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 =================================================================
Findings Of Fact The Respondent, Natalie Patton, is a licensed pharmacist and has been licensed since 1959. She is a graduate of Sanford University, Birmingham, Alabama, and was initially licensed in Alabama as a pharmacist. She has worked as a licensed pharmacist for twelve years in Highlands County in the vicinity of Sebring. She is licensed as a pharmacy consultant as well and has been employed at several hospitals and pharmacies in that geographical area. She opened her present pharmacy' business in November, 1978, in a rural area southwest of Sebring at the community of Spring Lake. Her's is the only pharmacy in seventeen miles and her business volume reflects the rural nature of her business location and clientele in that she fills an average of thirty-five to fifty prescriptions a day. On "Race Friday," the day prior to the Sports Car Race at Sebring, a man entered her pharmacy complaining of severe headache and allergy to fumes associated with the infield and pits at the racetrack. He asked for Darvon, explaining that this was the only medication successful in treating his headaches. He explained he was from another part of the State and had no way to contact his physician. She sold him a non-prescription drug. He came back the next day, the day in question, March 22, and explained that her suggestion that he go to the emergency room the day before was impractical because a newspaper ad he had seen described the emergency room as overloaded and turning patients away. He complained of a worsening headache. She testified that she felt sympathy for him and ultimately and reluctantly sold him, at her cost, four Darvon to be used that Saturday and four for that Sunday. The individual requesting the medication then revealed himself to be a Deputy Sheriff of Highlands County, who arrested her on the spot, charging her with dispensing the Darvon without a prescription in violation of the above authority. She ultimately was tried on the charges and convicted, but adjudication was withheld and she was placed on three years probation by the Circuit Judge. A second related criminal charge was ultimately dismissed. She has been under the direction of a probation officer since that time and must report all her activities and receive permission before traveling out of her county. She also has been required to pay fifty dollars a month to reimburse the public defender for his services on her behalf. She is still operating her business and her customers have professed loyalty to her and her business is still increasing in volume. She has never had any altercation with law enforcement authorities of any type in her past and has never been convicted of any felony or misdemeanor. With the agreement of counsel for the Petitioner, certain testimonial letters on her behalf from persons who were not in attendance at the hearing were admitted as composite exhibit 1. These letters attest to and establish the fact, in corroboration of her testimony, that she is a decent and useful citizen and that she was totally unaware that she was committing a felonious act. These letters corroborate her testimony and establish that she is a crucial asset to her rural community. She is depended upon by numerous citizens, many of whom are of advanced years and who require frequent medication and are unable to travel any great distance. She has obviously gone to great lengths to operate her business in a professional and compassionate manner even to the extent of delivering medications to senior citizens and others long after the closing hours of her pharmacy. These letters in support of her position also are replete with instances described where she adheres strictly to the dictates of the various physicians' prescriptions and refused on a number of occasions to prescribe medication without a prescription. There is no question that the evidence in this record establishes that the Respondent is clothed with the highest personal integrity and moral character and that the isolated incident when she dispensed medication in violation of the above authority is not characteristic of the regular and otherwise consistent manner in which she practices pharmacy and conducts her business. The Respondent's probation officer sent a letter which is incorporated in Respondent's Exhibit 1 attesting to her conscientious efforts to obey the law and her usefulness as a citizen. He expressed the belief that she was unaware that she was actually committing a crime when the subject violation occurred and that she was simply and compassionately attempting to help a customer in trouble. He is convinced that revoking her pharmacy license would serve no useful purpose and would indeed impose a hardship on the rural customers she serves. He firmly believes she would not consciously violate the law or purposefully commit an illegal act. The Respondent was authorized by the Circuit Judge in the Respondent's criminal proceeding to make the following statement on the record in this proceeding: In re Natalie Patton: In open Court, in disposing of this case, and putting Natalie Patton on probation without adjudication, I made note of the numerous letters I received from people in the community, urging the Court to be lenient. The Respondent then noted that there were a hundred and forty signatures on those testimonial letters. At the conclusion of the Respondent's case the Respondent requested that the penalty herein be limited to a letter of reprimand. The Petitioner introduced no evidence and otherwise took no position with regard to the question of an appropriate penalty.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witness and the evidence in the record, it is RECOMMENDED: That Natalie N. Patton and Spring Lake Pharmacy remain licensed and that Natalie Patton be accorded a written reprimand by the Board regarding the subject violation and that she be placed on probation by the Board for a period of time coextensive with the probation imposed in the criminal proceeding related hereto during which time her conduct of the practice of pharmacy be subjected to periodic monitoring by the Board. DONE AND ENTERED this 2nd day of November, 1981, in Tallahassee, Florida. COPIES FURNISHED: William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael J. Trombley, Esquire 329 South Commerce Avenue Sebring, Florida 33870 P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1981.
