NOTE:    The following Minutes are provided for informational purposes only.

If you would like to obtain an official copy of these Minutes, please contact the

State Board of Pharmacy at 614/466-4143 for instructions and fee.

 

 

 

Minutes Of The Meeting

Ohio State Board of Pharmacy

Columbus, Ohio

June 12, 13, 14, 2000

 

MONDAY, JUNE 12, 2000

 

  8:07 a.m.      ROLL CALL

 

The State Board of Pharmacy convened in Room 1914, Vern Riffe Center for Government and the Arts, 77 South High Street, Columbus, Ohio with the following members present:

 

Robert B. Cavendish, R.Ph. (President); Diane C. Adelman, R.Ph. (Vice-President); Ann D. Abele, R.Ph.; Suzanne R. Eastman, R.Ph.; Robert P. Giacalone, R.Ph.; Lawrence J. Kost, R.Ph.; Suzanne L. Neuber, R.Ph.; and Nicholas R. Repke, Public Member.

 

Also present were William T. Winsley, Executive Director; Timothy Benedict, Assistant Executive Director; David Rowland, Legal Affairs Administrator; and Sally Ann Steuk, Assistant Attorney General.

  8:08 a.m.

Ms. Abele moved that the Board go into Executive Session for the purpose of the investigation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code and for the purpose of conferring with an attorney for the Board regarding pending or imminent court action pursuant to Section 121.22(G)(3) of the Revised Code.  The motion was seconded by Mrs. Adelman and a roll call vote was conducted by President Cavendish as follows: Abele-Yes, Adelman-Yes, Eastman-Yes, Giacalone-Yes, Kost-Yes, Neuber-Yes, and Repke-Yes.

  8:50 a.m.

RES. 2000-178   The Executive Session ended and the Board meeting resumed in Public Session.  Ms. Eastman moved that the Board grant the continuance request in the matter of Seaport Chemical and Supply.  The motion was seconded by Mrs. Adelman and approved by the Board (Aye-7/Nay-0).

  8:52 a.m.

RES. 2000-179   Mr. Winsley reported that the following Settlement Agreement in the matter of Newtown Fire and Rescue had been signed by all parties and became effective on June 12, 2000:

 

SETTLEMENT AGREEMENT WITH THE STATE BOARD OF PHARMACY

(Docket No. D-000211-046)

 

In the Matter of:

 

NEWTOWN FIRE AND RESCUE

c/o Scott Frame, M.D.

3537 Church Street

Newtown, Ohio 45244

(Terminal Distributor No. 02-0980900)

 

THIS SETTLEMENT AGREEMENT IS ENTERED INTO BY AND BETWEEN NEWTOWN FIRE AND RESCUE AND THE OHIO STATE BOARD OF PHARMACY, A STATE AGENCY CHARGED WITH ENFORCING THE PHARMACY PRACTICE ACT AND DANGEROUS DRUG DISTRIBUTION ACT, CHAPTER 4729. OF THE OHIO REVISED CODE.

 

NEWTOWN FIRE AND RESCUE VOLUNTARILY ENTERS INTO THIS AGREEMENT BEING FULLY INFORMED OF ITS RIGHTS AFFORDED UNDER CHAPTER 119. OF THE OHIO REVISED CODE, INCLUDING THE RIGHT TO REPRESENTATION BY COUNSEL, THE RIGHT TO A FORMAL ADJUDICATION HEARING ON THE ISSUES CONTAINED HEREIN, AND THE RIGHT TO APPEAL.  NEWTOWN FIRE AND RESCUE ACKNOWLEDGES THAT BY ENTERING INTO THIS AGREEMENT IT HAS WAIVED ITS RIGHTS UNDER CHAPTER 119. OF THE REVISED CODE.

 

WHEREAS, the State Board of Pharmacy is empowered by Section 4729.57 of the Ohio Revised Code to suspend, revoke, refuse to renew any license issued to a terminal distributor of dangerous drugs pursuant to section 4729.54 of the Revised Code, or may impose a monetary penalty on the license holder, for violation of any of the enumerated grounds of Section 4729.57 of the Ohio Revised Code.

 

WHEREAS, Newtown Fire and Rescue is a licensed terminal distributor of dangerous drugs in the state of Ohio.

 

WHEREAS, on or about February 11, 2000, pursuant to Chapter 119. of the Ohio Revised Code, Newtown Fire and Rescue was notified of the allegations or charges against it, its right to a hearing, its rights in such hearing, and its right to submit contentions in writing.  The February 11, 2000, Notice of Opportunity for Hearing contains the following allegations or charges:

 

(1)     Records of the State Board of Pharmacy indicate that Scott Frame, M.D. is the responsible person for Newtown Fire and Rescue, terminal distributor license number 02-0980900, pursuant to Section 4729.55 of the Ohio Revised Code.

 

(2)     Newtown Fire and Rescue allowed its terminal distributor license to lapse from January 1, 1998, to November 4, 1999.  Such conduct is in violation of Section 4729.54(I) of the Ohio Revised Code.

 

WHEREAS, Newtown Fire and Rescue admits to the allegations or charges, and the Board hereby adjudicates the same.

 

WHEREAS, Newtown Fire and Rescue admits and acknowledges that it is not a “prevailing eligible party” for purposes of Revised Code Sections 119.092 and 2335.39.  Further, Newtown Fire and Rescue waives any rights it may have under Sections 119.09 and 2335.39 of the Ohio Revised Code.

 

WHEREAS, Newtown Fire and Rescue, with intention of binding itself and its successors in interest and assigns, hereby releases, and holds harmless from liability and forever discharges the State of Ohio, the Board, the Ohio Attorney General, and any and all of their present and former members, officers, attorneys, agents and employees, personally and in their official capacities, from any and all claims, demands, causes of actions, judgments, or executions that Newtown Fire and Rescue ever had, or now has or may have, known or unknown, or that anyone claiming through or under it may have or claims to have, created by or arising out of the allegations or charges filed by the Board against Newtown Fire and Rescue, set forth in the Notice of Opportunity for Hearing.

 

WHEREAS, Newtown Fire and Rescue acknowledges that it has had an opportunity to ask questions concerning the terms of this Agreement and that all questions asked have been answered in a satisfactory manner.

 

The parties, in consideration of the mutual covenants and promises contained herein, and in lieu of any further formal proceedings at this time, and intending to be bound by said covenants, agree as follows:

 

(A)     Pursuant to Sections 4729.25(B) and 4729.57 of the Ohio Revised Code, Newtown Fire and Rescue is hereby reprimanded.

 

(B)     Newtown Fire and Rescue agrees to pay licensing and late fees for the 1998 through 2000 renewal periods in the amount of $447.50.  (Paid on November 4, 1999.)

 

THIS AGREEMENT EMBODIES THE ENTIRE AGREEMENT BETWEEN AND OF THE PARTIES.  THERE ARE NO EXPRESS OR IMPLIED PROMISES, GUARANTEES, TERMS, COVENANTS, CONDITIONS, OR OBLIGATIONS OTHER THAN THOSE CONTAINED HEREIN; AND THIS AGREEMENT SUPERSEDES ALL PREVIOUS COMMUNICATIONS, REPRESENTATIONS OR AGREEMENTS, EITHER VERBAL OR WRITTEN, BETWEEN THE PARTIES.

 

THE PARTIES HERETO ACKNOWLEDGE THAT THIS AGREEMENT SHALL BE CONSIDERED A PUBLIC RECORD AS THAT TERM IS USED IN SECTION 149.43 OF THE OHIO REVISED CODE AND SHALL BECOME EFFECTIVE UPON THE DATE OF THE BOARD PRESIDENT’S SIGNATURE BELOW.

 

/s/          Scott Frame MD

 

/d/      30 Apr 00

Scott Frame, M.D., Responsible Person

Newtown Fire & Rescue

 

Date of Signature

 

 

 

/s/          R. Douglas Miller

 

/d/       5/1/00

R. Douglas Miller, Attorney for the Village of Newtown

 

Date of Signature

 

 

 

/s/          Robert B. Cavendish

 

/d/       6/12/00

Robert B. Cavendish, President, Ohio State Board of Pharmacy

 

Date of Signature

 

 

 

/s/          Sally Ann Steuk

 

/d/       7-6-00

Sally Ann Steuk, Assistant Attorney General

 

Date of Signature

  8:55 a.m.

The Board took a brief recess and toured the Pharmacy Board office to review the progress of the construction.

  9:27 a.m.

The meeting resumed.  The Board discussed the meeting schedule for FY 2001.  There was a conflict between the May, 2001 Board meeting and the Annual Meeting of the National Association of Boards of Pharmacy.  Ms. Abele moved that the Board’s meeting in May, 2001 be rescheduled to a one-day meeting to be held on May 15, 2001.  The motion was seconded by Ms. Eastman and approved by the Board (Aye-7/Nay-0).

  9:35 a.m.

RES. 2000-180   Mr. Winsley then presented the invoice for continued membership dues from the National Association of State Controlled Substance Authorities (NASCSA) for the Board’s approval.  The $150 dues were to cover membership in the organization for July 1, 2000 through June 30, 2001.  After discussion, Ms. Abele moved that the Board approve the payment of these dues.  The motion was seconded by Mr. Repke and approved by the Board (Aye-7/Nay-0).

  9:45 a.m.

RES. 2000-181   Mr. Winsley next presented a request from the American Council on Pharmaceutical Education (ACPE) for a Board member to accompany an ACPE accreditation team to the University of Cincinnati College of Pharmacy on October 24-26, 2000.  After discussion, Mr. Cavendish appointed Larry Kost to represent the Board during that accreditation visit.  The Board will be required to cover Mr. Kost’s expenses for the visit.

10:01 a.m.

RES. 2000-182   The Board then discussed the appointment of the two pharmacists to the Nursing Board’s Committee on Prescriptive Governance.  Under the terms of HB 241, it was necessary for the appointments to be made by this month’s meeting.  Ms. Eastman moved that Board member Larry Kost, R.Ph. be appointed as the Board member representative and that Ruth Plant, R.Ph. be appointed as the clinical representative.  The appointments are to be effective for one year.  The motion was seconded by Ms. Abele and approved by the Board (Aye-7/Nay-0).

10:10 a.m.

Mr. Winsley, Mr. Benedict, and the Board discussed current and pending legislation.  The discussion was based on the status listing of legislation that was distributed with the agenda for the meeting.  There were no items requiring formal action by the Board.

10:35 a.m.

Ms. Abele reported on the activities of the Nursing Board’s Formulary Committee.  The committee will meet in August with the Committee on Prescriptive Governance.

10:40 a.m.

The Board took a brief recess.

11:00 a.m.

RES. 2000-183   Mr. Littlejohn arrived and the meeting resumed.  The Board was joined by Don Schneider, R.Ph. of Riverside Methodist Hospital and James Klepcyk, R.Ph. of the Pyxis Corporation to discuss Riverside’s use of Pyxis Connect.  After discussion, the consensus of the Board was that this system would be acceptable, subject to periodic review and inspection to insure continued compliance with Ohio laws and rules.

11:25 a.m.

The Board recessed for lunch.

  1:00 p.m.

The meeting resumed with all members present.  Mr. Repke moved that the Board go into Executive Session to consider the employment of a public official pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Mrs. Adelman and a roll call vote was conducted by President Cavendish as follows: Abele-Yes, Adelman-Yes, Eastman-Yes, Giacalone-Yes, Kost-Yes, Littlejohn-Yes, Neuber-Yes, and Repke-Yes.

  1:30 p.m.

The Executive Session ended and the Board meeting was opened to the public.

  1:33 p.m.

Assistant Attorney General Sally Ann Steuk joined the Board for the purpose of presenting for adjudication, in accordance with Ohio Revised Code Chapters 119. and 4729., the matter of Nick C. Strovilas, Ironton.

  2:24 p.m.

The presentation concluded and the record was closed.  The Board took a brief recess.

  2:33 p.m.

Ms. Abele moved that the Board go into Executive Session for the purpose of the investigation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Ms. Eastman and a roll call vote was conducted by President Cavendish as follows: Abele-Yes, Adelman-Yes, Eastman-Yes, Giacalone-Yes, Kost-Yes, Littlejohn-Yes, Neuber-Yes, and Repke-Yes.

  3:10 p.m.

RES. 2000-184   The Executive Session ended and the meeting was opened to the public.  Ms. Abele moved that the Board deny the request for reconsideration of its Order in the matter of Robert F. Tschinkel.  The motion was seconded by Mrs. Neuber and approved by the Board (Aye-8/Nay-0).

 

RES. 2000-185   The Board then considered the request for an expedited hearing in the matter of Randy D. Mosier, R.Ph.  Mr. Mosier was scheduled for a hearing on September 6, 2000, but requested an earlier date through his attorney.  After a review of the Board’s hearing and meeting schedule, it was the consensus of the Board that no earlier date would be possible and that Mr. Mosier’s request would have to be denied.

  3:19 p.m.

RES. 2000-186   Ms. Eastman moved that the Board adopt the following Order in the matter of Nick C. Strovilas, R.Ph., Ironton:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-000330-051)

 

In The Matter Of:

 

NICK C. STROVILAS, R.Ph.

522 N. Third Street

Toronto, Ohio 43964

(R.Ph. No. 03-2-07171)

 

INTRODUCTION

 

THE MATTER OF NICK C. STROVILAS CAME FOR CONSIDERATION ON JUNE 12, 2000, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT B. CAVENDISH, R.Ph. (presiding); ANN D. ABELE, R.Ph.; DIANE C. ADELMAN, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; LAWRENCE J. KOST, R.Ph.; AMONTE B. LITTLEJOHN, R.Ph.; SUZANNE L. NEUBER, R.Ph.; AND NICHOLAS R. REPKE, PUBLIC MEMBER.

 

NICK C. STROVILAS WAS NOT PRESENT, NOR WAS HIS COUNSEL PRESENT, AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

 

(A)    Testimony

 

State's Witnesses:

 

(1)     George Pavlich, Ohio State Board of Pharmacy

 

Respondent's Witnesses:

 

(1)     None

 

(B)     Exhibits

 

State's Exhibits:

 

(1)     Exhibit 1--Copy of twelve-page Notice of Opportunity for Hearing letter dated March 30, 2000.

(2)     Exhibit 1A--Hearing Request letter dated April 28, 2000, from Attorney Frank M. Moore received in the Board office on May 8, 2000, with envelope displaying two stamped dates as follows: April 28, 2000, made by. Pittsburgh PA Meter No. 5004822, and May 4, 2000, made by the Pittsburgh PA 152 Post Office for cancellation.

(3)     Exhibit 1B--Copy of letter from David L. Rowland dated May 11, 2000.

(4)     Exhibit 1C--Copy of Pharmacist File Front Sheet of Nick G. Strovilas showing original date of registration as March 8, 1960; and copy of Ohio Board of Pharmacy, Pharmacists/Interns licensing information report for R.Ph. No. 03-2-07171 of Nick C. Strovilas dated May 17, 2000.

(5)     Exhibit 2--Copy of Dangerous Drug Distributor Inspection Reports of Mike’s Rexall Pharmacy, Terminal Distributor No. 02-05-2847 and/or 02-0123650, as follows: report dated March 22, 1982; report dated March 28, 1983; report dated August 8, 1984; report dated August 17, 1989; three-page report dated December 12, 1991; report dated November 2, 1992; and two-page report dated May 3, 1994; and copy of letter from Michael Popovich dated May 18, 1994.

(6)     Exhibit 3--Copy of six-page Dangerous Drug Distributor Inspection Report of Mike’s Rexal (sic) Pharmacy, Terminal Distributor No. 02-0123650, dated March 30, 1998.

(7)     Exhibit 4--Copy of six-page list of adulterated drugs, sample drugs, and outdated drugs removed from Mike’s Pharmacy, Case No. 98-1192.

(8)     Exhibit 5--Prescription vial with Mike’s Pharmacy label containing 24 sample tablets of Monopril 10mg with the word “Sample” crudely scraped off the tablets; prescription vial containing 94 sample tablets of Monopril 10mg with the word “Sample” crudely scraped off the tablets; and prescription vial containing small piece of paper labeled “Soma Compound” and 80 sample tablets of Soma Compound 200/325 with the word “Sample” crudely scraped off the tablets.

(9)     Exhibit 6--Two starter sample vials of SYN-Rx DM tablets with physician label.

(10)   Exhibit 7--Copy of fourteen-page Dangerous Drug Distributor Inspection Report of Mikes Rexall Pharmacy, Terminal Distributor No. 02-0123650, dated April 1, 1998.

(11)   Exhibit 8--Copy of twelve-page response to the “Pink Sheet” violations recorded on the April 1, 1998, Dangerous Drug Distributor Inspection Report of Mikes Rexall Pharmacy signed by Michael Popovich and Nick Strovilas on April 1, 1998.

(12)   Exhibit 9--Copies of twenty-seven Accountability Statements of Mikes Rexall Pharmacy, Terminal Distributor No. 02-0123650, for the audit period of April 30, 1996, through March 30, 1998, dated January 10, 1999, for the following drugs: Ultram 50mg; Soma-Carisoprodol; Oxycontin 40mg; Oxycontin 20mg; Oxycontin 10mg; Tylox and Roxilox 5/500; Percodan and Oxycodone/APAP; Percocet, Roxicet, and Oxycodone/APAP; Valium 10mg (Diazepam); Valium 5mg (Diazepam); Valium 2mg (Diazepam); Ativan 2mg (Lorazepam); Ativan 1mg (Lorazepam); Ativan .5mg (Lorazepam); Xanax 1mg (Alprazolam); Xanax 0.5mg (Alprazolam); Xanax 0.25mg (Alprazolam); Lorcet 10/650 (Hydrocodone Bitartrate); Lorcet Plus 7.5/650 (Hydrocodone Bitartrate/APAP); Lortab 7.5/500 (Hydrocodone Bitartrate); Vicodin ES 7.5/750 (Hydrocodone Bitartrate); MS Contin 15mg (Morphine Sulfate); MS Contin 30mg (Morphine Sulfate); Ritalin 10mg (Methylphenidate); Ritalin SR 20mg (Methylphenidate); Vicodin and Lortab 5/500 (Hydrocodone Bitartrate); and Darvocet N/100 (Propoxyphene Napsylate).

(13)   Exhibit 10--Copies of two pages of patient profile records of Richard Shimmel dated from January 18, 1996, through February 1, 1998; and, copies of the following prescriptions 380208, 379409, 382985, 382842, 379962, 379665, 384247, 380207, 382938, 383018, 378928, 379591, 379636, and 378650.

(14)   Exhibit 11--Three-page copy of Ohio State Board of Pharmacy Report of Investigation, Case No. 98-1192, Statement of Richard Shimmel, signed and notarized on November 15, 1999.

(15)   Exhibit 12--Copy of prescription number 384886.

(16)   Exhibit 13--Copies of eleven pages of Lathem family profiles (Charles, Deidra, and Sequoia) dated from January 4, 1996, through March 23, 1998.

(17)   Exhibit 14--Copies of nineteen prescriptions numbered as follows: 382290, 379322, 379119, 383711, 384377, 384884, 384885, 383710, 383890, 384535, 381047, 381869, 376653, 375422, 378397, 378822, 378543, 378823, and 379120.

(18)   Exhibit 15--Copy of two-page Ohio State Board of Pharmacy Report of Investigation, Case No. 98-1192, by Agent David Gallagher dated April 8, 1998.

(19)   Exhibit 16--Copies of five pages of patient profile records of Robert Swiger, Sr. dated from January 11, 1996, through March 23, 1998.

(20)   Exhibit 17--Copy of five spreadsheets regarding Robert D. Swiger, Case No. 98-1429, dated October 22, 1998

(21)   Exhibit 18--Copy of eleven-page Ohio State Board of Pharmacy Report of Investigation, Case No. 98-1192, Statement of Robert Swiger, Sr. signed and notarized on December 22, 1999.

(22)   Exhibit 19--Copy of nine-page Ohio State Board of Pharmacy Report of Investigation, Case No. 98-1192, Statement of Crist Strovilas, M.D. signed and notarized on December 6, 1999.

(23)   Exhibit 20--Twenty-page copy of Ohio State Board of Pharmacy Report of Investigation regarding the Statement of Michael Popovich, signed and notarized on November 15, 1999.

(24)   Exhibit 21--Copy of thirty-four-page Ohio State Board of Pharmacy Report of Investigation, Case No. 98-1192, Statement of Nick Strovilas, R.Ph. signed and notarized December 6, 1999.

(25)   Exhibit 22--Copy of prescription number 381877.

(26)   Exhibit 23--Copy of prescription number 384889.

(27)   Exhibit 24--Copy of prescription number 385222.

(28)   Exhibit 25--Copy of prescription number 383877.

(29)   Exhibit 26--Copy of prescription number 384255.

(30)   Exhibit 27--Copy of prescription number 378864.

(31)   Exhibit 28--Copy of prescription number 379981.

(32)   Exhibit 29--Copy of prescription number 382349.

(33)   Exhibit 30--Copy of fourteen-page, thirty-eight-count Indictment, in the Jefferson County Court of Common Pleas, State of Ohio vs. Nick C. Strovilas, Case No. 00-CR-17, dated February 2, 2000.

 

Respondent's Exhibits:

 

(1)     None

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witness, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the following to be fact:

 

(1)     On March 30, 2000, Nick C. Strovilas was notified by letter of his right to a hearing, his rights in such hearing, and his right to submit his contentions in writing.

 

(2)     As demonstrated by return receipt, not dated, Nick C. Strovilas received the letter of March 30, 2000, informing him of the allegations against him, and his rights.

 

(3)     Nick C. Strovilas did not request a hearing in a timely manner pursuant to Chapter 119. of the Ohio Revised Code, and the matter was referred to the Board for consideration.

 

(4)     Records of the State Board of Pharmacy indicate that Nick C. Strovilas was originally licensed in the state of Ohio on March 8, 1960, pursuant to examination.  Records further indicate that Nick C. Strovilas’ license lapsed on September 15, 1998.

 

(5)     Nick C. Strovilas did, from on or about April 30, 1996, through September 15, 1998, being employed by, or associated with, an enterprise and conducted or participated in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt when the conduct was not in accordance with Chapters 3719. and 4729. of the Ohio Revised Code, to wit: Nick C. Strovilas engaged in a pattern of corrupt criminal activity by continuously committing felony drug crimes.  Such conduct is in violation of Section 2923.32(A)(1) of the Ohio Revised Code.

 

(6)     Nick C. Strovilas did, from on or about April 30, 1996, through April 1, 1998, knowingly furnish another a sample drug, to wit: Nick C. Strovilas obtained the following drug samples from Jefferson County physicians and furnished them to Mike’s Pharmacy to sell to patients:

 

Contents of Evidence Box #2:

 

Sample Drug/Strength/Form

Type of

container

Qty found

in the vial

Qty noted

on the vial

Altace cap

mfg. pkg.

191

192

Altace cap

mfg. pkg.

175

176

Amaryl 2mg

mfg. pkg.

49

48

Amaryl 4mg

mfg. pkg.

47

48

Capozide 25mg

mfg. pkg.

266

270

Capozide tab

mfg. pkg.

106

72

Corgard

mfg. pkg.

95

112

Corzide 5mg tablet

vial

305

no  #

Covera-HS tab

vial

100

180

Covera-HS tab 240mg

mfg. pkg.

75

75

Diovan 80mg

mfg. pkg.

107

108

Lotensin 10mg

mfg. pkg.

416

70

Lotrel 10/2.5 cap

mfg. pkg.

95

no #

Monopril 10mg tab 

vial

126

no #

Monopril 10mg tab 

mfg. pkg.

236

105

Monopril tablet

mfg. vial

670

no #

Mykrox tablet

vial

60

60

Nizoral tablet

vial

34

20

Pravachol tab

mfg. pkg.

44

4

Rynatan tab

vial

66

88

Rynatan tab

vial

60

108

Rynatuss tab

vial

8

8

Serzone tablets

vial

27

no #

Serzone tablets

mfg. pkg.

178

167

Suprax 400mg  tab

mfg. pkg.

25

no #

Suprax 400mg tab

vial

36

36

Suprax tab

vial

18

25

Synthroid tabs

vial

32

no #

Synthroid 175mg

mfg. pkg.

42

42

Tegretol 200mg tab

mfg. pkg.

95

8

Trandate 200mg tabs (split in half)

vial

30

no #

Vaseretic 10/25 tabs

mfg. pkg.

113

4

Vaseretic 5/12.5 tabs

mfg. pkg.

111

4

Verelan 180mg cap

mfg. pkg.

105

no #

Verelan 360mg caps

vial

50

no #

Verelan 120mg tab

mfg. pkg.

19

20

Zocor 40mg tablet

vial

113

112

Zoloft tab

mfg. pkg.

164

168

 

Contents of Evidence Box #3:

 

Sample Drug/Strength/Form

Type of

container

Qty found

in the vial

Qty noted

on the vial

Altace cap

mfg. pkg.

191

192

Anaprox DS tabs

mfg. bottle

170

no #

Avapro 150mg

vial

91

91

Coreg 6.25

vial

140

140

Duratuss G 1200mg

vial

25

50

Effexor 75mg

vial

12

12

Effexor 37.5 tabs

vial

120

120

Fosamax 10mg tab

vial

18

18

Fosamax 5mg tab

vial

35

36

Fumadine tabs

vial

29

30

Lodine 500mg tabs

mfg. bottle

78

108

Loterl 5/20 cap

vial

48

48

Lotrel 2.5/10

vial

95

96

Mavik 1mg tabs

vial

97

91

Mavik 1mg tabs

vial

420

420

Microzide 12.5mg caps

vial

56

56

Microzide 12.5mg caps

vial

220

240

Nu-Iron tabs

vial

11

11

Slow Fe tabs

vial

120

no #

Tarka 1/240 tab

vial

35

35

Tarka 2/180 tab

vial

105

105

Tarka 2/240 tab

vial

70

70

Tarka 2/240 tab

vial

35

35

Tarka 4/240

vial

35

35

Tarka 4/240

vial

69

70

Tiazac 360mg caps

vial

34

35

Tritec 400mg

vial

139

140

Valtrex 500mg tab

vial

65

61

 

Contents of Evidence Box #4:

 

Sample Drug/Strength/Form

Type of

container

Qty found

in the vial

Qty noted

on the vial

Altace cap

mfg. pkg.

191

192

Anatuss LA tabs

mfg. bottle

232

221

Covera-HS 180mg tabs

mfg. bottle

174

175

Duratuss 1200mg

mfg. bottle

50

54

Lodine 500mg

mfg. bottle

252

230

Phrenilin  50mg

mfg. bottle

166

168

Phrenilin Forte 50mg caps

vial

54

54

Precose  50mg

mfg. bottle

374

470

Sedapap 50 / 650

mfg. bottle

99

236

Semprex caps

mfg. bottle

239

348

Valtrex 500mg

mfg. bottle

156

156

Zephrex LA tabs

mfg. bottle

76

96

Zyflo 600mg

mfg. bottle

95

96

 

Contents of Evidence Box #7:

 

Sample Drug/Strength/Form

Type of

container

Qty found

in the vial

Qty noted

on the vial

Cardizem 240mg CD tabs

vial

56

no #

EC -Naprosyn 500mg tab

vial

59

no #

EC-Naprosyn  375mg tabs

vial

69

70

Lorabid  200mg caps

vial

6

72

Lorabid 200mg caps

vial

60

60

Lorabid 400mg  caps

vial

20

20

Lotensin 10mg tabs

mfg. vial

180

100

Lotrel 5 / 10 (sample

  handwritten on the label)

vial

45

48

Paxil  30mg tabs

vial

30

no #

Precose 50mg tabs

mfg. vial

204

100

Prilosec 10mg caps

vial

44

70

Prozac  30mg caps

vial

52

no #

Prozac 20mg caps

mfg. vial

129

100

Prozac 20mg caps

mfg. vial

79

30

Prozac 20mg caps

mfg. vial

143

100

Prozac 30mg caps

vial

80

no #

Seldane 60mg tabs

mfg. vial

157

100

Syn-Rx DM tabs (two vials

  banded together w/sample pkt)

vials / pkt

78

 

 

Contents of Evidence Box #9:

 

Sample Drug/Strength/Form

Type of

container

Qty found

in the vial

Qty noted

on the vial

Arthrotec 75mg tabs

  (with patient name John Smuda)

vial

11

14

Cefzil  500mg

vial

14

24

Cipro 750 tabs

vial

3

no #

Cipro Cystitis 100mg tabs

vial

18

18

Cystospaz .375mcg caps

sample vial

21

12

Deconsal Sprinkle cap

sample vial

25

4

Dulcolax 5mg tab

sample vial

17

5

Famvir 125mg tabs

vial

127

95

Famvir 250mg tab

vial

15

15

Generic Elavil 100mg

vial

183

no #

Hemaspan tab

vial

24

24

Lamisil Tabs

vial

12

12

Levaquin 250mg tab

vial

14

12

Maxaquin  400mg tabs

vial

8

8

Mevacor 10mg

vial

96

96

Naprosyn  375mg tabs

vial

5

20

Normodyne  100mg tabs

mfg vial

194

100

Pink Gray capsule (Unknown)

vial

44

no #

Posicor 100mg tab

vial

28

28

Posicor 50mg tab

vial

28

no #

Posicor 50mg tab

vial

139

140

Premphase .625mg / 5mg

vial

140

140

Prozac 10mg caps

vial

7

no #

Seldane tablets  (National Rx

  vial w/label for William Apesos)

patient vial

38

60

Synthroid 112mcg tabs

vial

42

42

Synthroid tab

vial

42

42

Theo  400mg

vial

18

no #

Tolectin 600mg

sample vial

42

6

Toprol XL  200mg tab

sample vial

26

7

Uni-Dur 400mg tabs

  (in a 600 mg sample bottle)

sample vial

21

7

Uro-Mag caps

sample vial

119

60

Ziac 10 / 6.25mg tabs

vial

5

no #

Zocor 40mg

vial

86

136

Zocor 5mg tabs

sample vial

8

4

Zoloft 50mg tabs

mfg vial

301

100

Zoloft 50mg tabs

vial

278

no #

Zovirax  400mg

vial

10

10

 

Contents of Evidence Box #11:

 

Sample Drug/Strength/Form

Type of

container

Qty found

in the vial

Qty noted

on the vial

Axocet

mfg. vial

66

72

Covera-HS 240mg tab

mfg. vial

198

200

EC Naprosyn  500mg

mfg. vial

90

160

Lotrel 2.5mg

vial

48

48

Midrin 65/100/325

vial

60

no #

Naprelan 500mg tabs

mfg. vial

169

216

Pink Tab P/F no label on vial

mfg. vial

269

no #

Pink Tab P/F no label on vial

mfg. vial

261

no #

Premphase .625

vial

42

42

Premphase .625

vial

42

42

Sporonax

mfg. vial

61

no #

Sular 20mg

mfg. vial

185

416

Sular 20mg

mfg. vial

151

252

Tarka 1/240

mfg. vial

104

70

Theo-24 200mg caps

mfg. vial

203

223

Tiazac 180mg caps

mfg. vial

247

379

Tiazac 300mg caps

mfg. vial

135

285

Trinalin 3.72 tabs

mfg. vial

668

no #

Trinalin 3.72 tabs

mfg. vial

140

no #

Uniphyl  600mg

Smuckers Jar

298

298

Univasc 15mg

 

 

 

   ( pills are split in the bottle )

vial

29

no #

Univasc 15mg

 

 

 

   ( pills are split in the bottle )

vial

32

no #

Univasc 15mg tabs

mfg. vial

708

770

Zyflo 600mg

mfg. vial

64

64

 

Such conduct is in violation of Section 2925.36 of the Ohio Revised Code.

 

(7)     Nick C. Strovilas did, on or about April 30, 1996, through September 15, 1998, adulterate, mutilate, destroy, obliterate or remove of the whole or any part of the labeling of a drug, while the article was held for sale, resulting in the article being misbranded, to wit: agents of the Board discovered that the word “sample” was crudely scrapped off medications in an attempt to alter their distribution appearance prior to sale; the following are examples of Nick C. Strovilas’ conduct:

 

Drug

Quantity

Monopril 10mg

24

Monopril 10mg

94

Soma Compound 200/325

80

 

Such conduct is in violation of Section 3715.52(A) of the Ohio Revised Code.

 

(8)     Nick C. Strovilas did, on or about January 26, 1998, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 384886 for 40 unit doses of Vicodin ES, a Schedule III controlled substance, when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(9)     Nick C. Strovilas did, on or about January 26, 1998, sell a controlled substance in an amount exceeding the bulk amount but not exceeding five times the bulk amount when the conduct was not in accordance with Chapters 3719. and 4729. of the Ohio Revised Code, to wit: Nick C. Strovilas sold 40 unit doses of Vicodin ES, a Schedule III controlled substance, without a legitimate prescription and without legitimate medical purpose pursuant to prescription number 384886.  Such conduct is in violation of Section 2925.03(A) of the Ohio Revised Code.

 

(10)   Nick C. Strovilas did, on or about February 1, 1998, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 384886 for 40 unit doses of Vicodin ES, a Schedule III controlled substance, when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(11)   Nick C. Strovilas did, on or about February 1, 1998, sell a controlled substance in an amount exceeding the bulk amount but not exceeding five times the bulk amount when the conduct was not in accordance with Chapters 3719. and 4729. of the Ohio Revised Code, to wit: Nick C. Strovilas sold 40 unit doses of Vicodin ES, a Schedule III controlled substance, without a legitimate prescription and without a legitimate medical purpose pursuant to prescription number 384886.  Such conduct is in violation of Section 2925.03(A) of the Ohio Revised Code.

 

(12)   Nick C. Strovilas did, on or about April 15, 1997, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 381877 for 30 unit doses of Rynatan 30mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(13)   Nick C. Strovilas did, on or about January 27, 1998, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 384889 for 20 unit doses of Biaxin 500mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(14)   Nick C. Strovilas did, on or about February 20, 1998, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 385222 for 60 unit doses of Ultram 50mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(15)   Nick C. Strovilas did, on or about October 20, 1997, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 383877 for 90 unit doses of Soma 350mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(16)   Nick C. Strovilas did, on or about November 21, 1997, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 384255 for 90 unit doses of Soma 350mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(17)   Nick C. Strovilas did, on or about December 22, 1997, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 384255 for 90 unit doses of Soma 350mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(18)   Nick C. Strovilas did, on or about January 19, 1998, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 384255 for 90 unit doses of Soma 350mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(19)   Nick C. Strovilas did, on or about February 16, 1998, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 384255 for 90 unit doses of Soma 350mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(20)   Nick C. Strovilas did, on or about March 16, 1998, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 384255 for 90 unit doses of Soma 350mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(21)   Nick C. Strovilas did, on or about July 18, 1996, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 378864 for 60 unit doses of Xanax .5mg, a Schedule IV controlled substance, when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(22)   Nick C. Strovilas did, on or about October 31, 1996, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 379961 for 30 unit doses of Xanax .5mg, a Schedule IV controlled substance, when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(23)   Nick C. Strovilas did, on or about November 18, 1996, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 379961 for 30 unit doses of Xanax .5mg, a Schedule IV controlled substance, when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code. 

 

(24)   Nick C. Strovilas did, on or about December 9, 1996, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 379961 for 30 unit doses of Xanax .5mg, a Schedule IV controlled substance, when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(25)   Nick C. Strovilas did, on or about January 7, 1997, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 379961 for 30 unit doses of Xanax .5mg, a Schedule IV controlled substance, when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(26)   Nick C. Strovilas did, on or about May 27, 1997, knowingly make a false statement in a prescription order, report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Nick C. Strovilas created prescription number 382349 for 30 unit doses of Ultram 350mg when not authorized by a practitioner in violation of Section 2925.23(A) of the Ohio Revised Code.

 

CONCLUSIONS OF LAW

 

(1)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (5) through (26) of the Findings of Fact constitute being guilty of a felony or gross immorality as provided in Division (A)(1) of Section 4729.16 of the Ohio Revised Code.

 

(2)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (5) through (26) of the Findings of Fact constitute being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(3)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (5) through (26) of the Findings of Fact constitute being guilty of willfully violating, conspiring to violate, attempting to violate, or aiding and abetting the violation of provisions of Sections 3715.52 to 3715.72 or Chapter 2925. of the Revised Code as provided in Division (A)(5) of Section 4729.16 of the Ohio Revised Code.

 

ACTION OF THE BOARD

 

Pursuant to Section 4729.16 of the Ohio Revised Code, the State Board of Pharmacy takes the following actions in the matter of Nick C. Strovilas:

 

(A)     On the basis of the Findings of Fact and paragraph (1) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby revokes the pharmacist identification card, No. 03-2-07171, held by Nick C. Strovilas effective as of the date of the mailing of this Order.

 

(B)     On the basis of the Findings of Fact and paragraph (2) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby revokes the pharmacist identification card, No. 03-2-07171, held by Nick C. Strovilas effective as of the date of the mailing of this Order.

 

(C)     On the basis of the Findings of Fact and paragraph (3) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby revokes the pharmacist identification card, No. 03-2-07171, held by Nick C. Strovilas effective as of the date of the mailing of this Order.

 

Pursuant to Section 4729.16(B) of the Ohio Revised Code, Nick C. Strovilas must return the identification card and license (wall certificate) to the office of the State Board of Pharmacy within ten days after receipt of this Order.  The certificate and identification card should be sent by certified mail, return receipt requested.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Mr. Littlejohn and approved by the Board (Aye-8/Nay-0).

  3:23 p.m.

The Board meeting recessed until Tuesday, June 13, 2000.

 

 

TUESDAY, june 13, 2000

 

  8:05 a.m.      ROLL CALL

 

The State Board of Pharmacy convened in Room 1914, Vern Riffe Center for Government and the Arts, 77 South High Street, Columbus, Ohio with the following members present:

 

Robert B. Cavendish, R.Ph. (President); Diane C. Adelman, R.Ph. (Vice-President); Ann D. Abele, R.Ph.; Robert P. Giacalone, R.Ph.; Lawrence J. Kost, R.Ph.; and Nicholas R. Repke, Public Member.

  8:14 a.m.

Ms. Abele moved that the Board go into Executive Session for the purpose of the investigation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Mrs. Adelman and a roll call vote was conducted by President Cavendish as follows: Abele-Yes, Adelman-Yes, Giacalone-Yes, Kost-Yes, and Repke-Yes.

  8:18 a.m.

Mrs. Neuber joined the Executive Session in progress.

  8:21 a.m.

RES. 2000-187   The Executive Session ended and the meeting was opened to the public.  Ms. Abele then moved that, pursuant to Section 3719.121 of the Revised Code, the Board summarily suspend the license to practice pharmacy belonging to William C. Ringle, R.Ph. (03-3-11849) due to the fact that a continuation of his professional practice presents a danger of immediate and serious harm to others.  The motion was seconded by Mr. Repke and approved by the Board (Aye-5/Nay-0/Abstain-1[Neuber]).

  8:25 a.m.

RES. 2000-188   Mr. Winsley presented a request from Ritzman Pharmacy and Summa Health System for an exemption from the prohibition of a pick-up station pursuant to Rule 4729-5-10 of the Administrative Code.  Mrs. Neuber moved that the exemption be granted with the provision that any medications that are not delivered to the patients’ homes by the close of business must be returned to the pharmacy for storage.  The motion was seconded by Mr. Giacalone and approved by the Board (Aye-6/Nay-0).

  8:35 a.m.

RES. 2000-189   Mr. Benedict presented a request from Jay Belcher, R.Ph. that he be permitted to work as a cook at Clermont Mercy Hospital without being considered in violation of his Board Order.  After discussion, the consensus of the Board was that this would not be a violation of his Board Order.

  8:44 a.m.

After a discussion of the proposed Minutes for the May 1, 2, 3, 2000 Board meeting, Ms. Abele moved that they be approved as amended.  The motion was seconded by Mrs. Neuber and approved by the Board (Aye-6/Nay-0).

 

Mr. Littlejohn arrived and joined the meeting in progress.

  8:45 a.m.

The Board took a brief recess.

  9:19 a.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of James Murray Bayless, R.Ph., Fort Thomas, Kentucky.

