ROBERT B. CUSHING, D.D.S., APPELLANT,
v.
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF DENTISTRY, APPELLEE
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Dr. Robert Cushing, an oral surgeon, challenged an administrative finding that he improperly prescribed quaaludes after a warrantless search of a pharmacy revealed suspicious prescriptions written by him. The court upheld the administrative board's disciplinary action, finding the statutory search constitutional and rejecting Cushing's privacy and evidentiary arguments.
The court affirmed the Board's determination that Cushing improperly prescribed quaaludes. The warrantless search was constitutional because Cushing had no reasonable expectation of privacy in completed prescriptions in the pharmacy's possession, and the statutory authorization for the search was constitutionally permissible. The findings were supported by substantial competent evidence, and the patient's testimony was properly admitted.
[1] A party generally lacks a reasonable expectation of privacy in completed prescriptions in the possession of a pharmacy, precluding a Fourth Amendment challenge to their w…
[2] Statutorily authorized administrative searches of pharmacies are constitutionally permissible.
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Join FLexlaw to unlock all legal intelligence“the appellant had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy and therefore may not assert the claim”
Establishes that Cushing lacked standing to challenge the pharmacy search because he had no Fourth Amendment privacy interest in prescriptions held by the pharmacy
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Join FLexlaw to unlock all legal intelligenceA routine administrative search of a pharmacy by the Department of Professional Regulation discovered several suspect prescriptions for quaaludes writ…
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SCHWARTZ, Judge.
A warrantless, routine administrative search of a pharmacy conducted by the Department of Professional Regulation pursuant to Sees. 465.017, 893.09(1) and 893.-07(4), Fla.Stat. (1979) revealed several suspect prescriptions for quaaludes written by the appellant, Dr. Robert Cushing, an oral surgeon. As a result, a three-count administrative complaint was filed against him. The hearing officer found Cushing guilty of improperly prescribing the drug in the incident charged in Count III1 and recommended dismissal of Counts I and II. On review, the Board of Dentistry adopted the hearing officer’s findings and recommendations in all respects.
There is no merit whatever in either of Dr. Cushing’s attacks upon the finding of guilt as to Count III. His first contention that the search of the pharmacy was invalid must be rejected out of hand both because (a) the appellant had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy and therefore may not assert the claim, United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), and (b) on the merits of the issue, the statutorily-authorized search effected below was in fact constitutionally permissible. United States ex rel. Terraciano v. Montanye, 493 F. 2d 682 (2d Cir. 1974), cert. denied, 419 U.S. 875, 95 S.Ct. 137, 42 L.Ed.2d 114 (1974); see, United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Federman v. State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, 414 So. 2d 28 (Fla. 3d DCA 1982).
There is likewise no basis for the assertion that the findings against the appellant are unsupported by substantial, competent evidence, DeGroot v. Sheffield, 95 So. 2d 912 (Fla.1957); Section 120.68(10), Fla.Stat. (1979), nor the contention that the patient to whom Dr. Cushing dispensed the quaaludes was improperly permitted to testify to the circumstances surrounding that prescription. Frantz v. Golebiewski, 407 So. 2d 283, 284, n.2 (Fla. 3d DCA 1981) and cases cited (no Florida doctor-patient or dentist-patient privilege); see Morrison v. Malmquist, 62 So. 2d 415 (Fla.1953).2 Finally, we regard as frivolous the appellant’s argument that the result as to either the search or the evidentiary issue is changed or even affected by the right of privacy provision of the Florida Constitution. Article I, Section 23, Florida Constitution (1980). Accordingly, on the appeal of Dr. Cushing, we affirm the determination below.
By cross-appeal, the appellee seeks to challenge alleged errors committed by the hearing officer which underlay his recommendation that Counts I and II be dismissed. Since, however, the Board adopted these very recommendations in the order now before us, the agency is thus essentially attempting to appeal from itself. It is very clear that this cannot be done, see Section 120.68(1), Fla.Stat. (1979), and the cross-appeal is therefore dismissed for lack of jurisdiction.
Affirmed, cross-appeal dismissed.
. The officer recommended and the Board imposed a fine and a one-month suspension of Cushing’s license to practice dentistry.
. No privilege against self-incrimination was asserted by either the patient or the appellant.
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State v. Carter, 23 So. 3d 798 (Fla. 1st DCA 2009)…“had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy” and was thus precluded from challenging the warrantless search of the pharmacy’s records. Cushing v. Dep’t of Prof'l Regulation, 416 So. 2d 1197, 1198 (Fla. 3d DCA 1982) (search pursuant to § 893.07(4), Fla. Stat.). In Cushing, the Court concluded: “we regard as frivolous the appellant’s argument that the result as to either the search or the evidentiary [*802] issue is changed or even affec…
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State v. Orquidea Fernandez, 36 So. 3d 120 (Fla. 2d DCA 2010)…nce.”). . As noted above, the State argued at the suppression hearing that there is no reasonable expectation of privacy with respect to completed prescriptions in possession of the pharmacy, citing Cushing v. Department of Professional Regulation, 416 So. 2d 1197, 1198 (Fla. 3d DCA 1982), which held that a dentist charged administratively with improperly prescribing drugs “had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy and therefore may…
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Fla. Dep't OF LAW Enf't v. Dukes, 484 So. 2d 645 (Fla. 4th DCA 1986)…ecommendations on appeal, based upon the present record, which reflects all of petitioner’s evidence having been disallowed. As to its first contention, petitioner is correct. In Cushing v. Department of Professional Regulation, Board of Dentistry, 416 So. 2d 1197, 1198 (Fla. 3d DCA 1982), the court stated the following: By cross-appeal, the appellee seeks to challenge alleged errors committed by the hearing officer which underlay his recommendation that Counts I and II be dismissed. Since, however, the Boar…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- United States v. Salvucci, 448 U.S. 83 (U.S. 1980)
- de Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957)
- United States v. Payner, 447 U.S. 727 (U.S. 1980)
- United States v. Biswell, 406 U.S. 311 (U.S. 1972)
- Schwartz v. The Babcock Co. & Dep't of Labor & Emp. Sec., 407 So. 2d 283 (Fla. 3d DCA 1981)
- Leonard Frantz, D.D.S. v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981)
- United States ex rel. Salvatore Terraciano v. Earnest Montanye, 493 F.2d 682 (2d Cir. 1974)
- Anderson et ux. v. United States, 419 U.S. 875 (U.S. 1974)
- Payne v. City of Fort Lauderdale, 419 U.S. 875 (U.S. 1974)
- Morrison v. Malmquist, 62 So. 2d 415 (Fla. 1953)