Senate Bill sb0640

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    Florida Senate - 2002                                   SB 640

    By Senator Burt





    16-518A-02

  1                      A bill to be entitled

  2         An act relating to criminal offenses involving

  3         health care practitioners or controlled

  4         substances; creating s. 456.075, F.S.;

  5         authorizing a representative of the Department

  6         of Health to appear in a criminal proceeding

  7         against a health care professional to furnish

  8         information, make recommendations, or provide

  9         other assistance; providing that the court may

10         order the representative to appear in a

11         criminal proceeding that relates to the

12         qualifications, functions, or duties of a

13         health care professional; amending s. 893.13,

14         F.S.; increasing the penalty imposed for

15         withholding information from a practitioner

16         concerning a controlled substance; prohibiting

17         a practitioner from prescribing a controlled

18         substance that is excessive or inappropriate,

19         knowingly assisting a person in obtaining a

20         controlled substance through fraud or scheme,

21         knowingly prescribing a controlled substance

22         for a fictitious person, or prescribing a

23         controlled substance for purposes of monetary

24         benefit; providing penalties; amending s.

25         921.0022, F.S., relating to the offense

26         severity ranking chart of the Criminal

27         Punishment Code; conforming provisions to

28         changes made by the act; providing an effective

29         date.

30

31  Be It Enacted by the Legislature of the State of Florida:

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  1         Section 1.  Section 456.075, Florida Statutes, is

  2  created to read:

  3         456.075  In any criminal proceeding against a person

  4  licensed by the department to practice a health care

  5  profession in this state, a representative of the department

  6  may voluntarily appear and furnish pertinent information, make

  7  recommendations regarding specific conditions of probation, or

  8  provide any other assistance necessary to promote justice or

  9  protect the public. The court may order a representative of

10  the department to appear in any criminal proceeding if the

11  crime charged is substantially related to the qualifications,

12  functions, or duties of a health care professional licensed by

13  the department.

14         Section 2.  Subsection (7) of section 893.13, Florida

15  Statutes, is amended, and present subsections (8), (9), and

16  (10) of that section are amended and redesignated as

17  subsections (9), (10), and (11), respectively, and a new

18  subsection (8) is added to that section, to read:

19         893.13  Prohibited acts; penalties.--

20         (7)(a)  It is unlawful for any person:

21         1.  To distribute or dispense a controlled substance in

22  violation of this chapter.

23         2.  To refuse or fail to make, keep, or furnish any

24  record, notification, order form, statement, invoice, or

25  information required under this chapter.

26         3.  To refuse an entry into any premises for any

27  inspection or to refuse to allow any inspection authorized by

28  this chapter.

29         4.  To distribute a controlled substance named or

30  described in s. 893.03(1) or (2) except pursuant to an order

31  form as required by s. 893.06.

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  1         5.  To keep or maintain any store, shop, warehouse,

  2  dwelling, building, vehicle, boat, aircraft, or other

  3  structure or place which is resorted to by persons using

  4  controlled substances in violation of this chapter for the

  5  purpose of using these substances, or which is used for

  6  keeping or selling them in violation of this chapter.

  7         6.  To use to his or her own personal advantage, or to

  8  reveal, any information obtained in enforcement of this

  9  chapter except in a prosecution or administrative hearing for

10  a violation of this chapter.

11         7.  To withhold information from a practitioner from

12  whom the person seeks to obtain a controlled substance or a

13  prescription for a controlled substance that the person has

14  received a controlled substance or a prescription for a

15  controlled substance of like therapeutic use from another

16  practitioner within the last 30 days.

17         7.8.  To possess a prescription form which has not been

18  completed and signed by the practitioner whose name appears

19  printed thereon, unless the person is that practitioner, is an

20  agent or employee of that practitioner, is a pharmacist, or is

21  a supplier of prescription forms who is authorized by that

22  practitioner to possess those forms.

23         8.  To withhold information from a practitioner from

24  whom the person seeks to obtain a controlled substance or a

25  prescription for a controlled substance that the person making

26  the request has received a controlled substance or a

27  prescription for a controlled substance of like therapeutic

28  use from another practitioner within the previous 30 days.

29         9.  To acquire or obtain, or attempt to acquire or

30  obtain, possession of a controlled substance by

31  misrepresentation, fraud, forgery, deception, or subterfuge.

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  1         10.  To affix any false or forged label to a package or

  2  receptacle containing a controlled substance.

  3         11.  To furnish false or fraudulent material

  4  information in, or omit any material information from, any

  5  report or other document required to be kept or filed under

  6  this chapter or any record required to be kept by this

  7  chapter.