11:16 a.m.

The hearing concluded and the record was closed. 

11:25 a.m.

Ms. Abele moved that the Board go into Executive Session for the purpose of the investigation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Mrs. Neuber and a roll call vote was conducted by President Cavendish as follows: Abele-Yes, Adelman-Yes, Giacalone-Yes, Kost-Yes, Littlejohn-Yes, Neuber-Yes, and Repke-Yes.

11:35 a.m.

RES. 2000-190   The Executive Session ended and the meeting was opened to the public.  Mrs. Neuber moved that the Board adopt the following Order in the matter of James Murray Bayless, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-990908-018)

 

In The Matter Of:

 

JAMES MURRAY BAYLESS, R.Ph.

431 Highland Avenue

Fort Thomas, KY 41073

(R.Ph. No. 03-3-10368)

 

INTRODUCTION

 

THE MATTER OF JAMES MURRAY BAYLESS CAME FOR HEARING ON JUNE 13, 2000, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT B. CAVENDISH, R.Ph. (presiding); ANN D. ABELE, R.Ph.; DIANE C. ADELMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; LAWRENCE J. KOST, R.Ph.; AMONTE B. LITTLEJOHN, R.Ph.; SUZANNE L. NEUBER, R.Ph.; AND NICHOLAS R. REPKE, PUBLIC MEMBER.

 

JAMES MURRAY BAYLESS WAS REPRESENTED BY ERIC J. PLINKE, AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

 

(A)    Testimony

 

State's Witnesses:

 

(1)     Michael Cluxton, Ohio State Board of Pharmacy

 

Respondent's Witnesses:

 

(1)      James Murray Bayless, Respondent

(2)     Wayne Miller, R.Ph., Pharmacists Rehabilitation Organization, Inc.

 

(B)     Exhibits

 

State's Exhibits:

 

(1)     Exhibit 1--Copy of four-page Summary Suspension Order/Notice of Opportunity for Hearing dated September 8, 1999.

(2)     Exhibit 1A--Hearing Request letter dated October 5, 1999.

(3)     Exhibit 1B--Copy of Hearing Schedule letter dated October 8, 1999.

(4)     Exhibit 1C--Hearing Representation and Continuance Request letter dated January 13, 2000.

(5)     Exhibit 1D--Copy of Hearing Schedule letter dated January 14, 2000.

(6)     Exhibit 1E--Copy of Pharmacist File Front Sheet of James Murray Bayless showing original date of registration as March 6, 1973, and copy of Renewal Application for Pharmacist License No. 03-3-10368 for a license to practice pharmacy in Ohio from September 15, 1999, to September 15, 2000, of James Murray Bayless dated August 1, 1999.

(7)     Exhibit 2--Three 4" x 4" photos of drugs possessed by James M. Bayless on August 26, 1999.

(8)     Exhibit 3--Copy of “382-Price Hill Drug Audit” report for the period of August 25, 26, 1999.

(9)     Exhibit 4--Copy of three-page “Agreed Order” of the Commonwealth of Kentucky, Kentucky Board of Pharmacy vs. James M. Bayless, Agency Case No. 97-0091, signed and dated by James M. Bayless on September 16, 1999; and “Agreed Order of Surrender” of the Commonwealth of Kentucky Board of Pharmacy In Re: James Murray Bayless effective October 27, 1999.

(10)   Exhibit 5--Copy of “Prosecuting Attorney's Request for Issuance of Warrant Upon Indictment” in the State of Ohio, Hamilton County Court of Common Pleas, State of Ohio vs. James Bayless, Case No. B9906897; and certified copy of three-page, three-count, Indictment in the State of Ohio, Hamilton County Court of Common Pleas, of James Bayless, Case No. B9906897, dated September 21, 1999.

(11)   Exhibit 6--Two-page certified copy of “Entry Withdrawing Plea of Not Guilty and Entering Plea of Guilty” in the Hamilton County Common Pleas Court, State of Ohio vs. James Bayless, Case No. B9906897, dated November 22, 1999.

(12)   Exhibit 7--Two-page certified copy of “Entry Finding Defendant Eligible for Treatment in Lieu of Conviction Staying Proceedings, and Ordering Period of Rehabilitation” in the Hamilton County Common Pleas Court, The State of Ohio vs. James Murray Bayless, Case No. B9906897, dated November 22, 1999.

 

Respondent's Exhibits:

 

(1)     Respondent’s Exhibit List dated June 13, 2000.

(2)     Exhibit A--Medical Records Release form of James Bayless dated April 27, 2000; and copies of sixty-six pages of Bethesda Treatment Records regarding James M. Bayless dated from November 29, 1999, through February 10, 2000.

(3)     Exhibit B1--Letter from Diane Brock dated May 18, 2000.

(4)     Exhibit B2--Copy of Letter from Molly E. Fitzgerald dated May 23, 2000, and copy of letter from Tim O’Leary dated May 11, 2000.

(5)     Exhibit B3--Letter from Jay S. Belcher dated May 21, 2000.

(6)     Exhibit B4--Copy of letter from Rick Michler dated December 8, 1999.

(7)     Exhibit B5--Letter from Sidney Crow, not dated.

(8)     Exhibit C1--Copies of fifteen 12-Step Reaction Sheets dated from January 11, 1999, through February 4, 2000.

(9)     Exhibit C2--Copies of three pages of Record of Meeting Attendance of Client No. 144 dated from February 6, 2000, through May 28, 2000.

(10)   Exhibit D--Copies of thirteen pages consisting of twelve urine drug screen reports of James Bayless dated from December 13, 1999, through April 27, 2000.

(11)   Exhibit E1--Two-page copy of Pharmacists Rehabilitation Organization, Inc. Pharmacist’s Recovery Contract of James M. Bayless dated January 18, 2000.

(12)   Exhibit E2--Letter from Matthew E. Fisher dated June 9, 2000.

(13)   Exhibit E3--Letter from Matthew E. Fisher, not dated and E-mail message from Keith Wire dated June 7, 2000.

(14)   Exhibit E4--Copy of Airborne Express Airbill, No. 3458045360, from Matt Fisher dated May 18, 2000; and copy of Chain of Custody Document/Request Form regarding Donor James M. Bayless dated May 18, 2000.

(15)   Exhibit F--Copies of ten Continuing Pharmacy Education Certificates of James Bayless dated from February 20, 2000, through June 2, 2000.

(16)   Exhibit G--Copy of three-page Commonwealth of Kentucky Board of Pharmacy “Agreed Order of Surrender” In Re: James Murray Bayless entered October 27, 1999.

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the following to be fact:

 

(1)     Records of the State Board of Pharmacy indicate that James Murray Bayless was originally licensed in the state of Ohio on March 6, 1973, pursuant to examination, and is currently licensed to practice pharmacy in the state of Ohio.

 

(2)      James Murray Bayless is addicted to and/or abusing liquor or drugs or impaired physically or mentally to such a degree as to render him unfit to practice pharmacy, to wit: James Murray Bayless has admitted stealing drugs from his employer; James Murray Bayless has admitted that he has a “drinking problem”; James Murray Bayless has admitted consuming a fifth of Vodka on a daily basis, at times with controlled substances; and James Murray Bayless has admitted practicing pharmacy while impaired.  Such conduct indicates that James Murray Bayless falls within the ambit of Sections 3719.121(B) and 4729.16(A)(3) of the Ohio Revised Code.

 

(3)      James Murray Bayless did, on August 26, 1999, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Kroger Pharmacy #382, beyond the express or implied consent of the owner and/or by deception, to wit: James Murray Bayless stole the following controlled substances from his employer:

 

Drug

Quantity

Lortab 7.5mg

8

Vicoprophen

1

Wellbutrin

1

Percocet

40

 

Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(4)      James Murray Bayless did, from July 4, 1998, through August 26, 1999, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Kroger #382, beyond the express or implied consent of the owner and/or by deception, to wit: James Murray Bayless stole the following controlled substances from his employer:

 

Drug

Quantity

Tenuate 25mg

134

Tenuate 75mg

109

Diethylpropion 75mg

100

Ionamin 30mg

98

Phentermine 37.5mg

94

Phentermine 30mg

200

Phentermine 15mg

100

Roxicet

54

Meridia 10mg

25

Meridia 15mg

74

Hydrocodone 7.5mg w/APAP 500mg

40

Hydrocodone 2.5mg w/APAP 500mg

2

Vicodin 5mg/500mg

148

Hydrocodone 5mg/APAP 500mg

6,204

Hydrocodone 10mg/APAP 650mg

66

Vicodin ES

295

Lortab 5/500

16

Vicoprofen 7.5/200

350

Methylphenidate 5mg

6

 

Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

CONCLUSIONS OF LAW

 

(1)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (3) and (4) of the Findings of Fact constitute being guilty of a felony as provided in Division (A)(1) of Section 4729.16 of the Ohio Revised Code.

 

(2)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (2) through (4) of the Findings of Fact constitute being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(3)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraph (2) of the Findings of Fact constitutes being addicted to or abusing liquor or drugs or impaired physically or mentally to such a degree as to render him unfit to practice pharmacy as provided in Division (A)(3) of Section 4729.16 of the Ohio Revised Code.

 

(4)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraph (2) of the Findings of Fact constitutes being guilty of willfully violating, conspiring to violate, attempting to violate, or aiding and abetting the violation of provisions of Chapters 3719. and 4729. of the Revised Code as provided in Division (A)(5) of Section 4729.16 of the Ohio Revised Code.

 

ACTION OF THE BOARD

 

Pursuant to Section 3719.121 of the Ohio Revised Code, the State Board of Pharmacy hereby removes the Summary Suspension Order issued to James Murray Bayless on September 8, 1999.

 

Pursuant to Section 4729.16 of the Ohio Revised Code, the State Board of Pharmacy takes the following actions in the matter of James Murray Bayless:

 

(A)     On the basis of the Findings of Fact and Conclusions of Law, the State Board of Pharmacy hereby indefinitely suspends the pharmacist identification card, No. 03-3-10368, held by James Murray Bayless and such suspension is effective as of the date of the mailing of this Order.

 

(1)      James Murray Bayless, pursuant to Rule 4729-9-01(F) of the Ohio Administrative Code, may not be employed by or work in a facility licensed by the Board of Pharmacy to possess or distribute dangerous drugs during such period of suspension.

 

(2)      James Murray Bayless, pursuant to Section 4729.16(B) of the Ohio Revised Code, must return the identification card and license (wall certificate) to the office of the State Board of Pharmacy within ten days after receipt of this Order.  The certificate and identification card should be sent by certified mail, return receipt requested.

 

(B)     Further, two years from the effective date of this Order or thereafter, the Board will consider any petition filed by James Murray Bayless for a hearing, pursuant to Ohio Revised Code Chapter 119., for reinstatement.  The Board will only consider reinstatement of the license to practice pharmacy in Ohio if the following conditions have been met:

 

(1)      James Murray Bayless must obtain, within 90 days after the effective date of this Order, a full psychiatric or psychological evaluation by a licensed psychiatrist or psychologist that includes a recommended treatment plan.  James Murray Bayless must abide by the treatment plan as designed by that psychiatrist or psychologist.

 

(2)      James Murray Bayless must enter into a contract, signed within 90 days after the effective date of this Order, with an Ohio Department of Alcohol and Drug Addiction Services (ODADAS) treatment provider or a treatment provider acceptable to the Board for a period of not less than five years.  The contract must provide that:

 

(a)     Random, observed urine drug screens shall be conducted at least once each month.

 

(i)      The urine sample must be given within twelve hours of notification.  The urine screen must include testing for creatinine or specific gravity of the sample as the dilutional standard.

 

(ii)      Alcohol must be added to the standard urine drug screen.  A Breathalyzer may be used to test for alcohol, but the test must be conducted by an appropriately certified individual within twelve hours of notification.

 

(iii)     Results of all drug and alcohol screens must be negative.  Any positive results, including those that may have resulted from ingestion of food, but excluding false positives that resulted from medication legitimately prescribed, indicates a violation of the contract.

 

(b)     Regular attendance, a minimum of three times per week, at an Alcoholics Anonymous, Narcotics Anonymous, and/or similar support group meeting is required.

 

(c)     The program shall immediately report to the Ohio Board of Pharmacy any violations of the contract and/or lack of cooperation.

 

(3)      James Murray Bayless must provide, at the reinstatement petition hearing, documentation of the following:

 

(a)     Compliance with the licensed psychiatrist’s or psychologist’s recommended treatment plan.

 

(b)     A report by the licensed psychiatrist or psychologist regarding James Murray Bayless’ fitness for readmission into the practice of pharmacy.

 

(c)     Compliance with the contract required in paragraph (B)(2) above (e.g.-proof of giving the urine sample within 12 hours of notification, copies of all urine screen reports, meeting attendance records, treatment program reports, etc.).

 

(d)     Compliance with the continuing pharmacy education requirements as set forth in Chapter 4729-7 of the Ohio Administrative Code in effect on the date of petitioning the Board for reinstatement.

 

(e)     Compliance with the terms of this Order.

 

(D)      If reinstatement is not accomplished within three years after the effective date of this Order, James Murray Bayless must successfully complete the NAPLEX examination or an equivalent examination approved by the Board.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Mr. Kost and approved by the Board (Aye-7/Nay-0).

 

The Board recessed for lunch.

  1:00 p.m.

RES. 2000-191   The Board reconvened in Room 1948 of the Vern Riffe Center for Government and the Arts, 77 South High Street, Columbus, Ohio for the purpose of meeting with the candidates for licensure by reciprocity.  The following Board members were present: Robert B. Cavendish, R.Ph. (President); Diane C. Adelman, R.Ph. (Vice-President); Ann D. Abele, R.Ph.; Suzanne R. Eastman, R.Ph.; Robert P. Giacalone, R.Ph.; Lawrence J. Kost, R.Ph.; Amonte B. Littlejohn, R.Ph.; Suzanne L. Neuber, R.Ph.; and Nicholas R. Repke, Public Member.  Following presentations by Board members and self-introductions by the candidates for licensure by reciprocity, Mr. Kost moved that the Board approve the following candidates for licensure.  The motion was seconded by Mr. Littlejohn and approved by the Board (Aye-8/Nay-0).

 

CAMPO, EARL VINCENT

 

LOUISIANA

DELEO, SUSAN MARIE

 

NEW YORK

DOWD, ROBERT ALAN

 

IOWA

FRANCIONI, ROBERT CHARLES

 

PENNSYLVANIA

FRY, MARC ALAN

 

PENNSYLVANIA

HOSCHAR, ASHLEY LYNN

 

PENNSYLVANIA

JACKSON, LATASHA KENYETTA

 

TEXAS

KOONTZ, DANIEL BRIAN

 

NEVADA

KOSOWSKI, KENNETH ALFRED

 

MICHIGAN

KRUEGER, TYSHA RAE

 

NORTH DAKOTA

LAKATOS, JR., DONALD PAUL

 

PENNSYLVANIA

LONGSTRETH, KRISTEN LEE

 

PENNSYLVANIA

MAMAKOS, RENEE CHRISTINA

 

WEST VIRGINIA

MARKS, DEBRA M.

 

PENNSYLVANIA

MESHANSKI, JOSEPH ANTHONY

 

PENNSYLVANIA

O'NEILL, WILLIAM J.

 

NEW JERSEY

PANDELADIS, CATHERINE ELAINE

 

PENNSYLVANIA

POLZIN, JEFFREY BRIAN

 

NEVADA

STEWART, ASHLEY NICHOLE

 

INDIANA

VAIDYA, KRISHNA SHRIKANT

 

ARIZONA

WEINSTEIN, DEBRA BETH

 

INDIANA

WHETSELL HUNT, MARY ANN

 

SOUTH CAROLINA

WIECZOREK, BRIAN DOUGLAS

 

PENNSYLVANIA

  1:43 p.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matters of The Medicine Shoppe Pharmacy, T.D., Shaker Heights; and Martin Barron, R.Ph., University Heights.

  3:30 p.m.

The hearing concluded and the record was closed.  The Board took a brief recess.

  3:49 p.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of James S. Patton, R.Ph., Columbus.

  5:29 p.m.

The hearing concluded and the record was closed.

  5:35 p.m.

Mrs. Adelman moved that the Board go into Executive Session for the purpose of the investigation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Mr. Littlejohn and a roll call vote was conducted by President Cavendish as follows: Abele-Yes, Adelman-Yes, Eastman-Yes, Giacalone-Yes, Kost-Yes, Littlejohn-Yes, Neuber-Yes, and Repke-Yes.

  6:15 p.m.

RES. 2000-192   The Executive Session ended and the meeting was opened to the public.  Ms. Eastman moved that the Board adopt the following Order in the matter of The Medicine Shoppe Pharmacy, T.D., Shaker Heights:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-991112-030)

 

In The Matter Of:

 

THE MEDICINE SHOPPE PHARMACY

c/o Martin Barron, R.Ph.

3550 Warrensville Center Road

Shaker Heights, Ohio 44122

(Terminal Distributor No. 02-0681600)

 

INTRODUCTION

 

THE MATTER OF THE MEDICINE SHOPPE PHARMACY CAME FOR HEARING ON JUNE 13, 2000, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT B. CAVENDISH, R.Ph. (presiding); ANN D. ABELE, R.Ph.; DIANE C. ADELMAN, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; LAWRENCE J. KOST, R.Ph.; AMONTE B. LITTLEJOHN, R.Ph.; SUZANNE L. NEUBER, R.Ph.; AND NICHOLAS R. REPKE, PUBLIC MEMBER.

 

THE MEDICINE SHOPPE PHARMACY WAS REPRESENTED BY ROBERT J. KOETH AND CLARK D. RICE, AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

 

(A)     Testimony

 

State's Witnesses:

 

(1)     Robert L. Cole, Ohio State Board of Pharmacy

 

Respondent's Witnesses:

 

(1)     Martin Barron, Respondent

(2)     Steven H. Newman, C.P.A., Cleveland, Ohio

 

(B)     Exhibits

 

State's Exhibits:

 

(1)     Exhibit 1--Copy of nine-page Notice of Opportunity for Hearing letter in the matter of Martin Barron dated November 12, 1999.

(2)     Exhibit 1A--Copy of nine-page Notice of Opportunity for Hearing letter in the matter of The Medicine Shoppe Pharmacy, Shaker Heights, Ohio dated November 12, 1999.

(3)     Exhibit 1B--Hearing Request letter dated November 15, 1999.

(4)     Exhibit 1C--Copy of Hearing Schedule letter dated November 23, 1999.

(5)     Exhibit 1D--Letter of Representation and Continuance Request letter dated January 17, 2000.

(6)     Exhibit 1E--Copy of Hearing Schedule letter dated January 19, 2000.

(7)     Exhibit 1F--Copy of Pharmacist File Front Sheet of Martin Barron showing original date of registration as August 4, 1953.

(8)     Exhibit 1G--Copy of Renewal Application for Pharmacist License No. 03-2-05416 for a license to practice pharmacy in Ohio from September 15, 1999, to September 15, 2000, of Martin Barron dated July 19, 1999.

(9)     Exhibit 1H--Copy of Renewal Application for DDD License No. 02-0681600 for a Terminal Distributor of Dangerous Drugs License from January 1, 1999, to December 31, 1999, of The Medicine Shoppe Pharmacy dated October 8, 1998.

(10)   Exhibit 1I--Copy of fax cover-page to Robert Cole from Robert Koeth dated May 1, 2000; letter from Robert J. Koeth dated April 28, 2000; three-page Memorandum in Support regarding Martin Barron by Robert J. Koeth and Clark D. Rice, not dated; copy of letter from Alma Davis dated April 21, 0000; copy of letter from Peter S. Kibbe dated April 24, 2000; copy of letter from Bartholomew M. Caterino dated April 20, 2000; copy of letter from Daniel R. Wendt dated April 23, 2000; copy of letter from Steven H. Newman dated April 29, 2000; and copy of letter from David J. Ruzicka dated February 7, 2000.

(11)   Exhibit 1J--Copy of letter from David L. Rowland dated May 1, 2000.

(12)   Exhibit 2--Copy of six-page Order of the State Board of Pharmacy, Docket No. D-971024-015, in the matter of Martin Barron dated February 11, 1998.