Findings Of Fact At all times material hereto, Respondent Alberto Calil was the owner of Farmacia La Familia, the holder of a permit to operate a pharmacy under the laws of the State of Florida, having been issued permit number 0007056. At all times material hereto, Respondent Hildelisa M. Hernandez has been licensed as a pharmacist under the laws of the State of Florida, having been issued license number 0016352. At all times material hereto, Hernandez has been the managing pharmacist at Farmacia La Familia and, specifically, has been the only pharmacist employed there. Prior to the events alleged in the Administrative Complaints filed herein, Respondent Nelson Torres had an ownership interest in Farmacia La Familia. In February 1982, he transferred his interest in the business, and his shares of stock in the corporation owning the business, to Respondent Calil. At the time of the formal hearing in this cause, Torres did not own or operate a pharmacy. The Miami office of the Department of Professional Regulation received an anonymous letter advising, essentially, that a number of pharmacies were being operated other than in compliance with the law. Georgina Auspitz, an investigator with the Department of Professional Regulation, was instructed by her supervisor to visit each of the pharmacies named in that letter to investigate the allegation. On Friday, March 26, 1982, Auspitz entered the Farmacia La Familia. After a brief conversation with Respondent Hernandez and a customer of the pharmacy, Auspitz asked Hernandez for three dollars' worth of Tranxene 3.75 mg. Hernandez went into the dispensary part of the pharmacy and returned with a manila envelope containing 15 capsules. At no time during this transaction did Auspitz present Hernandez with a prescription. On Monday, March 29, 1982, Auspitz took the envelope and its contents to the Dade County Public Safety Department. A subsequent chemical analysis of the capsules revealed the presence of the controlled substance known as clorazepate, the active ingredient in Tranxene. On April 6, 1982, Auspitz returned to the Farmacia La Familia. She asked Manuel J. Diaz Garcia1 an employee of the pharmacy, for three dollars' worth of Tranxene 7.5 mg. Diaz went into the dispensary part of the pharmacy, had a discussion with an unidentified female, and returned to the main part of the pharmacy to wait on customers. After being advised that the order was ready, Diaz gave Auspitz a manila envelope containing 11 capsules. Auspitz paid Diaz, Diaz placed the money in the cash register, and Auspitz left the pharmacy. At no time during this transaction did Auspitz present to Diaz a prescription. Auspitz took the manila envelope and its contents to the Dade County Public Safety Department. A subsequent chemical analysis of the capsules revealed the presence of the controlled substance known as clorazepate, the active ingredient in Tranxene. After she had made her second "buy" at Farmacia La Familia, Auspitz contacted the City of Miami Police Department to ascertain if one of its narcotics detectives would accompany her on subsequent "buys." As a result of her request, Detective Noel Rojas was assigned to accompany her. On April 8, 1982, Auspitz and Rojas went to the Farmacia La Familia. Crus Caballero, an employee of the pharmacy, approached them. Auspitz told Caballero she wanted three dollars' worth of Ativan, and Rojas told Caballero he wanted five dollars' worth of Valium 5 mg. Caballero wrote something on a scrap piece of paper and went into the dispensary portion of the pharmacy, left the piece of paper, and returned to wait on other customers. Respondent Hernandez came to the door of the dispensary area, "looked over" Auspitz and Rojas, and returned to the dispensary. A few moments later, Caballero brought two manila envelopes to where Auspitz and Rojas were waiting. Although Auspitz had ordered three dollars' worth of Ativan, Caballero only brought her two dollars' worth. After Auspitz agreed to take the smaller quantity, Caballero placed both manila envelopes into one bag, and Auspitz and Rojas paid for their purchases and left the pharmacy. At no time during this transaction did Auspitz or Rojas present Caballero with a prescription. Upon leaving the pharmacy, Auspitz and Rojas separated their purchases. Auspitz took hers to the Dade County Public Safety Department, and Rojas took his to the City of Miami Police Department. The chemical analysis performed on the six tablets purchased by Auspitz revealed the presence of the controlled substance lorazepam, the active ingredient in Ativan. The chemical analysis performed on the 23 tablets purchased by Rojas revealed the presence of the controlled substance diazepam, the active ingredient in Valium. Neither Manuel J. Diaz Garcia nor Crus Caballero is licensed as a pharmacist or registered as a pharmacy intern in the State of Florida.
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 filed against Respondent Nelson Torres with prejudice; finding Respondents Farmacia La Familia, Alberto Calil and Hildelisa M. Hernandez guilty of each and every count in the Administrative Complaints filed against them; and revoking pharmacy permit number 0007056 issued to Respondents Farmacia La Familia and Alberto Calil, and further revoking pharmacist license number 0016352 issued to Respondent Hildelisa M. Hernandez DONE and RECOMMENDED this 5th day of April, 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 5th day of April, 1983. COPIES FURNISHED: W. Douglas Moody, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Raul A. Cossio, Esquire 1900 Coral Way, Suite 404 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 130 North Monroe Street Tallahassee, Florida 3230123
The Issue Whether Respondents committed the offenses described in the administrative complaint? If so, what penalties should they receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Richard Grant is the Administrator of the Department of Health and Rehabilitative Services Pharmacy Program Office. His office is responsible for the administration and enforcement of the provisions of Chapter 499, Florida Statutes, relating to drug manufacturing, drug repackaging, drug wholesaling, device manufacturing and cosmetic manufacturing. Among its responsibilities is the issuance of permits to persons and entities engaged in activities over which it has regulatory authority. Respondents do not possess such a permit issued by Grant's office. In the latter part of 1986, on the basis of a complaint received from the Department of Professional Regulation, Grant directed that an inspection be conducted of a facility operated by Respondent Arthritis Medical Center, Inc. An inspection of the facility was attempted on January 16, 1987. Respondent Pinorsky, who is the President of Arthritis Medical Center, Inc., did not allow the inspectors to enter the premises. The inspectors therefore left without conducting an inspection of the premises. Another inspection of the facility was attempted on March 13, 1987. Again Respondent Pinorsky denied the inspectors entry. Accordingly, no inspection was conducted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of December, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989.
The Issue The issues are those promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation, against the Respondent, Charles McArthur. In particular, it is alleged that the Respondent practiced pharmacy in the state of Florida with an expired license, in violation of Subsection 465.015(2)(b), Florida Statutes (1981).
Findings Of Fact Respondent, Charles McArthur, is a pharmacist licensed by the State of Florida. His license number is 0012091. On June 20, 1983, Respondent attempted to renew his pharmacy license issued by the state of Florida on a bi-annual basis. He attempted this renewal by appearing in person before officials with the State of Florida, Board of Pharmacy, entitled to grant renewal. That renewal was denied based upon the fact that the Respondent was unable to provide verification of the requisite continuing education credits necessary for relicensure. As a consequence, on June 21, 1983 Respondent's active pharmacy license expired, leaving the Respondent with an inactive pharmacy license. For the period June 21, 1983 through July 20, 1983 Respondent practiced pharmacy with an inactive license. During that time frame, Thomas Hannah, an investigator with the State of Florida, Department of Professional Regulation, visited the Respondent in the pharmacy in which Respondent was practicing in Tallahassee, Florida. He observed the Respondent practice pharmacy and noted the presence of the expired active Florida pharmacy license. On that occasion, Hannah told the Respondent that he was operating without a current license. On the following day, July 20, 1953, Respondent paid the appropriate fees and made proof of the requisite continuing education credits and his active pharmacy license was re-issued. Subsequent to that date Respondent has held an active pharmacy license issued by the State of Florida. In view of the Respondent's practice of pharmacy with an inactive license from the period of June 21, 1983 through July 20, 1983, Respondent was charged with the present offense and requested, and was granted, a formal Subsection 120.57(1), Florida Statutes, hearing. In dealing with other recalcitrant licensees who have not renewed their licenses in the time allotted, the Board of Pharmacy, prior to February, 1980 sent a list to Board inspectors within one or two weeks following the due date of renewal and those inspectors contacted the licensees to ascertain whether the licensees had renewed their pharmacy licenses. If they found that the individual pharmacist did not renew his license that person was given an opportunity to fill out an application, to pay the fee, and to present his continuing education credits to the investigator. Persons who were not entitled to renew due to problems with the continuing education credits were told that they were delinquent, and practicing with a delinquent license was a violation of law. Those persons were given the opportunity to take leave of absence from their active pharmacy practice. Around February, 1980 due to the re- organization of the State of Florida, Department of Professional Regulation, insufficient work force was available to carry out this process of checking on the topic of the delinquent license renewals, and this sequence of inactivity continued until approximately December, 1981. During this period actions were not brought against pharmacists for failure to timely renew a license to practice pharmacy, within the meaning of Section 465.015(2)(b), Florida Statutes, provided they renewed licenses within one year of the appropriate renewal date. In December, 1981 the practice changed and the pharmacists would be prosecuted for failure to timely renew a license to practice pharmacy and continuing to practice with an expired license. This change in policy position which occurred in December, 1981 was not shown in the course of the hearing to be a matter noticed for the benefit of the practicing pharmacists in the State of Florida.
