HomeMy WebLinkAbout2003-044 Prohibition of Possession of Legend Drugs .5
ORDINANCE NO. 2003 - 44
AN ORDINANCE relating to public safety and morals; prohibiting the
possession of legend drugs without a prescription, and
creating a new section 6.08.300 of the City Of Yakima
Municipal Code.
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Section 6.08.300 of the City Of Yakima Municipal Code is
hereby enacted as a new section to read as follows:
"6.08.300 Possession of legend drug without prescription or order
prohibited— Exception and Penalties.
RCW 69.41.030 and 69.41.070 are hereby adopted by reference."
Section 2. This ordinance shall be is full force and effect 30 days after its
passage, approval, and publication as provided by law and by the City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this 1st day of
July, 2003
7
0 tee
Mary Place, Mayor
ATTEST:
By Ketfut-" ,. ie-e)--e
City Clerk
Publication Date: 1- I-1-0?)
Effective Date: % - 3-0?)
•
(Ik) ord legend drugs.jw .
,
69.41.020 ,.
FOOD, DRUGS, COSMETICS, ETC. LEGEND AND PRESCRIPTION DRUGS 69.41.030
Note 6
and knowingly attempted to obtain a nar- drug, for officer to testify that he arrested 219, § 2, eff. March 27, 1990; Laws 1991, ch. 30, § 1, eff. April 22, 1991;
cotic drug by use of forged prescription. defendant on another charge, and .jury Laws 1994, Sp.Sess., ch. 9, § 737, eff. July 1, 1991; Laws 1996, ch. 178,
State v. Thrift (1971) 4 Wash.App. 192, was properly instructed to disregard the
480 P.2d 222. testimony. State v. Thrift (1971) 4 Wash. § 17 eff. July 1, 1996
ft was improper, in prosecution for tit- App. 192, 480 P.2d 222.
tering a false prescription for a narcotic Historical and Statutory Notes
Laws 1977, ch. 69, § 1, deleted "or" Laws 1991, ch. 30, § I, throughout the
69.41.030. Sale, delivery, or possession of legend drug without preceding "a veterinarian under chapter section, substituted "podiatric physician
18.92 RCW "; and inserted "a commis and surgeon" for ' "podiatrist'' and made
prescription or order prohibited - Exceptions s medical or dental officer in the nonsubstantive changes; and, at the end,
United States armed forces, marine hos deleted a former proviso, which read:
It shall be unlawful for any person to sell, deliver, or possess any pital service, or public health service in "Provided Further, That it shall he unlaw-
legend drug except upon the order or prescription of a physician the discharge of his official duties, a duly fnl to fill a prescription written by an
licensed physician or dentist employed by authorized prescriber who is not licensed
under chapter 18.71 RCW, an osteopathic physician and surgeon the veterans administration in the dis- in this state if more than six months has
under chapter 18.57 RCW, a dentist under chapter 18.32 RCW, a charge of his official duties, a registered passed since the date of the issuance of
podiatric physician and surgeon under chapter 18.22 RCW, a veteri- nurse under chapter 18.88 RCW when the original prescription ".
•
Harlan tinder chapter 18.92 RCW, a commissioned medical or dental authorized by the board of nursing, or a Laws 1994, Sp. Sess., ch. 9 , § 737 in-
physician licensed to practice medicine
officer in the United States armed forces or public health service in and surgery or a physician licensed to serted or advanced registered Hunt
practitioner " ; substituted "chapter
the discharge of his or her official ditties, a duly licensed physician or practice osteopathy and surgery in any 18.79" for "chapter 18.88"; substituted
state or province of Canada which shares "nursin care quality assurance crnnrnis-
dentist employed by the veterans administration in the discharge of a common border with the state of Wash g " q
sion" for board of nursing "; substituted
his or her official duties, a registered nurse or advanced registered ington" (subsequently amended; see "board of osteopathic examiners" for '
nurse practitioner under chapter 18.79 RCW when authorized by the amendment note for Laws 1979, Ex.Sess., "committee of osteopathic examiners "
ch. 139, § 2, post.) q and substituted "medical quality assur-
nursing care quality assurance commission, an osteopathic physician
e• Laws 1979, Ex.Sess., ch. 139, § 2, in- ance commission" for "board of medical 1,
assistant under chapter 18.57A RCW when authorized by the board serted "an osteopathic physician" pre examiners ".
•
' - of osteopathic medicine and surgery, a physician assistant under ceding "or an osteopathic physician and Laws 1996, ch. 178, § 17, deleted "an
surgeon "; a nd inserted "an osteopathic
< chapter 18.71A RCW when authorized by the medical quality assur osteopathic physician or" following "nn- `I
physician's assistant under chapter der chapter 18.71 RCW", and, substi- r;
ance commission, a physician licensed to practice medicine and 18.57A RCW when authorized by the
Y toted "board of osteopathic medicine
sure or a h sician licensed to ractice osteo athic medicine and committee of osteopathic examiners, a 2.
T g rT P Y P P and surgery" for "hoard of osteopathic .,.
t surgery, a dentist licensed to practice dentistry, a podiatric physician
physician's assistant under chapter examiners", and "licensed to practice m;,
18.7IA RCW when authorized by the osteopathic medicine and surgery" for ..
. • and surgeon licensed to practice podiatric medicine and surgery, or a board of medical examiners, ". "licensed to practice osteopathy and '
_I •
• veterinarian licensed to practice veterinary medicine, in any province Laws 1981, ch. 120, § I, inserted the surgery ".
' of Canada which shares a common border with the state of Washing- final proviso at the end of the section. Effective date -Laws 1996, ch. 178:
ton or in any state of the United States: Provided, however, That the Laws 1987, ch. 144, § 1, preceding the See Historical and Statutory Notes fo1-
• first proviso, substituted "in any province lowing § 18.35.110.
•
above provisions shall not apply to sale, delivery, or possession by of Canada which shares a common bor- Severabtltty-h endings and captions
drug wholesalers or drug manufacturers, or their agents or employ- der with the state of Washington or in not law - Effective date -Laws 1994, Sp.
ees, or to any practitioner acting within the scope of his or her any state of the United States" for " any Sess., ch. 9: See §§ 18.79.900 through
• license, or to a common or contract carrier or warehouseman, or any state or province of Canada which shares 18.79,902,
a common border with the state of Wash
employee thereof, whose possession of any legend drug is in the • ington "; and added the further proviso at Fin r finds that 1990, 219: "The
usual course of business or employment: Provided further, That the end of section. i in thhe e border areas Washhinin gton citizens
s of this state are pro-
nothing in this chapter or chapter 18.64 RCW shall prevent a family Laws 1990, ch. 219, § 2, preceding the hibited from having prescriptions fro,n
f proviso, following "osteopathy and out -of -state dentists and veterinarians
planning clinic that is under contract with the department of social surgery" inserted ", a dentist licensed to filled at their in -state pharmacies, and
and health services from selling, delivering, possessing, and dispens practice dentistry, a podiatrist licensed to that it is in the public interest to remove •
ing commercially prepackaged oral contraceptives prescribed by practice podiatry, or a veterinarian ti- this barrier for the start's citizens."
tensed to practice veterinary medicine ". iLaws 1990, ch. 219, § 1.1
authorized, licensed health care practitioners.
Enacted by Laws 1973, 1st Ex.Sess., ch. 186, § 3. Amended by Laws 1977, • Administrative Code References ,
ch. 69, § 1; Laws 1979, Ex.Sess., ch. 139, § 2, eff. May 7, 1979; Laws 1981, Board of denture technology, participation in approved substance abuse monitoring •
ch. 120, § 1; Laws 1987, ch. 144, § 1, eff. April 22, 1987; Laws 1990, ch. program, see WAC 246 812 - 630.
2R7 2R2
i
69.41.030 FOOD, DRUGS, COSMETICS, ETC. LEGEND AND PRESCRIPTION DRUGS 69.41.040 t%
' 1 . ,-
dant's car at time of his arrest, containing 7. instructions • ,:1 FF"
Dentists, participation in approved substance abuse monitoring program, see WAC hypodermic needle and four small bot- Trial court properly instructed jury to I Y
246 -817 -830. ties, two of which contained narcotics. effect that after state has proved beyond ', E
• State v. Dinges (1956) 48 Wash.2d 152, reasonable doubt that accused had pos -
Library References 292 P.2d 361. session of narcotic drug, burden of show- - i {
i
Drugs and Narcotics al 1. Legend drugs, see Wash.Prac. vol. 11, ing that such narcotic was lawfully oh- ; '',
WESTLAW Topic No. 138. In prosecution for illegal possession of tained was matter of defense to he proved
P WPIC 55.01 et seq. narcotics, evidence was sufficient to ores- by evidence sufficient to raise reasonable
C.J.S. Drugs and Narcotics §§ 2 to 9, ent case to jury. State v. Dinges (1956) doubt as to unlawfulness of possession. ■
48 Wash.2d 152, 292 P.2d 361. State v. Boggs (1961) 57 Wash.2d 484, •f i•
358 P.2d 124.
Notes of Decisions
I •
In general 1 vided for physicians and surgeons. Wal- 69.41.032. Prescription of legend drugs by dialysis programs
Burden of proof 5 do v. Poe, D.C.Wash.1926, 14 F.2d 749. , i r
Evidence 6 This chapter shall not prevent a medicare - approved dialysis center
Instructions 7 5. Presumptions and burden of proof or facility operating a medicare-approved home dialysis program :
Knowledge or intent 2 ty P g PP y
In prosecution for possession of legend
Nurses 3 from selling, delivering, possessing, or dispensing directly to its , f
Osteopaths 4 drug with intent to deliver, since proof
P only es t a bli s h e d t i n qu estion con- dialysis patients in case or full shelf lots if p rescribed b a p
Presumptions and burden of proof 5 ' i.
tained ephedrine and did not eliminate licensed under chapter 18.57 or 18.71 RCW, those legend drugs
possibility that tablets were among ex- determined by the board pursuant to rule.
