98-001093 Board Of Pharmacy vs. Patrick O. Ojo Status: Closed Recommended Order on Tuesday, September 15, 1998.

Summary: Pharmacy technician ratio exceeded 1:1 without Board approval and pharmacy technician was not wearing name tags. Recommended letter of guidance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PHARMACY, )

)

Petitioner, )

)

vs. ) Case No. 98-1093

)

PATRICK O. OJO, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above styled case on July

8, 1998, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Patrick Ojo, pro se

2750 Pierce Street

Hollywood, Florida 33602

STATEMENT OF THE ISSUES

At issue is whether Respondent committed the offenses set

forth in the Administrative Complaint and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By a four-court Administrative Complaint, Petitioner charged

Respondent, a licensed pharmacist, with a violation of various

provisions of Chapter 465, Florida Statutes, the "Florida

Pharmacy Act." The complaint read in pertient part, as follows:

5. At all times material hereto,

Respondent was employed by A & N Discount

Pharmacy at 900 Alton Road, Miami Beach,

Florida 33139.

6. Respondent served as the Pharmacy

Manager for A & N Discount Pharmacy.

7. On or about June [24], 1997, an

inspection of A & N Discount Pharmacy, place

of Respondent's employment, was conducted.

8. Investigation revealed that the

pharmacy was operating with 2:1

pharmacist/technician ratio without approval

from the board.

9. Investigation revealed that the

pharmacy technicians were not wearing any

form of identification.

10. Investigation revealed that Respondent

failed to display a renewal certificate on

the wall.

11. Investigation revealed that the

Respondent failed to keep the prescription

department open a minimum of 40 hours per

week. The facility was open only 24 hours

per week, and was closed on Thursdays and

Fridays.

COUNT I

12. Petitioner realleges and incorporates

by reference the allegations contained in the

foregoing paragraphs as if fully stated

herein.

13. Based on the foregoing, the

Respondent's license to practice pharmacy in

the State of Florida is subject to discipline

pursuant to Section 465.016(1)(n), Florida

Statutes, by violating Rule 64B16-27.100,

Florida Administrative Code, which states

that the wall certificate and license of each

pharmacist engaged in the practice of the

profession of pharmacy as defined by Section

465.003(12), Florida Statutes, in any

pharmacy shall be displayed, together with

the current renewal certificate in a

conspicuous place in or near the prescription

department, in such a manner that said the

license can easily be read by patrons of said

establishment.

COUNT II

14. Petitioner realleges and incorporates

by reference the allegations contained in

paragraphs one (1) through eleven (11) as

fully stated herein.

15. Based on the foregoing, the

Respondent's license to practice pharmacy in

the State of Florida is subject to discipline

pursuant to Section 465.016(1)(n), Florida

Statutes, by violating Rule 64B16-27.410,

Florida Administrative Code, which states

that pharmacy technicians may assist a

Florida licensed pharmacist in performing

professional services within a community

pharmacy or institutional pharmacy

environment provided that no licensed

pharmacist shall supervise more than one

pharmacy technician unless otherwise

permitted by the Florida Board of Pharmacy.

COUNT III

16. Petitioner realleges and incorporates

by reference the allegations contained in

paragraphs one (1) through eleven (11) as

fully stated herein.

17. Based on the foregoing, the

Respondent's license to practice pharmacy in

the State of Florida is subject to discipline

pursuant to Section 465.016(1)(n), Florida

Statutes, by violating Rule 64B16-27.410,

Florida Administrative Code, which states the

requirement for all pharmacy technicians to

identify themselves as pharmacy technicians

by wearing a type of identification badge

that is clearly visible which specifically

identifies the employee by name and by status

as a "pharmacy technician".

COUNT IV

18. Petitioner realleges and incorporates

by reference the allegations contained in

paragraph one (1) through eleven (11) as

fully stated herein.

19. Based on the foregoing, the

Respondent's license to practice pharmacy in

the State of Florida is subject to discipline

pursuant to Section 465.016(1)(n), Florida

Statutes, by violating Rule 64B16-28.404,

Florida Administrative Code, which states

that any person who receives a community

pharmacy permit pursuant to Section 465.018,

Florida Statutes, and commences to operate

such an 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 a minimum of five (5) days per week.

In its post-hearing submittal Petitioner concedes,

consistent with the proof, that the Respondent was recently

licensed and, consequently, the license he had on display was

current and without need of a renewal certificate. Therefore,

Respondent did not violate Section 465.016(1)(n), Florida

Statutes, by violating Rule 64B16-27.100, Florida Administrative

Code, as alleged in Count I of the Administrative Complaint.

Consequently, that count should be dismissed without the need for

further discussion.

For the violations remaining, Petitioner proposed that one

or more of the following penalties be imposed:

. . . imposition of an administrative fine

not to exceed $1,000 for each offense,

issuance of a reprimand, placement of the

Respondent on probation, and/or any other

relief that the Board deems appropriate.

