10-000857 Celeste Ann Donald vs. Board Of Pharmacy Status: Closed Recommended Order on Wednesday, June 30, 2010.

Summary: Petitioner failed to prove that her application for a license as a Registered Pharmacy Technician should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CELESTE ANN DONALD, )

)

Petitioner, )

)

vs. ) Case No. 10-0857

)

BOARD OF PHARMACY, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

April 26, 2010, by video teleconference in Tallahassee and

Daytona Beach, Florida, before the James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Paul Kwilecki, Esquire

327 South Palmetto Avenue

Daytona Beach, Florida 32118

For Respondent: Allison M. Dudley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner’s application for a license as a

Registered Pharmacy Technician should be approved.

PRELIMINARY STATEMENT

On December 31, 2009, Respondent, the Board of Pharmacy

(Board), filed a Notice of Intent to Deny which advised that the

Board intended to deny Petitioner Celeste Ann Donald’s

application for a license as a Registered Pharmacy Technician on

the grounds that “the Board has determined that the applicant

was convicted of unlawful sexual activity with a minor in 2008”

and “pursuant to Sections 465.016(2) and 456.072(2), Florida

Statutes.” The Notice of Intent to Deny further advised

Petitioner that she had 21 days from receipt of the Notice of

Intent to Deny within which to request an administrative hearing

pursuant to Section 120.57(1), Florida Statutes. Petitioner

timely requested a hearing and the Board transmitted the matter

to the Division of Administrative Hearings on February 17, 2010,

for assignment of an administrative law judge. Pursuant to

notice, the final hearing in this case was held on April 26,

2010, in Daytona Beach and Tallahassee, Florida.

At the hearing, Petitioner presented the testimony of

Randolph Margrave and testified on her own behalf. Respondent

presented the testimony of Kelli Ferrell, R.Ph., and offered the

application file for Petitioner, which was received into

evidence as Exhibit “R-1.” In addition, on Respondent’s

request, the undersigned took judicial notice of Florida

Administrative Code Rules 64B16-27.410 and 64B17-27.420,

(Effective January 1, 2010). The parties also offered a joint

exhibit consisting of a certified copy of Petitioner’s Order of

Sex Offender Probation, which was received into evidence as

Joint Exhibit 1.

The proceedings were recorded and a transcript was ordered.

The parties were given 20 days from the date of the filing of

the transcript within which to file their respective proposed

recommended orders. The transcript, consisting of one volume,

was filed on May 25, 2010, and the parties timely filed their

proposed recommended orders which were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. On October 5, 2009, Petitioner submitted an application

for licensure as a Registered Pharmacy Technician.

5. 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.

6. 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.

7. 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.

8. Although her position does not require Petitioner to

review patient records, she has access to patient records.

9. According to her current employer, Petitioner does an

excellent job.

10. 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.

11. Petitioner’s current employment does not require her

to have contact with the public.

12. 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.

13. 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.

14. 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.

15. 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.

16. Minors may purchase and pick-up medications from a

pharmacy.

17. A licensed Registered Pharmacy Technician may practice

at any location without restriction.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009). 1/

19. As an applicant for a license, Petitioner is asserting

the affirmative, and therefore bears the ultimate burden of

proving her entitlement to a license. Florida Dept. of

Transportation v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA

1981).

20. Petitioner’s Proposed Recommended Order suggests that

the Board has the burden of showing by clear and convincing

evidence that Petitioner’s conviction does not relate to the

practice of a Registered Pharmacy Technician. The Board,

however, does not have that burden. Because a proceeding

involving the granting or denying of an application for

licensure is not penal in nature, the burden is upon the

applicant to establish fitness for licensure by a preponderance

of the evidence. Id. ; § 120.57(1)(j), Fla. Stat. (findings of

fact based on preponderance of evidence except in penal,

licensure disciplinary, or as otherwise provided by statute).

21. While a 1994 opinion by Florida’s First District Court

of Appeal suggested that once an applicant had established

qualification for licensure by a preponderance of the evidence,

the agency could not deny the application for statutory

violations of the licensing practice act unless the agency

established those violations by clear and convincing evidence,

that opinion was overturned by the Florida Supreme Court.

