The Issue The issue presented in this case is whether the Respondents', Otmara Pina and Ali's Pharmacy, licenses should be revoked, suspended or otherwise disciplined for allegedly violating the Florida Pharmacy Act, Chapter 465, Florida Statutes, when filling a series of unauthorized prescriptions for a controlled drug.
Findings Of Fact Respondent, Otmara Pina, is a pharmacist licensed by the State of Florida and holds license number 14075. Respondent, Ali's Pharmacy, is owned by Cerardo Vigoa and Pedro Diaz, and is registered as a pharmacy by the State of Florida under permit number 750. Ali's Pharmacy is located at 3825 West Flagler Street, Miami, Florida where Otmara Pina is and has been during all pertinent times the managing pharmacist for Ali's. Between March 1, 1978 and January 4, 1980, Otmara Pina, while engaged in her employment as managing pharmacist at Ali's, filled and dispensed fifteen (15) prescriptions for 10 mg. Valium tablets, with varying refills thereof, to Mrs. Lila Tomlinson. The fifteen (15) prescriptions filled by Otmara Pina for Mrs. Tomlinson bore the name of Dr. Claudio R. Villoch as prescribing physician. None of the fifteen (15) prescriptions were authorized or signed by Dr. Villoch. Pursuant to Section 893.03(4)(h), Florida Statutes, Valium or Diazepam is a Schedule IV Controlled Substance. At the hearing, the Department voluntarily dismissed that portion of the Amended Administrative Complaint involving the dispensing of 426 Lomotil tablets. The Respondents did not dispute the factual allegations of the Amended Administrative Complaint but did present testimony in mitigation of their position. The individual to whom the drug was dispensed by Respondent Pina was an elderly widow with extremely limited resources who suffered from terminal cancer. The drug was dispensed by Respondent Pina in order to alleviate Mrs. Tomlinson's terminal condition rather than for monetary gain. Respondent Pina attempted to contact Dr. Villoch's office and spoke to an unidentified person in the office who verbally authorized a prescription. The Respondents enjoy an excellent reputation in the community and provide a valuable service for the largely Hispanic neighborhood in which they are located.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent Otmara Pina be found to have violated Sections 465.015(2)(c), 465.016(1)(e), and 893.13(2)(a)(1), Florida Statutes, and that pursuant to Section 465.016(2), Florida Statutes, she be placed on probation for one year, be issued a letter of reprimand and be required to take an appropriate continuing education course dealing with procedures to be followed in dispensing controlled drugs. Since no evidence was presented concerning Respondents Vigoa and Diaz, the Amended Administrative Complaint filed against them should be dismissed. DONE and ORDERED this 10th day of July, 1981 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1981. COPIES FURNISHED: William M. Furlow, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Otmara Pina c/o Ali's Pharmacy 3825 West Flagler Street Miami, Florida 33134 Gerardo Vigoa and Pedro Diaz Ali's Pharmacy 3825 West Flagler Street Miami, Florida 33134
Findings Of Fact At all times relevant thereto, respondent, Manuel M. Maralit, held medical doctor license number ME 0033337 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners. Maralit has been licensed as a medical doctor by the State of Florida since September 13, 1978. He has been a medical doctor since graduation from medical school in May, 1967. From January 1, 1983 through September 30, 1983, Maralit practiced medicine in Alachua County, Florida. During that period of time, he filed two unauthorized claims under the Florida Medicaid Program, each having an aggregate value of $200 or more in violation of Subsection 409.325(4)(a), Florida Statutes. He also received one unauthorized payment under the same program having an aggregate value of more than $200.00 in violation of Subsection 409.325(4)(c), Florida Statutes. After an information was filed by the State Attorney on December 13, 1983, Maralit pled guilty to the above three violations, and to a fourth charge of grand larceny. For this, he received twenty years probation, 2,000 hours of community service, a $15,000.00 fine to be paid within 12 months, and was required to make restitution of $2,398.51 to the Department of Health and Rehabilitative Services and $921.00 to the Florida National Bank. According to the official records of petitioner introduced into evidence, Dr. Maralit was subject to prior disciplinary action by the Medical Board in 1982 (DOAH Case No. 81-1367, Final Order entered January 4, 1982). At that time his license was suspended for thirty days, and was placed on probation for one year. The probationary period has long since expired. The violations in that proceeding are not similar in any respect to those charged in this case. There is no evidence as to any damage, physical or otherwise, to specific patients caused by respondent's conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts I and II of the administrative Complaint, and that his medical license be suspended for one year with six months' suspension stayed and his license be placed on three years probation. Count III should be dismissed. DONE and ORDERED this 4th day of December, 1985, 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 4th day of December, 1985.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations that the Respondent has violated subparagraphs (m), (q), and (t) of Section 458.331(1), Florida Statutes, by allegedly failing to keep written medical records justifying the course of treatment of a patient, by allegedly prescribing legend drugs other than in the course of the physician's professional practice, and by allegedly failing to practice medicine with the level of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician.
