COMMONWEALTH OF MASSACHUSETTS

SUFFOLK COUNTY	                                                            BOARD OF REGISTRATION 
                                                                                                IN PHARMACY

_________________________________
                                                                  )      
In the Matters of                                       )
BOURNE PHARMACY                        )                             DOCKET NO. DS-06-074
131 Main Street                                        )
Buzzards Bay, Massachusetts                   )
Pharmacy Registration No. 3078              )
                                                                  )
GERALD L. LIBERFARB, R.Ph.         )                            DOCKET NO. PH-06-011
Pharmacist License No. 15152                 )
_________________________________)             

FINAL DECISION AND ORDER

I.	Introduction

These matters came before the Board of Registration in Pharmacy (Board) for determination of why the Board should not suspend. revoke or otherwise take action against: (a) the pharmacy license of Bourne Pharmacy, previously operating at 131 Main Street in Buzzards Bay, Massachusetts, License No. 3078  (Pharmacy); and (b) the pharmacist license of Gerald L. Liberfarb (Respondent), License No. 15152, owner and manager of record of the Pharmacy at all times relevant to Board Complaint Docket Nos. DS-06-074 and PH-06-011 (the Complaints), and any right to renew either license, pursuant to Massachusetts General Laws (G.L.) c. 112, §§ 27, 28, 32, 42A and 61, and Board regulations 247 CMR 9.00  and 10.00, based on the record in these matters, including  written  submissions presented to the Board, exhibits introduced into evidence,
and testimony provided at a heating conducted over multiple dates and in accordance with G.L c. 30A and l801 CMR 1.01 et seq.

II.	Procedural Background

On September 27, 2005, the Board conducted an investigative conference regarding the Complaints, which was attended by Respondent and prior counsel. Respondent declined to 
answer questions at the conference on advice of counsel. Following the conference, the Board 
voted to initiate summary suspension proceedings regarding the licenses of Respondent and the Pharmacy.

On October 12, 2005, Beryl W. Cohen, Esq. entered an appearance on behalf of 
Respondent and the Pharmacy.

On October 17, 2005, the Board issued a Temporary Order of Suspension (Exhibit
4) summarily suspending the Pharmacy license and Respondent's pharmacist license. Following Respondent's October 20, 2005 waiver of his rights to a hearing on the necessity of the summary suspensions, the Board issued a Final Order of Summary Suspension on October 23, 2005 
(Exhibit 5), continuing the suspensions of the respective licenses of Respondent and the
Pharmacy pending a hearing on the merits of the allegations in the Complaints

On November 10, 2005, the Board issued respective Orders to Show Cause (Show Cause Order) regarding Respondent (Exhibit 6) and the Pharmacy (Exhibit 8).

On November 23, 2005, Respondent filed an Answer to each Show Cause Order (Exhibits 
7 and 9), which Answers: (a) admitted certain allegations in the respective Show Cause Order, including that Respondent was present in the Pharmacy on September 21, 2005 when Board investigators were on the premises; (b) denied other Show Cause Order allegations; and (c) 
stated Respondent "lacks knowledge or information sufficient to form a belief as to the truth of
the allegations" regarding other Show Cause Order allegations.

Administrative Hearings Counsel Mitchell Goldstein (Hearings Counsel Goldstein) 
conducted an adjudicatory hearing regarding these matters over six days (January 10, 11, 12, 23, 
24, and 25, 2007). Atty. Cohen represented Respondent on all hearing dates. James G. Lavery 
was Prosecuting Counsel.
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By letter dated July 2, 2007, Hearings Counsel Goldstein advised Respondent “At the conclusion of the last hearing, the parties agreed to explore the possibility of settlement and 
your attorney was to request further hearing dates for the sanction phase of the hearing if it did 
not settle” and inquired if Respondent was still represented by Atty. Cohen, who had been 
suspended from the practice of law for a 90day period commencing May 31, 2007. Respondent's response to Hearings Counsel Goldstein (Letter dated July 13, 2007) requested a sanction hearing 
be scheduled after the receipt of hearing transcripts and stated "[a]t that time I will be represented 
by Attorney Cohen." After several continuances, a hearing on sanctions (Sanction Hearing) was 
held on December 20, 2007. Atty. Cohen represented Respondent at the Sanction Hearing. 
Respondent and [redacted], [redacted] of Respondent, provided testimony and 
Atty. Cohen reviewed prior Board decisions at the Sanction Hearing.

Neither party filed post-hearing memoranda. Communications between the parties 
continued thereafter, including the July 30, 2008 letter from Atty. Cohen to Prosecuting Counsel referenced below.

As of April 24, 2009, Hearings Counsel Goldstein discontinued employment at the 
Department of Public Health, Division of Health Professions Licensure. On April 14, 2009, the 
Board voted to designate Hearings Counsel Goldstein to continue to act as presiding officer in 
these matters to present a proposed final decision to the Board, in accordance with G.L. c. 30A, 
s. 11, subsection (8) and 801 CMR 1.01(11).

In accordance with 801 CMR 1.01 (11) (c), Hearings Counsel Goldstein issued a 
Tentative Decision in this matter to Prosecuting Counsel Lavery and Respondent on November 2, 2009, with  specific notice to Respondent to advise counsel and referencing the currently suspended attorney registration  of Atty. Cohen. Any outstanding motion made by Respondent relating to the inspection of the Pharmacy or other matter relating to these proceedings that was taken under advisement or otherwise not previously ruled on; specifically, Respondent's Motion to Dismiss Based Upon Warrantless Search which was filed  and argued by Respondent on January 25, 2007 and taken under advisement  by Hearings Counsel Goldstein, was DENIED,  in accordance with the ruling of Hearings Counsel Goldstein in the previously issued Tentative Decision. Vol. VI: 46) All other

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motions Respondent filed and argued on various dates have been previously ruled on by Hearings Counsel Goldstein. (Vol. I: 30-54; Ex. 1)

Respondent filed his pro se Objections to Tentative Decision on December 2, 2009.     Prosecuting Counsel filed Prosecuting Counsel's Response to Respondent's Objections to 
Tentative Decision with attached Exhibit 1 (Ruling on Respondent's Motion to Suppress dated 
June 8, 2006 and Letter dated June 28, 2006 from Hearings Counsel Goldstein to Beryl Cohen, 
Esq.) and Exhibit 2 (Letter dated July 30, 2008 from Beryl Cohen, Esq. to Prosecuting Counsel) 
on December 9, 2009. On December 31, 2009, the Board received "Respondent Gerald L. 
Liberfarb's Objections to Chief Board Prosecutor's Objections to Tentative Decision." Although 
such further objections are not provided for 810 CMR 1.01 (11) (c) (1), the Board has 
reviewed and considered Respondent's additional filing.

