The Issue Whether the State Hoard of Optometry's policy statement of November 8, 1975, which interprets Chapter 463, Florida Statues (1983)("F.S."), as allowing optometrists to Prescribe legend drugs, is an unpromulgated "rule" within the meaning of Section 120.52(15), F.S., and therefore an invalid exercise of delegated legislative authority under Section 120.56, F.S. 1/ Whether the Board of Optometry's Proposed Rule 21Q-3.10, Florida Administrative Code ("F.A.C."), relating to the use and prescription of legend drugs by optometrists, lacks statutory authority and is therefore an invalid exercise of delegated legislative authority under Section 120.54(4)(a), F.S.; Whether Proposed Rule 21Q-3.10 is invalid for failure to provide an adequate statement of economic impact, as required by Section 120.54(2)(c), F.S.
Findings Of Fact STANDING OF PARTIES Petitioner FMA. Petitioner FLORIDA MEDICAL ASSOCIATION, INC. ("FMA"), a non-profit corporation, is organized and maintained for the benefit of the 13,500 Florida physicians who comprise its membership. The FMA acts on behalf of its members in matters of common importance. In addition to representing its members, FMA is committed to protecting, maintaining, and improving the quality of health care available to the public. The stated nature and purpose of the FMA is to promote the science and art of medicine, and improve the public health. Under its bylaws the FMA maintains a standing Council on Medical Services, which is primarily concerned with the delivery of medical services to the elderly and school children; to the impaired; and to recipients of public health service. One of the primary objectives of the Council is to Protect and enhance the delivery of health services in Florida to these health care recipients. The FMA initiated this rule challenge on behalf of all its members to protect those interests within the purview of its organization. Petitioner FSO. The FLORIDA SOCIETY OF OPHTHALMOLOGY, INC. ("FSO"), a non-profit corporation, is composed of members who are ophthalmologists-- physicians (M.D.'s) who specialize in diagnosing and treating eye disorders with drugs, surgery, and appliances such as corrective lenses and prisms. The practice of ophthalmology includes many types of eye care--from Sophisticated surgery techniques to prevent blindness to the more familiar eye examination. FSO acts, and is organized, to further the educational, political and professional interest of Florida ophthalmologists. The FSO is committed as an organization to protecting, maintaining and improving the quality of eye care available to the public. The FSO's membership includes over 400 of the approximately 550 ophthalmologists practicing in Florida. Many members of the FSO are also members of the FMA. The FSO initiated this rule challenge on behalf of itself and its members. Petitioner Broussard. WILLIAM J. BROUSSARD, M.D., is a licensed Florida physician. Since 1967, he has been a resident of Broward County, Florida, and has engaged in the practice of medicine, specializing in ophthalmology. He and the other physician members of petitioners FMA and FSO hold licenses to practice medicine issued under the authority of Chapter 458, F.S. Unauthorized Practice of Medicine. Under Chapter 458, F.S. other health care professionals are prohibited from practicing medicine unless within the confines of their organic act, which, in the case of optometrists, is Chapter 463, F.S. If Optometrists are not authorized by Chapter 463 to prescribe and use legend drugs in their practice, the prescription and use of such drugs could constitute an unlawful encroachment on the practice of medicine. Moreover, physicians, especially ophthalmologists, would suffer economic injury since it is likely that Some patients who would have otherwise Sought their services would, instead, seek the services of optometrists. 5 Respondent Board of Optometry. Respondent STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, ("BOARD") is a state agency within the meaning of Section 120.52(1), F.S. Intervenor Florida Optometric Association, Inc. FLORIDA OPTOMETRIC ASSOCIATION, INC., ("FOA") is an incorporated organization of approximately 700 licensed optometrists in Florida. Its purpose is to promote and protect the interests of optometrists and the public by ensuring the availability of quality optometric service at reasonable prices. It represents its membership by participating in administrative, judicial, and legislative proceedings. Intervenor James A. Stephens, O.D. Dr. Stephens is a licensed optometrist in Quincy, Florida, who uses drugs in his practice. Intervenor Donnie D. Dance, O.D. Dr. Dance is a licensed optometrist in Ft. Myers, Florida, who uses drugs in his practice. Intervenors FOA, Stephens, and Dance. These intervenors have been, and will be, substantially affected by the challenged policy statement and rule, which regulate, and implicitly authorize, the prescription and use of legend drugs by optometrists in their practice. THE CHALLENGED POLICY STATEMENT AND PROPOSED RULE The 1975 Policy Statement. At various workshops held in 1975, the BOARD discussed adopting a rule on the use of drugs by optometrists in their practice. It asked its attorney to draft a rule on the subject. He submitted, instead, a written policy statement on the use of drugs in optometry, which the BOARD adopted at its November 8, 1975, meeting. On November 12, 1975, the statement was disseminated to all licensed optometrists in Florida. It was transmitted by a BOARD cover letter: To All Licensed Optometrists: On November 8, 1975, the Florida State Board of Optometry adopted a policy statement on the use of drugs in optometry. A copy is enclosed. This statement is important. It should be carefully read and then retained for future reference and review. Questions should be submitted to the Board in writing. (Emphasis in original) (Petitioner's Exhibit No. 2) This BOARD policy statement concluded, among other things, that there was "no specific or absolute prohibition" of the use of drugs by optometrists; that the need for health care services was so great that no action should be taken to restrict such services unless necessary to protect the public from injury; and that the education requirements of optometrists had been raised so that they had become at least as well educated in pharmacology as other health care professionals, whose right to use drugs in their practice had not been questioned. By this Policy statement, the BOARD, without citing or relying on any specific language in the statute, announced its interpretation that Chapter 463, F.S. (1975) allowed optometrists to use drugs in the practice of optometry. It cautioned optometrists, however, not to practice beyond their level of individual competency. Although not expressly stated, the policy statement was referring to the use of legend drugs--that is, drugs which were required by federal or state law to be dispensed only on prescription. This policy statement was never adopted as a rule in accordance with the rulemaking procedures of Section 120.54, F.S. (1975). It has never been rescinded or changed by the BOARD--and has been in effect since 1975. This written policy statement effectively notified all licensed optometrists in Florida that they were authorized to use legend drugs in the practice of optometry, provided they were individually competent to do so. This was the purpose of the statement, and this was its effect. Optometrists relied on this statement as authority for the use of legend drugs in their practice. The Proposed Rule: 21Q-3.10. On June 25, 1982, the BOARD, published notice of its intent to adopt an amendment to Rule 21Q-3.10, F.A.C., setting standards for the prescribing and use of legend drugs by optometrists and providing guidelines for determining the competence of individual optometrists who use such drugs. A public hearing on the proposed rule was held on July 22 and 23, 1982. Transcripts and exhibits presented during the previous rulemaking workshops were received into the record, and no witnesses were presented by either petitioners or intervenors. As a result of the hearing, the BOARD made several changes to the proposed rule. Notice of these changes was published in the Florida Administrative Weekly and the proposed rule (with changes) was filed for adoption on November 30, 1982. (Respondent/Intervenors' Exhibit No. 1) The proposed rule warns optometrists against performing treatment which they are not competent to perform; requires optometrists diagnosing angle closure, infantile, or congenital forms of glaucoma to refer such patients to a physician; requires optometrists treating an eye condition with steroids to refer such patients to a physician when the condition does not improve; requires BOARD approval prior to employing 10 percent phenylepherine hydrochloride, which approval will be granted only after training in life-sustaining emergency medical procedures; requires consultation with a physician when, in the optometrist's judgment, an infectious corneal disease has not responded to treatment; authorizes optometrists to employ non-controlled oral analgesics for relief of severe pain associated with eye trauma, for up to 48 hours, and for longer periods after consulting with a physician; defines legend drugs as substances required by federal or state law to be dispensed only on prescription, and excludes controlled substances defined by Chapter 893, F.S.; and establishes qualifications (consisting of completion of specified course work and clinical training in designated subject areas) which create a rebuttable presumption that an optometrist is competent to prescribe legend drugs in the practice of optometry. (Respondent/Intervenors' Exhibit No. 1(r)). The proposed rule is premised on the BOARD's long-standing interpretation that Chapter 463, F.S. authorizes optometrists to use legend drugs to diagnose and treat eye disorders, including diseases and injuries. The rule attempts to narrow or refine that authority by providing standards for employing and prescribing legend drugs, and by providing guidelines for determining the competence of individual optometrists to prescribe and use such drugs. The proposed rule contains definite and objective standards. Petitioners have not substantiated their allegation that the rule is unduly vague. The economic impact statement which accompanies the proposed rule addresses, in detailed fashion, each factor listed in Section 120.54(2)(a), F.S. The statement assumes that Chapter 463 does not prohibit the use of legend drugs by optometrists and that the use of legend drugs by optometrists has become a pattern of practice in Florida. OPTOMETRY: ORIGIN, SCOPE OF PRACTICE, AND TECHNICAL TERMS Origin. The profession of Optometry Originated in the late 1800's when some opticians--who were qualified to fill prescriptions for glasses, fit frames, and grind lenses--assumed the additional function of refraction. Up to that time refraction had been the exclusive responsibility of physicians. (Refraction consists of measuring the ability of the eye to refract or bend light rays entering it so as to form an image on the retina.) These refracting opticians became known as optometrists. In the early 1900's most states, including Florida, passed laws defining optometry and expressly authorizing optometrists to examine eyes for refractive error. Dictionary and Commonly Understood Definition of Optometry. Since the early 1900's, optometry has been commonly