Arrestable Offenses / Crimes under Fla. Stat. 893.07
S893.07 5b - DRUGS-HEALTH OR SAFETY - FAIL TO REPORT THEFT LOSS SCHEDULE III IV V - M: S
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 18194, 2009 WL 4111210
...Heller, Assistant Attorney General, Tallahassee, for Appellant. Jeremy Keich, Ramey & Bytel Attorneys, LLC, DeFuniak Springs, for Appellee. CLARK, J. The State appeals the suppression of evidence obtained from a pharmacy by an investigating law enforcement officer. Because section
893.07(4), Florida Statutes, requires pharmacies to make controlled substance records available to law enforcement officers, and does not require pharmacies to notify the patient or withhold such records until a warrant is presented, the order granting the motion to suppress is reversed. *800 The police investigator obtained the records at issue while investigating a suspected "doctor shopping" violation. See §
893.13(7)(a)8., Fla. Stat. The pharmacy provided the records to the investigator pursuant to section
893.07(4), Florida Statutes....
...The application of the law to the facts is subject to this court's de novo review. See Brye v. State,
927 So.2d 78 (Fla. 1st DCA 2006). Florida legislative enactments do not supply a legal basis upon which to suppress the records at issue. To the contrary, section
893.07(4), Florida Statutes, requires pharmacies to maintain the records at issue here for a period of 2 years "for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances." The statute does not require a subpoena, warrant, or prior notice to the patient. The enactment of section
893.07 was an extension of warrantless search and seizure power by the Legislature "as part of a major legislative revision of the Florida drug abuse laws." Gettel v....
...Release of such records to persons other than the patient is prohibited, "[e]xcept as permitted by" chapter 893, Florida Statutes. §
465.017(2)(a), Fla. Stat. The records at issue were obtained pursuant to chapter 893, Florida Statutes. If the Legislature intended to require pharmacies to notify patients in connection with section
893.07, the Legislature would have included this requirement in the statute, as it did in statutes governing disclosure by other health care entities....
..."Required by law" is defined as "a mandate contained in law that compels an entity to make a use or disclosure of protected health information and that is enforceable in a court of law." 45 C.F.R. § 164.103. Statutes requiring the production of information are included in the definition of "required by law." Id. Section 893.07, Florida Statutes, is Florida's statute that requires pharmacies to produce, for inspection and copying by law enforcement officers, records of controlled substances sold and dispensed. Thus, a pharmacy's provision of records to investigating police officers in compliance with section 893.07, Florida Statutes, also comports with HIPAA....
...Johnson,
814 So.2d 390, 393 (Fla. 2002). Regulation of the sale and distribution of dangerous drugs has been recognized as a "vital interest" of the state. Whalen v. Roe,
429 U.S. 589,
97 S.Ct. 869,
51 L.Ed.2d 64 (1977). Other jurisdictions with statutes similar to section
893.07, Florida Statutes, have uniformly held that persons filling prescriptions for controlled substances have "a limited expectation of privacy in pharmacy records." Murphy v....
...he 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 Profl Regulation,
416 So.2d 1197, 1198 (Fla. 3d DCA 1982) (search pursuant to §
893.07(4), Fla....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...The deputy and the investigator were investigating an informant's claim that defendant had sold the informant drugs pursuant to the fraudulent prescriptions. They did not have a search warrant when they entered the pharmacy and seized the prescriptions, apparently relying upon section 893.07, Florida Statutes (1981), which requires every person who dispenses controlled substances to maintain certain records of each substance sold and to make those records "available for a period of at least 2 years for inspection and copyi...
...United States,
397 U.S. 72,
90 S.Ct. 774,
25 L.Ed.2d 60 (1970), and United States v. Biswell,
406 U.S. 311,
92 S.Ct. 1593,
32 L.Ed.2d 87 (1972). Olson,
287 So.2d at 315. Subsequent to Olson, the legislature did extend the warrantless search and seizure power by enacting section
893.07, Florida Statutes. Section
893.07 was enacted in 1973 as part of a major legislative revision of the Florida drug abuse laws....
