Findings Of Fact At all times material hereto, Respondent Maria C. Perez has been licensed as a pharmacist under the laws of the State of Florida, having been issued license number 0018025. At all times material hereto, Respondent Perez has been the managing pharmacist at Respondent San Lazaro Pharmacy. At all times material hereto, Respondent San Lazaro Pharmacy has been the holder of a permit to operate a community pharmacy under the laws of the State of Florida, having been issued permit number 0002864. At all times material hereto, Olegario Cepro (or Cepero) was employed at Respondent pharmacy. At no time material hereto was Cepro licensed as a pharmacist or registered as a pharmacy intern in the State of Florida. On March 1, 1983, Georgina Jorge, an investigator with the Department of Professional Regulation, entered the Respondent pharmacy. Jorge asked Cepro for 30 Berocca tablets, 10 Librax capsules, and 5 Darvon Compound capsules. Cepro went into the dispensary department and thereafter delivered to Jorge 45 pills. At no time during this transaction did Jorge present Cepro with a prescription. On March 1, 1983, the pills received were taken to the Metropolitan Dade County Crime Laboratory. A subsequent chemical analysis of the pills revealed the presence of the controlled substance known as chlordiazepoxide, the active ingredient in Librax, a medicinal drug requiring a prescription for dispensing. Another sample which was analyzed revealed the presence of the controlled substance known as dextro propoxyphene, the active ingredient in Darvon Compound, a medicinal drug requiring a prescription to be dispensed. The suspected Berocca was not analyzed. On March 8, 1983, Jorge returned to the Respondent pharmacy. She asked Cepro for 10 penicillin tablets, 20 Valium tablets, and 10 Darvon Compound capsules. Cepro obtained from the pharmacy dispensary and gave to Jorge 10 tablets which appeared to be penicillin, 20 tablets which appeared to be Valium, and 20 capsules which appeared to be Darvon Compound. At that time, Respondent Perez was in the pharmacy dispensary. At no time during this transaction did Jorge present Cepro with a prescription. On March 8, 1983, the above substances were taken to the Metropolitan Dade County Crime Laboratory. A subsequent chemical analysis of the pills revealed in one sample the presence of penicillin, a medicinal drug requiring a prescription for dispensing. Analysis of another substance revealed the presence of the controlled substance diazepam, the active ingredient in Valium, a medicinal drug requiring a prescription for dispensing. On March 25, 1983, Jorge went to the Respondent pharmacy and asked Cepro for prices on bottles of Valium, Mebaral, Lomotil, Ritalin, Trofanil, and Lasix. Prices were quoted to Jorge by Cepro. Thereafter, Cepro delivered to Jorge 20 apparent Valium tablets, 36 apparent Ritalin tablets, 250 apparent Mebaral tablets, and 20 apparent Darvon Compound capsules. On this occasion, Jorge observed Respondent Perez, the licensed managing pharmacist, in the dispensary. At no time during this transaction did Jorge present Cepro with a prescription. On March 25, 1983, the substances which Jorge had received at the Respondent pharmacy were taken to the Metropolitan Dade County Crime Laboratory. A subsequent chemical analysis of the substances revealed the presence of the controlled substance known as methylphenidate, the active ingredient in Ritalin, which is a medicinal drug requiring a prescription to be dispensed. Methylphenidate is a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Laboratory analysis of additional substances received from the March 25, 1983, transaction revealed the presence of the controlled substance known as mephobarbital, the active ingredient in Mebaral, a medicinal drug requiring a prescription for dispensing. In addition, one of the 20 capsules received was analyzed and revealed the presence of the controlled substance known as propoxyphene, the active ingredient in Darvon Compound, which is a medicinal drug requiring a prescription for dispensing. On March 28, 1903, Jorge went to the Respondent pharmacy once again. She asked Cepro for 20 Valium tablets and 20 Lomotil tablets. Jorge saw Respondent Perez in the prescription department. Cepro went into the prescription or dispensary department and returned with suspected controlled substances. At no time during this transaction did Jorge present Cepro or Respondent Perez with a prescription. On March 28, 1983, the suspected controlled substances were taken to the Metropolitan Dade County Crime Laboratory for analysis. A subsequent chemical analysis of the tablets revealed the presence of the controlled substance known as diazepam, the active ingredient in Valium, a medicinal drug requiring a prescription for dispensing. On March 28, 1983, an audit of the controlled substances was conducted at the Respondent pharmacy by Edward Bludworth, an investigator with the Department of Professional Regulation. That audit revealed that Respondents could not provide prescriptions or other documentation to show the dispensing of 41 Darvon Compound-65, 1,005 Valium 5 mg., 801 Valium 10 mg., 280 Tranxene 3.75 mg., 33,451 Talwin 50 mg., and 20 Talwin injectable vials. Darvon, Tranxene, Valium, and Talwin are all compounds containing controlled substances as defined in Chapter 893, Florida Statutes. Petitioner presented no evidence concerning the allegations of Count III [sic II; paragraphs 13, 14, 15, and 16] of the Administrative Complaint filed against Respondent Perez in DOAH Case No. 83-2918.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count III of the Administrative Complaint filed against Respondent Maria C. Perez, finding her guilty of Counts I and II of the Administrative Complaint filed against her, and revoking her license to practice pharmacy in the State of Florida. It is further RECOMMENDED that a Final Order be entered finding Respondent San Lazaro Pharmacy guilty of each and every count in the Administrative Complaint filed against it and revoking its permit to operate a community pharmacy in the State of Florida. DONE and RECOMMENDED this 27th day of March, 1984, 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 27th day of March, 1984. