation the wholesale and retail sales of alcoholic beverages in Florida. Respondent, Warehouse Liquors, III d/b/a Lake Avenue Liquors, held 3-PS liquor license 93-00582, for its retail liquor store located at 209 E. Lake Avenue in Tampa. The parties stipulated that the facts as alleged in paragraphs 1 - 18 of the Emergency Order of Suspension issued in this case on September 27, 1994, and Counts 1 through 11 of the Notice to Show Cause of even date are correct, and may be incorporated herein as Findings of Fact of the Hearing Officer. They are as follows: On or about April 29, 1991, Tampa City Councilman, Perry Harvey, notified the licensee's President and sole officer, Michael Kwasin, Jr., by letter, of specific public nuisance problem associated with his operation of the licensed premises. Mr. Kwasin was also given a corrective action plan to follow which included working with the Tampa Police Department, (TPD), to remedy the problem. In addition, TPD Sergeant G. Kelly contacted the licensee, through Mr. Kwasin, by telephone on several occasions in an effort to have him address the public nuisance complaints from the police Citizens Advisory Committee, made up of community leaders and city officials, relative to the licensed premises. In addition, citizens who reside in the surrounding neighborhood have met with Mr. Kwasin to voice their complaints about the drug dealing and safety problems related to his operation. Notwithstanding the repeated notices of misconduct in and around his facility given to Mr. Kwasin, the records of TPD reflect numerous complaints, incident reports and arrests associated with the licensed premises. On or about April 16, 1994, Special Agents, (SA), Hamilton and Murray went to the licensed premises as a part of an ongoing narcotics investigation. While at the premises, SA Murray observed patrons in the possession of "crack" cocaine. On or about May 19, 1994, SA Hamilton spoke with Mr. Kwasin regarding drug and loitering problems at the licensed premises. Nonetheless, TPD continued to receive complaints about the drug activity on the premises from citizens of the neighborhood. On or about June 2, 1994, SA's Hamilton, Zedell and Akins returned to the premises and while there, Zedell observed several male patrons, some of whom were conducting drug transactions, loitering in front of the licensed premises. Again, on or about July 21, 1994, SA's Maggio and Zedell returned to the licenses premises where Zedell observed patrons conducting drug transactions right in front. On or about August 25, 1994, SA's McKenzie and Zedell returned to the licensed premises and went inside where they met with the two female employees of the licensee and a male patron to arrange a purchase of marijuana. Zedell handed the male patron ten dollars and received, in exchange, a small plastic package of a substance which, when later analyzed, was determined to be marijuana. On or about August 26, 1994, SA's McKenzie and Zedell again returned to the licensed premises where Zedell observed patrons conducting drug transactions out in front. After one transaction, a patron went inside. When the agents went inside, they met with an employee, Lori, who asked the previously mentioned male patron if he had any marijuana. Thereafter, McKenzie got change from Lori from which he gave the patron ten dollars in exchange for a small plastic package containing a substance later analyzed and found to be marijuana. On or about September 1, 1994, SA's McKenzie and Zedell again returned to the licensed premises. While there they were approached by a male patron and solicited to buy marijuana. This patron thereafter directed McKenzie inside the premises to conduct the transaction because, he indicated, there were two police cars in the area. While inside, in front of employee, Lori, McKenzie gave the patron ten dollars for a small plastic bag of a substance later analyzed and determined to be marijuana. Again, on or about September 2, 1994, McKenzie and Zedell returned to the licensed premises where they observed several male patrons loitering outside. Just outside the door, McKenzie met with one of the male patrons to whom he gave ten dollars in return for a small bag containing a substance later analyzed and determined to be marijuana. On or about September 7, 1994, McKenzie and Zedell went back to the licensed premises where they were approached outside by a male patron regarding the sale of marijuana. McKenzie and the patron went inside where McKenzie handed him ten dollars in exchange for a small package containing a substance later analyzed and found to be marijuana. Later that same day, McKenzie and Zedell were again approached by the same patron regarding a sale of marijuana. McKenzie and the patron entered the premises where McKenzie again handed him ten dollars in exchange for a small plastic package containing a substance later analyzed and determined to be marijuana. This transaction was witnessed without interference by a male employee of the establishment. Again, that same day, Zedell met for a third time with that patron