...73-331, § 7, Laws of Fla. Apparently no similar provision was contained in the Florida statutes at the time of the 1970 search in Olson. The 1969 statutes did contain record keeping and record inspection provisions similar to those later enacted in section 893.07, but those provisions limited the inspection authority to officers and employees of the Division of Health and the Department of Health and Rehabilitative Services. See §§ 404.05 and 404.06, Florida Statutes, (1969). Unlike the prior provisions of sections 404.06 and 465.131, Florida Statutes (1969), section 893.07, Florida Statutes (1981), authorizes inspection by any law enforcement *415 officer "whose duty it is to enforce the laws of this state relating to controlled substances." Section 893.07 is part of the Florida Comprehensive Drug Abuse Prevention and Control Act, Chapter 893, which is the chapter containing the law that defendant was convicted of violating....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 10025, 2010 WL 2696288
...The State appeals the trial court's order granting Lori Tamulonis's motion to suppress evidence obtained from two pharmacies by a law enforcement officer. The State relies on State v. Carter,
23 So.3d 798 (Fla. 1st DCA 2009), in which the First District determined that section
893.07(4), Florida Statutes, does not require law enforcement officers to procure a search *526 warrant or subpoena prior to obtaining controlled substance records from pharmacies....
...similar medications from other doctors. Tamulonis argued that pharmacy records are medical records and that patients have a reasonable expectation of privacy in the records. The State responded that pharmacy records are not medical records and that section 893.07(4), Florida Statutes (2007 & 2008), authorizes law enforcement officers to obtain patient profiles and prescriptions for controlled substances without a subpoena or warrant....
...cy or the Constitution, necessarily agrees with that." The State filed a motion for rehearing. During the hearing on the motion for rehearing, the State argued that section
465.017(2)(a), Florida Statutes (2007 & 2008), when read in conjunction with section
893.07(4), gives law enforcement officers access to a pharmacy's controlled substance records without having to obtain a subpoena....
...Such records may be furnished in any civil or criminal proceeding, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or her or his legal representative by the party seeking such records. (Emphasis added.) Tamulonis's records were obtained pursuant to chapter 893. Section
893.07 requires pharmacists to maintain controlled substance records, including prescription records, and to make the records "available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances." §
893.07(4). As the First District noted in Carter: The statute does not require a subpoena, warrant, or prior notice to the patient.... If the Legislature intended to require pharmacies to notify patients in connection with section
893.07, the Legislature would have included this requirement in the statute, as it did in statutes governing disclosure by other health care entities. See §
395.3025, Fla. Stat. (hospitals); §§
400.0077 &
400.022(1)(m), Fla. Stat. (nursing homes); and §
456.057(7), Fla. Stat. (physicians).
23 So.3d at 800. Other jurisdictions with statutes similar to section
893.07 have upheld warrantless searches of prescription records for controlled substances....
...589, 598,
97 S.Ct. 869,
51 L.Ed.2d 64 (1977) (recognizing state's interest in monitoring the use of dangerous drugs); Johnson,
814 So.2d at 393 (finding the control and prosecution of criminal activity to be a compelling state interest). We also find that section
893.07 is narrowly tailored....
...Second, the records do not convey information about a patient's medical condition. Finally, such data is not available to the general public, but only to "law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances." § 893.07(4); see also Russo, 790 A.2d at 1150-51 (finding that pharmacy statute safeguards privacy interests by restricting access to controlled substance records to a limited class of persons)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 14233, 2011 WL 3962910
...Citing the First District's decision in State v. Carter,
23 So.3d 798 (Fla. 1st DCA 2009), the circuit court denied the motion to suppress the information in the pharmacy profiles, concluding that Detective Fowler had lawfully obtained this information under section
893.07(4)....
...The Pharmacy Records After the circuit court entered its written order on Mr. Mullis's motion to suppress, this court adopted the First District's reasoning in Carter in State v. Tamulonis,
39 So.3d 524 (Fla. 2d DCA 2010), review denied,
52 So.3d 662 (Fla. 2011). We concluded that section
893.07(4) authorizes "law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances" to obtain an individual's pharmacy records related to controlled substances without a warrant, a subpoena, or prior notice to the patient without violating that individual's constitutional privacy rights. Id. at 528 (quoting §
893.07(4)). Because Detective Fowler is a law enforcement officer, he was entitled to obtain Mr. Mullis's pharmacy records under section
893.07(4), see id., and we affirm without further discussion that part of the circuit court's order denying suppression of the pharmacy profiles....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 407, 2010 WL 199301
...endment and the Florida Constitution. She alleged that her prescriptions, which were obtained from a pharmacy without a warrant, were medical records protected under Florida law by section
395.3025(4)(d), Florida Statutes (2007). [1] She argued that section
893.07(4), Florida Statutes (2007), [2] is unconstitutional as applied to the inspection and seizure of her prescriptions....
...Detective Robinson met with the doctor, who stated that he had not written the prescriptions at issue. After the evidence was presented, the trial court stated that medical records are protected by section
395.3025(4)(d). The State responded that a prescription is not a medical record and that section
893.07(4) allows law enforcement to search and seize a prescription without a subpoena or warrant....
...The trial court then inquired whether a fraudulent record is a medical record, but the defense did not have an answer to that question. The defense argued that no authority allows the police to violate the Fourth Amendment with respect to medical records and that section 893.07(4) is unconstitutional....
...tions under the Fourth Amendment and Article I, Section 12, of the Florida Constitution and that her privacy rights were violated when Detective Robinson searched the prescription records without a warrant or subpoena. The trial court concluded that section 893.07(4) does not authorize the search and seizure of prescriptions without a warrant or subpoena; rather, it provides a time limit for law enforcement to copy and inspect a patient's records upon the issuance of either a warrant or subpoena. The trial court noted that section 893.07(4) appears overly broad and contains no checks and balances to protect a patient's privacy, but the trial court did not rule on its constitutionality. On appeal, the State argues that section 893.07(4) applies to the inspection and copying of prescription records and does not require a subpoena or warrant for law enforcement to access such records....
...We note that the First District recently held that section
395.3025 does not apply to pharmacy records provided by the pharmacy to police during a "doctor shopping" investigation. See State v. Carter,
23 So.3d 798 (Fla. 1st DCA 2009). The court held that section
893.07(4) applied and that it did not require pharmacies to "withhold such records until a warrant is presented." Id. We do not reach the application of sections
395.3025(4) or
893.07(4) to the instant case, however, because further proceedings are necessary to determine whether Fernandez had a reasonable expectation of privacy in the prescriptions....
...(d) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative. [2] Section 893.07 provides in relevant part: (4) Every inventory or record required by this chapter, including prescription records, shall be maintained: (a) Separately from all other records of the registrant, or (b) Alternatively, in the case of Sched...
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 3611, 2011 WL 923946
...ies and the information obtained from the physicians. The trial court granted the motion to suppress with regard to several of the documents obtained from the physicians. [1] The trial court denied the suppression of Lamb's pharmacy records based on section 893.07, Florida Statutes (2008)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2011 WL 561407
...Hendley with obtaining a controlled substance by fraud. He pleaded no contest, reserving the right to appeal the denial of his dispositive motion to suppress. On appeal, Mr. Hendley argues that the law enforcement officers acted impermissibly. However, because section 893.07, Florida Statutes (2008), requires pharmacists to maintain records containing controlled substances delivered by them and to make such records available for inspection and copying by law enforcement officers, the circuit court properly denied the motion to suppress....
...ions
395.3025(4)(d) and
465.017(2)(a), Florida Statutes (2008), without first obtaining a subpoena or a warrant and without probable cause. The State responded that the law enforcement officers had properly obtained the information in question under section
893.07(4)....
...Newman in 2007. Later, the State obtained a copy of the prescription that Mr. Hendley had filled at Hedges under the name of Dr. Barry Kruglick. At the conclusion of the hearing, the circuit court denied Mr. Hendley’s motion to suppress, concluding that section 893.07 authorized the Sarasota detectives to obtain the information from the pharmacy without a subpoena....
...Such records may be furnished in any civil or criminal proceeding, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or her or his legal representative by the party seeking such records. (Emphasis added.) Nevertheless, section 893.07(l)(b) requires persons engaged in the dispensing or distribution of controlled substances to “maintain, on a current basis, a complete and accurate record of each substance manufactured, received, sold, delivered, or otherwise disposed of by him or her.” Section 893.07(4) further provides in pertinent part that “[e]very inventory or record required by this chapter, including prescription records, shall be maintained ......
...and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” (Emphasis added.) *299 In Tamulonis , this court addressed the interplay between sections
465.017 and
893.07 and concluded that section
893.07(4) authorizes “law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances” to obtain an indiyidual’s prescription records related to controlled substances without a warrant, a subpoena, or prior notice to the patient.
39 So.3d at 528 (quoting §
893.07(4)); see also Shukitis, 60 So.3d at 407-08 (noting same). Although we recognized that individuals have a privacy interest in their prescription records, we concluded that the State has a compelling interest in regulating controlled substances and that section
893.07(4) is narrowly tailored to accomplish this goal. Tamulonis,
39 So.3d at 527-28 . Thus section
893.07(4) authorized Detective Armstrong — a narcotics detective investigating a pharmacy alert bulletin concerning Mr....
...Hendley’s passing fraudulent prescriptions for controlled substances — to obtain information from Ms. Provencal at Hedges Pharmacy with regard to Mr. Hendley’s passing a prescription for oxycodone. It follows that the circuit court properly denied Mr. Hendley’s motion to suppress under the authority of section 893.07(4)....
...It follows that he lacked standing to challenge the State’s search and seizure of that prescription. Because the essential facts are undisputed, and because we conclude that the Sarasota detectives were authorized to obtain the prescription under section 893.07(4), it would be a waste of judicial resources to remand this case for the circuit court to hold additional proceedings and to make findings about Mr....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 18110, 2011 WL 5554789
...o suppress. Ray v. State,
40 So.3d 95, 97 (Fla. 4th DCA 2010). The First and Second District Courts of Appeal, in State v. Carter,
23 So.3d 798, 800 (Fla. 1st DCA 2009), and Gettel v. State,
449 So.2d 413, 414 (Fla. 2d DCA 1984), both have held that Section
893.07(4), Florida Statutes (2008) authorizes police to search pharmacy records without a warrant....
...The Tamulonis court acknowledged that an individual has some expectation of privacy in his or her prescription records. See also State v. Fernandez,
36 So.3d 120, 123 (Fla. 2d DCA 2010). The State, on the other hand, has a compelling interest in regulating controlled substances. As the Tamulonis court stated, Section
893.07, Florida Statutes, is narrowly tailored: First, the statute only applies to controlled substance records....
...Second, the records do not convey information about a patient's medical condition. Finally, such data is not available to the general public, but only to "law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances." § 893.07(4); see also State v....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 410, 2010 WL 199299
...Even though everyone discussed the likelihood that the first prescription was not a real medical record, the significance of that possibility seemed to evade everyone at the abbreviated suppression hearing. Second, the State argues that the statutes relied upon by Mr. Bean are trumped by the authority given to the State in section 893.07....
...That statute generally requires every person who engages in the dispensing of controlled substances to keep records "available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances." § 893.07(4)....
...e that any licensed hospital was involved in this case and that statute was not alleged as a basis for suppression. Finally, while admitting that no constitutional issue had been raised in the motion to suppress, the order makes a determination that section 893.07(4) is "overly broad" and at least implies that it is unconstitutional when that issue was not before the court....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 13372, 2010 WL 3490265
...ot include pharmacies) nor section
456.057(7)(a)(3) (regulating health care practitioners, the definition of which expressly excludes pharmacists) required law enforcement to obtain a subpoena before procuring a patient’s pharmacy records. Rather, section
893.07(4), Florida Statutes (2007), which requires pharmacists to maintain controlled substance records for at least two years “for inspection and copying by law enforcement officers,” provides the authority for law enforcement to obtain pharmacy records regarding controlled substances without a warrant or notification to the patient. Tamulonis,
39 So.3d at 527 ; Carter,
23 So.3d at 799 . And because section
893.07(4) is narrowly tailored to effectuate the compelling state interest in regulating controlled substances, it does not violate Florida’s constitutional right to privacy....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 16735, 2010 WL 4365761
...ivil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient. The State, however, argued below that the instant records were obtained pursuant to section 893.07(4), Florida Statutes (2008), which provides as follows: Every inventory or record required" by this chapter, including prescription records, shall be maintained: (a) Separately from all other records of the registrant, or *408 (b) Alte...
