16-004366PL Department Of Health, Board Of Pharmacy vs. Devone Lemar Flucker, R.P.T. Status: Closed Recommended Order on Wednesday, November 23, 2016.

Summary: DOH proved the Respondent obtained his RPT license by negligently misrepresenting the facts regarding his criminal history. RO: revoke.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

PHARMACY,

Petitioner,

vs. Case No. 16 - 4366PL

DEVONE LEMAR FLUCKER, R.P.T.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Octo ber 18, 2016, Administrative Law Judge J. Lawrence

Johnston held the final hearing in this case in Tallahassee.

APPEARANCES

For Petitioner: Nicole L. Jordan, Esquire

Marc Daniel Taupier, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: Patricia A. Montgomery, Esquire

Patricia A. Montgomery, P.A.

Post Office Box 607662

Orlando, Florida 32860

STATEMENT OF THE ISSUE

The issue is whether the Board of Pharmacy (board) should

revoke or otherwise discipline the RespondentÓs license as a

registered pharmacy technician (RPT) because his application for

licensure failed to disclose a felony criminal conviction.

PRELIMINARY STATEMENT

In October 2015, the Respondent applied for licensure as an

RPT. His application stated that he had not been convicted of a

crime other than a minor tr affic offense. License RPT 64709 was

issued to the Respondent in January 2016. In March 2016, the

Respondent received an Administrative Complaint charging him with

a violation of section 465.016(1)(a), Florida Statutes (2015), 1/

for obtaining his license by misrepresentation or fraud or

through an error of the Department of Health (department) or the

board. The Respondent disputed the charges and asked for a

hearing.

At the final hearing, the Petitioner called two witnesses:

Jennifer Wenhold, who is t he boardÓ s interim director; and

Charles Stuard, who is the associate director of education at the

Florida Career College. The PetitionerÓs Exhibits 1 through 4

were admitted in evidence, and the RespondentÓs 1996 felony

conviction for a lewd act upon a c hild was official ly recognized.

After the Petitioner rested, the Respondent testified.

After the evidence w as presented, the parties were given t en

days from the filing of the t ranscript of the hearing to file

proposed recommended orders. The Transcrip t was filed on

November 7 . The Petitioner filed a Proposed Re commended Order on

November 17 , and it has been considered. The Respondent has not

filed a proposed recommended order.

FINDING S OF FACT

1. The Respondent was convicted of the crime of commi tting

a lewd act upon a child in 1996.

2. In 2015, the Respondent took a course at Anthem College,

now called Florida Career College, to qualify to be licensed as

an RPT in Florida.

3. Towards the end of the course, an application for

licensure was submitted to the department. The application

required the Respondent to answer the question whether he had

been convicted of a crime other than a minor traffic offense.

The answer on the application said, ÐNO.Ñ

4. Based on the application, the departm ent issued the

Respondent license RPT 64709 in January 2016. Later, the

RespondentÓs criminal conviction came to the attention of the

department and board, and an Administrative Complaint was filed

charging the Respondent with violating section 465.016(1) (a) for

obtaining his license by misrepresentation or fraud or through an

error of the department or board.

5. The Respondent explained at the hearing that he was not

being dishonest and did not willfully obtain his license by fraud

or intentional misr epresentation. He testified that he disclosed

his criminal conviction to Beth Shelton, his instructor at

Anthem, when he went online to create an account to apply for

licensure and saw the application and the question regarding his

criminal conviction. H e testified that she told him his

conviction was not an absolute bar to licensure , but that he

would have to write a letter explaining the conviction and his

rehabilitation from it to submit to the department with his

application, along with copies of the court records. The

Respondent testified that he put his application on hold and

logged out of his account. He testified that the answer on the

application at the time he logged out was, ÐYES.Ñ He testified

that he then wrote the letter suggested by his instructor, got

the court records, and gave them to her. He testified that he

assumed she took care of it for him. He was thrilled when he

received his license in the mail in January 2016 , and he was

crestfallen and dismayed when he received the Administ rative

Complaint a few months later.

6. Charles Stuard, who was Ms. SheltonÓs supervisor at

Anthem in 2015 , and is now the associate director of education at

Florida Career College, testified that it would have been against

AnthemÓs policy for Ms. Shelt on to help the Respondent answer

questions on the application or offer to help the Respondent as

he said she did. Neither party called Beth Shelton to testify.

