Federgo Discount Center v. Department of Professional Regulation, Bd. of Pharmacy, 83-2886

• Decision Date: 10 July 1984
• Docket Number: No. 83-2886,83-2886
• Citation: 452 So.2d 1063
• Parties: FEDERGO DISCOUNT CENTER, Eddy Portillo and Edith Portillo, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY, Appellee.
• Court: Florida District Court of Appeals

Page 1063

452 So.2d 1063

FEDERGO DISCOUNT CENTER, Eddy Portillo and Edith Portillo, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY, Appellee.

No. 83-2886.

District Court of Appeal of Florida,

Third District.

July 10, 1984.

Talburt, Kubicki, Bradley & Draper and Betsy E. Hartley, Miami, for appellants.

Bruce D. Lamb, Tallahassee, for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

PER CURIAM.

This is an administrative appeal from a final order of the Florida Board of Pharmacy revoking the appellants' permit to operate a community pharmacy in the State of Florida. ¹ The order, which overturned the recommendations of the designated administrative hearing officer, was bottomed on the Board's view that the provisions of Section 465.023(1)(c), Florida Statutes (1981), make a pharmacy permittee strictly liable for any unprofessional acts of a licensed pharmacist who has been engaged to run the pharmacy department for which the permittee, not a licensed pharmacist, holds a permit. We disagree with the Board's reading of the applicable statutes and reverse the order under review.

Eddy and Edith Portillo held a community pharmacy permit for their store, Federgo Discount Center, a discount dry goods facility, a small portion of which was occupied by the pharmacy. Eddy Portillo managed the store, and because neither he nor Edith Portillo were licensed pharmacists, they designated, as required by law, a state licensed pharmacist as the prescription department manager in charge of operating the pharmacy. ²

When a drug diversion audit conducted by the Board of Pharmacy revealed that excessive amounts of methaqualone had been dispensed by the pharmacist over a course of time, the Board charged the appellants with violation Florida Statute Section 465.023(1)(c) and, in turn, Sections 465.016(1)(i) and 893.04, and sought to revoke their permit.

The administrative hearing officer's recommended order, which we quote in pertinent part, substantially answers the Board's position:

"Section 465.023(1)(c), Florida Statutes authorizes the department or board to revoke or suspend the permit of any person was [sic] has, inter alia:

"Violated any of the requirements of this chapter or any of the rules of the Board of Pharmacy; of chapter 500, known as the 'Florida Food, Drug, and Cosmetic Law'; or of chapter 893; ...

"Section 465.016(1)(i), Florida Statutes, empowers the board to take disciplinary action against a pharmacist found to have been, inter alia:

"Compounding, dispensing, or distributing a legend drug, including any controlled substance, other than in the course of professional practice of pharmacy. For purposes of this paragraph, it shall be legally presumed that the compounding, dispensing, or distributing of legend drugs in excessive or inappropriate quantities is not in the best interests of the patient and is not in the course of the professional practice of pharmacy.

"Pursuant to Section 893.04(1), Florida Statutes, a pharmacist must act in good faith and in the course of his professional practice in dispensing controlled substances.

"The thrust of the Department's position in this case is that the Respondents' permit is subject to revocation based on the unlawful actions of the pharmacist who was employed during the period in question. In effect, the Respondents are charged with failing to adequately supervise the pharmacist to ensure that he was not excessively dispensing controlled substances.

"Initially, it must be determined whether any statute places a duty on a permit holder to supervise the professional activities of a licensed pharmacist. Section 465.018, Florida Statutes, places three duties on a permit holder at the time of issuance of a permit, including: (1) designating a prescription department manager, who must be a licensed pharmacist, who is responsible for maintaining all drug records, (2) providing for the security of the prescription department, and (3) following such other rules as they relate to the practice of the profession of pharmacy. (footnote omitted). Section 465.023(1)(c), Florida Statutes, authorizes disciplinary proceedings against a permit holder for violating any of the requirements of Chapter 465. Thus, the failure to comply with Section 465.018 following issuance of a permit constitutes grounds for discipline pursuant to Section 465.023(1)(c), Florida Statutes.

"The Respondent is clearly not charged with failing to designate a licensed pharmacist as a prescription manager who is responsible for maintaining drug records. Neither is he charged with failing to provide for the security of the prescription department through negligence or otherwise. It is not alleged in the Administrative Complaint, nor was it stated at any subsequent time, that the Respondent violated any 'rules' regulating the practice of pharmacy or precisely what such rules were.

"Instead, it is apparently the position of the Department that the Respondent's duty to supervise the professional judgment of a licensed pharmacist is a result of general principles of agency, rather than any specific duty imposed by law. The Department asserts that vicarious liability exists as to the principal, in this case the permit holder, in a situation where an agent's improper or criminal acts were committed in the course of the agent's employment.

"In Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982), the court found that a licensed contractor who acted as a qualifying agent for an otherwise unlicensed construction company had a statutorily imposed duty to supervise the construction undertaken by the company which he qualified. The supervisory duty in Alles was based on the statute in question, Section 489.119, Florida Statutes, which evidenced a legislative intent that qualifying agents be required to supervise a project entered into under the name of and by use of the contractor's license. The power to discipline in Alles was not based on concepts of agency, but rather on a duty imposed by statute.... In the instant case, the statutory scheme set forth in Chapters 465 and 893, Florida Statutes, places well-defined duties on licensed pharmacists which require the careful exercise of sound professional judgment. In certain...