  8         (b)  Any person who violates the provisions of

  9  subparagraphs (a)1.-7. (a)1.-8. commits a misdemeanor of the

10  first degree, punishable as provided in s. 775.082 or s.

11  775.083; except that, upon a second or subsequent violation,

12  the person commits a felony of the third degree, punishable as

13  provided in s. 775.082, s. 775.083, or s. 775.084.

14         (c)  Any person who violates the provisions of

15  subparagraphs (a)8.-11. (a)9.-11. commits a felony of the

16  third degree, punishable as provided in s. 775.082, s.

17  775.083, or s. 775.084.

18         (8)(a)  Notwithstanding subsection (9), a prescribing

19  practitioner may not:

20         1.  Write a prescription or multiple prescriptions for

21  a controlled substance for a patient or other person for whom,

22  or an animal for which, the prescribing practitioner knew, or

23  should have known, was excessive or inappropriate to treat the

24  patient, other person, or animal because of the quantity or

25  quantities prescribed or the number of prescriptions written;

26         2.  Knowingly assist a patient, other person, or the

27  owner of an animal in obtaining a controlled substance through

28  deceptive, untrue, or fraudulent representations in or related

29  to the practice of the prescribing practitioner's professional

30  practice;

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  1         3.  Employ a trick or scheme in the practice of the

  2  prescribing practitioner's professional practice to assist a

  3  patient, other person, or the owner of an animal in obtaining

  4  a controlled substance;

  5         4.  Knowingly write a prescription for a controlled

  6  substance for a fictitious person; or

  7         5.  Write a prescription for a controlled substance for

  8  a patient, other person, or an animal if the sole purpose of

  9  writing such prescription is to provide a monetary benefit to,

10  or obtain a monetary benefit for, the prescribing

11  practitioner.

12         (b)  A person who violates paragraph (a) commits a

13  felony of the third degree, punishable as provided in s.

14  775.082, s. 775.083, or s. 775.084.

15         (c)  Notwithstanding paragraph (b), if a prescribing

16  practitioner has violated paragraph (a) and received $1,000 or

17  more in payment for writing one or more prescriptions or, in

18  the case of a prescription written for a controlled substance

19  described in s. 893.135, has written one or more prescriptions

20  for a quantity of a controlled substance which, individually

21  or in the aggregate, meets the threshold for the offense of

22  trafficking in a controlled substance under s. 893.15, the

23  violation is reclassified as a felony of the second degree and

24  ranked in level 4 of the Criminal Punishment Code.

25         (9)(8)  The provisions of subsections (1)-(8) (1)-(7)

26  are not applicable to the delivery to, or actual or

27  constructive possession for medical or scientific use or

28  purpose only of controlled substances by, persons included in

29  any of the following classes, or the agents or employees of

30  such persons, for use in the usual course of their business or

31  profession or in the performance of their official duties:

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  1         (a)  Pharmacists.

  2         (b)  Practitioners.

  3         (c)  Persons who procure controlled substances in good

  4  faith and in the course of professional practice only, by or

  5  under the supervision of pharmacists or practitioners employed

  6  by them, or for the purpose of lawful research, teaching, or

  7  testing, and not for resale.

  8         (d)  Hospitals that procure controlled substances for

  9  lawful administration by practitioners, but only for use by or

10  in the particular hospital.

11         (e)  Officers or employees of state, federal, or local

12  governments acting in their official capacity only, or

13  informers acting under their jurisdiction.

14         (f)  Common carriers.

15         (g)  Manufacturers, wholesalers, and distributors.

16         (h)  Law enforcement officers for bona fide law

17  enforcement purposes in the course of an active criminal

18  investigation.

19         (10)(9)  Notwithstanding any provision of the

20  sentencing guidelines or the Criminal Punishment Code to the

21  contrary, on or after October 1, 1993, any defendant who:

22         (a)  Violates subparagraph (1)(a)1., subparagraph

23  (1)(c)2., subparagraph (1)(d)2., subparagraph (2)(a)1., or

24  paragraph (5)(a); and

25         (b)  Has not previously been convicted, regardless of

26  whether adjudication was withheld, of any felony, other than a

27  violation of subparagraph (1)(a)1., subparagraph (1)(c)2.,

28  subparagraph (1)(d)2., subparagraph (2)(a)1., or paragraph

29  (5)(a),

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  1  may be required by the court to successfully complete a term

  2  of probation pursuant to the terms and conditions set forth in

  3  s. 948.034(1), in lieu of serving a term of imprisonment.

