14-000883PL Department Of Health, Board Of Pharmacy vs. Christopher Stephen Switlyk, R.Ph. Status: Closed Recommended Order on Monday, June 23, 2014.

Summary: DOH proved Respondent's pharmacy license should be revoked for criminal violations involving drug trafficking conspiracy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF PHARMACY,

Petitioner,

vs. Case No. 14 - 0883PL

CHRISTOPHER STEPHEN

SWITLYK, R.PH.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On March 26, 2014, a final administrative hearing in this

case was held in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings (DOAH). The Respondent, who was in prison in Estill,

South Carolin a, participated in the hearing by telephone.

APPEARANCES

For Petitioner: Yolanda Y. Green, Esquire

Lucas L . May, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Christopher S. Sw itlyk , pro se

Register No. 53913 - 018

F ederal Satellite Camp

Post Office Box 779800

Miami, Florida 33177 - 9800

STATEMENT OF THE ISSUE

The issue in this case is whether the RespondentÓs license

to practice pharmacy should be revoked or otherwise dis ciplined

based on conduct that resulted in c riminal conviction s and his

failure to report the conviction s to the Board of Pharmacy

(Board), as required.

PRELIMINARY STATEMENT

The Petitioner, Department of Health (DOH), filed an Amended

Administrative Compl aint against the Respondent, Christopher

Stephen Switlyk, R.Ph., alleging that he was convicted in federal

court of crime s that relate to his practice of, or his ability to

practice, his licensed profession and that he failed to report

the conviction to th e Board , as required. The Respondent

requested a hearing, and the matter was referred to DOAH.

At the DOAH hearing, DOH moved PetitionerÓs Exhibits 1

through 5 into evidence and questioned the Respondent under oath.

The Respondent testified in his case - in - chief after DOH rested,

and he offered numerous exhibits in evidence. The evidentiary

record was left open to allow the Respondent time to file his

proposed exhibits, DOH to file an additional exhibit, and for

rulings on objections. On April 11, 2014 , DOH filed an

additional exhibit, PetitionerÓs Exhibit 6. On April 29 and 30,

2014, the PetitionerÓs Exhibit 6 and the RespondentÓs Exhibits 2,

5, and 7 were admitted in evidence; the RespondentÓs other

exhibits either were not filed, or DOHÓs objections to them were

sustained; and the evidentiary record was closed. The Respondent

moved for reconsideration of those rulings, and DOH responded by

withdrawing its objections to the untimeliness of RespondentÓs

Exhibits 3 and 8, and those exhibits are admitte d in evidence.

The RespondentÓs motion for reconsideration, as well as DOHÓs

response, reference d additional proposed RespondentÓs Exhibits 9

and 10 (which DOH opposed), but those additional exhibits were

not filed at DOAH, and DOHÓs objections are sustai ned.

The Transcript of the final hearing was filed on April 7,

2014. The parties were given until May 13, 2014, to file

proposed recommended orders, which have been considered.

FINDING S OF FACT

1. The Respondent has been a licensed pharmacist in Florid a

and held Florida l icense PS 36908 at all pertinent times , until

it expired on September 30, 2013.

2. On December 14, 2010, the Respondent was indicted in

federal court in the Middle District of Florida, C ase No. 8:10 -

CR - 530 - T - 33AEP.

3. On September 5, 2012, the Respondent pled guilty to one

count of conspiring to violate 21 U .S.C. sections 841(a)(1),

843(a)(2), 843(a)(3), and 856(a)(1), all of which also

constituted violations of 21 U.S.C. section 846, and to two

counts of knowingly engaging in mone tary transactions, in and

affecting interstate and foreign commerce, in property of a value

of greater than $10,000, which was derived from a felonious

criminal conspiracy to traffic k in controlled substances, in

violation of 18 U .S.C. section 1957. The p lea also admitted to

the factual basis of the charges -- namely, that the Respondent

conspired to allow the pharmacy he owned and operated in Tampa,

Florida, to be used by the criminal conspiracy to fill and

dispense forged , and otherwise illegal , prescripti ons for over a

million doses of S chedule II controlled substances, mostly

oxycodone. The cash proceeds of the illegal sales were treated

as income of the pharmacy, and the Respondent and others

participated in monetary transactions whereby the illegally -

o btained cash was used to purchase cashierÓs checks and other

assets and to conceal the illegal source of the money.