...Tamulonis,
39 So.3d 524, 527 (Fla. 2d DCA 2010) (alteration in original). As such, the trial court here erred in applying section
395.3025 to Shukitis’ records that were obtained from the pharmacies. In Tamulonis , this court also concluded that section
893.07(4) allows for controlled substance records to be obtained by “law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances” without a search warrant, a subpoena, or patient consent....
...In so concluding, this court adopted the following reasoning of the First District in State v. Carter,
23 So.3d 798, 800 (Fla. 1st DCA 2009): The statute does not require a subpoena, warrant, or prior notice to the patient. ... ... If the [legislature intended to require pharmacies to notify patients in connection with section
893.07, the legislature would have included this requirement in the statute, as it did in statutes governing disclosure by other health care entities....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 75, 2011 WL 116001
...On appeal, the Hercs concede that the trial court did not have the benefit of several recent cases directly on point including State v. Tamulonis,
39 So.3d 524, 528 (Fla. 2d DCA 2010), and State v. Carter,
23 So.3d 798, 799 (Fla. 1st DCA 2009), which held that pursuant to section
893.07(4), Florida Statutes, law enforcement officers may obtain controlled substance records of pharmacies without notifying the patient or obtaining a warrant....
CopyPublished | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 16061, 2011 WL 4809132
...HIPAA, by its own language, exempts disclosure of individually identifiable medical information “for law enforcement purposes ... [p]ursuant to process and as otherwise required by law.” 45 C.F.R. § 164.512 (f)(1) (emphasis added). With regard to pharmaceutical records, [s]ection
893.07[, Florida Statutes,] requires pharmacists to maintain controlled substance records, including prescription records, and to make the records “available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” §
893.07(4). Tamulonis,
39 So.3d at 527 . In Tamulonis , this court adopted the First District’s conclusion in State v. Carter,
23 So.3d 798, 800 (Fla. 1st DCA 2009), that section
893.07 “ ‘does not require a subpoena, warrant, or prior notice to the patient.’ ” 39 So.2d at 527. Because section
893.07 requires a pharmacy to make its controlled substance records available to law enforcement officers enforcing controlled substance laws without need for a subpoena, warrant, or prior notice of the patient, disclosure of these records by pharmacists and pharmacies to law enforcement does not implicate HIPAA....
CopyPublished | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 2643, 2011 WL 711045
...95.3025(4)(d), Florida Statutes (2007 & 2008). In State v. Tamulonis,
39 So.3d 524, 527 (Fla. 2d DCA 2010), cert. denied,
52 So.3d 662 (Fla. Jan.3, 2011), however, this court determined that section
395.3025 did not apply to pharmacies. Instead, section
893.07(4), Florida Statutes (2007 & 2008), which requires pharmacists to maintain controlled substance records for at least two years “for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this s...
...Tamulonis,
39 So.3d at 527-28 ; 1 see State v. Carter,
23 So.3d 798, 799 (Fla. 1st DCA 2009). We are mindful of the dissent’s concerns regarding an individual’s privacy interest in his or her prescription records for controlled substances; however, we determined in Tamulonis that section
893.07(4) does not violate Florida’s constitutional right of privacy because the statute is narrowly tailored to achieve the State’s compelling interest in regulating controlled substances....
CopyPublished | Florida 2nd District Court of Appeal | 2012 Fla. App. LEXIS 1095, 2012 WL 246465
...Hay's motion to suppress did not address the failure to redeliver charge, and we affirm her judgment and sentence for that offense. [3] In the circuit court, the Hays also moved to suppress their pharmacy records that were obtained by law enforcement under section 893.07(4)....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 4811, 2011 WL 1261159
...osed to either doctor that she had received a prescription from the other. The trial court granted Wright’s motion to suppress. We agree with the analysis of our sister courts that the deputy’s obtaining of the pharmacy records was authorized by section 893.07(4), Florida Statutes (2009), and that the statute does not violate Article I, Section 23 of the Florida Constitution....