understood, and defined in dictionaries, as excluding the use of drugs or surgery. Webster's New Collegiate Dictionary (1981) at 799, defines optometry as: the art or profession of examining the eye for defects and faults of refraction and prescribing correctional lenses or exercises but not drugs or surgery. Professional Definition of the Scope of Optometry. During the 1940's and 50's, optometry was viewed as the art and science of visual care. Optometrists did not view their profession as embracing the use of drugs. In 1945, the American Optometric Association approved the following occupational definition: "OPTOMETRISTS (profess & kin) 0-53.10. Examines eyes, determines their con- dition, and prescribes treatment to conserve or improve vision without use of medicine, drugs or surgery; determines visual difficulties (refracts) by means of instruments such as ophthalmometer skiascope, and ophthalmoscope; refers patients having ocular manifestations of disease to a medical practitioner; prescribes lenses, prisms, or visual training as necessary to correct or improve vision; tests finished lenses to insure conformance to prescriptions, using lens testing machines. May Specialize in a particular phase of optometry such as prescribing and fitting contact lenses and telescopic spectacles or surveying and correcting visual deficiencies among industrial workers." (e.s.) (Petitioners' Exhibit No. 52, page 329) In 1967, Congress was considering a bill which would have amended a District of Columbia law to include within the definition of optometry, "the employment of any . . . means for the examination of the human eye." H.R. 12276, 90th Congress, 1st Session, Section 3(2)(1967). Dr. Judd Chapman, a Florida optometrist serving as Chairman for Legislation of the American Optometric AsSociation, testified about the amendment before a congressional subcommittee. When asked if this proposed language would authorize optometrists to use drugs, he replied: No, sir, it does not . . . in fact that language is in a great number of the statutes defining optometry throughout the nation. That is very common . . . No, sir, that does not include the use of drugs. (Petitioners' Exhibit No. 43) Optometrists did not view their profession as including the diagnosing and treating of eye injury or eye disease. The treating of eye disease normally required use of drugs or surgery. When optometrists detected eye disease, or ocular manifestation of systemic disease (or pathology) they referred the patient to a qualified physician. Scope of Optometry as Defined by Florida Law. Since 1939, Florida's statutory definition of optometry (and its scope of Practice) has remained relatively unchanged. 2/ Section 463.002(4), F.S. provides: "Optometry" means the diagnosis of the human eye and its appendages; the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages; and the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages. The BOARD asserts that this statutory definition is broad enough to authorize adoption of the proposed rule regulating (and permitting) the use of legend drugs by optometrists. The question of whether Chapter 463, generally, and this definition of optometry, in particular, authorize optometrists to use drugs in their practice has been asked before with varying, and sometimes conflicting answers. Florida Attorney Generals' opinions have answered this question differently. In 1957, AGO 057-79, concluded that: The practice of optometry, as defined by Section 463.01, F.S., and cases from other jurisdictions obviously does not authorize optometrists to administer drugs, or perform surgery in the diagnosis of, or treatment of the refractive powers of the human eye. Therefore, question 1 [is an optometrist permitted to administer drugs and perform surgery?] is answered in the negative. (e.s.) In 1959, AGO 059-24, addressed whether an eye care publication was misleading advertising. The Attorney General, citing Section 463.01 (defining the practice of optometry) stated: In view of the foregoing definitions of optometry, it appears that the treatment of ocular diseases is not a part of the practice of optometry; * * * It further appears by the statutes and possibly from the professional definition that an optometrist is restricted to diagnosing the things mentioned in Section 463.01, Florida Statutes, and not diseases. (e.s.) What was obvious to one Attorney General in 1957, was less obvious to another in 1975, who was asked this question by the attorney for the BOARD: Does Chapter 463, F.S., prohibit licensed optometrists from utilizing drugs within the scope of the practice of optometry as defined by Section 463.01, F.S.? The Attorney General, by letter dated December 22, 1975 (an unpublished Attorney General`s opinion), answered this question in the negative, ice. Chapter 463 does not forbid the use of drugs by optometrists. Various Florida Boards of Optometry have also answered this question differently. Although the 1975 Board (which adopted the challenged policy statement) and the present Board (which proposed the challenged rule) both agree--without citing specific language Chapter 463 authorizes optometrists to use legend drugs, an earlier 1962 Board of Optometry was less certain. In June, 1962, that Board adopted a rule prohibiting the use of drugs except under certain circumstances: 250-1.32. Use of Drugs Prohibited Except Under Certain Circumstances In the practice of optometry as defined in Section 463.01, Florida Statutes, a registered optometrist in this state is prohibited from using or prescribing drugs in connection with the treatment of pathological conditions of the eye or any of its appendages, provided, however, that drugs may be used and prescribed in connection with the fitting of contact lenses and examinations for purpose of testing or diagnosis of the eyes but not for treatment thereof. Three months later, the Board repealed this rule, explaining: [T]his existing Rule 250-1.32 was repealed by the Board because it was felt that the rule was probably beyond the power of the Board to promulgate inasmuch as the law itself, Chapter 463, Florida Statutes, made no mention of drugs in its definition of the practice of optometry. (Petitioners' Exhibit No. 16) Unsuccessful Legislative Efforts to Resolve the Question. In 1974, two bills were introduced in the Florida Legislature which would have expressly prohibited the prescription and use of legend drugs by optometrists. Both bills were defeated. (Respondent's Intervenors Exhibit No. 5) In 1975, the legislature created a commission to study the use of drugs by Optometrists and make recommendations to the 1975 legislature. Ch. 75-239, Laws of Florida (1975). This commission composed of 4 legislators, 2 optometrists and 2 opathalmogists studied the question and, on January 5, 1976, recommended that the legislature take no action: The Commission recommends that legislative action on this issue of the appropriateness of the use of drugs by Optometrists is not warranted at the present time. This recommendation should not be construed as an endorsement of the prescribing of, or use of, drugs by optometrists but re- flects an agreement on the part of members of the Commission that this issue is of a professional nature and would best be resolved through cooperative discussions between the respective Boards and Societies of the Optometrists and Ophthalmologists. (Respondent's Exhibit No. 2(c); 6(a), (b).) In 1981 and 1982, bills were introduced which would have expressly allowed Optometrists to use legend drugs under specified conditions. Those bills were also defeated. In 1983, the legislature passed Senate Bill 168, which would have allowed Optometrists to use legend drugs. It was vetoed by the Governor and never became law. The Use of Legend Drugs by Optometrists. Some Florida optometrists have been using legend drugs for diagnostic and therapeutic purposes. Since the Florida Board of Pharmacy does not permit pharmacists to honor their prescriptions optometrists have to obtain their drugs from other Sources. Most of the drugs they have used are intended for topical application to the eye. Generally, they are classified as topical anesthetics, mydriatics, cycloplegics, miotics, and antibiotics. Topical anesthetics ease discomfort when tonometry is used to measure intraocular pressure of the eyes--a test for glaucoma. Mydriatics dilate the pupil so that the examiner can view the interior of the eye with an ophthalmoscope or slit lamp. Cyclopegics cause paralysis of accomodation and facilitate refractions in children. Miotics constrict the pupil after it has been dilated with mydriatics. Antibiotics are used mainly to treat conjunctivitis Although these drugs may be helpful, they are not essential to examining or refracting human eyes. These drugs have known side effects which, although rare, may be quite severe. Technical Meaning of Statutory Terms. As stated earlier, Section 463.002(4), F.S., contains the legislative definition of optometry: "Optometry" means the diagnosis of the human eye and its appendages; the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages; and the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages. (e.s.) This definition contains terms and phrases which have assumed commonly understood, or technical, meanings among optometrists and ophthalmologists: "Diagnosis of the human eye," means identification of the organ and its function as an optical instrument. It does not mean "diagnosis of diseases of the human eye," a function involving the medical process of differential diagnosis, whereby all other possible diseases are eliminated--one by one--until only the suspected disease remains. "Objective . . . means . . . for . . . determining the refractive powers of the human eyes," means the use of instruments for measuring visual acuity. "Subjective means . . . for . . . determining the refractive powers" means the placing of various lenses in front of a patient's eyes and asking how the lenses affect the patient's sight. "Anomalies" of the human eyes includes developmental or functional defects, not diseases--which are caused by pathological processes. The latter part of this statutory definition lists specific modalities of treatment which may be prescribed or employed by optometrists, including "lenses, prisms, frames, mountings, contact lenses, orthoptic exercises [and] light frequencies." These constitute a class of items which are prosthetic devices, or appliances, and exercises. Their common characteristics are that they are neither invasive nor intrusive; and they do not operate at the level of cell physiology. Neither do they exhaust the class. Lid crutches (which are mounted in the frame and tend to hold a lid open) and eye patches (which prevent the light image from falling on the retina) are examples of items omitted from the list. In the language of optometrists and ophthalmologists these optic appliances are "prescribed" for a patient. These specifically listed appliances or exercises have a common purpose: to correct refractive error. This occurs when there is nothing basically wrong with the eye, except it is too big, or overpowered, or underpowered, and images are distorted. "Prisms" and "lenses" are mounted into the eyeglass frame. A "mounting" refers to propping glasses on the nose and hanging them from the ears. "Contact lenses" are mounted on the eye's surface and, like eyeglasses, weaken or strengthen the eye--as needed--to cause the image to fall onto the retina.
