97-005968 Board Of Pharmacy vs. Nury D. Soler Status: Closed Recommended Order on Tuesday, August 25, 1998.

Summary: Proof demonstrated that pharmacist was no longer employed by pharmacy on day of inspection. Therefore, pharmacist not shown to be responsible for deficiencies noted on inspection.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) Case No. 97-5968

)

NURY D. SOLER, )

)

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

June 29, 1998, by video teleconference.

APPEARANCES

For Petitioner: John O. Williams, Esquire

Maureen L. Holz, Esquire

Williams & Holz, P.A.

The Cambridge Centre

355 North Monroe Street

Tallahassee, Florida 32301

For Respondent: William M. Furlow, Esquire

Katz, Kutter, Haigler, Alderman,

Byrant & Yon, P.A.

Post Office Box 1877

Tallahassee, Florida 32302-1877

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Administrative Complaint 1 and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

By a seven-count Administrative Complaint, Petitioner

charged Respondent, a licensed pharmacist, with the violation of

various provisions of Chapter 465, Florida Statutes, the "Florida

Pharmacy Act." Post-hearing, Petitioner dismissed Count II of

the Administrative Complaint. Consequently, the complaint reads,

in pertinent part, as follows:

4. On or about December 14, 1996, an

inspection was performed on Westchester

Pharmacy.

5. On or about December 14, 1996, during

the aforementioned inspection, the permit

owner, Noriel Baptista, supplied an

investigator with twenty (20) amoxicillin

tablets without the investigator providing a

prescription.

6. On or about December 14, 1996, at

approximately 11:15 a.m., the aforementioned

inspection revealed the following violations:

a. A prescription department hours sign

was not posted;

b. Respondent failed to adequately counsel

patients;

c. A pharmacist's certificate was not

displayed;

d. There were no pharmacists on duty when

the prescription department was opened;

e. Respondent failed to have the

"Prescription Department closed" sign

posted;

f. Respondent's prescription records

failed to document when controlled

substances were dispensed.

7. On or about December 14, 1996, at

approximately 11:15 a.m., Respondent was

listed as the pharmacy manager for

Westchester.

Count I

8. Petitioner realleges and incorporates

by reference the foregoing allegations of

fact contained in paragraphs one (1) through

seven (7) as if fully stated herein.

9. Based on the foregoing, 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 59X-28.109, Florida

Administrative Code, which states that the

prescription department of any community

pharmacy permittee shall be considered closed

whenever the establishment is open and a

Florida registered pharmacist[ ] is not

present and on duty. A sign with bold

letters not less than two inches in width and

height shall be displayed in a prominent

place in the prescription department so that

it may easily be read by patrons of that

establishment. The sign shall contain the

following language: "Prescription Department

Closed."

* * *

Count III

12. Petitioner realleges and incorporates

by reference the foregoing allegations of

fact contained in paragraphs one (1) through

seven (7) as if fully stated herein.

13. Based on the foregoing, Respondent's

license to practice pharmacy in the state of

Florida is subject to discipline pursuant to

Section [465.015(1)(b)], Florida Statutes, by

selling or dispensing drugs as defined in

s. 465.003(7), Florida Statutes, without

first being furnished with a prescription.

Count IV

14. Petitioner realleges and incorporates

by reference the foregoing allegations of

fact contained in paragraphs one (1) through

seven (7) as if fully stated herein.

15. Based on the foregoing, 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 59X-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

s.465.003(12), Florida Statutes, in any

pharmacy shall be displayed, together with

the current renewal certificate, when

applicable, in a conspicuous place in or near

the prescription department, and in such

manner that said license can be easily read

by patrons of said establishment.

Count V

16. Petitioner realleges and incorporates

by reference the foregoing allegations of

fact contained in paragraphs one (1) through

seven (7) as if fully stated herein.

17. Based on the foregoing, 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 59X-27.820, Florida

Administrative Code, which states that upon

receipt of a new or refill prescription, the

pharmacists shall ensure that a verbal and

printed offer to counsel is made to the

patient or the patient's agent when present.