Findings Of Fact The Respondent is and has been at all times material hereto, a licensed physician, having been issued license number ME 0025256 by the State of Florida. The Respondent has been licensed for approximately forty years and is Board certified in Internal Medicine. He practices Rheumatology. Diazepam is a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. Roxicet is a generic form of Percocet, a legend drug containing oxycodone, a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Seconal is a legend drug containing Secobarbital, a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. The Patient T. P., a 40-year-old male, initially presented to the Respondent on or about May 14, 1991, with complaints of lower back pain and right side sciatica leg pain, which the Respondent treated with various legend drugs. The Respondent's records indicate that the Patient T. P. returned to the Respondent's office on a monthly basis from May of 1991 until April of 1993. On each visit, the Respondent prescribed multiple legend drugs to treat the Patient T. P.'s lower back pain and right side sciatica leg pain. Between December 19, 1991, and April 29, 1993, the Respondent prescribed to the Patient T. P. a total of eleven hundred ninety tablets of 10mg generic diazepam, eleven hundred ninety tablets of Percocet or Roxicet (oxycodone), and four hundred fifty capsules of Seconal. These quantities of drugs prescribed by the Respondent to the Patient T. P. during the course of his treatment were appropriate amounts. On or about April 30, 1993, the Patient T. P. was found dead in a Broward County hotel room of a drug overdose. Empty bottles of Valiums and Seconals prescribed by the Respondent to Patient T. P. were found at the scene of death. 2/ The Respondent did not refer the Patient T. P. to an orthopedic surgeon or to a neurosurgeon. The Respondent's medical records for the Patient T. P. do not contain any documentation of a referral of the patient to an orthopedic surgeon or neurosurgeon. The Patient T. P. had previously been treated by an orthopedic surgeon and the Respondent had in his possession the records related to that prior treatment. The Respondent did perform appropriate neurological and orthopedic evaluations of the Patient T. P. The evidence in this case is insufficient to establish that the Respondent failed to keep written medical records justifying the course of treatment of the Patient T. P. 3/ To the contrary, the persuasive evidence is to the effect that the Respondent's records at issue here, although sparse and brief, were sufficient. 4/ The evidence in this case is insufficient to establish that the Respondent prescribed legend drugs other than in the course of his professional practice. To the contrary, the persuasive evidence is to the effect that the drugs prescribed to the Patient T. P. were reasonable under the circumstances. The evidence in this case is insufficient to establish that the Respondent failed to practice medicine with the level of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician under similar circumstances. To the contrary, the persuasive evidence is to the effect that the Respondent's care and treatment of the Patient T. P. was consistent with acceptable standards of care under the circumstances.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 12 th day of January, 1994 , 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 12th day of January, 1994.