4. Based on his guilty plea s , the Respondent was

adjudicated guilty and sentenced to 108 months in prison. The

special conditions of sup ervision in the J udgment require the

Respondent to Ðrefrain from engaging in any employment related to

dispensing prescriptions drugs either in a pharmacy, pain clinic,

or other medical environment.Ñ

5. The RespondentÓs convictions clearly were related to his

practice of pharmacy.

6. The Respondent now maintains that he should not have

pled guilty and would not have done so but for the incompetence

of his attorney, who advised him to enter into the plea

agreement. Based on this ground and others, he has been seeking

to have his conviction s vacated or his sentence reduced. There

is no evidence that he has been successful in altering his

conviction s or sentence in any way, and the evidence does not

suggest that it is likely that he will succeed in acco mplishing

either objective.

7. The Respondent did not report his guilty pleas to the

Board in writing within 30 days. The Respondent contends that

his incarceration since his arrest made it impossible for him to

do so. However, the greater weight of t he evidence was to the

contrary. More likely, compliance with the technical requirement

to report to the Board in writing was not in the forefront of his

mind.

8. The Respondent has been licensed since July 31, 2002.

This is the first time action has been taken by DOH and the Board

to discipline his license.

9. The RespondentÓs actions had the potential to expose

numerous people to harm from the misuse and abuse of oxycodone

and other controlled substances. Th is violated the trust placed

in him by the State of Florida when he became licensed as a

pharmacist. His violation of the public trust demonstrated

unsound judgment and a lack of integrity. As a result, the

RespondentÓs professional standing among his peers was lowered.

(The only direct evid ence of this was the testimony of DOHÓs

expert witness, but this fact can be inferred from the nature of

his conviction s and sentence, as well as the comments of the

sentencing federal judge, who viewed the RespondentÓs actions as

an abuse of the public tr ust and undeserving of a second chance

to be a pharmacist.)

10. The Respondent also contends that he should be treated

leniently in this case because alcohol abuse and long - standing

emotional and psychological problems were primary reasons for his

action s. His contention belies the criminal convictions, which

were for intentional crimes and based on voluntary guilty pleas.

To the extent that th e se problems were contributory factors, it

is commendable that the Respondent is taking them seriously, and

he will benefit in the long run from continuing to seek treatment

and counseling to address them. Neither the problems, in

themselves, nor the start of treatment and counseling warrant s

lenient license discipline.

11. The Board has guidelines for the impo sition of

penalties for license violations. DOH submitted PetitionerÓs

Exhibit 4 as evidence of the guidelines in effect at the time of

the RespondentÓs guilty pleas and convictions. However, the

exhibit actually purports to certify the guidelines in eff ect at

various times from January 1, 2011, until December 31, 2013. It

appears from the exhibit that as of the time of the RespondentÓs

guilty pleas and convictions, the range of penalties for a first

violation of section 456.072(1)(c) , Florida Statutes ( 2012), for

a felony conviction or guilty plea was from a year probation and

a $3,000 fine to a year suspension to revocation and a $5,000

fine. Fla. Admin. Code R. 64B16 - 30.001(o)3. (revised Nov. 29,

2006) . T he range of penalties for a first violation of section

456.072(1)(x) , Florida Statutes (2012), is from a $1,000 fine to

a $2,500 fine and a year probation. Fla. Admin. Code

R. 64B16 - 30.001(o)(18) (revised Nov. 29, 2006). The guidelines

in effect at that time also included aggravating circumstances

t hat would justify deviating above the guidelines and mitigating

circumstances that would justify deviating below the guidelines.

The aggravating circumstances included: a history of previous

violations; in the case of negligent acts, the magnitude and

sc ope of the damage or potential damage inflicted on a patient or

the general public; and violations of professional practice acts

in other jurisdictions. The mitigating circumstances included:

in the case of negligent acts, the minor nature of the damage or

potential damage to the patientÓs or the general publicÓs health,

safety, and welfare; the lack of previous discipline; restitution

of monetary damage suffered by the patient; the licenseeÓs

professional standing among his peers; the steps taken by the

licensee to ensure the non - occurrence of similar violations in

the future, including continuing education; and the degree of

financial hardship incurred by the licensee.