Count VI

18. Petitioner realleges and incorporates

by reference the foregoing allegations of

fact contained in paragraphs one (1) through

seven (7) as if fully stated herein.

19. Based on the foregoing, 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 59X-28.140(3)(b)2., Florida

Administrative Code, which states that a hard

copy print out of a record of a prescription

drug order shall contain the date of

dispensing.

Count VII

20. Petitioner realleges and incorporates

by reference the foregoing allegations of

fact contained in paragraphs one (1) through

seven (7) as if fully stated herein.

21. Based on the foregoing, 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 59X-28.404, Florida

Administrative Code, which states that a sign

stating the hours the prescription department

is open shall be displayed either at the main

entrance of the establishment or at or near

the place where prescriptions are dispensed

in a prominent place that is in clear and

unobstructed view.

For such violations, Petitioner proposed that one or more of

the following penalties by imposed:

. . . Revocation or suspension of

Respondent's license, imposition of an

administrative fine, issuance of a reprimand,

placement of the Respondent on probation,

costs, and/or any other relief that the Board

[of Pharmacy] deems appropriate.

Respondent disputed the factual allegations contained in the

Administrative Complaint, and Petitioner referred the matter to

the Division of Administrative Hearings for the assignment of an

administrative law judge to conduct a formal hearing pursuant to

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

At hearing, Petitioner called Richard Castillo as a witness,

and Petitioner's Exhibits 1, 2, 4, and 5 were received into

evidence. 2 Respondent called Raul Praea and Nury Soler as

witnesses, and Respondent's Exhibits 1 through 3 were received

into evidence.

The hearing transcript was filed July 24, 1998, and the

parties were accorded ten days from that date to file proposed

recommended orders. Both parties elected to file such proposals,

and they have been duly considered.

FINDINGS OF FACT

Respondent's licensure and employment

1. Respondent, Nury D. Soler, is now, and was at all times

material hereto, licensed as a pharmacist by the State of

Florida, having been issued license number PS 0014628.

2. Pertinent to this case, Respondent was the prescription

department manager for Westchester Pharmacy for a two-month

period extending from some time in October 1996 and at least

through December 13, 1996. Westchester Pharmacy is a community

pharmacy licensed by Petitioner, pursuant to Section 465.018,

Florida Statutes, and located at 7253 Southwest 24th Street,

Miami, Florida. The pharmacy owner or permittee was Noriel

Batista.

The pharmacy inspection

3. On December 14, 1996, a Saturday, Richard Castillo, an

investigator employed by the State of Florida, entered the

Westchester Pharmacy to conduct a routine community pharmacy

inspection. Upon entry, Mr. Castillo observed only one person in

the pharmacy, a man later identified as the permittee

(Mr. Batista). At the time, Mr. Batista was observed in the

vicinity of the prescription area, at the rear of the store.

4. Mr. Castillo proceeded to the counter at the rear of the

store, and was approached by Mr. Batista. Thereupon,

Mr. Castillo feigned a toothache, and the following events

transpired:

. . . I put my hands on my face and I said I

have some tooth pain, is there anything you

can do about it.

At which time, he said you really need to

go see a dentist. I said that dentists cost

a lot of money and that I believed that it

was an infection.

At which time he came back with a bottle of

twenty Amoxicillin, 500 milligram capsules.

He sold me the bottle for $10.00 and I gave

him the $10.00.

He then gave me some preliminary

instructions, and went back into the

prescription department area. He returned

and said that as a gift I'm going to give you

these medications; which was four capsules of

Motrin 800 milligrams.

Amoxicillin is a prescription drug, which Mr. Batista, who was

not licensed as a pharmacist, sold without benefit of a

prescription.

5. Following the sale, Mr. Castillo identified himself as

an investigator, told Mr. Batista he was present to conduct a

routine inspection, and asked to speak with the pharmacist. When

told the pharmacist was not available, Mr. Castillo asked

Mr. Batista to telephone her and ask her to come to the store.

Mr. Batista did so, and about an hour later Respondent arrived.