(13)   Exhibit 3, 3A, 3B, and 3C--Copy of four-page Accountability Report of The Medicine Shoppe, 3550 Warrensville Center Road, Shaker Heights, Ohio dated from May 1, 1996, through April 11, 1999.

(14)   Exhibit 4A--Audit work paper for Ritalin 5mg for the period of April 30, 1996, through November 17, 1998.

(15)   Exhibit 4B--Audit work paper for Tylox.

(16)   Exhibit 4C--Audit work paper for MS Contin 30mg.

(17)   Exhibit 4D--Audit work paper for Demerol 50mg.

(18)   Exhibit 4E--Audit work paper for Roxicodone.

(19)   Exhibit 4F--Audit work paper for Dexedrine 10mg spansules.

(20)   Exhibit 4G--Audit work paper for Adderal 30mg.

(21)   Exhibit 4H--Audit work paper for Dexedrine 5mg spansules.

(22)   Exhibit 4I--Audit work paper for Oxycontin 80mg.

(23)   Exhibit 4J--Audit work paper for Ritalin 5mg.

(24)   Exhibit 4K--Audit work paper for Ritalin SR 20mg.

(25)   Exhibit 4L--Audit work paper for Morphine Sulfate 15mg.

(26)   Exhibit 4M--Audit work paper for Methylphenidate 20mg.

(27)   Exhibit 4N--Audit work paper for MS Contin 15mg.

(28)   Exhibit 4O--Audit work paper for MS Contin 60mg.

(29)   Exhibit 4P--Audit work paper for Adderall 5mg.

(30)   Exhibit 4Q--Audit work paper for Duragesic 75mcg.

(31)   Exhibit 4R--Audit work paper for Duragesic patch 50mcg.

(32)   Exhibit 4S--Audit work paper for Duragesic 25mcg.

(33)   Exhibit 4T--Audit work paper for Percocet.

(34)   Exhibit 4U--Audit work paper for Duragesic 100mcg/hr.

(35)   Exhibit 4V--Audit work paper for Seconal 100mg.

(36)   Exhibit 4W--Audit work paper for Ritalin 20mg

(37)   Exhibit 4X--Audit work paper for Dilaudid 2mg.

(38)   Exhibit 4Y--List Drug Utilization report of The Medicine Shoppe Pharmacy for Dilaudid 2mg for the time period of April 30, 1996, to November 7, 1998.

(39)   Exhibit 4Z--Product Activity Report of The Medicine Shoppe Pharmacy for Dilaudid 4mg for the time period of April 30, 1996, to November 7, 1998.

(40)   Exhibit 4AA--Audit work paper for Dilaudid 4mg.

(41)   Exhibit 4BB--Audit work paper for MS Contin 100mg and Meperidine 100mg.

(42)   Exhibit 4CC--Copy of letter from Marty Barron dated June 11, 1999, faxed on May 15, 1999, at 4:37 p.m.

(43)   Exhibit 4DD through 4VV--Nineteen pages of prescription reports of The Medicine Shoppe Pharmacy dated from March 20, 1995, through March 5, 1998.

(44)   Exhibit 4WW--Copy of letter from Marty Barron dated June 11, 1999, faxed on May 15, 1999, at 7:49 p.m.

(45)   Exhibit 4XX--Letter from Marty Barron dated June 11, 1999.

(46)   Exhibit 4YY--Original of letter faxed on May 15, 1999, at 7:49 p.m. from Marty Barron.

(47)   Exhibits 5, 5A, and 5B--Three-page handwritten closing drug inventory of The Medicine Shoppe Pharmacy dated April 12, 1999.

(48)   Exhibits 6, and 6A through 6F--Copy of seven-page Dangerous Drug Distributor Inspection Report of Medicine Shoppe Pharmacy (02-0681600) dated June 27, 1997.

(49)   Exhibits 7, and 7A through 7C--Copy of letter from Marty Barron dated July 3, 1997, and attached three-page response to “pink sheet”, not dated.

(50)   Exhibit 8--Two-page Dangerous Drug Distributor Inspection Report of The Medicine Shoppe Pharmacy (02-0681600) dated April 14, 1999.

(51)   Exhibit 9 and 9A--“Pink Sheet” copy of Dangerous Drug Distributor Inspection Report of The Medicine Shoppe Pharmacy (02-0681600) dated April 14, 1999, and attached copy of “pink sheet” response, not dated.

(52)   Exhibit 10--Copy of DEA Form 222 of Shaker Professional Pharmacy D.B.A.: Medicine Shoppe Pharmacy, Order No. 952977678, received on February 10, 1997.

(53)   Exhibit 11--Copy of page one of two-page Shaker Professional Pharmacy D.B.A.: Medicine Shoppe Customer Controlled Item Report  dated February 28, 1997.

(54)   Exhibit 12--Copy of DEA Form 222 of Shaker Professional Pharmacy D.B.A.: Medicine Shoppe Pharmacy, Order No. 982006506, received on December 7, 1998.

(55)   Exhibit 13--Independent Drug Company Invoice No. 969727 dated December 7, 1998.

(56)   Exhibit 13A--Copy of page two of two-page Shaker Professional Pharmacy D.B.A.: Medicine Shoppe Customer Controlled Item Report dated February 28, 1997.

 

Respondent's Exhibits:

 

(1)     Table of Contents and three-page Memorandum in Support, not dated.

(2)     Exhibit A--Copy of letter from Alma Davis dated April 21, 2000.

(3)     Exhibit B--Copy of letter from Peter S. Kibbe dated April 24, 2000.

(4)     Exhibit C--Copy of letter from Bartholomew M. Caterino dated April 20, 2000.

(5)     Exhibit D--Copy of letter from Daniel R. Wendt dated April 23, 2000.

(6)     Exhibit E--Copy of letter from Steven H. Newman dated April 19, 2000.

(7)     Exhibit F--Copy of letter from David J. Ruzicka dated February 7, 2000.

(8)     Exhibit G--Copy of letter from Bartholomew M. Caterino dated June 5, 2000.

(9)     Exhibit H--Copy of letter from Michael W. Bukach dated June 7, 2000.

(10)   Exhibit I--Copy of The Medicine Shoppe Income and Expense Statement for the month ending December 31, 1998.

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the following to be fact:

 

(1)     Records of the State Board of Pharmacy indicate that during the relevant time periods stated herein, Martin Barron was the Responsible Pharmacist at Medicine Shoppe Pharmacy, 3550 Warrensville Center Road, Shaker Heights, Ohio pursuant to Rule 4729-5-11 of the Ohio Administrative Code and Sections 4729.27 and 4729.55 of the Ohio Revised Code.

 

(2)     The Medicine Shoppe Pharmacy did, from May 1, 1996, through April 11, 1999, fail to provide effective and approved controls and procedures to deter and detect theft and diversion of dangerous drugs, to wit: during this time period, the following drugs were diverted from The Medicine Shoppe Pharmacy without adequate detection and/or prevention:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Adderall 5mg

99

5.0%

Adderall 10mg

523

6.0%

Codeine SO4 30mg

9

1.3%

Hydromorphone 2mg

111

2.9%

Hydromorphone 4mg

3,594

8.6%

Duragesic 25mcg/hr

2

.1%

Duragesic 50mcg/hr

17

7.9%

Duragesic 75mcg/hr

10

2.9%

Duragesic 100mcg/hr

11

1.9%

Methadone 10mg

626

6.4%

MS Contin 15mg

65

7.4%

MS Contin 30mg

102

3.1%

MS Contin 60mg

47

3.5%

Oxycontin 10mg

408

15.7%

Oxycontin 20mg

1,672

16.6%

Oxycontin 40mg

1,467

13.5%

Oxycontin 80mg

29

3.6%

OxyIR 5mg

65

3.1%

Percodan

463

3.5%

Roxicet

433

5.2%

Roxicodone

61

3.6%

Diazepam 10mg

14,234

19.1%

Phentermine 8mg

17

>0.1%

Ionamin 15mg

33

8.3%

Ionamin 30mg

79

9.3%

Fastin 30mg

30

6.9%

Propoxyphene N-100

9,475

4.7%

 

Such conduct is in violation of Rule 4729-9-05 of the Ohio Administrative Code.

 

(3)     The Medicine Shoppe Pharmacy did, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than one hundred times the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule II controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Dilaudid 4mg

3,303

13.1%

Hydromorphone 4mg

291

1.9%

Oxycontin 20mg

1,672

16.6%

Oxycontin 40mg

1,467

13.5%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(4)     The Medicine Shoppe Pharmacy did, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than five times the bulk amount but in an amount less than fifty times the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule II controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Adderall 10mg

523

5.0%

Duragesic 100mcg/hr

11

1.9%

Methadone 10mg

626

6.4%

Oxycontin 10mg

408

15.7%

Oxycontin 80mg

29

3.6%

Percodan

463

3.5%

Roxicet

433

5.2%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(5)     The Medicine Shoppe Pharmacy did, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than the bulk amount but less than five times the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule II controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Dilaudid 2mg

81

3.1%

Hydromorphone 2mg

30

2.7%

Duragesic 50mcg/hr

17

7.9%

Duragesic 75mcg/hr

10

2.9%

MS Contin 15mg

65

7.4%

MS Contin 30mg

102

3.1%

MS Contin 60mg

47

3.5%

OxyIR 5mg

65

3.1%

Roxicodone

61

3.6%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(6)     The Medicine Shoppe Pharmacy did, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount less than the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule II controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Adderall 5mg

99

5.0%

Codeine SO4 30mg

9

1.3%

Duragesic 25mcg/hr

2

0.1%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(7)     The Medicine Shoppe Pharmacy did, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than fifty times the bulk amount but in an amount less than one hundred times that amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule III, IV, or V controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Diazepam 10mg

14,234

19.1%

Propoxyphene N-100

9,475

4.7%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(8)     The Medicine Shoppe Pharmacy did, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than the bulk amount but less than five times the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule III, IV, or V controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Ionamin 30mg

79

9.3%

Fastin 30mg

30

6.9%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(9)     The Medicine Shoppe Pharmacy did, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount less than the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit:  the following Schedule III, IV, or V controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Phentermine 8mg

17

>0.1%

Ionamin 15mg

33

8.3%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(10)   The Medicine Shoppe Pharmacy did, on or about November of 1998 and/or June of 1999, knowingly make a false statement when the statement was made with purpose to mislead a public official in performing his duties, to wit: Mr. Barron, the Responsible Pharmacist for The Medicine Shoppe Pharmacy, reported a loss of controlled substances to the Ohio State Board of Pharmacy.  Martin Barron later reported that the pharmacy was not missing the drugs; however, subsequent investigation revealed that The Medicine Shoppe Pharmacy, in fact, had documented the missing drugs.  Such conduct is in violation of Section 2921.13 of the Ohio Revised Code.

 

(11)   The Medicine Shoppe Pharmacy did, on or about April 12, 1999, possess for sale misbranded drugs, to wit: The Medicine Shoppe Pharmacy possessed the following drugs which had been "consolidated for accountability purposes:"

 

Drug Name/Strength

Stock Bottle Size

Containing

Adderall 5mg

100

121

Adderall 20mg

100

141

Adderall 20mg

100

147

Hydrocodone 2mg

100

188

Dilaudid 4mg

100

178

MSIR 15mg

100

146

Morphine Sulfate 15mg

100

195

MS Contin 60mg

100

104

MS Contin 100mg

100

151

Roxicodone 5mg

100

265

Methadone 10mg

100

170

 

Such conduct is in violation of Section 3715.52 of the Ohio Revised Code.

 

(12)   The Medicine Shoppe Pharmacy did, on or about June 27, 1997, fail to document that the prescription refill information entered into the automated data processing system was correct by signing the hard-copy printout of each day's prescription refill data.  Such conduct is in violation of Rule 4729-5-28(C)(2) of the Ohio Administrative Code.

 

(13)   The Medicine Shoppe Pharmacy did, on or about April 14, 1999, fail to maintain a copy of current federal and state laws, regulations, and rules governing the legal distribution of drugs in Ohio when it had previously been given a written warning on June 27, 1997.  Such conduct is in violation of Rule 4729-9-02 of the Ohio Administrative Code.

 

(14)   The Medicine Shoppe Pharmacy did, on or about April 14, 1999, fail to maintain the minimum standards of a pharmacy, to wit: The Medicine Shoppe Pharmacy failed to maintain its stock, library, and equipment in a suitable, well-lighted and well-ventilated room or department with clean and sanitary surroundings when it had previously been given written warning on June 27, 1997.  Such conduct is in violation of Rule 4729-9-02 of the Ohio Administrative Code.

 

(15)   The Medicine Shoppe Pharmacy did, on or about April 14, 1999, fail to maintain a prescription file system wherein prescriptions were separated by schedule, to wit:  prescriptions had not been filed for the week preceding the April 14, 1999 inspection; prescriptions were scattered throughout The Medicine Shoppe Pharmacy’s dispensing counter amid envelopes, papers, and other miscellaneous items.  Such conduct is in violation of Rule 4729-5-09 of the Ohio Administrative Code.

 

(16)   The Medicine Shoppe Pharmacy did, on or about April 14, 1999, dispense controlled substances pursuant to prescriptions that had not been written for drug quantities both numerically and alphabetically when it had previously been given a written warning about such conduct on June 27, 1997.  Such conduct is in violation of Rule 4729-5-13 of the Ohio Administrative Code.

 

(17)   The Medicine Shoppe Pharmacy did, on or about April 14, 1999, dispense dangerous drugs pursuant to telephone prescriptions without obtaining the full name of the physician's agents.  Such conduct is in violation of Rule 4729-5-13 of the Ohio Administrative Code.

 

(18)   The Medicine Shoppe Pharmacy did, on or about April 14, 1999, when dispensing dangerous drugs pursuant to prescriptions, failed to manually initial the original prescription, to wit: The Medicine Shoppe Pharmacy’s Responsible Pharmacist used a rubber stamp with his name inscribed thereon when the pharmacy had previously been given a written warning on June 27, 1997.  Such conduct is in violation of Rule 4729-5-27 of the Ohio Administrative Code.

 

(19)   The Medicine Shoppe Pharmacy did, on or about June 27, 1997, fail to correctly document its biennial inventory, to wit: when taking the required inventory on April 3, 1994, and again on April 30, 1996, The Medicine Shoppe Pharmacy failed to denote whether the inventories were taken at the opening or closing of the business day.  Such conduct is in violation of Section 1304.11 of the Code of Federal Regulations.

 

(20)   The Medicine Shoppe Pharmacy did, on or about February 10, 1997, fail to correctly document the pharmacy's receipt of controlled substances, to wit: DEA Form 222, No. 952977678, indicated that The Medicine Shoppe Pharmacy had received three bottles of one hundred unit doses of Dilaudid 4mg when, in fact, the pharmacy had not received that drug.  Such conduct is in violation of Section 4729-9-14 of the Ohio Administrative Code.

 

(21)   The Medicine Shoppe Pharmacy did, on or about December 7, 1998, fail to correctly document the pharmacy’s receipt of controlled substances, to wit: DEA Form 222, No. 928006506, indicated that The Medicine Shoppe Pharmacy had received 4 packages, each containing 5 patches of Duragesic 25mcg/hr, when in fact it had not received the drugs.  Such conduct is in violation of Rule 4729-9-14 of the Ohio Administrative Code.

 

CONCLUSIONS OF LAW

 

(1)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (2), (12) through (18), (20), and (21) of the Findings of Fact constitute violating a rule of the Board as provided in Division (A)(2) of Section 4729.57 of the Ohio Revised Code.

 

(2)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraph (11) of the Findings of Fact constitutes violating any provision of the "Federal Food, Drug, and Cosmetic Act," 52 Stat. 1040 (1938), 21 U.S.C.A. 301, or Chapter 3715. of the Revised Code as provided in Division (A)(4) of Section 4729.57 of the Ohio Revised Code.

 

(3)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (3) through (10) and (19) through (21) of the Findings of Fact constitute violating provisions of the federal drug abuse control laws or Chapter 2925. or 3719. of the Revised Code as provided in Division (A)(5) of Section 4729.57 of the Ohio Revised Code.

 

(4)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraph (14) of the Findings of Fact constitutes ceasing to satisfy the qualifications of a terminal distributor of dangerous drugs set forth in Section 4729.55 of the Revised Code as provided in Division (A)(7) of Section 4729.57 of the Ohio Revised Code.

 

ACTION OF THE BOARD

 

Pursuant to Section 4729.57 of the Ohio Revised Code, the State Board of Pharmacy takes the following actions in the matter of The Medicine Shoppe Pharmacy:

 

(A)     On the basis of the Findings of Fact and paragraph (1) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby revokes the terminal distributor license, No. 02-0681600, held by The Medicine Shoppe Pharmacy effective as of the date of the mailing of this Order.

 

(B)     On the basis of the Findings of Fact and paragraph (2) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby revokes the terminal distributor license, No. 02-0681600, held by The Medicine Shoppe Pharmacy effective as of the date of the mailing of this Order.

 

(C)     On the basis of the Findings of Fact and paragraph (3) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby revokes the terminal distributor license, No. 02-0681600, held by The Medicine Shoppe Pharmacy effective as of the date of the mailing of this Order.

 

(D)     On the basis of the Findings of Fact and paragraph (4) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby revokes the terminal distributor license, No. 02-0681600, held by The Medicine Shoppe Pharmacy effective as of the date of the mailing of this Order.

 

Division (C)(1) of Section 4729.57 of the Ohio Revised Code provides: “Upon the suspension or revocation of a license issued to a terminal distributor of dangerous drugs or the refusal by the Board to renew such a license, the distributor shall immediately surrender the license to the Board.”  The license should be forwarded by certified mail, return receipt requested.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Mrs. Neuber and approved by the Board (Aye-8/Nay-0).

  6:18 p.m.

RES. 2000-193   Mr. Littlejohn moved that the Board adopt the following Order in the matter of Martin Barron, R.Ph., University Heights:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-991112-031)

 

In The Matter Of:

 

MARTIN BARRON, R.Ph.

2430 Claver Road

University Heights, Ohio 44118

(R.Ph. No. 03-2-05416)

 

INTRODUCTION

 

THE MATTER OF MARTIN BARRON CAME FOR HEARING ON JUNE 13, 2000, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT B. CAVENDISH, R.Ph. (presiding); ANN D. ABELE, R.Ph.; DIANE C. ADELMAN, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; LAWRENCE J. KOST, R.Ph.; AMONTE B. LITTLEJOHN, R.Ph.; SUZANNE L. NEUBER, R.Ph.; AND NICHOLAS R. REPKE, PUBLIC MEMBER.

 

MARTIN BARRON WAS REPRESENTED BY ROBERT J. KOETH AND CLARK D. RICE, AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

 

(A)     Testimony

 

State's Witnesses:

 

(1)     Robert L. Cole, Ohio State Board of Pharmacy

 

Respondent's Witnesses:

 

(1)     Martin Barron, Respondent

(2)     Steven H. Newman, C.P.A., Cleveland, Ohio

 

(B)     Exhibits

 

State's Exhibits:

 

(1)     Exhibit 1--Copy of nine-page Notice of Opportunity for Hearing letter in the matter of Martin Barron dated November 12, 1999.

(2)     Exhibit 1A--Copy of nine-page Notice of Opportunity for Hearing letter in the matter of The Medicine Shoppe Pharmacy, Shaker Heights, Ohio dated November 12, 1999.

(3)     Exhibit 1B--Hearing Request letter dated November 15, 1999.

(4)     Exhibit 1C--Copy of Hearing Schedule letter dated November 23, 1999.

(5)     Exhibit 1D--Letter of Representation and Continuance Request letter dated January 17, 2000.

(6)     Exhibit 1E--Copy of Hearing Schedule letter dated January 19, 2000.

(7)     Exhibit 1F--Copy of Pharmacist File Front Sheet of Martin Barron showing original date of registration as August 4, 1953.

(8)     Exhibit 1G--Copy of Renewal Application for Pharmacist License No. 03-2-05416 for a license to practice pharmacy in Ohio from September 15, 1999, to September 15, 2000, of Martin Barron dated July 19, 1999.