Findings Of Fact At all times relevant hereto, respondent, Cuca Pharmacy, Inc. (Cuca), held community pharmacy license number PH007348 issued by petitioner, Department of Professional Regulation Board of Pharmacy. When the events herein occurred, Hortensia Lopez-Perez was its president and permittee. Its location is 11048 West Flagler Street, Miami, Florida. After the events herein occurred, the pharmacy was closed by emergency suspension order and it has remained closed since that time. In February, 1984 special agent Alberto Fernandez was performing undercover operations in the Miami area for the Drug Enforcement Agency (DEA) for the purpose of enforcing federal narcotic laws. On February 17, he received information from an informant that ten kilograms of cocaine could be purchased for $21,000.00 per kilogram from two individuals named Zayas and Santos. He was told the cocaine was stored at respondent's pharmacy. Fernandez met the two "dealers" in Hialeah but Zayas and Santos were unable to produce any drugs. Consequently, no sale took place. On February 25, Fernandez again received a telephone call from his informant and was told to go to Cuca and meet an individual named Jesus Avila who was interested in selling some cocaine. Fernandez, Avila and the informant met in the rear of the pharmacy where Avila agreed to sell ten kilograms of cocaine to Fernandez for an undisclosed price. They further agreed to meet in a nearby shopping center where Fernandez would show his money and Avila would show the drugs as a good faith gesture. If both parties were satisfied, they agreed to then make the transfer at Cuca. Fernandez went to the shopping center but when Avila did not appear at the designated time, Fernandez returned to Cuca. Respondent's permittee, Hortensia Perez, advised him the drugs were on the way and not to worry. Later on that day, Fernandez received a telephone call from his informant advising that two kilograms had just arrived at Cuca and to return there for the buy. When he returned he met Avila and Lopez-Perez and went to the back of the store. Avila told Fernandez he couldn't sell cocaine that day but could arrange to do so in a few days. On February 29, Fernandez received another telephone call from his informant who advised him that the cocaine was at Cuca and to be there at 3:00 p.m. At the designated time, Fernandez, the informant and Lopez-Perez went to the rear of the pharmacy where Lopez-Perez pulled a clear plastic bag containing a white powdery substance from a metal cabinet and gave it to Fernandez. The transfer of the substance was made without a prescription. Lopez-Perez was then arrested for allegedly violating federal narcotic laws. The contents of the bag were later subjected to a chemical analysis and found to weigh 2.2 pounds (one kilogram) and to be 95 percent pure cocaine hydrochloride, a controlled substance and legend drug which requires a prescription for dispensing. Records of Miami area drug wholesalers introduced into evidence reflected that Cuca had not ordered any cocaine for prescription purposes between 1982 and June, 1984. This was confirmed by testimony from Cuca's prescription department manager. Lopez was charged with one count of conspiring to possess with intent to distribute a controlled substance (cocaine) in violation of Title 21, U.S.C., Section 846, and with one count of possessing with intent to distribute a controlled substance (cocaine) in violation of Title 21, U.S.C., Section 841(a)(1) and Title 18, U.S.C., Section 2. She was found guilty on both counts, and a certified copy of the judgment and probation/commitment order dated August 16, 1984 was received in evidence. That document reflects she was sentenced to five years confinement and three years of special parole on count two and five years probation on the first count. Lopez is free on bond while she appeals that judgment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the first and second administrative complaints and that its license as a community pharmacy be REVOKED. DONE and ORDERED this 13th day of January 1986, 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 13th day of January, 1986.