After review of the filings by both parties after the issuance of the Tentative Decision, 
Hearings Counsel Goldstein revised certain portions of the Tentative Decision and issued his 
Proposed Final Decision consideration by the Board. Arthurs v. Board of Registration in 
Medicine, 383 Mass. 299, 315-316 (1981) (Board is not required to respond specifically to 
objections to the Recommended Decision).

At the Board meeting on January 12, 2010, the Board reviewed the Proposed Final 
Decision of Hearings Counsel Goldstein. As set forth below, the Board voted to adopt the 
Proposed Final Decision in its entirety and issue this Final Decision and Order, effective as of 
January 12, 2010.

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III.	Witnesses

A.   For the Prosecution

1.	Kurtis Roth, Diversion Investigator, U.S. Dept. of Justice, Drug Enforcement
      Administration (DEA)
2.	Samuel J. Penta, R.Ph., Supervising Investigator, Department of Public Health, 
      Division of Health Professions Licensure, Office of Public Protection, Investigative 
      Unit
B.   For Respondent 

1.   Respondent
            2.   [redacted], [redacted] of Respondent
            3.   [redacted], [redacted] of Respondent
	4.   [redacted], [redacted] of Respondent (Sanction Hearing)

IV.	Exhibits

Exhibit 1:	Records of Standing - Respondent and Pharmacy (12/12/06)

Exhibit 2:	Complaint Docket No. PH-06-011 (Respondent)

Exhibit 3:	Complaint Docket No. DS-06-074 (Pharmacy)

Exhibit 4:	Temporary Order of Suspension (October 17, 2005)

Exhibit 5:	Final Order of Summary Suspension (October 23, 2005)

Exhibit 6:	Order to Show Cause (October 10, 2005) regarding Respondent

Exhibit 7:	Respondent's Answer (November 23, 2005)

Exhibit 8:	Order to Show Cause (October 10, 2005) regarding the Pharmacy

Exhibit 9:	Pharmacy Answer (November 23, 2005)

Exhibit 10:	Declaration of Samuel J. Penta, R.Ph. (October 14, 2005)

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Exhibit 11:	MDPH - Division of Health Professions Licensure, Investigation Report (19 
pages), Samuel J. Penta, R.Ph., Investigator (September 27, 2005)

Exhibit 12:	Massachusetts Department of Public Health, Board of Registration in Pharmacy,
"Control Substance Inspection Report", Bourne Pharmacy, Samuel J. Penta, R.Ph., Investigator (undated)

Exhibit 13:	Affidavit of Kurtis Roth, Diversion Investigator, U.S. Dept. of Justice, DEA, U.S. 
FOR ID	District Court, District of Massachusetts (September 19, 2005) 

Exhibit 14:	Report of Investigation, U.S. Dept. of Justice, DEA (October 2005)
FOR ID

Exhibit 15:	Copies of prescriptions (26) dated March 2, 2005 though May 27, 2005 - 19 
written by Michael R. Brown, M.D.; two written by Larry J. Price, M.D.; one each written by Harriet Johnson, R.N., C.S.; Renato C. Mandoza, M.D.; Linda F. 
Habeeb, M.D.; Mary L. Meleski, R.N.C.S.; and Richard W. Marquis, M.D.

Exhibit 16:	AmerisourceBergen Corp. ''U.S. Official Order Forms - Schedules I & II" (August 
29, 2003 though September 6, 2005) and one form from the Pharmacy to 
Universal Rx Solutions of GA (March 24, 2004)

Exhibit 17:	AmerisourceBergen Corp. forms "Monthly Customer Record of Controlled 
Substances" for the Pharmacy (December 31, 2002 through August 31, 2005)

Exhibit 18:	Pharmacy notebook, handwritten, entry dates: September 13, 2003 - August 13, 
2004 (AVINZA)

Exhibit 19:	"Patient Profile Cards" (12) - last names beginning with "A", handwritten (37 
pages)

Exhibit 20:	Pharmacy notebook, handwritten, entry dates: August 14, 2004 - September 17, 
2005 (Oxycodone + APAP 5/325)

Exhibit 21:	Electronic Data Transfer Transmittal Forms (8), Massachusetts Department of 
Public Health - four dated January 26, 2002; three dated April15, 2002; one dated 
June 15, 2002

Exhibit 22:	Atlantic Associates, Inc./Sonia Cormier October  20, 2006 facsimile to James 
Lavery, including: (a) Atlantic Associates, Inc. June 22, 2006 letter to James 
Lavery; (b) Atlantic Associates, Inc. list of data received from Respondent from November 2004 through September 2005 (dated 10/20/06 and signed by "Sonia"); 
and (c) Atlantic Associates, Inc. June 23, 2006 letter to Respondent

Exhibit 23:	United States Pharmacopeia (USP) - National Formulary (NF) 2004, "The Official Compendia of Standards", Page 10, General Notices, Storage Temperature and Humidity

                                                                           6
Exhibit 24:	Resume - Samuel J. Penta, R.Ph. 

Exhibit 25:	Resume – [redacted]

Exhibit 26:	Certified Mail receipts (2) dated December 1, 2005 - Pharmacy to Atlantic 
Associates, Inc.

