The Issue The issue in this case is whether the Respondent’s license to practice pharmacy should be revoked or otherwise disciplined based on conduct that resulted in criminal convictions and his failure to report the convictions to the Board of Pharmacy (Board), as required.
Findings Of Fact The Respondent has been a licensed pharmacist in Florida and held Florida license PS 36908 at all pertinent times, until it expired on September 30, 2013. On December 14, 2010, the Respondent was indicted in federal court in the Middle District of Florida, Case No. 8:10- CR-530-T-33AEP. On September 5, 2012, the Respondent pled guilty to one count of conspiring to violate 21 U.S.C. sections 841(a)(1), 843(a)(2), 843(a)(3), and 856(a)(1), all of which also constituted violations of 21 U.S.C. section 846, and to two counts of knowingly engaging in monetary transactions, in and affecting interstate and foreign commerce, in property of a value of greater than $10,000, which was derived from a felonious criminal conspiracy to traffick in controlled substances, in violation of 18 U.S.C. section 1957. The plea also admitted to the factual basis of the charges--namely, that the Respondent conspired to allow the pharmacy he owned and operated in Tampa, Florida, to be used by the criminal conspiracy to fill and dispense forged, and otherwise illegal, prescriptions for over a million doses of Schedule II controlled substances, mostly oxycodone. The cash proceeds of the illegal sales were treated as income of the pharmacy, and the Respondent and others participated in monetary transactions whereby the illegally- obtained cash was used to purchase cashier’s checks and other assets and to conceal the illegal source of the money. Based on his guilty pleas, the Respondent was adjudicated guilty and sentenced to 108 months in prison. The special conditions of supervision in the Judgment require the Respondent to “refrain from engaging in any employment related to dispensing prescriptions drugs either in a pharmacy, pain clinic, or other medical environment.” The Respondent’s convictions clearly were related to his practice of pharmacy. The Respondent now maintains that he should not have pled guilty and would not have done so but for the incompetence of his attorney, who advised him to enter into the plea agreement. Based on this ground and others, he has been seeking to have his convictions vacated or his sentence reduced. There is no evidence that he has been successful in altering his convictions or sentence in any way, and the evidence does not suggest that it is likely that he will succeed in accomplishing either objective. The Respondent did not report his guilty pleas to the Board in writing within 30 days. The Respondent contends that his incarceration since his arrest made it impossible for him to do so. However, the greater weight of the evidence was to the contrary. More likely, compliance with the technical requirement to report to the Board in writing was not in the forefront of his mind. The Respondent has been licensed since July 31, 2002. This is the first time action has been taken by DOH and the Board to discipline his license. The Respondent’s actions had the potential to expose numerous people to harm from the misuse and abuse of oxycodone and other controlled substances. This violated the trust placed in him by the State of Florida when he became licensed as a pharmacist. His violation of the public trust demonstrated unsound judgment and a lack of integrity. As a result, the Respondent’s professional standing among his peers was lowered. (The only direct evidence of this was the testimony of DOH’s expert witness, but this fact can be inferred from the nature of his convictions and sentence, as well as the comments of the sentencing federal judge, who viewed the Respondent’s actions as an abuse of the public trust and undeserving of a second chance to be a pharmacist.) The Respondent also contends that he should be treated leniently in this case because alcohol abuse and long-standing emotional and psychological problems were primary reasons for his actions. His contention belies the criminal convictions, which were for intentional crimes and based on voluntary guilty pleas. To the extent that these problems were contributory factors, it is commendable that the Respondent is taking them seriously, and he will benefit in the long run from continuing to seek treatment and counseling to address them. Neither the problems, in themselves, nor the start of treatment and counseling warrants lenient license discipline. The Board has guidelines for the imposition of penalties for license violations. DOH submitted Petitioner’s Exhibit 4 as evidence of the guidelines in effect at the time of the Respondent’s guilty pleas and convictions. However, the exhibit actually purports to certify the guidelines in effect at various times from January 1, 2011, until December 31, 2013. It appears from the exhibit that as of the time of the Respondent’s guilty pleas and convictions, the range of penalties for a first violation of section 456.072(1)(c), Florida Statutes (2012), for a felony conviction or guilty plea was from a year probation and a $3,000 fine to a year suspension to revocation and a $5,000 fine. Fla. Admin. Code R. 64B16-30.001(o)3. (revised Nov. 29, 2006). The range of penalties for a first violation of section 456.072(1)(x), Florida Statutes (2012), is from a $1,000 fine to a $2,500 fine and a year probation. Fla. Admin. Code R. 64B16-30.001(o)(18) (revised Nov. 29, 2006). The guidelines in effect at that time also included aggravating circumstances that would justify deviating above the guidelines and mitigating circumstances that would justify deviating below the guidelines. The aggravating circumstances