(9)     Exhibit 1H--Copy of Renewal Application for DDD License No. 02-0681600 for a Terminal Distributor of Dangerous Drugs License from January 1, 1999, to December 31, 1999, of The Medicine Shoppe Pharmacy dated October 8, 1998.

(10)   Exhibit 1I--Copy of fax cover-page to Robert Cole from Robert Koeth dated May 1, 2000; letter from Robert J. Koeth dated April 28, 2000; three-page Memorandum in Support regarding Martin Barron by Robert J. Koeth and Clark D. Rice, not dated; copy of letter from Alma Davis dated April 21, 0000; copy of letter from Peter S. Kibbe dated April 24, 2000; copy of letter from Bartholomew M. Caterino dated April 20, 2000; copy of letter from Daniel R. Wendt dated April 23, 2000; copy of letter from Steven H. Newman dated April 29, 2000; and copy of letter from David J. Ruzicka dated February 7, 2000.

(11)   Exhibit 1J--Copy of letter from David L. Rowland dated May 1, 2000.

(12)   Exhibit 2--Copy of six-page Order of the State Board of Pharmacy, Docket No. D-971024-015, in the matter of Martin Barron dated February 11, 1998.

(13)   Exhibit 3, 3A, 3B, and 3C--Copy of four-page Accountability Report of The Medicine Shoppe, 3550 Warrensville Center Road, Shaker Heights, Ohio dated from May 1, 1996, through April 11, 1999.

(14)   Exhibit 4A--Audit work paper for Ritalin 5mg for the period of April 30, 1996, through November 17, 1998.

(15)   Exhibit 4B--Audit work paper for Tylox.

(16)   Exhibit 4C--Audit work paper for MS Contin 30mg.

(17)   Exhibit 4D--Audit work paper for Demerol 50mg.

(18)   Exhibit 4E--Audit work paper for Roxicodone.

(19)   Exhibit 4F--Audit work paper for Dexedrine 10mg spansules.

(20)   Exhibit 4G--Audit work paper for Adderal 30mg.

(21)   Exhibit 4H--Audit work paper for Dexedrine 5mg spansules.

(22)   Exhibit 4I--Audit work paper for Oxycontin 80mg.

(23)   Exhibit 4J--Audit work paper for Ritalin 5mg.

(24)   Exhibit 4K--Audit work paper for Ritalin SR 20mg.

(25)   Exhibit 4L--Audit work paper for Morphine Sulfate 15mg.

(26)   Exhibit 4M--Audit work paper for Methylphenidate 20mg.

(27)   Exhibit 4N--Audit work paper for MS Contin 15mg.

(28)   Exhibit 4O--Audit work paper for MS Contin 60mg.

(29)   Exhibit 4P--Audit work paper for Adderall 5mg.

(30)   Exhibit 4Q--Audit work paper for Duragesic 75mcg.

(31)   Exhibit 4R--Audit work paper for Duragesic patch 50mcg.

(32)   Exhibit 4S--Audit work paper for Duragesic 25mcg.

(33)   Exhibit 4T--Audit work paper for Percocet.

(34)   Exhibit 4U--Audit work paper for Duragesic 100mcg/hr.

(35)   Exhibit 4V--Audit work paper for Seconal 100mg.

(36)   Exhibit 4W--Audit work paper for Ritalin 20mg

(37)   Exhibit 4X--Audit work paper for Dilaudid 2mg.

(38)   Exhibit 4Y--List Drug Utilization report of The Medicine Shoppe Pharmacy for Dilaudid 2mg for the time period of April 30, 1996, to November 7, 1998.

(39)   Exhibit 4Z--Product Activity Report of The Medicine Shoppe Pharmacy for Dilaudid 4mg for the time period of April 30, 1996, to November 7, 1998.

(40)   Exhibit 4AA--Audit work paper for Dilaudid 4mg.

(41)   Exhibit 4BB--Audit work paper for MS Contin 100mg and Meperidine 100mg.

(42)   Exhibit 4CC--Copy of letter from Marty Barron dated June 11, 1999, faxed on May 15, 1999, at 4:37 p.m.

(43)   Exhibit 4DD through 4VV--Nineteen pages of prescription reports of The Medicine Shoppe Pharmacy dated from March 20, 1995, through March 5, 1998.

(44)   Exhibit 4WW--Copy of letter from Marty Barron dated June 11, 1999, faxed on May 15, 1999, at 7:49 p.m.

(45)   Exhibit 4XX--Letter from Marty Barron dated June 11, 1999.

(46)   Exhibit 4YY--Original of letter faxed on May 15, 1999, at 7:49 p.m. from Marty Barron.

(47)   Exhibits 5, 5A, and 5B--Three-page handwritten closing drug inventory of The Medicine Shoppe Pharmacy dated April 12, 1999.

(48)   Exhibits 6, and 6A through 6F--Copy of seven-page Dangerous Drug Distributor Inspection Report of Medicine Shoppe Pharmacy (02-0681600) dated June 27, 1997.

(49)   Exhibits 7, and 7A through 7C--Copy of letter from Marty Barron dated July 3, 1997, and attached three-page response to “pink sheet”, not dated.

(50)   Exhibit 8--Two-page Dangerous Drug Distributor Inspection Report of The Medicine Shoppe Pharmacy (02-0681600) dated April 14, 1999.

(51)   Exhibit 9 and 9A--“Pink Sheet” copy of Dangerous Drug Distributor Inspection Report of The Medicine Shoppe Pharmacy (02-0681600) dated April 14, 1999, and attached copy of “pink sheet” response, not dated.

(52)   Exhibit 10--Copy of DEA Form 222 of Shaker Professional Pharmacy D.B.A.: Medicine Shoppe Pharmacy, Order No. 952977678, received on February 10, 1997.

(53)   Exhibit 11--Copy of page one of two-page Shaker Professional Pharmacy D.B.A.: Medicine Shoppe Customer Controlled Item Report  dated February 28, 1997.

(54)   Exhibit 12--Copy of DEA Form 222 of Shaker Professional Pharmacy D.B.A.: Medicine Shoppe Pharmacy, Order No. 982006506, received on December 7, 1998.

(55)   Exhibit 13--Independent Drug Company Invoice No. 969727 dated December 7, 1998.

(56)   Exhibit 13A--Copy of page two of two-page Shaker Professional Pharmacy D.B.A.: Medicine Shoppe Customer Controlled Item Report dated February 28, 1997.

 

Respondent's Exhibits:

 

(1)     Table of Contents and three-page Memorandum in Support, not dated.

(2)     Exhibit A--Copy of letter from Alma Davis dated April 21, 2000.

(3)     Exhibit B--Copy of letter from Peter S. Kibbe dated April 24, 2000.

(4)     Exhibit C--Copy of letter from Bartholomew M. Caterino dated April 20, 2000.

(5)     Exhibit D--Copy of letter from Daniel R. Wendt dated April 23, 2000.

(6)     Exhibit E--Copy of letter from Steven H. Newman dated April 19, 2000.

(7)     Exhibit F--Copy of letter from David J. Ruzicka dated February 7, 2000.

(8)     Exhibit G--Copy of letter from Bartholomew M. Caterino dated June 5, 2000.

(9)     Exhibit H--Copy of letter from Michael W. Bukach dated June 7, 2000.

(10)   Exhibit I--Copy of The Medicine Shoppe Income and Expense Statement for the month ending December 31, 1998.

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the following to be fact:

 

(1)     Records of the State Board of Pharmacy indicate that Martin Barron was originally licensed in the State of Ohio on August 4, 1953, pursuant to examination, and is currently licensed to practice pharmacy.  During the relevant time periods stated herein, Martin Barron was the Responsible Pharmacist at The Medicine Shoppe Pharmacy, 3550 Warrensville Center Road, Shaker Heights, Ohio, pursuant to Rule 4729-5-16 of the Ohio Administrative Code and Sections 4729.27 and 4729.55 of the Ohio Revised Code.  Additionally, Board records indicate that administrative action was taken against Martin Barron’s license to practice pharmacy on February 11, 1998, for matters unrelated to the allegations set forth herein and his license is currently on probation through February 11, 2003.

 

(2)     Martin Barron did, as the Responsible Pharmacist, from May 1, 1996, through April 11, 1999, fail to provide effective and approved controls and procedures to deter and detect theft and diversion of dangerous drugs, to wit: during this time period, the following drugs were diverted from The Medicine Shoppe Pharmacy without adequate detection and/or prevention:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Adderall 5mg

99

5.0%

Adderall 10mg

523

6.0%

Codeine SO4 30mg

9

1.3%

Hydromorphone 2mg

111

2.9%

Hydromorphone 4mg

3,594

8.6%

Duragesic 25mcg/hr

2

.1%

Duragesic 50mcg/hr

17

7.9%

Duragesic 75mcg/hr

10

2.9%

Duragesic 100mcg/hr

11

1.9%

Methadone 10mg

626

6.4%

MS Contin 15mg

65

7.4%

MS Contin 30mg

102

3.1%

MS Contin 60mg

47

3.5%

Oxycontin 10mg

408

15.7%

Oxycontin 20mg

1,672

16.6%

Oxycontin 40mg

1,467

13.5%

Oxycontin 80mg

29

3.6%

OxyIR 5mg

65

3.1%

Percodan

463

3.5%

Roxicet

433

5.2%

Roxicodone

61

3.6%

Diazepam 10mg

14,234

19.1%

Phentermine 8mg

17

>0.1%

Ionamin 15mg

33

8.3%

Ionamin 30mg

79

9.3%

Fastin 30mg

30

6.9%

Propoxyphene N-100

9,475

4.7%

 

Such conduct is in violation of Rule 4729-9-05 of the Ohio Administrative Code.

 

(3)     Martin Barron did, as the Responsible Pharmacist, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than one hundred times the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule II controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Dilaudid 4mg

3,303

13.1%

Hydromorphone 4mg

291

1.9%

Oxycontin 20mg

1,672

16.6%

Oxycontin 40mg

1,467

13.5%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(4)     Martin Barron did, as the Responsible Pharmacist, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than five times the bulk amount but less than fifty times the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule II controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Adderall 10mg

523

5.0%

Duragesic 100mcg/hr

11

1.9%

Methadone 10mg

626

6.4%

Oxycontin 10mg

408

15.7%

Oxycontin 80mg

29

3.6%

Percodan

463

3.5%

Roxicet

433

5.2%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(5)     Martin Barron did, as the Responsible Pharmacist, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than the bulk amount but less than five times the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule II controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Dilaudid 2mg

81

3.1%

Hydromorphone 2mg

30

2.7%

Duragesic 50mcg/hr

17

7.9%

Duragesic 75mcg/hr

10

2.9%

MS Contin 15mg

65

7.4%

MS Contin 30mg

102

3.1%

MS Contin 60mg

47

3.5%

OxyIR 5mg

65

3.1%

Roxicodone

61

3.6%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(6)     Martin Barron did, as the Responsible Pharmacist, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount less than the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule II controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Adderall 5mg

99

5.0%

Codeine SO4 30mg

9

1.3%

Duragesic 25mcg/hr

2

0.1%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(7)     Martin Barron did, as the Responsible Pharmacist, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than fifty times the bulk amount but in an amount less than one hundred times that amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule III, IV, or V controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Diazepam 10mg

14,234

19.1%

Propoxyphene N-100

9,475

4.7%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(8)     Martin Barron did, as the Responsible Pharmacist, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount greater than the bulk amount but in an amount less than five times the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule III, IV, or V controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Ionamin 30mg

79

9.3%

Fastin 30mg

30

6.9%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(9)     Martin Barron did, as the Responsible Pharmacist, from May 1, 1996, through April 11, 1999, knowingly sell a controlled substance in an amount less than the bulk amount when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: the following Schedule III, IV, or V controlled substances were diverted from The Medicine Shoppe Pharmacy without prescriptions:

 

Drug Name/Strength

Amount of Shortage

% of Drug Supply

Phentermine 8mg

17

>0.1%

Ionamin 15mg

33

8.3%

 

Such conduct is in violation of Section 2925.03 of the Ohio Revised Code.

 

(10)   Martin Barron did, as the Responsible Pharmacist, on or about November of 1998 and/or June of 1999, knowingly make a false statement when the statement was made with purpose to mislead a public official in performing his duties, to wit: Martin Barron reported to the Ohio State Board of Pharmacy a loss of controlled substances from The Medicine Shoppe Pharmacy.  Mr. Barron later reported that the pharmacy was not missing the drugs; however, subsequent investigation revealed that Martin Barron, in fact, had documented missing drugs for The Medicine Shoppe Pharmacy.  Such conduct is in violation of Section 2921.13 of the Ohio Revised Code.

 

(11)   Martin Barron did, as the Responsible Pharmacist, on or about April 12, 1999, possess for sale misbranded drugs, to wit: Martin Barron possessed in The Medicine Shoppe Pharmacy the following drugs which were "consolidated for accountability purposes:"

 

Drug Name/Strength

Stock Bottle Size

Containing

Adderall 5mg

100

121

Adderall 20mg

100

141

Adderall 20mg

100

147

Hydrocodone 2mg

100

188

Dilaudid 4mg

100

178

MSIR 15mg

100

146

Morphine Sulfate 15mg

100

195

MS Contin 60mg

100

104

MS Contin 100mg

100

151

Roxicodone 5mg

100

265

Methadone 10mg

100

170

 

Such conduct is in violation of Section 3715.52 of the Ohio Revised Code.

 

(12)   Martin Barron did, as the Responsible Pharmacist, on or about June 27, 1997, fail to document that The Medicine Shoppe Pharmacy’s prescription refill information entered into the automated data processing system was correct by signing the hard-copy printout of each day's prescription refill data.  Such conduct is in violation of Rule 4729-5-28(C)(2) of the Ohio Administrative Code.

 

(13)   Martin Barron did, as the Responsible Pharmacist, on or about April 14, 1999, fail to maintain a copy of current federal and state laws, regulations, and rules governing the legal distribution of drugs in Ohio in the pharmacy when he had previously been given a written warning about such conduct on June 27, 1997.  Such conduct is in violation of Rule 4729-9-02 of the Ohio Administrative Code.

 

(14)   Martin Barron did, as the Responsible Pharmacist, on or about April 14, 1999, fail to maintain the minimum standards of a pharmacy, to wit: Martin Barron failed to maintain The Medicine Shoppe Pharmacy’s stock, library, and equipment in a suitable, well-lighted and well-ventilated room or department with clean and sanitary surroundings when it had previously been given written warning on June 27, 1997.  Such conduct is in violation of Rule 4729-9-02 of the Ohio Administrative Code.

 

(15)   Martin Barron did, as the Responsible Pharmacist, on or about April 14, 1999, fail to maintain a prescription file system wherein prescriptions were separated by schedule, to wit: prescriptions had not been filed for the week preceding the April 14, 1999, inspection; and, prescriptions were scattered throughout The Medicine Shoppe Pharmacy’s dispensing counter amid envelopes, papers, and other miscellaneous items.  Such conduct is in violation of Rule 4729-5-09 of the Ohio Administrative Code.

 

(16)   Martin Barron did, as the Responsible Pharmacist, on or about April 14, 1999, dispense controlled substances pursuant to prescriptions that had not been written for drug quantities both numerically and alphabetically when he had previously been given a written warning about such conduct on June 27, 1997.  Such conduct is in violation of Rule 4729-5-13 of the Ohio Administrative Code.

 

(17)   Martin Barron did, as the Responsible Pharmacist, on or about April 14, 1999, dispense dangerous drugs pursuant to telephone prescriptions without obtaining the full name of the physician's agents.  Such conduct is in violation of Rule 4729-5-13 of the Ohio Administrative Code.

 

(18)   Martin Barron did, as the Responsible Pharmacist, on or about April 14, 1999, when dispensing dangerous drugs pursuant to prescriptions, fail to manually initial the original prescription, to wit: Martin Barron used a rubber stamp with his name inscribed thereon when he had previously been given a written warning about such conduct on June 27, 1997.  Such conduct is in violation of Rule 4729-5-27 of the Ohio Administrative Code.

 

(19)   Martin Barron did, as the Responsible Pharmacist, on or about June 27, 1997, fail to correctly document The Medicine Shoppe Pharmacy’s biennial inventory, to wit: when taking the required inventory on April 3, 1994, and again on April 30, 1996, Martin Barron failed to denote whether the inventories were taken at the opening or closing of the business day.  Such conduct is in violation of Section 1304.11 of the Code of Federal Regulations.

 

(20)   Martin Barron did, as the Responsible Pharmacist, on or about February 10, 1997, fail to correctly document receipt of controlled substances, to wit: Martin Barron indicated on DEA Form 222 number 952977678 that The Medicine Shoppe Pharmacy had received three bottles of one hundred unit doses of Dilaudid 4mg when in fact he had not received the drug.  Such conduct is in violation of Rule 4729-9-14 of the Ohio Administrative Code.

 

(21)   Martin Barron did, as the Responsible Pharmacist, on or about December 7, 1998, fail to correctly document receipt of controlled substances, to wit: Martin Barron indicated on DEA Form 222 number 928006506 that The Medicine Shoppe Pharmacy had received 4 packages, each containing 5 patches of Duragesic 25mcg/hr, when in fact he had not received that drug.  Such conduct is in violation of Rule 4729-9-14 of the Ohio Administrative Code.

 

CONCLUSIONS OF LAW

 

(1)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (2) through (21) of the Findings of Fact constitute being guilty of unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(2)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (3) through (9) and (11) of the Findings of Fact constitute being guilty of willfully violating, conspiring to violate, attempting to violate, or aiding and abetting the violation of provisions of Sections 3715.52 to 3715.72 or Chapter 2925. or 3719. of the Revised Code as provided in Division (A)(5) of Section 4729.16 of the Ohio Revised Code.

 

ACTION OF THE BOARD

 

(A)     Pursuant to Section 4729.16 of the Ohio Revised Code, and on the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Pharmacy hereby suspends indefinitely the pharmacist identification card, No. 03-2-05416, held by Martin Barron and such suspension is effective as of the date of the mailing of this Order.

 

(1)     Martin Barron, pursuant to Rule 4729-9-01(F) of the Ohio Administrative Code, may not be employed by or work in a facility licensed by the State Board of Pharmacy to possess or distribute dangerous drugs during such period of suspension.

 

(2)     Martin Barron, pursuant to Section 4729.16(B) of the Ohio Revised Code,  must return the identification card and license (wall certificate) to the office of the State Board of Pharmacy within ten days after receipt of this Order.  The certificate and identification card should be sent by certified mail, return receipt requested.

 

(B)     Further, the Board will reinstate Martin Barron’s license to practice pharmacy in Ohio provided that he takes and successfully completes the Multistate Pharmacy Jurisprudence Examination (MPJE) offered by the Board.  Once this condition has been achieved, Mr. Barron’s license will be reinstated and his identification card will be placed on probation through February 11, 2003.  The terms of probation are as follows:

 

(1)     The State Board of Pharmacy hereby declares that Martin Barron’s pharmacist identification card is not in good standing and thereby denies the privilege of being a preceptor and training pharmacy interns pursuant to paragraph (D)(1) of Rule 4729-3-01 of the Ohio Administrative Code.

 

(2)     Martin Barron may not own a facility licensed by the State Board of Pharmacy to possess or distribute dangerous drugs.

 

(3)     Martin Barron may not serve as a responsible pharmacist.

 

(4)     Martin Barron must not violate the drug laws of the State of Ohio, any other state, or the federal government.

 

(5)     Martin Barron must abide by the rules of the Ohio State Board of Pharmacy.

 

(6)     Martin Barron must comply with the terms of this Order.

 

The Board may at any time revoke probation for cause, modify the conditions of probation, and reduce or extend the period of probation.  At any time during this period of probation, the Board may revoke probation for a violation occurring during the probation period.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Ms. Eastman and approved by the Board (Aye-8/Nay-0).

  6:22 p.m.

RES. 2000-194   Mr. Repke moved that the Board adopt the following Order in the matter of James S. Patton, R.Ph., Columbus:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-990714-001)

 

In The Matter Of:

 

JAMES SCOTT PATTON, R.Ph.

