Findings Of Fact The Board of Pharmacy is the state agency in Florida charged with the regulation of the practice of pharmacy in this state. By stipulation, at all times material to the allegations herein, Respondent was a pharmacist in Florida having been issued license Number TS 0017388. On or about December 13, 1985, Respondent dispensed 20 Empirin #3 tablets with codeine to Sandra Robinson, a dental assistant to Dr. J. T. Flannigan, pursuant to a prescription written by Dr. Flannigan that same day. On January 8, 1986, Respondent again dispensed 20 Empirin #3 with codeine to Ms. Robinson pursuant to another prescription written by Dr. Flannigan that same day. Empirin #3 with codeine is a brand name of a medicinal drug defined by Section 465.003(7), Florida Statutes, containing codeine, a controlled substance, in sufficient quantity to be listed in Schedule III, Chapter 893, Florida Statutes. On January 14, February 3 and 26, March 10, and November 11, 1986, Respondent again honored prescriptions written on those dates for Empirin #3 with codeine, in the amounts of 20, 20, 30, 30, and 20 tablets respectively, to Marsha Villani, Dr. Flannigan's office manager. At all times relevant to the allegations in the Complaint, Respondent was prescription department manager for Jake's Health Mart, a community pharmacy as described in Section 465.018, Florida Statutes, as well as sole shareholder and owner of the facility. Ms. Villani, Ms. Norris, and Ms. Laxen, all, at the time in issue, presented the prescriptions to Respondent and received the substance indicated from him under a scheme devised by Dr. Flannigan who suffered from a bad back. The prescriptions were written and given to the women by Flannigan with the understanding that they would have them filled and then deliver the drugs to him. Ms. Villani worked for Dr. Flannigan from July, 1984 to April, 1988. During that period, Flannigan also treated her as a patient and, at various times, prescribed medicine for her for relief of pain from a broken foot and a dislocated shoulder. Over the period of time she worked for him, he also gave her prescriptions for drugs containing controlled substances issued in her name which were really for him. Many of these prescriptions were taken by Ms. Villani to Respondent's store where some were filled by Respondent, personally. Others were filled by other pharmacists who worked for him. It is her recollection that during the time she was doing this, she discussed what she was doing with Respondent because she was nervous about it since she knew it to be improper. She claims to have told Respondent on many occasions that the prescriptions were not for her use and discussed the possible repercussions of her actions with him several times. When she mentioned her concerns about Dr. Flannigan's continued drug use and his use of her as a courier, Respondent allegedly was very supportive and indicated it was nothing to be concerned about. After a period of time, during which Respondent never failed to honor the invalid prescriptions, on one occasion he did refuse to honor a prescription and told Ms. Villani to tell Flannigan to call him. At the time, she felt this might be Respondent's way of handling the situation, but she found, thereafter, that it was because he had been contacted by a Department investigator who was looking into Flannigan's activities. On cross examination, Ms. Villani indicated she believed other pharmacists working for the Respondent also knew what was going on because she also told them of the scheme. In this, her testimony is inconsistent with that given on direct wherein she indicated she did not discuss what she was doing regarding Flannigan's prescriptions with any other pharmacist. She also indicates that Respondent's brother, Pete, who worked at the pharmacy, filled some of the prescriptions for her and that she told him what was going on as well. Ms. Norris worked for Dr. Flannigan from October, 1984 through February, 1986 and, in addition to working with him, was a patient in 1985. At that time, he prescribed Percodan and an antibiotic. During the period of time she worked for him, he gave her several prescriptions for Empirin #3 with codeine which she was to have filled and then transfer the drug to him. Ms. Norris took those prescriptions to the Respondent for filling, but usually did not tell him who the pills were actually for. However, on one instance in December, 1985, she took a prescription for Empirin #3 with codeine in and when the Respondent asked her if the prescription was for her throat, she indicated they were not for her even though her name was indicated as patient on the prescription form. Nonetheless, the Respondent filled the prescription. In January, 1986, when she took another prescription in, Respondent asked her if it was for her throat and she indicated it was. Ms. Laxen worked for Dr. Flannigan as a dental assistant over two different periods, from March, 1984 through July, 1985, and again from October, 1987 through January, 1988. During those periods, she was not treated by him as a patient, however, he gave her prescriptions for drugs which she was to have filled and return to him during the period before she left in July, 1985. These prescriptions, which were written in her name, were filled by Respondent and on at least one occasion, when Respondent asked her if the prescription was for her, she indicated it was not. He nonetheless filled it. Though she had received other prescriptions of that nature from Flannigan which she had filled by Respondent and his associates previously, she had not discussed any of the details with Respondent. In fact, she is not sure which prescription is the one she discussed with Respondent. The entire situation was not comfortable for her and she preferred not to do it. Under the circumstances shown here, since no substance is indicated and no actual date is shown, Ms. Laxen's testimony is relevant only to corroborate the allegation that Respondent would fill prescriptions knowing that the name appearing thereon was not the actual individual for whom the substance was destined. Respondent does not deny knowing Ms. Villani or Ms. Norris but does not recall having met Ms. Laxen. He cooperated fully with the Department's investigator, Ms. Gossett, and even suggested ways in which she could get additional information. Most of the prescriptions in question presented by Ms. Villani, Ms. Norris, and Ms. Laxen are what are known as "third party prescriptions" paid for by an insurance company with the presenter paying only a $2.00 co-payment. Under the terms of the agreements he has with the various insurance companies, Mr. Beckel receives only the wholesale cost of the drug he provides plus a service fee of $3.00. As a result, there is very little profit in this type of prescription and he claims he would not place his license in jeopardy for the small amount of profit that might be realized from supplying Dr. Flannigan's drug needs. Consistent with that thesis, Respondent claims not to have known that he was filling false prescriptions when the investigator first came in. In September, 1987, at the time of the investigation, Ms. Gossett told Respondent