included: a history of previous violations; in the case of negligent acts, the magnitude and scope of the damage or potential damage inflicted on a patient or the general public; and violations of professional practice acts in other jurisdictions. The mitigating circumstances included: in the case of negligent acts, the minor nature of the damage or potential damage to the patient’s or the general public’s health, safety, and welfare; the lack of previous discipline; restitution of monetary damage suffered by the patient; the licensee’s professional standing among his peers; the steps taken by the licensee to ensure the non-occurrence of similar violations in the future, including continuing education; and the degree of financial hardship incurred by the licensee. In this case, there are no aggravating circumstances justifying a deviation above the guidelines. As for mitigating circumstances: the minor nature of the damage or potential damage to the patient’s or the general public’s health, safety, and welfare from his failure to report his convictions and guilty pleas to the Board might justify a deviation below the guidelines for that violation, but not for the convictions and pleas, themselves; the Respondent’s lack of previous discipline is a mitigating circumstance; restitution of monetary damage to the patient is not relevant; the Respondent’s professional standing among his peers has suffered and does not justify a deviation below the guidelines in this case; the Respondent forfeited all ill-gotten gains to the federal government and has incurred financial hardship as a result of the forfeitures and his incarceration, but that does not justify a deviation below the guidelines in this case; the Respondent has taken several continuing education courses since he has been incarcerated, but that does not justify a deviation below the guidelines in this case.
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 the Respondent guilty as charged and revoking his license to practice pharmacy. DONE AND ENTERED this 23rd day of June, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2014. COPIES FURNISHED: Mark Whitten, Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C-04 Tallahassee, Florida 32399-3254 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Yolanda Y. Green, Esquire Lucas L. May, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher S. Switlyk Register No. 53913-018 Federal Satellite Camp Post Office Box 779800 Miami, Florida 33177-9800
The Issue Whether Respondent has been guilty of gross immorality or an act involving moral turpitude and/or guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board.
Findings Of Fact At all times relevant hereto, Marilyn Joan Pelaez held Florida Teacher's Certificate No. 463945 covering the subjects of elementary and secondary physical education and secondary English. On February 20, 1989, while returning home from a party, Respondent became disoriented, sleepy and was in a section of Tampa of which she was not familiar. She pulled her car off the road and into the driveway of a business establishment (Cox Lumber Company) and went to sleep. Some time thereafter Deputy Sheriff Bradley Sanderson, on patrol, observed the parked car and, following standard procedures, stopped his vehicle to investigate. Upon approaching the car, he observed Respondent apparently asleep. He rapped on the windshield, Respondent awakened and opened the car door on the driver's side. When the door was opened, Deputy Sanderson saw what appeared to be drug paraphernalia in the pocket of the door and seized the "pipe". Although this pipe was offered into evidence, it was not accepted. In lieu thereof, a description of the "pipe" was read into the record. This paraphernalia seized is used for "snorting" cocaine rather than smoking it. The pipe was tested on the scene, and traces of cocaine were found in the pipe. Respondent was forthwith arrested for possession of drug paraphernalia and cocaine and transported to the sheriff's office. She was subsequently brought to trial on charges of unlawful possession of cocaine and having in her possession drug paraphernalia with intent to use to ingest unlawful drugs (Exhibit 1). Respondent pleaded nolo contendere to these charges, adjudication of guilt was withheld, and Respondent was placed on probation for one year (Exhibit 2). Respondent readily acknowledged the above facts but contends, without contradiction, that she did not own the "pipe" found in the car door pocket and was unaware that the instrument had been left there by an unknown person. She admitted that she was careless in not locking her car, but acknowledged that the car had been left unlocked and outdoors all weekend. Respondent further testified that she had never used cocaine since experimenting with it in college, and that she requested the officers who arrested her to test for cocaine in her system, and they refused. Had this not been true, the officers who arrested Respondent were present, heard the testimony and were available to rebut this evidence. The deputy who was called in rebuttal reinforced Respondent's testimony that she had opened the door immediately upon being aroused and did not try to close the door when he saw and reached for the pipe. Respondent pleaded nolo contendere because she had no defense to the charge that drug paraphernalia had been found in her car and, therefore, in her possession, and that plea would get her probation rather than a possible prison sentence if she contested the charges. No evidence was presented that Respondent's arrest had received wide publicity in the Hillsborough County School System, nor was other evidence presented respecting Respondent's effectiveness in the school system subsequent to her arrest.