The Issue Whether Respondents committed the offenses described in the administrative complaint? If so, what penalties should they receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Richard Grant is the Administrator of the Department of Health and Rehabilitative Services Pharmacy Program Office. His office is responsible for the administration and enforcement of the provisions of Chapter 499, Florida Statutes, relating to drug manufacturing, drug repackaging, drug wholesaling, device manufacturing and cosmetic manufacturing. Among its responsibilities is the issuance of permits to persons and entities engaged in activities over which it has regulatory authority. Respondents do not possess such a permit issued by Grant's office. In the latter part of 1986, on the basis of a complaint received from the Department of Professional Regulation, Grant directed that an inspection be conducted of a facility operated by Respondent Arthritis Medical Center, Inc. An inspection of the facility was attempted on January 16, 1987. Respondent Pinorsky, who is the President of Arthritis Medical Center, Inc., did not allow the inspectors to enter the premises. The inspectors therefore left without conducting an inspection of the premises. Another inspection of the facility was attempted on March 13, 1987. Again Respondent Pinorsky denied the inspectors entry. Accordingly, no inspection was conducted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of December, 1989. STUART M. LERNER 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 4th day of December, 1989.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 1976, a Florida-licensed pharmacist. At all times material to the instant case, Respondent was employed by Eckerd Corporation as one of two full-time pharmacists assigned to the Eckerd Drug Store (Store Number 3372) located at 312 North Lake Boulevard in North Palm Beach, Florida, which housed a community pharmacy that was open 14 hours a day. Respondent and the store's other full-time pharmacist worked separate, alternating shifts. At the beginning of each shift, Respondent "signed on" the pharmacy's computer system. She "logged off" the system at the end of the shift. Respondent was responsible for the supervision of all activities in the pharmacy during her shift. Among the activities it was her responsibility to supervise were those engaged in by the pharmacy technician on duty. The pharmacy technician assisted Respondent by, among other things, preparing computer-generated prescription labels and customer receipts for prescriptions that needed to be filled. The technician prepared these items by entering the required information, including the name and strength of the prescribed medication, into the pharmacy's computer system. 1/ All prescription labels and customer receipts prepared by the pharmacy technician on duty during Respondent's shift contained Respondent's initials ("MCB"). After they were prepared, the prescription labels and customer receipts were placed in bags, and the bags were put in baskets on the counter near Respondent, where they remained until the prescriptions were filled. When filling a prescription, it was Respondent's practice to examine the actual prescription written by the prescribing physician or, in the case of an oral prescription, the pharmacy's written record of such prescription, to confirm the accuracy of the prescription information on the prescription label and customer receipt and to make sure that she was dispensing what the physician had prescribed. 2/ The pharmacy was a "very busy" one. As a result, at the end of her shift, there were sometimes prescriptions for which labels and receipts (bearing her initials) had been prepared, but which Respondent had not had the opportunity to fill, and it was not until the following shift, when she was off duty, that these prescriptions were actually filled. Respondent was on duty on June 18, 1998, when a computer-generated prescription label and customer receipt for a prescription (Prescription Number 6071853) for Patient H. V. were prepared. The computer-generated prescription label and customer receipt, which had Respondent's initials on them, indicated, among other things, that the prescription was for 15 180 milligram tablets of Thyroid and that the prescribing physician was Dr. H. Pomeranz. It is unclear when, and by whom, Prescription Number 6071853 was filled. On or about October 9, 1998, Patient H. V.'s son, R. V., filed a complaint with Petitioner alleging that "the prescription [his mother] was suppose[d] to [have] be[en] taking was 15 mil[li]grams," but she instead "was given 180 mil[lli]grams per day by [the] Eckerd Drug Store [on North Lake Boulevard]." David Dimon, a Medical Malpractice Investigator with the Agency for Health Care Administration, investigated the complaint. As part of his investigation, Mr. Dimon contacted Respondent, who advised him that she did not want to make a statement regarding the complaint. Mr. Dimon also spoke with the prescribing physician, Dr. Pomeranz, who told him that she "prescribed Thyroid, 15 milligrams, for the patient, and not the 180 milligram dose given by Eckerd Pharmacy." 3/ Dr. Pomeranz further indicated to Mr. Dimon that H. V. 4/ suffered "side effects" as a result of taking the 180 milligram tablets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order dismissing the Administrative Complaint issued against Respondent in its entirety. DONE AND ENTERED this 13th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STUART M. LERNER 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 13th day of March, 2001.