3541 Sunset Drive

Columbus, Ohio 43221

(R.Ph. No. 03-3-22165)

 

INTRODUCTION

 

THE MATTER OF JAMES SCOTT PATTON CAME FOR HEARING ON JUNE 13, 2000, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT B. CAVENDISH, R.Ph. (presiding); ANN D. ABELE, R.Ph.; DIANE C. ADELMAN, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; LAWRENCE J. KOST, R.Ph.; AMONTE B. LITTLEJOHN, R.Ph.; SUZANNE L. NEUBER, R.Ph.; AND NICHOLAS R. REPKE, PUBLIC MEMBER.

 

JAMES SCOTT PATTON WAS REPRESENTED BY R. WILLIAM MEEKS, AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

 

(A)     Testimony

 

State's Witnesses:

 

(1)     Christopher K. Reed, Ohio State Board of Pharmacy

 

Respondent's Witnesses:

 

(1)      James Scott Patton, Respondent

(2)     David Baker, R.Ph., Pharmacists Rehabilitation Organization, Inc.

(3)     Wayne Miller, R.Ph., Pharmacists Rehabilitation Organization, Inc.

 

(B)     Exhibits

 

State's Exhibits:

 

(1)     Exhibit 1--Copy of three-page Summary Suspension Order/Notice of Opportunity For Hearing letter dated July 14, 1999.

(2)     Exhibit 1A--Copy of four-page Addendum Notice dated September 3, 1999.

(3)     Exhibit 1B--Hearing Request letter dated July 28, 1999.

(4)     Exhibit 1C--Copy of Hearing Schedule letter dated August 5, 1999.

(5)     Exhibit 1D--Copy of Continuance Request letter dated October 1, 1999.

(6)     Exhibit 1E--Copy of Hearing Schedule letter dated October 5, 1999.

(7)     Exhibit 1F--Continuance Request letter from R. William Meeks dated December 10, 1999; and attached two-page Settlement Proposal letter from R. William Meeks dated December 10, 1999.

(8)     Exhibit 1G--Copy of Hearing Schedule letter dated December 15, 1999.

(9)     Exhibit 1H--Letter from David W. Baker dated March 3, 2000.

(10)   Exhibit 1I--Copy of Hearing Schedule letter dated March 29, 2000.

(11)   Exhibit 1J--Pharmacist File Front Sheet of James Scott Patton showing original date of registration as February 27, 1997; and copy of Renewal Application for Pharmacist License No. 03-3-22165 for a license to practice pharmacy in Ohio from September 15, 1998, to September 15, 1999, of James Scott Patton dated August 10, 1998.

(12)   Exhibit 3--Copy of four-page Grove City Division of Police Witness Statement of James Scott Patton, Incident No. 992363, dated July 2, 1999.

(13)   Exhibit 4--Copy of Constitutional Rights form of James Scott Patton dated July 1, 1999.

(14)   Exhibit 5--Accountability Statement of Kroger Co. N-341 for Adderall 10mg dated July 2, 1999.

(15)   Exhibit 6--Accountability Statement of Kroger Co. N-341 for Adderall 20mg dated July 2, 1999.

(16)   Exhibit 7--Accountability Statement of Kroger Co. N-341 for Dexedrine 5mg tablets dated July 2, 1999.

(17)   Exhibit 8--Accountability Statement of Kroger Co. N-341 for Dexedrine 10mg dated July 2, 1999.

(18)   Exhibit 9--Accountability Statement of Kroger Co. N-341 for Dexedrine 15mg dated July 2, 1999.

(19)   Exhibit 10--Accountability Statement of Kroger Co. N-341 for Methylphenidate 10mg dated July 2, 1999.

(20)   Exhibit 11--Accountability Statement of Kroger Co. N-341 for Methylphenidate 20mg dated July 2, 1999.

(21)   Exhibit 12--Accountability Statement of Kroger Co. N-341 for Methylphenidate 20mg (ER) dated July 2, 1999.

(22)   Exhibit 13--Accountability Statement of Kroger Co. N-341 for OxyContin 10mg dated July 2, 1999.

(23)   Exhibit 14--Accountability Statement of Kroger Co. N-341 for OxyContin 20mg dated July 2, 1999.

(24)   Exhibit 15--Accountability Statement of Kroger Co. N-341 for OxyContin 40mg dated July 2, 1999.

(25)   Exhibit 16--Accountability Statement of Kroger Co. N-341 for OxyContin 80mg dated July 2, 1999.

(26)   Exhibit 17--Accountability Statement of Kroger Co. N-341 for Oxycodone/APAP 325mg dated July 2, 1999.

(27)   Exhibit 18--Accountability Statement of Kroger Co. N-341 for Percocet dated July 2, 1999.

(28)   Exhibit 19--Accountability Statement of Kroger Co. N-341 for Ritalin SR 20mg dated July 2, 1999.

(29)   Exhibit 20--Accountability Statement of Kroger Co. N-341 for Roxicodone 5mg dated July 2, 1999.

(30)   Exhibit 21--Accountability Statement of Kroger Co. N-341 for APAP/Codeine #4 dated July 2, 1999.

(31)   Exhibit 22--Accountability Statement of Kroger Co. N-341 for Anexsia 7.5/650 dated July 2, 1999.

(32)   Exhibit 23--Accountability Statement of Kroger Co. N-341 for Cylert 37.5mg dated July 2, 1999.

(33)   Exhibit 24--Accountability Statement of Kroger Co. N-341 for Cylert 37.5mg chewable dated July 2, 1999.

(34)   Exhibit 25--Accountability Statement of Kroger Co. N-341 for Cylert 75mg dated July 2, 1999.

(35)   Exhibit 26--Accountability Statement of Kroger Co. N-341 for Hydrocodone/APAP 7.5/500 dated July 2, 1999.

(36)   Exhibit 27--Accountability Statement of Kroger Co. N-341 for Hydrocodone/APAP 10/500 dated July 2, 1999.

(37)   Exhibit 28--Accountability Statement of Kroger Co. N-341 for Hydrocodone/APAP 10/650 dated July 2, 1999.

(38)   Exhibit 29--Accountability Statement of Kroger Co. N-341 for Lorcet 10/650 dated July 2, 1999.

(39)   Exhibit 30--Accountability Statement of Kroger Co. N-341 for Lortab 7.5/500 dated July 2, 1999.

(40)   Exhibit 31--Accountability Statement of Kroger Co. N-341 for Lortab 10/500 dated July 2, 1999.

(41)   Exhibit 32--Accountability Statement of Kroger Co. N-341 for Norco 10/325 dated July 2, 1999.

(42)   Exhibit 33--Accountability Statement of Kroger Co. N-341 for Tussionex Suspension dated July 2, 1999.

(43)   Exhibit 34--Accountability Statement of Kroger Co. N-341 for Tylenol #4 dated July 2, 1999.

(44)   Exhibit 35--Accountability Statement of Kroger Co. N-341 for Vicodin ES dated July 2, 1999.

(45)   Exhibit 36--Amber prescription vial, not labeled, containing 40 Dexedrine 15mg capsules and 9 Adderall 20mg tablets.

(46)   Exhibit 37--Amber prescription vial, not labeled, containing 19 Lortab 7.5mg tablets.

(47)   Exhibit 38--Amber prescription vial, not labeled, containing 9 hydrocodone/APAP 10/500 tablets.

(48)   Exhibit 39--Eight assorted ink pens.

(49)   Exhibit 40--One correction pen.

(50)   Exhibit 41--Prescription No. 2216779.

(51)   Exhibit 42--Pages 654 and 655 of Kroger Pharmacy 01600341 "Prescription Daily Audit with Notes" report dated August 10, 1999.

(52)   Exhibit 43--Perpetual Inventory sheet for Oxycontin 40mg dated from July 13, 1998, through April 22, 1999.

(53)   Exhibit 44--Copy of Prescription No. 2216985.

(54)   Exhibit 45--Page 652 of Kroger Pharmacy 01600341 "Prescription Daily Audit with Notes" report dated August 10, 1999.

(55)   Exhibit 46--Prescription No. 2216988.

(56)   Exhibit 47--Prescription No. 2217036

(57)   Exhibit 48--Page 648 of Kroger Pharmacy 01600341 "Prescription Daily Audit with Notes" report dated August 10, 1999.

(58)   Exhibit 49--Perpetual Inventory sheet for Oxycontin 10mg dated from May 18, 1999, through June 25,1999.

(59)   Exhibit 50--Prescription No. 2217098.

(60)   Exhibit 51--Page 449 of Kroger Pharmacy 01600341 "Prescription Daily Audit with Notes" report dated August 10, 1999.

(61)   Exhibit 52--Perpetual Inventory sheet for Percocet dated from May 22, 1999, through June 22,1999.

(62)   Exhibit 53--Prescription 2217119.

(63)   Exhibit 54--Page 287 of Kroger Pharmacy 01600341 "Prescription Daily Audit with Notes" report dated August 10, 1999.

(64)   Exhibit 55--Perpetual Inventory sheet for Endocet dated from May 20, 1999, through May 27,1999.

(65)   Exhibit 56--Prescription No. 221723500.

(66)   Exhibit 57--Page 422 of Kroger Pharmacy 01600341 "Prescription Daily Audit with Notes" report dated August 10, 1999.

(67)   Exhibit 58--Perpetual Inventory sheet for Endocet dated from May 22, 1999, through June 4, 1999.

(68)   Exhibit 59--Prescription No. 221724800.

(69)   Exhibit 60--Prescription No. 2217260.

(70)   Exhibit 61--Page 423 of Kroger Pharmacy 01600341 "Prescription Daily Audit with Notes" report dated August 10, 1999.

(71)   Exhibit 62--Perpetual Inventory sheet for Endocet tabs dated from June 4, 1999, through June 9, 1999.

(72)   Exhibit 63--Prescription No. 2217331.

(73)   Exhibit 64--Page 261 of Kroger Pharmacy 01600341 "Prescription Daily Audit with Notes" report dated August 10, 1999.

(74)   Exhibit 65--Prescription No. 221735500.

(75)   Exhibit 66--Perpetual Inventory sheet for Oxycontin 40mg dated May 18th through July 3rd.

 

Respondent's Exhibits:

 

(1)     Exhibit A--Copy of letter from Cindy Barbour dated June 1, 2000.

(2)     Exhibit B--Copy of letter from Tyler R. Holliday dated June 7, 2000.

(3)     Exhibit C--Copy of two-page Pharmacists Rehabilitation Organization, Inc. Pharmacist’s Recovery Contract of Scott Patton dated April 30, 2000.

(4)     Exhibit D--Copy of two pages of AA Meeting Reporting Sheet of Scott Patton dated from April 14, 2000, through June 5, 2000.

(5)     Exhibit E--Drug screen urine reports with specimen dates as follows: November 3, 1999; November 12, 1999; November 19, 1999; November 22, 1999; December 3, 1999; December 7, 1999; December 17, 1999; December 21, 1999; December 30, 1999; January 6, 2000; January 11, 2000; January 21, 2000; January 25, 2000; January 04, 2000; and May 21, 2000.

(6)     Exhibit F--Copy of four-page "Motion for Treatment in Lieu of Conviction" in the Franklin County Court of Common Pleas, State of Ohio vs. James Scott Patton, Case No. 00CR063467, dated June 8, 2000.

(7)     Exhibit G--Copy of three-page "Entry for Treatment in Lieu of Conviction" in the Franklin County Common Pleas Court, State of Ohio vs. James Scott Patton, Case No. 00CR063467, dated June 8, 2000.

(8)     Exhibit H--Copy of two-page letter from Nick A. Kallis dated June 8, 2000.

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the following to be fact:

 

(1)     Records of the State Board of Pharmacy indicate that James Scott Patton was originally licensed in the state of Ohio on February 27, 1997, pursuant to examination, and his license to practice pharmacy in the state of Ohio was summarily suspended on July 14, 1999, pursuant to Sections 3719.121(A) and 3719.121(B) of the Ohio Revised Code.

 

(2)      James Scott Patton is addicted to controlled substances, to wit: James Scott Patton admitted that he is drug dependent; James Scott Patton has admittedly been stealing controlled substances since November 1996; James Scott Patton has admittedly been stealing Schedule II controlled substances for approximately four to six weeks prior to the date of the Summary Suspension; and James Scott Patton was arrested by the Grove City Police Department on July 1, 1999, after having stolen one hundred unit doses of hydrocodone 10mg with APAP 325mg.  Such conduct indicates that James Scott Patton is addicted to controlled substances within the meaning of Section 3719.121(A) of the Ohio Revised Code.

 

(3)      James Scott Patton did, on or about July 1, 1999, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Kroger, 2474 Stringtown Road, Grove City, Ohio, beyond the express or implied consent of the owner, to wit: James Scott Patton was caught stealing one hundred unit doses of hydrocodone 10mg with APAP 325mg from his employer.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(4)      James Scott Patton did, from July 8, 1997, through July 1, 1999, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Kroger N-341, by deception, to wit: James Scott Patton stole the following controlled substances:

 

Drug

Quantity

% Drug Stock

Schedule

Adderall 10mg

1,168 unit doses

7.2%

II

Adderall 20mg

1,263 unit doses

22.1%

II

Dexedrine 5mg

1,509 unit doses

8.0%

II

Dexedrine 10mg

353 unit doses

3.3%

II

Dexedrine 15mg

1,442 unit doses

15.5%

II

methylphenidate 10mg

1,715 unit doses

4.1%

II

methylphenidate 20mg

2,077 unit doses

10.6%

II

methylphenidate 20mg ER

3,892 unit doses

23.2%

II

OxyContin 10mg

75 unit doses

4.2%

II

OxyContin 20mg

132 unit doses

5.7%

II

OxyContin 40mg

211 unit doses

12.4%

II

OxyContin 80mg

10 unit doses

1.5%

II

oxycodone/APAP 325mg

6,476 unit doses

6.3%

II

Percocet

2,189 unit doses

10.6%

II

Ritalin SR 20mg

650 unit doses

6.4%

II

Roxicodone 5mg

17 unit doses

<1.0%

II

acetaminophen/codeine #4

1,047 unit doses

3.8%

III

Anexsia 7.5/650

95 unit doses

95.0%

III

Cylert 37.5mg

252 unit doses

3.0%

IV

Cylert 37.5mg (chewable)

1,207 unit doses

46.4%

IV

Cylert 75mg

109 unit doses

18.2%

IV

hydrocodone 7.5mg/APAP 500mg

1,793 unit doses

4.4%

III

hydrocodone 10mg/APAP 500mg

5,441 unit doses

42.2%

II

hydrocodone 10mg/APAP 650mg

3,099 unit doses

32.1%

III

Lorcet 10/650

1,011 unit doses

40.0%

III

Lortab 7.5/500

2,461 unit doses

17.8%

III

Lortab 10/500

449 unit doses

16.6%

III

Norco 10/325

2,717 unit doses

*59.1%

III

Tussionex Suspension

3,194 ml

7.0%

III

Tylenol #4

555 unit doses

14.2%

III

Vicodin ES

417 unit doses

6.1%

III

*Quantities from paragraph (3) are included in these figures.

 

Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(5)      James Scott Patton did, on or about the following dates, intentionally make and/or knowingly possess false or forged prescriptions, to wit: James Scott Patton admittedly altered the following prescriptions in order to steal controlled substances:

 

  Rx No.

    Date

Drug

Qty.

Altered Qty.

2216779

04/25/99

OxyContin 40mg

100

180

2216985

05/14/99

OxyContin 20mg

107

180

2216988

05/14/99

OxyContin 20mg

62

120

2217036

05/18/99

OxyContin 10mg

60

120

2217098

05/22/99

Percocet

20

120

2217119

05/24/99

oxycodone/APAP 325mg

20

120

2217235

06/02/99

oxycodone/APAP 325mg

30

130

2217248

06/03/99

oxycodone/APAP 325mg

10

40

2217260

06/04/99

oxycodone/APAP 325mg

40

90

2217331

06/10/99

Percocet

40

140

2217335

06/13/99

OxyContin 40mg

90

180

 

Such conduct is in violation of Section 2925.23 of the Ohio Revised Code.

 

(6)      James Scott Patton did, on or about the following dates, knowing he had no privilege to do so, and with purpose to defraud or knowing that he was facilitating a fraud, falsify or alter computer data, to wit: James Scott Patton falsified data for the following prescriptions:

 

  Rx No.

    Date

Drug

Qty.

Altered Qty.

2216779

04/25/99

OxyContin 40mg

100

180

2216985

05/14/99

OxyContin 20mg

107

180

2216988

05/14/99

OxyContin 20mg

62

120

2217036

05/18/99

OxyContin 10mg

60

120

2217098

05/22/99

Percocet

20

120

2217119

05/24/99

oxycodone/APAP 325mg

20

120

2217235

06/02/99

oxycodone/APAP 325mg

30

130

2217248

06/03/99

oxycodone/APAP 325mg

10

40

2217260

06/04/99

oxycodone/APAP 325mg

40

90

2217331

06/10/99

Percocet

40

140

2217335

06/13/99

OxyContin 40mg

90

180

 

Such conduct is in violation of Section 2913.42 of the Ohio Revised Code.

 

CONCLUSIONS OF LAW

 

(1)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (3) through (6) of the Findings of Fact constitute being guilty of a felony and gross immorality as provided in Division (A)(1) of Section 4729.16 of the Ohio Revised Code.

 

(2)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (2) through (6) of the Findings of Fact constitute being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(3)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraph (2) of the Findings of Fact constitutes being addicted to or abusing liquor or drugs or impaired physically or mentally to such a degree as to render him unfit to practice pharmacy as provided in Division (A)(3) of Section 4729.16 of the Ohio Revised Code.

 

(4)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraph (5) of the Findings of Fact constitutes being guilty of willfully violating, conspiring to violate, attempting to violate, or aiding and abetting the violation of provisions of Chapter 2925. of the Revised Code as provided in Division (A)(5) of Section 4729.16 of the Ohio Revised Code.

 

ACTION OF THE BOARD

 

Pursuant to Section 3719.121 of the Ohio Revised Code, the State Board of Pharmacy hereby removes the Summary Suspension Order issued to James Scott Patton on July 14, 1999.

 

Pursuant to Section 4729.16 of the Ohio Revised Code, and on the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Pharmacy hereby suspends indefinitely the pharmacist identification card, No. 03-3-22165. held by James Scott Patton and such suspension is effective as of the date of the mailing of this Order.

 

(A)      James Scott Patton, pursuant to Rule 4729-9-01(F) of the Ohio Administrative Code, may not be employed by or work in a facility licensed by the State Board of Pharmacy to possess or distribute dangerous drugs during such period of suspension.

 

(B)      James Scott Patton, pursuant to Section 4729.16(B) of the Ohio Revised Code, must return the identification card and license (wall certificate) to the office of the State Board of Pharmacy within ten days after receipt of this Order.  The certificate and identification card should be sent by certified mail, return receipt requested.

 

Further, thirty months from the effective date of this Order or thereafter, the Board will consider any petition filed by James Scott Patton for a hearing, pursuant to Ohio Revised Code Chapter 119., for reinstatement.  The Board will only consider reinstatement of the license to practice pharmacy in Ohio if the following conditions have been met:

 

(A)      James Scott Patton must enter into a contract, signed within 90 days after the effective date of this Order, with an Ohio Department of Alcohol and Drug Addiction Services (ODADAS) treatment provider or a treatment provider acceptable to the Board for a period of not less than five years.  The contract must provide that:

 

(1)     Random, observed urine drug screens shall be conducted at least once each month.

 

(a)     The urine sample must be given within twelve hours of notification.  The urine screen must include testing for creatinine or specific gravity of the sample as the dilutional standard.

 

(b)     Ritalin and Alcohol must be added to the standard urine drug screen.  A Breathalyzer may be used to test for alcohol, but the test must be conducted by an appropriately certified individual within twelve hours of notification.

 

(c)     Results of all drug and alcohol screens must be negative.  Any positive results, including those which may have resulted from ingestion of food, but excluding false positives which resulted from medication legitimately prescribed, indicates a violation of the contract.

 

(2)     Attendance is required a minimum of three times per week at an Alcoholics Anonymous, Narcotics Anonymous, and/or similar support group meeting.

 

(3)     The program shall immediately report to the Board any violations of the contract and/or lack of cooperation.

