Ex Parte Sarros

• Decision Date: 03 August 1934
• Citation: 156 So. 396,116 Fla. 86
• Parties: Ex parte SARROS.
• Court: Florida Supreme Court

156 So. 396

116 Fla. 86

Ex parte SARROS.

Florida Supreme Court

August 3, 1934

En Banc.

Original petition of habeas corpus by George Sarros.

Petitioner discharged from custody.

COUNSEL J. T. Chancey, of Tampa, for petitioner.

Whitaker Brothers, of Tampa, for respondent.

OPINION

BUFORD Justice.

This is an original proceeding in habeas corpus.

The petitioner filed his petition before this court alleging that he was unlawfully held in custody under warrant issued out of the court of the Third justice of the peace district of Hillsborough county, Fla., in which it was charged that on the 10th day of July, 1934, George Sarros 'did engage in conduct, carry on and dispense and retail medicinal drugs medicinal chemicals and pharmaceutical preparations, in that on the said 10th day of July, 1934, the said George Sarros did, in Hillsborough County, Florida, offer for sale and sell to deponent for a cash consideration which was paid by deponent, the following:

'1 bottle of Mifflin rubbing alcohol;

'1 bottle of McNeil's Magic remedy;

'1 bottle of Dr. Porter's Antiseptic healing oil;

'1 bottle of spirits of Turpentine;

'1 bottle of Diamond antiseptic, containing Bichloride of Mercury, and being poison;

'1 bottle of Syrup of Figs;

'1 bottle of Lysol;

'1 bottle of Skin Tonic;

'1 bottle of Peroxide;

'1 bottle of Epsom Salts;

'1 bottle Castoria;

'1 bottle of Vick's Vapor Rub;

'1 bottle of Vivani Lotion;

'1 bottle of Bay Rum;

'1 box of Noxzema Skin Cream;

'1 box of Potassium Permanganate; containing poison and marked on said box as dangerous and poisonous;

'1 bottle of Listerine;

'1 bottle Creolin disinfectant antiseptic, and containing poisonous ingredients;

'2 packages of B C headache tablets; each powder of which contains four grains of Acetanilide, which is poisonous and a strong heart stimulant;

'1 bottle Vivani Hair Tonic;

'1 bottle of Vivani Skin Astringent;

'2 boxes of blue ointment, which contains dangerous poison and bearing a label of poison;

'1 box of Vivani deodorant;

'2 packages of Stark's headache powders, which contains six grains of acetanilid in each powder, Acetanilide being a strong heart stimulant;

'1 box of Aspirin tablets;

'1 box of Rough-on-Rats, being a highly poisonous preparation and labeled dangerous and poisonous;

'1 box of Dr. Palmer's Skin whitener;

'2 bottles of tincture of Iodine, which is highly poisonous and labeled dangerous and poisonous;

'2 bottles of extract Witchhazel;

'1 bottle of spirits of Camphor;

'1 bottle of Aromatic spirits of Ammonia;

'1 bottle of Sweet Spirits of Nitre;

'1 bottle of Carbolic Acid, which is a dangerous poison and labeled poison and dangerous;

'3 bottles of Mercurochrome.

'Deponent states that he purchased the foregoing articles from the said George Sarros on the 10th day of July, 1934, at the place of business of said George Sarros, Iocated at 905 Tampa Street in the City of Tampa, Florida, and paid for each of said items in cash; that each and every of the foregoing named preparations or medicines are in fact a medicinal drug and pharmaceutical preparation; that the said George Sarros does not operate a drug store, but operates and conducts a restaurant in which he keeps on hand for sale to the public medicinal and pharmaceutical compounds and preparations of the nature and character hereinabove set out, as well as other similar pharmaceutical preparations.

'Deponent further states that the said George Sarros is not a registered pharmacist and that he does not have a registered pharmacist employed in the operation and conduct of said business located at 905 Tampa Street, and that the sales hereinabove mentioned were made by the said George Sarros who is not a licensed registered pharmacist and that said sales were not made under the supervision or direction, immediate or otherwise, of a registered pharmacist. Deponent further states that the said George Sarros is engaged in the business of conducting, carrying on, dispensing and retailing medicinal drugs and pharmaceutical preparations as hereinabove set out in conjunction with the restaurant business conducted by him, and that the said George Sarros is not a registered pharmacist and he has employed in said business no registered pharmacist in connection with the conduct and operation of said business, and the same is operated under the style of and license paid for the operation of a business of restaurant and general merchandise, without any connection with any drug store whatsoever.'

