Cohn v. Department of Professional Regulation

Decision Date22 October 1985
Docket NumberNo. 84-1217,84-1217
Citation10 Fla. L. Weekly 2390,477 So.2d 1039
Parties10 Fla. L. Weekly 2390 Ben COHN, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
CourtFlorida District Court of Appeals

Mark Krasnow, Miami, for appellant.

Bruce Lamb, Tallahassee, for appellee.

Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ.

SCHWARTZ, Chief Judge.

This is an appeal from a final order of the Board of Pharmacy which, contrary to the recommendation of the hearing officer that the charges against him be dismissed, revoked Cohn's license to practice pharmacy.

For the reasons which follow, we vacate the order and remand the cause initially for further proceedings before the hearing officer and for any appropriate review thereafter.

Facts and Proceedings Below

The case began when the Department of Professional Regulation filed an administrative complaint against Cohn charging him with dispensing a controlled substance, methaqualone--quaaludes--in such quantities as to demonstrate a lack of "good faith" and a departure from the "course of professional practice." The DPR claimed that this conduct violated sections 465.016(1)(i) and 893.04(1), Florida Statutes (1981):

465.016 Disciplinary actions.--

(1) The following acts shall be grounds for disciplinary action set forth in this section:

* * *

* * *

(e) Violating any of the requirements of this chapter; chapter 500, known as the "Florida Food, Drug, and Cosmetic Law"; 21 U.S.C. ss. 301-392, known as the "Federal Food, Drug, and Cosmetic Act"; or chapter 893.

* * *

* * *

(i) Compounding, dispensing, or distributing a legend drug, including any controlled substance, other than in the course of professional practice of pharmacy. [e.s.].

893.04 Pharmacist and practitioner.--

(1) A pharmacist, in good faith and in the course of professional practice only, [e.s.] may dispense controlled substances upon a written or oral prescription of a practitioner, under the following conditions: ....

The evidence at the hearing established that between August 4, 1981 and January 6, 1982, in the period just before the legal dispensing of methaqualone was barred in Florida 1--Cohn was employed as a pharmacist at Don's Discount Drugs in Dade County. During that time, the pharmacy, which was one of only ten in the county which would dispense the notorious drug at that time under any circumstances, 2 filled 4,695 quaalude prescriptions for 202,404 300 mg. tablets. Of these, Cohn himself filled 2,724 prescriptions, 55% of the total, for 118,130 tablets. Cohn stated without contradiction that he kept an index file to assure that no one customer filled repeated prescriptions for the drug and that he individually verified the licensed status and the drug enforcement agency number of each physician whose quaalude prescriptions he filled. He acknowledged, however, that (a) quaaludes had a high potential for abuse and that their "street value" was higher for that reason, (b) as many as eighteen separate patients per day presented quaalude prescriptions written by the same doctor in the same quantity, and (c) he was aware that a number of physicians in the area were practicing in so-called "stress clinics" whose primary function seemed to be the indiscriminate prescribing of quaaludes. 3 Notwithstanding all of this and although he recognized that individuals might be purchasing the drug for improper purposes, he justified his dispensing the quaaludes by stating that "not being able to buy it at the drug store was not going to stop them," and that "in some way I think it is more good than having them go out on the street and buy them."

Although there was no statute or rule that specifically precluded his activities, and Cohn met each of the particularized regulatory provisions of section 893.04, 4 In the recommended order, the hearing officer found the undisputed, historical facts concerning the number and quantity of quaaludes Cohn dispensed during the relevant period. 6 She concluded, however, that in the absence of any violation of a specific statute or rule, 7 Cohn could not, as a matter of law, be subjected On review, the Board of Pharmacy made two critical decisions--one of law and one of fact--which underlay the order of revocation now before us. In its legal determination--with which we concur--it concluded that, under the applicable statutes, a mere compliance with the terms of section 893.04 and any other existing rule does not insulate a pharmacist from appropriate discipline if his conduct otherwise lacks "good faith" or departs from the requirements of "professional practice." In this regard, it said:

                the DPR presented the testimony of an expert witness, Louis Fisher, who was both a licensed pharmacist and an investigator for the DEA.  He opined that Cohn's dispensing of quaaludes in the quantities and under the circumstances involved was nonetheless not in "good faith" or "in the course of professional practice." 5
                to discipline for the manner in which he filled apparently appropriate prescriptions written by duly licensed physicians;  putting it another way, she held that a pharmacist necessarily acts in "good faith and in the course of professional practice" in filling prescriptions when, as Cohn did, he complies with the conditions in that regard contained in section 893.04.  The officer specifically declined, on the ground that such a determination would be legally irrelevant, to make any finding as to whether Cohn violated, as Fisher testified, any generalized standard of "good faith" and "professional practice." 8  Accordingly, she recommended dismissal of the charges
                

Not only must a pharmacist be assured that the controlled substance in question meets the standards of Ch. 893 as regards to the former prescription, the manner in which the prescription is to be filled, the labeling requirements for the container in which the medication is dispensed and record keeping requirements for the pharmacist in filling the prescription but also such dispensing should be in the course of the professional practice whether or not the actual format of the prescription is met. In other words, a pharmacist must not be permitted under the guise of having received a prescription or many prescriptions from a licensed prescriber to fill such prescription(s) when based upon his training and experience and all of the facts surrounding the prescription(s) it is clear that such prescription or prescriptions taken as a whole have been written outside the course of professional practice of pharmacy and would do harm to the patient or public.