Osborne Stern & Co. v. Dep’t of Banking & Finance, Division of

Securities & Investor Protection , 647 So. 2d 245, 248 (Fla. 1st

DCA 1994), approved in part and quashed in part , 670 So. 2d 932

(Fla. 1996). In overturning the First District Court of

Appeal’s opinion, the Florida Supreme Court specifically

declined to extend to licensure application proceedings the

clear and convincing standard required in disciplinary

proceedings under Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987), even where a violation of a disciplinary provision of a

licensure statute is the basis for denying an applicant’s

license. 670 So. 2d at 934.

22. Subsection (4) of Section 465.004, Florida Statutes,

creating the Board, provides that “[a]ll provisions of Chapter

456 relating to the activities of the [B]oard shall apply.

Section 456.072(2)(a), Florida Statutes, in turn, authorizes the

Board to deny a license application for any violation found in

Section 456.072(1) or the Pharmacy Practice Act.

23. Pursuant to Section 456.072(1)(c), Florida Statutes

(2009), the Board may deny an application for a license when the

applicant has been “convicted or found guilty of, or entering a

plea of guilty or nolo contendere to, regardless of

adjudication, a crime in any jurisdiction which relates to the

practice of, or the ability to practice, a licensee's

profession.”

24. Petitioner admits that she was convicted of Unlawful

Sexual Activity with a Minor. The proscription for that crime

is found in Section 794.05, Florida Statutes, 2/ which provides in

pertinent part:

(1) A person 24 years of age or older who

engages in sexual activity with a person 16

or 17 years of age commits a felony of the

second degree, punishable as provided in s.

775.082, s. 775.083, or s. 775.084. As used

in this section, “sexual activity” means

oral, anal, or vaginal penetration by, or

union with, the sexual organ of another;

however, sexual activity does not include an

act done for a bona fide medical purpose.

25. In upholding the constitutionality of Section 794.05,

Florida Statutes, the First District Court of Appeal, in Wright

v. State , 739 So. 2d 1230, 1232 (Fla. 1st DCA 1999), noted:

In regards to section 794.05 , the

legislature limited criminal responsibility

to persons twenty-four years of age and over

because the legislature felt that persons in

this group were more likely than others to

understand the consequences of their actions

and to cause harm to minors who cannot

appreciate the seriousness of their

activities. Therefore, the age limitation

in section 794.05 is not arbitrary when

balanced against the goals of protecting

minors from sexual exploitation.

Accordingly, we will not substitute our

judgment for that of the legislature. We,

therefore, find that the statute is

reasonably related to the goal of protecting

minors from sexual exploitation by adults

and its age restriction is constitutional.

Id. (Emphasis in original).

26. As a result of her conviction, Petitioner is

classified as a sexual offender under Section

943.0435(1)(a)1.a., Florida Statutes. Section 943.0435(12),

Florida Statutes, provides in pertinent part:

The Legislature finds that sexual offenders,

especially those who have committed offenses

against minors, often pose a high risk of

engaging in sexual offenses even after being

released from incarceration or commitment

and that protection of the public from

sexual offenders is a paramount government

interest. Sexual offenders have a reduced

expectation of privacy because of the

public's interest in public safety and in

the effective operation of government.

27. While Petitioner asserts that she and her daughter

sought a restraining order against her daughter’s boyfriend,

Petitioner did not submit any documentary evidence in that

regard in this proceeding, and there is no evidence that she

presented such evidence or evidence of the alleged threat to the

Florida Seventh Judicial Circuit Court which convicted her and

placed her on probation for her crime.

28. In fact, the excuse asserted by Petitioner in this

proceeding (that she was intimidated and coerced into committing

an unlawful sexual act with a minor) is inconsistent with the

Circuit Court’s imposition of $425.00 restitution against

Petitioner and in favor of the 17-year-old victim. Therefore,

Petitioner’s assertion that she was coerced to commit her

offense is afforded no weight.

29. In construing whether a crime “related to” a

456.072(1)(c), Florida Statutes, the First District Court of

Appeal, in a case involving revocation of a chiropractor’s

license where the burden was on the agency (as opposed to an

application for a license where the burden is on the

Petitioner), observed:

Several cases demonstrate that, although the

statutory definition of a particular

profession does not specifically refer to

acts involved in the crime committed, the

crime may nevertheless relate to the

profession. In Greenwald v. Department of

Professional Regulation , the court affirmed

the revocation of a medical doctor’s license

after the doctor was convicted of

solicitation to commit first-degree murder.