Conclusions Jurisdiction. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this Proceeding. 120.54(4), 120.56, F.S. Standing. Petitioner's have standing to challenge--as do intervenors to defend--the validity of the 1975 policy statement and the recently proposed amendment to Rule 21Q-3.10, F.A.C. These parties are, or will be, substantially affected within the meaning of Sections 120.54(4)(a) and 120.56(1), F.S. See, Florida Medical Association, Inc. et al. v. Department of Professional Regulation Board of Optometry, et al., 426 So.2d 1112 (Fla. 1st DCA 1983). Constraints on Agency Rulemaking. Agencies are creatures of statute and have no inherent authority. 120.54(14), P.S. Their powers are limited to those expressly granted or necessarily implied by statute. See, 4 Jur. 2d, Administrative Law 46. When the legislature delegates rulemaking power to administrative agencies, such power is limited and circumscribed by the statute conferring it. State v. Atlantic Coastline R. Co., 47 So. 969 (Fla. 1908). No agency can adopt a rule which amends, adds to, or conflicts with a statute. Seitz v. Duval County School Board, 366 So.2d 119, 121 (Fla. 1st DCA 1979), cert. den. 375 So.2d 911; State Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980); Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280, 1285 (Fla. 1st DCA 1980). No agency can adopt rules which exceed its delegated power or are contrary to the intent of the legislature. See, Dept. of Citrus v. Office of Comptroller 416 So.2d 820 (Fla. 2d DCA 1982). Any rule which attempts to do so is an invalid exercise of delegated legislative authority. If there is reasonable doubt about the existence of a power being exercised by an agency, the further exercise of that power should be arrested. Atlantic Coastline R. Co., supra Edgerton v. International Co., 89 So.2d 488, 489-90 (Fla. 1956); State ex rel. Greenberg v. State Board of Dentistry, 297 So.2d 628, 636 (Fla. 1st DCA 1974). Position of Petitioners. In the instant case, petitioners contend that the BOARD'S policy statement and proposed rule regulate, and implicitly authorize, the use of legend drugs by optometrists in their practice; that the BOARD lacks statutory authority to regulate or authorize the use of such drugs by optometrists; and that the use of such drugs to diagnose and treat eye conditions constitutes the unauthorized practice of medicine. Further, they contend that the economic impact statement is inadequate because it mistakenly assumes that optometrists may lawfully prescribe and use legend drugs in their practice, and that there is an existing pattern of such practice; and that the 1975 policy statement on the use of drugs is invalid because it is, in effect, a rule but was not adopted as such in accordance with the rulemaking procedures of Chapter 120, F.S. Position of Board of Optometry and Intervenors. The Board of Optometry and the intervenors argue, among other things, that the BOARD has authority to adopt the rule; that it is authorized to do so by the plain wording of Chapter 463; that, subject to the rule, optometrists are qualified by training and education to safely prescribe and use legend drugs in diagnosing and treating eye disorders, including refractive error and pathological diseases; that the rule contains standards of practice for optometrists and simply refines the statutory definition of the scope of optometry; that the use of legend drugs by optometrists is useful and necessary; that the statute should be construed to allow Optometrists to use any means or methods taught by the various schools of optometry and recognized by the BOARD; and that deference should be granted the BOARD's interpretation of the statute in its charge. Further, they argue that the 1975 policy statement is not a rule" because it was not intended to create rights, require compliance, or otherwise have the direct and consistent effect of law. II. For the reasons which follow, it is concluded that the proposed rule lacks statutory authority and is an invalid exercise of delegated legislative authority. It is also concluded that the BOARD's 1975 policy statement on the use of drugs is a "rule," as defined by Chapter 120, F.S., but was not adopted as such in accordance with prescribed rule-making procedures. It too is, therefore, an invalid exercise of delegated legislative authority. Legislative Intent and Ambiguous Statutory Language. Legislative intent is the essence of the law. State v. Sullivan, 116 So.255 (Fla. 1928). The cardinal rule of statutory construction is that "a statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute." Deltona Corp. v. Florida Pub. Serv. Comm'n., 220 So.2d 905, 907 (Fla. 1969). When a statute is plain and unambiguous, there is no room for construction the plain meaning need only be given effect. State v. Egan, 287 So.2d 1, 49 (Fla. 1973). But Chapter 463 and Section 463.002(4), in particular, do not express legislative intent in plain and unambiguous terms. The statute does not expressly authorize or prohibit the prescription and use of legend drugs by optometrists. The question is whether this statute may be permissibly interpreted as authorizing optometrists to use legend drugs. When a statute is ambiguous, as is the case here, various rules of statutory construction may be used to ascertain legislative intent. Statutes are considered to have been enacted with knowledge that they would be interpreted in accordance with these rules. 73 Am. Jur. 2d, Statutes, 142. The legislative history or evolution, of a statute may be material. Blount v. State, 138 So.2d 2 (Fla. 1931). Ordinarily, the statute should be given the meaning assigned to it at the time it was enacted. State v. JackSonville, 50 So.2d 532 (Fla. 1951) Statutory History and Meaning Assigned at Time of Enactment. The first statute regulating the practice of optometry in Florida was adopted in 1909, and defined the practice of optometry as: The use or employment of tests or examinations for the determination of the natural and functional deficiencies of the eye and the adaption of lenses for the aid thereof. 1 Ch. 5947, Laws of Florida (1909). Physicians were expressly exempted from the law regulating optometrists and have always been authorized to provide services included within the scope of optometry. In 1921, the legislature expanded the definition of optometry and expressly prohibited the use of drugs, medicine, or surgery: The practice of optometry for the purposes of the Act is hereby defined as being either one or any combination or part of the following: The examination of the human eye, without the use of drugs, medicine, or surgery, to ascertain the presence of defects or abnormal conditions which may be corrected, remedied or relieved or the effects of which may be corrected, remedied or relieved by the use of lenses or prisms. The employment of subjective or objective mechanical means without the use of drugs, medicine or surgery to determine the accommodative or refractive conditions, or the range of powers of vision, or muscular equilibrium of the human eye. The adaptation or the adjustment of lenses or prisms without the use of drugs, medicine or surgery to correct, relieve or remedy any defect or abnormal condition, or to correct, relieve or remedy the effects of any defect or abnormal con- dition of the human eye or to adjust the human eye to the conditions of a special occupation. The adaptation or adjustment of lenses or prisms, without the use of drugs, medicine or surgery, in any manner to the human eye for any purpose, either directly or indirectly. (e.s.) 1 Ch. 8580, Laws of Florida (1921). In 1931, the definition of optometry was amended again. The prohibition on use of drugs or surgery in refracting human eyes was retained, but it was deleted in connection with the prescribing and employment of lenses, prisms, and ocular exercises: That the practice of Optometry, for the purposes of this Act, is hereby defined as follows, viz.: to be the employment of any objective or subjective means or methods without drugs or surgery for the purpose of determining the refractive powers of the human eyes, or any visual or muscular anomalies of the human eye and its appendages, and the prescribing and the employment of lenses, prisms, ocular exercises for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the same; an optometrist is one who practices Optometry in accordance with the provisions of this Act. (e.s.) This deletion of the earlier prohibition did not, however, authorize optometrists to use drugs (or any other form of treatment) not mentioned in the statute. Under the rule, expression unius est exclusio alterius, the listing of specific modes of treatment effectively excluded all others. Dobbs v. Sea Isle Hotel, 56 So.2d 341, 342 (Fla. 1952). It was in 1939 that the legislature revised, once more, the definition of optometry (1) by removing the remaining prohibition against using drugs to determine refractive powers and (2) by adding a general description, "and any other means or methods," after the specifically listed modes of treatment: That the practice of Optometry is hereby declared a profession, and for the purpose of this Act, is hereby defined as follows, viz: to be the diagnosis of the human eye and its appendages, and the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological or anatomic anomalies of the human eyes and their appendages, and the pre- scribing and employment of lenses, prisms, frames, mountings, orthoptic exercises, light frequencies and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages, and an Optometrist is one who practices Optometry in accordance with provisions of this Act. (e.s.) 1 Ch. 19031, Laws of Florida (1939) The question then becomes whether, by these two changes, the 1939 Legislature intended to authorize optometrists to use and prescribe legend drugs in the practice of optometry, including the treating of eye injury and disease. A law cannot be interpreted to encompass a situation not within its purview at the time of its enactment. Radio Telephone Communications, Inc. v. Southeastern Telephone Company, 170 So.2d 577 (Fla. 1964). Although statutory language may appear to have a clear meaning, it may not be assigned a meaning which is inconsistent with other statutes in pari materia. See, 30 Fla. Jur., Statutes 101. A construction which places related statutes in conflict should be avoided. Howarth v. City of Deland, 158 So.294 (Fla. 1934; From 1921 to the present, the Medical Practice Act, now Chapter 458, F.S., has exempted those perSons from its coverage who, without the use of drugs, fit lenses or other appliances or examined eyes for such purposes: Definition of Practice of Medicine; Exceptions-- * * * This Chapter [the Medical Practice Act] shall not be construed to affect any person or manufacturer who without the use of drugs or medicines mechanically fits or sells lenses, artificial eyes, limbs or other apparatus or appliances, or is engaged in the mechanical examination of eyes for the purpose of constructing or adjusting spectacles, eyeglasses or lenses; (e.s.) 458.13, F.S. (1941). See also, 14 Ch. 8415, Laws of Florida, (1921); 458.3031(1)(h), F.S. In 1939, this was the only exemption in the Medical Practice Act which protected optometrists--who were not exempted by name--from charges of engaging in the unauthorized practice of medicine. Yet this provision applied only to persons who examined eyes and fit lenses without the use of drugs. It follows that the 1939 legislature could not have intended that its removal of a prohibition against the use of drugs be interpreted as authorizing their use. Such a construction would have placed the Optometric Practice Act and the Medical Practice Act in direct conflict--and placed optometrists in an untenable position. They would have been authorized by the Optometric Practice Act to use drugs to examine eyes or fit lenses; but as soon as they did so, they would be in violation of the Medical Practice Act and subject to charges of unauthorized practice of medicine since such acts--beyond the exemption constitute the practice of medicine. See, 458.13, F.S. (1941). It is concluded, therefore, that the 1939 legislature did not intend that its deletion of a prohibition equate to an authorization. Since the definition of optometry has not significantly changed since 1939, the legislative intent at the time of enactment must be given effect. This conclusion that the legislature did not intend to