07-001437PL Department Of Health, Board Of Pharmacy vs. Denis R. Bousquet, R.Ph Status: Closed Recommended Order on Friday, August 10, 2007.

Summary: The fine and costs are not dischargeable in bankruptcy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PHARMACY , )

)

Petitioner , )

)

vs. ) Case Nos. 07 - 1436PL

) 07 - 143 7PL

DENIS R. BOUSQUET, R.PH , )

)

Respondent . )

)

RECOMMENDED ORDER

On June 20, 2007, a formal administrative hearing in this

case was held in Tallahassee, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Patrick L. Butler, Esquire

Bill i e Jo Owens, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Denis R. Bousquet, pro se

5125 Cedar Springs Drive, Unit 203

Naples, Florida 34110

STATEMENT OF THE ISSUE S

The issue s in this case are whether the allegations set

forth in the Administrative Complaints are correct , and , if so,

wh at penalty should be imposed.

PRELIMINARY STATEMENT

On or about July 3, 2006, the Department of Health, Board

of Pharmacy (Petitioner) , filed two Administrative Complaints

against Denis R. Bousquet (Respondent) , alleging that the

Respondent had violated th e requirements of a Final Order

(DOH 05 - 0782 - S - MQA) filed May 3, 2005, which resolved two

previous disciplinary actions against the Respondent

(Petitioner's Case N os. 2002 - 25746 and 2002 - 27092) . The

Respondent requested an administrative hearing. The Pe titioner

forwarded the dispute to the Division of Administrative

Hearings, which scheduled the matter for hearing.

The Administrative Complaint filed in DOAH Case

No. 07 - 1436PL incorrectly alleges that the referenced Final

Order imposed a penalty of $12 ,652.66 (comprised of a fine

of $2,000 and costs of $10,652.66) to be paid within six months

of the filing of the Final Order and that the Respondent failed

to pay the fine or costs.

The Administrative Complaint filed in DOAH Case

No. 07 - 1437PL correctly alleges that the referenced Final Order

imposed a penalty of $12,852.66 (comprised of a fine of $2,000

and costs of $10,852.66) and further imposed a license

suspension followed by reinstatement with a period of

probationary restrictions. Such restrictio ns included the

requirement that the Respondent (or his employer) file various

reports on a scheduled basis with the Petitioner's compliance

officer. The Administrative Complaint alleges that the

Respondent failed to submit the required reports.

At the he aring, the Petitioner presented the testimony of

the R espondent and of Cheryl Sellers and had E xhibits 1

through 16 admitted into evidence. The Respondent testified on

his own behalf, presented the testimony of Cheryl Sellers, and

had E xhibits 1 through 4 admitted into evidence.

A T ranscript of the hearing was filed on July 9, 2007 . The

Petitioner filed a Proposed Recommended Order. The Respondent

filed a letter , which has been treated as a Proposed Recommended

Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged, pursuant to

Chapter 465, Florida Statutes (2006) , with regulation of the

practice of pharmacy.

2. At all times material to this case, the Respondent was

a licensed pharmacist in the State of Florida, holding license

number PS 26142.

3. On May 3, 2005, a Final Order (DOH - 05 - 0782 - S - MQA) was

filed based on the stipulated resolution of disciplinary

proceedings initiated against the Respondent by the Petitioner

in DOH Case Nos. 2002 - 27092 and 2002 - 25746.

4. The Final Order impos ed a suspension of the

Respondent's license as follows:

Respondent's license to practice pharmacy

shall be suspended until such time as

Respondent petitions and appears before the

Board and can demonstrate that he is able to

practice pharmacy with skill an d safety to

patients. Proof of his ability to practice

safely shall include an evaluation of

respondent by the Professional Resources

Network (PRN) and a recommendation from PRN

to the Board that Respondent can practice

pharmacy with reasonable skill and safety to

patients.

5. The Final Order imposed a probationary period as

follows:

Upon the termination of suspension of

Respondent's license, Respondent's license

shall be placed on probation concurrent with

the PRN contract or three (3) years

whichever i s longer. If, after completing

an evaluation of Respondent, the PRN deems

it necessary for Respondent to execute a

contract for supervision and/or treatment,

the three - year probationary period shall run

concurrent with the PRN's contract. During

the peri od or probation Respondent shall be

subject to the following terms and

conditions:

a. Respondent or his employer shall submit

written reports to the Compliance Officer at

the Board office. The written reports shall

contain Respondent licensee's name, li cense

number, current address and phone number;

current name, address and phone number of

each pharmacy in which Respondent is engaged

in the practice of pharmacy; the names of

all pharmacists, pharmacy interns, pharmacy

technicians, relief pharmacists, an d

prescription department managers working

with the Respondent. These reports shall be

submitted to the Compliance Officer every

three (3) months in a manner as directed by

the Compliance Officer.