Respondent filed an election of rights which disputed the

factual allegations contained in the Administrative Complaint,

and requested a formal hearing pursuant to Sections 120.569 and

120.57(1), Florida Statutes. Consequently, Petitioner referred

the matter to the Division of Administrative Hearings for the

assignment of an administrative law judge to conduct the formal

hearing Respondent had requested.

At hearing, Petitioner called Harold Gluck and Guillermo

Tejeda, as witnesses, and Petitioner's Exhibits 1 through 3 were

received into evidence. Respondent testified on his own behalf,

and Respondent's Exhibits 1 through 4 were received into

evidence.

The hearing transcript was filed August 10, 1998, and the

parties were accorded 10 days from that date to file proposed

recommended orders. Petitioner elected to file such a proposal

and it has been duly considered.

FINDINGS OF FACT

Respondent's license and employment

1. Respondent, Patrick O. Ojo, is now, and was at all times

material hereto, licensed as a pharmacist by the State of

Florida, having been issued license number PS 0032023.

2. At all times pertinent hereto, Respondent was under

contract with Healthcare Consultants of Central Florida, Inc.,

d/b/a Healthcare Consultants Pharmacy Staffing (Healthcare

Consultants) , a corporation engaged in "the business of placing

licensed pharmacists on a temporary and permanent basis" with

businesses in need of their services. Pursuant to the agreement,

Healthcare Consultants would "from time to time during the term

of . . . [the] agreement offer [the] pharmacist the right to

perform pharmaceutical services at the location of various

clients, " which the pharmacist had the option to accept or

reject. If accepted, for temporary services provided under the

agreement, Healthcare Consultants would pay the pharmacist $25.50

per hour, except for legal holidays when the rate would be $41.25

per hour.

3. Pursuant to a referral from Healthcare Consultants,

Respondent accepted a position, on a temporary basis, as pharmacy

manager for A & N Discount Pharmacy on June 2, 1997. A & N

Discount Pharmacy is a community pharmacy licensed by Petitioner

pursuant to Section 465.018, Florida Statutes, and located at 900

Alton Road, Miami Beach, Florida.

The pharmacy inspection

4. On June 24, 1997, Harold Gluck, a senior pharmacist

employed by the Agency for Health Care Administration (AHCA),

entered A & N Discount Pharmacy to conduct a routine community

pharmacy inspection. Pertinent to this case, that inspection

noted three deficiencies or violations against the pharmacy

business, to wit: (1) there was a 2:1 technician to pharmacist

ratio, without prior approval of the Board of Pharmacy (a

perceived violation of Rule 64B16-27.410, Florida Administrative

Code); (2) the two technicians were not wearing identification

badges ( a perceived violation of Rule 64B16-27.410, Florida

Administrative Code); and (3) the prescription department was

only open 24 hours per week, as opposed to 40 hours per week (a

perceived violation of Rule 64B16-28.404, Florida Administrative

Code). Mr. Gluck's visual observations are supported by

compelling proof, and are credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these

proceedings. Sections 120.569, 120.57(1),and 120.60(5), Florida

Statutes.

6. Where, as here, Petitioner proposes to take punitive

action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence. Section

120.57(1)(h), Florida Statutes, (1997), and Department of Banking

and Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

That standard requires that "the evidence must be found to be

credible; the facts to which the witnesses testify must be

distinctly remembered; the testimony must be precise and explicit

and the witnesses must be lacking in confusion as to the facts in

issue. The evidence must be of such weight that it produces in

the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established." Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983)

7. Regardless of the disciplinary action sought to be taken

it may be based only upon the offenses specifically alleged in

the administrative complaint. See Kinney v. Department of

State , 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v.

Department of Professional Regulations, Board of Medical

Examiners , 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v.

Department of Professional Regulations , 458 So. 2d 844 (Fla. 2d

DCA 1984). Finally, in determining whether Respondent violated

the provisions of Section 475.25(1), as alleged in the

Administrative Complaint, one "must bear in mind that it is, in

effect, a penal statute. . . . This being true, the statute must

be strictly construed and no conduct is to be regarded as

included within it that is not reasonably proscribed by it."

Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923,925 (Fla. 1st DCA 1977)

8. Pertinent to this case, Section 465.016(1), Florida

Statutes, provides that the following act shall constitute

grounds for which the Board of Pharmacy may take disciplinary

action against a licensee:

(n) Violating a rule of the board or

department.