authorize optometrists to use drugs is reinforced by application of the rule of ejusdem generis to that part of the definition which describes the forms of treatment which optometrists may render. The Rule of Ejusdem Generis. In ex parte Amos, 112 So.289 at 293 (Fla. 1927), the Florida Supreme Court recognized this as a controlling rule of statutory construction. It means: "Where an author makes use first of terms each evidently confined and limited to a particular class of a known species of things, and then after such specific enumeration subjoins a term of very extensive signification, this term, however general and comprehensive in its possible import, yet when thus used embraces only things ejusdem generis; that is, of the same kind of species with those comprehended by the preceding limited and confined terms." The maxim is a more specific application of the broader maxim "noscitur a sociis," which means that general and specific words which are capable of an analogous meaning being associated together take color from each other, so that the general words are restricted to a sense analogous to the less general. [Cases omitted] Id. The rule aids in the construction of a statute which enumerates specific items of a class, which is not exhausted by the enumeration, and which concludes the series with a general term descriptive of the class. State v. Town of Davie, 127 So.2d 671, 673 (Fla. 1961) Here, that portion of the statutory definition which describes forms of treatment which may be used in optometry provides: "Optometry" means . . . the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any sufficiencies or abnormal conditions of the human eyes and their appendages. (e.s.) 463.002(4), F.S. The rule of ejusdem generis applies, since the enumerated forms of treatment constitute a class not exhausted by the enumeration. The general description (which follows the series), "any other means or methods," must, therefore, be construed as meaning forms of treatment of the same kind or species as those enumerated. See, Hanna Sunrise Recreation, Inc. 94 So.2d 597 (Fla. 1957). Legend drugs, which can be invasive or intrusive, operate at the cellular level and are not of the same kind or species as the enumerated forms of treatment. The use of legend drugs by optometrists to correct, remedy, or relieve any insufficiencies or abnormal conditions of the eyes exceeds the scope of optometry, as defined by Florida law. The proposed rule implicitly authorizes such use and is, therefore, invalid. If the Legislature Intended to Authorize Optometrists to Prescribe and Use Legend Drugs in the Practice of Optometry It Would Have Expressly Stated It. If the 1939 legislature had intended to authorize optometrists to, prescribe and use legend drugs--something it never before permitted--it would have expressed this intent in clear and unmistakable terms. In 1939, the granting of such power to optometrists would have been a complete reversal of prior legislative policy and would have greatly expanded the scope of optometry in Florida. Such an expansion would have been inconsistent with the definition and scope of optometry as commonly understood, and as understood by optometrists themselves. Furthermore, the 1939 amendment uses language which, among optometrists and ophthalmologists, conveys specific meaning. Assigned this meaning, the 1939 amendment (redefining the scope of optometry) does not expressly, or by reasonable inference, authorize optometrists to prescribe or use legend drugs in the practice of optometry. Authorization to Prescribe and Use Legend Drugs Must be Affirmatively Granted by Statute, Not Agency Rule. Section 458.305(3), F.S., part of the Medical Practice Act, defines the "practice of medicine" in broad and all- encompassing terms. Recognizing the reach of this definition, the legislature specifically exempted from the Medical Practice Act: Other duly licensed health care practitioners acting within their scope of practice authorized by statute. (e.s.) 458.303(1)(a), F.S. so to the extent other health care practitioners, such as optometrists engage in acts that would fall within the broad definition of "practice of medicine," such persons will not be in violation of Chapter 458 (and subject to unauthorized practice of medicine charges) as long as their acts fall within their scope of practice authorized by statute. The legislature defined, in similar manner, those persons who may write prescriptions for legend drugs in Florida. Chapter 465, F.S., the Florida Pharmacy Act, makes it a third degree felony for any person to sell or dispense legend drugs without first being furnished prescription. 465.003(7),465.015(2)(c), F.S. "Prescription" is defined as any order for legend drugs "by a duly licensed practitioner authorized by the laws of the State to prescribe such drugs." (e.s.) 465.003(13). In the instant case, the BOARD acknowledges that it has never relied on any particular or specific phase in Chapter 463 as authorizing optometrists to prescribe and use legend drugs. Indeed, it asserts that: [S]tatutory authority alone is insufficient to permit optometrists to use drugs. The scope of practice of optometry (including what is taught in the schools and colleges of optometry) must be considered. The Board of Optometry is responsible for determining the scope of practice. (BOARD'S Proposed Final Order, proposed finding no. 188). It repeatedly asserts that it is the BOARD which defines the scope of practice of optometry, and that the definition is continually evolving. (BOARD's Proposed Final Order, proposed finding no. 194.) It broadly interprets the comprehensive "any other means or methods" language of Section 463.002(4) as including any means or methods taught by schools of optometry and recognized as standard methods by the BOARD. (BOARD's Proposed Final Order, proposed finding no. 50) The BOARD fails to comprehend the limits of its power. It may only adopt rules consistent with Chapter 463 and for the purpose of carrying out the terms of the statute. 463.005. It may adopt standards of practice for licensed optometrists, Id. But it may not adopt standards which exceed or attempt to expand the scope of optometry as defined by Section 463.002(4). There may be, as the BOARD argues, good reasons for expanding the bounds of optometry, but the power to do so rests with the legislature, not the BOARD. Here, the statute does not authorize optometrists to prescribe or use legend drugs in their practice. The BOARD cannot adopt a rule which attempts to supply this authority. The proposed rule, standing alone, can neither add to nor vary the scope of practice defined by Section 463.002(4), F.S. See, 458.303(1)(a), 465.003(13), F.S. Comparison of Chapter 463, F.S. With Statutes Regulating Other Health Care Practitioners. There is further support for the proposition that if the legislature had intended to authorize optometrists to prescribe and use legend drugs, it would have done so in clear and unmistakable language. It left little room for doubt when it enacted laws granting this authority to other health care practitioners when these statutes are examined, a common legislative scheme emerges: Each grant of authority is accompanied by a legislative restriction-- making the misuse of drugs an explicit ground for disciplinary action. 3/ See, statutes regulating the Professions of Medical Practice, 458.305(3), 458.331(1)(q); Osteopathy, 459.003(3), 459.015(1)(q); Podiatry, 461.003(3), 461.013(1)(p); Naturopathy, 462.01, 462.14(1)(h); Dentistry, 466.003, 466.017, 466.028(1)(q); Veterinary Medical Practice, 474.202(4), 474.214(1)(z), (aa), F.S. Yet, Chapter 463 does not--either in the definition of optometry or in any disciplinary provision--clearly authorize optometrists to prescribe and use legend drugs in their practice. Indeed, misuse of legend drugs (by an optometrist inside or outside of his or her scope of practice) is not specified as a ground for discipline. The clear implication is that the legislature did not intend to authorize optometrists to prescribe and use legend drugs in their practice. If it had intended to do so, it is likely that it would have followed the same statutory scheme it used to grant such authority to other health care practitioners. Scope of Optometry Is Defined by Statute, Not Various Schools of Optometry. As mentioned earlier, the BOARD urges that it is empowered to define and change the scope of optometry, based on what is taught in the various schools of optometry and what it approves as standard means and methods. This is not a permissible construction of Section 463.002(4), F.S., which defines the scope of optometry. The statutory definition does not expressly, or by reasonable inference, relate to what is taught in the schools of optometry. If the legislature had intended such a result, it would have stated it--as it did in the law regulating osteopathic medicine. From at least 1941 to 1978, the scope of osteopathic medicine was defined as that system or school of medicine which "is taught and practiced in the standard colleges of osteopathy and Surgery . . . ." 459.01, F.S. (1975). "Standard colleges of osteopathy" were defined in terms of the educational requirements which must be met before one could obtain a degree of doctor of osteopathy. 459.08, F.S. (1975). Less Weight Given Other Statutory Rules of Construction. In construing Chapter 463, F.S., and under the particular circumstances of this case, less weight is given other, countervailing, rules of statutory construction. While deference is accorded an agency's rule interpreting the statute in its charge, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981), such deference applies only to permissible interpretations. Id. The weight to be given an agency's current interpretation may be affected by its past interpretations to the contrary. Moreover, deference to an agency's interpretative power can never be used to justify a rule which is beyond its authority to adopt. Although a Florida Attorney General's opinion is entitled to great weight in construing statutes, State v. Office of Comptroller, 416 So.2d 820 (Fla. 2d DCA 1982), where the opinions are conflicting and unclear--as they are in this case--they should be accorded less weight. Deference is also accorded a rule which has been in effect for several sessions, without interference from the legislature or its Administrative Procedures Committee. Jax Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, 388 So.2d 1306 (Fla. 1st DCA 1980). But this principle has less effect when applied, as here, to an agency's policy statement never promulgated as a rule or subjected to the public notice and scrutiny requirements of Section 120.54, F.S. Finally, legislative action--propose or defeated--may aid in construing a statute. 30 Fla. Jur., Statutes 103. But, in the instant case, recent legislative activity is inconclusive and provides little guidance to the correct interpretation of the statute. The 1975 statute creating the Study Commission sheds little light, Since the statute took a neutral position; and the Commission which subsequently studied the question took no definite position, and recommended no action. Proposed Rule 21Q-3.10 Is Invalid, in Its Entirety. Proposed Rule 21Q- 3.10, in its entirety, constitutes an invalid exercise of delegated legislative authority. The rule--which purports to regulate the prescription and use of legend drugs by optometrists in the practice of optometry--clearly implies that optometrists have such authority under Chapter 463, F.S. They do not, and the BOARD has no power to confer it. Although subsection (2) of the rule does not expressly regulate the use of drugs by optometrists, it directly relates to the remaining--and--objectionable--portions of the proposed rule. There is no evidence that the BOARD intended to adopt subsection (2) without the accompanying subsections (3)(4), and (5). Under these circumstances, subsection (2) is also invalid. III. Unnecessary to Determine Validity of Economic Impact Statement. The adequacy of the BOARD's economic impact statement is not reached since the proposed rule which it addresses is deemed an invalid exercise of delegated legislative authority. The Board's 1975 Policy Statement on the Use of Drugs by Optometrists is an Invalid "Rule." Section 120.52(15), F.S. defines a rule as: (14) . . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures or practice requirements of an agency and includes any form which imposes any requirement or Solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule . . . . An agency's characterization of its statement is not controlling. If the statement is intended, by its own effect, to create rights, require compliance, or otherwise have the direct and consistent effect of law, it is a "rule," and invalid unless adopted in accordance with the rulemaking procedures of section 120.54, F.S. See, State Department of Administration v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1977); State Department of Administration v. Stevens, 344 So.2d 291 (Fla. 1st DCA 1977). One of the goals of the Administrative Procedure Act was to abolish invisible policymaking--those "unwritten rules" which agency's can adopt, change, and enforce with unrestrained dis-cretion. Straughn v. O'Riordan, 338 So.2d 832, 834 (Fla. 1976). In the instant case, the BOARD's 1975 policy statement on the use of drugs by ptometrists announced its interpretation of Chapter 463, and an attendant disciplinary policy, which it would follow in the future. This statement was generally applicab1e addressed and disseminated to all licensed optometrists in Florida. The BOARD intended that it be used and relied on in the future; optometrists were told that it was an important BOARD statement which they should read and retain for future reference. It was intended to create rights and require compliance. It effectively informed all licensed optometrists in Florida that they could lawfully prescribe and use legend drugs in their practice; and that if they did So providing they were individually competent, no disciplinary action would be taken against them. The statement was not incipient or emerging agency policy. See, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), It was not announced tentatively, or in uncertain terms, and it has remained--intact and unchanged-- as a statement of BOARD policy since 1975. This 1975 policy statement is thus a "rule" within the meaning of Section 120.52(15), but was not adopted as such in accordance with Section 120.54 rulemaking procedures, It was adopted with lightning-like effect, without notice to affected persons, without providing them opportunity to comment or participate, and without eventual publication in the Florida Administrative Code. Hence, the BOARD's 1975 policy statement, dated November 12, 1975, constitutes an invalid exercise of delegated legislative authority. Adoption and Rejection of Proposed Findings of Fact. The parties submitted proposed findings of fact which have been considered and, when appropriate, Incorporated in this order. To the extent they are not incorporated, they are rejected as not supported by the weight of credible evidence, subordinate, cumulative, immaterial, or unnecessary to resolution of the issues presented. Extensive findings were proposed pertaining to the training and education of optometrists; their ability to safely prescribe and use legend drugs in their practice; and the extent to which they have used--or now use--legend drugs in their practice, including their record of performance. Proposed findings on these subjects are rejected as immaterial to the dispositive issue--the BOARD's authority vel non to adopt a rule which, expressly or impliedly, authorizes optometrists to prescribe and use legend drugs in their practice of optometry. Based on the foregoing, it is ORDERED: That the Amended Petition to Invalidate Agency Rules, dated September 15, 1983, is granted. Accordingly, Proposed Rule 21Q-3.10, as proposed by the BOARD and filed with the Department of State, is declared an invalid exercise of delegated legislative authority; and The BOARD's written policy statement on the use of drugs in optometry, dated November 12, 1975, is declared an invalid exercise of delegated legislative authority. DONE and ENTERED this 22nd day of March, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 22nd day of March, 1984
Findings Of Fact Respondent, Jay S. Reese, is a physician in family practice in Temple Terrace, Florida. He holds license number ME 0014119 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. Reese graduated from the Indiana University of Medicine in 1961. He became licensed in the State of Florida in March 1969 and has practiced in the Tampa area since 1972. He is on the active medical staff of the University Community Hospital in Tampa and enjoys an excellent professional reputation with his peers. He has been considered by some to be an "outstanding physician" in his field. Indeed, one of those physicians who testified against Reese in this proceeding characterized him as being a "very capable physician." Respondent has had a long and sincere interest in drug abuse problems since the late 1960s when he served in the U.S. Navy. Thereafter, he became affiliated with a drug clinic in Winter Haven, Florida, which provided assistance to drug abusers. When he moved to Tampa in 1972 he continued his efforts to fight drug abuse by serving on the Department of Health and Rehabilitative Services Advisory Council for Drug Abuse, and on the board of the Drug Abuse Comprehensive Coordinating Office (DACCO) for Tampa and Hillsborough County. He was also on the steering committee which founded the Hillsborough County Alcohol Community Treatment Services in 1979. He is in frequent contact with various law enforcement authorities and judges in Hillsborough County in association with this work. Because of his involvement with drug and alcohol abuse clinics, Reese has often taken care of patients who have had alcohol or drug addiction or habituation problems. This group of patients is considered to be the most difficult to treat. It is not uncommon for such patients to claim they lost their prescriptions, alter prescriptions, steal blank pads from a physician's office, buy and sell drugs on the streets, or to be seeing more than one physician at the same time. In view of this, few physicians are willing to assume the inherent difficulties associated with a former addict or alcoholic. Nonetheless, Reese has opened his doors to the former drug addicts and alcoholics who are in need of medical treatment because of his concern and interest in this field. In light of his longtime volunteer work in the drug abuse area, it came as a surprise to Reese when petitioner filed a lengthy administrative complaint charging him with prescribing excessive and inappropriate amounts of controlled substances to numerous patients for non-medically justified purposes and not in the course of his professional practice. 1/ This prompted the instant proceeding. As narrowed during the course of the hearing and by subsequent pleadings of petitioner, the charges involve thirteen patients treated by Reese at varying times between 1979 and 1982. Most, if not all, had a history of prior alcohol or drug addiction or habituation problems. Nonetheless, they had legitimate medical problems requiring the attention and care of a competent physician. The quantities and duration of controlled substances given to the thirteen patients are set forth in petitioner's exhibits 2-8 and 10-15 received in evidence. Nine patients received controlled substances (dilaudid, percodan, demerol, mequin and percocet) for the treatment and management of pain, three were given quaalude exclusively, and a fourth received both quaalude and sapor. The latter four patients suffered from legitimate sleeping problems which necessitated the prescriptions in question. In treating these patients, Reese acted prudently and honestly, and used his best medical judgment to select the type and amount of drug prescribed. All were given thorough physical examinations and necessary periodic follow-up checks. Those patients for whom Dr. Reese prescribed painkilling controlled substances had various ailments which inflicted pain on the patient in varying degrees of severity and duration. All medical problems were legitimate in nature, and the testimony did not establish otherwise. Dr. Reese's treatment was in accord with mainstream medical opinion that the utilization of controlled substances in the management of patient pain is appropriate. The prescription of controlled substances for various types of pain will depend on the severity of the pain and the response of the individual, among other factors. Authoritative medical literature declares that pain should be treated and should be treated early. In the absence of an alternative therapy, narcotic drugs should not necessarily be withheld from the patient. Each patient must be individually evaluated and continually evaluated during the doctor-patient relationship. The results of such treatment should be continually monitored. Because pain can be psychologically and physically debilitating, it should be brought under control as quickly as possible. To do so requires a subjective evaluation by the physician of the patient since there is no prescribed or defined procession through which a physician goes in determining the strength of pain medication. Generally, a doctor will prescribe smaller amounts of medication when first treating a patient, and once he gets to know the patient and his condition, a physician will schedule longer intervals between visits and larger quantities of drugs with more frequent refills. This is true since once a situation is under control, there is no reason to have the patient come to the office on a frequent, recurring basis. In treating pain, a drug of greater potency and potential for abuse should not be ignored in favor of a less potent drug, simply by virtue of the former drug's potential for abuse. In this regard, a physician achieves a better pain control with Schedule II medications than with Schedule III medications. The bottom line is the treating physician's medical judgment, that is, his judgment as to how severe the pain might be as he interprets it and what medication can achieve the best results. Pain control is the most difficult area to quantitate by virtue of the manner in which patients react to pain under medication. The prescription of drugs by a competent physician for the management of pain is a legitimate medical objective. The use of quaaludes for sleeping disorders was shown to be medically justified. Although some physicians do not ascribe to its use, it is nonetheless an appropriate drug for certain diagnoses, and was not shown to be inappropriate for patient numbers 5, 7, 13 and 14 as to either quantity or duration. Petitioner presented the testimony of two physicians who were accepted as experts for this proceeding. Their evaluation of the treatment given by Dr. Reese was based only upon a review of the patient records. They did not interview the patients, or meet with Dr. Reese to discuss his prescribing regimen. They had never actually seen or treated the patients. They generally concluded that Reese had not acted as a reasonably prudent physician or in accord with the level of care, skill and treatment which is recognized by a reasonably prudent physician in the Hillsborough County area. In short, they supported the relevant allegations in the administrative complaint. In contrast, experts presented by respondent painted a completely different picture and found no violations of applicable statutes, rules or standards of conduct. Indeed, they praised respondent for his willingness to treat this most difficult type of patient, and his dedication to the medical profession. It is noteworthy that the experts on both sides had minimal experience in treating patients who abuse alcohol and drugs, and in any event far less than the experience of Reese. It is a well-accepted fact in the medical community that as between two equally competent physicians, one of whom treats the patient and one of whom looks at records after the fact, the former physician will have substantially greater knowledge and "feel" of the treatment result than one merely looking at records. Given this fact, and the more persuasive testimony of respondent's experts, it is found that no deviation from the level of care, skill and treatment of the patients in question has occurred. It is further found that the drugs were in appropriate quantities and duration, were for medically justifiable purposes, and were not prescribed outside the course of Reese's medical profession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Dr. Jay S. Reese be DISMISSED with prejudice. DONE and ENTERED this 10th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of February 1984.
