Federgo Discount Center v. Department of Professional Regulation, Bd. of Pharmacy, No. 83-2886

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore SCHWARTZ; PER CURIAM
Citation452 So.2d 1063
Docket NumberNo. 83-2886
Decision Date10 July 1984
PartiesFEDERGO DISCOUNT CENTER, Eddy Portillo and Edith Portillo, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY, Appellee.

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.

Page 1064

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

Page 1065

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...

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7 practice notes
  • McDonald v. Department of Professional Regulation, Bd. of Pilot Com'rs, No. 89-246
    • United States
    • Florida District Court of Appeals
    • 13 Junio 1991
    ...to so extend the effect of the statute. See Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So.2d 1063 (Fla. 3d DCA 1984); Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984). In this regard, the Board erroneously relie......
  • SUNSCRIPT PHARMACY v. Board of Pharmacy, No. COA00-1089.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 4 Diciembre 2001
    ...support of its decision, the trial court relied on Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So.2d 1063 (Fla. 555 S.E.2d 633 App.1984), in which the Florida Court of Appeals concluded that if the Legislature wished to hold community pharmacy pe......
  • Decisions and Orders:
    • United States
    • Federal Register October 28, 2011
    • 28 Octubre 2011
    ...such, yet must designate a managerial pharmacist that is so licensed. Further, citing Federgo v. Department of Professional Regulation, 452 So.2d 1063 (Fla. 3rd DCA 1984), Respondents state that alleged wrongdoing of a pharmacist does not trigger nor support the suspension of the pharmacy's......
  • State, Dept. of Highway Safety & Motor Vehicles v. Meck, No. 84-1270
    • United States
    • Court of Appeal of Florida (US)
    • 20 Diciembre 1984
    ...construed, see State v. Pattishall, 99 Fla. 296, 126 So. 147 (1930); Federgo Discount Center v. Department of Professional Regulation, 452 So.2d 1063 (Fla. 3d DCA 1984); Rush v. Department of Professional Regulation, 448 So.2d 26 (Fla. 1st DCA 1984); Lester v. Department of Professional & O......
  • Request a trial to view additional results
6 cases
  • McDonald v. Department of Professional Regulation, Bd. of Pilot Com'rs, No. 89-246
    • United States
    • Florida District Court of Appeals
    • 13 Junio 1991
    ...to so extend the effect of the statute. See Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So.2d 1063 (Fla. 3d DCA 1984); Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984). In this regard, the Board erroneously relie......
  • SUNSCRIPT PHARMACY v. Board of Pharmacy, No. COA00-1089.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 4 Diciembre 2001
    ...support of its decision, the trial court relied on Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So.2d 1063 (Fla. 555 S.E.2d 633 App.1984), in which the Florida Court of Appeals concluded that if the Legislature wished to hold community pharmacy pe......
  • State, Dept. of Highway Safety & Motor Vehicles v. Meck, No. 84-1270
    • United States
    • Court of Appeal of Florida (US)
    • 20 Diciembre 1984
    ...construed, see State v. Pattishall, 99 Fla. 296, 126 So. 147 (1930); Federgo Discount Center v. Department of Professional Regulation, 452 So.2d 1063 (Fla. 3d DCA 1984); Rush v. Department of Professional Regulation, 448 So.2d 26 (Fla. 1st DCA 1984); Lester v. Department of Professional & O......
  • Board of Trustees of Internal Imp. Trust Fund of State of Fla. v. Barnett, No. 88-578
    • United States
    • Court of Appeal of Florida (US)
    • 22 Noviembre 1988
    ...for some cause not clearly within the ambit of its statutory authority. Federgo Discount Center v. Department of Professional Regulation, 452 So.2d 1063, 1066 (Fla. 3d DCA 1984); Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984); Cohn v. Department of Profes......
  • Request a trial to view additional results

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