Recommendation It is recommended that the charges contained in the Administrative Complaint dated June 19, 1989, against Marilyn Joan Pelaez be dismissed. ENTERED this 31st day of May, 1990, in Tallahassee, Florida. K. N. AYERS 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 31st day of May, 1990. APPENDIX Proposed findings submitted by Petitioner are accepted, except for the following. Respondent became lost when she was fifteen minutes driving time from her home. Inconsistent with H. O. Finding #2. 9. Rejected as unsupported by the evidence. 18. Accepted as modified by H. O. #11. 21-24. Rejected as beyond the allegations contained in the Administrative Complaint. 25. Accepted insofar as included in H. O. #8. COPIES FURNISHED: Steven G. Burton, Esquire Post Office Box 3273 Tampa, FL 33601-3273 Marilyn Joan Pelaez 13809 Fletcher's Mill Drive Tampa, FL 33613 Karen B. Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399 Martin Schaap Administrator Professional Practices Services 325 W. Gaines Street, Room 352 Tallahassee, FL 32399 Mark Herron, Esquire 216 S. Monroe Street Suite 300 Tallahassee, FL 32301 =================================================================
Findings Of Fact On August 6, 1980, the Respondent Gerald B. Natelson, was charged in the United States District Court, Eastern District of Missouri, with violating Sections 841(a)(1) and 846, Title 21, USC, by knowingly and willingly, combining, conspiring, confederating and agreeing with others to distribute and possess with intent to distribute, marijuana, methaqualone and hashish, Schedule I and II controlled substances. The Respondent Natelson pled guilty to violating Sections 841(a)(1) and 846, Title 21, USC, as charged in Count I of the Indictment, by knowingly conspiring with others to distribute and to possess with intent to distribute marijuana. The amount or quantity of marijuana which was involved in the conspiracy set forth in Count I, is not identified in the Indictment, the Judgment and Probation/Commitment Order entered December 22, 1980, or Judge Aronovitz's Order Granting Motion to Vacate, Set Aside or Correct Sentence, and Granting Petition for Writ of Habeas Corpus in Natelson v. United States, Case No. 82-542 SMA, entered May 10, 1982. The Indictment, at paragraphs 12, 14 and 22, sets forth the Respondent's involvement in the conspiracy, which consisted of meeting in Hollywood and Fort Lauderdale, Florida, on April 1 and 4, 1979, and Phoenix, Arizona, on June 1, 1979, with specifically named co-conspirators. Jose Fanelo, president of Universal Casualty Insurance Company and formerly regional director for the Department of Insurance, and Les Lloyd, regional investigator for the Department of Insurance, established that the Respondent had been a fit and trustworthy insurance agent. Additionally, the Respondent submitted various documents, identified as Respondent's Exhibits 2- 13, which support the opinions expressed by Fanelo and Lloyd that the Respondent is a fit and trustworthy insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent Gerald B. Natelson. DONE and ORDERED this 20th day of May, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983.