Findings Of Fact The Respondent is, and was in 1987, a licensed physician in the State of Florida, having been issued license number ME 0010823. The Respondent has been continuously registered with the Drug Enforcement Agency since 1971, having been issued DEA number AS4805668. Rugby Laboratories, Inc., of New York is a distributor of pharmaceutical and medical supplies. On March 23, 1987, Rugby Laboratories, Inc., shipped to the Respondent 500 0.15 gm. tablets of Doriden and 300 30 mg. capsules of Ionamin. On July 21, 1987, Rugby Laboratories, Inc., shipped to the Respondent 200 500 mg. capsules of Placidyl. On September 4, 1987, Rugby Laboratories, Inc., shipped to the Respondent 200 15 mg. capsules of Dalmane. Doriden is a trade name for tablets containing the controlled substance glutethimide, a Schedule III drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. Ionamin is a trade name for a capsule containing the controlled substance phentermine, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts to stimulate the central nervous system and elevate blood pressure. Placidyl is a trade name for a capsule containing the controlled substance ethclorvynol, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. Dalmane is a trade name for a capsule containing the controlled substance flurazepam, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. The drugs described above were ordered by the Respondent for use by himself and his girl friend. The drugs described above were received by the Respondent and at least some of those drugs were used by the Respondent and his girl friend. 1/ The Respondent does not have any medical records for himself or for his girl friend. 2/ The Respondent was unable to produce any such records when the Department of Professional Regulation requested such records some time after March of 1990.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect: Dismissing Counts One and Four of the Amended Administrative Complaint; Concluding that the Respondent has violated subsections (q) and (r) of Section 458.331(1), Florida Statutes (1987), as charged in Counts Two and Three of the Amended Administrative Complaint; and Imposing an administrative penalty comprised of (i) an administrative fine in the amount of one thousand dollars ($1,000.00), (ii) a requirement that the Respondent attend one or more continuing education courses on the subject of legal and ethical issues associated with the prescription of controlled substances, and (iii) a public reprimand of the Respondent for the violations described above. DONE AND ENTERED this 20th day of January, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1993.
Findings Of Fact Respondent, William van der Velden, was at all times material hereto a licensed pharmacist in the State of Florida, having been issued license number 0017023. During the month of October, 1985, while employed as a relief pharmacist at Lakeside Pharmacy, Pompano Beach, Florida, Respondent personally placed a flyer on the door of approximately 100 neighborhood residents which read as follows: We make house calls! I can cut your medical costs and save you hundreds to thousands of dollars each year! Now, you may not have to see your physician in order to be issued a prescription and then make a second stop at a pharmacy to have the prescription filled. According to a new Florida Law, I can issue you a prescription and fill that prescription in the nearby Lakeside Pharmacy. And if your [sic] can't get out of the house, I even make house calls. And I can bring you your medicine when I make my next visit. I am Dr. William van der Velden, Doctor of Pharmacy and Certified Consultant Pharmacist. I am an expert in the knowledge and usage of all Prescription Medicines, Patent Medicines, Vitamins and Nutrition. I can answer all of your medicine questions. Questions like: Are there any serious side effects to my medicines? What interactions should I watch out for? Are there newer or better medicines for my condition? Are there less expensive medicines that will work just as well for my condition? What about generics? How long should I expect to take this medicine? Get the most out of your prescriptions, vitamins and nutrition. Make sure they all work well together. By having your medication regimen tailor-made to individual requirements you will ... Gain better health Save money by taking only the medicines best suited for you. Don't buy inappropriate remedies in a supermarket. Some Patent Medicines may do more harm than good. First call me -- The Medicine Expert. I can either treat you or, if necessary, refer you to an equally well qualified physician. At Home Consultations allow me to look at the whole patient and then prescribe the best medicines for your condition. Call for an appointment today and start feeling healthier, wealthier and wiser about your medicines. I do make house calls! Call 782-0580 or 946-1717 The impetus for Respondent's action was, in his words: The store was not doing well in filling prescriptions, so the idea of prescribing was thought a means to possibly increase the volume of prescriptions . . . Respondent's efforts apparently engendered no interest except that of the Broward County Sheriff's Office, Organized Crime Division. On December 16, 1985, Detective Debra Slocum placed a telephone call to the number advertised on the flyer, 946-1717, 1/ and spoke with the Respondent at his residence. She informed Respondent that she had one of his flyers, that she was suffering from anxiety and insomnia because of a bad divorce, and requested an appointment. Respondent advised Detective Slocum that he worked through Lakeside Pharmacy and that she should call there to make an appointment with him or his associate, Bob Rideman. 2/ Later that day, Detective Slocum called the pharmacy and spoke with Mr. Rideman, who had been alerted by Respondent to expect her call. Following that conversation, Detective Slocum met Mr. Rideman at the pharmacy and, without benefit of a prescription, was given two tablets of Ergoloid. Ergoloid is a medicinal drug which requires a prescription to be dispensed. Respondent avers that his actions were authorized by Section 465.186, Florida Statutes, since they occurred subsequent to October 1, 1985. Respondent's assertion demonstrates an appalling lack of comprehension of the English language or a blatant fabrication. Section 465.186, Florida Statutes, effective October 1, 1985, provided: Pharmacist's order for medicinal drugs; dispensing procedure: development of formulary.- There is hereby created a committee composed of two members of the Board of Medical Examiners licensed under chapter 458 chosen by said board, one member of the Board of Osteopathic Medical Examiners licensed under chapter 459 chosen by said board, three members of the Board of Pharmacy licensed under this chapter and chosen by said board, and one additional person with a background in health care or pharmacology chosen by the committee. The committee shall establish a formulary of medicinal drugs which may be made available to the public upon the order of a pharmacist which is issued pursuant to a dispensing procedure established by the committee for each drug contained in such formulary. . . * * * The Board of Pharmacy, the Board of Medical Examiners, and the Board of Osteonathic Medical Examiners shall adopt by rule a formulary of medicinal drugs and dispensing procedures as established by the committee. A pharmacist may order and dispense a product from the formulary pursuant to the established dispensing procedure, as adopted by the boards, for each drug in conjunction with its inclusion in the formulary. Any drug product ordered by a pharmacist shall be selected and dispensed only by the pharmacist so ordering, and said order shall not be refilled, nor shall another medicinal drug be ordered for the same condition unless such act is consistent with dispensing procedures established by the committee. (Emphasis added) Not until May 1, 1986, was a formulary of medicinal drugs and dispensing procedures established. Rule 21S-18.001-18.004, Florida Administrative Code. Accordingly, pharmacists had no authority in 1985 to issue prescriptions, treat patients, or prescribe medicinal drugs, and Respondent could not have reasonably believed otherwise.
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaint dated March 3, 2000, and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Robert Gibson McLester, III ("McLester") is a licensed pharmacist 2 with a heretofore unblemished record. McLester graduated from the University of Florida with a degree in pharmacy in August 1977. He was licensed by the State of Florida to practice pharmacy in February 1978. He currently holds an Alabama pharmacy license, and was previously licensed in Mississippi but at some point ceased to pay the state's licensing fee; the license thus lapsed by operation of law. McLester received a Master of Science degree in hospital pharmacy from the University of Mississippi in December 1987 and a Master of Health Care Administration from the same institution the following May. McLester entered the Navy as an aviator cadet in June 1965, and was commissioned as a naval aviator in February 1967. He flew 103 missions with Attack Squadron 147 and was honorably discharged as a lieutenant in December 1970. Following a brief stint in the insurance and investment business, McLester applied unsuccessfully to medical school. McLester entered the University of Florida's pharmacy school in September 1974 and following his graduation in August 1977, has been continuously employed as a pharmacist when not pursuing advanced degrees in pharmacy and related fields. Much of McLester's pharmacy employment has been in the Navy, which he reentered in February 1978 as an ensign in the Medical Service Corps. McLester served in a variety of posts before retiring as a lieutenant commander in August 1992, including at the National Naval Medical Center in Bethesda, Maryland, where he supervised in excess of 25 pharmacists and pharmacy technicians in the preparation of an average of 1600 outpatient prescriptions per day. McLester continued the practice of pharmacy as a civilian, working briefly as a relief pharmacist for the Eckerd Drug chain in the Vero Beach area before being hired full time by Winn-Dixie in August 1992. Under McLester's supervision, Store No. 2358 enjoyed high sales volume and was used as a training site for other Winn-Dixie pharmacies. At all times during McLester's employment at Winn- Dixie, reports of annual inspections of his pharmacy conducted by the Agency for Health Care Administration ("AHCA") pursuant to law showed no deficiencies of any kind. McLester worked at the Winn-Dixie Store No. 2358 until June 17, 1998. McLester's separation from Winn-Dixie was voluntary. McLester left Winn-Dixie because he considered the hours assigned to him by his new supervisor, Steve Howard ("Howard") to be "slave hours." Following McLester's departure, sales and customer satisfaction at Store No. 2358 deteriorated. For most of the time relevant to this case, McLester was responsible for filling in the neighborhood of 150 prescriptions per day. That number placed his store at the high end of Winn- Dixie pharmacy productivity. 