STATE OF FLORIDA BOARD OF PHARMACY Final Order No. DOH -18-1213- i-mqa FILED DATE - JUL 1 0 2018 Department of I- ealth Deputy Ager@y Clerk C} DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO.: 2017-07439 BENJAMIN WAYNE NUNDY, RPH, RESPONDENT. LICENSE NO.: PS 42548 FINAL ORDER 4120.57(2). FLA. STAT. DISCIPLINARY HEARING This matter appeared before the Board of Pharmacy (herein after Board) at a duly-noticed public meeting held on June 13, 2018, in Howey-in-the-Hills, Florida, pursuant to sections 120.569 and 120.57(2), Florida Statutes, for a hearing not involving disputed issues of material fact. Petitioner has filed an Administrative Complaint seeking disciplinary action against the licensee (Exhibit A). Petitioner has filed a Motion for Determination of Waiver and Entry of Final Order. Respondent was present and represented by counsel. Upon consideration, it is ORDERED: MOTION FOR WAIVER 1. Petitioner properly served the Administrative Complaint. 120.60(5), Fla. Stat. Respondent failed to timely file a response to the Administrative Complaint within 21 days of being served with the Administrative Complaint as required by law and rule. 120.569(2)(c), Fla. Stat.; Fla. Admin. Code R. 28-106.111(2). Based on the aforementioned, the Respondent has waived the right to a hearing involving disputed issues of material fact pursuant to the provisions of sections 120.569(1) and 120.57(1), Florida Statutes. Fla. Admin. Code R. 28-106.111(4).
2. Therefore, the facts in this cause are deemed admitted. Trisha's One Stop v. Off. of Financial Reg., 130 So. 3d 285, 287 (Fla. 1st DCA 2014). FINDINGS OF FACT 3. The facts in this cause are not in dispute and are deemed admitted. 4. Therefore, the allegations of fact set forth in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the findings of fact of the Board. CONCLUSIONS OF LAW 5. The Conclusions of law alleged in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the conclusions of law of the Board. DISCIPLINE 6. Based on the Findings of Fact and Conclusions of Law, the violations in the Administrative Complaint warrant discipline. WHEREFORE, IT IS ORDERED AND ADJUDGED: That the Respondent's license is hereby revoked. THIS FINAL ORDER SHALL BECOME EFFECTIVE UPON FILING WITH THE CLERK OF THE DEPARTMENT OF HEALTH.
DONE AND ORDERED this, 2018. C. Erica White, MBA, JD, Executive Director On Behalf of Jeenu Philip, BPharm, Chair NOTICE OF APPEAL RIGHTS PURSUANT TO SECTION 120.68 FLORIDA STATUTES, A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW UNLESS WAIVED. PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF THE NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF HEALTH AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEALS, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Benjamin Wayne Nundy, 3318 West Shell Point Road, Ruskin, Florida 33570 ; and by electronic mail to David S. Weinstein, Esquire, dweinstein@hinshawlaw.corn ; David D. Flynn, Assistant Attorney General, david.flynn@myfloridalegal.com; and Christopher Jurich, Assistant General Counsel, Department of Health, christopherjurich(&flhealth.com this day of to 14, 2018. Certified Article Number 9414 7266 9904 2090 7426 36 SENDERS RECORD DEPUTY ENCY CLERK Benjamin W. Nundy 3318 West Shell Point Road Ruskin, FL 33570
2669 DEPARTMENT OF HEALTH, STATE OF FLORIDA DEPARTMENT OF HEALTH PETITIONER, V. CASE NO. 2017-07439 BENJAMIN WAYNE NUNDY, R.PH., RESPONDENT. i ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Department of Health (Department), by and through its undersigned counsel, and files this Administrative Complaint before the Board of Pharmacy (Board) against Respondent, Benjamin Wayne Nundy, R.Ph., and in support thereof alleges: 1. Petitioner is the state agency charged with regulating the practice of pharmacy pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 465, Florida Statutes. 2. At all times material to this Administrative Complaint, Respondent was a licensed pharmacist within the state of Florida, having been issued license number PS42548. EXHIBIT i A
2670 3. Respondent's address of record is 3318 West Shell Point Road, Ruskin, Florida 33570. 4. On or about April 26, 2017, in the United States District Court, Middle District of Florida, Tampa Division, Respondent entered a plea of guilty to one count of conspiracy to commit health care fraud, a felony in violation of Title 18, United States Code, Section 1347. 5. Conspiracy to commit health care fraud is a crime which relates to the practice of, or the ability to practice, Respondent's profession as a pharmacist. 6. Conspiracy to commit health care fraud is a crime which relates to health care fraud. 7. Respondent failed to notify the Board in writing within thirty (30) days of April 26, 2017, for entering the aforementioned plea. COUNT ONE 8. Petitioner realleges and incorporates paragraphs one through seven as if fully set forth herein. 9. Section 456.072(1)(c), Florida Statutes (2016), provides that being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which DOH v. Benjamin Wayne Nundy, R.Ph. 2
2671 relates to the practice of, or the ability to practice, a licensee's profession constitutes grounds for disciplinary action. 10. Respondent entered a plea of guilty to conspiracy to commit health care fraud, a crime which relates to the practice of, or the ability to practice, Respondent's profession as a pharmacist. 11. Based on the foregoing, Respondent has violated Section 456.072(1)(c), Florida Statutes (2016). COUNT TWO 12. Petitioner realleges and Incorporates paragraphs one through seven as if fully set forth herein. 13. Section 456.072(1)(11), Florida Statutes (2016), provides that being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, a crime in any jurisdiction which relates to health care fraud, constitutes grounds for disciplinary action. 14. Respondent entered a plea of guilty to conspiracy to commit health care fraud, a crime which relates to health care fraud. 15. Based on the foregoing, Respondent has violated Section 456.072(1)(11), Florida Statutes (2016). DOH v. Benjamin Wayne Nundy, R.Ph. 3
2672 COUNT THREE 16. Petitioner realleges and incorporates paragraphs one through seven as if fully set forth herein. 17. Section 456.072(1)(x), Florida Statutes (2016), provides failing to report to the board, or the department if there is no board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction constitutes grounds for disciplinary action. 18. Respondent failed to notify the Board in writing within thirty (30) days of April 26, 2017, of entering a plea of guilty to conspiracy to commit health care fraud. 19. Based on the foregoing, Respondent has violated Section 456.072(1)(x), Florida Statutes (2016). DOH v. Benjamin Wayne Mundy, R.Ph. 4
2673 WHEREFORE, the Petitioner respectfully requests that the Board of Pharmacy enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this 24th day of August r 2017. Celeste Philip, M.D., M.P.H. Surgeon General and Secretary FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Amber Greene DATE AUG 2 9 2011 /s/ Kate M. Holmes Kate M. Holmes Assistant General Counsel Fla. Bar No. 115485 Florida Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Telephone: (850) 558-9849 Facsimile: (850) 245-4662 Email: kate.holmes2@flhealth.gov PCP Meeting: 8/24/17 PCP Members: Weizer; Bisaillon DOR v. Benjamin Wayne Nundy, R.Ph. 5
2674 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule 28-106.2015(5), Florida Administrative Code. Please note that mediation under Section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOH v. Benjamin Wayne Nundy, R.Ph. 6