6. Mr. Castillo inspected the pharmacy and completed a

community pharmacy inspection report on which he noted a number

of perceived deficiencies. (Petitioner's Exhibit 2). First,

with regard to Mr. Batista's sale of amoxicillin, Mr. Castillo

noted three deficiencies or violations against the pharmacy

business, to-wit: (1) there was no pharmacist on duty when the

prescription department was open (a perceived violation of Rule

64B16-28.109, Florida Administrative Code); (2) there was no

pharmacist present to provide patient counseling, if requested (a

perceived violation of Rule 64B16-27.820, Florida Administrative

Code); and, (3) since Mr. Batista did not document the sale,

Mr. Castillo considered the pharmacy records of dispensing to be

incomplete (a perceived violation of Rule 64B16-28.140(3)(b),

Florida Administrative Code). Other deficiencies noted by

Mr. Castillo against the pharmacy business were as follows:

(1) there was no sign displayed that the pharmacy was closed

(a perceived violation of Rule 64B16-28.109(1), Florida

Administrative Code); (2) the pharmacist's (Ms. Soler's) license

was not displayed (a perceived violation of Rule 64B16-27.100(1),

Florida Administrative Code); and, (3) there was no sign

displayed which stated the hours the prescription department was

open each day (a perceived violation of Rule 64B16-28.404,

Florida Administrative Code). No further deficiencies were

observed and, apart from those noted deficiencies, the

prescription department appeared appropriately maintained and

operated.

7. Following Respondent's arrival at the pharmacy,

Mr. Castillo discussed with her the various deficiencies he had

found and had noted on his report. Then, as the "Pharmacist,"

Respondent signed the report. By signing the report, she

acknowledged that "I have read and have had this inspection

report and the laws and regulations concerned herein explained,

and do affirm that the information given herein is true and

correct to the best of my knowledge." Among the information

provided on the inspection report was the name of the

prescription department manager, which was stated to be the

Respondent.

Respondent's employment status with Westchester Pharmacy

on the date of the inspection

8. Notwithstanding her appearance at Westchester Pharmacy

on Saturday, December 14, 1996, and her signing of the inspection

report as the Pharmacist for Westchester Pharmacy, Respondent

averred, at hearing, that by December 14, 1996, she was no longer

affiliated with the pharmacy or responsible for the deficiencies

noted. According to Respondent, by December 12, 1996, she had

agreed with another pharmacy, Coral Way Pharmacy, Inc., (Coral

Way Pharmacy) to serve as its pharmacist effective December 16,

1996, at its pharmacy located at 6965 Southwest 24th Street,

Miami, Florida, and that her last date of employment with

Westchester Pharmacy was December 13, 1996.

9. While perhaps not entirely free from doubt (given the

facial inconsistency between Respondent's contention at hearing

and the conclusion one could reasonably draw regarding her

association with Westchester Pharmacy, as evidenced by her

activities on the date of inspection), the proof demonstrates,

more likely than not, that, as Respondent averred, she was no

longer employed by Westchester Pharmacy on the day of inspection,

her presence on the day of inspection was a matter of

accommodation to Mr. Batista, and her signing of the report was a

matter of misunderstanding.

10. In so concluding, it is observed that, while the

pharmacy was open Monday through Saturday, the prescription

department was not open on Saturday, or, stated differently,

under the terms of Respondent's employment with Weschester

Pharmacy she did not work week-ends. Given that Respondent and

Coral Way Pharmacy, reached an agreement on December 12, 1996,

for her to begin work at Coral Way Pharmacy on December 16, 1996,

it is reasonable to conclude, given the nature of her work-week

at Westchester Pharmacy, that her last day of employment with

Westchester Pharmacy was Friday, December 13, 1996. Moreover,

consistent with the conclusion that Respondent's association with

Weschester Pharmacy terminated on December 13, 1996, is the

absence of Respondent's wall certificate and license on the date

of inspection. Notably, Respondent had not suffered prior

disciplinary action in 19 years of practice, and presumably knew

that, if employed, she was required to display her wall

certificate and license in or near the prescription department.