* * *

e. Respondent shall submit documentation

evidencing that his employer, or if employed

as a relief pharmacist, his supervision

pharmacists(s) and the relief agency, have

been provided with a copy of the Final Order

describing these probationary terms within

ten (10) days of the entry of the Final

Order or upon initiation of employment.

f. Respondent shall ensure that his

employer or, if employed as a relief

pharmacist, the supervising pharmacist at

each pharmacy at which the Respondent works,

submits written reports to the Compliance

Officer fo r the Board of Pharmacy. These

reports shall contain: the name, current

address, license number, and telephone

number o f each pharmacy intern, pharmacy

technician, relief pharmacist, and

prescription department manager working with

the Respondent in the prescription

department; a brief description of

Respondent's duties and responsibilities;

and Respondent's work schedule. These

reports shall be submitted by the employer

to the Compliance Officer every three (3)

months in a manner directed by the Board.

6. The Final Order imposed an administrative fine of

$2,000.

7. In the stipulation for settlement of the disciplinary

cases, the assessment of costs was addressed as follows:

Respondent agrees to reimburse the

Department for any administrative costs

i ncurred in the investigation, prosecution,

and preparation of this case, not to exceed

eleven thousand dollars ($11,000). The

total amount of the costs will be assessed

at the time the stipulation is presented to

the Board. The fine and costs are to be

p aid by the Respondent . . . within sixty

(60) days of the filing of a Final Order

accepting and incorporating this Agreement.

8. The copy of the stipulation admitted into evidence at

the hearing included a handwritten notation related to the time

for p ayment of the fine and costs and appears to indicate that

the 60 - day deadline for payment was extended to six months. The

source of the handwriting was unclear ; but in any event, the

Final Order adopted the agreed stipulation and assessed costs of

$10,852 .66. The Final Order extended the deadline for payment

of the costs to six months from the date of the Final Order, but

did not specifically reference the deadline for payment of the

administrative fine.

9. The evidence establishes that both the fine and the

assessed costs were to be paid within six months of the date of

the Final Order, or by November 2, 2005.

10. The evidence establishes that the Respondent paid

neither the fine nor the assessed costs by the November 2, 2005 ,

deadline.

11. There is no evidence that the Respondent has made any

attempt to pay any portion of the financial penalty, and the

$12,852.66 remained unpaid at the time of the administrative

hearing.

12. The Respondent's suspension was lifted pursuant to an

Order of Reinstatement filed June 28, 2005, at which time the

probationary period began.

13. According to the Respondent's Responses to the

Petitioner's First Request for Admissions, the Respondent was

placed by "Healthcare Consultants" to work in relief status at

the Winn - Dixi e #736 pharmacy and at the Winn - Dixie #741 pharmacy

for a total of five days during the month of August 2005.

14. According to the terms of the stipulation as adopted

by the Final Order, the Respondent's first quarterly report was

due three months followi ng the beginning of the probationary

period, or approximately September, 28, 2005.

15. Cheryl Sellers, a c ompliance o fficer for the

Petitioner, was assigned the responsibility of monitoring the

Respondent's compliance with his obligations under the May 3,

2005 , Final Order.

16. The Respondent had several extended telephone

conversations with Ms. Sellers shortly after the Respondent's

probationary period began. During the conversations, the

specific disciplinary requirements of the stipulation and Final

O rder were discussed at length.

17. Additionally, in 1997, the Petitioner had incurred a

substantially similar penalty, including a suspension, a fine,

and compliance with quarterly reporting requirements. It is

reasonable to presume that the Respondent w as aware of, and

understood, his obligations under the May 3, 2005 , Final Order.

18. As was her standard practice, Ms. Sellers sent a

package of information to licensees with disciplinary

restrictions, including various forms, related to compliance

with r equirements set forth by Final Orders. The package was

mailed by regular mail to the Petitioner on August 4, 2005 ; but

for reasons unknown, the information was not delivered to the

Respondent and was returned to the Petitioner by the postal

service. The package was not re - mailed to the Respondent until

October 12, 2005.

