Opinion
No. 72-008
Decided April 10, 1973. Rehearing denied May 22, 1973. Certiorari denied July 30, 1973.
State Board of Pharmacy suspended the pharmacy license of plaintiff for violation of statute prohibiting the dispensing of a different drug or brand of drug in place of the drug or brand ordered or prescribed. In action to review that decision of the Board, the trial court vacated the suspension order, and the Board appealed.
Reversed
1. ADMINISTRATIVE LAW AND PROCEDURE — Hearing — Revoke or Suspend — Professional License — Not — Criminal Proceeding. An administrative hearing to revoke or suspend a professional license is a disciplinary, not a criminal proceeding.
2. DRUGS AND DRUGGISTS — Pharmacist — Treated Documents — As Prescriptions — Valid — As Orders — Estopped — Asserting — Invalidity. Although documents submitted to pharmacist contained certain deficiencies such that they did not meet in all respects the statutory definition of a prescription, the pharmacist accepted the documents as valid prescriptions and filled the orders therein contained, albeit not as therein specified; and, although the documents were defective as prescriptions, they were nonetheless valid as orders, and were so regarded by the pharmacist; therefore, in disciplinary proceedings against the pharmacist, he is estopped from asserting the documents' invalidity as prescriptions.
3. Dispense — Define — Druggist — Transfers Possession. Where, in order for pharmacist to be liable to disciplinary action it was required that he "dispense" a drug, and where the drug was delivered to one who delivered it to a laboratory for analysis, the drug was "dispensed" when the druggist transferred possession of the drug, and what happened to the drug thereafter can in no way alter the fact that the drug had been dispensed by the pharmacist.
Appeal from the District Court of the City and County of Denver, Honorable Joseph N. Lilly, Judge.
Costello, Kofoed and O'Donnell, Eugene F. Costello, for plaintiff-appellee.
Duke W. Dunbar, Attorney General, William Tucker, Assistant, for defendant-appellant.
Division II.
The Colorado State Board of Pharmacy (Board) suspended the pharmacy license of Commerce City Drug for violation of 1969 Perm. Supp., C.R.S. 1963, 48-1-19(1) which states:
"It shall be unlawful:
. . . .
(i) To dispense a different drug or brand of drug in place of the drug or brand ordered or prescribed, without the expressed permission of the practitioner ordering or prescribing the drug."
Commerce City Drug filed a petition in the District Court pursuant to C.R.C.P. 106(a)(4) to review the decision of the Board. Following a hearing, the trial court reversed the Board and vacated the suspension order. From that judgment the Board appeals.
The proceedings before the Board were initiated by a complaint, filed by a drug manufacturer, which alleged that on three occasions its agent had presented prescriptions which called for "Teldrin" and that on each occasion the prescription was filled with a brand of drug other than the brand prescribed. The evidence established that the brand of drug delivered was not "Teldrin" and that the physicians who had written the prescription had not given permission for a change.
Commerce City Drug alleged that the action of the Board was arbitrary and capricious, in excess of its jurisdiction and amounted to a denial of due process. It further contended that the prescriptions were not written in compliance with the statutes and that it did not "dispense" the drugs, as that term is defined in the statute, and therefore it technically did not violate 1969 Perm. Supp., C.R.S. 1963, 48-1-19(1). The trial court found that the prescriptions were issued not in compliance with the law, and that, "in permitting the complaint to be filed based upon such documents and proceeding with a hearing thereon . . . the Board . . . acted arbitrarily and capriciously and abused its discretion." We disagree with the trial court and reverse the judgment.
[1] At the outset we note that 1969 Perm. Supp., C.R.S. 1963, 48-1-25, states that the practice of pharmacy affects the public health, safety and welfare and is subject to regulation and control in the public interest, and that the statute "shall be liberally construed to carry out these objects and purposes." Further, an administrative hearing to revoke or suspend a professional license is a disciplinary, not a criminal, proceeding. Shakin v. Board of Medical Examiners, 254 Cal. App. 2d 102, 62 Cal. Rptr. 274; Molina v. Munro, 145 Cal. App.2d 601, 302 P.2d 818.
To support its allegation that the Board acted outside its jurisdiction and deprived it of due process, appellee alleged violations of the Administrative Code, C.R.S. 1963, 3-1-1 et. seq. We have reviewed these various contentions and find them to be without merit. The record discloses that the complaint gave appellee adequate notice of the nature of the charge and the alleged violation, and appellee was given a full hearing and opportunity to defend. The administrative and procedural requirements were fulfilled. See Florida Board of Pharmacy v. Levin, 190 So.2d 768 (Fla.)
As to the prescriptions, 1969 Perm. Supp., C.R.S. 1963, 48-1-24(8), defines prescription (inter alia) as an order, dated and signed by a practitioner, specifying the name and address of the person for whom a drug is ordered. The documents submitted to the drug company did not show the address of the person named and two of the three were undated. The evidence also disclosed that the persons named in the prescriptions were not patients of the prescribing physicians. However, the conduct of the physicians is not an issue in this action and whether the person named on the prescriptions was or was not a patient is not material. Dugan Drug Stores, Inc. v. United States, 326 F.2d 835.
[2] Although the appellee contends that the deficiency in the prescriptions relieves him of liability, we do not agree with this contention for two reasons. First, appellee accepted the documents as valid prescriptions and filled the order therein contained, albeit not as therein specified. Secondly, the statute provides that it shall be unlawful to dispense a different brand of drug from the brand "ordered or prescribed." If the documents are defective as prescriptions they are nonetheless valid as orders, and were so regarded by appellee. Appellee is therefore estopped from asserting their invalidity here.
[3] Appellee's contention that it did not "dispense" the drug is likewise without merit. 1969 Perm. Supp., C.R.S. 1963, 48-1-24(11) states,
"'Dispense' means to transfer the possession of the drug . . . to the ultimate consumer thereof, or to one who represents that it is not his intention to consume the same but to transport the same to the ultimate consumer for consumption."
The above statute requires that the drug be delivered to the "ultimate consumer" or one who represents that he will deliver it to such consumer. It is to be noted that the statute does not require delivery to the person named on the prescription, nor is the use, or method of consumption, of the drug limited or defined by the statute. A consumer is defined as, "One who acquires goods or services: a buyer." The American Heritage Dictionary of the English Language. Here the drug was delivered to one who delivered it to the laboratory for analysis. The drug was thus delivered to the ultimate customer. The dispensing occurs when the druggist transfers possession of the drug. What happens to the drug thereafter can in no way alter the fact that the drug has been dispensed. The evidence discloses that the appellee "dispensed" the drug.
Appellee further contends that the order of the Board is ambiguous. That order states,
"IT IS THEREFORE ORDERED that the license of Commerce City Drug be and is hereby suspended for fourteen days, seven days to run concurrent, the remaining seven days to be held in abeyance for three years to commence 60 days after service of this decision."
Although the intent of the Board may be gleaned from this order, the order taken as a whole is ambiguous as to when the suspension shall take effect. Therefore the action must be remanded to the Board for clarification of the order.
The judgment of the trial court is reversed, and the cause remanded with directions to reinstate the order of the Board suspending the license of Commerce City Drug and to remand the cause to the Board for clarification of the order as it pertains to the execution of the order.
JUDGE ENOCH and JUDGE SMITH concur.