and gave him ten dollars in exchange for which he received a small plastic bag containing a substance later analyzed and found to be marijuana. On September 9, 1994, McKenzie and Zedell returned to the licensed premises where they were approached by another patron, different from all the previous patrons mentioned, who offered to sell them marijuana. They went with that patron inside the licensed premises where, in the presence of Respondent's employee, Jackie, McKenzie handed the patron ten dollars in exchange for which he received a small plastic bag containing a substance later analyzed and determined to be marijuana. On September 12, 1994, McKenzie and Zedell again went to the licensed premises where they were approached by yet another patron, a female this time, who offered to sell them marijuana. Again, as with prior patrons, they went inside the licensed premises where, in the presence of and with the concurrence of Respondent's employee, Lori, McKenzie handed the patron ten dollars in exchange for which he received a small plastic bag containing a substance which was later analyzed and determined to be marijuana. Two days later, on September 14, 1994, McKenzie and Zedell again went to the licensed premises where they were approached by several male patrons who were competing with one another to sell marijuana. All these patrons displayed small packages of purported marijuana and followed McKenzie into the licensed premises. Two of the patrons got into an argument about what was described as marijuana being openly displayed on the counter. Nonetheless, while inside the premises, McKenzie gave one of the patrons ten dollars in front of Jackie for which he received in return a small plastic bag containing a substance which was later analyzed and determined to be marijuana. Respondent's President, Mr. Kwasin, on the other hand, while not denying the details of the reported drug transactions which reportedly took place on the premises, denied ever being advised by his employees, the police, or his neighbors, that the situation was as bad as reported. His employee, Jacqueline Hall, (Jackie), in testimony at the hearing, indicated there was no room for drugs in the store because Mr. Kwasin has made it clear he doesn't want them there. She indicated management has also tried to get rid of the pushers outside the store as well and has cooperated with the police in all efforts to clean up the area. In her opinion, the primary responsibility lies with the police. Ms. Hall noted that she and Mr. Kwasin have gone to neighborhood meetings and have tried to implement the suggestions give by the police and others in an effort to cut down drug activities. There are only two employees at the store, she and Lori, and she has heard from law enforcement and others in the area that Respondent's policies on drugs are effective. According to her, the police have indicated that Respondent is doing all that can be done, and his efforts are appreciated. Ms. Hall has lived in that area all her life and she knows who the drug dealers are. They have come onto the licensed premises, but when they try to sell drugs inside, she sends them out. She denies having ever seen Lori selling drugs on the premises. Her testimony is patently incredible. Nonetheless, some law enforcement officers feel Respondent is being cooperative and trying to solve the drug problem. According to TPD Officer Garrett, who has spoken with Respondent Kwasin about the problem on many occasions, there has never been an instance where Kwasin has not cooperated fully with him, and Kwasin has sought suggestions from him on how to curb the drug traffic in the area. Respondent's general manager, Ms. Kennedy, has worked with him for about eight years. Approximately three years ago, the company put out a policy seeing to operate a drug-free work place. All employees are given copies of this policy. Earlier this year, Respondent's worker's compensation carrier provided her with new information to use to promote a drug free environment, which called for mandatory drug testing of employees and signed affidavits of non-use required from each employee. These new procedures have not been implemented as yet, however. Ms. Kennedy knows that Mr. Kwasin goes to the licensed premises in question each day, seven days a week. She also sees him at the location where she works, at least four hours a day the six days a week she is there. They have frequently discussed, prior to their implementation, anti-drug policies and procedures which Mr. Kwasin has brought back with him from training sessions at the IBD conventions he attends. He recognizes it to be in his best interests to conform to a no-drug policy in his stores. Ms. Kennedy is available to all Respondent's employees 24 hours a day, either at work, or on call at home. All employees go through a training program on anti-drug activity, but the drug testing and the anti-drug affidavits have not yet been implemented. Mr. Kwasin believes his efforts to curb drug activity in and around Lake Avenue Liquors had brought the problem under