7. Some of the RespondentÓs testimony could be interpreted

as inconsistent, but those possible inconsistencies seemed to

arise from misunderstandings and confusion. The essence of the

RespondentÓs testimony is accepted as true Ï namely, he was not

being dishonest and did not willfully obtain his license by fraud

or intentional misrepresentation.

8 . The Petitioner did not prove by clear and convincing

evidence that the Respondent was dishonest or willfully obtained

his license by fraud or intentional misrepresentation, or that

the RespondentÓs license was issued through an error of the

department o r board. However, it is clear that the RespondentÓs

license was obtained by a misrepresentation of fact.

CONCLUSIONS OF LAW

9. Section 465.016(1)(a), (2015), provides that

Ð[o]btaining a license by misrepresentation or fraud or through

an error of the department or the boardÑ is a ground for

discipline of a pharmacy license, as sp ecified in section

456.072(2), Florida Statutes .

10. In a penal proceeding, the prosecutor must prove the

allegations and charges by clear and convincing evidence. Dep't

of B anking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

11. Clear and convincing evidence "requires more proof than

a 'preponderance of the evidence' but less than 'beyond and to

the exclusion of a reasonable doubt.'" In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court,

the standard:

[E]ntails both a qualitative and quantitative

standard. The evidence must be credible; the

memories of the witnesses must b e clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to

convince the trier of fact without hesitancy.

In re Davey , 645 So. 2 d 398, 404 (Fla. 1994) (citing, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (F la. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence is

in conflict, it seems to preclude evidence that is ambiguous."

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991).

12. In this case, the Petitioner did not prove by clear and

convincing evidence that the Respondent was dishonest or

willfully obtained his license by fraud or intentional

misrepresentation, or that the RespondentÓs license was issued

through an error of the department or board. However, it is

clear that the RespondentÓs license was obtained by a

misrepresentation of fact.

13. For the RespondentÓs violation, the most appropriate

penalty among the options listed in section 45 6.072(2 ) would be

permanent revocation .

14. Florida Administrative Code Rule 64B16 - 30.001(1) - (3)

(Rev. Feb. 5, 2014) sets out the applicable guidelines for

penalties normally imposed for violations by a licensee. In

addition to any other discipline imp osed under these guidelines,

the board shall assess costs relating to the investigation and

prosecution of the case. Guidelines for specific violations are

set out in subsection (2). Subsection (3) provides that the

board may deviate from the guidelines on a showing , by clear and

convincing evidence , of aggravating or mitigating circumstances.

15. Subsection (2)(a)1. states that the range of

appropriate penalties for negligent misrepresentation on an

application are from a $1,000 fine and a 12 - hour Law s and Rules

course or the Multistate Pharmacy Jurisprudence Exam, and a

3 - hour ethics course , to a $10,000 fine and revocation.

16. There are no aggravating circumstances in this case.

There are mitigating circumstances, but they do not justify

deviat ing from the guidelines in this case. Specifically, since

the RespondentÓs violation eliminated the boardÓs ability to

consider a true application, the Respond entÓs license should be

revoked .

17. Section 456.072(6) provides that all revocations are

per manent and authorizes the board to Ðestablish by rule

requirements for reapplication by applicants whose licenses have

been permanently revoked.Ñ The board does not have such a rule.

In this case, the Respondent should be allowed to reapply so the

board can consider the true facts regarding his criminal

conviction.

RECOMMENDATION

Based upon the foregoing Findings of Fac t and Conclusions of

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

order r evoking his license RPT 64709, which was ob tained by an

honest and unintentional negligent misrepresentation, and

allowing him to reapply so that the board can consider the true

facts regarding his criminal conviction.

DONE AND ENTERED this 23rd day of November , 2016 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of November , 2016 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2015).

COPIES FURNISHED:

Nicole L. Jordan, Esquire

Department of Health

Prosecu tion Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Patricia A. Montgomery, Esquire

Patricia A. Montgomery, P.A.

Post Office Box 607662

Orlando, Florida 32860

Marc Daniel Taupier, Esquire

Department of Health

Prosecuti on Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Allison Dudley, Executive Director

Board of Pharmacy

Department of Health

Bin C - 04

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3258

(eServed)

Nichole C. Geary, G eneral Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.