  4         (11)(10)  Notwithstanding any provision of the

  5  sentencing guidelines or the Criminal Punishment Code to the

  6  contrary, on or after January 1, 1994, any defendant who:

  7         (a)  Violates subparagraph (1)(a)2., subparagraph

  8  (2)(a)2., paragraph (5)(b), or paragraph (6)(a); and

  9         (b)  Has not previously been convicted, regardless of

10  whether adjudication was withheld, of any felony, other than a

11  violation of subparagraph (1)(a)2., subparagraph (2)(a)2.,

12  paragraph (5)(b), or paragraph (6)(a),

13

14  may be required by the court to successfully complete a term

15  of probation pursuant to the terms and conditions set forth in

16  s. 948.034(2), in lieu of serving a term of imprisonment.

17         Section 3.  Paragraphs (a) and (c) of subsection (3) of

18  section 921.0022, Florida Statutes, are amended to read:

19         921.0022  Criminal Punishment Code; offense severity

20  ranking chart.--

21         (3)  OFFENSE SEVERITY RANKING CHART

22

23  Florida           Felony

24  Statute           Degree             Description

25

26                              (a)  LEVEL 1

27  24.118(3)(a)       3rd      Counterfeit or altered state

28                              lottery ticket.

29  212.054(2)(b)      3rd      Discretionary sales surtax;

30                              limitations, administration, and

31                              collection.

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  1  212.15(2)(b)       3rd      Failure to remit sales taxes,

  2                              amount greater than $300 but less

  3                              than $20,000.

  4  319.30(5)          3rd      Sell, exchange, give away

  5                              certificate of title or

  6                              identification number plate.

  7  319.35(1)(a)       3rd      Tamper, adjust, change, etc., an

  8                              odometer.

  9  320.26(1)(a)       3rd      Counterfeit, manufacture, or sell

10                              registration license plates or

11                              validation stickers.

12  322.212(1)         3rd      Possession of forged, stolen,

13                              counterfeit, or unlawfully issued

14                              driver's license; possession of

15                              simulated identification.

16  322.212(4)         3rd      Supply or aid in supplying

17                              unauthorized driver's license or

18                              identification card.

19  322.212(5)(a)      3rd      False application for driver's

20                              license or identification card.

21  370.13(3)(a)       3rd      Molest any stone crab trap, line,

22                              or buoy which is property of

23                              licenseholder.

24  370.135(1)         3rd      Molest any blue crab trap, line,

25                              or buoy which is property of

26                              licenseholder.

27  372.663(1)         3rd      Poach any alligator or

28                              crocodilia.

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  1  414.39(2)          3rd      Unauthorized use, possession,

  2                              forgery, or alteration of food

  3                              stamps, Medicaid ID, value

  4                              greater than $200.

  5  414.39(3)(a)       3rd      Fraudulent misappropriation of

  6                              public assistance funds by

  7                              employee/official, value more

  8                              than $200.

  9  443.071(1)         3rd      False statement or representation

10                              to obtain or increase

11                              unemployment compensation

12                              benefits.

13  509.151(1)         3rd      Defraud an innkeeper, food or

14                              lodging value greater than $300.

15  517.302(1)         3rd      Violation of the Florida

16                              Securities and Investor

17                              Protection Act.

18  562.27(1)          3rd      Possess still or still apparatus.

19  713.69             3rd      Tenant removes property upon

20                              which lien has accrued, value

21                              more than $50.

22  812.014(3)(c)      3rd      Petit theft (3rd conviction);

23                              theft of any property not

24                              specified in subsection (2).

25  812.081(2)         3rd      Unlawfully makes or causes to be

26                              made a reproduction of a trade

27                              secret.

28  815.04(4)(a)       3rd      Offense against intellectual

29                              property (i.e., computer

30                              programs, data).

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  1  817.52(2)          3rd      Hiring with intent to defraud,

  2                              motor vehicle services.

  3  826.01             3rd      Bigamy.

  4  828.122(3)         3rd      Fighting or baiting animals.

  5  831.04(1)          3rd      Any erasure, alteration, etc., of

  6                              any replacement deed, map, plat,

  7                              or other document listed in s.

  8                              92.28.

  9  831.31(1)(a)       3rd      Sell, deliver, or possess

10                              counterfeit controlled

11                              substances, all but s. 893.03(5)

12                              drugs.

13  832.041(1)         3rd      Stopping payment with intent to

14                              defraud $150 or more.

15  832.05

16   (2)(b)&(4)(c)     3rd      Knowing, making, issuing

17                              worthless checks $150 or more or

18                              obtaining property in return for

19                              worthless check $150 or more.

20  838.015(3)         3rd      Bribery.