 

(B)      James Scott Patton must provide, at the reinstatement petition hearing, documentation of the following:

 

(1)     Compliance with the contract required in paragraph (A) above (e.g.-proof of giving the sample within 12 hours of notification, copies of all drug and alcohol screen reports, meeting attendance records, treatment program reports, etc.);

 

(2)     Compliance with the continuing pharmacy education requirements as set forth in Chapter 4729-7 of the Ohio Administrative Code in effect on the date of petitioning the Board for reinstatement;

 

(3)     Compliance with the terms of this Order.

 

(C)      If reinstatement is not accomplished within three years of the effective date of this Order, James Scott Patton must successfully complete the NAPLEX examination or an equivalent examination approved by the Board.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Ms. Eastman and approved by the Board (Aye-8/Nay-0).

  6:25 p.m.

The Board meeting recessed until Wednesday, June 14, 2000.

 

 

wednESDAY, june 14, 2000

 

  8:40 a.m.      ROLL CALL

 

The State Board of Pharmacy convened in Room 1914, Vern Riffe Center for Government and the Arts, 77 South High Street, Columbus, Ohio with the following members present:

 

Robert B. Cavendish, R.Ph. (President); Diane C. Adelman, R.Ph. (Vice-President); Ann D. Abele, R.Ph.; Suzanne R. Eastman, R.Ph.; Robert P. Giacalone, R.Ph.; Amonte B. Littlejohn, R.Ph.; Suzanne L. Neuber, R.Ph.; and Nicholas R. Repke, Public Member.

  8:45 a.m.

Mr. Cavendish administered the following Oath of Office to the incoming President for Fiscal Year 2001, Suzanne L. Neuber, R.Ph.:

 

I, Suzanne L. Neuber, as President of the Ohio Board of Pharmacy do solemnly swear to uphold the Constitution of the United States and the state of Ohio; to impartially enforce the laws governing the profession of pharmacy and the legal distribution of drugs in the state of Ohio; and carry out the responsibilities of the Board as mandated by the laws of the state of Ohio without bias or prejudice, so help me God.

 

Mr. Cavendish then administered the following Oath of Office to the incoming Vice-President for Fiscal Year 2001, Diane C. Adelman, R.Ph.:

 

I, Diane C. Adelman, as Vice-President of the Ohio Board of Pharmacy do solemnly swear to uphold the Constitution of the United States and the state of Ohio; to impartially enforce the laws governing the profession of pharmacy and the legal distribution of drugs in the state of Ohio; and carry out the responsibilities of the Board as mandated by the laws of the state of Ohio without bias or prejudice, so help me God.

 

The Board then held a brief awards ceremony to honor Mr. Cavendish and Mr. Repke for their services to the citizens of Ohio and to the Board over the past eight years.

  9:13 a.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of Steven J. Brownsberger, R.Ph., Medina.

11:04 a.m.

The hearing concluded and the record was closed.  The Board took a brief recess.

11:12 a.m.

Ms. Abele moved that the Board go into Executive Session for the purpose of the investigation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Mr. Littlejohn and a roll call vote was conducted by President Cavendish as follows: Abele-Yes, Adelman-Yes, Eastman-Yes, Littlejohn-Yes, Neuber-Yes, and Repke-Yes.

11:15 a.m.

Mr. Giacalone joined the Executive Session in progress.

11:19 a.m.

RES. 2000-195   The Executive Session ended and the meeting was opened to the public.  Ms. Eastman moved that the Board issue the following Cease and Desist letter:

 

CEASE AND DESIST

 

Samuel Cramer, M.D., MBA

Corporate Medical Director

Anthem Blue Cross and Blue Shield Midwest

220 Virginia Avenue

P.O. Box 7101

Indianapolis, IN 46207-7101

 

Dear Dr. Cramer:

 

It has come to the Board’s attention that Anthem has implemented a program wherein confidential patient information is transmitted to an outside database management company without having a release from the patient to do so.  A copy of such letter to a patient is enclosed herewith.

 

You are hereby advised that Section 3719.13 of the Ohio Revised Code states as follows:

 

Prescriptions, orders, and records, required by Chapter 3719. of the Revised Code, and stocks of dangerous drugs and controlled substances, shall be open for inspection only to federal, state, county, and municipal officers, and employees of the state board of pharmacy whose duty it is to enforce the laws of this state or of the United States relating to controlled substances.  Such prescriptions, orders, records, and stocks shall be open for inspection by employees of the state medical board for purposes of enforcing Chapter 4731. of the Revised Code.  No person having knowledge of any such prescription, order, or record shall divulge such knowledge, except in connection with a prosecution or proceeding in court or before a licensing or registration board or officer, to which prosecution or proceeding the person to whom such prescriptions, orders, or records relate is a party.

 

Further, Rule 4729-5-29 of the Ohio Administrative Code states in pertinent part as follows:

 

(A)     Records of dispensing or administering of drugs are not a public record. A person having custody of, or access to, such records shall not divulge the contents thereof, or provide a copy thereof, to anyone except:

(1)     The patient for whom the prescription or medication order was issued.

(2)     The practitioner who issued the prescription or medication order.

(3)     Certified/licensed health care personnel who are responsible for the care of the patient.

(4)     A member, inspector, agent, or investigator of the board of pharmacy or any federal, state, county, or municipal officer whose duty is to enforce the laws of this state or the United States relating to drugs and who is engaged in a specific investigation involving a designated person or drug.

(5)     An agent of the state medical board when enforcing Chapter 4731. of the Revised Code.

(6)     An agency of government charged with the responsibility of providing medical care for the patient upon a written request by an authorized representative of the agency requesting such information.

(7)     An agent of a medical insurance company who provides prescription insurance coverage to the patient upon authorization and proof of insurance by the patient or proof of payment by the insurance company for those medications whose information is requested.

(8)     Any person, other than those listed in paragraphs (A)(1) to (A)(6) of this rule, only when the patient has given consent for such disclosure in writing, except where a patient requiring medication is unable to deliver a written consent to the necessary disclosure.  Any consent must be signed by the patient and dated.  Any pharmacist may disclose the prescription information when, in the professional judgment of the pharmacist, it is deemed to be in the best interest of the patient.  A pharmacist making an oral disclosure in an emergency situation must prepare a written memorandum showing the patient’s name, the date and time the disclosure was made, the nature of the emergency, and the names of the individuals by whom and to whom the information was disclosed.

(B)     . . .

 

You are further advised that a violation of Section 3719.13 of the Ohio Revised Code is a misdemeanor of the third degree in the state of Ohio, punishable by a fine up to $3,000 and incarceration up to 90 days.  Entering into contracts with pharmacies whereby Anthem would receive confidential information could be regarded as complicity to the dissemination of the information from those pharmacies.  The State Board of Pharmacy regards the improper dissemination of confidential patient records as a serious offense and will not hesitate to pursue violators.

 

Please note that the goals of the program, as can be gleaned from a reading of the literature, appear to be admirable.  If the patients’ consents were to be obtained prior to dissemination of the information to the database management company, the program may very well comply with Ohio law.  However, you may not implement such a program without having obtained the patients’ consents first.  Requiring patients to “opt out” of the program, rather than having them affirmatively agree to participate, is not deemed to be valid.

 

WHEREFORE, Anthem is hereby notified to CEASE engaging in conduct which aids and abets the violation of Ohio’s patient confidentiality statutes, and DESIST from any violations of Ohio law.

 

BY ORDER OF THE STATE BOARD OF PHARMACY

 

The motion was seconded by Mr. Littlejohn and approved by the Board (Aye-6/Nay-0/Abstain-1[Giacalone]).

 

RES. 2000-196   Mrs. Neuber then moved that the Board adopt the following Order in the matter of Steven J. Brownsberger, R.Ph., Medina:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-000208-044)

 

In The Matter Of:

 

STEVEN J. BROWNSBERGER, R.Ph.

604 Continental Drive

Medina, Ohio 44256

(R.Ph. No. 03-3-18617)

 

INTRODUCTION

 

THE MATTER OF STEVEN J. BROWNSBERGER CAME TO HEARING ON JUNE 14, 2000, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT B. CAVENDISH, R.Ph. (presiding); ANN D. ABELE, R.Ph.; DIANE C. ADELMAN, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; AMONTE B. LITTLEJOHN, R.Ph.; SUZANNE L. NEUBER, R.Ph.; AND NICHOLAS R. REPKE, PUBLIC MEMBER.

 

STEVEN J. BROWNSBERGER WAS NOT REPRESENTED BY COUNSEL, AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

 

(A)     Testimony

 

State's Witnesses:

 

(1)     Thomas Miksch, Ohio State Board of Pharmacy

 

Respondent's Witnesses:

 

(1)     Steven J. Brownsberger, Respondent

 

(B)     Exhibits

 

State's Exhibits:

 

(1)     Exhibit 1--Copy of five-page Summary Suspension Order/Notice of Opportunity for Hearing letter dated February 8, 2000.

(2)     Exhibit 1A--Hearing Request letter dated February 22, 2000.

(3)     Exhibit 1B--Copy of Hearing Schedule letter dated February 29, 2000.

(4)     Exhibit 1C--Copy of Pharmacist File Front Sheet of Steven J. Brownsberger showing original date of registration as October 26, 1990; and copy of Renewal Application for Pharmacist License No. 03-3-18617 for a license to practice pharmacy in Ohio from September 15, 1999, to September 15, 2000, dated July 21, 1999.

(5)     Exhibit 2--Copy of handwritten, notarized statement of Steven J. Brownsberger dated February 2, 2000.

(6)     Exhibit 2A--Giant Eagle Pharmacy #0178 "Medical Expenses" report of Patient Steve Brownsberger from July 14, 1998, to October 4, 1999, dated October 4, 1999.

(7)     Exhibit 2B--Copy of notarized Release Form of Steve Brownsberger dated October 28, 1999; copy of two-page letter from Karl C. Meyer dated January 6, 2000; copy of six-page Southwest General Health Center, Oakview Behavioral Health Center, "CD Outpatient BPS Report #3.700" dated January 5, 2000; and copy of Southwest General Health Center Narrative Summary of Steven Brownsberger, Job #090759/Document #158658.

(8)     Exhibit 3--Copies of sixteen "Monthly C11 Audit" sheets of Store #178 dated from August 1, 1998, through October 1, 1999.

(9)     Exhibit 4--Ohio State Board of Pharmacy Drug Audit Accountability Sheet of Giant Eagle, Terminal Distributor No. 02-1072850, for oxycodone w/acetaminophen 5/500 capsules dated January 19, 2000.

(10)   Exhibit 5--Ohio State Board of Pharmacy Drug Audit Accountability Sheet of Giant Eagle, Terminal Distributor No. 02-1072850, for Dexedrine 5mg tablets dated January 19, 2000.

(11)   Exhibit 6--Ohio State Board of Pharmacy Drug Audit Accountability Sheet of Giant Eagle, Terminal Distributor No. 02-1072850, for Dexedrine 15mg spansules dated January 19, 2000.

(12)   Exhibit 7--Ohio State Board of Pharmacy Drug Audit Accountability Sheet of Giant Eagle, Terminal Distributor No. 02-1072850, for Ritalin 5mg tablets dated January 19, 2000.

(13)   Exhibit 8--Two Ohio State Board of Pharmacy Drug Audit Accountability Sheets of Giant Eagle, Terminal Distributor No. 02-1072850, dated January 19, 2000 for the following drugs: methylphenidate 10mg tablets and Ritalin 10mg tablets.

(14)   Exhibit 9--Two Ohio State Board of Pharmacy Drug Audit Accountability Sheets of Giant Eagle, Terminal Distributor No. 02-1072850, dated January 19, 2000, for the following drugs: Ritalin 20mg tablets and methylphenidate 20mg tablets.

(15)   Exhibit 10--Two Ohio State Board of Pharmacy Drug Audit Accountability Sheets of Giant Eagle, Terminal Distributor No. 02-1072850, dated January 19, 2000, for the following drugs: Ritalin SR 20mg tablets and methylphenidate 20mg E.R. tablets.

(16)   Exhibit 11--Ohio State Board of Pharmacy Drug Audit Accountability Sheet of Giant Eagle, Terminal Distributor No. 02-1072850, for hydrocodone bitartrate w/APAP 10/650 dated January 19, 2000.

(17)   Exhibit 12--Ohio State Board of Pharmacy Drug Audit Accountability Sheet of Giant Eagle, Terminal Distributor No. 02-1072850, for hydrocodone bitartrate w/APAP 10/500 dated January 19, 2000.

(18)   Exhibit 13--Ohio State Board of Pharmacy Drug Audit Accountability Sheet of Giant Eagle, Terminal Distributor No. 02-1072850, for hydrocodone bitartrate w/APAP 7.5/500 dated January 19, 2000.

(19)   Exhibit 14--Two Ohio State Board of Pharmacy Drug Audit Accountability Sheets of Giant Eagle, Terminal Distributor No. 02-1072850, dated January 19, 2000, for the following drugs: hydrocodone bitartrate w/APAP 7.5/750 and Vicodin ES 7.5/750.

(20)   Exhibit 15--Ohio State Board of Pharmacy Drug Audit Accountability Sheet of Giant Eagle, Terminal Distributor No. 02-1072850, for Vicoprofen 7.5/200 tablets dated January 19, 2000.

(21)   Exhibit 16--Copy of Giant Eagle prescription bag displaying two labels as follows: prescription number 6018711 dated October 3, 1999, costing $5.29; and prescription number 4003276 dated October 3, 1999, costing $65.61.

(22)   Exhibit 17--Giant Eagle prescription bag displaying one label as follows: prescription number 4003276 dated October 3, 1999, costing $49.96.

 

Respondent's Exhibits:

 

(1)     Exhibit A--Copies of the following: Thirteen pages of AA Attendance sheets of S. Brownsberger dated from October 8, 1999, through June 13, 2000; copy of Medina County Client Fee/Service Agreement of Steven J. Brownsberger dated January 7, 2000; two-page copy of Pharmacists Rehabilitation Organization, Inc. Pharmacist’s Recovery Contract of Steve Brownsberger dated December 8, 1999; eleven pages of urine drug screen reports and/or chain of custody request of Steven Brownsberger dated from December 6, 1999, through May 11, 2000; copy of Medina General Hospital Emergency Room Discharge Instructions of Steven Brownsberger, not dated; copy of prescription from Medina General Hospital for Steven Brownsberger for Erytab 333mg and Entex LA dated May 16, 2000; letter from Emil Dontenville dated June 6, 2000; letter from Marilyn Pavlus dated June 7, 2000; letter from Beth A. Humbert dated June 5, 2000; two-page letter from Karl C. Meyer dated January 6, 2000; two-page letter from John Brownsberger dated June 1, 2000; note from John A. Brownsberger dated June 1, 2000, with prescription from Internal Medicine Center of Akron for Steven Brownsberger for Dexedrine 15mg dated October 4, 1999; and letter from Edward (last name illegible), not dated.

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the following to be fact:

 

(1)     Records of the State Board of Pharmacy indicate that Steven J. Brownsberger was originally licensed in the state of Ohio on October 26, 1990, pursuant to examination, and his license to practice pharmacy in the state of Ohio was summarily suspended on February 8, 2000, pursuant to Sections 3719.121(A) and 3719.121(B) of the Ohio Revised Code.  Records further indicate that from on or about September 3, 1998, through October 26, 1999, Steven J. Brownsberger was the Responsible Pharmacist at Giant Eagle in Strongsville, Ohio pursuant to Rule 4729-5-11 of the Ohio Administrative Code and Sections 4729.27 and 4729.55 of the Ohio Revised Code.

 

(2)     Steven J. Brownsberger is addicted to liquor or drugs or impaired physically or mentally to such a degree as to render him unfit to practice pharmacy, to wit: Steven J. Brownsberger began abusing drugs in college; Steven J. Brownsberger stated that boredom led him to steal and experiment with Dexedrine and Vicodin; some of the other drugs Steven J. Brownsberger abused were Ritalin, Prozac, Dexatrim, Oxycodone, and Marijuana; Steven J. Brownsberger stole drugs from his employer and tried to cover up his theft of drugs by altering the store’s monthly CII audit; Steven J. Brownsberger practiced pharmacy while being impaired; on October 3, 1999, Steven J. Brownsberger ingested 8 unit doses of Dexedrine and 5 to 10 unit doses of Vicodin; Steven J. Brownsberger believed he was more likely to make a mistake at work if he were not taking drugs; Steven J. Brownsberger went into treatment to “wean” himself off drugs; and Steven J. Brownsberger stated that he “didn’t have control over his addiction and really needed to get help.”  Such conduct indicates that Steven J. Brownsberger falls within the ambit of Sections 3719.121(A), 3719.121(B), and 4729.16(A)(3) of the Ohio Revised Code.

 

(3)     Steven J. Brownsberger did, from on or about May 1, 1999, through October 3, 1999, with purpose to deprive, knowingly obtain or exert control over controlled substances, the property of Giant Eagle Pharmacy in Strongsville, Ohio beyond the express or implied consent of the owner, to wit: Steven J. Brownsberger stole 31 unit doses of Oxycodone, a Schedule II controlled substance, in violation of Section 2913.02 of the Ohio Revised Code.

 

(4)     Steven J. Brownsberger did, from on or about May 1, 1999, through October 3, 1999, knowingly obtain, possess, or use a controlled substance, to wit: throughout this five-month period Steven J. Brownsberger ingested 31 unit doses of Oxycodone, a Schedule II controlled substance, without a prescription and/or without a legitimate medical purpose in violation of Section 2925.11 of the Ohio Revised Code.

 

(5)     Steven J. Brownsberger did, from on or about May 1, 1999, through October 3, 1999, with purpose to deprive, knowingly obtain or exert control over controlled substances, the property of Giant Eagle Pharmacy in Strongsville, Ohio beyond the express or implied consent of the owner, to wit: Steven J. Brownsberger stole 169 unit doses of Dexedrine 5mg and 159 unit doses of Dexedrine 15mg spansules, a Schedule II controlled substance, in violation of Section 2913.02 of the Ohio Revised Code.

 

(6)     Steven J. Brownsberger did, from on or about May 1, 1999, through October 3, 1999, knowingly obtain, possess, or use a controlled substance, to wit: throughout this five-month period Steven J. Brownsberger ingested 169 unit doses of Dexedrine 5mg and 159 unit doses of Dexedrine 15mg spansules, a Schedule II controlled substance, without a prescription and/or without a legitimate medical purpose in violation of Section 2925.11 of the Ohio Revised Code.

 

(7)     Steven J. Brownsberger did, from on or about May 1, 1999, through October 3, 1999, with purpose to deprive, knowingly obtain or exert control over controlled substances, the property of Giant Eagle Pharmacy in Strongsville, Ohio beyond the express or implied consent of the owner, to wit: Steven J. Brownsberger stole the following Schedule II controlled substances from his employer:

 

Drug

Quantity

Methylphenidate 5mg

5

Methylphenidate 10mg

61

Methylphenidate 20mg

187

Methylphenidate ER

75

 

Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(8)     Steven J. Brownsberger did, from on or about May 1, 1999, through October 3, 1999, knowingly obtain, possess, or use a controlled substance, to wit: throughout this five-month period Steven J. Brownsberger ingested the following Schedule II controlled substances without a prescription and/or without a legitimate medical purpose:

 

Drug

Quantity

Methylphenidate 5mg

5

Methylphenidate 10mg

61

Methylphenidate 20mg

187

Methylphenidate ER

75

 

Such conduct is in violation of Section 2925.11 of the Ohio Revised Code.

 

(9)     Steven J. Brownsberger did, from on or about May 1, 1999, through October 3, 1999, with purpose to deprive, knowingly obtain or exert control over controlled substances, the property of Giant Eagle Pharmacy in Strongsville, Ohio beyond the express or implied consent of the owner, to wit: Steven J. Brownsberger stole the following Schedule III controlled substances from his employer:

 

Drug

Quantity

Hydrocodone 10mg/APAP 650mg

80

Hydrocodone 10mg/APAP 500mg

79

Hydrocodone 7.5mg APAP 500mg

304

Hydrocodone 7.5mg/APAP 750mg

400

Hydrocodone 7.5mg/Ibuprofen 200mg

1,005

 

Such conduct is in violation of Section 2913.02 of the Ohio Revised Code. 