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 At all times material hereto, Respondent Maria C. Perez has been licensed as a pharmacist under the laws of the State of Florida, having been issued license number 0018025. At all times material hereto, Respondent Perez has been the managing pharmacist at Respondent San Lazaro Pharmacy. At all times material hereto, Respondent San Lazaro Pharmacy has been the holder of a permit to operate a community pharmacy under the laws of the State of Florida, having been issued permit number 0002864. At all times material hereto, Olegario Cepro (or Cepero) was employed at Respondent pharmacy. At no time material hereto was Cepro licensed as a pharmacist or registered as a pharmacy intern in the State of Florida. On March 1, 1983, Georgina Jorge, an investigator with the Department of Professional Regulation, entered the Respondent pharmacy. Jorge asked Cepro for 30 Berocca tablets, 10 Librax capsules, and 5 Darvon Compound capsules. Cepro went into the dispensary department and thereafter delivered to Jorge 45 pills. At no time during this transaction did Jorge present Cepro with a prescription. On March 1, 1983, the pills received were taken to the Metropolitan Dade County Crime Laboratory. A subsequent chemical analysis of the pills revealed the presence of the controlled substance known as chlordiazepoxide, the active ingredient in Librax, a medicinal drug requiring a prescription for dispensing. Another sample which was analyzed revealed the presence of the controlled substance known as dextro propoxyphene, the active ingredient in Darvon Compound, a medicinal drug requiring a prescription to be dispensed. The suspected Berocca was not analyzed. On March 8, 1983, Jorge returned to the Respondent pharmacy. She asked Cepro for 10 penicillin tablets, 20 Valium tablets, and 10 Darvon Compound capsules. Cepro obtained from the pharmacy dispensary and gave to Jorge 10 tablets which appeared to be penicillin, 20 tablets which appeared to be Valium, and 20 capsules which appeared to be Darvon Compound. At that time, Respondent Perez was in the pharmacy dispensary. At no time during this transaction did Jorge present Cepro with a prescription. On March 8, 1983, the above substances were taken to the Metropolitan Dade County Crime Laboratory. A subsequent chemical analysis of the pills revealed in one sample the presence of penicillin, a medicinal drug requiring a prescription for dispensing. Analysis of another substance revealed the presence of the controlled substance diazepam, the active ingredient in Valium, a medicinal drug requiring a prescription for dispensing. On March 25, 1983, Jorge went to the Respondent pharmacy and asked Cepro for prices on bottles of Valium, Mebaral, Lomotil, Ritalin, Trofanil, and Lasix. Prices were quoted to Jorge by Cepro. Thereafter, Cepro delivered to Jorge 20 apparent Valium tablets, 36 apparent Ritalin tablets, 250 apparent Mebaral tablets, and 20 apparent Darvon Compound capsules. On this occasion, Jorge observed Respondent Perez, the licensed managing pharmacist, in the dispensary. At no time during this transaction did Jorge present Cepro with a prescription. On March 25, 1983, the substances which Jorge had received at the Respondent pharmacy were taken to the Metropolitan Dade County Crime Laboratory. A subsequent chemical analysis of the substances revealed the presence of the controlled substance known as methylphenidate, the active ingredient in Ritalin, which is a medicinal drug requiring a prescription to be dispensed. Methylphenidate is a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Laboratory analysis of additional substances received from the March 25, 1983, transaction revealed the presence of the controlled substance known as mephobarbital, the active ingredient in Mebaral, a medicinal drug requiring a prescription for dispensing. In addition, one of the 20 capsules received was analyzed and revealed the presence of the controlled substance known as propoxyphene, the active ingredient in Darvon Compound, which is a medicinal drug requiring a prescription for dispensing. On March 28, 1903, Jorge went to the Respondent pharmacy once again. She asked Cepro for 20 Valium tablets and 20 Lomotil tablets. Jorge saw Respondent Perez in the prescription department. Cepro went into the prescription or dispensary department and returned with suspected controlled substances. At no time during this transaction did Jorge present Cepro or Respondent Perez with a prescription. On March 28, 1983, the suspected controlled substances were taken to the Metropolitan Dade County Crime Laboratory for analysis. A subsequent chemical analysis of the tablets revealed the presence of the controlled substance known as diazepam, the active ingredient in Valium, a medicinal drug requiring a prescription for dispensing. On March 28, 1983, an audit of the