Findings Of Fact The Petitioner is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State. The Respondent, 27th Avenue Corporation, doing business as Climax Lounge, holds Division of Alcoholic Beverages and Tobacco License No. 23-0358, Series 4-COP. At all times pertinent hereto John Ekberg and Daniel A. Wick were the sole corporate officers and shareholders of 27th Avenue Corporation. The Climax Lounge, the premises which are the subject of this proceeding, is located at 12001 N. W. 27th Avenue, Miami, Florida. In the early morning hours of January 17, 1981, undercover Beverage Officer Aurelius Thompson visited the Climax Lounge in the course of an investigation of suspected "drug violations" allegedly occurring on the premises. Officer Thompson approached a barmaid by the name of O. Z. Porter and engaged her in conversation, ultimately asking if she knew where he could obtain cocaine and she indicated she had none. At this time Officer Thompson observed a group of patrons "snorting a white powder" at the end of the bar where he was sitting. He spoke with an individual named "Larry" who indicated he had one gram of cocaine for sale for $75.00. Officer Thompson left the bar to get the required purchase price, and upon returning, Larry's brother Michael sold him approximately one gram of a white powdery substance which later proved to be cocaine. The parties in this proceeding have stipulated into evidence the lab reports and agreed that the substances obtained or purchased by the two investigating officers, Officer Thompson and Officer Alford, were cocaine and marijuana. The above described exchange of cocaine occurred inside the licensed premises at the bar. The exchange was made with the barmaid O. Z. Porter standing across the bar in close proximity to the transaction. Officer Thompson offered Ms. Porter some cocaine at the time of the exchange, but she refused, although she accepted some in a wadded up dollar bill for later use. In the early morning hours of January 23, 1981 this same officer returned to the Climax lounge. He went into the men's restroom and encountered an individual by the name of "Leech." "Leech" had a cellophane bag of capsules containing a white powder which he offered for sale for $10.00 each. He also had a bag with a larger amount of white powder selling for $25.00 per packet. Officer Thompson, during this encounter, purchased a foil package containing the white powder from Leech for $25.00. The contents of the packet proved to be cocaine. After concluding his transaction with the individual called "Leech" In the restroom, Officer Thompson then returned to the common area of the lounge and took a seat at the bar. He encountered and engaged in a conversation with the same individual named "Larry" whom he had met on his visit to the bar on January 17, 1981 in connection with the first purchase of cocaine on the premises. As a result of the second encounter, Larry ultimately sold Officer Thompson a packet of cocaine for $70.00. This transaction was conducted and concluded in approximately the center portion of the bar in plain view and was observed by "Norma", a barmaid employed by the Respondent. Beverage Officer Alford was also present on the premises the night of January 23, 1981 assisting in this investigation. While on the Respondent's premises he also purchased a quantity of cocaine from the individual known as Leech. The cocaine was contained in a capsule for which he paid $10.00, which transaction also occurred in the men's restroom of the Respondent's facility. Officer Thompson described his training in identification of cocaine and marijuana and established that on both visits of January 17 and January 23, 1981 he observed patrons in various areas of the lounge "snorting" what he believed to be cocaine and smoking or rolling marijuana cigarettes. Officer Thompson returned to the Climax Lounge on January 25, 1981. He approached a barmaid by the name of "Johnnie Mae" and inquired of her whether she knew who could sell him some marijuana. Johnnie Mae directed Officer Thompson to an individual called "Richard". The barmaid introduced Thompson to Richard and informed Richard that Thompson wanted to purchase some marijuana. Richard led Officer Thompson into the men's restroom where Thompson viewed "Leech" at the sink with a small quantity of marijuana in view. Thompson then purchased from Leech a small quantity of marijuana for $10.00. Upon leaving the restroom, Officer Thompson was summoned to the bar area by the previously identified individual, Larry, who informed Thompson that he had a gram of cocaine which he wished to sell him for $70.00. Thompson agreed and purchased the cocaine for that amount with the transaction taking place at the bar in front of the barmaid "Norma." Thompson thereupon asked Norma if she desired any cocaine, which she refused. On this evening, while he was in the restroom purchasing marijuana from Leech, Thompson observed approximately five individuals smoking marijuana. Pursuant to the investigation conducted by these officers, at this point, an Emergency Order of Suspension was entered against the license of the Respondent on January 29, 1981. On February 14, 1981 Officer Thompson accompanied by Officer Alford again entered the lounge on an additional visit. On this occasion Officer Thompson was approached by the same individual "Larry" from whom he had made the previous purchase and ultimately bought from Larry a quantity of cocaine for $65.00 on this occasion. Officer Thompson's observations on each occasion were approximately