Florida Bd. of Pharmacy v. Levin

• Decision Date: 12 October 1966
• Docket Number: No. 35198,35198
• Citation: 190 So.2d 768
• Parties: FLORIDA BOARD OF PHARMACY, Petitioner, v. Herbert LEVIN, Respondent.
• Court: Florida Supreme Court

Page 768

190 So.2d 768

FLORIDA BOARD OF PHARMACY, Petitioner, v. Herbert LEVIN, Respondent.

No. 35198.

Supreme Court of Florida.

Oct. 12, 1966.

Earl Faircloth, Atty. Gen., and Frank A. Orlando, Asst. Atty. Gen., for petitioner.

Hoffman & St. Jean, Miami Beach, for respondent.

ERVIN, Justice.

Conflict-certiorari is petitioned for review of the decision of the District Court of Appeal, Third District, in Florida Board of Pharmacy v. Levin (Fla.1966), 181 So.2d 743.

The Florida Board of Pharmacy, petitioner here, issued complaint and notice to show cause to Herbert Levin, respondent, alleging that Levin, while licensed as a pharmacist, did unlawfully deliver to another a central nervous system stimulant, towit, one hundred (100) tablets containing amphetamine salts, without first being furnished with a prescription therefor from a duly licensed physician, such act being in violation of 'Section 404.03(1) F.S.'

A hearing was held by the Board pursuant to said complaint. The Board entered its order finding Levin guilty of the charge. His pharmacist's license was suspended for six months.

Petition for certiorari review of the Board's order was filed in the Circuit Court pursuant to which said order was vacated. The Board of Pharmacy appealed to the District Court which affirmed the Circuit Court in said decision, reported in 181 So.2d 743.

Reference to said decision and the District Court's opinion discloses that the affirmance was predicated upon (1) the fact that the Florida statutes do not contain a 'Section 404.03(1),' which was erroneously referred to in the Board's complaint, and (2) because the Board's order found Levin guilty of 'having violated the provisions of Chapter 404, Florida Statutes, relating to the dispensing of certain drugs containing amphetamine salts without first being furnished a prescription.' The District Court concludes that since Levin was charged 'with having violated a particular section of the Florida Statutes and was found guilty of having violated the entire Chapter * * * it may not be argued that the appellant (the Board of Pharmacy) proceeded in accordance with the essential requirements of the law,' citing State ex rel. Jordan v. Pattishall, 99 Fla. 296, 126 So.147.

We find the decision of the District Court conflicts in principle with this court's holding in State ex rel. Williams v. Whitman (Fla.), 156 So. 705. There it was stated that: '(C)harges before boards, such as the state board of dental examiners, need not be stated with the technical nicety or formal exactness required of pleadings in the courts, nor are the proceedings before the board required to conform in every respect to that controlling in strictly judicial proceedings.' (Text p. 709.) And further: '(I)t is sufficient if the accused is informed with reasonable certainty of the nature and cause of the accusation against him, has reasonable opportunity to defend against attempted proof of such charges, and the proceedings are conducted in a fair and impartial manner * * *' (Text p. 710.)

Even in judicial proceedings mistakes or misreferences of the kind appearing herein have not been held to render pleadings fatally defective. See City of Lakeland v. Select Tenures, Inc., Fla., 176 So. 274, and Dade Co. v. City of Miami, 77 Fla. 786, 82 So. 354.

It is obvious the charge was complete in alleging the pharmacist delivered to another a central nervous stimulant, towit, one hundred (100) tablets containing amphetamine salts, without first being furnished with a prescription therefor from a duly licensed practitioner. The added language, 'such act being in violation of Section 404.03(1) F.S.' was harmless surplusage. Licensed pharmacists undoubtedly are familiar with the laws regulating their profession and must be presumed to have knowledge of F.S. Section 404.02(1), F.S.A., of the Florida Barbiturate Law, which makes it unlawful to deliver to another any barbiturate or central nervous stimulant except upon prescription, with certain exceptions not material to this case. It is quite apparent F.S. Section 404.02(1), F.S.A., was the statute intended to be coupled with the allegations of the complaint, since it logically complements the preceding language of the charge. Technical niceties based upon obvious mistakes and misreferences, which do not mislead or result in manifest unfairness are not grounds under our authorities for overturning administrative determinations. The fact that the Board in its order found Levin guilty of having violated 'the provisions of Chapter 404, F.S., relating to the dispending of certain drugs containing amphetamine salts without first being furnished a prescription,' does not nullify the administrative determination since this language...