3 During the course of his employment at Winn-Dixie, McLester had occasion to report approximately a dozen instances of prescription drug fraud to the authorities, including St.Lucie County Detective Scott Silverman (Silverman). Following his resignation from Winn-Dixie, McLester worked briefly with various services which would find him work as a relief pharmacist. On the instructions of Howard, McLester was not permitted to work at any of the Winn-Dixie stores in the area. In October 1998, McLester found full-time employment with Doctors' Clinic Pharmacy in Vero Beach, a "closed pharmacy" which serves only the patients of that multi-specialty practice. During his term of employment at Winn-Dixie, McLester was assisted by about a half dozen pharmacy technicians. Pharmacy technicians are licensed by the state and must work under the close supervision of a registered pharmacist. Tasks which the law permits to be delegated to pharmacy technicians and which, in fact, are typically delegated to a pharmacy technician include ordering drugs, including controlled substances; receiving drugs and other inventory; counting and transferring drugs from their original containers to packages for individual prescriptions; shelf maintenance; department maintenance; and stocking shelves. Other tasks which pharmacy technicians may legally perform, and which were in fact performed by technicians at Winn-Dixie stores, include logging invoices into the computer system for payment; verifying orders shipped into the store; answering telephones; taking refills from patients or doctors provided that there is no change in any element of the prescription (i.e. instructions to the patient, dosage, etc.); requests to doctors to issue new prescriptions on behalf of a patient; preparing labels and delivering filled prescriptions to the pharmacist for final verification. Because of the nature of the tasks delegated to pharmacy technicians, the relationship between pharmacist and technician must be one of, as several witnesses testified, implicit trust. McLester trusted all of the pharmacy technicians with whom he worked at Winn-Dixie. One of the Winn-Dixie pharmacy technicians, Tonya Tipton ("Tipton") betrayed McLester's trust, along with the trust of the State of Florida which licensed her, Winn-Dixie which employed her, and several other pharmacists under whose supervision she worked. Weeks after McLester left Winn-Dixie, Tipton's betrayal of trust was discovered. Soon after, she was fired from Winn-Dixie and subsequently arrested for crimes she allegedly committed in and against the Winn-Dixie pharmacy. Tipton's arrest set in motion a chain of events which led to this Administrative Complaint. Following a work-related injury suffered in the early 1990s, Tipton developed a dependence upon prescription painkilling medication, including the narcotic nasal spray Stadol.4 Unbeknownst to anyone, Tipton devised a scheme by which she could steal Stadol from Winn-Dixie, and also obtain Stadol under a forged prescription. At all times prior to Tipton's firing from Winn-Dixie, she was a trusted employee. Tipton fell under suspicion when she stated to a co- worker that a package would be arriving the following day and that it should not be opened. Store employees opened the package nevertheless and discovered it contained Stadol. Thereafter, a fellow pharmacy technician followed Tipton into the ladies' room and discovered empty bottles of Stadol in the wastebasket. Confronted by store employees about her inappropriate instruction to the co-worker not to open the package, as well as the empty Stadol containers in the ladies' room, Tipton admitted only to taking one bottle of Stadol from the Winn-Dixie pharmacy. Abundant circumstantial evidence suggests that Tipton's dependence upon Stadol led her to commit more than the one offense to which she admitted. McLester had been the primary pharmacist on duty at Store No. 2358 during many of the shifts when Tipton was alleged to have illegally obtained Stadol. Following a criminal investigation by Detective Silverman and the arrest of Tipton, McLester's former supervisor, Howard, lodged a complaint against McLester with the Board of Pharmacy. In his letter of complaint, Howard characterized his complaint as an effort to protect the interests of Winn-Dixie "in case this problem was found out." Howard claimed that Mostafa Macida ("Macida"), who had replaced McLester as the store's primary pharmacist,"discovered" that Stadol was being stolen from the pharmacy but this testimony is rejected as inconsistent with the testimony of numerous individuals who, unlike Howard, had personal knowledge of the events surrounding Tipton's arrest. Macida suspected nothing and discovered nothing. Tipton's employment at Winn-Dixie began in February 1995 when she was hired as a pharmacy technician by McLester.5 In that capacity, Tipton worked not only with McLester, but also with then-Head Technician Ava Forsythe (Forsythe). Forsythe trained Tipton in the technicians' duties, including the various methods by which prescription drugs, both controlled and non-controlled, may be ordered. At all times relevant to this case, there are three ways in which Winn-Dixie pharmacies may procure drugs and medical supplies requiring prescriptions for resale to the public. The primary system is a computer-generated daily order. The system was referred to by many witnesses as "the PDX system" ("PDX"). Technicians, working under the supervision of the pharmacist, would review the order to verify that the required types and quantities of supplies were being ordered. When the order was deemed complete, "the button was pushed" and the order electronically transmitted to Winn-Dixie's major drug supplier, Bindley-Western.6 In theory, the computer would accurately track stock in over 2,000 line items. The computer was supposed to automatically add to the inventory based upon what was ordered, and subtract based upon records of what was actually dispensed to customers. In reality, the computer-generated inventory was corrupt on a daily basis. Because of the PDX system's unreliability, technicians often had to make adjustments by hand so that the computerized records would match what was actually in stock. Orders could also be manually keypunched into a unit called a Telxon, which also transmitted orders to Bindley- Western. The Telxon unit is portable. The size of a telephone, the Telxon unit at Store No. 2358 was generally kept in a drawer when not being used. Finally, drugs can be ordered from Bindley-Western and/or from one of two secondary suppliers used by Winn-Dixie from any telephone, whether or not the telephone is located in a Winn-Dixie store. None of the systems used by Winn-Dixie, either singly or in combination, had the ability to flag the fact that hundreds of bottles of Stadol had been ordered and paid for by Winn-Dixie, yet not placed on the shelves as pharmacy inventory in Store No. 2358, during the period of Tipton's employment. Under Winn-Dixie's system, it is possible for a pharmacy technician to order medications unbeknownst to the pharmacist, to have them paid for by Winn-Dixie, and to physically divert them to his possession before the medications were logged in to pharmacy inventory. Once drugs are properly entered into inventory, it is reasonable to expect that the pharmacist could be aware of large amounts of a drug being stolen from the inventory. Any single incident of placing unauthorized drug orders could take place in the two or three minutes the duty pharmacist might be absent to go to the restroom, or have his attention diverted for any reason. Silverman is an experienced police officer, having served for over two decades in various law enforcement positions in Florida. For nearly five years Silverman has been exclusively assigned to work with pharmacies and other law enforcement agencies in St. Lucie County. Silverman's job is to assist in the prevention and prosecution of crimes involving the misuse of prescription drugs. Silverman's involvement in this case began when Tipton sought him out. Tipton knew Silverman because her husband is a fellow St. Lucie County detective, and Tipton herself was a sworn St. Lucie officer. Tipton approached Silverman to confess that she had taken a bottle of Stadol from the Winn-Dixie store where she worked. Tipton's confession was not provoked by an attack of conscience. Rather, after she was fired by Winn-Dixie, she began damage control. As Silverman's investigation progressed, substantial effort was made to determine how Tipton had diverted Stadol and what, if any, other crimes may have been committed. Documents collected in the course of the investigation revealed that Tipton had developed a dependency on prescription painkillers dating to a back injury in 1990 in which she suffered a herniated disc. Tipton developed a dependency on Stadol in 1996, after dealing with pain related to the 1990 injury. Tipton claimed to Winn-Dixie security supervisor Robert Blakely ("Blakely") that she had told McLester of the problem, and that he referred her to her doctor for help. Ultimately, Silverman arrested Tipton on 17 counts of insurance fraud and one count of felony possession of a controlled substance. No evidence was offered regarding the disposition of Tipton's case. No evidence was presented of what, if any, effort was made to determine from Tipton if McLester had any complicity in her crimes. It was clear to Silverman that while Tipton had figured out a way to illegally divert Stadol to her unauthorized use, as of the date of the final hearing, "nobody knows how it was done." 7 There was conflicting testimony as to precisely how much Stadol was diverted by Tipton over the relevant period of time but Tipton's ability to obtain the drug through the use of fraudulent prescriptions and outright theft was audacious in scale. Stadol was a legend drug until June 1997 when the Drug Enforcement Agency upgraded its status to a Schedule IV controlled substance. Prior to October 19, 1996, Tipton had a legitimate prescription for Stadol. On that date, Les Gessley ("Gessley"), a relief pharmacist at Store No. 2358, approved a new Stadol prescription for Tipton under a legend number. Tipton used this approved prescription number subsequently when she herself prepared numerous unauthorized refills under this same number. Each of these unauthorized refills was listed on daily pharmacy logs certified mostly by McLester, but also by other duty pharmacists as well. Because these unauthorized prescriptions were refills rather than original prescriptions, the duty pharmacist was not required to personally view the original written prescription. McLester was the pharmacist on duty a majority of the days on which Tipton is believed to have diverted Stadol illegally. Somewhere between ten and twenty percent of the Stadol believed to have been unlawfully diverted by Tipton from Store No. 2358 was diverted after McLester had ceased to be employed there. Some of the Stadol obtained by Tipton under fraudulent prescription at Store No. 2358 was obtained on days when McLester was not the pharmacist on duty. In addition to Les Gessley and Mostafa Macida, other pharmacists on duty while Tipton was believed to have engaged in the criminal diversion of Stadol are Ted Kline and Al Leota. McLester admitted knowing Tipton had a problem with Stadol but did not know the extent of her problem. Forsythe told McLester that she thought there might be some Stadol missing from the shelves. When she shared her concern with McLester, he instructed Forsythe not to leave Tipton alone in the pharmacy. No evidence placed McLester's conversation[s] with Tipton and other parties about her use of Stadol in the context of when Tipton's alleged diversions occurred. According to Forsythe's unrebutted testimony, If you were that desperate you could order any medication you wanted on the Telxon machine or verbally order without knowledge of the pharmacist knowing what you were doing. And then when the medication comes in, you pay the invoice. You throw the invoice away. You throw the copy that you received from the computer away. The invoice is paid. The only person that will know about it will be the person at the headquarters that pays the payment on the invoice without knowing what is on it and the person gets the medication. Take the medication home via however and no one is the wiser. Winn-Dixie has no security procedures in place, such as searching handbags or packages, to prevent employee theft in the pharmacy. Winn-Dixie's ordering system is tailor-made to be abused by individuals who are, in Forsythe's words, "that desperate." It is not illegal for pharmacy technicians to fill their own prescriptions. It is possible for a pharmacy technician to fill or refill a prescription without the pharmacist knowing that had been done if he was absent from the pharmacy or had his attention diverted in some fashion. It appears that Tipton refilled her own fraudulent prescription on a number of occasions, but that her preferred method of diverting Stadol was outright theft. The Winn-Dixie system by which the pharmacies are stocked is flawed in a manner which allowed Tipton to divert Stadol without being detected by the duty pharmacist. The Department failed to show that McLester knew or should have known that Tipton had diverted Stadol to her unauthorized use at Store No. 2358.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges in the Administrative Complaint be dismissed. DONE AND ENTERED this 17th day of November, 2000, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2000.