one to three hours in duration and he observed the use of cocaine and marijuana on each occasion, as did Officer Alford. Both officers indicated that they saw security guards on duty and circulating through the licensed premises, but were apparently unaware of the extent and vigor of enforcement procedures by the security guards. Officer Thompson did describe a plain clothed individual, whom the Respondent established was its security guard Larry McFadden, who forced he and other patrons to leave the men's restroom of the facility on the occasion of the February 14, 1981 visit. Other than this incident, the two officers testifying did not observe security guards attempting to curb the use or sale of drugs on the premises other than the management attempting to keep out of the restrooms people who had been there an inordinate period of time. The Respondent presented testimony from its corporate owners and several employees regarding their policy and efforts designed to curb the use of drugs on the premises. The manager, Ira Maxwell, verbally informed his employees of the licensee's prohibition of the presence or use of drugs on the premises and promulgated a set of written rules against certain activities, including the use of drugs or condonation by employees of the presence of drugs on the premises. The employees were required to sign acknowledgments that they had read and were informed of these rules. Employees Norma Jean Riley and O. Z. Porter signed these acknowledgments. The Manager' testimony established that the licensee's policy regarding controlled drug presence and drug transactions was to ask the possessors of drugs to leave the premises and, if their behavior was repetitive, to permanently bar them from the premises. Both the licensee's manager and its owner, Mr. Ekberg, established that warning signs prohibiting the use of drugs, or transactions involving drugs, were posted at several points in the common areas of the club at all times pertinent herein. Officer Thompson stated that he had simply not noticed the signs while he was on the premises. The club's manager, Ira Maxwell, testified that although he made personal observations of the public areas of the premises, most of his time was spent in the office. The principle stockholder and owner, Mr. Ekberg, is on the premises daily, but generally leaves around 10:00 p.m. each night. The lounge's open hours are from 9:00 p.m. to 5:00 a.m. Three security officers patrol the club at all times it is open with instructions to eject drug traffickers, users or possessors from the premises. Employees are instructed to advise management when a patron is observed using or possessing controlled drugs. The principle security officer, Larry McFadden, Jr. corroborated the fact that the drug warning signs were posted at the club during all times pertinent hereto. Be is constantly on watch for drug use and orders such people to leave the premises if he suspects their use or involvement with drugs. McFadden established that at certain times, although he maintains a constant vigil, it is difficult to observe everything that transpires. Sometimes he must make rapid judgments in deciding whether situations involving violence or use of weapons are more critical at a given moment than apprehension of patrons who have brought drugs onto the premises. Neither McFadden nor the club's manager, Ira Maxwell, had ever summoned police in an effort to curb the possession or use of controlled drugs on the Premises. Mr. Ekberg, the Respondent's president, inquires daily of McFadden regarding problems occurring the previous evening and primarily relies on his manager, Ira Maxwell, to maintain order. His inquiries are generally directed to instances of property damage and fights. He too emphasized that the Respondent's policy towards drug use is to eject those possessing drugs and permanently bar those suspected of dealing in drugs from entry on the premises. His primary duties when present at the club involve ordering supplies, preparing the payroll and other administrative duties. He has in the past had difficulty obtaining police assistance and controlling drug use at his club. On one occasion Mr. Ekberg suggested to the police that they place undercover officers at the club for curbing drug usage and he has inquired of his employees on occasion regarding individuals suspected of being drug users, but has not made a practice of seeking law enforcement assistance nor have his management and employees ever summoned police in an effort to eliminate illegal drug activity. Mr. Ekberg believes that only hiring an undercover, unknown security staff would permit him to obtain any better results in eliminating the presence of drugs on his licensed premises. He has been in the liquor business for approximately 20 years with no previous violations. No testimony was offered however which could establish that any member of management or any employee of the Respondent attempted to learn the identities of patrons alleged to have been using or trafficking in drugs on the licensed premises or to aid in apprehending them, even after being served with the subject emergency suspension orders. On April 22, 1981 the second Notice to Show Cause (Case No. 81-1218) was served on the Respondent with the identical charges relating to the observations by the Petitioner's officers occurring on February 13 and 14, 1981 at the licensed premises referred to above which observations occurred after the initial suspension order entered in Case No. 81-1090 was served on the Respondent.