that the prescriptions given by Flannigan to his employees were bad and that he should fill no more of them. He agreed. About an hour later, Ms. Villani came in with one of them and he asked her about it. At that time she admitted that the prescription, though written to her, was not for her, and at that point, he refused to honor it and requested that she have Dr. Flannigan call him and he would take care of it. Respondent is adamant in insisting, however, that he found out what Flannigan was doing, and received the admission from Ms. Villani that the prescription she was offering was not for her, only once. This was after he was advised of the situation by the Department investigator. He denies Villani's claim that she told him on several occasions that the prescriptions she presented were not for her. When Dr. Flannigan came to see Respondent at his request, only then did he admit what he had done. After that, Respondent would not fill any prescriptions written by Flannigan to any of his employees. He continues to fill other Flannigan prescriptions to bona fide patients. Regarding the prescriptions presented by Ms. Norris, Respondent admits that he would have asked the question about her throat if he knew what her medical profile was. However, he strongly contends that if, as she states, she advised him that the prescription was not for her, he would have asked her more, including who it was for and for what purpose it was written. If, in that case, she did not have a satisfactory answer, he would not fill the prescription. He further contends that had he known the drugs were for Flannigan, he would not have filled the prescription Ms. Norris gave him. He repeatedly asserts he stood to gain nothing by providing Flannigan with controlled drugs through this scheme. When it was suggested by Petitioner's counsel that a valid reason would be to maintain Dr. Flannigan's good will because of the volume of prescriptions he writes, Respondent astutely responded that Dr. Flannigan does not write enough prescriptions totally, throughout his practice, for him to risk his license on the potential for future business and this is accepted. The last prescription Respondent filled for Ms. Villani which is alleged in the Complaint was presented on November 11, 1986. This was at least several months before the conversation he had with her in September, 1987, in which Ms. Villani admitted that the prescription was not for her but was for Dr. Flannigan. He is sure that prior to that prescription, and all during the time he honored the prescriptions which form the substance of the complaint against him, Ms. Villani never told him the prescriptions she had him fill were for Flannigan. He recalls seeing her in the store often and has had many conversations with her, but, characterizing her as somewhat "spacey and illogical in conversation", he denies ever having knowingly filled a prescription for her which was intended for Flannigan. In addition, he contests her assertion that his brother, Peter, filled a prescription for her since Peter is not a pharmacist and, though he works in the store and may have filled other orders for Villani for non-controlled medical supplies, he is not permitted to work in the pharmacy and fill prescriptions. Turning to the issue of an economic motive for filling the illegal prescriptions, and relating it to his prior comment about the volume of Flannigan's prescription business not justifying Respondent's risk of his license to get it, examination of his records indicated to Respondent that over the period of their relationship, Dr. Flannigan's prescriptions in the past year have amounted to approximately 3 to 4 thousand dollars valuation. In that same year, Respondent's gross sales in the pharmacy were 1.8 million dollars. Therefore, Flannigan accounts for a very small percentage of the overall business, and while he might have made some profit filling the bad prescriptions, the amount involved was not nearly big enough to justify risking his license. In addition, in February, 1987, Respondent opened a second store on South MacDill Avenue, in Tampa. From that point on, he spent a majority of his time at that store, remaining there at least five days a week during the normal business day. He admits he was in his main store approximately 30 minutes out of every day, performing administrative functions such as checking mail, signing checks, and the like. Rarely, during that time, did he work in the pharmacy there. Based on the above, the evidence appears to be in equipoise. On the one hand, three employees of Dr. Flannigan have indicated that at various times they presented false prescriptions to Respondent for controlled substances intended for Flannigan which Respondent filled knowing that the ultimate receiver was not the individual whose name appeared on the prescription. On the other hand, Respondent unequivocally and frankly denies knowledge of the situation at the time the prescriptions were presented and asserts that when he discovered the true situation, he immediately declined to fill any more prescriptions of this nature. This equipoilent situation must be evaluated in light of the surrounding evidence. On one side is the testimony of the three individuals which, while it is certain as to what Respondent may have been told, is uncertain as to exact times the conversations were held. This is not to state that these witnesses do not, at this point, truly believe what they say, and it is recognized that, as counsel for Petitioner points out, they jeopardize their position by admitting to what might be classified as criminal behavior. On the other side, Respondent was unequivocal in denying any knowledge of the true nature of the questioned prescriptions. He also presented the testimony of three individuals, all of whom are responsible, significant individuals in the community, who are familiar with his reputation for truth and veracity in the community. All three, Dr. Caspar, Mr. Quigley, and Mr. Brynjolffson, one a physician and the others financial leaders in the community, indicate his reputation in that regard is excellent. Two, Quigley and Brynjolffson, related Respondent has been asked to be a bank director in their organization and as a result thereof, has undergone a strenuous and comprehensive background investigation by the Federal Bureau of Investigation and been determined to be completely free of misconduct or disqualification. Dr. Caspar also indicated that in addition to Respondent's excellent reputation for truth and veracity, he has a reputation for being a tough pharmacist who calls and questions any odd prescription. Taken together, and considering the evidence as a whole, evaluating and measuring the relative probabilities and improbabilities of the testimony, it must be concluded that the evidence is insufficient to clearly and convincingly establish that at the time Respondent filled the prescriptions for controlled substances alleged in the Administrative Complaint, he knew the prescriptions were false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner enter a Final Order dismissing both Counts I and II of the Amended Administrative Complaint against the Respondent. RECOMMENDED this 31st day of July, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6270 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted. &. 