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 A. M. Schwitalla, Esquire 135 Almeria Avenue Coral Gables, Florida 33134 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Dr. Esteban Valdes-Castillo, a Board- certified psychiatrist, was the Medical Director of Progressive Health Center, Inc. Blanche Lear, a psychiatric social worker, was an employee of the Center. Between 1978 and August, 1981, Petitioner paid Respondent $45,627.16 in Medicaid payments for counseling ser- vices rendered by Blanche Lear. A two-way mirror was located in the common wall between Lear's and Valdes-Castillo's offices. Of the Medicaid recipients counseled by Lear, Valdes-Castillo did not meet, interview, counsel or even observe all of the patients for whom payments were made to the Center by Petitioner. Further, Valdes-Castillo only observed Lear's coun- seling sessions approximately once a month over the time period involved and then only upon the specific request of Lear to observe a specific patient for a specific reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by Petitioner directing Respondent Progressive Health Center, Inc., to reimburse to Petitioner the amount of $45,627.16. DONE and RECOMMENDED this 14th 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 14th day of March, 1983. COPIES FURNISHED: Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Suite 233 Tallahassee, Florida 32301 J. Michael Sara, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact On February 4, 1980, the Office of Medicaid Quality Control advised Respondent that a review of his Medicaid claims revealed that he billed the Medicaid Program for psychiatric services and further advised him that only Board-certified or Board-eligible psychiatrists were entitled to bill the Program for such services. The letter further requested that Respondent provide Petitioner with a copy of his Board certification. (Although the letter admitted in evidence bears the date of February 4, 1979, it is obvious that the date contains a typographical error, since the letter pertains to services previously rendered in April of 1979, and refers to a rule which became effective January 1, 1980.) By letter dated February 8, 1980, Respondent replied, by advising Petitioner that he was neither Board-certified nor Board-eligible. Respondent included in his letter a recitation of his extensive experience and qualifications as a psychiatrist. In spite of Petitioner's failure to reply to his letter or to authorize him to do so, Respondent continued to bill Petitioner for psychiatric services rendered to Medicaid recipients, and Petitioner continued to pay Respondent's claims. During the summer of 1981, Petitioner determined that ineligible psychiatrists were billing the Medicaid Program for psychiatric services rendered to Medicaid recipients. In order to ascertain those qualified to bill the Program, form letters were sent to all providers of psychiatric services requesting documentation of Board eligibility or Board certification and further advising that only Board-certified or Board-eligible psychiatrists were entitled to bill the Program. On August 5, 1981, that form letter was sent to Respondent. On August 11, 1981, Respondent replied to the August 5 form letter by again advising Petitioner that he was not Board-certified or Board-eligible and his extensive background and qualifications as a psychiatrist. Although no reply was made to his August 1981 letter to Petitioner, Respondent continued to bill the Medicaid Program for psychiatric services, and Petitioner continued to pay Respondent's claims. Respondent is not presently, and has never been, a Board-certified psychiatrist or a candidate for Board certification. During the period from January 1, 1980, through February, 1982, Respondent billed for and was paid $38,252.75 by the Medicaid Program for providing psychiatric services to Medicaid recipients. Petitioner never advised Respondent that he was entitled to bill the Medicaid Program for providing psychiatric services to Medicaid recipients notwithstanding the fact that he was not a Board-certified psychiatrist or a candidate for Board certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered directing Respondent to reimburse to Petitioner the sum of $38,252.75 for payments received by him for psychiatric services rendered from January 1, 1980, through February, 1982. DONE and RECOMMENDED this 15th 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 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1983. COPIES FURNISHED: Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Suite 233 Tallahassee, Florida 32301 Bruce M. Boiko, Esquire 1000 Ponce de Leon Boulevard, Suite 212 Coral Gables, Florida 33134 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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 Based upon the entire record, the following findings of fact are determined: Background At all times relevant hereto, respondent, Obi E. Enemchukwu, was licensed as a pharmacist having been issued license number PS 0023082 by petitioner, Department of Professional Regulation, Board of Pharmacy (Board). He has been licensed as a pharmacist since 1981. There is no evidence that respondent has been the subject of disciplinary action prior to this occasion. When the events herein occurred, respondent was the designated prescription department manager and pharmacy permittee for Oviedo Drug World (ODW), a community pharmacy located at 83 Geneva Drive, Oviedo, Florida. A community pharmacy is not defined by statute or rule. However, a Board witness described such a pharmacy as being a drug store that serves customers in an outpatient or ambulatory setting. As the prescription manager for the pharmacy, respondent was responsible for maintaining all drug records, providing for the security of the prescription department, and following all other rules governing the practice of pharmacy. Count I This count alleges that respondent violated a Board rule by virtue of the ODW prescription department being "opened at 9:00 a.m. with a pharmacy technician only on duty with no pharmacist present until approximately 9:15 a.m.". In this regard, the evidence shows that on February 28, 1991, a DPR senior pharmacist, Charles C. Lewis, made a routine inspection of ODW. He entered the premises at approximately 9:00 a.m. and found the drug store open, the lights on in the pharmacy section, and only a pharmacist technician on duty. Respondent was not on the premises. Respondent eventually entered the premises around 9:10 a.m. Because the law requires that a registered pharmacist be on duty whenever a community pharmacy is open, respondent, as the designated manager, was in contravention of that requirement. Count II The second count alleges that "on one occasion in approximately August 1990, pharmacist technicians on duty were required to dispense medicinal drugs despite no pharmacist having been present". As to this charge, respondent admitted without further proof that the allegations were true. Thus, the charge in Count II has been sustained. Count III The third