The Issue The issue in this case is whether Respondent is guilty of being convicted or found guilty of a crime directly relating to the ability to practice pharmacy or the practice of pharmacy and, if so, what penalty should be imposed.
Findings Of Fact Respondent received his license to practice pharmacy in Pennsylvania in 1962. He has been continuously licensed in Florida since December 31, 1973, through March 28, 1995, when his Florida license was suspended by emergency order of the Board of Pharmacy for the reasons set forth below. His Florida license number was PS0013841. Respondent has not previously been disciplined. Respondent has been employed for many years with a large pharmacy chain. Over the years, he was promoted into positions of increasing managerial responsibility. At one point, he was in charge of the operations of over 25 stores. Sometime prior to the incidents described below, Respondent's responsibilities were reduced, evidently due to corporate restructuring. At the same time, his wife of 15 years had an affair. Respondent suffered other stresses, including a homicide involving someone in a close relationship. Respondent was ill-equipped to deal with these setbacks. He was a hard- working, intense person with no emotional outlets. Two prior marriages had failed in part due to Respondent's lack of emotional insight. Respondent has long defined his role in relationships almost entirely in terms of his income- earning ability. Unable to deal with the stress, Respondent one night picked up a streetwalker in Bradenton and paid her to have sex with him. Respondent identified himself to her. A sexual relationship ensued. The woman had a child, and they lived in squalor. Respondent' initial sexual impulse toward the woman yielded to an impulse by Respondent to rescue the mother and child and serve as their savior or hero. The woman made increasing demands of Respondent. Several times, Respondent tried to end the relationship, but the woman threatened to disclose the relationship to Respondent's wife and employer. Respondent informed her that he had no more money to give her, but she continued her demands. Eventually, Respondent began to steal from the pharmacy store at which he worked. At first, he stole boxes of cigarettes. Later, he stole prescription drugs, including various Schedule III and IV controlled substances. The drugs contained codeine, and Respondent knew that the woman was selling the drugs on the street. At least one of the drugs was popular among drug abusers. About a year after meeting the woman, Respondent was caught in the act of stealing drugs in the early-morning hours at the store. He immediately made a full confession and was prosecuted by federal authorities for the controlled substances and by state authorities for the cigarettes and other miscellaneous merchandise. In Count I of the federal indictment, Respondent was charged with a violation of 21 U.S.C. 846 by knowingly and intentionally combining, conspiring, confederating, and agreeing with the woman and other persons to possess with intent to distribute acetaminophen with codeine and hydrocodone bitartrate, which are Schedule III controlled substances, and diazepam and alprazolam, which are Schedule IV controlled substances. A Schedule III controlled substance has a potential for abuse less than substances contained in Schedules I and II and has a currently accepted medical use in treatment in the United States. Abuse of a Schedule III controlled substance may lead to moderate or low physical dependence or high psychological dependence. A Schedule IV controlled substance has a potential for abuse less than substances contained in Schedules I, II, and III and has a currently accepted medical use in treatment in the United States. Abuse of a Schedule IV controlled substance may lead to limited physical or psychological dependence. Respondent pleaded guilty to Count I, which carried a maximum sentence of five years, fine of $250,000, and probation of three years, as well as restitution. The United States noted Respondent's acceptance of responsibility as a factor in mitigation. In the plea agreement, Respondent acknowledged that he began diverting controlled substances, once or twice a week, in September 1993. He had been caught and arrested in April 1994. On February 24, 1995, The United States District Court entered a judgment adjudicating Respondent guilty of Count I, placing him on six months' house arrest, placing him on five years' probation, and ordering restitution to the pharmacy chain of $10,574.84 for the diverted controlled substances. The judge stated her desire that Respondent continue to work as a pharmacist in order to pay for what he had stolen. Respondent's conviction directly relates to his ability to practice pharmacy or to the practice of pharmacy. At the time of Respondent's arrest, the pharmacy chain had