Conversely, she also knew, presumably, that she could not

lawfully display them, if she was no longer employed by

Westchester Pharmacy. Rule 64B16-27.100, Florida Administrative

Code. Since it is presumed that persons will observe the law,

the absence of Respondent's wall certificate and license on the

date of inspection is consistent with her assertion that, by that

date, she was no longer employed by Westchester Pharmacy.

Atlantic Coast Line R. Co. v. Mach , 57 So. 2d 447 (Fla. 1952).

11. Finally, also consistent with the conclusion that

Respondent's employment with Westchester Pharmacy terminated

before the date of the inspection is a statement Respondent made

to the inspector. According to the investigator, when asked

about the infractions, Respondent stated the following:

. . . She said that things needed to

change. She asked if she were to leave the

pharmacy whether that would change anything,

and I said, no, it doesn't matter because

you're the pharmacist of record at this point

of time.

Such statement, when considered in context with other proof of

record, discussed supra , is consistent with Respondent having

resolved, previously, to terminate her employment with Weschester

Pharmacy and, since she did not specifically tell the

investigator of her decision, his response evidenced a

misunderstanding that resulted in Respondent's execution of the

report.

CONCLUSIONS OF LAW

12. 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.

13. Where, as here, the Department 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).

14. 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 Regulation, Board of Medical

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

Department of Professional Regulation , 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).

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

Statutes, provides that the following acts shall constitute

grounds for which the Board of Pharmacy may take disciplinary

action against a licensee:

(e) Violating any of the requirements of

this chapter . . .

* * *

(n) Violating a rule of the board or

department.

16. For the perceived violation of subsection

465.016(1)(e), the Department contends (Count III of the

Administrative Complaint) Respondent violated the provisions of

Subsection 465.01(1)(b), Florida Statutes. 3 That subsection

provides:

(1) It is unlawful for any person to own,

operate, maintain, open, establish, conduct,

or have charge of, either alone or with

another person or persons, a pharmacy:

* * *

(b) In which a person not licensed as a

pharmacist in this state or not registered as

an intern in this state or in which an intern

who is not acting under the direct and

immediate personal supervision of a licensed

pharmacist fills, compounds, or dispenses any

prescription or dispenses medicinal drugs.

17. Here, on December 14, 1996, the date Mr. Batista

unlawfully dispensed a prescription drug, Respondent was not

affiliated with Westchester Pharmacy. Consequently, the proof

fails to support the conclusion that Respondent violated the

provisions of Subsection 465.015(1)(b) and, therefore, Subsection

465.016(1)(e), as alleged in Count III of the Administrative

Complaint. 4

18. For the perceived violations of Subsection

465.016(1)(n), the Department contends Respondent failed to

comply with Rules 64B16-28.109 (Count I), 64B16-27.100

(Count IV), 64B16-27.820 (Count V), 64B16-28.140(3)(b)2

(Count VI), and 64B16-28.404 (Count VII), Florida Administrative

Code. 5 These perceived violations will be addressed as they

appear in the Administrative Complaint, by count.

19. Pertinent to Count I, Rule 64B16-28.109, Florida

Administrative Code, provides:

(1) The prescription department of any

community pharmacy permittee shall be

considered closed whenever the establishment

is open and a Florida registered pharmacist

is not present and on duty. A sign with bold

letters not less than two (2) inches in width

and height, shall be displayed in a prominent

place in the prescription department so that

it may easily be read by patrons of that

establishment. The sign shall contain the

following language: "Prescription Department

Closed."

Here, Respondent avers she posted such a sign when she departed

on December 13, 1996, and there is no reason to reject her

testimony. Accordingly, given that she was no longer associated

with the pharmacy on December 14, 1996, she is not responsible

for the absence of the sign on that date, or Mr. Batista's

opening of the prescription department, and Petitioner has failed

to sustain Count I of the Administrative Complaint.