1. In general empt products, the state had failed to
meet its burden of establishing a prima Enacted by Laws 1987, ch. 41, § 2. H i
The numerous nonprescriptive forms of facie case. State v. Keating (1981) 30
ephedrine do not permit a presumption Wash.App. 829, 638 P.2d 624.
of unlawful possession. State v. Keating Cross References • z
• (1981) 30 Wash.App. 829, 638 P.2d 624. Once a showing of possession of a nar- Application of pharmacy statutes to dialysis programs, see § I8.64.257, k
cotic drug has been made, the burden of I
2. Knowledge or Intent showing unwitting or authorized posses- ,
Section 69.33.230 (repealed) did not re- sion falls upon the defendant. State v.
quire guilty knowledge or intent as ele- Clay (1972) 7 Wash.App. 631, 501 P.2d 69.41.040. Prescription requirements ; 4 • t
merit of crime, thereby making mere pos- 603, review denied. A p rescri p tion , in order to be effective in legalizing the possession K.,
•
session of narcotic a crime. State v.
Boggs (1961) 57 Wash.2d 484, 358 P.2d 6. Evidence of legend drugs, must be issued for a legitimate medical purpose by n :;
124. Constructive possession of a narcotic one authorized to prescribe the use of such legend drugs. An order
drug has been circumstantially estab- to be a prescription issued to a drug abuser or habitual -"
3. Nurses purporting P P
elude from the evidence that the defer- when the jury is entitled to con-
Actions of licensed registered nurse in user of legend drugs, not in the course of professional treatment, is
elude g g
removing controlled substances and leg- dant had dominion and control over the not a prescription within the meaning and intent of this section; and
end drugs from her place of work to her place where the drug was found. State v. the person who knows or should know that he is filling such an !
home did not, without more, constitute a Clay (1972) 7 Wash.App. 631, 501 P.2d g •
"distribution" within meaning of Nursing 603, review denied. order, as well as the person issuing it, may be charged with violation
Act, § 18.88.230, absent showing of some of this chapter. A legitimate medical purpose shall include use in the
attempt to transfer the drugs to another Actual possession of a narcotic drug P rP ose
person, and thus did not warrant suspen- has been established when connection of course of a bona fide research program in conjunction with a
sion of nursing license. Garrison v. the drug to the defendant has been shown hospital or university.
Washington State Nursing Bd. (1976) 87 by substantial direct evidence. State v.
Wash.2d 195, 550 P.2d 7. Clay (1972) 7 Wash.App. 631, 501 P.2d Enacted by Laws 1973, 1st Ex.Sess., ch. 186, § 4.
Registered nurse may execute orders 603, review denied.
Libra Re ferences
issued by physician's assistant for the ad- Evidence was sufficient to sustain ver- ry •
ministering of drugs before orders are diet of guilty, in prosecution for unlawful- Drugs and Narcotics ' 11. C.J.S. Drugs and Narcotics §§ 2 to 9,
• countersigned by supervising physician. iy possessing and having under control a WESTLAW Topic No. 138. 27.
Op.Atty.Gen.1978, L.O. No. 12. narcotic drug. State v. Henker (1957) 50 •
4. Osteopaths
Wash.2d 809, 314 P.2d 645.
Duly qualified and registered osteopath In prosecution for illegal possession of
was entitled to possession and adminis- narcotics, court properly admitted in evi-
tration of narcotic drugs in manner pro- dence a paper bag, found near defen-
,a,, 385 1
•
69.41.010 FOOD, DRUGS, COSMETICS, ETC. FOOD, DRUGS, COSMETICS, ETC. 69.41.030
3 `'
(h) Substances intended for use in the diagnosis, cure, m itigation, treat - j (c) A physician licensed to pract.ire medicine and surgery or a physician
meat, (n prevention of disease in man or animals; j licensed to practice osteopathic medicine and surgery in any state, or province
u (c) Substances (other than food, minerals or vitamins) intended to affect the of Canada, which shares a common border with the state of Washington. .
structure or any function of the body of man or animals; and
(15) "Secretary" means the secretary of health or the secretary's designee.
(d) Substances intended for use as a component of any article specified in [2000 c 8 § 2. Prior: 1998 c 222 I 1; 1998 c 70 § 2; 1996 c 178 § 16; 1994 sp.s. c 9 § 73c;
clause (a), (b), or (c) of this subsection. It does not include devices or their j prior: 1989 1st ex.s. c. 9 § 426; 1989 c;16 § 3; 1984 c 153 I 17; 1980 c 71 § 1; 1979 ex.s. c
- components, parts, or accessories. l 139 § 1; 1973 1st ex.s. c 186 11.] _
(9) "Electronic communication of prescription information" means the corn- .. .. ,
-
Historical and Statutory Notes
munication of prescription information by computer, or the transmission of an
exact visual image of a prescription by facsimile, or other electronic means for ! Findings-- c. 8: "The leg Effective date - 1996 c 178: See note
original prescription information or prescription refill information for a legend islature Ends that we have one of the following RCW 18.35.110. •
drug between an authorized practitioner and a pharmacy or the transfer of : finest health care systems in the world Severahility ileadings and captions
• prescription information for a legend drug from one pharmacy to another '; and excellent professionals to deliver that ' - not law Elute - 1994 sp.s. c 9:
p care. However, there arc incidents of See RCW 18.79.900 through 15.79.902.
• medication errors that are avoidable ent . and -1989 1st
(10) "Legend cugs" means any drugs which are required by state law or serious mist�ukes that. are prevrnta e ffeclivc dale severability ility 910 d
an
regulation of the state board of pharmacy to be dispensed on prescription only Medical errors throughout the health care 41 70 9v0 c 9: See RCW '
or are restricted to use by practitioners only. system constitute one of the nation's lead
• (11) " Legible prescription" means a prescription or medication order issued ing causes of death and injury resulting in 1998 Legislation ,
- pharmacist by a practitioner that is capable of being read and understood by the over seven thousand deaths a year, ac_ Laws 19)8 , ch. 70, § inscrt.cd t}ut
cording to a recent report from the insti rrenlefinit.inn er of t he
Medication assust n d o aura
filling the prescription or the nurse or other practitioner imple ' 1 Lute of medicine. The majority of medi umbed t - subsequent. definitions.
meeting the medication order.
errors do not result from individual reek- Laws 1998, ch. 222, § 1, inserted the
(12) " Medication assistance" means assistance rendered by a nonpractition= lessness, but from basic flaws in the way definition of "electronic communication of ' •
er to an individual residing in a community -based setting specified in RCW the health system is organized. There is prescription information"; redesignated
69.91.085 to facilitate the individual's self- administration of a legend drug or a need for a comprehensive strategy for the following subsections accordingly; and
controlled substance. It includes reminding or coaching the individual, hand- I government, industry, consumers, and in the definition of " pract.itioner " inserted .
ing the medication container to the individual, opening the individual's medi- health providers to reduce medical errors. "a naturopath licensed under chapter
cation container, using an enabler, or placing the medication in the individual's ' The legislature declares a need to bring 1R.36A RCW".
hand, and such other means of medication assistance as defined by rule about greater safety for patients in this 2000 Legislation .
adopted by the department. The nonpractitioner may help in the preparation state who depend on prescription drugs. Laws 2000, ch. 8, § 2, inserted suhsec. •
•
of legend drugs or controlled substances for self- administration where a It is the intent of the legislature to (11), a definition of 'legible prescription "; ,
practitioner has determined, in consultation with the individual or the individu- promote medical safety as a top priority and renumbered the following subsections ,:,
• al's representative, that such medication assistance is necessary and appropri- ! for all citizens of our state." 12000 c 8 § 1.1 accordingly.
ate. Medication assistance shall not include assistance with intravenous j
medications or injectable medications. Notes of Decisions
(13) "Person" means individual, corporation, government or governmental Delivery 3 practitioner, even if there is a valid order . .
subdivision or agency, business trust, estate, trust, partnership or association, or prescription. State v. Clausing (2001) - • •
or any other legal entity. 104 Wash.App. 75, 15 P.3d 203, review
• k; (14) "Practitioner" means: 3. Delivery granted 145 Wash.2d 1039, 43 P.3d 22. , • It is not unlawful to deliver or possess Information charging defendant with
(a) A physician under chapter 18.71 RCW, an osteopathic physician or an j with intent to deliver a legend drug that is "unlawfully" delivering legend drugs, and
t- osteopathic physician and surgeon under chapter 18.57 RCW, a dentist under dispensed by a licensed practitioner up on alleging that defendant had not been li
chapter 18.32 RCW, a podiatric physician and surgeon under chapter 18.22 the order or prescription of a licensed ceased as a physician or practitioner, adc •;' .'
RCW, a veterinarian under chapter 18.92 RCW, a registered nurse, advanced physician or osteopathic physician, or de
p livered by a practitioner acting within the quately informed defendant that h cou ld
registered nurse practitioner, or licensed practical nurse under chapter 18.79 license. State v. he convicted of unlawful delivery of a h g -
u RCW, an optometrist under chapter 18.53 RCW who is certified by scope of his or her lice
the 1 Clasing (2001) 104 her lice pp. 75, 15 P.3d end drug even if the. person to whom he
• optometry board under RCW 18.53.010, an osteopathic physician assistant 203, review granter] 145 Wish .2d 1039, 93 delivered the legend drug had a valid pre -
under chapter 18.57A RCW, a physician assistant under chapter 18.71A RCW, pad script.ion. State v. Claiming (2001) 104 •
a naturopath licensed under chapter 18.36A RCW, or a pharmacist under The person making the delivery of a Wash.App. 75, 15 1'.3d 203, review granted . . .
• c 18.64 RCW; legend drug ,must himself be a licensed 145 Wa.sh.2d 10 39, 43 P.3d 22. - .
(b) A pharmacy, hospital, or other institution licensed, reg or other- .
wise permitted to distribute, dispense, conduct research with respect to, or to ' 69.41.030. Sale, delivery, or possession of legend drug without
administer a legend drug in the course of professional practice or research in j prescription or order prohibited Exceptions , '
this state; and
32 `. 33 .
1 • • •
• ,,, i ,
• • r ' 69.41.03O FOOD, DRUGS, COSMETICS, ETC. . FOOD, DRUGS, COSMETICS, ETC. 69.41.055 •
:i...:•• N otes of . Decisions Notes of Decisions ' •
Delivery 2.5 tion at the time defendant delivered the 1. In general review granted 145 Wash.2d 1029, 43 P.2d •
Indictment or information 4.5 drugs. State v. Clausing (2001) 104 l�'ash. Instruction regarding labeling require- 22.
}' App. 75, 15 P.3d 203, review granted 1151 ments for legend drugs did not improperly Instructions on the requirements for
Wash.2d 1039, 43 P.3d 22.. relieve the state from its obligation, in valid prescriptions, including labeling re- •
it te
. r'' 2,5. Delivery I prosecution for unlawful delivery of legend quirements, were warranted in prrsncu- ,
• •,' 6. Evidence i drugs, to prove that defendant's transfer tion for unlawful delivery of legend dnigs, •
It is no t un to •
deliver or possess Any error in admitting testimony of ex- i • of legend drugs to patient was unlawful; where defendant presented the defense , •
with intent to deliver a legend drug that is ecutive director of Board of Pha acy instruction could not have reasonably led that. the drugs were lawfully delivered •
• dispensed by a licensed practitioner upon that revoking a doctor's license would i jury •
u to believe that it could convict defer- upon the order of a physician. State V.
the order or prescription of a licensed make preexisting prescriptions issued by! dant of unlawful delivery based solely on Clausing (2001) 104 Wash.App. 75, 15 P.3d .
•
k' physician or osteopathic physician, or de- improper laheling. State v. Clausing 203, review granted 145 Wash.2r1 1019, 43
that doctor invalid was harmless, in prose- .
livered by a practitioner acting within the cution for unlawful delivery of legend' . (2001) 104 Wash.App. 75, 15 P.3d 20:1, P.3d 22. •
scope of his. or her license. State v. • • • , ,
drugs, where defendant never introduced i '
Clausing (2001) 104 Wash.App. 76, 15 P.3d any prescriptions or medical records to
• 203, review granted 145 Wash.2d 1039, 43 con•oborate his claim of preexisting au - I, 6 9.41.050. Labeling requirements
. , P.3d 22. • • •
thorit to issue prescriptions. State v. . -
Y P P h Notes of Decisions ..
The person making the delivery of a Clausing (2001) 104 Wash.App. 75, 15 P,3d' • 2 •
legend drug must himself be a licensed 203, review granted 145 Wash.2d 1039, 43 t in general 1 (2001) 10.1 Wash.App. 75, 15 P 3d 203, . .
practitioner, even if there is a valid order I'.3d 22. review granted 145 Wash.2d 1039, 4:1 P.3d .
or prescription. State v. Clausing (2001) Prosecutor's closing argument in prose- 22.
10.1 Wash.App. 75, 15 P.3(1 203, review cution for unlawful delivery of legend 1• in general instructions on the rerpriroments for
•
granted 115 Wash:2d 1039, 43 P.3d 22 . drugs, that there was no valid prescription ;. Instruction regarding labeling require- valid prescriptions, including laheling re-
ments for legend drugs did not. improperly uireme.nts, were wan acted in prosecu-
for the drugs delivered by defendant, was i re lieve the state from it.s obli Minn, in q •
4.5. Indictment or informntion { g
Information charging defendant with a defensible characterization of the facts, L s
1 prosecution for unlawful delivery of legend Lion for unlawful delivery of legend drug,
"unlawfully" delivering legend drugs, and so that defendant was not deprived of a where defendant presented the defense
d to prove that de fendant's transfer were eenan presene.
fair trial, where defendant failed to pro - of legend drugs to patient was unlawful; that the drugs were lawfully delivered •
alleging that defendant had not been li- vide evidence of a valid prescription. instruction could not have reasonably led upon the order of a physician. State v.
censed as a physician or practitioner, arse- State v. Clausing (2001) 104 Wash.App. 75, jury to believe that it could convict defer- Clausing (2001) 104 Wash.App. 76, 15 I'.3r1
quately informed defendant that he could 15 P.3d 203, review granted 145 Wash.2d ` dant of unlawful delivery based solely on 203, review granted 145 Wash.2d 1039, 43
he convicted of unlawful delivery of a leg- 1039, 43 P.3d 22. • I improper labeling. State v. Clausing P.3d 22.
• . end drug even if the person to whom he
delivered the legend drug had a valid pre- 7. Instructions
scription. State v. Clausing (2001) 104 I nstruction regarding labeling require- 69 Electronic communication of prescription informa-
. Wash.App. 75, 16 P.3d 203, review granted ments for legend drugs did not improperly tion —Board may adopt rules
. 145 Wash.2d 1039, 43 P.3r1 22. relieve the state from its obligation, in (1) Information concerning an original prescription or information concern -
Information charging defendant. with prosecution for unlawful delivery of legend ing a prescription refill for a legend drug may he electronically communicated
unlawful delivery of legend drugs was not drugs, to prove that defendant's transfer h between an authorized practitioner and a pharmacy of the patient's choice with
required to disclose the possible defense of legend drugs to patient was unlawful; t no intervening person having access to the prescription drug order pursuant, t.n
•
that delivery was not unlawful if the leg- instruction could not have reasonably lerl the provisions of this chapter if the electronically communicated prescription
end drugs were dispensed by a licensed jury to believe that it could convict rlefen- 4 information complies with the following:
practitioner pursuant to a valid prescrip- dant of unlawful delivery based solely on 4
tion. State v. Clausing (2001) 104 Wash. improper labeling. State v. Clausing (a) Electronically communicated prescription information must comply with
App. 75, 15 P.3d 203, review granted 145 (2001) 104 Wash•App. 75, 15 P.3d 203, all applicable statutes and rules regarding the form, content, recordkeeping, .
Wash.2d 1039, 43 P.3d 22. review granted 145 Wash.2d 1039, 43 P.3d i and processing of a prescription for a legend drug; • •
-ii'' Defendant was not prejudiced by failure V2 ' (b) The system used for transmitting electronically communicated prescrip- • •
�`t'' of i nformation charging in defendant with Instructions on the re uirements for -
• gu g q tion information and the system used for receiving electronically comrriunicat
unlawfully delivering legend drugs to dis valid prescriptions, including labeling re ed prescription information must be approved by the hoard. This subsection
close that he could be convicted even if the quirements, were warranted in prosecu does not apply to currently used facsimile equipment transmitting an exact • , . •
person to whom he delivered the legend tion for unlawful delivery of legend drugs, , image of the prescription. The board shall maintain and provide, upon
drugs had a valid prescription, where the where defendant presented the defense request, a list of systems use f electronically communicating prescription , • '
• statute as a whole made it c that a that the drugs were lawfully delivered information currently approved by t h e board;
prescription could not be delivered unless upon the order of a physician. State v. ;
lawfully dispensed by a licensed practi- Clausing (2001) 104 Wash.App. 76, 15 P.3d (c) An explicit opportunity for practitioners must he made to indicate their . .
tioner, and defendant failed to produce 203, review granted 146 Wash.2d 1039, 43 preference on whether a therapeutically equivalent generic drug may be . .
evidence that patient had a valid prescrip- P.3d 22. substituted; ' •
rtes:
a: • (d) Prescription drug orders are confidential health information, and may he •
69.41.040. Prescription requirements I released only to the patient or the patient's authorized representative, the
t
• 3 35
• •
C.
69.41.060 FOOD, DRUGS, 'COSMETICS, ETC. LEGEND AND PRESCRIPTION DRUGS 69.41.070 '
.
Historical and Statutory Notes (2) Except as otherwise provided in subsection (3) of this section,
Laws 1987, ch. 201, § 227, near the justice of the peace or judge shall "'; and upon petition of a juvenile whose privilege to drive has been revoked ;; t „
• beginning of the first sentence, substitut- neutralized gender. pursuant to RCW 46.20.265, the court may notify the department of l
ed "superior or district court" for "supe- Intent —Laws 1987, ch. 202: See His-
nor court or justice of the peace "; and torical and Statutory Notes following licensing that the juvenile's privilege to drive should be reinstated. ;; t,
substituted "such judge shall" for "such § 2.04.190. ' 1;1
(3) If the conviction is for the juvenile's first violation of this : 1 '
chapter or chapter 66.44, 69.50, or 69.52 RCW, the juvenile may not ;
Cross References
Legend drugs as contraband and subject to seizure, see § 69.41.230. petition the court for reinstatement of the juvenile privilege to drive 1
revoked pursuant to RCW 46.20.265 until the later of ninety days
• Library References a date the juvenile s after the „ judgment was entered. If the cnviction was for the juvenle's
Drugs and Narcotics a25. C..i.s. Drugs and Narcotics §§ 72, 74, WESTLAW Topic No. 138. 82. second or subsequent violation of this chapter or chaper 66.44, . • FF''
69.50, or 69.52 RCW, the juvenile may not petition the court for . f ' ,
Notes of Decisions reinstatement of the juvenile's privilege to drive revoked pursuant to t
1 t
In general 1 unlawfully possessing and having under RCW 46.20.265 until the later of the date the juvenile turns seventeen
Probable cause 2 his control narcotic drug, where marijua- or one year after the date judgment was entered. i.
na leaves from plant growing in garden Enacted by Laws 1988, ch. 148, § 4. Amended by Laws 1989, ch. 271, ...t.,: i j:
1. In general in accused's backyard were turned over § 119, eff. May 7, 1989. t
g to police and analyzed, and thereupon i t
A search warrant for "scheduled and -
police officer went on property of ac-
legend drugs” is not, per se, constitution - Historical and Statutory Notes 1 f'
cused's neighbor and observed some
ally overbroad. State v. Salinas (1977) •1 i. f
18 Wash.App. 455, 569 P.2d 75. plants having characteristics of marijua- Laws 1989, ch. 271, § 119, rewrote the "(3) The court shall not notify the de- y
na rowin in accused's garden. State v. section, which previously read: partment that the juvenile's driving privi-
g g g ,+i : w
i'
2. Probable cause Henker (1957) 50 Wash.2d 809, 314 P.2d "(1) If a juvenile under eighteen years leges should he reinstated for a period of li
• Search warrant was issued on probable 645. of age, but thirteen or over, is found by a ninety days after the entry of the iudg- i; {
cause that accused was guilty of crime of court to have committed any offense that ment if it is the first revocation with ,.,
is a violation of this chapter, the court respect to the juvenile under this section - It ', {': p'
69.41.062. Search and seizure at rental premises—Notification shall notify the department of licensing or RCW 46.20.265, or for a period of one + t i,
p within twenty -four hours after entry of year after the issuance of the order if it is 2 i �'
• of landlord the judgment. the second or subsequent such revocation
"(2) Except as otherwise provided in issued with respect to the juvenile." -
Whenever a legend drug which is sold, delivered, or possessed in subsection (3) of this section, the court, y
violation of this chapter is seized at rental premises, the law enforce- se rival a t —Laws 1989, Notes 271: i ng } } ;
• p p upon petition of a juvenile who has been Historical and Statutory Notes (ollmcing
ment agency shall make a reasonable attempt to discover the identity found by the court to have committed an § 9.94A.310. t
of the landlord and shall notify the landlord in writing, at the last offense that is a violation of this chapter, J
may notify the department of licensing Legislative finding — Severability— - 1 c
address listed in the property tax records and at any other address that the juvenile's privilege to drive Laws 1988, ch. 148: See Historical and
known by the law enforcement agency, of the seizure and the should be reinstated. Statutory Notes following § 13.40.265. '
location of the seizure.
Enacted by Laws 1988, ch. 150, § 8. 69.41.070. Penalties • ;1 m
Whoever violates any provision of this chapter shall, upon convic- ; i t
Historical and Statutory Notes tion, be fined and imprisoned as herein provided: 'I '
Legislative findings— Severability— f
1
Laws 1988, ch. 150: See Historical and (1) For a violation of -RCW 69.41.020, the offender shall he guilty t 1
• Statutory Notes following § 59.18.130. of a felony. .: i
• 69.41.065. Violations — Juvenile driving privi (2) For a violation of RCW 69.41.030 involving the sale, delivery •
(1) If a juvenile thirteen years of age or older and under the age of or possession with intent to sell or deliver, the offender shall be guilty
twenty -one is found by a court to have committed any offense that is i of a felony.
a violation of this chapter, the court shall notify the department of (3) For a violation of RCW 69.41.030 involving possession, the
licensing within twenty-four hours after entry of the judgment. offender shall be guilty of a misdemeanor.
388 389 •
•
69.41.070 FOOD, DRUGS, COSMETICS, ETC. LEGEND AND PRESCRIPTION DRUGS 69.41.080 'i. * .•
(4) For a violation of RCW 69.41.040, the offender shall be guilty In identifying legend drugs the board may incorporate in its rules j
of a felony. lists of drugs contained in commercial pharmaceutical publications • - t'
by making specific reference to each such list and the date and • .'
(5) For a violation of RCW 69.41.050, the offender shall be guilty Y g P
of a misdemeanor. edition of the commercial publication containing it. Any such lists so i ' `'--.: ri,
incorporated shall be available for public inspection at the hcadquar- i
(6) Any offense which is a violation of chapter 69.50 RCW other ters of the department of health and shall be available on request ' '"'.° •
than RCW 69.50.401(c) shall not be charged under this chapter. P 1 1 ...)i°' 1"'i•,
from the department of health upon payment of a reasonable fee to i,,
(7) For a violation of RCW 69.41.320(1), the offender shall be be set by the department. ' il.`,,,,',, "
O Y P 1 'i 1-.� •
guilty of a gross misdemeanor and subject ect to disci ling action E nac t e d b Laws 1979, Ex.Sess., ch. 139, § 3, eff. Ma 7, 1979. Amended b ' + 1 � °'.a'
Y Y i � „�;.,
under RCW 18.130.180. J disciplinary Laws 1989 1st Ex.Sess., ch. 9, § 427, ell July 1, 1989. t l ^ ' •
(8)(a) A person who violates the provisions of this chapter by . f:! ::47-::
Historica an Statutory Notes
possessing under two hundred tablets or eight 2cc bottles of steroid l' "ff:;w ',.:
P P guilty of a gross 1989, 1st Ex.Sess., ch 9, § 427, and sentence, substituted " department of ,+ r I'..
without a valid prescription is ross misdemeanor: f %�
in the first paragraph, in the first sen- health" for "state board of pharmacy 1 �•
(b) A person who violates the provisions of this chapter by possess fe nce, following "enforcement" deleted and "hoard „l ..... •
and administration"; in the second sen - Effective date— Severablllty —Laws :r ��, ± " „w•
ing over two hundred tablets or eight 2cc bottles of steroid without a tence, substituted "34.05” for "3404 "; 1989, 1st Ex.Sess., ch. 9: See .i 1 ` 7
'; r:
• valid prescription is guilty of a class C felony and shall be punished and in the second paragraph, in the sec - §§ 43.70 910 and 43.70.920. 1; • ?:'`c,`:.
according to RCW 9A. 20.010(1)(c).' Library References .. r. t ^ '.f;; I " :: , %T4
fir
:�w .
Enacted by Laws 1973, 1st Ex.Sess., ch. 186, § 7. Amended by Laws 1983, ,y,1:. ".;��;:r
1st Ex.Sess., ch. 4, § 4; Laws 1989, ch. 369, § 4. Drugs and Narcotics , .1 I. C.J.S. Drugs and Narcotics §§ 2 to 9, ,, =!
WESTLAW Topic No. 138. 27. • 11 t' "' ` 6
I Reviser's Note: The reference to RCW 9A.20.010(1)(c) is erroneous. The section
governing the maximum sentence for a class C felony is RCW 9A.20.021(1)(c). . .it "/
Notes of Decisions -'C i .
• .
Historical and Statutory Notes In general 1 governing the dispensing o drugs by per- . ^ 11'',;m I::,,: •
rY
ii Laws 1983, ist.Ex.Sess , ch. 4, §. 4, in- Severability —Laws 1983, 1st Ex.Sess., sons other than licensed harmacists. ..
Op.Atty.Gen.1983, No 12. .,,_,
serted in subsec. (6) "other than RCW ch. 4: See historical and Statutory Notes 1. In general K
69.50.401(c) ". following § 9A.48.070. The state board of pharmacy is antho- x"
,, Laws 1989, ch. 369, § 4, added sub- rized by this section to promulgate rules �, '
` F . ! ""
i■ secs. (7) and (8). j
Library References 6 9.41.080. A nimal control —Rules for possession and use of leg - t. ' ; i1 » •:,
end drugs }} '�;�;r:
Drugs and Narcotics c=24 Legend drugs, see Wash.Prac. vol. 11, �' ' „^ a ::� ,_
WE Topic No 138. WPIC 55.01 et seq. Humane societies and animal control agencies registered with the .1- P
C J.S. Drugs and Narcotics §§ 84 to 90. state board of pharmacy under chapter 69.50 RCW and authorized to
animals may purchase, possess, and administer approved ' ' ''' "' I, .
69.41.075. Rules — Availability of lists of drugs legend drugs for the sole purpose of sedating animals prior to �'' %' .
The state board of pharmacy may make such rules for the enforce- euthanasia, when necessary, and for use in chemical capture pro ,� ,r, • „.
ment of this chapter as are deemed necessary or advisable. The grams. For the purposes of this section, "approved legend drugs" ",:
board shall identify, by rule- making pursuant to chapter 34.05 RCW, means those legend drugs designated by the board by mile as being . '" : = *:• !:.
approved for use by such societies and agencies for animal sedating
those drugs which may be dispensed only on prescription or are a pp y g g �� •�:�`-.
restricted to use by practitioners, only. n so doing the b oard s hall
} g or capture and does not include any substance regulated under + :;.•; „ •. �, "s
consider the toxicity or other potentiality for harmful effect of the chapter 69.50 RCW. Any society or agency so registered shall not
drug, the method of its use, and any collateral safeguards necessary permit persons to administer any legend drugs unless such person
to its use. The board shall classify a drug as a legend drug where has demonstrated to the satisfaction of the board adequate knowl- :, f: 1
these considerations indicate the drug is not safe for use except edge of the potential hazards involved in and the proper techniques " ”
,...,re.. 4,.. ...,......—;‘.; nr, r,f r+ractitinnar to be used in administerine the drugs. ,`'
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For meeting of July 1, 2003
ITEM TITLE: An ordinance relating to public safety and morals; prohibiting the
possession of legend drugs without a prescription, and creating a
new section 6.08.300 of the City Of Yakima Municipal Code.
SUBMITTED BY: Jeff B. West, Senior Assistant City Attorney.
CONTACT PERSON: Jeff B. West, Senior Assistant City Attorney, 575 -6033
SUMMARY EXPLANATION: RCW 39.34.180 requires the City of Yakima to pay
for the prosecution, adjudication, sentencing and incarceration of all
misdemeanors and gross misdemeanors that arise within the City of Yakima. In
order to avoid paying Yakima County to prosecute misdemeanor violations
arising in the City of Yakima, a full range of misdemeanor and gross
misdemeanor criminal ordinances must be incorporated into the Yakima
Municipal Code. The proposed ordinance enacts as a City ordinance the
Washington State statute prohibiting the possession of legend drugs without a
prescription. Legend drugs are those drugs which cannot be purchased without
a prescription written by a physician or a dentist. Adoption of this ordinance will
have budgetary impacts in terms of additional jail costs and processing costs.
However, these costs are the result of unfunded mandates imposed by RCW
39.34.180.
Resolution Ordinance X Other (Specify)
Contract _ Mail to (name and address):
Phone:
Funding Source
APPROVED FOR SUBMITTAL:
City Manager
•
STAFF RECOMMENDATION: Pass ordinance
BOARD /COMMISSION RECOMMENDATION:
COUNCIL ACTION: Ordinance passed. ORDINANCE NO. 2003 -44
(1k)agenda legend drugs.jw