fired him. Following the arrest but before the conviction, Respondent worked as a pharmacist for a corporation that supplies licensed replacement pharmacists on a short-term or indefinite basis. Primarily assigned to one client working with terminally ill patients, Respondent was valued as a pharmacist by the clients and his employer for the six months that he was so employed. Respondent's employment as a licensed pharmacist ended when the Board of Pharmacy issued an emergency order suspending his license on March 28, 1995. Respondent has since attempted to find employment, but he has found none. His ability to make restitution has been impeded, although he has made some payments. Respondent has received private psychological counselling since October 1994. The psychologist's diagnosis was that Respondent was suffering from an adjustment reaction with depressed mood. Helping Respondent to analyze his past mistakes and equip himself to deal with stress, the psychologist opines that it is very unlikely that Respondent would repeat this behavior and would not represent a threat to the public safety, health, or welfare if he were to continue practicing pharmacy. Respondent has participated in the PRN since August 1994. The impaired practitioner program typically serves licensees who are unable to practice due to mental illness, substance abuse, or physical disability. The program has determined that Respondent suffers from no chemical dependency, sexual disorder, or psychiatric illness. Rather, at the time of the criminal behaviors, Respondent was under extreme stress. However, the director of the program testified that Respondent is progressing very well, free of all illness, and gaining insight into his difficulties so that he can now express his feelings and handle his stresses. The director also opines that Respondent would not pose a threat to public safety, health, or welfare if he were to continue practicing pharmacy. Respondent has entered into a five-year contract with the PRN. The program monitors Respondent for a lifetime. If at anytime the director were to determine that Respondent is not progressing, such as by failing to renew a contract when asked to do so by the program, the director would file a complaint with Petitioner. It has been almost two years since Respondent began diverting controlled substances to the prostitute and almost a year and one-half since he was caught. This relatively recent behavior was not isolated, but lasted six months. Respondent was caught and did not turn himself in. Respondent's behavior harmed himself, his family and friends, and his employer, which spends considerable resources to develop public trust and employee morale, both of which were damaged by Respondent's actions. Respondent's behavior also harmed the woman, whose squalid circumstances were worsened by Respondent's "generosity." And his criminal behavior threatened the safety, health, and welfare of numerous persons who purchased the controlled substances that Respondent had stolen and given to the woman. On the other hand, Respondent poses no risk to the public. This is the opinion of two mental-health professionals working closely with Respondent. Also, Respondent did not steal controlled substances while working for six months as a temporary pharmacist and while under considerable stress from the criminal prosecutions. Although Respondent did not turn himself in, he did confess immediately and completely. As a practical matter, his ability to make restitution is dependent on his ability to practice pharmacy. Respondent and Petitioner each present numerous final orders of the Board of Pharmacy evidencing past penalties. Petitioner's final orders include Newman, Case No. 94- 20465 (five years' suspension and $2000 fine for state conviction for sale, purchase, or delivery of Schedule IV controlled substance; and Dunayer, Case No. 07300 (revocation for shortage of over 500,000 dosage units of many of the same codeine- containing drugs). Respondent's final orders include Feldman, Case No. 92- 07313 (three years' suspension, retroactive 14 months to when licensee was ordered by court to surrender license, three years' probation, and $3000 fine for federal conviction for distributing and dispensing outside course of professional practice of pharmacy--although some of the same codeine-containing drugs were involved, it appears that considerably greater quantities may have been involved); Swoy, Case No. 93-11716 (two years' suspension, of which 22 months were stayed and several years' probation for state conviction of delivery of one of the same codeine-containing drugs--quantity unclear); and Levine, Case No. 92-04729 (two years' suspension that was stayed and four years' probation for state conviction of impaired practitioner for theft from pharmacy of relatively small quantities of Schedule II controlled substances).