20. Pertinent to Count IV, Rule 64B16-27.100, Florida

Administrative Code, provides:

(1) 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, when

applicable, in a conspicuous place in or near

the prescription department, and in such

manner that said license can be easily read

by patrons of said establishment.

Pharmacists employed in secondary practice

sites shall present a valid wallet license as

evidence of licensure upon request.

(2) No pharmacist shall display, cause to

be displayed or allow to be displayed, his

license in any pharmacy where said pharmacist

is not engaged in the practice of the

profession as defined in Section 465.003(12,

F.S.

Given that Respondent was not employed at Westchester Pharmacy on

the date of inspection, Petitioner has failed to demonstrate a

violation of Rule 64B16-27.100, as alleged in Count IV of the

Administrative Complaint.

21. Pertinent to Count V, Rule 64B16-27.820, Florida

Administrative Code, provides:

(1) Upon receipt of a new or refill

prescription, the pharmacist shall ensure

that a verbal and printed offer to counsel is

made to the patient or the patient's agent

when present. If the delivery of the drugs

to the patient or the patient's agent is not

made at the pharmacy the offer shall be in

writing and shall provide for toll-free

telephone access to the pharmacist. If the

patient does not refuse such counseling, the

pharmacist, or the pharmacy intern, acting

under the direct and immediate personal

supervision of a licensed pharmacist, shall

review the patient's record and personally

discuss matters which will enhance or

optimize drug therapy with each patient or

agent of such patient. Such discussion shall

be in person, whenever practicable, or by

toll-free telephonic communication and shall

include appropriate elements of patient

counseling. . . .

Given that Respondent did not dispense the prescription drug, was

not present at the time, and was no longer associated with

Westchester Pharmacy, Petitioner has failed to demonstrate a

violation of Rule 64B16-27.820 as alleged in Count V of the

Administrative Complaint.

22. Pertinent to Count VI, Rule 64B16-28.140(3)(b), Florida

Administrative Code, provides:

(3) Records of dispensing.

(a) Each time a prescription drug order is

filled or refilled, a record of such

dispensing shall be entered into the data

processing system.

(b) The data processing system shall have

the capacity to produce a daily hard-copy

printout of all original prescriptions

dispensed and refilled. This hard copy

printout shall contain the following

information:

1. Unique identification number of the

prescription;

2. Date of dispensing;

3. Patient name;

4. Prescribing practitioner's name;

5. Name and strength of the drug product

actually dispensed, if generic, name, the

brand name or manufacturer of drug dispensed;

6. Quantity dispensed;

7. Initials or an identification code of

the dispensing pharmacist. . . .

Given that Respondent did not dispense the prescription drug, was

not present at the time, and was no longer associated with

Westchester Pharmacy. Petitioner has failed to demonstrate a

violation of Rule 64B16-28.140(3)(b) as alleged in Count VI of

the Administrative Complaint.

23. Pertinent to Count VII, 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. . . . A sign in block letters not less

than one inch in height shall be displayed

either at the main entrance of the

establishment or at or near the place where

prescriptions are dispensed in a prominent

place that is in clear and unobstructed view.

Such sign shall state the hours the

prescription department is open each day.

24. The clear wording of rule 64B16-28.404 places the

responsibility for displaying an appropriate sign on the "person

who receives a community pharmacy permit," here Mr. Batista, not

the pharmacist. Moreover, Respondent was no longer associated

with Westchester Pharmacy when the deficiency was perceived.

Consequently, Petitioner has failed to demonstrate a violation of

Rule 64B16-28.404, Florida Administrative Code, as alleged in

Count VII of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered dismissing the

Administrative Complaint.

DONE AND ENTERED this 25th day of August, 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 25th day of August, 1998.

ENDNOTES

1/ In its Proposed Recommended Order, Petitioner dismissed

Count II of the Administrative Complaint. Count III of the

Administrative Complaint was amended at hearing, without

objection, to replace the statutory reference to Section

465.015(2)(c), Florida Statutes, with a reference to Section

465.015(1)(b), Florida Statutes.

2/ Petitioner withdrew its Exhibit 3. Petitioner's Exhibit 5 was

the return of service, reflecting service of a subpoena on Noriel

Batista.