controlled substances was conducted at the Respondent pharmacy by Edward Bludworth, an investigator with the Department of Professional Regulation. That audit revealed that Respondents could not provide prescriptions or other documentation to show the dispensing of 41 Darvon Compound-65, 1,005 Valium 5 mg., 801 Valium 10 mg., 280 Tranxene 3.75 mg., 33,451 Talwin 50 mg., and 20 Talwin injectable vials. Darvon, Tranxene, Valium, and Talwin are all compounds containing controlled substances as defined in Chapter 893, Florida Statutes. Petitioner presented no evidence concerning the allegations of Count III [sic II; paragraphs 13, 14, 15, and 16] of the Administrative Complaint filed against Respondent Perez in DOAH Case No. 83-2918.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count III of the Administrative Complaint filed against Respondent Maria C. Perez, finding her guilty of Counts I and II of the Administrative Complaint filed against her, and revoking her license to practice pharmacy in the State of Florida. It is further RECOMMENDED that a Final Order be entered finding Respondent San Lazaro Pharmacy guilty of each and every count in the Administrative Complaint filed against it and revoking its permit to operate a community pharmacy in the State of Florida. DONE and RECOMMENDED this 27th day of March, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 27th day of March, 1984. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 A. M. Schwitalla, Esquire 135 Almeria Avenue Coral Gables, Florida 33134 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Background. Petitioner, George T. Lloyd, Jr., has been employed by the State of Florida, Department of Revenue, for over 14 years, and was, at all times material hereto, a participant in the State of Florida Employees Group Health Self Insurance Plan (Plan), with family coverage. On March 25, 1986, petitioner's son, George T. Lloyd, III (George), then 17 years of age and an eligible dependent under the Plan, was admitted through the emergency room to Broward General Medical Center (Hospital), Fort Lauderdale, Florida. George was placed in the Hospital's Intensive Care Unit, and remained there until his recovery and transfer to the Hospital's psychiatric floor on April 4, 1986. Upon admission, George was comatose and diagnosed as having suffered a severe barbiturate drug overdose. Blood tests performed at the time demonstrated a serum barbiturate level of 145.6 UG (milligrams per milliliter) and a serum Dilantin level of 23.3 UG. At such levels, or even one-half such levels, George would have died of respiratory depression absent medical intervention. On or about August 9, 1986, Blue Cross and Blue Shield of Florida, Inc., the State's administrator of the Plan, notified petitioner that the Hospital's statement for services and supplies rendered during the course of his son's admission of March 25, 1986 to April 4, 1986, totalling $17,402.95, was ineligible for payment based upon the Plan's exclusion of benefits for intentional self-inflicted injuries, to wit: attempted suicide. Pertinent to this case, the Plan provides: VII. EXCLUSIONS The following exclusions shall apply under the Plan: * * * E. Any services and supplies received due to the following circumstances: * * * 2. Resulting from an intentional self- inflicted injury. Over the course of the next two years petitioner's claim for such expenses was reevaluated by the Plan administrator, as well as respondent, Department of Administration (Department). At the conclusion of that review, the Plan administrator concluded that the documentation available to it demonstrated that such expenses were incurred as a consequence of George's attempt to take his own life and were therefore excluded from coverage. By letter of August 19, 1988, the Department notified petitioner that his claim for benefits arising from his son's hospital admission of March 25, 1986 to April 4, 1986, was denied because such expenses resulted from his son's attempt at suicide. Petitioner filed a timely protest of the Department's decision, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. An Intentional Self-Inflicted Injury? Petitioner's son has a history of alcohol and drug (marijuana and cocaine) abuse and emotional problems accompanied by periods of depression that predate the incident in question by a number of years. His mother and father (petitioner) were divorced in 1971 when George was approximately three years of age. Thereafter, George resided in Florida with his mother until his fifth birthday, at which time he was sent out-of-state to reside with his father. George resided with his father until he was eleven years old, and then returned to live with his mother in Florida. In the summer of 1984, George was abusing alcohol and drugs, and experiencing difficulties in school. At that time, his mother again sent George to live