501 So. 2d 740 (Fla. 3d DCA 1987) . The

Fifth District Court of Appeal has held that

although an accountant’s fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocation

of the accountant’s license for being

convicted of a crime that directly relates

to the practice of public accounting. Ashe

v. Dep’t of Prof’l Regulation, Bd. of

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985) . We held in Rush v. Department of

Professional Regulation, Board of Podiatry ,

that a conviction for conspiracy to import

marijuana is directly related to the

practice or ability to practice podiatry.

448 So. 2d 26 (Fla. 1st DCA 1984) . These

cases demonstrate, in our view, that

appellee did not err by concluding Doll’s

conviction was “related to” the practice of

chiropractic medicine or the ability to

practice chiropractic medicine. We

therefore affirm appellee’s actions finding

appellant in violation of section

456.072(1)(c) and revoking appellant’s

license.

Doll v. Dep’t of Health , 969 So. 2d 1103, 1106 (Fla. 1st DCA

2007). (Emphasis in original).

30. The duties of a Registered Pharmacy Technician are

described in Florida Administrative Code Rule 64B16-27.420, as

follows:

(a) Retrieval of prescription files,

patient files and profiles and other such

records pertaining to the practice of

pharmacy;

(b) Data Entry;

(c) Label preparation;

(d) The counting, weighing, measuring,

pouring and compounding of prescription

medication or stock legend drugs and

controlled substances, including the filling

of an automated medication system;

(e) Initiate communication to a prescribing

practitioner or their medical staffs (or

agents) regarding patient prescription

refill authorization requests. For the

purposes of this section “prescription

refill” means the dispensing of medications

pursuant to a prescriber’s authorization

provided on the original prescription;

(f) Initiate communication to confirm the

patient’s name, medication, strength,

quantity, directions and date of last

refill;

(g) Initiate communication to a prescribing

practitioner or their medical staff (or

agents) to obtain clarification on missing

or illegible dates, prescriber name,

brand/generic preference, quantity, DEA

registration number or license numbers; and

(h) May accept authorization for a

prescription renewal. For the purposes of

this section, “prescription renewal” means

the dispensing of medications pursuant to a

practitioner’s authorization to fill an

existing prescription that has no refill.

31. Considering the duties of a Registered Pharmacy

Technician set forth above, together with the probationary terms

imposed upon Petitioner for her conviction of Unlawful Sexual

Activity with a Minor, as well as the nature of the offense and

holding in Doll , supra , it is concluded that Petitioner’s crime

directly relates to her ability to practice as a Registered

Pharmacy technician.

32. Specifically, the Order of Sex Offender Probation

entered against Petitioner on May 22, 2008, imposed conditions

that are incompatible with the duties of one licensed as a

Registered Pharmacy Technician. Compare Finding of Fact 3,

supra , with the duties set forth in Florida Administrative Code

Rule 64B16-27.420 (quoted above).

33. Although Petitioner does not currently work in a

setting where she has direct contact with the public, as a

licensed Registered Pharmacy Technician, Petitioner would not be

restricted from public access and Petitioner could obtain

employment in other settings that would bring her in direct

contact with patients, including minors. Such access would be

contrary to the terms of Petitioner’s current probation, as well

as the designs of the licensing statute -- to protect the

public. Cf. Goldfarb v. Virginia State Bar , 421 U.S. 773, 792

(1975)(“We recognize that the States have a compelling interest

in the practice of professions within their boundaries, and that

as part of their power to protect the public health, safety, and

other valid interests they have broad power to establish

standards for licensing practitioners and regulating the

practice of professions.”).

34. In sum, Petitioner failed to prove that her

application for a license as a Registered Pharmacy Technician

should be approved.

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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of June, 2010.

ENDNOTES

1/ Unless otherwise indicated, all references to Florida

Statutes are to the 2009 version.

2/ Section 794.05, Florida Statutes, was last revised in 1996.

COPIES FURNISHED :

Paul Kwilecki, Jr., Esquire

327 South Palmetto Avenue

Daytona Beach, Florida 32114

Allison M. Dudley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Rebecca Poston, R.Ph., Executive Director

Board of Pharmacy

Department of Health

Division of Medical Quality

Assurance Boards

4052 Bald Cypress Way

Tallahassee, Florida 32399

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.