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. & 10. Rejected as unproven. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. - 8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. Accepted. & 13. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 17. Accepted and incorporated herein. 18. Accepted and incorporated herein. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 730 South Sterling, Suite 201 Tampa, Florida 33609 Terrence Pyle, Esquire Post Office Box 3126 Apollo Beach, Florida 33570-3126 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rod Presnell Executive Director Board of Pharmacy 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Herman Ginsberg is a registered pharmacist having been issued license number 0008019. At all times material hereto, Respondent was the managing pharmacist or the pharmacist on duty at Parkway Drugs (formerly Jaffe Drugs), located at 737 Northeast 167th Street, North Miami Beach, Florida. The pharmacy changed ownership on March 23, 1981, and Robert Strauss thereafter became managing pharmacist. On December 12, 1979, Dr. Arthur J. Schatz treated Geraldine Hauser Armstrong. In conjunction therewith, Dr. Schatz gave her a prescription for 30 Valium, 5 mg. tablets. Dr. Schatz authorized no refills on the prescription, and no refills were subsequently authorized by him. Further, no individual contacted his office to either verify the prescription or to request refills of that prescription. When the Valium prescription was located in the files of Parkway Drugs, it exhibited the notation "5X" by the word "REFILL" and further exhibited pricing information for the purchase of 100 Valium tablets. The "5X" indicates that five refills were authorized by the physician. Dr. Schatz did not place the notation indicating five refills on the prescription. Armstrong presented the Valium prescription to the Respondent on December 12, 1979, for the purpose of having the prescription filled. Respondent indicated that he could fill the subject prescription in the amount of 100 Valium tablets instead of the prescribed 30 if Armstrong so desired. She did. The Valium prescription written by Dr. Schatz was filled by Respondent in the amount of 100 Valium, 5 mg., originally and on five subsequent occasions. Prescription number 58350, located in the prescription files of Parkway Drugs, purports to be a telephoned prescription called in by Dr. Jack R. Cohen on December 17, 1980, for 150 Soma Compound for Geraldine Hauser Armstrong. Dr. Cohen did not prescribe, authorize or telephone in a prescription for 150 Soma Compound for Geraldine Hauser Armstrong on December 17, 1980. This prescription constituted the basis upon which the personnel of Parkway Drugs dispensed Soma Compound to Armstrong not only on December 17, 1980, but also on at least 12 other occasions between March 30, 1981, and September 12, 1981. Respondent personally dispensed Soma Compound to Armstrong as a result of this prescription on at least December 17, 1980, April 14, 1981, and May 11, 1981. On March 2, 1981, Dr. Leo A. Asher, Jr., pursuant to an office visit, prescribed for Armstrong on prescription forms bearing his name, address and phone number, 24 units of Darvon 65 and 20 units of Quinamm. After receipt of these prescriptions, Armstrong altered the amounts as indicated on the original prescriptions by changing the number of Darvon from 24 to 400 and by changing the number of Quinamm from 20 to 200. The alteration of the Darvon prescription, in particular, is blatantly obvious even to the untrained observer. Armstrong further altered these prescriptions by adding a notation that the same could be refilled as needed even though the physician had specifically stated on the prescriptions that there were to be no refills. After altering the prescriptions as indicated, Armstrong presented them to the Respondent who, without questioning Armstrong or calling the prescribing physician, honored the prescriptions in the altered amounts in spite of the conflicting instructions concerning the number of refills. A prescription for 400 Darvon 65 is excessive and inappropriate on its face. Respondent, however, filled this prescription at the same time that he filled the prescription for 200 Quinamm, a muscle relaxer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations in Counts I, II and III of the Administrative Complaint and revoking his license as a registered pharmacist. DONE and RECOMMENDED this 11th 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 11th day of March, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Vincent J. Flynn, Esquire 1414 Coral Way Miami, Florida 33145 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hinton F. Bevis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent is, and has been at all times material to this proceeding, a community pharmacy in the State of Florida, having been issued permit number 0008482. Respondent's last known address is A & C Pharmacy #2, 1053 Washington Avenue, Miami Beach, Florida 33139. On May 29, 1984, and May 30, 1984, an audit was conducted at respondent's pharmacy by investigators for the Department of Regulation. The audit covered the period from March 15 1984, the date the permit was first issued and the business first opened, to May 29, 1984. The audit revealed that the pharmacy was unable to produce records to account for shortages in the following controlled substances, 1/ as defined in Chapter 893, Florida Statutes, and the evidence revealed the shortages to be in the following amounts: DRUG SHORTAGE Librium 5 mg. 62 capsules Darvon Compound 65 120 capsules Tenuate 75 mg. 130 tablets Valium 5 mg. 55 tablets Valium 10 mg. 8 tablets Librium's generic name is chlordiazepoxide, Darvon Compound 65 contains propoxyphene, Tenuate's generic name is diethylpropion, and Valium's generic name is diazepam. Section 893.07(1)(b), Florida Statutes, requires that every person engaged in dispensing controlled substances maintain "on a current basis a complete and accurate record of each substance manufactured, received, sold, delivered, or otherwise disposed of by him . . ." The audit revealed that the respondent did not have records that showed the disposition of the controlled substances listed above. The records of respondent were in disarray and, to some extent, were mixed with the records of a related pharmacy, A & C Pharmacy #1, located on Flagler Street. Controlled substances were often ordered at the same time for both pharmacies and, on occasion, drugs ordered by one store were delivered to the other. Indeed, due to the poor record keeping, there was some confusion concerning the amount of Tenuate received by the respondent and, accordingly, the amount of the shortage. It is undisputed that respondent received 200 tablets of diethylpropion or Tenuate, on April 9, 1984. On May 10, 1984, an additional 100 tablets of diethylpropion were ordered. The invoice revealed that these tablets were ordered by the A & C Pharmacy on Flagler Street. However, Mrs. Rodriguez provided the invoice to the auditors