19. The Respondent filed his quarterly reports on

October 19, 2005, several weeks after the deadline had passed.

20. Apparently the first Employer's Quarterly Report was

completed by an individual identified as Robert Miller,

presumably employed by Healthcare Consultants, an otherwise

unidentified entity which supposedly placed the Respondent in

the Winn - Dixie pharmacies for the August 2005 employment.

Mr. Miller was not the pharmacist in charge of the Winn - Dixie

units where the Respondent had been employed.

21. By letter dated October 21, 2005, Compliance Officer

Cheryl Sellers notified the Respondent that he was "not in

compliance" with the May 3, 2005 , Final Order and stated as

foll ows:

Guidelines for submitting Employer Quarterly

Reports were sent to you on October 12,

2005, the Employer's Quarterly Report from

Robert Miller received on October 19, 2005,

is not acceptable. Efren Rivera the PDM at

the Winn Dixie store #736 is the ap propriate

person to complete this form. [ sic ]

22. The Employer's Quarterly Report subsequently submitted

by Efren Rivera was dated and notarized on November 1, 2005, and

was filed thereafter.

23. The Respondent filed for Chapter 7 bankruptcy in late

20 05 and was discharged from debt on January 31, 2006. The

Respondent has asserted that his obligation to pay the

administrative fine and assessed costs was discharged through

the bankruptcy.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings h as

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (200 6 ).

25. The Petitioner has the burden of establishing the

allegations of the Administrative Complaints by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). Clear and convincing

evidence is that which is credible, precise, explicit, and

lacking 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 the firm belief of conviction, without hesitancy, as to the

truth of the allegations. Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983). The Peti tioner has met the burden.

26. Section 465.016, Florida Statutes (2005), provides in

relevant part as follows:

465.016 Disciplinary actions. --

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(n) Violating a rule of the board or

department or violating an order of the

board or department previously entered in a

disciplinary hearing.

27. The Respondent clearly failed to comply with the

disciplinary requirements of the Final Order filed May 3, 2005.

The Respondent failed to pay the fine and assessed costs and

failed to timely meet the reporting requirements set forth in

the Final Order. It should be noted that the discipline imposed

in that case was explicitly s et forth in a stipulation that was

executed by the parties and upon which the Final Order was

based.

28. The Respondent asserts that his obligation to pay the

administrative fine and assessed costs identified in the May 3,

2005 , Final Order was discharged by the bankruptcy filing. The

Respondent has cited no legal authority in support of the

assertion, and it is rejected.

29. Eleven U.S.C. Section 523(a)7, provides that, insofar

as is material to this case, a discharge in bankruptcy does not

discharge an individual debtor from any debt " to the extent such

debt is for a fine, penalty, or forfeiture payable to and for

the benefit of a governmental unit, and is not compensation for

actual pecuniary loss . . . ."

30. The Department of Health is a government al unit within

the executive branch of the government of the State of Florida.

§ 20.43, Fla . S tat . (200 5 ) . The Board of Pharmacy is a unit of

the Division of Medical Quality Assurance located within the

Department of Health. § 20.43(3)(g)10., Fla . Stat. (200 5 ).

31. In this case, the $2,000 fine, payable to and for the

benefit of a governmental unit, is clearly exempted from

dischargeable debt, and the Respondent remains obligated to pay

the fine.

32. The courts have uniformly held that assessments of

p rosecutorial costs in criminal cases are properly classified as

fines and are not dischargeable in bankruptcy. Such

classification has been extended to disciplinary actions against

Florida - licensed attorneys, where the goal of the disciplinary

action was to protect the public and the assessment of costs was

penal in nature and not compensation for actual pecuniary loss .

In re Cillo , 165 B.R. 46 (M.D. Fla. 1994) .

33. The purpose of the Department of Health is to promote

and protect the health of all res idents and visitors in the

state, and includes the regulation of health practitioners as

necessary for the preservation of the health, safety, and

welfare of the public. § 20.43(1)(m), Fla . Stat. (200 5 ).

34. The Legislature has stated that the practice o f

pharmacy is a learned profession and had further stated that the

" sole legislative purpose for enacting this chapter is to ensure

that every pharmacist practicing in this state and every

pharmacy meet minimum requirements for safe practice. "

§ 465.002, Fla . Stat. (200 5 ).

35. The Petitioner is specifically authorized to assess

prosecutorial costs by S ubs ection 456.072(4), Florida Statutes

(200 5 ) , which states that costs shall be assessed " [i]n addition

to any other discipline imposed through final order ," clearly

indicating that costs are assessed as a form of disciplinary

penalty, not simply to reimburse the governmental agency for

expenses.