Findings Of Fact At all times relevant hereto, William E.P. Shaw was licensed as a pharmacist in the State of Florida, having been issued license number 0008802. On January 21, 1986, Respondent, in the United States District Court for the Northern District of Georgia, pleaded guilty and was convicted of the offense of conspiracy to obtain drugs at a low purchase price under false and fraudulent pretenses and representations to various drug manufacturers that drugs were for use in Palms of Pasadena Hospital, St. Petersburg, Fla., which drugs were then diverted from said hospital use and resold at substantial profit, this being done by use of interstate Wire Communications and the U.S. Mail - all in violation of Section 1343, and 1341 and 2 - Title 18, and 371 - Title 18, U.S.C., as charged in the within indictment. (Exhibit 1). At the time of the alleged offense, Respondent was a staff pharmacist at Palms of Pasadena Hospital. Prior thereto he headed a company or group which managed several hospital pharmacies including that of Palms of Pasadena. His contract with Palms of Pasadena Hospital expired in 1984 and was not renewed. Drug manufacturers sell drugs to hospitals at a much lower price than they sell to wholesalers. Respondent set up an account on which the hospital comptroller had check writing authority, and as a pharmacist ordered specific drugs under the hospital's drug account number to be delivered to the hospital. Upon arrival at the hospital these drugs were immediately reshipped to a contact in Miami, who was a licensed drug wholesaler, or to a contact in Atlanta, who was not so licensed. To the hospital's price for the drugs, which was paid by the hospital's comptroller from the account established by Respondent, Respondent added ten percent. This sum was remitted to him by these two purchasers and the account from which the supplier was paid was reimbursed. Respondent testified that he was unaware that his scheme was in violation of the law; however, Respondent was aware that he was defrauding the drug companies and violating the hospital's agreement with these companies to dispense all drugs purchased only to hospital patients. Drugs so ordered and resold by Respondent were primarily prescription drugs slow-K and nitro patches. Following his conviction in the U.S. District Court Respondent was sentenced to three years imprisonment the execution of which was suspended and Respondent was placed on probation for three years, ordered to pay a fine of $7,500.00 and perform 400 hours of community service work (Exhibit 1). At the time of this hearing, Respondent had satisfied the sentence but for the unexpired probation. Respondent has been a licensed pharmacist since 1958 and, but for the federal charge and conviction, has enjoyed a good reputation in the field of pharmacy and in the community in which he lived.
The Issue The issue is whether the Board of Pharmacy (board) should revoke or otherwise discipline the Respondent’s license as a registered pharmacy technician (RPT) because his application for licensure failed to disclose a felony criminal conviction.
Findings Of Fact The Respondent was convicted of the crime of committing a lewd act upon a child in 1996. In 2015, the Respondent took a course at Anthem College, now called Florida Career College, to qualify to be licensed as an RPT in Florida. Towards the end of the course, an application for licensure was submitted to the department. The application required the Respondent to answer the question whether he had been convicted of a crime other than a minor traffic offense. The answer on the application said, “NO.” Based on the application, the department issued the Respondent license RPT 64709 in January 2016. Later, the Respondent’s criminal conviction came to the attention of the department and board, and an Administrative Complaint was filed charging the Respondent with violating section 465.016(1)(a) for obtaining his license by misrepresentation or fraud or through an error of the department or board. The Respondent explained at the hearing that he was not being dishonest and did not willfully obtain his license by fraud or intentional misrepresentation. He testified that he disclosed his criminal conviction to Beth Shelton, his instructor at Anthem, when he went online to create an account to apply for licensure and saw the application and the question regarding his criminal conviction. He testified that she told him his conviction was not an absolute bar to licensure, but that he would have to write a letter explaining the conviction and his rehabilitation from it to submit to the department with his application, along with copies of the court records. The Respondent testified that he put his application on hold and logged out of his account. He testified that the answer on the application at the time he logged out was, “YES.” He testified that he then wrote the letter suggested by his instructor, got the court records, and gave them to her. He testified that he assumed she took care of it for him. He was thrilled when he received his license in the mail in January 2016, and he was crestfallen and dismayed when he received the Administrative Complaint a few months later. Charles Stuard, who was Ms. Shelton’s supervisor at Anthem in 2015, and is now the associate director of education at Florida Career College, testified that it would have been against Anthem’s policy for Ms. Shelton to help the Respondent answer questions on the application or offer to help the Respondent as he said she did. Neither party called Beth Shelton to testify. Some of the Respondent’s testimony could be interpreted as inconsistent, but those possible inconsistencies seemed to arise from misunderstandings and confusion. The essence of the Respondent’s testimony is accepted as true—namely, he was not being dishonest and did not willfully obtain his license by fraud or intentional misrepresentation. The Petitioner did not prove by clear and convincing evidence that the Respondent was dishonest or willfully obtained his license by fraud or intentional misrepresentation, or that the Respondent’s license was issued through an error of the department or board. However, it is clear that the Respondent’s license was obtained by a misrepresentation of fact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pharmacy enter a final order revoking his license RPT 64709, which was obtained by an honest and unintentional negligent misrepresentation, and allowing him to reapply so that the board can consider the true facts regarding his criminal conviction. DONE AND ENTERED this 23rd day of November, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2016.
Findings Of Fact Thomas Lietch, Respondent, is a licensed pharmacist, having been issued license number 0007613 and was so licensed at all times material hereto. On April 11, 1983, Respondent pleaded guilty in the Circuit Court in and for Pinellas County of the offenses of possession of Dextropropoxyphene and possession of a controlled substance outside its proper container. Adjudication of guilt was withheld by the court and Respondent was placed on five years probation. Following the arrest of Respondent on or about January 21, 1983 and before his trial, Petitioner investigated the incident in which Respondent had been arrested for having two Darvon tablets in his pants pocket outside the container in which they were or should have been dispensed. When questioned by the investigator regarding the origin of the Darvon Respondent replied one time that he obtained them on prescription from his doctor and on another occasion replied that he may have obtained them from the pharmacy where he works. The doctor who Lietch stated had prescribed the Darvon was contacted and reported that he may have prescribed Darvon for Respondent when he treated Respondent some time ago; but, if he did, the prescription was written no later than September 1979, more than two years before Respondent's arrest. When this evidence was presented to the Board of Pharmacy the board failed to find probable cause that the Florida Pharmacy Act, Chapter 465, Florida Statutes, was violated. Following Respondent's trial in the Circuit Court the offense here alleged was charged. Respondent presented three witnesses, one of whom owns the pharmacy where Respondent has worked for more than one year. He has had no problem with Respondent's work and considers him a good employee and a competent pharmacist. Another witness is a licensed pharmacist in Florida who opined that possession of two Darvon tablets out of the container in which they were dispensed does not affect the person's ability to practice pharmacy; however if a pharmacist had unauthorized possession of a controlled substance outside the pharmacy that would constitute a violation of the Pharmacy Act. Respondent's third witness was his probation officer who testified that Respondent has fully complied with the terms of his probation and has exceeded the number of hours of community work required by the conditions of probation.
Findings Of Fact Respondent, Norman G. Becker, Jr., is a licensed dentist having been issued license number DN 0002281 by Petitioner, Department of Professional Regulation, Board of Dentistry. He has practiced dentistry in the State since 1958. On or about September 8, 1980, Respondent furnished one William R. Northlick, 101 North Grandview, Mount Dora, Florida, a written prescription for four-ounces of dimethvl sulfoxide (DMSO). Northlick had been a patient of Respondent for approximately ten years, had complained of severe elbow pain, and inquired as to the status of DMSO and where it could be obtained. Respondent told him it was available at a local drug store and advised he could try a small amount. At an undisclosed date in 1980, Respondent was approached by a professional golfer named Gary Weintz who commlained of golfers elbow and who asked about the availability of DMSO. Respondent is active in arranging golf functions on the Professional Golf Association-(PGA) tour and presumably met Weintz, uho is a member of the PGA, in that capacity. Respondent telephoned William Kennedy, a pharmacist at Thayer's Colonial Pharmacy in Orlando, Florida, and asked whether DMSO could be legally prescribed. Kennedy replied that he believed it permissible for Becker to assist Weintz in obtaining the drug and thereafter took a prescription for the same over the telephone. Before filling the prescription, Kennedy required Weintz to sign a patient release form acknowledging that DMSO was a veterinary product and releasing anyone from liability due to its use. Other than the two occasions referred to above, Becker has not prescribed DMSO at any time. He did not charge Northlick or Weintz for his assistance nor did he provide any follow-up care or treatment to either individual. Respondent has never personally used DMSO or applied it to any other patient or friend. Respondent has been a practicing dentist in Florida since 1958, and has lived in Winter Park, Florida, for the last eighteen years. His specialty is periodontics and he was the founder and first president of the Florida Society of Periodontics. He enjoys an excellent personal and professional reputation in the community. This was attested to by Dr. Neil G. Powell, immediate past president of the Florida Dental Association. Other than the present incident, Respondent's record has been exemplary, and he has never been subject to prior disciplinary action. Although Becker wrote the prescription for Northlick on a prescription pad, he did not consider it to be a prescription item". Rather, he considered it the same as when giving customers written instructions for obtaining water piks, electric toothbrushes and other non-prescription items. For this reason, he wrote the words "use as directed" on the prescription pad in lieu of the detailed instructions typically given when writing a normal prescription.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 466.028(1)(z), Florida Statutes, as charged in the Administrative Complaint and that the remaining charge in paragraph 11a be dismissed. It is further RECOMMENDED that Respondent be issued a private reprimand. DONE and ENTERED this 22nd day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of February, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire 130 North Monroe Street Tallahassee, Florida 32301 James F. Page, Jr., Esquire P.O. Box 3068 Orlando, Florida 32802 Salvatore A. Carpino, Esquire 130 North Monroe Street Tallahassee, Florida 32301