count alleges that "on at least two occasions refills for medicinal drugs were dispensed without authorization from the prescribing physician." As to this count, during the course of his inspection of ODW's prescription file, Lewis found copies of two original prescriptions dispensed by respondent on Saturday, February 9, 1991, and Saturday, February 16, 1991, respectively. Original prescriptions are those either handwritten by a doctor and brought in for filling by the patient or those that are telephoned in to the pharmacy by the doctor's office. If a prescription is telephoned in, it must be immediately reduced to writing by the pharmacist. Original prescriptions do not include refills. In this case, the two prescriptions were the type telephoned in by the doctor directly to the pharmacy. Because doctors are rarely in their offices on Saturday, Lewis turned the prescription records over to DPR for further investigation. The records of the prescriptions have been received in evidence as a part of petitioner's exhibits 1 and 2. The prescriptions indicate that Dr. James E. Quinn prescribed thirty Nalfon tablets (600 mg.) to patient L. C. on February 9, 1991, and Dr. Michael E. Meyer prescribed ten Tagamet tablets (300 mg.) to patient J. K. on February 16, 1991. The record does not disclose whether the drugs are scheduled legend drugs or non-scheduled legend drugs. Deposition testimony given by Drs. Quinn and Meyer established that neither doctor authorized by telephone or in writing that the two prescriptions in question be filled. Respondent concedes that he dispensed the drugs, and by doing so, he violated the law. Count IV The final count alleges that respondent, as a pharmacy permittee, violated former rule 21S-1.023 (now renumbered as rule 21S-28.112) by dispensing a medicinal drug in violation of state law. Because this charge is founded on the same set of facts set forth in findings of fact 4, 5 and 6, it is found that this charge has been sustained. Mitigation and Penalty At hearing, respondent generally offered mitigating testimony. As to Count I, he indicated he planned to arrive at the store at 9:00 a.m. but an automobile accident tied up traffic and caused him to be ten minutes late. He suspects that the store owner, who had the only other set of keys, opened up the store and pharmacy area and improperly let the technician into the pharmacy area even though respondent had not yet arrived. As to Count II, respondent acknowledged that two prescriptions were dispensed by pharmacy technicians without a pharmacist on duty but believes the store owner authorized the technician to dispense two prescriptions that he had filled the previous evening. He says appropriate instructions have been given to insure that this will not occur again. Finally, respondent gave the following explanation for dispensing the two prescriptions without authorization from a doctor. During the time period in question, respondent had a practice of partially filling prescriptions. In other words, even though a prescription might authorize a total of 100 tablets, respondent would dispense them piecemeal (e.g., 10 at a time) over the life of the prescription. Thus, at the end of the prescription period, if only 80 of 100 tablets had been previously dispensed, he would fill the remaining 20 tablets even though the prescription from a particular doctor had expired. In the case of the two prescriptions in issue, respondent believes that the customers either had a valid prescription from another doctor but he inadvertently refilled the prescription using the former doctor's name because the prescription had not been used up, or he noted that the patient had not been given the total number of tablets authorized under the original prescription. However, no documentation was submitted by respondent to support the claim that he was presented with a new valid prescription by one of the customers. Respondent apparently no longer engages in this practice. Finally, throughout the course of this proceeding, respondent has fully cooperated with the Board. Although the Board did not submit a proposed order containing a recommended penalty, at hearing counsel for the Board suggested that respondent's conduct warrants the imposition of a fine, probation and a reprimand.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Sections 465.014, 465.015(2)(c), 465.016(1)(e)and (n), and 465.023(1)(c), Florida Statutes (1989), and that he be given a reprimand, fined $500 and his license placed on probation for one year. DONE and ENTERED this 12th day of March, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. COPIES FURNISHED: Tracey S. Hartman, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Obi E. Enemchukwu P. O. Box 32 Tavares, FL 32778-0032 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 John Taylor, Executive Director Board of Pharmacy 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact At all pertinent times, respondent has held a Florida pharmacist's license, No. PS0017402, and has been president of American Chemist Shops, Inc., which holds permit No. PH0009600 to operate The Medicine Shoppe, a community pharmacy, at 488 NE 125th Street in North Miami, Florida. A second generation pharmacist, Mr. Ally trained in his native (British) Guyana and at the Chelsea School of Pharmacy in London, before qualifying as a pharmacist in England. He also worked at Rand Memorial Hospital in Freeport, Bahama Islands, before his initial licensure in Florida in 1979. After three years as a staff pharmacist at one Florida hospital and five and a half years as director of pharmacy at another, he went to work for Mrs. Friedman, a pharmacist's widow, then bought the pharmacy from her. Ever since he started at The Medicine Shoppe, respondent has been director of the pharmacy department. Even when Howard Friedmann was alive, Bonita Liston, a woman in her twenties, was a regular customer of The Medicine Shoppe. From time to time a Dr. Murray prescribed pain killers or antibiotics for her. The shop kept a file or card on Ms. Liston as it did on other regular customers. Ms. Liston's record reflected the filling of several prescriptions, but none after June 10, 1988, the date respondent's assistant made a note in the file which reads, "North Miami Detectives came in Shoppe, Do not disperse any Rx's." Hearing Officer's Exhibit No. 1. Nevertheless, on November 28, 1988, Mr. Ally gave Ms. Liston a brown two-ounce bottle full of Tussionex, a Schedule III "medicinal drug" containing hydrocodone. Coughing, she had arrived without a prescription shortly before the pharmacy closed that day. Dr. Murray had prescribed six-ounce supplies of this medicine