36. Accordingly, the assessed costs of $10,852.66 are

properly classified as a penalty in addition to the fine,

suspension , and probation imposed in the 2005 Final Order and is

not dischargeable in bankruptcy.

37. S ubs ection 456.072 (2) , Florida Statutes (2005),

addresses the disciplinary penalties available to the Petitioner

and provides as follows:

(2) When the b oard, or the department when

there is no board, finds any person guilty

of the grounds set forth in subsection (1)

or of any grounds set forth in the

applicable practice act, including conduct

constituting a substantial violation of

subsection (1) or a vio lation of the

applicable practice act which occurred prior

to obtaining a license, it may enter an

order imposing one or m ore of the following

penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspensi on or permanent revocation of a

license.

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, restricting the licensee to work

only under designated conditions or in

certain settings, restricting the licensee

from performing or providing designated

clinical and administrative services,

restricting the licensee from practicing

more than a designated number of hours, or

any other restriction found to be necessary

for the protect ion of the public health,

safety, and welfare.

(d) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense. If the violation is for

fraud or making a false or fraudulent

representation, the board, or the department

if there is no board, must impose a fine of

$10,000 per count or offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

w hen there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine in

accordance with s. 381.0261 for violations

regarding patient rights.

(i) Refund of fees billed and collected

from the patient or a third party on behalf

of the patient.

(j) Requirement that the practitioner

undergo remedial education.

In determining what action is appropriate,

the board, or department when there is no

board, must first consider what sanctions

are nece ssary to protect the public or to

compensate the patient. Only after those

sanctions have been imposed may the

disciplining authority consider and include

in the order requirements designed to

rehabilitate the practitioner. All costs

associated with comp liance with orders

issued under this subsection are the

obligation of the practitioner.

38. Florida Administrative Code Rule 64B16 - 30.001(2)(k)

sets forth disciplinary guidelines specifically applicable to a

violation of S ubs ection 465.016(1)(n), Florid a Statutes. The

rule establishes a minimum penalty of a $2,500 fine and one year

of probation and a maximum penalty of revocation.

39. Florida Administrative Code Rule 64B16 - 30.001(3)(k)

sets forth aggravating and mitigating circumstances which may

suppo rt a deviation from the disciplinary guidelines. Insofar

as is relevant to this proceeding , the rule requires

consideration of the Respondent's disciplinary history as an

aggravating circumstance and consideration of the degree of

financial hardship relat ed to the imposition of fines as a

mitigating circumstance.

40. As to the prior disciplinary history, the Respondent

was disciplined by the Petitioner in 1997. The penalty in that

instance included a suspension and fine and required the filing

of quarter ly reports. As in the 2005 disciplinary action, the

penalty imposed in the 1997 case was explicitly based on a

settlement stipulation that established the agreed penalty and

whic h was executed by the parties.

41. Consideration of the Respondent 's discipl inary history

warrants increasing the recommended fine in this case from the

$2,500 minimum to $3,500 and increasing the probationary peri od

from one year to 18 months.

42. As to consideration of the degree of financial

hardship as a result of the imposit ion of fines, the

Respondent's discharge of debt through bankruptcy indicates that

if such hardship existed at the time of the original fine and

assessment of costs, such hardship no longer exists.

RECOMMENDATION

Based on the foregoing Findings of Fact an d Conclusions of

Law, it is RECOMMENDED that the Department of Health, B oard of

Pharmacy , enter a f inal o rder directing that the Respondent pay a

total of $16,352.66, to the Petitioner. The total reflects the

$12,852.66 imposed by the May 3, 2005 , Final O rder and the

additional $3,500 penalty related to the violations set forth

herein. Additionally, the f inal o rder should extend the

Respondent's current probationary period by 18 months to be

served consecutively to the current probationary period.

DONE AN D ENTERED this 10th day of August , 2007 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 10th day of August , 2007 .

COPIES FURNISHED :

Patrick L. Butler, Esquire

Billie Jo O wens, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Denis R. Bousquet

5125 Cedar Springs Drive, Unit 203

Naples, Florida 34110

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399 - 1701

Rebecca Poston, R.Ph., Executive Director

Board of Pharmacy

Department of Health

4052 Bald Cypress Way, Bin C04

Tallahassee, Florida 32399 - 1701

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.