The Issue Whether Petitioner’s application for a license as a Registered Pharmacy Technician should be approved.
Findings Of Fact On May 22, 2008, based on a plea of nolo contendere, Petitioner was adjudged guilty of the offense of Unlawful Sexual Activity with a Minor, a second-degree felony. She was placed on five years of Sexual Offender Probation. The special conditions of Petitioner’s probation included the following: a. Restitution to the victim in the amount of $425.00; b. No contact with the victim; and c. Attend parenting classes. The standard conditions of Sex Offender Probation were imposed upon Petitioner, including: (a) A mandatory curfew from 10 p.m. to 6 a.m.; (b) A prohibition on living within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate; (c) Participation in a sex offender treatment program; (d) No contact with any children under the age of 18, unless court approved; and (e) A prohibition on working for pay or as a volunteer at any place that children regularly congregate, including but not limited to any school, day care center, park, playground, pet store, library, zoo, theme park or mall. On October 5, 2009, Petitioner submitted an application for licensure as a Registered Pharmacy Technician. On December 9, 2009, the Board voted to deny Petitioner’s application. A Notice of Intent to Deny reflecting the vote was filed on December 31, 2009. Petitioner testified that she has been a pharmacy technician since 1981. There was no evidence presented, however, indicating that Petitioner has been licensed in Florida as a Registered Pharmacy Technician. Petitioner is currently employed by Randolph Margrave, preparing intravenous medications (IVs) and supplies for administering to patients in their homes. She works in a clean room under a hood in an isolated barrier. She has no contact with the public, and she has no contacts with the patients. Although her position does not require Petitioner to review patient records, she has access to patient records. According to her current employer, Petitioner does an excellent job. Prior to her current position, Petitioner worked in a retail pharmacy from 1981 to 1989. From 1989 to 1999 she worked in the pharmacy department of a hospital. Petitioner’s current employment does not require her to have contact with the public. Petitioner described the circumstances that led to her arrest and subsequent conviction. She testified that she performed oral sex on her daughter’s seventeen-year-old boyfriend. In her testimony, Petitioner stated: My daughter’s boyfriend was very abusive. We got a restraining order against him, and they only granted it for two weeks, temporary. And he threatened me through her. And as it turned out, I made a bad decision. And it was an oral sex one time and . . . [h]e was 17 years old at the time. Petitioner testified that her daughter’s boyfriend was a very mature 17-year-old. Petitioner further testified: And I thought my daughter’s life was being threatened, and it was like making a deal with the devil. And it was a one-time thing and a very bad thing. In a typical retail pharmacy setting, a pharmacy technician is the first point of contact for patients that drop off or pick-up a prescription. A pharmacy technician in a retail setting gathers the patient’s information, enters it into the computer, prepares the label and counts and pours the medication. Pharmacy technicians have access to personal information of the patients that patronize the pharmacy. This information includes but is not limited to the patient’s name, gender, phone number (including cell number), address, allergy information and prescription medication history. Minors may purchase and pick-up medications from a pharmacy. A licensed Registered Pharmacy Technician may practice at any location without restriction.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Pharmacy enter a final order denying Celeste Donald’s application for licensure as a Registered Pharmacy Technician. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
Findings Of Fact At all times relevant to the Notice to Show Cause, the Respondent, Londonaire Lounge, Inc., was the holder of License No. 26-664, a Series 4-COP license held with the State of Florida, Division of Beverage. On January 22, 1975, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On January 23, 1976, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On or about the evening of January 6, 1976, Nicholas Balistreri, a corporate officer and employee of the Respondent went to the licensed premises at 1553 South Lane Avenue, Jacksonville, Florida about the time of closing. He was in the company of a man names Paul Spencer and both of these individuals were riding in Balistreri's automobile. Spencer and Balistreri entered the licensed premises and Spencer went into the office of the licensed premises and was joined by Balistreri and another individual who was an agent of the United States Drug Enforcement Administration. Spencer had in his possession approximately 