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Pharmacy enter a final order finding Respondent guilty of violating Section 465.016(1)(f), suspending his license for one year from the date of the emergency suspension, imposing a $3000 fine to be paid within 90 days after the end of the suspension, and placing Respondent on probation for a period of five years. ENTERED on August 8, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on August 8, 1995. COPIES FURNISHED: John Taylor, Executive Director Board of Pharmacy 1940 North Monroe Street Tallahassee, FL 32399-0792 Nancy M. Snurkowski Agency for Health Care Administration 1940 North Monroe St., Suite 60 Tallahassee, FL 32399-0792 Salvatore A. Carpino 8001 North Dale Mabry Hwy. Suite 301-A Tampa, FL 33614
The Issue The issue is whether the pharmacy permit issued to the Respondent, North Florida Drug Corporation, d/b/a Scottie Discount Drugs, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact North Florida Drug Corporation, d/b/a Scottie Discount Drugs, currently holds permit No. PH 0004096 as a Community Pharmacy. Respondent is located at 1448 Bakers Square, Macclenny, Florida. On December 24, 1987, Gustave Goldstein, who had been the designated prescription department manager for Respondent, resigned as a pharmacist at the Respondent's location. He notified Frankie Rosier, the owner and operator of the Respondent, that he was leaving and he notified the DPR that he would no longer be the designated prescription department manager. Carl Messina is the relief pharmacist for the Respondent. From the time of Goldstein's resignation, Messina has told Ms. Rosier many times that it is illegal to operate without a prescription department manager. DPR inspected the Respondent's pharmacy in December, 1987, and determined that there was no prescription department manager after Goldstein quit. DPR conducted an inspection of the Respondent's premises on February 16, 1988, and discovered that there still was no prescription department manager employed there. Frankie Rosier was made aware of this deficiency. On February 16, 1988, the official records of DPR showed that no new designation of a prescription department manager had been filed by Respondent and Goldstein was still listed as the prescription department manager by Respondent. On May 22, 1988, DPR again inspected the premises and determined that there was still no prescription department manager. It is important that each permittee have a designated prescription department manager to assure that all required records are kept and that the pharmacy complies with all legal requirements. This is especially important regarding control and accountability for controlled substances. Without a prescription department manager, a non-pharmacist owner, like Ms. Rosier, would and does have access to these controlled substances without any accountability. By Final Order entered and filed with the agency clerk on December 17, 1987, this same permittee was fined and placed on probation for operating a community pharmacy with an expired permit and for obtaining a permit by misrepresentation or fraud or through an error of the department or the board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Pharmacy, enter a Final Order finding North Florida Drug Corporation, d/b/a Soottie Discount Drugs, guilty of the violations alleged and revoking the community pharmacy permit No. PH 0004096. DONE and ENTERED this 14th day of October, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1988. COPIES FURNISHED: Michael A. Mone' Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 North Florida Drug Corporation Scottie Discount Drugs 1448 Bakers Square Macclenny, Florida 32063 Bruce Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact 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 Thomas Lietch, Respondent, is a licensed pharmacist, having been issued license number 0007613 and was so licensed at all times material hereto. On April 11, 1983, Respondent pleaded guilty in the Circuit Court in and for Pinellas County of the offenses of possession of Dextropropoxyphene and possession of a controlled substance outside its proper container. Adjudication of guilt was withheld by the court and Respondent was placed on five years probation. Following the arrest of Respondent on or about January 21, 1983 and before his trial, Petitioner investigated the incident in which Respondent had been arrested for having two Darvon tablets in his pants pocket outside the container in which they were or should have been dispensed. When questioned by the investigator regarding the origin of the Darvon Respondent replied one time that he obtained them on prescription from his doctor and on another occasion replied that he may have obtained them from the pharmacy where he works. The doctor who Lietch stated had prescribed the Darvon was contacted and reported that he may have prescribed Darvon for Respondent when he treated Respondent some time ago; but, if he did, the prescription was written no later than September 1979, more than two years before Respondent's arrest. When this evidence was presented to the Board of Pharmacy the board failed to find probable cause that the Florida Pharmacy Act, Chapter 465, Florida Statutes, was violated. Following Respondent's trial in the Circuit Court the offense here alleged was charged. Respondent presented three witnesses, one of whom owns the pharmacy where Respondent has worked for more than one year. He has had no problem with Respondent's work and considers him a good employee and a competent pharmacist. Another witness is a licensed pharmacist in Florida who opined that possession of two Darvon tablets out of the container in which they were dispensed does not affect the person's ability to practice pharmacy; however if a pharmacist had unauthorized possession of a controlled substance outside the pharmacy that would constitute a violation of the Pharmacy Act. Respondent's third witness was his probation officer who testified that Respondent has fully complied with the terms of his probation and has exceeded the number of hours of community work required by the conditions of probation.