12. In this case, there are no aggravating circumstances

justifying a deviation abov e the guidelines. As for mitigating

circumstances : the minor nature of the damage or potential

damage to the patientÓs or the general publicÓs health, safety,

and welfare from his failure to report his conviction s and guilty

pleas to the Board might just ify a deviation below the guidelines

for that violation, but not for the convictions and pleas,

themselves; t he Respondent Ós lack of previous discipline is a

mitigating circumstance ; restitution of monetary damage to the

patient is not relevant; the Respon dentÓs professional standing

among his peers has suffered and does not justify a deviation

below the guidelines in this case; the Respondent forfeited all

ill - gotten gains to the federal government and has incurred

financial hardship as a result of the for feitures and his

incarceration, but that does not justify a deviation below the

guidelines in this case; the Respondent has taken several

continuing education courses since he has been incarcerated, but

that does not justify a deviation below the guideline s in this

case.

CONCLUSIONS OF LAW

13. This is a license discipline case, which places the

burden on DOH to prove the charges by clear and convincing

evidence. Dep't of Banking & Fin. v. Osborne Stern & Co. ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turling ton , 510 So. 2d 292

(Fla. 1987).

14. DOH has charged the Respondent with being convicted or

found guilty of, or entering a plea of guilty to, crime s that

relate to the practice of, or the ability to practice, the

profession of licensed pharmacist. § 456 .072(1)(c), Fla. Stat.

(2012). See Rush v. D epÓt of Bus. & ProfÓl Reg. , Bd. of

Podiatry , 448 So. 2d 26, 27 - 28 (Fla. 1st DCA 1984)(although not

arising in an office setting, crime of conspiracy to possess and

import marijuana was a breach of trust and rela ted to the

practice of podiatry, which included dispensing drugs); Doll v.

D epÓt of Health , 969 So. 2d 1103 (Fla. 1st DCA 2007)(a crime that

demonstrated a Ðlack of honesty, integrity, and judgmentÑ related

to the practice of chiropractic medicine); D epÓt of Health , Bd.

of Medicine v. Algirdas Krisciunas, M.D. , Case No. 10 - 10229PL

( Fla. DOAH June 27, 2011; Fla. DOH Amended FO, Aug . 17, 20 11 )

(five counts of dispensing oxycodone and one count of conspiring

to distribute oxycodone were related to the practice of medicine,

in part , because the respondentÓs medical license was necessary

to execute the crime). DOH proved this charge by clear and

convincing evidence.

15. DOH also charge d that the Respondent failed to report

his conviction s and guilty pleas to t he Board in writing within

30 days. § 456.072(1)(x), Fla. Stat. (2012). DOH proved this

charge by clear and convincing evidence.

16. The Board has guidelines for the imposition of

penalties for license violations. Based on a consideration of

the Boar dÓs penalty guidelines and possible aggravating and

mitigating circumstances, the appropriate penalty in this case is

revocation. If the Respondent continues to demonstrate his

commitment to treatment and counseling for his alcohol abuse and

psychological and emotional issues and to continuing education to

maintain proficiencies as a pharmacist, he can present those

matters to the Board in an application for the issuance of a new

license after he is released from prison and has the special

condition of sup ervision in his sentence modified.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Pharmacy enter a final

order finding the Respondent guilty as charged and revoking his

license to practice pharmacy.

DONE AND ENTERED this 23rd day of June , 2014 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkwa y

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of June , 2014 .

COPIES FURNISHED:

Mark Whitten, Executive Director

Board of Ph armacy

Department of Health

4052 Bald Cypress Way, Bin C - 0 4

Tallahassee, Florida 32399 - 3254

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Yolanda Y. Green, Esquire

Lucas L . M ay, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Christopher S. Switlyk

Register No. 53913 - 018

F ederal Satellite Camp

Post Office Box 779800

Miami, Florida 33177 - 9800

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.