STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1866

)

MICHAEL H. RADELL, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on January 13, 1983, in Sarasota, Florida.

APPEARANCES

For Petitioner: Julie Gallager, Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Larry Byrd, Esquire

1844 Main Street

Sarasota, Florida 33577

ISSUES

The issues in this cause arise out of allegations that the Respondent violated the provisions of Chapter 466, Florida Statutes, by procuring amphetamines, procuring controlled substances for himself, procuring a controlled substance other than in the course of his dental practice, and failing to fulfill statutory record keeping requirements.

At the hearing, the Petitioner called Investigator Greg P. Clift and Deputy Claude Davidson as witnesses. The Petitioner offered and had admitted two exhibits. Petitioner's Exhibit 1 is a certificate from the custodian of records for the Florida State Board of Dentistry and Exhibit No. 2 is a composite exhibit consisting of 11 D.E.A. Form 222. Respondent presented no evidence by way of live testimony and offered one composite exhibit which was admitted for the purpose of showing the character and reputation of the Respondent. That exhibit consists of eight letters from persons within the community who are familiar with the Respondent and his reputation as a dentist.

Both counsel for the Petitioner and counsel for the Respondent submitted proposed recommended orders for consideration by the undersigned Hearing Officer. To the extent that the proposed findings of fact and conclusions of

law contained within those proposed recommended orders are not adopted herein, they were considered and determined to be either irrelevant to the issues of this cause or not supported by the evidence.

FINDINGS OF FACT

1. By stipulation, it was agreed and I find that Respondent is and at all times relevant to this proceeding was a licensed dentist in the State of Florida holding License No. 0004802.

   
   

2. During the period of May, 1979, through October, 1981, the Respondent ordered and procured the following drugs from the Interstate Drug Exchange in Plainview, New York:

   
   

   DATE DRUG AMOUNT

   
   

   05/11/79	Quaalude	100	at	300	mg.
   08/20/79	Percodan	100	at	5	mg.
   11/06/79	Quaalude	500	at	300	mg.
   01/08/80	Quaalude	500	at	300	mg.
   01/08/80	Percodan	100	at	5	mg.
   05/12/80	Quaalude	500	at	300	mg.
   06/16/80	Percodan	100	at	5	mg.
   08/21/80	Percodan	100	at	5	mg.
   08/21/80	Quaalude	500	at	300	mg.
   10/21/80	Dexedrine	100	at	15	mg.
   11/17/80	Quaalude	500	at	300	mg.
   02/13/81	Quaalude	500	at	300	mg.
   10/05/81	Percodan	100	at	5	mg.

   
   

3. These drugs were not procured by the Respondent for the purpose of utilizing them in the treatment of dental patients as a part of and in the course of his dental practice. The drugs were procured by the Respondent for himself for personal use, and he did, in fact, use the drugs himself. The Quaaludes and Percodan were taken by the Respondent because of problems he was having as a result of a difficult divorce that he was going through. The Dexedrine was procured by the Respondent for the purpose of losing weight, but because of the effect that it had upon him, he took only a few of the tablets and threw away the rest of the tablets.

   
   

4. At the time the Respondent ordered and received the drugs listed in Paragraph 2 above, there was no investigative protocol contained in the records of the Florida State Board of Dentistry, nor had one been submitted regarding the prescribing, procuring, or use of amphetamines by Dr. Michael Radell, the Respondent.

   
   

5. None of the drugs ordered were used by the Respondent in treating dental patients in the course of his dental practice.

   
   

6. The only records maintained by Respondent with regard to those drugs listed in Paragraph 2 of this Recommended Order were the D.E.A. Form 222s which appear in Petitioner's Exhibit 2. No other records were prepared or maintained by the Respondent with regard to those drugs.

   
   

7. The Respondent is an orthodontist and generally orthodontia does not require the use of Quaaludes. The Respondent does not use Percodan in his practice.

8. During the course of the investigation, the Respondent was cooperative and polite at all times to Investigator Clift and Detective Davidson.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

10. The Board of Dentistry, within the Department of Professional Regulation, is authorized by Florida Statute 466.028 to take disciplinary action against dentists found to be in violation of the various grounds set forth in that section.

    
    

11. License revocation proceedings such as this are penal in nature. The Petitioner, or prosecuting agency, must prove each and every element of the violation charged by clear and convincing evidence--by evidence as substantial as the consequences facing a licensee. See, Bowling v. Department of Insurance,

    394 So.2d 165 (Fla. 1st DCA 1981); Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).

    
    

12. Count I charges Respondent with violations of three separate provisions of Section 466.028, Florida Statutes. Specifically, the complaint alleges violations of Sections 466.028(1)(s), 466.028(1)(r) and 466.028(1)(q) which provide that the following acts shall constitute grounds for disciplinary action under Chapter 466:

    
    

    Prescribing, procuring, ordering, dispensing, administering, supplying, selling, or giving any drug which is an amphetamine or sympathomimetic amine drug or a compound designated as a Schedule II controlled substance, pursuant to chapter 893, to or for any person except for the clinical investigation of the effects of such drugs or compounds when an investigative protocol therefor is submitted to, and reviewed and approved by, the board before such investigation is begun. Florida Statute 466.028(1)(s).