35 grams of cocaine, a Schedule II controlled substance listed under Title 21, United States Code, Section 812(c). Spencer removed the cocaine and Balistreri, the agent, and Spencer ingested a quantity of the cocaine. The agent was acquainted with Spencer from some other occasion. After the individuals had ingested the cocaine, Balistreri told the agent and Spencer that no sale of that substance could be made in the licensed premises. Balistreri and Spencer then left with the agent of the Drug Enforcement Administration and returned to Balistreri's apartment in Balistreri's car, at which time Balistreri and Spencer were arrested. Balistreri was subsequently charged and convicted of having in his possession with the intent to distribute the substance, the aforementioned cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. He was sentenced to three years confinement for that offense. Subsequent to the arrest of Balistreri, charges were placed against the Respondent, i.e., a Notice to Show Cause was filed against the Respondent corporation. Balistreri remained as an employee of the corporation until after the informal conference with the Division of Beverage and the date of Balistreri's dismissal from the corporation occurred in May, 1976. The above facts were as stipulated to by the parties.
Recommendation Based upon the findings of facts and conclusions of law, and in consideration of the aggravating and mitigating factors, and the agreement of the counsel of the Petitioner that the Petitioner does not seek revocation or suspension, it is recommended that the Respondent, Londonaire Lounge, Inc., be fined in the amount of $750.00, against its License No. 26-664, Series 4-COP. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 H. R. Fallin, Esquire 1239 King Street Jacksonville, Florida 32204
Findings Of Fact The Respondent, Deborah Sanchez Nelson, L.P.N., admits that on or about February 23, 1978, on the sixth floor of Palmetto General Hospital, Hialeah, Florida, several ampules of a controlled drug, to wit: Demerol (Meperedine) Injectable, were discovered to have been tampered with in that the fluid levels were not uniform as is true of untampered ampules. The Respondent was assigned to medications on the sixth floor of said hospital and was questioned concerning the incident and admitted to having taken said narcotic. A search of the Respondent's purse by an officer of the Hialeah Police Department revealed a vial labeled as water, containing approximately 12 cc of clear liquid, which upon being chemically analyzed proved to be Meperedine. Deborah Sanchez Nelson had worked at Palmetto General Hospital from February 10, 1978, until the incidents described above on February 23, 1978. Nelson has voluntarily not worked as a licensed practical nurse since that date and is currently employed at J. C. Penny's as a salesperson. Freda Drees, Director of Nursing at Palmetto General Hospital, first met Nelson upon her employment on February 10, 1978. Drees observed Nelson during the hospital's orientation program and later after she assumed her duties with the hospital. Drees described Nelson as a good nurse. Mitchell M. Ross, Director of Pharmacy, Palmetto General Hospital, testified that he had known Nelson for approximately four years, having first met her while employed as a pharmacist at Parkway General Hospital. Nelson was employed at Parkway General Hospital serving on the night shift. Ross had occasion to observe Nelson and stated that she was very good with patients. Ross stated that there had never been any trouble with Nelson at Parkway General Hospital involving drugs and that because of his position with the hospital he would have been aware of any discrepancies or violations. Dorothy Ware, State Probation Officer, Department of Corrections, testified that she had known Nelson since July, 1978, when Nelson was assigned to her as a probationer. Nelson had been placed on probation by the Broward County Court as a result of her conviction for leaving the scene of an accident which occurred on approximately February 28, 1978. Ware stated that Nelson admitted her drug involvement to her during their initial interview and sought assistance from Ware in dealing with her drug problem. Nelson was referred by Ware to a drug rehabilitation program and immediately contacted this program. However, testing by the program revealed that Nelson was not using drugs, and she was not placed in the program. Ware stated that Nelson was very responsible, had met all obligations of her probation to include paying the cost of her probation as directed by the court. Ware stated that Nelson was very remorseful about her drug involvement and having taken drugs from the hospital. Ware recommended that no action be taken that would deny Nelson her right to practice practical nursing. Deborah Sanchez Nelson testified on her own behalf and admitted she had been involved with drugs for eight months. She stated that her involvement arose when she became personally