for her on two occasions in September of 1987, and, respondent testified, she told him she would secure another such prescription the next day, return for four more ounces, and make payment. With Ms. Liston at the pharmacy on November 28, 1988, was Jodie Schuster, at the time an undercover policewoman working for the North Miami Police Department. Concealed on her person was a microphone or "body bug" which allowed special agent Jeffrey Michael Portz of the Florida Department of Law Enforcement to monitor conversations in the pharmacy. On December 7, 1988, respondent's 35th wedding anniversary, Ms. Schuster returned to the pharmacy similarly wired, and Mr. Portz resumed monitoring. She asked for more cough medicine for Ms. Liston, and respondent gave her two ounces of Hycodan, a drug not unlike Tussionex. Respondent's testimony that he did not also give her Valium tablets has been credited. Again no money changed hands, nor was any consideration offered or discussed. Taken from the pharmacy in handcuffs, respondent was criminally prosecuted and, on May 22, 1987, sentenced. Among other things, the sentencing judge suspended respondent's pharmacist's license effective that date. Petitioner reinstated the license on January 31, 1991, and renewed it shortly before hearing. Before his arrest, respondent and his assistant filled 80 to 120 prescriptions a day. In keeping with legal requirements, physicians prescribing controlled substances report the number assigned them by the federal Drug Enforcement Administration (DEA), by writing it or causing it to be written on the prescription form. Every such number is preceded by two letters, "A" followed by the first letter of the doctor's last name. Among the prescriptions for controlled substances filled by respondent or under his supervision at The Medicine Shoppe were some 30 which another pharmacist testified he would not have filled without verification. Two do not have patients' addresses. One prescription filled, Petitioner's Exhibit No. 1A, lacks a legible doctor's name, and has no DEA number. Another gives DEA number AH 224 3119 for a Dr. A. Carlos Casademont. Petitioner's Exhibit No. 6B. These irregularities notwithstanding, petitioner did not offer competent evidence to prove that any of the prescriptions were forged or invalid. An expert testified that good practice would have required verification, but was unable to say that respondent had in fact failed to verify the prescriptions. Petitioner did not allege or prove the absence of a written record (apart from the cancelled prescriptions themselves) of controlled substances, or prove the contents of any such records.
Recommendation It is, accordingly recommended: That petitioner suspend respondent's pharmacist's license for two (2) years, with credit for any suspension on account of delivery of Tussionex to Bonita Liston already accomplished. That petitioner suspend respondent's pharmacy permit for one (1) year, with credit for any suspension on account of delivery of Tussionex to Bonita Liston already accomplished. RECOMMENDED this 27th day of August, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5809 With respect to petitioner's proposed finding of fact No. 1, the testimony was that the drug delivered to Ms. Schuster on December 7, 1988, resembled Tussionex but was not Tussionex. Petitioner's proposed finding of fact No. 2 is rejected as against the weight of the evidence. With respect to petitioner's proposed finding of fact No. 3, the evidence showed that certain prescriptions lacked the patient's address, the physician's DEA number or other detail, but petitioner's expert said it was acceptable practice to fill such prescriptions, if verified. Petitioner's proposed finding of fact No. 4 has been accepted at least as regards the Casademont prescription with DEA No. AH 224 3119. Petitioner's proposed finding of fact No. 5 is really a proposed conclusion of law. Respondent's proposed finding of fact No. 3, including subparts, has been adopted in substance, insofar as material, and to the extent reported in the findings of fact. Respondent's proposed findings of fact Nos. 4.1 through 4.4 are rejected as contrary to the weight of the evidence. Respondent's proposed findings of fact Nos. 4.5 through 4.9 and No. 5, including subparts, have been adopted, in substance, insofar as material. COPIES FURNISHED: John Taylor, Executive Director Board of Pharmacy Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Michael A. Mone, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0752 Neil F. Garfield, Esquire Garfield & Associates 3500 North State Road 7, Suite 333 Ft. Lauderdale, FL 33319
Conclusions Having reviewed the four Notices of Intent to Deny Application issued May 13-18, 2010, attached hereto and incorporated herein (Ex. 1, 2, 3, and 4), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Ex. 5) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. The Petitioner shall remit to the Agency, within thirty (30) days of the entry of a Final Order adopting this agreement, an administrative fee in the sum of thirty thousand dollars ($30,000.00) to resolve the Agency's allegations of unlicensed activity, in the interest of expediently resolving these matters and in recognition of the expense and uncertainty of litigation. 3. Checks should be made payable to the “Agency for Health Care Administration.” The check, along with a reference to this case number, should be sent directly to: Filed January 10, 2012 1:47 PM Division of Administrative Hearings Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. DONE and ORDERED this [0 day of ~ Bettie: ; 20/2, in Tallahassee, Leon County, Florida. — Ds we { izabeth Dudek, retary fey ir wacked 0. th€are Administration A PARTY WHO JS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Lance P. Cohen, Esquire Warren J. Bird, Asst. General Counsel Cohen & Thurston, P.A. Office of the General Counsel 1723 Blanding Boulevard, Suite # 102 Agency for Health Care Administration Jacksonville, Florida 32310 2727 Mahan Drive, Bldg #3, MS #3 (U. S. Mail) Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Roger Bell Health Care Clinic Unit Manager Agency for Health Care Administration 2727 Mahan Drive, MS #53 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 (Interoffice Mail) Suzanne F. Hood Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the oa above-named person(s) and entities by U.S. Mail, or the method designated, on this the 10 day of aaa » 2012" Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630 Certified Article Number , ?bbO 390) Y5778 8971 SEMDERS RECORD i", Certified Article Number (?160 3901 9846 7935 1337 SENDERS RECORD One Nofice $1149/1° CHARLIE CRIST FIORDAAGENCY FOR HEATH CARE ADMINS TRATION Better Health Care for ail Floridians THOMAS W. ARNOLD GOVERNOR SECRETARY May 12, 2010 Physicians Medical Centers - Jax Inc File Number: 8428 1680 Dunn Ave Case #: 2010004935 Ste 39 Jacksonville, FL 32218 F INTENT TO DENY APP TION It Is the decision of this Agency that the application for certificate of exemption from health care clinic licensure for Physicians Medical Centers - Jax Inc, located at 1680 DUNN AVE, STE 39, JACKSONVILLE, FL, 32218, be DENIED. The specific basis for this determination is based on the fact that: Requested information was not complete or timely received by the Agency pursuant to Section 408.806(3)(b), Florida Statutes. You were notified by correspondence dated April 9, 2010 to provide further Information addressing identified apparent errors or omissions within twenty-one days (21) from the receipt of the Agency's correspondence. Our records indicate you received this correspondence by certified mail on April 15, 2010. The outstanding issues remaining are: A copy of the closing documents, stock or similar certificates signed and dated by both the buyer and seller is required, In addition, the Agency received information that the facility does not meet exemption requirements as it is not wholly owned by a Florida licensed health care practitioner, pursuant to Section 400.9905(4)(g). EXPLANATION OF RIGH Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. ce: Agency Clerk, Mail Stop 3 ; Legal Intake Unit, Mall Stop 3. EXHIBIT 14 Visit AHCA online at http://ahca.myflorida.com 2727 Mahan Drive,MS-53 Tallahassee, Florida 32308 " Certified Article Number , 7260 3901 9648 57748 8995 SENDERS RECORD FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION CHARLIE CRIST THOMAS W. ARNOLD GOVERNOR Better Health Care for all Floridians SECRETARY May 12, 2010 Physicians Medical Centers - Jax Inc File Number: 8430 9826 San Jose Blvd Case #: 2010004881 Jacksonville, FL 32257 .. : NOTICE OF INTENT TO DENY APPLICATION It is the decision of this Agency that the application for certificate of exemption from health care clinic licensure for Physicians Medical Centers - Jax Inc, located at 9826 San Jose Bivd, Jacksonville, FL, 32257, be DENIED. The specific basis for this determination is based on the fact that: Requested information was not complete or timely received by the Agency pursuant to Section 408.806(3)(b), Florida Statutes. You were notified by correspondence dated March 27, 2010 to provide further information addressing identified apparent errors or omissions within twenty- one days (21) from the receipt of the Agency's correspondence. Our records indicate you received this correspondence by certified mail on April 8, 2010, The outstanding issues remaining are: Subpart 1.B, Name-of.Applicant: The name of the applicant must be the corporation or legal entity as it is registered with. the Division of Corporations, it must also match-the FEIN indicated in section 1.C. This subpart was submitted as a response to the omissions, but the. applicant's name indicated does not match the FEIN# listed in section 1.C. of the application. : As this facility did a change of ownership, provide a copy of the closing documents signed and dated by both the buyer (new owner) and seller (previous owner). Acceptable documentation may include any one of the following: Copy of final sale/transfer documents showing date of final transfer and signatures of buyer(s) and seller(s), or a signed, written statement from an attorney, on letterhead, that confirms sale/transfer completion and provides the date of final action. : In addition, the Agency received information that the facility does not meet exemption requirements as it is not wholly owned by a Florida licensed health care practitioner, pursuant to Section 400.9905(4)(g). TION OF HT! Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing, In order to obtain a formal proceeding before -the Division of Administrative Hearings under Section 120,57(1), F.S., your request for an administrative hearing-must conform to the - requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ; : : Visit AHCA online at http://ahca.myflorida,com 2727 Mahan Drive,MS-53 Tallahassee, Florida 32308 EXHIBIT 2 Physicians Medical Centers -. . Inc Page 2 : May 12, 2010 SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. ce: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 Te thictee-Va thet [9 Number fd60 3901 9848 7495 a2, SENDERS RECORD FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION CHARLIE CRIST THOMAS W. ARNOLD GOVERNOR Better Health Care for all Floridians SECRETARY May 13, 2010 Physicians Medical Centers - Jax Inc File #8427 5960 Beach Blvd : Case #2010004956 Ste3 ; Jacksonville, FL 32207 NOTICE OF INTENT TQ DENY APPLICATION It is the decision of this Agency that the application for certificate of exemption from health care clinic licensure for Physicians Medical Centers - Jax Inc, located at 5960 Beach Bivd., Ste 3, Jacksonville, FL, 32207, be DENIED. The specific basis for this determination is based on the fact that: Requested information was not complete or timely received by the Agency pursuant to Section 408.806(3)(b), Florida Statutes. You were notified by correspondence dated April 7, 2010 to provide further information addressing identified apparent errors or omissions within twenty- one days (21) from the receipt of the Agency's correspondence. Our records indicate you received this correspondence by certified mail on Apri! 9, 2010. The outstanding issues remaining are: As this facility did a change of ownership, provide a copy of the closing documents signed and dated by both the buyer (new owner) and seller (previous owner). Acceptable documentation may include any one of the following: Copy of final sale/transfer documents showing date of final transfer and signatures of buyer(s) and seller(s), or a signed, written statement from an attorney, on letterhéad, that confirms sale/transfer completion and provides the date of final action. ; In addition, the Agency received information that the facility does not meet exemption requirements as it is not wholly owned by a Florida licensed health care practitioner, pursuant to Section 400.9905(4)(g). EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. EXHIBIT 3 Visit AHCA online at http://ahca.myflorida.com 2727 Mahan Drive,MS-53 Tallahassee, Florida 32308 Physicians Medical Centers - Jax Page 2 May 13, 2010 SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. Health Cae Clinic Unit ce: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 RTE ecm 3901 94a 7935 yy74 SENDERS RECORD FLORIDA AGENCY TOR HEALTH CARE ADMINISTRATION