as part of respondent's records. She also told the auditors that 100 tablets of Tenuate had been transferred from the Flagler Street pharmacy to the respondent due to orders being mixed-up and drugs ordered by one store being delivered to the other. The auditors therefore determined that respondent and received 400 Tenuate tablets: 200 on April 9th, 100 on May 10th, and, an additional 100 transferred from the Flagler pharmacy. There were 170 tablets in respondent's inventory, and no records of any sale. Thus, the auditors determined that there was a shortage of 230 tablets. However, from the evidence presented at the hearing, it appears that the 100 tablets that Mrs. Rodriguez mentioned were the same 100 tablets shown on the invoice dated May 10, 1984. Ms. Jorge's testimony linked the tablets that were transferred to an invoice that had the Flagler pharmacy's address (T-73), and Mr. Bludworth's testimony established that the only records showing purchases were the invoices of April 9 and May 10, 1984. (T-34) Thus, the shortage of Tenuate was 130 tablets rather than 230 tablets. At the time of the audit some of respondent's records, the prescriptions filled, had been sent to Luis Cruz, a Medicaid preparer. However, there was no evidence that any of the prescriptions that had been sent to Luis Cruz were for the controlled substances audited. The evidence establishes that respondent has failed to maintain, on a current basis, a complete and accurate record of each substance manufactured received sold, delivered or otherwise disposed of by respondent. On May 10, 1984, an inspection of Respondent's pharmacy was conducted by an investigator for the Department of Professional Regulation. At the time of the inspection, Ada Rodriguez, the owner of A & C Pharmacy was in the prescription department. Ada Rodriguez is not a licensed pharmacist in the State of Florida. The pharmacist on duty was not present when Ada Rodriguez was in the prescription department. There was no pharmacist on the premises at the time the inspection began, and the prescription department was not locked. No activity was observed by the investigator which would be consistent with an unlicensed pharmacist dispensing drugs. When the inspection was conducted, the business hours for the store where respondent's pharmacy is located were 8:30 a.m. to 5:00 p.m., Monday through Friday, and 9:30 a.m. to 3:30 p.m. on Saturday. When the inspection was conducted, the prescription department hours were from 9:00 a.m. to 3:00 p.m., Monday through Friday, thus the prescription department was open a total of thirty (30) hours a week. Rule 215-1.14, Florida Administrative Code, provides in part as follows: [A]t all times when the prescription depart- ment is closed, either because of the absence of a . . . pharmacist or for any other reason, said prescription department shall be . . . locked or padlocked so as to prevent the entry into said department by persons not licensed to practice pharmacy in the State of Florida, and at such times no person other than a person licensed to practice pharmacy in Florida shall enter or be permitted to enter the prescription department. . . . Rule 215-1.24 provides, in part, as follows: Any person who receives a community pharmacy permit pursuant to Section 465.018, Florida Statutes, and commences to operate such a establishment shall, for the benefit of the public health and welfare, keep the prescription department of the establishment open for a minimum of forty (40) hours per week and sixty (60 percent) percent of the total hours the establishment is open each day. . . . Since Mrs. Rodriguez has been informed by the investigators of the restricted access requirement for the prescription department, she has not gone into the prescription department except when the licensed pharmacist has been present. Upon being informed by the investigators of the minimum-hour requirements, the respondent expanded the working hours of the licensed pharmacist in order to increase the number of open hours of the prescription department in order to meet the provisions of Rule 215-1.24. The Respondent's pharmacy meets the needs of the predominantly Spanish-speaking neighborhood by providing pharmacy services with a Spanish- speaking pharmacist.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that respondent violated the requirements of section 893.07(1)(b), Florida Statutes, and rules 215-1.14 and 215-1.24, Florida Administrative Code, as alleged in Counts I, II and IV of the Administrative Complaint, and that, pursuant to section 465.023(1)(c), Florida Statutes, respondent be placed on probation for two (2) years, with the following terms: Respondent shall be inspected two (2) times per year, and respondent shall pay the reasonable costs of such inspections. Respondent shall remit a fine of $500 to the Board of Pharmacy within forty-five (45) days of filing the final order. DONE and ENTERED this 28th day of January, 1986, in Tallahassee Leon County Florida. DIANE A. GRUBBS 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 28th day of January 1986.
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaint dated March 3, 2000, and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Robert Gibson McLester, III ("McLester") is a licensed pharmacist 2 with a heretofore unblemished record. McLester graduated from the University of Florida with a degree in pharmacy in August 1977. He was licensed by the State of Florida to practice pharmacy in February 1978. He currently holds an Alabama pharmacy license, and was previously licensed in Mississippi but at some point ceased to pay the state's licensing fee; the license thus lapsed by operation of law. McLester received a Master of Science degree in hospital pharmacy from the University of Mississippi in December 1987 and a Master of Health Care Administration from the same institution the following May. McLester entered the Navy as an aviator cadet in June 1965, and was commissioned as a naval aviator in February 1967. He flew 103 missions with Attack Squadron 147 and was honorably discharged as a lieutenant in December 1970. Following a brief stint in the insurance and investment business, McLester applied unsuccessfully to medical school. McLester entered the University of Florida's pharmacy school in September 1974 and following his graduation in August 1977, has been continuously employed as a pharmacist when not pursuing advanced degrees in pharmacy and related fields. Much of McLester's pharmacy employment has been in the Navy, which he reentered in February 1978 as an ensign in the Medical Service Corps. McLester served in a variety of posts before retiring as a lieutenant commander in August 1992, including at the National Naval Medical Center in Bethesda, Maryland, where he supervised in excess of 25 pharmacists and pharmacy technicians in the preparation of an average of 1600 outpatient prescriptions per day. McLester continued the practice of pharmacy as a civilian, working briefly as a relief pharmacist for the Eckerd Drug chain in the Vero Beach area before being hired full time by Winn-Dixie in August 1992. Under McLester's supervision, Store No. 2358 enjoyed high sales volume and was used as a training site for other Winn-Dixie pharmacies. At all times during McLester's employment at Winn- Dixie, reports of annual inspections of his pharmacy conducted by the Agency for Health Care Administration ("AHCA") pursuant to law showed no deficiencies of any kind. McLester worked at the Winn-Dixie Store No. 2358 until June 17, 1998. McLester's separation from Winn-Dixie was voluntary. McLester left Winn-Dixie because he considered the hours assigned to him by his new supervisor, Steve Howard ("Howard") to be "slave hours." Following McLester's departure, sales and customer satisfaction at Store No. 2358 deteriorated. For most of the time relevant to this case, McLester was responsible for filling in the neighborhood of 150 prescriptions per day. That number placed his store at the high end of Winn- Dixie pharmacy productivity. 