Exhibit 27:	U.S. Dept. of Justice, DEA forms (2), "Receipt for Cash or Other Items" to: (1) Respondent dated September 21, 2005, received by Kurtis Roth, DEA, Diversion Investigator; and (2) Kurtis Roth, DEA, Diversion Investigator, dated September 
1, 2006, received by James G. Lavery

Exhibit 28:	105 CMR 720.200 Department of Public Health, Appendix A, Massachusetts List
of Interchangeable Drugs

Exhibit 29:	105 CMR 720.200 Department of Public Health, Appendix A (continued), 
Massachusetts Additional List of Interchangeable Drugs

Exhibit 30:	"Drug Facts and Comparisons", Volume Cover, Table of Contents and Update 
Record, copy of check ($ 606.80) dated December 22, 2004 - Pharmacy to 
"Facts + Comparisons"

Exhibit 31:	"Approved Bioequivalency Codes", Facts and Comparisons - Volume Cover, 
Update Record with months January - May 2006 checked

Exhibit 32:	"Patient Profile Card" form (blank)

Exhibit 33:	Five pages (handwritten), undated, with cover: "Biennial Inventory Not 
Available During Inspection CII-V Aug 14 04 Required every 2 Yrs. FED REC"

Exhibit 34:	"Controlled Premises Inspection (G.L. c. 94C Section 11)" Form, Bourne 
Pharmacy, Inc., Board Investigator Charles Young, dated June 2, 1997

Exhibit 35:	Atlantic Associates, Inc. documents - (a) June 23, 2006 letter to Respondent 
stating: "We did verbally tell you that we could no longer accept your paper submissions to the 'Electronic Data Transmission System' schedule II reporting" (Exhibit 22); (b) June 26, 2006 cover sheet to Bert Cohen; (c) October 14 and 18,
2004 letters to Respondent stating Pharmacy "Controlled Substances prescription 
data" is	" invalid" with	copies of handwritten pages (8) for prescriptions dated June
11, 2004 through September 14, 2004 for information Respondent had submitted; 
and (d) December 6, 2005 letter to Respondent stating diskette data was not 
acceptable because "it is not in the specified ASAP  format"

Exhibit 36:	Notebook pages, handwritten, labeled: (a) "Ritalin 5mg 6.10.97-7.26.99" (two 
pages); and (b) "Oxycontin 40mg 5.19.00-7.6.00" (one page)

Exhibit 37:	Notebook pages, handwritten, labeled: (a) "Oxycontin 80mg 5.19.00-12.26.00" 

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(two pages); and (b) "Oxycodone  + APAP 5/325 9.4.03-9.5.03" (one page)

Exhibit 38:	Stipulations of Fact dated January 10, 2007

Exhibit 39:	Photographs of the Pharmacy (53), numbered 1 - 54 (no # 42), taken by Kurtis 
Roth on September 21, 2005

Exhibit 40:	Commonwealth of Massachusetts, County of Barnstable, Superior Court, Commonwealth v. Gerald L. Lieberfarb BACR1982-41451, "Distributing	a 
controlled substance, Class 'C' 94C/32B", Indictment dated January 20, 1982, 
Guilty Plea accepted April 15, 1982

Exhibit 41:	Data List (multiples pages) that Respondent created from Exhibit 42 and provided 
to Atlantic Associates, Inc. on December 19, 2005

Exhibit 42: 	Data Lists (33 pages/computer screen format) dated November 2004 through 
September 22, 2005 that Respondent used to create Exhibit 41

Exhibit 43:	Warrant in the Matter of the Administrative Inspection in Re: Bourne Pharmacy 
Inc., issued September 19, 2005 (Collings, J., U.S.  District Court, District of  Massachusetts 2005-MJ-0486- RBC) to U.S. Department of Justice, DEA

Exhibit 44:	Department of Weights and Measures, Sealing and Adjustment Record No. 
2005-043 dated September 12, 2005, Ray Bowman, Sealer of Weights and 
Measures

V.	Findings of Fact1

Based on its consideration of all the evidence, the Board finds the following facts 
established by a preponderance of the evidence:

1.   On or about June 18, 1969, the Board issued Pharmacist License No. 15152 to Respondent. (Vol. VI: 48; Exhibits 1 and 38)

2.   On or about April 15, 1982, Respondent plead guilty to "knowingly or intentionally 
distributing a Class 'C' controlled substance, to wit: valium," in violation of G. L. c. 94C, s. 32B. 
In 1982, the Board suspended Respondent's pharmacist license based on his conviction for 
______________________________________
1 The hearing was recorded on audio tape. Transcripts were prepared of all hearing dates except January 24, 2007 and the sanction portion of the hearing on December 20, 2007. References to testimony provided during the days when a transcript was prepared cite the volume and page number of the transcript where the citation is found. For the two hearing dates when no transcript was prepared, references to the date of the testimony of the particular hearing date from the audio tape of that hearing date are cited.
                                                                         8
violation of G.L. c. 94C, s. 32B. The Board reinstated Respondent's pharmacist license in 
1985. (Exhibits 6, 7, 11, 38 and 40)

3.   Respondent was owner and Manager of Record of the Pharmacy at all times relevant to the 
Show Cause Orders issued related to the Complaints. (Vol. VI: 49; Exhibits 1, 6, 8 and 38)

4.   As manager of record of the Pharmacy, Respondent was required to comply with the duties 
and responsibilities of a pharmacist Manager of Record, as outlined  in Board regulations 247 
CMR 6.07 et seq. (Exhibit 38)

5.   From on or about three years prior to January 2007, Kurtis Roth (Roth) has been employed 
by the U. S. Department of Justice, Drug Enforcement Administration (DEA), including the prior approximately 16 months as a Diversion Investigator. Roth testified as an expert for the Prosecution.  (Vol. I:  83, 113; Vol. II: 113)