involved with an individual who was involved with drugs and started using drugs herself. The drug of use was Demerol, which her friend was supplying. She stated that she had not admitted to herself that she was addicted and needed drugs until the incident at Palmetto General Hospital. At that time she had broken off her relationship with the person with whom she was involved and who was supplying her with the drug, Demerol. Nelson stated that the accident which had led to her conviction for leaving the scene of an accident had occurred because she was distraught over her theft of drugs from the hospital, the termination from her job, and the realization that she was addicted to drugs. After the accident, Nelson was admitted by a psychiatrist to the hospital for treatment. Nelson stated her involvement with drugs was over and that she had a better self-image of herself. Her testimony concerning her no longer being involved with drugs was confirmed by Ware's testimony that the study done of Nelson by the drug referral service revealed that Nelson was not using drugs. Nelson stated that she missed nursing, desired to continue practicing nursing, and would submit to any conditions established by the Board if permitted to continue in nursing.
Recommendation The admissions of the Respondent clearly establish that she violated the provisions of law cited above. The testimony in mitigation establishes that the Respondent was, prior to her involvement with drugs, a fine nurse who was good with patients. The Respondent's involvement with drugs arose out of a personal involvement with an individual who was also involved with drugs and supplied the Respondent with Demerol, which was the drug of abuse. The Respondent testified that she had not admitted to herself her addiction until her supply of Demerol was cut off, when her personal relationship with the individual supplying her was terminated. Nelson has sought professional treatment for her personal and drug problems, overcoming her drug addiction and apparently the personal problems which gave rise to it. She has voluntarily not practiced nursing for approximately one year. The Director of Nursing for Palmetto General Hospital and the Director of the Pharmacy at Palmetto General Hospital both voluntarily testified in her behalf. Her probation officer voluntarily appeared and confirmed that Nelson was no longer involved in drugs, was deeply remorseful over her involvement with drugs and stealing drugs from the hospital, and had responsibly met all of the terms of her probation for conviction of an unrelated offense. Her probation officer specifically recommended that no action be taken to deny Nelson the opportunity to practice nursing. Nelson testified and exhibited remorse and concern over her actions, freely admitted her addiction, and stated that she had overcome her drug problem and personal problems and turned her life around. She stated that she missed nursing and desired to return to nursing. The use of drugs by a nurse is one of the most serious violations of Chapter 464 because of the access available to medical personnel and because they must be mentally and physically capable of attending patients whose lives and well-being are entrusted to them. If possible, the theft of drugs from patients, or the adulteration of drugs for patients' use, is more serious because it affects the strength of the drugs administered and subjects the patient receiving them to pain and suffering. However, addiction is a powerful thing, and it overcomes the natural inclinations and professional training one has received. Unquestionably, those guilty of such violations should be appropriately disciplined. Generally, in a case involving patients' drugs a suspension of no less than two years would be recommended. However, in this instance the Respondent voluntarily removed herself from nursing nearly one year ago, which should be considered in determining the final penalty. Also, her own efforts and success in overcoming her personal problems and addiction must be considered. Based on the foregoing Findings of Fact Conclusions of Law and Facts in Mitigation, the Hearing Officer would recommend that the Board suspend the license of the Respondent for 24 months, give credit to the Respondent for the 12 months she has voluntarily not practiced, and suspend the last six months of the remaining 12 months, permitting the Respondent to return to practice under conditions established by the Board in order that the Board may maintain closer supervision over the Respondent during her initial return to practice. DONE and ORDERED this 27th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Geraldine B. Johnson State Board of Nursing 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211 Deborah Sanchez Nelson 19414 NW 30th Court Miami, Florida 33162 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Deborah Sanchez Nelson As a Registered Nurse Case No. 78-2056 19414 N. W. 30th Court License Number 32957-1 Miami, Florida 33162 /