9. For the perceived violation of Subsection 465.016(1)(n),

Petitioner contends Respondent failed to comply with Rules 64B16-

27.410 (Counts II and III) and 64B16-28.404 (Count IV), Florida

Administrative Code. 1

10. Pertinent to Counts II and III, Rule 64B16-27.410,

Florida Administrative Code, provides:

Pharmacy technicians may assist a Florida

licensed pharmacist in performing

professional services within a community

pharmacy or institutional pharmacy

environment provided that no licensed

pharmacist shall supervise more then one

pharmacy technician unless otherwise

permitted by the Board of Pharmacy. A

pharmacist's supervision of a pharmacy

technician in a 1:1 ratio working environment

requires that a pharmacy technician be under

the direct and immediate personal supervision

of a Florida licensed pharmacist. All

pharmacy technicians shall identify

themselves as pharmacy technicians by wearing

a type of identification badge that is

clearly visible which specifically identifies

the employee by name and by status as a

"pharmacy technician", and in the context of

telephone or other forms of communication,

pharmacy technicians shall state their names

and verbally identify themselves (or

otherwise communicate their identities) as

pharmacy technicians. Pursuant to the

direction of the licensed pharmacist,

pharmacy technicians may engage in the

following functions to assist the licensed

pharmacist:

(1) Prepackaging and labeling of unit and

multiple dose packages pursuant to

appropriate procedures. The pharmacist shall

directly supervise and conduct in-process and

final checks, and affix his/her initials to

the record. Such pharmacy technicians

activities would include the maintenance of

control records. . . .

11. Here, Petitioner demonstrated with the requisite degree

of certainty that Respondent violated the provisions of Rule

64B16-27.410, Florida Administrative Code, by supervising more

than one pharmacy technician without the approval of the Board

of Pharmacy, and that the pharmacy technicians, on the date of

inspection, failed to wear an identification badge which

specifically identified the employees by name and by their status

as pharmacy technicians. Consequently, Petitioner demonstrated

that Respondent violated the provisions of Rule 64B16-27.410,

Florida Administrative Code, and therefore Section 465.016(1)(n),

Florida Statutes, as alleged in Counts II and III of the

Administrative Complaint.

12. Pertinent to Count IV, Rule 64B16-28.404, Florida

Administrative Code, provides:

Any person who receives a community pharmacy

permit pursuant to Section 465.018, Florida

Statutes, and commences to operate such an

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 a minimum of five (5)days per

week .. . .

13. The clear wording of Rule 64B16-28.404, Florida

Administrative Code, places the obligation to keep the

prescription department of the establishment open for a minimum

of 40 hours per week and a minimum of 5 days per week on the

"person who receives a community pharmacy permit pursuant to

Section 465.018, Florida Statutes". Here, the community pharmacy

pertinent holder was A & N Discount Pharmacy (license number

13673) and not the Respondent. Consequently, Petitioner has

failed to demonstrate Respondent violated or failed to comply

with the provisions of Rule 64B16-28.404, Florida Administrative

Code, as alleged in Count IV of the Administrative complaint. 2

14. Having reached the foregoing conclusion, it remains to

resolve the appropriate penalty that should be imposed.

Pertinent to this issue Rule 64B16-30.001, Florida Administrative

code, sets forth the disciplinary guidelines, as well as the

mitigating and aggravating circumstances to be considered, in

assessing a penalty for a violation of Chapter 465, Florida

Statutes. The rule fails, however, to specifically address a

violation of Section 465.016(n), Florida Statutes, based on a

violation of Rule 64B16-27.410, Florida Administrative Code. See

Rule 64B16-30.001(2)(k), Florida Administration Code. 3

15. Here, given the lack of severity of the violation

shown, an appropriate penalty should not exceed the issuance of a

letter of guidance. See e.g., Rules 64B16-30.001(2)(k)1 and

64B16-30.002(1), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered which dismisses

Counts I and IV of the Administrative Complaint; finds Respondent

guilty of violating Section 465.016(1)(n), Florida Statutes, by

failing to comply with Rule 64B16-27.410, Florida Administrative

Code, as alleged in Counts II and III of the Administrative

Complaint; and, which imposes, as a penalty for such violations,

the issuance of a letter of guidance.

DONE AND ENTERED this 15th day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of September, 1998.

ENDNOTES

1/ As heretofore noted in the Preliminary Statement, Petitioner

acknowledged that the perceived violation of Subsection

465.016(1)(n) , by failing to comply with Rule 64B16-27.100,

Florida Administrative Code (Count I) was not shown, and Count I

should be dismissed.

2/ A review of Chapter 465, Florida Statutes, and Chapter 64B16,

Florida Administrative Code, fails to reveal that any such

obligation or responsibility is imposed on the pharmacist or

prescription department manager. See, Section 465.01, Florida

Statutes, and Rule 64B16-27.104, Florida Administrative Code.

This conclusion was apparently shared by Petitioner since its

proposed recommended order makes no mention of a violation of

such rule by the Respondent.

3/ In its proposed recommended order Petitioner cites Rule

64B16-30.001(2)(n), Florida Administrative Code, as the

appropriate guideline. That provision is, however, clearly not

applicable.

COPIES FURNISHED:

Joseph S. Garwood, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Patrick O. Ojo, pro se

2750 Pierce Street, Apt. 19

Hollywood, Florida 33602

Angela T. Hall, Agency Clerk

Department of Health, Bin A02

2020 Capital Circle Southeast

Tallahassee, Florida 32399-1703

John Taylor, Executive Director

Board of Pharmacy

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.