3 During the course of his employment at Winn-Dixie, McLester had occasion to report approximately a dozen instances of prescription drug fraud to the authorities, including St.Lucie County Detective Scott Silverman (Silverman). Following his resignation from Winn-Dixie, McLester worked briefly with various services which would find him work as a relief pharmacist. On the instructions of Howard, McLester was not permitted to work at any of the Winn-Dixie stores in the area. In October 1998, McLester found full-time employment with Doctors' Clinic Pharmacy in Vero Beach, a "closed pharmacy" which serves only the patients of that multi-specialty practice. During his term of employment at Winn-Dixie, McLester was assisted by about a half dozen pharmacy technicians. Pharmacy technicians are licensed by the state and must work under the close supervision of a registered pharmacist. Tasks which the law permits to be delegated to pharmacy technicians and which, in fact, are typically delegated to a pharmacy technician include ordering drugs, including controlled substances; receiving drugs and other inventory; counting and transferring drugs from their original containers to packages for individual prescriptions; shelf maintenance; department maintenance; and stocking shelves. Other tasks which pharmacy technicians may legally perform, and which were in fact performed by technicians at Winn-Dixie stores, include logging invoices into the computer system for payment; verifying orders shipped into the store; answering telephones; taking refills from patients or doctors provided that there is no change in any element of the prescription (i.e. instructions to the patient, dosage, etc.); requests to doctors to issue new prescriptions on behalf of a patient; preparing labels and delivering filled prescriptions to the pharmacist for final verification. Because of the nature of the tasks delegated to pharmacy technicians, the relationship between pharmacist and technician must be one of, as several witnesses testified, implicit trust. McLester trusted all of the pharmacy technicians with whom he worked at Winn-Dixie. One of the Winn-Dixie pharmacy technicians, Tonya Tipton ("Tipton") betrayed McLester's trust, along with the trust of the State of Florida which licensed her, Winn-Dixie which employed her, and several other pharmacists under whose supervision she worked. Weeks after McLester left Winn-Dixie, Tipton's betrayal of trust was discovered. Soon after, she was fired from Winn-Dixie and subsequently arrested for crimes she allegedly committed in and against the Winn-Dixie pharmacy. Tipton's arrest set in motion a chain of events which led to this Administrative Complaint. Following a work-related injury suffered in the early 1990s, Tipton developed a dependence upon prescription painkilling medication, including the narcotic nasal spray Stadol.4 Unbeknownst to anyone, Tipton devised a scheme by which she could steal Stadol from Winn-Dixie, and also obtain Stadol under a forged prescription. At all times prior to Tipton's firing from Winn-Dixie, she was a trusted employee. Tipton fell under suspicion when she stated to a co- worker that a package would be arriving the following day and that it should not be opened. Store employees opened the package nevertheless and discovered it contained Stadol. Thereafter, a fellow pharmacy technician followed Tipton into the ladies' room and discovered empty bottles of Stadol in the wastebasket. Confronted by store employees about her inappropriate instruction to the co-worker not to open the package, as well as the empty Stadol containers in the ladies' room, Tipton admitted only to taking one bottle of Stadol from the Winn-Dixie pharmacy. Abundant circumstantial evidence suggests that Tipton's dependence upon Stadol led her to commit more than the one offense to which she admitted. McLester had been the primary pharmacist on duty at Store No. 2358 during many of the shifts when Tipton was alleged to have illegally obtained Stadol. Following a criminal investigation by Detective Silverman and the arrest of Tipton, McLester's former supervisor, Howard, lodged a complaint against McLester with the Board of Pharmacy. In his letter of complaint, Howard characterized his complaint as an effort to protect the interests of Winn-Dixie "in case this problem was found out." Howard claimed that Mostafa Macida ("Macida"), who had replaced McLester as the store's primary pharmacist,"discovered" that Stadol was being stolen from the pharmacy but this testimony is rejected as inconsistent with the testimony of numerous individuals who, unlike Howard, had personal knowledge of the events surrounding Tipton's arrest. Macida suspected nothing and discovered nothing. Tipton's employment at Winn-Dixie began in February 1995 when she was hired as a pharmacy technician by McLester.5 In that capacity, Tipton worked not only with McLester, but also with then-Head Technician Ava Forsythe (Forsythe). Forsythe trained Tipton in the technicians' duties, including the various methods by which prescription drugs, both controlled and non-controlled, may be ordered. At all times relevant to this case, there are three ways in which Winn-Dixie pharmacies may procure drugs and medical supplies requiring prescriptions for resale to the public. The primary system is a computer-generated daily order. The system was referred to by many witnesses as "the PDX system" ("PDX"). Technicians, working under the supervision of the pharmacist, would review the order to verify that the required types and quantities of supplies were being ordered. When the order was deemed complete, "the button was pushed" and the order electronically transmitted to Winn-Dixie's major drug supplier, Bindley-Western.6 In theory, the computer would accurately track stock in over 2,000 line items. The computer was supposed to automatically add to the inventory based upon what was ordered, and subtract based upon records of what was actually dispensed to customers. In reality, the computer-generated inventory was corrupt on a daily basis. Because of the PDX system's unreliability, technicians often had to make adjustments by hand so that the computerized records would match what was actually in stock. Orders could also be manually keypunched into a unit called a Telxon, which also transmitted orders to Bindley- Western. The