6.   From on or about a three year two month period prior to January 2007, Samuel J. Penta 
(Penta), a registered pharmacist, has been employed by the Commonwealth of Massachusetts, Department of Public Health, Division of Health Professions Licensure, Office of Public 
Protection, as an investigator or supervising investigator, with duties that include conducting inspections for the Board. Penta testified as an expert for the Prosecution. (Vol. II: 140 - 142, 
148)

7.   On September 21, 2005, at approximately 9:30 a.m., DEA Investigator Roth and other DEA investigators (Mark Rubbins, Group Supervisor; George Haley, Diversion Investigator; Ida 
Grasso, Diversion Investigator; and Thomas Cook, Diversion Investigator), and Board 
Investigators Penta and James Emery conducted inspections of the Pharmacy (Inspection) for
their respective agencies. The DEA inspected the Pharmacy pursuant to a September 19, 2005 
Warrant issued by U.S. Magistrate Robert B. Collings on based on an Affidavit of Kurtis Roth 
of same date (Exhibit 13 for ID). The Board inspection was conducted pursuant to authority of 
G.L. c. 13, s. 25 and Board regulation 247 CMR 11.12.2 (Vol. I: 101, 114, 165, 169- 172, 177-
__________________________________________
2 The Board notes that G.L. c. 94C, s. 11 also grants authority for Board inspections of pharmacy premises.
                                                       
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178; Vol. II: 149 -151; Vol. III: 180 -181; Exhibits 10 and 11)

8.   Respondent and Pharmacy employee [redacted] ([redacted]) were present during the Inspection. (Vol. I- 115; Vol. II - 152, 232; Vol. VI: 49, 51, 53; Testimony of [redacted] 1/24/07; Exhibit 11)

9.   The Pharmacy included a "front store," which included health and beauty products and other non-prescription items (greeting cards, magazines), and a "Pharmacy area" of approximately 300 square feet, including a passing aisle of approximately 15 to 20 feet. (Vol. II: 227; Vol. III: 201; Vol. N: 75, 89; Testimony of [redacted] 1/24/07)

10.   Based on the testimony of Roth and Penta, witnesses whom the Board found credible as consistent with Penta's Investigation Report (Exhibit 11) and Inspection Report (Exhibit 12) and consistent with photographs (53) of the Pharmacy premises taken by Roth during the Inspection (Exhibit 39), the Board finds that the following conditions existed in the Pharmacy area at the time of the Inspection:

a.     Floors and walls were dirty and dusty;
b.     Trash and non-pharmacy items were stored haphazardly on shelves with
        pharmaceutical inventory;
c.	Water damage from overhead sewage pipes was observed on several ceiling 
times; some ceiling tiles had been removed, exposing ventilation and pipes;
d.     Vents were covered with dust and grime;
e.      Evidence of prior water leakage and damage appeared on certain drugs 
                                (labels) on shelves and on a pipe running through the Pharmacy area;
f.	Multiple boxes blocked passage in the Pharmacy area; some boxes were 
stacked on others with other items placed on top of the boxes, some were
filled with outdated medications; some contained papers, notebooks and 
other miscellaneous items, some boxes were empty. One box included 
outdated Controlled Substance Schedule II medications, including Dilaudid
2mg and meperidine tablets dated September 2001, intermingled with 
Schedule III-VI medications dated October 2004 and October 1994. Other

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items on the floor, including a large cash register, also obstructed passage in
the Pharmacy area;
g.     The sink had residue and did not drain properly;
h.     The refrigerator had food spillage evident, emanated an odor and contained
        various food products. Medication in the refrigerator (insulin and Miacalcin) 
        was dirty and evidenced food spillage. There was no thermometer (to 
        determine actual temperature) in the refrigerator;
i.     The Pharmacy facsimile machine was located outside of the pharmacy area, 
with a sign advertising a "FAX Center'' evident in the front window of the Pharmacy facing the street;
j.	There was no patient counseling dedicated area in the Pharmacy; no signage
offering counseling to patients; and no patient log regarding offers made to patients for counsel;
k.     The balance, although recently sealed, was missing weights;
l.      A large see-through several gallon size trash bag, open and filled with trash, 
        was attached to a counter in the Pharmacy area;
m.	Medication vials, papers and other items were scattered across the top of the
Pharmacy area front counter; and
n.	The pharmacist workbench was cluttered and disorganized with files 
overflowing with papers, loose envelopes and papers on shelves and in 
drawers. Pharmacy workbench drawers contained an array of prescription medication vials that were loose in the drawers;
o.	Respondent had no written policies or manuals regarding pharmacy related
        practices;
p.     Pharmacy	 reference materials, including the drug interchange book utilized
                                in the Commonwealth of Massachusetts, were not current or readily 
        available; and
q.	  Handwritten "patient profile cards" were incomplete, inaccurate and
        indecipherable and stored in a manner that was not conducive to retrieval 
        on prescription fill. Information for a husband and wife was entered on one 
        card without notation as to which prescription for which patient. Entries on 
        
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       patient profile cards were difficult to read and did not include complete, 
       updated or legible basic necessary information such as address, date of birth,
       allergies, refill history, prescriber data, insurance coverage, and drug 
       utilization review (DUR) results.