21  838.016(1)         3rd      Public servant receiving unlawful

22                              compensation.

23  838.15(2)          3rd      Commercial bribe receiving.

24  838.16             3rd      Commercial bribery.

25  843.18             3rd      Fleeing by boat to elude a law

26                              enforcement officer.

27  847.011(1)(a)      3rd      Sell, distribute, etc., obscene,

28                              lewd, etc., material (2nd

29                              conviction).

30  849.01             3rd      Keeping gambling house.

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  1  849.09(1)(a)-(d)   3rd      Lottery; set up, promote, etc.,

  2                              or assist therein, conduct or

  3                              advertise drawing for prizes, or

  4                              dispose of property or money by

  5                              means of lottery.

  6  849.23             3rd      Gambling-related machines;

  7                              "common offender" as to property

  8                              rights.

  9  849.25(2)          3rd      Engaging in bookmaking.

10  860.08             3rd      Interfere with a railroad signal.

11  860.13(1)(a)       3rd      Operate aircraft while under the

12                              influence.

13  893.13(2)(a)2.     3rd      Purchase of cannabis.

14  893.13(6)(a)       3rd      Possession of cannabis (more than

15                              20 grams).

16  893.13(7)(a)10.    3rd      Affix false or forged label to

17                              package of controlled substance.

18  934.03(1)(a)       3rd      Intercepts, or procures any other

19                              person to intercept, any wire or

20                              oral communication.

21                              (c)  LEVEL 3

22  316.1935(2)        3rd      Fleeing or attempting to elude

23                              law enforcement officer in marked

24                              patrol vehicle with siren and

25                              lights activated.

26  319.30(4)          3rd      Possession by junkyard of motor

27                              vehicle with identification

28                              number plate removed.

29  319.33(1)(a)       3rd      Alter or forge any certificate of

30                              title to a motor vehicle or

31                              mobile home.

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  1  319.33(1)(c)       3rd      Procure or pass title on stolen

  2                              vehicle.

  3  319.33(4)          3rd      With intent to defraud, possess,

  4                              sell, etc., a blank, forged, or

  5                              unlawfully obtained title or

  6                              registration.

  7  328.05(2)          3rd      Possess, sell, or counterfeit

  8                              fictitious, stolen, or fraudulent

  9                              titles or bills of sale of

10                              vessels.

11  328.07(4)          3rd      Manufacture, exchange, or possess

12                              vessel with counterfeit or wrong

13                              ID number.

14  376.302(5)         3rd      Fraud related to reimbursement

15                              for cleanup expenses under the

16                              Inland Protection Trust Fund.

17  501.001(2)(b)      2nd      Tampers with a consumer product

18                              or the container using materially

19                              false/misleading information.

20  697.08             3rd      Equity skimming.

21  790.15(3)          3rd      Person directs another to

22                              discharge firearm from a vehicle.

23  796.05(1)          3rd      Live on earnings of a prostitute.

24  806.10(1)          3rd      Maliciously injure, destroy, or

25                              interfere with vehicles or

26                              equipment used in firefighting.

27  806.10(2)          3rd      Interferes with or assaults

28                              firefighter in performance of

29                              duty.

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  1  810.09(2)(c)       3rd      Trespass on property other than

  2                              structure or conveyance armed

  3                              with firearm or dangerous weapon.

  4  812.014(2)(c)2.    3rd      Grand theft; $5,000 or more but

  5                              less than $10,000.

  6  815.04(4)(b)       2nd      Computer offense devised to

  7                              defraud or obtain property.

  8  817.034(4)(a)3.    3rd      Engages in scheme to defraud

  9                              (Florida Communications Fraud

10                              Act), property valued at less

11                              than $20,000.

12  817.233            3rd      Burning to defraud insurer.

13  817.234(8)&(9)     3rd      Unlawful solicitation of persons

14                              involved in motor vehicle

15                              accidents.

16  817.234(11)(a)     3rd      Insurance fraud; property value

17                              less than $20,000.

18  817.505(4)         3rd      Patient brokering.

19  828.12(2)          3rd      Tortures any animal with intent

20                              to inflict intense pain, serious

21                              physical injury, or death.

22  831.28(2)(a)       3rd      Counterfeiting a payment

23                              instrument with intent to defraud

24                              or possessing a counterfeit

25                              payment instrument.

26  831.29             2nd      Possession of instruments for

27                              counterfeiting drivers' licenses

28                              or identification cards.

29  838.021(3)(b)      3rd      Threatens unlawful harm to public

30                              servant.

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  1  843.19             3rd      Injure, disable, or kill police

  2                              dog or horse.

  3  870.01(2)          3rd      Riot; inciting or encouraging.