    
    

    Prescribing, procuring, dispensing, or administering any medicinal drug appearing on any schedule set forth in chapter 893, by a dentist to himself, except those prescribed, dispensed, or administered to the dentist by another practitioner authorized to prescribe them. Florida Statute 466.028(1)(r).

    
    

    Prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of a dentist's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, procuring, dispensing, administering, mixing, or

    otherwise preparing legend drugs, including all controlled substances, in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the dentist's professional practice, without regard to his intent. Florida Statute 466.028(1)(q)

    
    

    Respondent is alleged to have violated Section 466.028(1)(s) by procuring amphetamines. The violation of Section 466.028 (1)(r) is based upon a specific allegation that Respondent procured for himself "a medicinal drug appearing on a schedule set forth in Chapter 893, Florida Statutes". The alleged violation of Section 466.028(1)(q) specifically charges the Respondent with "procuring a controlled substance other than on the course of a dentist's professional practice".

    
    

13. The administrative complaint alleges in part as factual support for Count I, as well as Counts II and III, as follows:

    
    

    1. Percodan (oxycodone) and Quaaludes (Methaqualone) are designated as Schedule II Controlled Substances in Chapter 893, Florida Statutes.

    2. Dexedrine (dextroamphetamine sulfate) is a compound of a sympathomimetic amine drug of

       the amphetamine group and is designated as a Schedule II Controlled Substance in Chapter 893, Florida Statutes.

       
       

       As recognized by the Petitioner in its administrative complaint, it is essential to proof of the violations alleged in Count I that each of the three different drugs listed in Paragraph 5 of the administrative complaint be proven to be controlled substances listed in Schedule II of Chapter 893, Florida Statutes.

       
       

14. Quaaludes, percodan, and dexedrine are not listed or mentioned in Schedule II, Chapter 893, Florida Statutes. Whether a particular drug is a controlled substance under Chapter 893 is a fact question to be proven by the prosecuting agency. See, Casey v. State, 330 So.2d 41 (Fla. 1st DCA 1976), cert. denied, 336 So.2d 108 (Fla. 1976). See also, Department of Professional Regulation, Board of Nursing v. Karen Lewis, DOAH Case No. 81-1239 (1982). In Casey v. State, supra, the First District Court of Appeal, in reversing the trial court's denial of the defendant's motion for judgment of acquittal reasoned:

    
    

    The state charged the defendant with unlawful possession of hashish, a Schedule I controlled substance, in violation of Section 893.13(1)(e), Florida Statutes. Although the state proved that the defendant had possession of hashish,

    it failed to offer proof that hashish was a Schedule I controlled substance which was prohibited by Section 893.13(1)(e), Florida Statutes. Hashish is neither listed in Schedule I nor mentioned in Chapter 893, Florida Statutes. Although cannabis is listed in Schedule I as a controlled substance, and is defined in Section 893.02(2), Florida

    Statutes, in such broad and general terms that it includes every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin, the state failed to offer evidence that hashish was a derivative of cannabis. In addition, the record before us fails to show that the trial court took judicial notice that hashish is a derivative of cannabis. The trial court erred in the denial of the defendant's motion for judgment of acquittal. Id. at 41.

    
    

    Although Casey v. State, supra, was a criminal proceeding, the logic of requiring factual proof that a street name drug is a particular controlled substance listed in Chapter 893 applies equally well to administrative proceedings such as the instant case.

    
    

15. There was no proof adduced in the record of this case that dexedrine is an amphetamine, that percodan is oxycodone, or that quaaludes are methaqualone. Amphetamine, oxycodone, and methaqualone are listed in Schedule II, Chapter 893. Quaalude, percodan, and dexedrine are not. Petitioner failed to prove that the drugs listed in Paragraph 2 above are controlled substances listed in Schedule II, Chapter 893, Florida Statutes, and has, therefore, failed to prove violations of Sections 466.028(1)(s), 466.028(1)(r), and 466.028(1)(q) as alleged in Count I.

    
    

16. Count II charges Respondent with failing to maintain the specific records required under Section 893.07, Florida Statutes, which provides that every person who engages in dispensing "controlled substances" shall maintain certain specific records as set forth in that section. Florida Statutes 893.02(3) defines "controlled substance" as used in Chapter 893 as "any substance named or described in Schedules I through V of s. 893.03." Before Respondent can be found to have violated Section 893.07 and thus Sections 893.13(2)(a)(2) and 466.028(1)(i) as alleged in Count II, it must be proven that the drugs ordered and received by Respondent were, in fact, "controlled substances" named or described in Schedule II of Chapter 893, Florida Statutes. Having failed to do so, the Petitioner has not proven a violation as alleged in Count II.

    
    

17. Count III incorporates Counts I and II and charges that those violations constitute repeated violations as proscribed by Section 486.028(1)(bb), Florida Statutes (1979) and (1981). For the reasons discussed above, the Petitioner has also failed to prove the violation alleged in Count III.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Respondent be found not guilty of Counts I, II, and III of the administrative complaint and that the charges be dismissed with prejudice.

DONE and ENTERED this 6 day of May, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6 day of May, 1983.

COPIES FURNISHED:

Ms. Julie Gallager Staff Attorney 1844

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Varn Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32301

Larry Byrd, Esquire 1844 Main Street

Sarasota, Florida 33577

Mr. Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001866

Orders for Case No: 82-001866