(Vol. I: 180; Vol. II: 87; Vol. VI:  54, 59-61, 70, 75, 81, 135, 166-172, 175, 188-190, 221-223; 
Exhibits 7, 10, 11, 12, 19 and 39)

11.   Pharmacy records, including "Patient Profile Cards" admitted into evidence and other 
records reviewed at the Pharmacy during the Inspection, included incomplete or illegible 
handwritten entries, some identifying a patient by first and last name on the first page of a multi-
page list only, with various numerical notations on the card without specific identification of the 
data as referencing either insurance, telephone, prescriber, social security or other number. 
Patient address or other contact information was not evident or incomplete on the cards. Where
two patient names (for example, husband and wife) were listed on a card, identification of 
which prescription listed was for which patient was not evident. There was no 
documentation or other evidence of the performance of appropriate and effective DUR on 
any patient or any prescription,  or any evidence of  a Pharmacy policy or procedure 
requiring the performance of comprehensive DUR. In his testimony, Respondent stated that
he "did a DUR thing" when a patient's ([redacted]) insurance card indicated she needed a
prior authorization and described the "DUR" he performed as calling [redacted]'s doctor 
and that a prior authorization was not provided. (Vol. II: 224; Vol. VI: 195 -197; Exhibit 19)

12.   Respondent had moved or stored certain outdated medications (controlled substance 
Schedules II-V) and Pharmacy records, including prescriptions for April 2005, to his residence, 
a premises not registered by the DEA. Respondent explained the movement of medications and 
other materials to his home as necessitated by the closure of the prior Pharmacy location in 
2000 and that trash is picked up from his home address or he brings it to the local waste facility. 
(Vol. II: 87 - 88, 216-217; Vol. VI: 186 -187; Testimony of [redacted] 1/24/07; Exhibit 11)

13.   During the Inspection, Respondent failed to provide a compliant biennial inventory of Schedule 

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controlled substances; which inventory is required to be completed, signed and dated every two 
years, as an accurate listing of the amount of each controlled substance in the Pharmacy. (Vol. II: 
75 - 76, 98-99, 202 -203, 207; VI: 176; Exhibit 33)

14.   During the Inspection, Respondent failed to demonstrate he maintained a compliant 
perpetual inventory that accurately reconciled Schedule II controlled substance inventories every 
ten days. After the Inspection, Respondent provided several handwritten notebook pages labeled "Perpetual Inventory Biannual 6/97-00" for "Ritalin 5 mg" and "Oxycontin 40mg" and 
"Perpetual Inventory 00-03" for "Oxycontin 80 mg" and "Oxycodone + APAP 5/325." The pages provided as evidence of a perpetual inventory are non-complaint as not provided at the time of Inspection and incomplete, unreadable and not demonstrative of the required ten day continual 
tally of all Schedule II controlled substances in the Pharmacy. (Vol. II: 206-211; Exhibits 18, 36 
and 37)

15.   Pharmacy DEA 222 forms, required to be maintained in an organized manner, were located
in various places in the Pharmacy, including in several boxes, on Pharmacy area shelves and on
the Pharmacy workbench. (Vol. II: 213; Exhibit 46)

16.   During the Inspection, Respondent was not able to provide copies of controlled substance prescription records for the month of April 2005. Several days after the Inspection (on or about September 26, 2005), Respondent provided copies of four prescriptions dated April 4, 2005 
(two for patient [redacted] and two  for patient [redacted]) to the DEA. The Board notes the 
large quantities of Schedule II controlled substances that Respondent ordered from AmerisourceBergen on three dates in April 2005 (April 5, 15, and 27), which orders collectively included large amounts methadone 1Omg; methylphenidate 10mg; oxycontin 20, 40 and 80 mg; fentanyl patches 50, 75 and 100mg; mixed amphetamine salts 20 mg; combunox; roxicodone 
30mg; oxycodone 15, 30 and 40 mg; endocet 7.5/500; adderall XR. 20mg; percocet 5/325; 
oxycodone +APAP 10/325; roxicet 5/325; actiq 1200mcg; and concerta 36mg. 
AmerisourceBergen records of deliveries to the Pharmacy in April 2005 also list other controlled substances delivered to the Pharmacy in addition to the controlled substances noted on the orders 
the Pharmacy placed on April 5, 15, and 27, 2005. (Vol. II: 113-114; 213-215; Exhibits 11, 15, 
16 and 17)
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17   In Roth's opinion, Respondent dispensed controlled substances; in particular, Oxycontin, in
a manner that circumvented federal law. (Vol. I: 144-146; Vol. II: 84)

18.   In Penta's opinion, Respondent's conduct, as owner and manager of record of the Pharmacy, 
and the Pharmacy's practices with respect to patient profile card system, DUR, offers to counsel, labeling and tracking refills, patient confidentiality, and compliance with the Code of 
Professional Conduct for Pharmacists (247 CMR 9.00 et seq.) fell below accepted standards of practice. (Vol. II: 228, 231)

19.   During the two year period from August 29, 2003 through August 29, 2005, and as 
similarly noted in Finding of Fact No. 16 regarding April 2005, Respondent ordered very large quantities of Schedule II controlled substances from wholesale drug distributor 
AmerisourceBergen. Commencing in early 2004, Respondent typically placed three orders per 
month (or close to that time period) for significant amounts of Schedule II controlled substances.
For example, after placing a large order on April 27, 2005, Respondent also placed large orders 
on May 4, 11, 17 and 31, 2005. In each of four of those five orders, 30 packages of Oxycodone 
30mg 100 units was ordered for a total order of 15,000 units of Oxycodone 30mg in just over a
four week period. Large quantities of other strengths of oxycodone as well as other Schedule II controlled substances (Oxycontin, roxicet, percocet, actiq, concerta, fentanyl, endocet, 
methadone, roxanol) were also included in Respondent's Pharmacy orders for the period from 
April 27 -May 31, 2005. Respondent placed similarly large wholesale orders for Schedule II
controlled substances either three times (11 months) or two times (9 months) per month during 
the period from December 2003 through August 2005. (Exhibits16 and 17)

20.   In September 2004, Atlantic Associates, Inc., the entity that receives prescription
information from Massachusetts pharmacies in accordance with the "Massachusetts Department 
of Public Health Electronic Data Transmission System (EDTS)," notified Respondent that paper submissions would no longer be accepted for the reporting of EDTS Schedule II reporting. In 
October 2004, Atlantic Associates advised Respondent that he was unsuccessful in his effort to convert, collect and communicate Schedule II information electronically. Several months after
the Inspection, in December 2005 at Respondent's request, [redacted], [redacted] of 