 

(10)   Steven J. Brownsberger did, from on or about May 1, 1999, through October 3, 1999, knowingly obtain, possess, or use a controlled substance, to wit: throughout this five-month period Steven J. Brownsberger ingested the following Schedule III controlled substances without a prescription and/or without a legitimate medical purpose:

 

Drug

Quantity

Hydrocodone 10mg/APAP 650mg

80

Hydrocodone 10mg/APAP 500mg

79

Hydrocodone 7.5mg APAP 500mg

304

Hydrocodone 7.5mg/APAP 750mg

400

Hydrocodone 7.5mg/Ibuprofen 200mg

1,005

 

Such conduct is in violation of Section 2925.11 of the Ohio Revised Code.

 

(11)   Steven J. Brownsberger did, on or about October 3, 1999, knowingly make or affix a false or forged label to a package or receptacle containing a dangerous drug, to wit: Steven J. Brownsberger dispensed 300ml of Hycodan syrup pursuant to prescription number 4003276; however, the label on the bottle showed that 400ml was dispensed.  Such conduct is in violation of Section 2925.23(D) of the Ohio Revised Code.

 

(12)   Steven J. Brownsberger did, on or about October 28, 1999, knowingly make a false statement in a report or record required by Chapter 3719. or 4729. of the Revised Code, to wit: Steven J. Brownsberger altered the pharmacy’s Schedule II controlled substance monthly audit to reflect that there was no shortage.  Such conduct is in violation of Section 2925.23(A) of the Ohio Revised Code.

 

(13)   Steven J. Brownsberger did, on or about September 3, 1998, through October 3, 1999, knowing that he had no privilege to do so, and with purpose to defraud, falsify, destroy, remove, conceal, alter, deface, or mutilate computer data or a record, to wit: Steven J. Brownsberger re-supplied the pharmacy’s Hydrocodone products by lowering the ordering trigger points in the computer system, showing that the pharmacy stock was lower than it actually was, thereby causing drug orders to be sent.  Such conduct is in violation of Section 2913.42(A) of the Ohio Revised Code.

 

CONCLUSIONS OF LAW

 

(1)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (2) through (13) of the Findings of Fact constitute being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(2)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (2), (4), (6), (8), and (10) of the Findings of Fact constitute being addicted to or abusing liquor or drugs or impaired physically or mentally to such a degree as to render him unfit to practice pharmacy as provided in Division (A)(3) of Section 4729.16 of the Ohio Revised Code.

 

(3)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (4), (6), (8), and (10) through (12) of the Findings of Fact constitute being guilty of willfully violating, conspiring to violate, attempting to violate, or aiding and abetting the violation of provisions of Chapter 2925. as provided in Division (A)(5) of Section 4729.16 of the Ohio Revised Code.

 

ACTION OF THE BOARD

 

Pursuant to Section 3719.121 of the Ohio Revised Code, the State Board of Pharmacy hereby removes the Summary Suspension Order issued to Steven J. Brownsberger on February 8, 2000.

 

Pursuant to Section 4729.16 of the Ohio Revised Code, and on the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Pharmacy hereby suspends indefinitely the pharmacist identification card, No. 03-3-18617, held by Steven J. Brownsberger and such suspension is effective as of the date of the mailing of this Order.

 

(A)     Steven J. Brownsberger, pursuant to Rule 4729-9-01(F) of the Ohio Administrative Code, may not be employed by or work in a facility licensed by the State Board of Pharmacy to possess or distribute dangerous drugs during such period of suspension.

 

(B)     Steven J. Brownsberger, pursuant to Section 4729.16(B) of the Ohio Revised Code, must return the identification card and license (wall certificate) to the office of the State Board of Pharmacy within ten days after receipt of this Order.  The certificate and identification card should be sent by certified mail, return receipt requested.

 

Further, on or after January 1, 2002, the Board will consider any petition filed by Steven J. Brownsberger for a hearing, pursuant to Ohio Revised Code Chapter 119., for reinstatement.  The Board will only consider reinstatement of the license to practice pharmacy in Ohio if the following conditions have been met:

 

(A)     Steven J. Brownsberger must enter into a contract, signed within 90 days after the effective date of this Order, with an Ohio Department of Alcohol and Drug Addiction Services (ODADAS) treatment provider or a treatment provider acceptable to the Board for a period of not less than five years.  The contract must provide that:

 

(1)     Random, observed urine drug screens shall be conducted at least once each month.

 

(a)     The urine sample must be given within twelve hours of notification.  The urine screen must include testing for creatinine or specific gravity of the sample as the dilutional standard.

 

(b)     Alcohol must be added to the standard urine drug screen.  A Breathalyzer may be used to test for alcohol, but the test must be conducted by an appropriately certified individual within twelve hours of notification.

 

(c)     Results of all drug and alcohol screens must be negative.  Any positive results, including those which may have resulted from ingestion of food, but excluding false positives which resulted from medication legitimately prescribed, indicates a violation of the contract.

 

(2)     Attendance is required a minimum of three times per week at an Alcoholics Anonymous, Narcotics Anonymous, and/or similar support group meeting.

 

(3)     The program shall immediately report to the Ohio Board of Pharmacy any violations of the contract and/or lack of cooperation.

 

(B)     Steven J. Brownsberger must provide, at the reinstatement petition hearing, documentation of the following:

 

(1)     Compliance with the contract required in paragraph (A) above (e.g.-proof of giving the sample within 12 hours of notification, copies of all drug and alcohol screen reports, meeting attendance records, treatment program reports, etc.);

 

(2)     Compliance with the continuing pharmacy education requirements as set forth in Chapter 4729-7 of the Ohio Administrative Code in effect on the date of petitioning the Board for reinstatement;

 

(3)     Compliance with the terms of this Order.

 

(C)     If reinstatement is not accomplished within three years of the effective date of this Order, Steven J. Brownsberger must successfully complete the NAPLEX examination or an equivalent examination approved by the Board.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Ms. Abele and approved by the Board (Aye-7/Nay-0).

11:26 a.m.

Mrs. Neuber left the meeting to attend to personal business.  The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of Thomas W. Foti, R.Ph., New Philadelphia.

12:40 p.m.

The hearing concluded and the record was closed.  The Board took a brief recess.

12:55 p.m.

Ms. Abele moved that the Board go into Executive Session for the purpose of the investigation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Mrs. Adelman and a roll call vote was conducted by President Cavendish as follows: Abele-Yes, Adelman-Yes, Eastman-Yes, Giacalone-Yes, Littlejohn-Yes,  and Repke-Yes.

  1:05 p.m.

RES. 2000-197   The Executive Session ended and the meeting was opened to the public.  Ms. Abele then moved that, pursuant to Section 3719.121 of the Revised Code, the Board summarily suspend the license to practice pharmacy belonging to Dennis Carey, R.Ph. (03-1-09565) due to the fact that a continuation of his professional practice presents a danger of immediate and serious harm to others.  The motion was seconded by Ms. Eastman and approved by the Board (Aye-6/Nay-0).

  1:08 p.m.

RES. 2000-198   Mr. Giacalone moved that the Board adopt the following Order in the matter of Thomas W. Foti, R.Ph., New Philadelphia:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-991005-024)

 

In The Matter Of:

 

THOMAS WILLIAM FOTI, R.Ph.

995 Clearview Drive SE

New Philadelphia, Ohio 44663

(R.Ph. No. 03-1-10877)

 

INTRODUCTION

 

THE MATTER OF THOMAS WILLIAM FOTI CAME TO HEARING ON JUNE 14, 2000, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT B. CAVENDISH, R.Ph. (presiding); ANN D. ABELE, R.Ph.; DIANE C. ADELMAN, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; AMONTE B. LITTLEJOHN, R.Ph.; AND NICHOLAS R. REPKE, PUBLIC MEMBER.

 

THOMAS WILLIAM FOTI WAS REPRESENTED BY DAVID W. GRAUER, AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

 

(A)     Testimony

 

State's Witnesses:

 

(1)     David Gallagher, Ohio State Board of Pharmacy

 

Respondent's Witnesses:

 

(1)     Thomas William Foti, Respondent

(2)     Chris Hart, R.Ph., Rite Aid

 

(B)     Exhibits

 

State's Exhibits:

 

(1)     Exhibit 1--Copy of four-page Summary Suspension Order/Notice of Opportunity for Hearing letter dated October 5, 1999.

(2)     Exhibit 1A--Request for Hearing and Certificate of Service dated October 29, 1999; and Notice of Appearance and Certificate of Service dated October 29, 1999.

(3)     Exhibit 1B--Copy of Hearing Schedule letter dated November 2, 1999.

(4)     Exhibit 1C--Two-page letter from David W. Grauer dated November 4, 1999, with attached four-page proposed settlement in the matter of Thomas William Foti.

(5)     Exhibit 1D--Copy of letter from David L. Rowland dated November 8, 1999.

(6)     Exhibit 1E--Copy of Hearing Schedule letter dated March 1, 2000.

(7)     Exhibit 1F--Copy of Pharmacist File Front Sheet of Thomas William Foti showing original date of registration as July 30, 1974; and copy of Renewal Application for Pharmacist License No. 03-1-10877 for a license to practice pharmacy in Ohio from September 15, 1999, to September 15, 2000, of Thomas William Foti dated July 21, 1999.

(8)     Exhibit 2--Two-page copy of D.E.A. Form 106 (Report of Theft or Loss of Controlled Substances) of Rite Aid Discount Pharmacy #2392 dated August 6, 1999.

(9)     Exhibit 3--Three-page Ohio State Board of Pharmacy Statement Form of Steven J. Gooding, Case No. 99-1692, signed and notarized on July 26, 1999.

(10)   Exhibit 4--Two-page Ohio State Board of Pharmacy Statement Form of Tim Rech, Case No. 99-1692, signed and notarized on July 26, 1999.

(11)   Exhibit 5--Copy of thirteen-page transcript of telephone conversation between Dave Gallagher and Tom Foti held on July 5, 1999.

(12)   Exhibit 6--Copy of four-page "Indictment" in the Tuscarawas County Common Pleas Court, The State of Ohio vs. Thomas W. Foti, Case No. 2000 CR 02 0029, dated February 25, 2000.

(13)   Exhibit 7--Copy of five-page "Judgment Entry" in the Tuscarawas County Common Pleas Court, State of Ohio vs. Thomas W. Foti, Case No. 2000 CR 02 0029, dated March 9, 2000.

(14)   Exhibit 8--Copy of seven-page "Judgment Entry" in the Tuscarawas County Common Pleas Court, State of Ohio vs. Thomas W. Foti, Case No. 2000 CR 02 0029, dated May 2, 2000.

 

Respondent's Exhibits:

 

(1)     Exhibit A--Copy of two-page Pharmacists Rehabilitation Organization, Inc. Pharmacist’s Recovery Contract of Tom Foti dated September 12, 1999.

(2)     Exhibit B--Copies of seven-page "Judgment Entry" in the Tuscarawas County Common Pleas Court, State of Ohio vs. Thomas W. Foti, Case No. 2000 CR 02 0029, dated May 2, 2000; "Motion for Treatment In Lieu of Conviction" dated March 7, 2000; two-page "Memorandum" dated March 7, 2000; two-page "Memorandum In Support of Motion For Treatment In Lieu of Conviction" dated April 5, 2000; "Proof of Service" dated April 4, 2000; and two-page copy of Ohio Adult Parole Authority "Conditions of Supervision" of Thomas Foti dated April 27, 2000.

(3)     Exhibit C--Copy of customer receipt for Bank One Check No. 626612627; two-page copy of "Letter of Civil Demand" to Thomas Foti from W. M. Knievel dated July 8, 1999; and copy of Domestic Return Receipt showing date of delivery as July 15, 1999, and Receipt for Certified Mail No. Z 321 978 465 dated July 13, 1999.

(4)     Exhibit D--Copy of seven pages of AA Meeting Reporting Sheets of Tom Foti dated from October 1, 1999, through June 5, 2000.

(5)     Exhibit E--Copy of letter from Chris Lindskog dated March 1, 2000; copy of letter from Wyckliffe J. Howland dated April 17, 2000; copy of letter from Maureen McGuire dated February 25, 2000; and copy of letter from Kellie Fisher dated February 23, 2000.

(6)     Exhibit F--Copy of two-page Shepherd Hill "Recovery Monitoring Services Agreement" of Thomas W. Foti dated October 6, 1999.

(7)     Exhibit G--Copy of RMS Urine Monitoring of Thomas Foti dated from October 13, 1999, through March 30, 2000, and twenty-nine pages consisting of twenty-five urine drug screen reports of Thomas Foti collected from October 13, 1999, through May 12, 2000.

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the following to be fact:

 

(1)     Records of the State Board of Pharmacy indicate that Thomas William Foti was originally licensed in the State of Ohio on July 30, 1974, pursuant to examination and his license to practice pharmacy in the state of Ohio was summarily suspended on October 5, 1999, pursuant to Section 3719.121(B) of the Ohio Revised Code.

 

(2)     Thomas William Foti did, from on or about May 1, 1998, through July 1, 1999, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Rite Aid Pharmacy #2392, beyond the express or implied consent of the owner and/or by deception, to wit: Thomas William Foti stole the following controlled substances from his employer:

 

Drug

Quantity

Adipex-P

33

Fastin 30mg

25

Phentermine 37.5mg

38

Vicodin 5mg/500mg

22

Hydrocodone 5mg/APAP 500mg

475

Tylenol 325mg/Codeine 30mg

220

Lorazepam 1mg

14

Diazepam 2mg

63

Diazepam 5mg

162

Valium 5mg

17

 

Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(3)     Thomas William Foti did, from about April of 1999, to July of 1999, knowingly possess controlled substances when the conduct was not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: Thomas William Foti admitted consuming eight Tylenol 325mg w/Codeine 30mg daily for a three- to four-week period and due to becoming tired from taking pain medications, Thomas William Foti would take stimulants to get through the day.  Such conduct is in violation of Section 2925.11 of the Ohio Revised Code.

 

(4)     Thomas William Foti is addicted to and/or abusing liquor or drugs or impaired physically or mentally to such a degree as to render him unfit to practice pharmacy, to wit: Thomas William Foti has admitted stealing Phentermine, Hydrocodone, and Tylenol/Codeine from his employer; Thomas William Foti admitted consuming eight Tylenol 325mg w/Codeine 30mg daily for a three- to four-week period; and, due to becoming tired from taking pain medications, Thomas William Foti admitted to taking stimulants to get through the day.  Such conduct indicates that Thomas William Foti falls within the ambit of Sections 3719.121(B), and 4729.16(A)(3) of the Ohio Revised Code.

 

CONCLUSIONS OF LAW

 

(1)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (2) and (3) of the Findings of Fact constitute being guilty of a felony as provided in Division (A)(1) of Section 4729.16 of the Ohio Revised Code.

 

(2)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (2) through (4) of the Findings of Fact constitute being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(3)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraphs (3) and (4) of the Findings of Fact constitute being addicted to or abusing liquor or drugs or impaired physically or mentally to such a degree as to render him unfit to practice pharmacy as provided in Division (A)(3) of Section 4729.16 of the Ohio Revised Code.

 

(4)     Upon consideration of the record as a whole, the State Board of Pharmacy concludes that paragraph (3) of the Findings of Fact constitute being guilty of willfully violating, conspiring to violate, attempting to violate, or aiding and abetting the violation of provisions of Sections 3715.52 to 3715.72 or Chapter 2925., 3719., or 4729. of the Revised Code as provided in Division (A)(5) of Section 4729.16 of the Ohio Revised Code.

 

ACTION OF THE BOARD

 

Pursuant to Section 3719.121 of the Ohio Revised Code, the State Board of Pharmacy hereby removes the Summary Suspension Order issued to Thomas William Foti on October 5, 1999.

 

Pursuant to Section 4729.16 of the Ohio Revised Code, and on the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Pharmacy hereby approves reinstatement of the pharmacist identification card, No. 03-1-10877, held by Thomas William Foti to practice pharmacy in the state of Ohio and places him on probation for five years from the date the identification card is issued, with the following conditions:

 

(A)     Thomas William Foti must enter into a contract, signed within 90 days after the effective date of this Order, with an Ohio Department of Alcohol and Drug Addiction Services (ODADAS) treatment provider or a treatment provider acceptable to the Board for a period of not less than five years and submit a copy of the signed contract to the Board office with the renewal application.  The contract must provide that:

 

(1)     Random, observed urine drug screens shall be conducted at least once every three months.

 

(a)     The urine sample must be given within twelve hours of notification.  The urine drug screen must include testing for creatinine or specific gravity of the sample as the dilutional standard.

 

(b)     Alcohol must be added to the standard urine drug screen.  A Breathalyzer may be used to test for alcohol, but an appropriately certified individual must conduct the test within twelve hours of notification.

 

(c)     Results of all drug and alcohol screens must be negative.  Any positive results, including those which may have resulted from ingestion of food, but excluding false positives which resulted from medication legitimately prescribed, indicates a violation of the contract and probation.

 

(2)     The intervener/sponsor shall provide copies of all drug and alcohol screen reports to the  Board in a timely fashion.

 

(3)     Attendance is required a minimum of three times per week at an Alcoholics Anonymous, Narcotics Anonymous, and/or similar support group meeting.

 

(4)     The program shall immediately report to the Board any violations of the contract and/or lack of cooperation.

 

(B)     Thomas William Foti must submit quarterly progress reports to the Board, due January 10, April 10, July 10, and October 10 of each year of probation, that include:

 

(1)     The written report and documentation provided by the treatment program pursuant to the contract, and

 

(2)     A written description of Thomas William Foti’s progress towards recovery and what he has been doing during the previous three months.

 

(C)     Other terms of probation are as follows:

 

(1)     The State Board of Pharmacy hereby declares that Thomas William Foti’s pharmacist identification card is not in good standing and thereby denies the privilege of being a preceptor and training pharmacy interns pursuant to paragraph (D)(1) of Rule 4729-3-01 of the Ohio Administrative Code.

 

(2)     Thomas William Foti may not serve as a responsible pharmacist.

 

(3)     Thomas William Foti may not destroy, assist in, or witness the destruction of controlled substances.

 

(4)     Thomas William Foti must abide by the contract from the treatment provider and any violation must be reported to the Board immediately.

 

(5)     Thomas William Foti must not violate the drug laws of the state of Ohio, any other state, or the federal government.

 

(6)     Thomas William Foti must abide by the rules of the Ohio State Board of Pharmacy.

 

(7)     Thomas William Foti must comply with the terms of this Order.

 

Thomas William Foti is hereby advised that the Board may at any time revoke probation for cause, modify the conditions of probation, and reduce or extend the period of probation.  At any time during this period of probation, the Board may revoke probation for a violation occurring during the probation period.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Ms. Eastman and approved by the Board (Aye-6/Nay-0).

  1:14 p.m.

RES. 2000-199   Mr. Winsley presented the Data Security and Patient Confidentiality statement received from iScribe that had been requested by the Board at the May, 2000 meeting.  After reviewing the information presented, the consensus of the Board was that the system would meet the Board’s requirements subject to review and inspection to insure continued compliance with Ohio laws and rules.

  1:15 p.m.

Mr. Repke moved that the Board receive Per Diem as follows:

 

PER DIEM

5/6

5/7-10

5/30

6/12

6/13

6/14

Total

Abele

-

-

-

1

1

1

3

Adelman

-

-

-

1

1

1

3

Cavendish

-

4

1

1

1

1

8

Eastman

-

-

-

1

1

1

3

Giacalone

-

-

-

1

1

1

3

Littlejohn

-

-

-

1

1

1

3

Kost

-

-

-

1

1

-

2

Neuber

-

-

-

1

1

1

3

Repke

1

4

-

1

1

1

8

 

The motion was seconded by Mrs. Adelman and approved by the Board (Aye-6/Nay-0).

  1:16 p.m.

Mr. Repke then moved that the meeting be adjourned.  The motion was seconded by Mrs. Adelman and approved (Aye-6/Nay-0).

 

 

 

 

THE BOARD APPROVED THESE MINUTES ON JULY 11, 2000.