  4  893.13(1)(a)2.     3rd      Sell, manufacture, or deliver

  5                              cannabis (or other s.

  6                              893.03(1)(c), (2)(c)1., (2)(c)2.,

  7                              (2)(c)3., (2)(c)5., (2)(c)6.,

  8                              (2)(c)7., (2)(c)8., (2)(c)9.,

  9                              (3), or (4) drugs).

10  893.13(1)(d)2.     2nd      Sell, manufacture, or deliver s.

11                              893.03(1)(c), (2)(c)1., (2)(c)2.,

12                              (2)(c)3., (2)(c)5., (2)(c)6.,

13                              (2)(c)7., (2)(c)8., (2)(c)9.,

14                              (3), or (4) drugs within 200 feet

15                              of university or public park.

16  893.13(1)(f)2.     2nd      Sell, manufacture, or deliver s.

17                              893.03(1)(c), (2)(c)1., (2)(c)2.,

18                              (2)(c)3., (2)(c)5., (2)(c)6.,

19                              (2)(c)7., (2)(c)8., (2)(c)9.,

20                              (3), or (4) drugs within 200 feet

21                              of public housing facility.

22  893.13(6)(a)       3rd      Possession of any controlled

23                              substance other than felony

24                              possession of cannabis.

25  893.13(7)(a)8.     3rd      Withhold information from

26                              practitioner regarding previous

27                              receipt of or prescription for a

28                              controlled substance.

29  893.13(7)(a)9.     3rd      Obtain or attempt to obtain

30                              controlled substance by fraud,

31                              forgery, misrepresentation, etc.

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  1  893.13(7)(a)10.    3rd      Affix false or forged label to

  2                              package of controlled substance.

  3  893.13(7)(a)11.    3rd      Furnish false or fraudulent

  4                              material information on any

  5                              document or record required by

  6                              chapter 893.

  7  893.13(8)(a)1.     3rd      Write a prescription for a

  8                              controlled substance for a

  9                              patient or other person for whom,

10                              or an animal for which, the

11                              practitioner knew or should have

12                              known was excessive or

13                              inappropriate to treat the

14                              patient, other person, or animal.

15  893.13(8)(a)2.     3rd      Knowingly assist a patient, other

16                              person, or owner of an animal in

17                              obtaining a controlled substance

18                              through deceptive, untrue, or

19                              fraudulent representations in or

20                              related to the practitioner's

21                              practice.

22  893.13(8)(a)3.     3rd      Employ a trick or scheme in the

23                              practitioner's practice to assist

24                              a patient, other person, or owner

25                              of an animal in obtaining a

26                              controlled substance.

27  893.13(8)(a)4.     3rd      Knowingly write a prescription

28                              for a controlled substance for a

29                              fictitious person.

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  1  893.13(8)(a)5.     3rd      Write a prescription for a

  2                              controlled substance for a

  3                              patient, other person, or an

  4                              animal if the sole purpose of

  5                              writing the prescription is a

  6                              monetary benefit for the

  7                              practitioner.

  8  918.13(1)(a)       3rd      Alter, destroy, or conceal

  9                              investigation evidence.

10  944.47

11   (1)(a)1.-2.       3rd      Introduce contraband to

12                              correctional facility.

13  944.47(1)(c)       2nd      Possess contraband while upon the

14                              grounds of a correctional

15                              institution.

16  985.3141           3rd      Escapes from a juvenile facility

17                              (secure detention or residential

18                              commitment facility).

19         Section 4.  This act shall take effect July 1, 2002.

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Provides that a representative of the Department of
      Health may appear in a criminal proceeding against a
  4    health care professional licensed by the department in
      order to furnish information, make recommendations, or
  5    provide assistance. Authorizes the court to require that
      a representative of the department appear if the criminal
  6    proceeding relates to the qualifications, functions, or
      duties of the health care professional. Increases the
  7    penalty imposed for withholding information from a
      practitioner concerning a controlled substance from a
  8    first-degree misdemeanor to a third-degree felony.
      Provides that it is a third-degree felony for a health
  9    care practitioner to prescribe a controlled substance
      that is excessive or inappropriate, assist a person in
10    obtaining a controlled substance through fraud or scheme,
      prescribe a controlled substance for a fictitious person,
11    or prescribe a controlled substance for purposes of
      monetary benefit. Provides that any such offense is a
12    second-degree felony if the practitioner received $1,000
      or more in payment or if the quantity of the controlled
13    substance prescribed meets the threshold for the offense
      of trafficking. (See bill for details.)
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CODING: Words stricken are deletions; words underlined are additions.