Telxon unit is portable. The size of a telephone, the Telxon unit at Store No. 2358 was generally kept in a drawer when not being used. Finally, drugs can be ordered from Bindley-Western and/or from one of two secondary suppliers used by Winn-Dixie from any telephone, whether or not the telephone is located in a Winn-Dixie store. None of the systems used by Winn-Dixie, either singly or in combination, had the ability to flag the fact that hundreds of bottles of Stadol had been ordered and paid for by Winn-Dixie, yet not placed on the shelves as pharmacy inventory in Store No. 2358, during the period of Tipton's employment. Under Winn-Dixie's system, it is possible for a pharmacy technician to order medications unbeknownst to the pharmacist, to have them paid for by Winn-Dixie, and to physically divert them to his possession before the medications were logged in to pharmacy inventory. Once drugs are properly entered into inventory, it is reasonable to expect that the pharmacist could be aware of large amounts of a drug being stolen from the inventory. Any single incident of placing unauthorized drug orders could take place in the two or three minutes the duty pharmacist might be absent to go to the restroom, or have his attention diverted for any reason. Silverman is an experienced police officer, having served for over two decades in various law enforcement positions in Florida. For nearly five years Silverman has been exclusively assigned to work with pharmacies and other law enforcement agencies in St. Lucie County. Silverman's job is to assist in the prevention and prosecution of crimes involving the misuse of prescription drugs. Silverman's involvement in this case began when Tipton sought him out. Tipton knew Silverman because her husband is a fellow St. Lucie County detective, and Tipton herself was a sworn St. Lucie officer. Tipton approached Silverman to confess that she had taken a bottle of Stadol from the Winn-Dixie store where she worked. Tipton's confession was not provoked by an attack of conscience. Rather, after she was fired by Winn-Dixie, she began damage control. As Silverman's investigation progressed, substantial effort was made to determine how Tipton had diverted Stadol and what, if any, other crimes may have been committed. Documents collected in the course of the investigation revealed that Tipton had developed a dependency on prescription painkillers dating to a back injury in 1990 in which she suffered a herniated disc. Tipton developed a dependency on Stadol in 1996, after dealing with pain related to the 1990 injury. Tipton claimed to Winn-Dixie security supervisor Robert Blakely ("Blakely") that she had told McLester of the problem, and that he referred her to her doctor for help. Ultimately, Silverman arrested Tipton on 17 counts of insurance fraud and one count of felony possession of a controlled substance. No evidence was offered regarding the disposition of Tipton's case. No evidence was presented of what, if any, effort was made to determine from Tipton if McLester had any complicity in her crimes. It was clear to Silverman that while Tipton had figured out a way to illegally divert Stadol to her unauthorized use, as of the date of the final hearing, "nobody knows how it was done." 7 There was conflicting testimony as to precisely how much Stadol was diverted by Tipton over the relevant period of time but Tipton's ability to obtain the drug through the use of fraudulent prescriptions and outright theft was audacious in scale. Stadol was a legend drug until June 1997 when the Drug Enforcement Agency upgraded its status to a Schedule IV controlled substance. Prior to October 19, 1996, Tipton had a legitimate prescription for Stadol. On that date, Les Gessley ("Gessley"), a relief pharmacist at Store No. 2358, approved a new Stadol prescription for Tipton under a legend number. Tipton used this approved prescription number subsequently when she herself prepared numerous unauthorized refills under this same number. Each of these unauthorized refills was listed on daily pharmacy logs certified mostly by McLester, but also by other duty pharmacists as well. Because these unauthorized prescriptions were refills rather than original prescriptions, the duty pharmacist was not required to personally view the original written prescription. McLester was the pharmacist on duty a majority of the days on which Tipton is believed to have diverted Stadol illegally. Somewhere between ten and twenty percent of the Stadol believed to have been unlawfully diverted by Tipton from Store No. 2358 was diverted after McLester had ceased to be employed there. Some of the Stadol obtained by Tipton under fraudulent prescription at Store No. 2358 was obtained on days when McLester was not the pharmacist on duty. In addition to Les Gessley and Mostafa Macida, other pharmacists on duty while Tipton was believed to have engaged in the criminal diversion of Stadol are Ted Kline and Al Leota. McLester admitted knowing Tipton had a problem with Stadol but did not know the extent of her problem. Forsythe told McLester that she thought there might be some Stadol missing from the shelves. When she shared her concern with McLester, he instructed Forsythe not to leave Tipton alone in the pharmacy. No evidence placed McLester's conversation[s] with Tipton and other parties about her use of Stadol in the context of when Tipton's alleged diversions occurred. According to Forsythe's unrebutted testimony, If you were that desperate you could order any medication you wanted on the Telxon machine or verbally order without knowledge of the pharmacist knowing what you were doing. And then when the medication comes in, you pay the invoice. You throw the invoice away. You throw the copy that you received from the computer away. The invoice is paid. The only person that will know about it will be the person at the headquarters that pays the payment on the invoice without knowing what is on it and the person gets the medication. Take the medication home via however and no one is the wiser. Winn-Dixie has no security procedures in place, such as searching handbags or packages, to prevent employee theft in the pharmacy. Winn-Dixie's ordering system is tailor-made to be abused by individuals who are, in Forsythe's words, "that desperate." It is not illegal for pharmacy technicians to fill their own prescriptions. It is possible for a pharmacy technician to fill or refill a prescription without the pharmacist knowing that had been done if he was absent from the pharmacy or had his attention diverted in some fashion. It appears that Tipton refilled her own fraudulent prescription on a number of occasions, but that her preferred method of diverting Stadol was outright theft. The Winn-Dixie system by which the pharmacies are stocked is flawed in a manner which allowed Tipton to divert Stadol without being detected by the duty pharmacist. The Department failed to show that McLester knew or should have known that Tipton had diverted Stadol to her unauthorized use at Store No. 2358.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges in the Administrative Complaint be dismissed. DONE AND ENTERED this 17th day of November, 2000, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2000.