control. When Sgt. Hamilton spoke with him in May, 1994, he added more external lights and found that within a week of installation, all bulbs were broken. He replaced them four times, finally installing another type of bulb which is not so easily broken. He has tried to work with the police and even suggested they send in an undercover agent to work in the store as a clerk. This was not done, however. He has tried to enlarge the peep hole through which in-store activity could be monitored, but this was resisted by his employees who felt it placed them in increased danger of bodily harm. Mr. Kwasin claims he tried every way he knew to reduce the drug activity in the area because he knew it was a liability. He has taken pictures of the drug activity going on in the area outside his facility and contends they show open and unfettered drug sales going on without any interference by police. He tried to solicit suggestions from the police but nothing he tried helped. He thought his presence at the store would reduce drug dealing and when he was present, it was usually quiet. All of this related to drug activity outside the store, however. Mr. Kwasin claims to have had no knowledge at all that any drug activity was going on inside the store. He was told by his employees that they were doing what the could do and that no problem existed. It was only recently he found that his two female employees were being flattered by the male patrons who then could do what they wanted on the premises. Respondent now has a plan for new employees which includes "responsible vendor training" on anti-drug policies and procedures at the company headquarters and at the store. He had thought his prior policy was enough since no liquor was sold over the bar. At Respondent's Gandy Boulevard store, where liquor is sold by the drink, he has implemented such training, and will implement it at Lake Avenue Liquors. He will also repair and place into operation a video monitor which has been installed but not working for the past year, and he will manage the licensed premises personally until he gets proper, qualified employees in place, and he will monitor the closely after that. In short, Mr. Kwasin contends there was a tremendous breakdown in communications between him and the police and his neighbors, but denies there is any reason to fear being in the area at night. He claims he has been there at night many times. He admits his previous written policies have not worked with the employees he had. He admits his video system didn't work, and he admits that neither Jackie nor Lori was checked out on anti-drug training or tested. Notwithstanding Mr. Kwasin's denials of knowledge that any problem regarding drug sales existed inside the premises, Senator James T. Hargrett, Jr., who has lived in the area of the licensed premises for many years and who passes it frequently, has received numerous complaints from residents about the area, and as a property owner, he has made considerable effort to insure his properties are in compliance with all requirements of the law. He has observed the area at all hours and has worked with the police regarding it. Senator Hargrett believes Respondent could have done more to thwart the drug trafficking in the area. If the Senator suspected drug activity inside the premises, he would have gotten rid of those who were engaged in illegal activity; he would have worked more closely with the police; and he would have worked to get rid of loiterers. Lake Avenue Liquors has a very poor reputation in the surrounding community. It is not responsive to the neighbors' concerns about illegal activity. This facility constitutes a definite problem compared with other businesses in the neighborhood and seems to suffer from owner neglect. In Hargrett's opinion, it is incumbent upon anyone in business to supervise and audit what goes on in his business establishment and to be aware of any illegal activity. This was not done here, he feels, and this absence of proper supervision has resulted in the creation of a nuisance in the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the alcoholic beverage license number 39-00583, series 3- PS, issued to Respondent, Warehouse Liquors III, Inc., d/b/a Lake Avenue Liquors, be revoked. RECOMMENDED this 17th day of November, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 17th day of November, 1994. APPENDIX TO RECOMMENDED ORDER 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 parties to this case. FOR THE PETITIONER: 1. - 18. Accepted and incorporated herein. 19. - 29. Not Proposed Findings of Fact but restatements of the testimony of witnesses. They are, however, accepted as accurate restatements of the testimony as they support the findings made herein. FOR THE RESPONDENT: No submittal by Respondent. COPIES FURNISHED: Thomas A. Klein, Esquire Richard D. Courtemanche, Jr., Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Michael Kwasin, Jr., pro se Lake Avenue Liquors 4023 Gandy Boulevard Tampa, Florida 33611 John J. Harris Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