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Respondent, visited the Pharmacy to assist Respondent in electronically transmitting Schedule 
II data to Atlantic Associates for approximately 1381 prescriptions dated September 2004 
through December 2005. (Vol. VI: 8, 9, 18, 27-28, 90 - 93; Exhibit 22)

21.   From at least September 2004 to the September 21, 2005 Inspection date, Respondent failed 
to report Schedule II controlled substance information in a timely manner in accordance with 
EDTS requirements. (Vol. VI: 8, 9, 18 27-28, 90- 93,175-176; Exhibit 22)

22.   Commencing in 2004, on some date after the February 2004 break-in that Respondent had experienced at the Pharmacy, Respondent employed [redacted] as a cashier and clerk who 
primarily worked in the "front store" of the Pharmacy but also rang up prescriptions on occasion, 
when the pharmacy was busy. [redacted] testified that Respondent was a "family friend for 
years," that she had helped him clean up after the Pharmacy break-in and attended court with 
him regarding that matter; that Respondent had recommended she see Dr. Michael Brown (Dr. Brown), a local physician (Sandwich, Massachusetts office) whose name appears on 
prescriptions filled by Respondent; and that she and a family member had visited Dr. Brown.
(Vol. VI: 175; Testimony of [redacted])

23.   During the Inspection, [redacted] stated to Penta that Respondent had payment arrangements 
with certain patients she described as "like a credit" in which Respondent provided prescription 
medications in advance of payment to patients who returned to pay several days later, some 
patients returning to pay "$5 to $900 in cash." Penta's notes of the conversation with [redacted]
state she reported that patient [redacted] "pays for Rx (prescription) in installments" and that Pharmacy customers came from all over the state. [redacted] testified that [redacted] had spoken to her in May 2005 seeking to speak with Respondent about a prescription. (Vol. II: 232 - 234, 236-238; Vol. III: 154, 157 and 165; Vol. IV: 65; Exhibits 11 and 12; Testimony of [redacted] 1/24/07)

24.   The Board did not find [redacted] to be a reliable witness at hearing regarding her 
Pharmacy job duties or her conversations with Penta during the Inspection. Her memory of conversations she had and with whom on the date of the Inspection was selective and her
testimony was evasive and contradictory in certain areas. [redacted] initially claimed no personal 

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knowledge of Dr. Brown, and later confirmed she and a family member had appointments with
him on separate occasions. She denied knowledge of or making certain statements to Penta 
regarding patient [redacted], yet later admitted she had conversations with both [redacted] and Respondent regarding [redacted]. Respondent's testimony contradicted portions of [redacted]'s testimony as to her knowledge of patient [redacted] in several respects; specifically as to whether
he had spoken with [redacted] about [redacted] (Respondent testified he had) and also that 
[redacted] had "befriended" him and [redacted]. After stating her function were limited to the
"front store," she admitted she did "ring up" prescriptions for pharmacy customers at certain 
times and spent time in the pharmacy area. (Vol. VI: 152, 192 -193; Testimony of [redacted] 
1/24/07; Exhibit 15)

25.   During the Inspection, Respondent used the terms "credit" and "front" when speaking with 
Roth. According to Roth, Respondent stated "he'll front the money - he'll front some 
prescriptions to people that they can pay partially and then come back later, like a day or two 
later when they're able and pay the rest." Respondent stated that [redacted], had once been 
arrested in front of the Pharmacy and owed him $720 for two prescriptions from the end of May 
2005. Respondent testified that he spoke to Roth or another DBA agent about [redacted] during
the Inspection and that he told them he has "charge accounts" for "some people who charge their prescriptions because they don't have any money on their person at the time they're filling their prescriptions." Respondent acknowledged that some Pharmacy patients traveled from long 
distances. (Vol. I: 136 -137; Vol. II: 120, 121, 236- 238; Vol. VI: 152)

26.   During the Inspection, Respondent stated to Penta that he provided medication to [redacted] because she could not afford the prescription and that she came back several days later to pay in 
cash.  (Vol. II: 12, 64-65, 237- 238; Vol. IV: 70; Vol. VI: 145 -146)

27.   Respondent testified that [redacted] had filled 12 prescriptions at the Pharmacy during six 
visits to the Pharmacy over an approximately one year period ending in May 2005; he also noted 
that [redacted] did not have her prescriptions filled at the Pharmacy "consistently'' during that 
period. [redacted] always paid in cash, although initially she presented an insurance card that did
not provide coverage. Respondent testified that he "probably'' only provided two prescriptions to

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[redacted] without receiving payment (value of prescriptions = $620.00) on one date in May 
2005. Copies of prescriptions admitted into the record show Respondent dispensed two 
prescriptions to [redacted] on each of three dates; specifically, on March 7, April 4 and May 
26, 2005, Respondent dispensed 80 units of roxicodone (oxycodone) 15 mg and 90 units of 
Oxycontin 40 mg to [redacted] on each date pursuant to prescriptions of same dates written by 
Dr. Brown. Respondent testified that [redacted] "was acting in kind of an uncontrollable manner
the last time I waited on her, and I didn't understand why she was acting this way." Respondent 
stated [redacted] had to pay in cash, "usually cash that day'' and paid several days after receiving
the medication "probably just that one time that I know." According to Respondent, [redacted]
was arrested at some time after Respondent dispensed the May 26, 2005 prescriptions and he 
has never received payment for the May 2005 prescriptions. (Vol. VI: 142-148, 191, 192, 197; 
Exhibit 15)

28.   The testimony of Respondent was evasive and not credible in certain respects. Regarding 
many allegations, he either admitted to or failed to dispute the evidence presented; specifically,  regarding the conditions of the Pharmacy as shown in the photographs taken during the 
Inspection, or other witness testimony (particularly Penta, Roth and [redacted]) regarding various  practices of the Pharmacy. He claimed a lack of knowledge as to whether he had provided other prescriptions  to [redacted] prior to receiving payment yet acknowledged he provided 
prescriptions to certain patients prior to receiving payment using "charge account" type 
arrangements that he described as a longstanding Pharmacy practice. He was not persuasive in 
his efforts to justify certain substandard conditions in the Pharmacy or explain his Pharmacy 
practices as confirming to state and federal statutory and regulatory requirements.