oe ERNGS Better Health Care for all Floridians THOMAS W. ARNOLD May 18, 2010 CERTIFIED MAIL / RETURN RECEIPT REQUESTED File Number: 8429 Physicians Medical Centers - Jax, Inc 2020 Kingsley Ave Case #: 2010005135 Suite A Orange Park, FL 32073 NOTICE OF INTENT TO DENY APPLICATION It is the decision of this Agency that the application for certificate of exemption from health care clinic licensure for Physicians Medical Centers - Jax Inc, located at 2020 Kingsley Avenue, Suite A, Orange Park, Florida, 32073 be DENIED. The specific basis for this determination is based on the fact that: Requested information was not complete or timely received by the Agency pursuant to Section 408.806(3)(b), Florida Statutes, You were notified by correspondence dated April 9, 2010 to provide further information addressing identified apparent errors or omissions within twenty-one days (21) from the receipt of the Agency’s correspondence, Our records indicate you received this correspondence by certified mail on April 12, 2010, The outstanding issues remaining are: Evidence of Ownership — Information received by the Agency states that Victoria Critzer is the owner of Physicians Medical Centers-Jax Inc. Provide the following documentation as evidence of ownership: * A copy of the final closing documents such as a bill of sale or stock purchase agreement. signed and dated by both the buyer and seller including the effective date sale or transfer. The closing documents should contain the signature of Gordon Garver DC, previous owner of Physicians Medical Center-Jax Inc and Joseph Thomas MD, new owner of Physicians Medical Center-Jax Inc. ¢ A copy of the cancelled and reissued stock certificates transferring shared to Joseph Thomas MD. ¢ Acopy of the lease agreement that includes the name(s) of the owner(s). e Acopy of the business tax receipt that includes the name of the corporation and owner. In addition, the Agency received information indicating that the facility does not meet exemption requirements as it is not wholly owned by a Florida licensed health care practitioner, pursuant to Section 400.9905(4)(g). EXHIBIT 2727 Mahan Drive,MS-53 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myflorida.com . Physicians Medical Centers - Ja... .nc Page 2 May 18, 2010 EXPLANATION OF RIGHTS Pursuant to Section 120,569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S. your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ey SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS, For questions regarding this notice, please contact Ruby Schmigel, Health Services & Facilities Consultant with the Health Care Clinic Unit at (850) 412-4413. oger Bgl, Mandger Health Care Clinic Unit ce: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS PHYSICIANS MEDICAL CENTERS-JAX, INC., Petitioner, DOAH Case Nos. 10-3202, 10-3203, 10-3204 and 10-3205 vs. AHCA CASE Nos.: 2010004881, 2010004956 AGENCY FOR HEALTH CARE 2010004935 and 2010005135, ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT Respondent, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its undersigned representatives, and Petitioner, Physicians Medical Centers- Jax, Inc. (hereinafter “Petitioner”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, the Petitioner applied for four certificates of exemption from licensure pursuant to Section 400.9935(6), Florida Statutes and Chapter 59A-33, Florida Administrative Code; and WHEREAS, Victoria Critzer has applied for four initial health care clinic licenses, expressly intending to purchase the interest of Dr. Joseph Thomas in Petitioner upon issuance by the Agency of those licenses; and WHEREAS, the Agency has jurisdiction of the license and exemption applications described in the foregoing paragraphs, by virtue of being the regulatory and licensing authority over the said licenses and exemptions; and EXHIBIT 5 WHEREAS, the Agency served the Petitioner with four Notices of Intent to Deny Application on or about May 13, 2010, notifying the Petitioner of the Agency’s intent to deny the certificates of exemption for the reasons stated thereon, in Agency cases numbered 2010004881, 2010004956, 2010004935 and 2010005135; and WHEREAS, Petitioner timely requested a formal hearing pursuant to Section 120.57(2), Florida Statutes, and in response to said request the matters were forwarded to the Division of Administrative Hearings (DOAH), and were designated as cases numbered 10-3202, 10-3203, 10-3204 and 10-3205 in that tribunal; and subsequently the parties agreed to, and did abate those cases in DOAH, for the purpose of discussing settlement; and WHEREAS, the Agency alleges, and Petitioner denies, that during the period of processing of the aforementioned applications, Petitioner operated one or more unlicensed health care clinics in violation of Florida law as to which no formal administrative, civil or criminal action has thus far been brought; and WHEREAS, the parties have agreed that a fair, efficient, and cost effective resolution of this dispute would avoid the expenditure of substantial sums to litigate the dispute; and WHEREAS, the parties stipulate to the adequacy of consideration exchanged; and WHEREAS, the parties have negotiated in good faith and agreed that the best interest of all the parties will be served by a settlement of these proceedings; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Joseph Thomas, M.D. hereby acknowledges, affirms and certifies that, at the time this agreement is executed by him, he is the sole owner of the Florida corporation Physicians Medical Center-Jax, Inc. 4, Victoria Critzer hereby acknowledges, affirms and certifies that, at the time this agreement is executed by her, she is the sole owner of the Florida corporation Physicians Medical Center, Inc. 5. Upon full execution of this Agreement, Petitioner agrees to waive any and all proceedings and appeals to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), a formal proceeding under Subsection 120.57(1), appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court (DOAH) of competent jurisdiction; and further agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled. Provided, however, that no Agreement herein, shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 6. Upon full execution of this Agreement, the parties agree to the following: a. Petitioner's four (4) applications for exemption from licensure are hereby withdrawn, and Petitioner expressly waives its right to challenge or appeal, or both, in DOAH or elsewhere, the denial by the Agency of the exemptions. b. The Agency will resume processing the four initial licensure applications submitted by Victoria Critzer as intended future 100% owner of