The Issue Whether Respondent's permit to operate a pharmacy should be suspended or revoked for alleged violations of Sections 465.22(1)(c), 465.18(1)(b), 465.18(2)(b) F.S., and Rule 21S-1.14 F.A.C. At the hearing, Petitioner withdrew Count-I of the Complaint. Respondent's Motion To Dismiss Counts II and III of the Complaint at the conclusion of Petitioner's case in chief was denied.
Findings Of Fact Respondent presently holds and did so hold at the time of the events alleged in the Complaint a permit to operate a pharmacy issued by Petitioner (Stipulation.) Prior to the events alleged in the Complaint, Petitioner's agent, Vernon K. Bell, an inspector, obtained an authentic prescription from another pharmacy that had not been picked up by a customer, for use in investigations of other pharmacies. The prescription was issued by Dr. George A. Fernandez, Miami, Florida, Number 012194, dated December 11, 1975, to Fela Rivias and was for twenty-one tablets of Erythrocin, 250 miligrams. Erythrocin is an antibiotic prescription drug used for various infections (Testimony of Bell, Petitioner's Exhibit 1.) On December 19, 1975, Bell visited Respondent's pharmacy and observed that the door to the prescription area was unlocked. On December 22, 1975, at approximately 3:30 P.M., Reynaldo Santiago, another agent of the Board of Pharmacy, entered Respondent's pharmacy with the prescription referred to in paragraph 2 above that had been given to him by Bell. Santiago gave it to the cashier to be filled. He observed her go to the prescription department, open a door, and place the prescription on a counter. He then observed Hildelisa Hernandez go to the prescription department and start filling the prescription. Thereafter, Ms. Hernandez, accompanied by Mr. Jose E. Valdez, came out of the prescription area and Hernandez gave a pill bottle to the cashier. The cashier in turn gave it to Santiago for the price of $3.95 or $4.00. The bottle contained 21 tablets and a label affixed thereon contained pertinent information as set forth in the prescription that Santiago had given to that cashier, including the name of the drug, doctor, prescription number and name of patient (Testimony of Santiago, Petitioner's Exhibit 2.) Santiago took the bottle of pills outside and then he and Bell re- entered the Pharmacy. Bell identified himself to Mr. Valdez and asked him who was his registered pharmacist and if he had a pharmacist on duty. Mr. Valdez stated that Hal Glass was his pharmacist, but that he had left the store at 2:00 P.M. Bell then asked Valdez if he had filled the prescription which Santiago had taken into the store and, after some hesitation, Bell asked Hernandez if she had filled it. She replied in the affirmative. She stated that she was not a licensed pharmacist in Florida, but had been a pharmacist in Cuba. Bell then wrote a violation and left the store. Neither he nor Santiago recalled seeing a sign indicating that the prescription department was closed on December 22 (Testimony of Bell, Santiago.) Jose E. Valdez testified that although he formerly had two pharmacists at his previous pharmacy, in August or September of 1975 he was forced to cut back to one part-time pharmacist because of the bad economic situation. He conceded that Ms. Hernandez was not a registered Florida pharmacist. He also stated that he was not aware of the rules requiring that the prescription department be locked when no pharmacist was present until this incident occurred and that, in fact, the door to the prescription area had not been locked although a sign indicating that the prescription department was closed had always been used. He further testified that on February 1, 1976, he hired a full-time pharmacist who is present at all times when the pharmacy is open and that the prescription department is now always locked when she is not present.
Recommendation That a civil penalty in the sum of $250.00 be imposed against Respondent in lieu of suspension or revocation of its permit, for violation of Section 465.18(1)(b), Florida Statutes, and Rule 21S-1.14, Florida Administrative Code DONE and ENTERED this 26th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Stanley Kaplan, Esquire 404 Biscayne Building Miami, Florida Seymour M. Litman, Esquire 10 Northwest 14 Avenue Miami, Florida 33125
The Issue These two consolidated cases are both license discipline cases in which the Petitioner seeks to take disciplinary action against an individual pharmacist and a community pharmacy for various statutory violations which are alleged in separate Administrative Complaints. At the hearing the Respondents admitted some of the allegations of the Administrative Complaints. Thereafter both the Petitioner and the Respondents presented testimony and exhibits. At the conclusion of the hearing, the parties decided not to order a transcript of the hearing. The parties were allowed until November 25, 1987, within which to file their proposed recommended orders. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by the parties are contained in the Appendix which is attached to and incorpor- ated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Findings based on stipulations and admissions Respondent Gus Goldstein is, and has been at all times material hereto, a pharmacist in the State of Florida, having been issued license number PS 0005354. Respondent's last known address is 110 East Adams Street, Jacksonville, Florida 32202. Respondent Gus Goldstein is and has been at all times material hereto, designated as the prescription department manager of Center Pharmacy, a community pharmacy in the State of Florida, having been issued permit number PH 0002430 and located at 110 East Adams Street, Jacksonville, Florida 32202. On or about December 23, 1986, a pharmacy medication audit was conducted at Center Pharmacy for the period between approximately June 1, 1986, and December 23, 1986. That audit revealed that the Respondents' records for the period of June 1, 1986, through December 23, 1986, failed to account for the following: Description Bought Dispensed Unaccounted For Tylenol #3 w/codeine 4200 2102 2098 Tylenol #4 w/codeine 5000 2600 2400 Fiorinal #3 1900 1810 90 Valium 5mg. 900 380 520 (Diazepam 5mg.) Valium 10mg. 2200 1600 600 (Diazepam 10mg.) Tylenol #3 with Codeine and APAP with Codeine 30mg are "medicinal drugs" as defined in Section 465.003(7), Florida Statutes, which contain codeine, a controlled substance, in such quantity that they are included in Schedule III of Chapter 893, Florida Statutes. Tylenol #4 with Codeine and APAP with Codeine 60mg are "medicinal drugs" as defined in Section 465.003(7), Florida Statutes, which contain codeine, a controlled substance, in such quantity that they are included in Schedule III of Chapter 893, Florida Statutes. Fiorinal #3 with Codeine is a "medicinal drug" as defined in Section 465.003(7), Florida Statutes, which contains codeine, a controlled substance, in such quantity as to be included in Schedule III of Chapter 893, Florida Statutes. Valium is a brand name of a "medicinal drug" as defined in Section 465.003(7), Florida Statutes, which contains diazepam, a controlled