VI.	Conclusions of Law

1.	Respondent's conduct as set forth in the Findings of Fact above warrants disciplinary 
action by the Board against his license to practice as a Pharmacist pursuant to G.L. c. 112, § 61 
for deceit, malpractice, and gross misconduct in the practice of the profession offenses against
the laws of the Commonwealth relating thereto.

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2.	Respondent 's conduct as set forth in the Findings of Fact above constitutes failure to 
conduct professional activities in conformity with federal, state and municipal laws, ordinances 
and/or regulations of the Board and therefore warrant disciplinary action by the Board pursuant 
to M.G.L. c. 112, §§ 27, 28, and 42A, M.G.L. c. 94C, §§ 15, 19 and 21A, and 247 CMR 2.00 et 
seq.; specifically, Respondent failed to:
a.   conduct a biennial controlled substance inventory, in violation of 21 CFR 1304.11(c);
      M.G.L. c. 94C, § 15 and 247 CMR 9.01(1);
b.	maintain Pharmacy records and conduct inventories in compliance with federal
      and state laws, including the Regulations of the Board, in violation of 21 CFR 
      1304.01; M.G.L. c. 94C, § 15; and 247 CMR 6.03(b), 247 CMR 9.01(1), 9.01(2)
                  and 9.01(14);
c.   conduct Pharmacy business in a clean and sanitary manner, in violation of 247 CMR
      6.02(1) and 9.01(1);
d.   maintain equipment and publications in compliance with 247 CMR 6.01(5)(a) and 
      6.02(2) and 9.01(1);
e.   report required information regarding prescriptions filled for Schedule II controlled
      substances to the Department of Public Health or its agent, in violation of 247 CMR
      5.04(1) and 9.01(1);
f.   provide the proper preservation and storage of prescription drug products, in
     violation of247 CMR 9.01(1), 9.01(3) and 9.01(5);
g.  maintain patient confidentiality by placement of a fax machine processing 
     confidential patient identified and medication information in a non-confidential area;
     in violation of247 CMR 9.01(19) and 9.07(1);
h.  document provision of required patient counseling or notice to patients of the
     availability of counseling, in violation of247 CMR 9.01(18) and 9.07(3) and M.G.L.
     c. 94C, § 21A;
i.   fulfill the requirements for dispensing and refilling prescriptions in violation of
     247 CMR 9.04;
j.   comply with the procedures for verifying a practitioner's prescriptive authority in
     violation of 247 CMR 9.06 and M.G .L. c. 94C, § 19, subsection (a); conduct and
     
                                                         18
k.	maintain records of prospective drug utilization review, in violation of 247 CMR
    9.07(2); and
l.	comply with the duties and responsibilities of a pharmacist Manager of Record, in 
      violation of 247 CMR 6.07 et seq.

3.   Respondent's conduct as set forth in the Findings of Fact above also constitutes 
unprofessional conduct and conduct which undermines public confidence in the integrity of the pharmacy profession. Sugarman v. Board of Registration in Medicine, 422 Mass. 338, 342 
(1996); see also, Kvitka v. Board of Registration in Medicine, 407 Mass. 140, cert. denied, 498 
U.S. 823 (1990); Raymond v. Board of Registration in Medicine, 387 Mass 708, 713 (1982).

VI.	Discussion

In any adjudicatory matter presented for its consideration, the Board bears the burden of proving by a preponderance of the evidence that a licensee engaged in the misconduct alleged. 
The standard "by a preponderance of the evidence" means a party bearing that burden must 
persuade the fact finder that its contention is more probably true than false. Corsetti v. The Stone
Co., 396 Mass. 1, 23-24 (1985).

Respondent was not able to dispute the photographic evidence showing the deplorable conditions in the Pharmacy on the date of the Inspection. His efforts to justify the multiple 
substandard areas observed in the Pharmacy and explain certain of his practices as proper or compliant were unsuccessful. He failed in his attempts to defend or explain the general disorder 
and dirty conditions in the Pharmacy which contravened basic principles of cleanliness, hygiene
and safety.

Respondent was not able to defend or explain his failure to maintain compliant required controlled substance records and inventories, report required drug dispensing information, 
maintain complete and current patient profile information, or perform adequate and appropriate statutorily mandated DUR and patient counseling.  These practice requirements are basic 

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functions applicable and integral to all pharmacies and pharmacists to insure that medications
are dispensed pursuant to prescriptions that a pharmacist , after exercise of the "corresponding responsibility'' of G.L. c. 94C, § 19, subsection (a), has determined are valid. There was little to 
no evidence that Respondent documented current, complete or reliable patient information that 
was obtained though established Pharmacy practices or procedures that would enable him to 
collect, process or report reliable data regarding patients, medication ordering or prescription dispensing details, relating to the Pharmacy. Drug utilization review plays an important role in assessing drug abuse and misuse as well as monitoring quality of care. Respondent's description 
of the "DUR" he performed and the "patient profile" information system he maintained reflected 
a lack of acknowledgment or failure of understanding of the importance of these basic .tenets of pharmacy practice to ensure patient safety.

Respondent's Schedule II controlled substance ordering and dispensing patterns should 
have made him keenly aware of the crucial importance of his performance of both DUR and 
EDTS functions as part of his Pharmacy practice. His failure to take timely action to comply with EDTS reporting requirements was especially of concern due to the very large quantities of 
Schedule II controlled substances he routinely ordered and dispensed over a prolonged period. Respondent's dispensing practices did not reflect any heightened concern as to the importance of 
this mandated duty in light of the fact that the his Pharmacy practice, as evidenced by the 
wholesale drug distributor order forms in evidence, was primarily Schedule II controlled 
substances with high abuse potential.

