STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF PHARMACY, )

)

Petitioner, )

)

vs. ) Case No. 77-1824

)

JAMES W. SWAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in the End Zone Room of the Sheraton Jet Port Inn, 3835 Bee Line Expressway, Orlando, on March 2, 1978, pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon the administrative complaint filed by the Board of Pharmacy against James W. Swan. This administrative complaint alleged that the Respondent Swan had sold a controlled substance and had possessed a controlled substance contrary to the provisions of Section 893.13(1)(e), Florida Statutes, which constitutes a violation of Section 465.101(1)(e), Florida Statutes.

The Board presented evidence that Swan had sold or attempted to sell a controlled substance to a police undercover agent and was in possession of a controlled substance. The Respondent's counsel argued that the detective and Respondent had discussed prescriptions and that the sale of drugs by prescription was permitted by law.

APPEARANCES

For Respondent: Arthur G. Leonhardt, Jr., Esquire

39 West Pine Street Orlando, Florida 32801

For Petitioner: Michael Schwartz, Esquire

Suite 201, Ellis Bldg.

1311 Executive Center Drive Tallahassee, Florida 32301

ISSUE

Whether, under the facts, Respondent did or did not sell a controlled substance or possess a controlled substance pursuant to a prescription.

FINDINGS OF FACT

1. The Respondent is a licensed or registered pharmacist holding a license issued by the Florida State Board of Pharmacy.

   
   

2. Detective Lawrence Troha of the Volusia County Narcotics Task Force was advised by Jack Bullock, who Troha had arrested on August 25, 1977, that James

   W. Swan was supplying him with drugs illegally. Bullock arranged a drug purchase from Swan to take place in Room 618 of the Holiday Inn of Daytona Beach on August 26, 1977. On August 26, 1977, Detective Troha's partner, Detective William Bergquist, was in Room 619 with a receiver/recorder to transcribe the events in Room 618 as broadcast a small transmitter worn by Detective Troha.

   The original magnetic tape recording of this meeting was identified by Detectives Troha and Bergquist and was played at the hearing being transcribed into the record. The tape recording was inaudible in some instances, but gave a good overall representation of the events which occurred on the evening of August 26, 1977, in Room 618 of the Holiday Inn in Daytona Beach. The events as recorded on the tape recording were consistent with Detective Troha's testimony concerning the events.

   
   

3. James Swan arrived at Room 618 and was introduced to Troha by Bullock. Troha and Swan then discussed the drug purchase and negotiated a price for the drugs. Swan also indicated to Troha that he could supply Troha in the future with 100 to 150 capsules of Dilaudid (hydromorphone) every ten (10) days. A price of $2,000 for 90 4 mg Dilaudid capsules was negotiated. Troha received the drug from Swan and began to count out the money for Swan. This was the signal for the other police officers to enter the room and arrest Swan which they did. At that time, Swan was searched for concealed weapons and another envelope was discovered inside his sock on his leg.

   
   

4. Detectives Troha and Bergquist identified one envelope (Q1, Exhibit 1) and its contents as the drug Troha had purchased from Swan. They also identified a second envelope (Q2, Exhibit 1) and its contents as the drugs discovered on Swan when he was searched incident to his arrest.

   
   

5. These drugs and envelopes (Exhibits 1 and 2) together with the evidence containers in which they were placed by Detectives Troha and Bergquist, were identified by Terry Hall, a chemist with a PhD in chemistry who was employed in August of 1977 for the Sanford Crime Lab. Hall also identified the drugs contained in the envelopes which he had tested. His testing revealed that the drugs which Swan had sold or attempted to sell to Troha was hydromorphone or Dilaudid. The drug discovered on Swan was also tested by Hall and was determined to be phenmetrazine.

   
   

6. Troha denied that the purchase was made pursuant to a prescription. It was clear from the magnetic tape of the events occurring in Room 618 as well as Troha's testimony that the transaction was an illegal sale of the drug Dilaudid and was not a sale pursuant to an authorized prescription.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Florida State Board of Pharmacy has the authority to make a final determination of the matters raised in the administrative complaint against James Swan.

   
   

8. The Board charged Swan with the illegal possession of a controlled substance and the illegal sale of a controlled substance, contrary to the provisions of Section 893.13, Florida Statutes, and thereby with violating Section 465.101(1)(e), Florida Statutes.

   
   

9. The evidence shows that Swan sold or attempted to sell hydromorphone which is a class 2 controlled substance to Detective Troha. The evidence also shows that Swan was at that time in possession of phenmetrazine, also a class 2 controlled substance. The conditions surrounding the sale show that it was not

pursuant to a doctor's prescription and therefore Swan was in violation of Section 893.13(1)(a)1 and (2)(a), Florida Statutes. Considering the circumstances surrounding the events of August 26, 1977, the manner in which Swan was carrying the phenmetrazine, the fact that it was an unmarked envelope, and the fact that no evidence was introduced that Swan possessed a prescription for these drugs, it is concluded that he possessed these drugs without a valid prescription contrary to the provision of Section 893.13(1)(e). The violation of the provisions of Chapter 893 constitutes a violation of Section 465.101(1)(e), Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Pharmacy revoke the license of James Swan as a registered pharmacist; and further, that this revocation be reported to any other state in which Swan may be licensed.

DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Arthur G. Leonhardt, Jr., Esquire

39 West Pine Street Orlando, Florida 32801

Michael Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

Docket for Case No: 77-001824

Orders for Case No: 77-001824