Physicians Medical Centers-Jax, Inc., now pending, and if the applications are complete and the applicant qualified under applicable law, the Agency will issue the licenses upon full payment by Petitioner of an agreed upon sum, as set forth below, to resolve the Agency's claim of unlicensed activity against Physicians Medical Center, Inc. Ms. Critzer agrees to use reasonable diligence to timely remedy any omissions from the applications cited by the Agency, to make the facilities available as required by law for all inspections required in connection with the licensure of the facilities, and to otherwise comply with all requirements of the application process, and all statutes and administrative rules thereunto appertaining, including background screening as may be applicable. c. The Agency agrees to use all reasonable diligence to process the initial license applications, and to issue the initial licenses as expeditiously as reasonably possible, provided that Ms. Critzer timely complies with all reasonable requests for additional information to which the Agency is entitled as a component of the application and licensure process, and provided that Victoria Critzer, and the applications she presented, are qualified for the licenses under all applicable statutes and administrative rules. d. Victoria Critzer will maintain the health care clinic license #HCC6732 currently held by Physicians Medical Center Inc. (PMC), for purposes of billing health care services provided solely at the licensed location, 9826 San Jose Boulevard, Suite B, Jacksonville, Florida. Whereas, Ms. Critzer, through counsel, has advised the Agency of a change of address for the license from 9826 San Jose Boulevard, to 9826 San Jose Boulevard, Suite B, PMC will submit a change of address application to the Agency together with the appropriate fee, within 10 days of execution of this agreement, and prior to resumption by the Agency of processing of the subject licensure applications. The license will be maintained 7. under a different federal employer identification number from any other licenses issued to Victoria Critzer or any entity in which she has a controlling interest. A separate health care clinic license must be obtained for any other location at which any health care services will be provided and third-party reimbursement sought for on behalf of Physicians Medical Centers Inc. e. Physicians Medical Centers, Inc. agrees to pay the sum of thirty thousand and no/100s dollars ($30,000.00) to the Agency, to resolve the Agency's allegations of unlicensed activity, in the interest of expediently resolving these matters and in recognition of the expense and uncertainty of litigation. The sum will be paid in lump sum at the time that the initial licenses referenced in paragraph b., above, are issued, or within 30 days following rendition of a Final Order by the Agency that incorporates this Agreement, whichever occurs first. f. Nothing in this Agreement shall prohibit the Agency from denying Petitioner’s application for licensure based upon any statutory and/or regulatory provision, including, but not limited to, the failure of Petitioner to satisfactorily complete a survey reflecting compliance with all statutory and rule provisions as required by law. By executing this Agreement, the Petitioner neither admits nor denies the allegations raised in the Notices of Intent to Deny referenced herein. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating this Agreement in its entirety, and closing the above-styled case(s). The cases resident in DOAH, referenced above as DOAH cases numbered 10-3202, 10-3203, 10- 3204 and 10-3205, are currently closed by Order entered in that tribunal on October 7, 2010. The parties hereby further agree that those cases shall remain closed permanently, and each party hereby waives its right to seek to have any of those cases re-opened. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. The Petitioner for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the Agency and its agents, representatives, and attorneys of all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this Agreement, by or on behalf of the Petitioner or related or resulting organizations. 12. This Agreement is binding upon all parties herein and those identified as a party, or a beneficiary, of the provisions of this Agreement, and each signatory acknowledges same and the adequacy of consideration therefor. 13. In the event that Petitioner is or was a Medicaid provider, this settlement does not prevent the Agency from seeking Medicaid overpayments or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. This Agreement does not prohibit the Agency from taking action regarding Petitioner’s Medicaid provider status, conditions, requirements or contract. 14. The undersigned have read and understand this Agreement and have authority to bind their respective principals to it. Both parties have been represented by counsel in the negotiation and execution of this Agreement. The Petitioner fully understands that counsel for the Agency represents solely the Agency and Agency counsel has not provided legal advice to or influenced the Petitioner in its decision to enter into this Agreement. 15. This Agreement contains the entire understandings and Agreements of the parties. 16. | This Agreement supersedes any prior oral or written Agreements between the parties. This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 17. Venue for any action brought to interpret, challenge or enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie solely in the Circuit Court in Leon County, Florida. 18. ‘Ifa court of competent jurisdiction finds any part of this Agreement to be void, voidable, or unenforceable, then the remainder of the contract shall remain in full force and effect. 19. All parties agree that a facsimile signature suffices fe 20. The following representatives and beneficiaries hereby ae duly S. to enter into this Agreement. Molly McKéns eputy Secretary {_ panes P. Céhen, Esquire Health Quality ance Cohen & Thurston, P.A. Agency for Health Care Administration 1723 Blanding Boulevard, Suite 102 2727 Mahan Drive, Bldg #3 Jacksonville, Florida 32310 Tallahassee, Florida 32308 Counsel to Petitioner DATED: (frolir DATED: 1-1 U~ aye William R. Roberts Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 DATED: /7 [(3l 4 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 DATED: Uf (5) WH Physicians Medical Centers-Jax, Inc. 9826 San Jose Boulevard Jacksonville, Florida 32257 patep: _})-14~!/ ~~ x. 1 _f- Victoria Critzer as president, sole director and 100% Owner Physicians Medical Center, Inc. 9826-B San Jose Boulevard Jacksonville, Florida 32257 DATED: _|1- (4-//