substance, which is listed in Schedule IV of Chapter 893, Florida Statutes. Tylenol #3 with Codeine is a brand name of a "medicinal drug" as defined in Section 465.003(7), Florida Statutes, which contains a sufficient quantity of codeine, a controlled substance, to be listed in Schedule III of Chapter 893, Florida Statutes. Respondent Center Pharmacy is, and has been at all times material hereto, the permittee of Center Pharmacy, a community pharmacy, located in the State of Florida at 110 East Adams Street, Jacksonville, Florida 32202, having been issued permit number PH 0002430. Respondent Center Pharmacy has, and had at all times material hereto, Gus Goldstein, a pharmacist in the State of Florida having been issued license number PS 0005354, designated as its prescription department manager. Respondent Center Pharmacy is, and has been at all times material hereto, registered with the United States Drug Enforcement Administration. Respondent has been issued certificate of Registration Number AC 5050719. Findings based on the evidence adduced at the hearing On or about October 27, 1986, Respondent Gus Goldstein created a record which purported to be a telephone prescription (#116-450) for F.W. for Tylenol #3 with Codeine, purportedly prescribed by Dr. Samuel J. Alford, M.D. The prescription (#116-450) for F.W. for Tylenol #3 with Codeine was not authorized by Dr. Samuel J. Alford, M.D. Respondent Gus Goldstein dispensed Tylenol #3 with Codeine to F.W. without first being furnished with a prescription. Respondent Gus Goldstein knew that the purported telephone prescription (#116-450) for F.W. was a false record. During the process of dispensing drugs, normally there will be small errors in the counting of the drugs. These small errors will result in shortages in the drug inventory which cannot be accounted for. If proper record-keeping and dispensing practices are followed, the shortages resulting from these small errors normally will be in the range of from 1 percent to 2 percent of drugs dispensed; certainly no more than 3 percent of drugs dispensed. Shortages greater than 3 percent of drugs dispensed are indicative of a failure to follow proper record- keeping and dispensing practices.
Recommendation Based on all of the foregoing, I recommend that the Board of Pharmacy enter a final order in these consolidated cases to the following effect: Finding the Respondent Gus Goldstein guilty of the violations charged in Counts One, Two, and Three of the Administrative Complaint in Case Number 87-3151; Dismissing the violation charged against Gus Goldstein in Count Four of the Administrative Complaint in Case Number 87- 3151; Imposing an administrative fine against Gus Goldstein in the amount of five hundred dollars ($500.00) for each of the violations of which he is found guilty; i.e., administrative fines totaling fifteen hundred dollars ($1,500.00); Revoking Gus Goldstein's license to practice pharmacy; Finding the Respondent Center Pharmacy guilty of the violation charged in the Administrative Complaint in Case Number 87-3913; Imposing an administrative fine against Respondent Center Pharmacy in the amount of five hundred dollars ($500.00); and Revoking the permit of Center Pharmacy. DONE AND ENTERED this 9th day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 9th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-3151 AND 87-3913 The following are my specific rulings on all of the findings of fact proposed by the parties. In the rulings which follow I have rejected much of what both parties offered as proposed findings of fact due to the form of the proposals. The most frequent defect in the form is the commencement of a statement with the words "So-and-so testified," followed by a summary of the testimony. Testimony is, of course, one of the raw materials from which findings of fact are made, but (with the exception of perjury trials) summarization or quotation of testimony is hardly ever an appropriate finding of fact. Rather than summarize or quote the testimony, the parties should refine from the testimony the essential material and relevant facts and submit that refined product as their proposed findings. Findings proposed by Petitioner: Paragraph 1: Accepted. Paragraph 2: Rejected for the following reasons: First, it is a summary of testimony, rather than proposed findings of fact; second, parts of it are inconsistent with the greater weight of the evidence; and, third, most of it consists of subordinate, irrelevant, or unnecessary details. First unnumbered paragraph following Par. 2: Rejected for the first and third reasons noted immediately above. Second unnumbered paragraph following Par. 2: Rejected as a commentary on the evidence rather than a proposed finding of fact. Further, the portion following the comma is inconsistent with the greater weight of the evidence. Paragraph 3: Rejected for the same reasons as rejection of Paragraph 2. Unnumbered paragraph following Par. 3: Rejected for the following reasons: First it is a summary of the testimony, rather than proposed findings of fact, and, second, most of it consists of subordinate, irrelevant, or unnecessary details. Paragraph 4: Rejected as constituting a summary of testimony rather than proposed findings of fact. Last unnumbered paragraph: Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Findings proposed by Respondents: Paragraph 1: Accepted. Paragraph 2: Covered in part by stipulated facts. Most of the remainder rejected as subordinate or unnecessary details or as not supported by competent substantial evidence. First unnumbered paragraph following Par. 2: First three sentences rejected as summary of testimony rather than proposed findings of fact. Second and third sentences also rejected as not being supported by persuasive competent substantial evidence. The remainder of this paragraph is rejected as consisting of subordinate, irrelevant, or unnecessary details. Second unnumbered paragraph following Par 2: Rejected as constituting a summary of testimony rather than proposed findings of fact and because it constitutes subordinate, irrelevant, or unnecessary details. Paragraph 3: Rejected as irrelevant and as not supported by competent substantial evidence. First unnumbered paragraph following Par. 3: Rejected as constituting argument or legal conclusions rather than proposed findings of fact. Second unnumbered paragraph following Par. 3: Rejected as constituting argument or legal conclusions rather than proposed findings of fact. Further, portions of the arguments and conclusions are based on inferences which are not warranted by the evidence. Paragraph 4: Rejected as summary of testimony rather than proposed findings of fact and as constituting subordinate and unnecessary details. First unnumbered paragraph following Par. 4: Rejected for the same reasons as rejection of Paragraph 4. Second unnumbered paragraph following Par. 4: First sentence rejected as constituting argument rather than proposed findings of fact. Second sentence accepted in substance. Last sentence accepted. COPIES FURNISHED: Mr. Rod Presnell Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael A. Atter, Esquire 333-1 East Monroe Street Jacksonville, Florida 32202