Upon this view of the law, the Board went on to conclude, as a matter of fact, as follows:

Based upon the expertise of the members of the Board of Pharmacy and the facts of this case it is determined that the practice of Respondent was not in the course of professional practice.

Discipline Permissible for Conduct Contrary to Good Faith and Professional Practice Although Not Violative of Specific Statute or Rule

Cohn's primary argument for reversal is essentially the same as the basis of the conclusion of the hearing officer. He contends that the demands both of due process and appropriate statutory construction preclude discipline when, as here, the professional's conduct contravenes no particularized statute or rule and is only subsequently claimed to have violated such amorphous standards as those requiring "good faith" or conduct "in the course of professional practice;" he says, in a word, that it is fundamentally unfair to punish him for something he had no reasonable way to know ahead of time was wrong. While the A prominent aspect of the appellant's argument, that, standing alone, non-specific requirements of "good faith" and "professional practice," are unconstitutionally vague as inadequate to meet due process standards of prior fair notice--is plainly unsupportable in the light of State v. Weeks, 335 So.2d 274 (Fla.1976). In Weeks, the supreme court rejected the claim that a criminal statute, section 893.03(2)(c)(1), which forbids the delivering of a controlled substance by a physician through an order "not issued in good faith," was void for vagueness. The court said:

contention is certainly not unsubstantial, 9 we cannot agree that the law of Florida permits its acceptance.

Applying "our own knowledge with which observation and experience have supplied us," we find that the language employed by the instant statute conveys [a] sufficiently definite meaning "that a person who may be liable to the penalties of the act may know that he is within its provisions or not." We note that many courts of other jurisdictions have reached the same result in cases involving the construction of virtually identical language.

* * *

* * *

We are persuaded by the unanimous authority arrayed against the proposition that the term "good faith" is unconstitutionally vague.

335 So.2d at 277. Weeks presents an a fortiori situation to the administrative case before us. See also State, Department of Citrus v. Griffin, 239 So.2d 577 (Fla.1970); Solimena v. State, Department of Business Regulation, 402 So.2d 1240 (Fla. 3d DCA 1981), pet. for review denied, 412 So.2d 470 (Fla.1982). Indeed, numerous Florida decisions and those from other jurisdictions make clear that discipline may be imposed for violations of equally, if not even more facially uncertain standards than those contained in sections 465.016 and 893.04. E.g., Purvis v. Department of Professional Regulation, 461 So.2d 134 (Fla. 1st DCA 1984); Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Megdal v. Oregon State Board of Medical Examiners, 288 Or. 293, 605 P.2d 273, 275-76 (1980) ("Unprofessional conduct" adequate standard for discipline, even assuming insufficient for criminal prosecution, but see Weeks.); State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943 (1933); ...

To continue reading

Request your trial
24 cases
  • Gross v. Department of Health, 5D01-2074.
    • United States
    • Court of Appeal of Florida (US)
    • 28 Junio 2002
    ...to reverse the administrative law judge's finding that a particular statute was not violated. Cohn v. Department of Prof'l. Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). In summary, if there is competent substantial evidence to support the findings of fact in the record, the Florida courts......
  • Schrimsher v. School Bd. of Palm Beach County, s. 94-1047 and 94-1487
    • United States
    • Court of Appeal of Florida (US)
    • 4 Junio 1997
    ...upon its own expertise to reverse a hearing officer's finding of no violation may not be sustained." Cohn v. Department of Prof. Reg., 477 So.2d 1039, 1047 (Fla. 3d DCA 1985) (citations Page 861 The Florida Supreme Court has explained "competent substantial evidence" as follows: Substantial......
  • Forehand v. School Bd. of Washington County, BF-423
    • United States
    • Court of Appeal of Florida (US)
    • 7 Enero 1986
    ...ones like this which are based upon an alleged breach of a broad standard of conduct in particular." Cohn v. Department of Professional Regulation, 477 So.2d 1039, 1046 (Fla. 3rd DCA 1985) (emphasis As an alternative basis for recommending dismissal of the charges against appellant, the hea......
  • Haan v. CVS, Inc.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 7 Abril 2020
    ...the pharmacist to fill controlled substances but gives discretion to the pharmacist. Id.; see also Cohn v. Dep't. of Professional Reg., 477 So. 2d 1039, 1041 n.2 (Fla. Dist. Ct. App. 1985) ("[N]o pharmacist is required to fill any prescription, no matter how regular in form, if he choose no......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT