CHAPTER 583

SENATE BILL NO. 430

AS AMENDED BY SENATE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTER 47, TITLE 16, DELAWARE CODE, RELATING TO CONTROLLED SUBSTANCES.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend §4701 (8) of Title 16 of the Delaware Code by deleting the comma following the word "prescribing" and by inserting between the word "prescribing" and the word "administering" the phrase "for a legitimate medical purpose by an individual practitioner in the usual course of his profesional practice,".

Section 2. Amend §4711 of Title 16 of the Delaware Code by adding thereto a new sentence to read as follows:

"Except as otherwise provided in this Chapter, the Secretary may delete or reschedule substances enumerated in the Schedules of controlled substances only if:

1. such substances have been deleted from or rescheduled within the Federal schedules of controlled substances by the Attorney General of the United States pursuant to 21 USC §811, et seq.; and

2. the findings required by this Chapter for placement of substances in the Schedules of controlled substances have been made."

Section 4. Amend §4734 of Title 16 of the Delaware Code by striking subsection (a) in its entirety and substituting in lieu thereof a new subsection to read as follows:

"(a) A registration under §4733 of this Chapter to manufacture, distribute, or dispense a controlled substance may be suspended or revoked by the Secretary upon a finding that continued registration would be inconsistent with the public interest. In determining the public interest, the Secretary shall consider the following factors:

(1) maintenance of effective controls against diversion of controlled substances into other than legitimate medical, scientific or industrial channels;

(2) compliance with applicable State and local law;

(3) any convictions of the registrant under any Federal and State laws relating to any controlled substance;

(4) the existence in the registrant's establishment of effective controls against diversion;

(5) furnishing by the registrant of false or fraudulent material in any application filed under this chapter;

(6) suspension or revocation of the registrant's Federal registration to manufacture, distribute or dispense controlled substances as authorized by Federal law; and

(7) any other factors relevant to and consistent with the public health and safety."

Section 5. Amend Subchapter III of Chapter 47 of Title 16 of the Delaware Code by renumbering §4736, §4737 and §4738 as §4837, §4738 and §4739 respectively and by adding a new §4736 to read as follows:

"§4736. Authority of Secretary to impose fines.

(a) Whenever the Secretary has found a registrant to be guilty of a violation of the provisions of this Chapter or rules adopted pursuant to this Chapter he shall, in addition to the power and authority granted him in this Chapter, have the power to impose a fine on the registrant for such violation and require that such fine be paid, with the sanction that his registration may be suspended until the fine is paid. No fine imposed by the Secretary may exceed five hundred dollars ($500.00).

(b) Prior to the imposition of any fine, the Secretary shall hold an investigation and hearing after notice to the registrant or his attorney. A fine shall be imposed by the Secretary only upon finding that:

(1) the public welfare and morals would not be impaired by the imposition of such fine; and

(2) payment of the sum of money will achieve the desired disciplinary purposes.

The Secretary shall not impose a fine on a registrant whose registration has been revoked by the Secretary for such violation. The power and authority of the Secretary to impose such fines is not to be affected by any other proceeding, civil or criminal, concerning the same violation, nor shall the imposition of such fine preclude the Secretary from imposing other sanctions short of revocation.

(c) Any person so fined may appeal to the Superior Court for a trial de novo, provided the appeal is taken within fifteen (15) days of the time of the decision of the Secretary."

Section 7. Amend subsections 4756 (a) (3) of Title 16 of the Delaware Code by adding between the work "obtain" and the word "possession" the phrase, "or attempt to acquire or obtain,".

Section 8. Amend §4757 of Title 16 of the Delaware Code by striking the word "subcutaneous" wherever it appears in said section and substituting in lieu thereof the word "parenteral".

Section 9. Further amend §4757 of Title 16 of the Delaware Code by striking the period at the end of the first sentence of subsection (a) of said subsection and adding the following:

"or oral order of a practitioner immediately reduced to writing by such person."

Section 10. Further amend §4757 of Title 16 of the Delaware Code by striking subsection (b) thereof in its entirety and substituting and in lieu thereof a new subsection (b) to read as follows:

"(b) Every person who disposes of or delivers at retail, or gives away to any person the instruments described in subsection (a) of this section, upon the written order of a practitioner or oral order of a practitioner immediately reduced to writing by such person, shall, before delivering the same: (1) enter into a book kept for that purpose the day of the delivery, the name, age and address of the purchaser, and a description of the instrument sold, disposed of, furnished or given away, or 2) retain on file the original written order or oral order reduced to writing, noting on such orders any refills."

Section II. Further amend §4757 of Title 16 of the Delaware Code by adding, immediately after the last sentence of subsection (c) the following sentence:

"Every person who lawfully possesses an instrument described in subsection (a) of this section shall, before disposal, destroy such instrument in such a manner as to render it unfit for re-use in any manner."

Section 12. Further amend §4757 of Title 16 of the Delaware Code by adding thereto a new subsection (f) to read as follows:

"(f) The provisions of this section do not apply to:

(1) the sale at wholesale by pharmacies, drug jobbers, drug wholesalers and drug manufacturers or manufacturers and dealers in surgical instruments to practioners; and

(2) the furnishing or obtaining of hypodermic syringes or hypodermic needles for uses which the Secretary determines are industrial. Notwithstanding the other provisions of this section, a person may obtain such instruments, without a written order or oral order reduced to writing, for such industrial uses."

Section 13. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions of the Act which can be given effect without the invalid provisions or application, and to that end the provisions of this Act are declared to be severable.

Section 14. Amend §4766 of Chapter 47, Title 16, Delaware Code by striking the word "may" immediately after the word "Secretary" and inserting in lieu thereof the word "shall".

Section 15. Amend §4766 of Chapter 47, Title 16, Delaware Code by striking the following: "; or (3) Perform other law-enforcement duties as the Secretary designates" as the same appears at the end of Paragraph (2) and all of paragraph (3) and substituting in lieu thereof the following:

"and (3) have all powers of constables and other police officers of the State, Counties and other subdivisions of the State and may suppress all acts of violence and enforce the provisions of this Chapter.

Approved July 21, 1976