with his father in the apparent hope that he could assist George in addressing these problems. The petitioner secured group counseling for George in an attempt to assist him. George continued, however, to use alcohol and drugs, and within four months, dropped out of school and ran away. Approximately four or five months later, George reappeared and returned to Fort Lauderdale to live with his mother and stepfather. Following his return, George did little of a constructive nature, and what jobs he was able to secure as a tenth grade dropout were menial in nature and of a minimal wage. Variously he worked as a bag boy, mowed lawns, and washed cars. On March 25, 1986, George was unemployed, and had just concluded an argument with his stepfather concerning his unemployment and failure to follow any constructive pursuit. Depressed at his circumstances, George ingested phenobarbital and Dilantin, drugs that had been prescribed for his stepfather, with the intention of taking his own life. But for the medical intervention previously discussed, George's attempt would have proven successful. At the time he ingested the drugs, George was not under the influence of alcohol or any other drug, and was of sufficient age and maturity to appreciate the consequences of his actions. Both the nature of the drugs he took and the vast quantity he ingested indicate an intentional attempt to take his own life rather than an accidental overdose during "recreational" use. Here, the drugs he took were not "recreational" drugs, they produce no "high," and the dosage, as heretofore noted, was massive. Considering these factors, George's admission that he attempted suicide, and the totality of the circumstances, compels the conclusion that he did consciously attempt to take his own life, and that what depression he suffered did not deprive him of the ability to appreciate the consequences of his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing, with prejudice, the petition for administrative review. DONE and ENTERED this 16th day of May 1989, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 16th day of May, 1989.
Findings Of Fact Dr. Lawrence A. Hall is licensed by the Florida State Board of Dentistry and the Hearing Officer has jurisdiction over the Respondent and the offenses alleged. During the time periods alleged Respondent smoked marijuana in the office after office hours in company with employees including a 16-year-old employee. During the time periods alleged Respondent wrote numerous prescriptions in the names of employees for controlled substances or drugs to be used for his personal use or for the use of his wife or friends. These drugs consisted of Eskatrol, Dexadrine, Dexamyl, Percodan, and Quaalude and were taken by Hall during office hours while he was performing work on dental patients. Some of these drugs made Respondent nervous and irritable and adversely affected his practice of dentistry. During the period between March, 1974 and July, 1975 Hall habitually used controlled substances add drugs. On many occasions he would be late getting to the office for morning appointments and late returning from lunch for afternoon appointments. Occasionally he would fail to come to the office at all and scheduled appointments would have to be cancelled - usually after the patient had appeared for the appointment. Hall wrote prescriptions for his wife and for his employees for controlled substances and drugs for uses not related to the practice of dentistry. These drugs consisted of amphetamines, Quaalude, and Percodan, and were often picked up from the pharmacy by one of his office employees not named in the prescription. Hall knew that his federal narcotics license did not authorize him to write prescriptions for drugs not intended for use in the practice of dentistry. Amphetamines are listed as Class II controlled substances in Chapter 893 F.S. On one occasion, while treating a small child, Hall became exasperated, threw a syringe across the room, then ran out of the office to jog around the adjacent shopping center for about 15 minutes to regain his composure. On another occasion a patient reacted adversely to an anesthetic and was thereafter properly treated by Hall to restore her breathing to normal. The dental procedure for which the anesthetic was given was then performed satisfactorily. The patient involved remained a patient of Hall until she moved to a location too far away to continue to use Hall as her dentist. She was satisfied with the dental treatment received from Hall. Hall sought help in his personal and drug related problems from his minister. No evidence was presented that Hall performed unsatisfactory dental work. To the contrary, all evidence presented in this regard was to the effect that Hall's dental work was above average. At the time of the hearing and for some months prior thereto Hall was not taking drugs.