Respondent conduct also demonstrated a lack of appreciation or acceptance of a 
pharmacist's statutory duty to exercise "corresponding responsibility" in filling certain 
prescriptions, although he was aware that certain patients traveled long distances to fill 
prescriptions  at the Pharmacy; that certain patients did not consistently fill prescriptions at the Pharmacy; that many Pharmacy patients always paid cash for their prescriptions; and that
 multiple break-ins had occurred at the Pharmacy, including the February 2004 break-in and 
assault by a Pharmacy patient. Respondent did not demonstrate any awareness or 
acknowledgement of any responsibility of a pharmacist to be aware of certain patient behaviors 
that have been recognized as clear signs of addiction for whom the drugs dispensed would be inappropriate.
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As noted, Respondent regularly ordered and dispensed very large amounts of Schedule 
II controlled substances. Respondent was, or should have known, of the abuse potential and 
street value of those medications. Dispensing a Schedule II controlled substance, including the 
highly abused Oxycontin, to any patient prior to receiving payment is a practice for which the 
Board sees no justification. Contrary to Respondent's description of his credit extension practices
as a service he had appropriately and benevolently provided for many years, it was ill advised 
and dangerous, particularly as described in the case of [redacted], and generally in violation  of basic professional practice standards regarding the dispensing of medications with such known high 
abuse potential.

Respondent, as well as the witnesses appearing on his behalf during the hearing and at the sanction hearing following the hearing, testified that although the Pharmacy may have been disorganized and he may have been unable to manage the various operational aspects of 
"modern" pharmacy practice, such as computerization of records and accurate database reporting, 
he was a responsible and caring individual attentive to the needs of his family, including his 
elderly mother, and pharmacist attentive to the needs of his patients. The Board does not, 
however, contrary to Respondent's description, view the conditions at Bourne Pharmacy as just a matter of "housekeeping" violations nor does the Board view Respondent, a pharmacist licensed 
by the Board, as simply a person overwhelmed by technology and the various maintenance responsibilities that go along with operating a pharmacy or any other business. Respondent's 
conduct of dispensing high risk of abuse Schedule II controlled substances to certain patients 
prior to receiving payment cannot be explained or excused in any way as patient supportive or professionally appropriate .

Whether aware or not, Respondent should have known that his personal practices as a pharmacist as well as his operation of the Pharmacy, as owner and manager of record, were 
practices and operations not conducted in accordance with professional practice standards and 
multiple statutes and regulations pertaining to the practice of pharmacy in the Commonwealth. 
There was no indication that the multiple practices issues of concern to the Board were known to Respondent to be non-complaint or identified by him as the focus of any corrective action had the practices not  been identified in the Inspection. The extent to which Respondent had become non-

                                                                      21
compliant with statutory and regulatory requirements applicable to Pharmacy operations was of 
major concern to the Board.

The Board has considered the prior Board decisions presented by Respondent's counsel
at the Sanction Hearing.

In making its decision as to sanction, the Board has the authority and statutory mandate 
to discipline Respondent in order to protect the public health, safety, and welfare. The Board's
mission is not to punish pharmacists, but to protect  the public health, safety, and welfare. In 
addition, "[t]he board has broad discretion to determine the proper sanctions for misconduct. ..." Sugarman v. Board of Registration in Medicine, 422 Mass. 338, 347-8 (1996); Kvitka v. Board 
of Registration in Medicine, 407 Mass. 140, 143 (1990).

Accordingly, based on the Board's authority to oversee conduct that reflects unfavorably 
on the practice of pharmacy and in accordance with the Board's responsibility to protect the
image and integrity of the profession, and having considered all of the evidence presented to it, 
the Board ORDERS as follows:

                                                                ORDER

Based on the Findings of Fact and Conclusions of Law set forth herein, the Board hereby   REVOKES the previously suspended pharmacist license of Respondent (Pharmacist License No. 15152) and any right to renew such license. The Board envisions no conditions pursuant to which  Respondent  should  be  permitted  to  apply  for  the reinstatement  of his pharmacist  license in
the Commonwealth in the future. This vote indicates the strong concern of the members that Respondent's pharmacy practices and history of licensure discipline in the Commonwealth 
require that he not be authorized to practice pharmacy in the future under any terms or conditions.

The Board hereby REVOKES the previously suspended registration of the Pharmacy (Pharmacy Registration No. 3078).

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The Board voted to issue this Final Decision and Order at on January 12, 2010 by the  
following vote: In  favor  -  Joanne M. Trifone, R.Ph .; James T. DeVita, R.Ph; Michael Tocco, 
R.Ph., M.Ed.; Steven Budish, Public Member; William Gouveia, R.Ph., M.S.; and Stanley B. 
Walczyk, R.Ph. Opposed - None. Abstain - None. Absent - George A. Cayer, R.Ph., Kathy Fabiszewski, Ph.D., N.P.; Sophia Pasedis, R.Ph., Pharm.D.; and Donald D. Accetta, M.D.

                                               EFFECTIVE DATE OF ORDERS

The Orders of the Board shall be effective as of the date this Final Decision and Order is issued 
by the Board (see "Date Issued") below.

                                                           RIGHT TO APPEAL

Respondent is hereby notified of his right to appeal this Final Decision and Order 
pursuant to G.L. c. 112, s. 64 and G.L. c. 30A, ss. 14 and 15 within thirty (30) days of this Final Decision and Order.
BOARD OF REGISTRATION
IN PHARMACY

Joanne M. Trifone, R.Ph. 
President
                                                                                    Date Issued:   January 12, 2010

Notify:
FIRST CLASS and CERTIFIED MAIL RET REC REQ No. 7009 1680 0001 1520 1412
to Respondent at [redacted] (prior attorney of record bar status not current per Board of Bar 
Overseers website notice)

BY HAND
James G. Lavery, Prosecuting Counsel 
Board ID Dec. Nos. 2253 and 2254

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