3/ The provisions of Subsection 465.016(1)(c), Florida Statutes,

would support a similar charge and, given the proof in this case,

the conclusion reached would be the same.

4/ Moreover, even if a person in "charge of . . . a pharmacy,"

Respondent could not be found guilty of allowing an unlicensed

person (Mr. Batista) to dispense a prescription drug where, as

here, there is no showing of personal wrongdoing on her part.

Cf. Pic N' Save v. Department of Business Regulation , 601 So. 2d

245, 250 (Fla. 1st DCA 1992) ("Although the statutory language in

section 561.29(1) has since 1957 spoken in terms of the Division's

power to revoke or suspend a beverage license for violations of

the beverage law committed by a licensee, or 'its agents,

officers, servants, or employees,' the courts of this state have

consistently construed and applied this disciplinary authority

only on the basis of personal misconduct by the licensee. Thus,

while an employee may violate the beverage law in making illegal

sales of alcoholic beverages to minors, the licensee's culpable

responsibility therefor is measured in terms of its own

intentional wrongdoing or its negligence and lack of diligence in

training and supervising its employees regarding illegal sales.");

McDonald v. Department of Professional Regulation, Board of Pilot

Commissioners , 582 So. 2d 660, 669 (Fla. 1st DCA 1991) ("There is

no language to clearly evidence a legislative intent to impose on

a state licensed pilot vicarious responsibility for the neglect or

misconduct or others, i.e., to hold the pilot strictly responsible

for the conduct of all other personnel involved in operating and

maneuvering the vessel at the time the [co] llision occurred. The

statute does not purport to impose any nondelegable duties on a

state licensed harbor pilot that would give rise to personal

responsibility for the negligent acts of others. . . . [W]ithout

a clear, unambiguous provision in the statute indicating

legislative intent to hold the licensee responsible for the

negligent or wrongful acts committed by another, the

administrative agency is not authorized to so extend the effect of

the statute."); Federgo Discount Center v. Department of

Professional Regulation, Board of Pharmacy , 452 So. 2d 1063, 1066

(Fla. 3d DCA 1984) ("We conclude that if the Legislature desired

to make community pharmacy permittees strictly liable for the acts

of pharmacists who are separately licensed by the state, then it

could have done so in no uncertain terms. In the absence of a

clear expression from the Legislature making these permittees

subject to discipline for the misdeeds of their chosen licensed

pharmacist, we are obliged to reverse the Board's order of

revocation.")

Here, there is no evidence of intentional wrongdoing by Respondent

and, given the isolated nature of the offense by the permittee,

there is no basis on which to conclude that Respondent fostered,

condoned, or negligently overlooked such unlawful conduct. See

Lash, Inc. v. Department of Business Regulation , 411 So. 2d 276

(Fla. 3d DCA 1982), and Pauline v. Lee , 147 So. 2d 359 (Fla. 2d

DCA 1962). Consequently, even if Respondent was still employed on

December 14, 1996, the proof was insufficient to demonstrate, with

the requisite degree of certainty, that she violated the

provisions of Subsection 465.01(1)(b), Florida Statutes, and

therefore, Subsection 465.016(1)(e), Florida Statutes.

5/ The Administrative Complaint cites the rule provisions as

being codified at Chapter 59X-27 and 59X-28, Florida

Administrative Code; however, those provisions have been

transferred to Chapters 64B16-27 and 64B16-28, Florida

Administrative Code, respectively.

COPIES FURNISHED:

John O. Williams, Esquire

Maureen L. Holz, Esquire

Williams & Holz, P.A.

The Cambridge Centre

355 North Monroe Street

Tallahassee, Florida 32301

William M. Furlow, Esquire

Katz, Kutter, Haigler, Alderman,

Byrant & Yon, P.A.

Post Office Box 1877

Tallahassee, Florida 32302-1877

Nury D. Soler

4251 Southwest 107th Court

Miami, Florida 33165

John Taylor, Executive Director

Board of Pharmacy

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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.