Findings Of Fact Dr. Lawrence A. Hall is licensed by the Florida State Board of Dentistry and the Hearing Officer has jurisdiction over the Respondent and the offenses alleged. During the time periods alleged Respondent smoked marijuana in the office after office hours in company with employees including a 16-year-old employee. During the time periods alleged Respondent wrote numerous prescriptions in the names of employees for controlled substances or drugs to be used for his personal use or for the use of his wife or friends. These drugs consisted of Eskatrol, Dexadrine, Dexamyl, Percodan, and Quaalude and were taken by Hall during office hours while he was performing work on dental patients. Some of these drugs made Respondent nervous and irritable and adversely affected his practice of dentistry. During the period between March, 1974 and July, 1975 Hall habitually used controlled substances add drugs. On many occasions he would be late getting to the office for morning appointments and late returning from lunch for afternoon appointments. Occasionally he would fail to come to the office at all and scheduled appointments would have to be cancelled - usually after the patient had appeared for the appointment. Hall wrote prescriptions for his wife and for his employees for controlled substances and drugs for uses not related to the practice of dentistry. These drugs consisted of amphetamines, Quaalude, and Percodan, and were often picked up from the pharmacy by one of his office employees not named in the prescription. Hall knew that his federal narcotics license did not authorize him to write prescriptions for drugs not intended for use in the practice of dentistry. Amphetamines are listed as Class II controlled substances in Chapter 893 F.S. On one occasion, while treating a small child, Hall became exasperated, threw a syringe across the room, then ran out of the office to jog around the adjacent shopping center for about 15 minutes to regain his composure. On another occasion a patient reacted adversely to an anesthetic and was thereafter properly treated by Hall to restore her breathing to normal. The dental procedure for which the anesthetic was given was then performed satisfactorily. The patient involved remained a patient of Hall until she moved to a location too far away to continue to use Hall as her dentist. She was satisfied with the dental treatment received from Hall. Hall sought help in his personal and drug related problems from his minister. No evidence was presented that Hall performed unsatisfactory dental work. To the contrary, all evidence presented in this regard was to the effect that Hall's dental work was above average. At the time of the hearing and for some months prior thereto Hall was not taking drugs.
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.
Findings Of Fact Based on the record evidence and the admissions made by Sandbank at hearing, the Hearing Officer makes the following findings of fact: Stanley Sandbank has been a licensed pharmacist in the State of Florida since 1975 and has actively engaged in the practice of pharmacy in this state since 1982. During the Fall of 1987, Sandbank was employed as a pharmacist at Rite- Aid Discount Pharmacy 2165 in Miami Beach, Florida. Toward the latter part of November of that year, Rite-Aid management received a telephone call from a Drug Enforcement Administration (DEA) agent, who stated that she had obtained a tip from a reliable informant that Sandbank "was selling drugs on the street." The DEA agent suggested that a controlled audit be conducted to ascertain whether these drugs were being misappropriated from the pharmacy at which Sandbank worked. Rite-Aid management followed the DEA agent's suggestion and performed such a controlled audit. The audit was completed on November 25, 1987. It revealed that 154 dosage units of Percocet and 201 dosage units of Percodan were unaccounted for and missing from the pharmacy's inventory of controlled substances. Percocet is a brand name of a "medicinal drug," as defined in Section 456.003(7), Florida Statutes, which contains Oxycodone, a controlled substance listed in Schedule II of Chapter 893, Florida Statutes. Percodan is a brand name of a "medicinal drug," as defined in Section 465.003(7), Florida Statutes, which also contains Oxycodone. Because Sandbank was the only pharmacist on duty during the time the audit was conducted, Rite Aid management believed that he was responsible for the shortages that had been discovered. Sandbank initially denied knowing anything about the matter, but later admitted his transgression. As Sandbank freely admitted, he had removed from the pharmacy and delivered to relatives and neighbors the following approximate quantities of controlled substances without first having been presented with a valid prescription and without Rite-Aid having received payment in full for these controlled substances: CONTROLLED SUBSTANCE QUANTITY Valium 10 mg. 300 Diazepam 10 mg. 400 Percodan 375 Percocet 360 Dilaudid 100 Hycodan Syrup 240 Placidyl 750 mg. 30 Valium, Dilaudid, Hycodan Syrup, and Placidyl are brand names of "medicinal drugs," within the meaning of Section 465.003(7). Valium contains Diazepam, which is a controlled substance listed in Schedule IV of Chapter 893, Florida Statutes. Dialudid contains Hydromorphone, which is a controlled substance listed in Schedule II of Chapter 893, Florida Statutes. Hycodan Syrup contains Hydrocodone, which is a controlled substance listed in Schedule III of Chapter 893, Florida Statutes. Placidyl contains Ethchlorvynol, which is a controlled substance listed in Schecdule IV of Chapter 893, Florida Statutes. Sandbank kept at least a portion of the money he had been given by this neighbors and relatives for having delivered to them the above-described controlled substances. He therefore reaped a financial gain as a result of his unauthorized and surreptitious diversion of these controlled substances from Rite-Aid Discount Pharmacy #2165.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pharmacy enter a Final Order finding that Stanley Sandbank violated Section 465.016(1)(e), Florida Statutes, as alleged in the Administrative Complaint, and imposing the above-described disciplinary action which the Department of Professional Regulation has proposed. DONE and ENTERED this 25th day of April, 1989, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1989. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stanley Sandbank 4300 Sheridan Street Hollywood, Florida 32399-0750 Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth D. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