The prosecution was based upon the provisions of chapter 13757, Acts 1929, which was an attempted amendment to section 2218, R. G. S., being section 3529, C. G. L. of Fla. Section 2218, R. G. S., was originally section 7 of chapter 6890, Acts of 1915, which act was, as its title indicates, 'An Act Relating to the Practice of Pharmacy in the State of Florida.' Section 7 of the act was as follows: 'Sec. 7. It shall be unlawful for anyone, except a registered pharmacist under this Act, who shall conform to the rules and regulations of the said Board of Pharmacy, to take, use or exhibit the title 'pharmacist,' 'druggist,' 'pharmacy' and 'drug store,' or to have charge of, engage in or carry on, for himself or for another, the dispensing, compounding or sale of drugs, medicines or poisons anywhere within the State, except as otherwise in this Act provided, and no registered pharmacist shall have personal supervision of more than one pharmacy or drug store at the same time; and, except as prescribed by the provisions of this Act, it shall not be lawful for any person to practice as a registered pharmacist, or advertise himself by sign or otherwise to be such, or to engage in, conduct, carry on or be employed in the dispensing, compounding or retailing of drugs, medicines or poisons within this State; provided, that this section shall not be construed as precluding any person from owning a drug store or pharmacy if all of the pharmaceutical work in the same shall be constantly under the immediate supervision and direction of a registered pharmacist.'

Section 6 of that act was as follows: 'Sec. 6. Nothing in this Act shall apply to the practicing of a legally authorized practitioner of medicine from practicing, dispensing, compounding for or giving any medicines or poisons to his patients in the regular course of his practice as such physician, nor shall this Act apply to the sale by merchants of parisgreen, white hellebore and other poisons for destroying insects, or to the sale of any substance for the use in the Arts, or to the sale of ammonia, asafoetida, alum, bicarbonate of soda, borax, camphor, castor oil, cream of tartar, dye stuffs, essence of ginger, essence of peppermint, essence of wintergreen, nonpoisonous flavoring, essences or extracts, glycerine, licorice, olive oil, sal ammoniac, saltpetre, sal soda, sulphur, blue vitriol, brimstone, pepper, sage, senna leaves, sweet oil, spirits of turpentine, paregoric, Glauber's salts, epsom salts, hive syrup, syrup of ipecac, tincture of arnica, syrup of tolu, syrup of squills, spirits of camphor, sweet spirits of nitre, quinine and all other preparations of cinchona bark, tincture of aconite and tincture of iron, compound cathartic pills and other household remedies; and merchants may sell in the original bottle, box or package, any drugs, medicines, chemicals, essential oils or tinctures which are put up by pharmacists in bottles, boxes or packages, bearing a label securely affixed, which label shall bear the name of the pharmacist putting up the same, the dose that may be administered to person three months, six months, one year, three years, five years, ten years, fifteen years and twenty-one years of age, and if a poison, the name or names of the most prominent antidotes. Such merchants may sell any patent or proprietary medicines.'

These sections, when taken together, show conclusively that the act was one to regulate the practice of pharmacy and not one to regulate the sale of drugs in original packages.

In 1927 section 2218, R. G. S., which was originally section 7 of chapter 6890, supra, was amended by chapter 12193 (Comp. Gen. Laws 1927, § 3529). This amendment merely added to section 7 the following: 'The provisions of this section shall not apply to stores or places of business where physicians' prescriptions are not compounded and where patent and proprietary or common household remedies are sold in the original package.' This resulted in making section 7 conform to the provisions of section 6 of chapter 6890, supra; the same being section 2217, R. G. S., section 3528, C. G. L. The latter section stands as it was originally enacted. The amendment by chapter 13757, Acts 1929, was entitled: 'An Act to Amend Section 2218 of the Revised General Statutes, Being Section 3529 of the Compiled General Laws of Florida, 1927, Relating to the Practice of Pharmacy, and Prohibiting the Use of Certain Signs in Connection Therewith.'

The amendment read as follows: 'Section 2218(3529). It shall be unlawful for anyone, except a registered pharmacist under this Chapter who shall conform to the rules and regulations of the said Board of Pharmacy, to take, use or exhibit the title 'Pharmacist,' 'Druggist,' 'Pharmacy,' 'drug store,' or any other title sign, display or declaration, that would tend to lead the public to believe that such person was engaged in the business of selling, compounding or dispensing any medicinal drugs, medicinal chemicals, pharmaceutical preparations and/or biologicals, or to have charge of, engage in or carry on, for himself or for another, the dispensing, compounding or sale of any medicinal drugs, medicinal chemicals, pharmaceutical preparations and/or...