Goldsmith v. California State Bd. of Pharmacy

• Decision Date: 09 May 1961
• Citation: 13 Cal.Rptr. 139,191 Cal.App.2d 866
• Court: California Court of Appeals Court of Appeals
• Parties: Maurice GOLDSMITH, doing business as Medical Guild Pharmacy, Plaintiff and Appellant, v. CALIFORNIA STATE BOARD OF PHARMACY, Defendant and Respondent. Civ. 23679.

Page 139

13 Cal.Rptr. 139

191 Cal.App.2d 866

Maurice GOLDSMITH, doing business as Medical Guild Pharmacy, Plaintiff and Appellant, v. CALIFORNIA STATE BOARD OF PHARMACY, Defendant and Respondent.

Civ. 23679.

District Court of Appeal, Second District, Division 1, California.

May 9, 1961.

Rehearing Denied May 31, 1961.

Hearing Denied July 5, 1961.

John N. Frolich, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Lynn Henry Johnson, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment which in effect discharged an alternative writ of mandate, denied a peremptory writ of mandate, and gave costs to the respondent, California State Board of Pharmacy, hereinafter referred to as the 'Board.'

A resume of some of the facts is as follows:

The appellant, prior to January 29, 1957, was licensed as a pharmacist, had a license in the firm name of 'Medical Guild Pharmacy,' had a permit to sell hypodermics, syringes, needles, hypnotic drugs and a retailer's permit to sell prophylactics. The premises from which appellant operated were located at 4747 Vineland Boulevard, North Hollywood. Because of a violation, the nature of which we are not now concerned with, appellant on January 29, 1957 by action of the respondent Board had his license to practice as a licentiate in pharmacy suspended for one year (effective February 1, 1957). Execution of that order of suspension was suspended for a period of three years and appellant was placed on probation under certain terms and conditions, one of which was to the effect that he should comply with all of the laws of the State of California and the United States, and with the rules and regulations of the respondent Board.

The case hereinafter will sometimes be referred to as Case No. 255. The decision therein became final.

On April 10, 1957, Martin Denkin, a deputy sheriff of Los Angeles County, who was working in association with an investigator of the Board, at about 3:50 p. m., went into appellant's store and talked with him. Denkin presented to appellant a prescription bottle to be refilled. Prior thereto, on February 15, 1957, Denkin had two prescriptions filled at appellant's place of business. On April 10th Denkin told the appellant that he had tried to reach his doctor but could not do so and asked appellant to refill the prescriptions. Appellant asked Denkin with reference to the dexedrine tablets theretofore prescribed, 'What do you need these for?' and Denkin replied that he was a fighter and usually took dexedrine to better his condition before a fight, and would also like some extras. Appellant refilled the prescription and further gave Denkin 100 extra dexedrine tablets without any prescription therefor and charged Denkin $5 for such extra tablets. Appellant stated at the time to Denkin that he did not know whether he should do it, that he might get into trouble and Denkin was further told by the appellant not to tell anybody of the sale. Denkin then made an appointment with appellant to secure 2000 more dexedrine tablets on April 13th. Denkin did not see the appellant use the telephone at the visit on April 10th and appellant was in his sight during all of the time Denkin was in the store excepting for a matter of about one minute.

Denkin left appellant's store with the refilled prescription and the bottle containing 100 extra dexedrine tablets and met a special investigator of the Board and turned over the purchases to such investigator.

Appellant apparently suspected that perhaps Denkin was connected in some way with a law enforcement agency and apparently to build up a defense called Lieutenant Marlowe of the Los Angeles Police Department and told him that someone had come to his store, had purchased some dangerous drugs and had wanted to buy a further amount without a prescription and inquired of the lieutenant if he would be interested in trying to catch the person. The lieutenant suspected that the appellant was then and there the subject of an undercover investigation and that the call by appellant was defensive in nature. The lieutenant advised the appellant not to furnish any drugs without a prescription.

On April 13th Denkin returned to the store and told appellant that he had the money and wanted to make the purchase of 2000 tablets of dexedrine as previously contemplated. Appellant acted frightened and stated that he did not know what Denkin was talking about, that it was dangerous, that he did not have the tablets, that he could not do anything like that, that he had too much to lose, that he had thought it over and had decided that he did not want to make the sale. Denkin left the store and shortly thereafter explained the situation to the investigator of the Board. The Board investigator with Detective Gardner of the Los Angeles Police Department then entered the store. The investigator asked appellant for the prescriptions made out to Denkin. The appellant identified the prescriptions and stated that he had refilled them on April 10 at about 5:00 p. m. Inquiries were then made about the extra 100 tablets of dexedrine sold by appellant to Denkin on April 10 and appellant admitted that he had sold the same without a prescription, but that his purpose in doing so was to entrap the man who had made the purchase. Appellant was asked why he had not contacted the Board or its representatives if he was interested in trapping someone, and his answer was that he did not know. There was an entry upon the prescriptions to the effect that appellant had called the doctor who issued the prescription at 5:00 p. m. on April 10. The investigator checked with the doctor and the doctor did state that he had talked with appellant but he did not remember the exact time or occasion.

At the administrative hearing the appellant stated that he sold the 100 extra dexedrine tablets to Denkin in an attempt to put him away. Appellant further stated that from the very first occasion when Denkin came into the store and that he thought 'this guy is a screwball'--'Well, to me it was phoney right from the start. I mean, the man wasn't all there, as far as I was concerned.' Appellant further stated that when Denkin asked for 2000 dexedrine tablets that he, appellant, spoke to an employee of his and said, 'This guy's got to be put away.' Appellant further stated that 'I'll give him a hundred for bait, * * *' and thereupon took the $5 for such 100 tablets. Near the conclusion of the administrative hearing the appellant's counsel asked the question:

'Q. And at the time that you delivered these additional dexedrine, what was your intention? A. Only one. I intended to--There was intent for bait only. An intent only to have this man picked up, because all I could figure was he was a pusher.'

The appellant further testified that he had called the doctor who wrote the original prescriptions at about 4:00 p. m. on April 10. Appellant's wife testified that the call to the doctor was at about 5:00 p. m. When asked about the discrepancy in the time the appellant's answer was that the clock in the store must have stopped.

On July 11, 1957 in Case No. 255 a Board investigator filed a petition with the Board to revoke the probation theretofore granted to the appellant. It was therein charged that appellant had violated the provisions of Sections 4227 and 4228 of the Business and Professions Code. ¹

On September 5, 1957 in Case No. 283 an investigator for the Board filed with said Board an accusation charging the appellant with having violated the provisions of Sections 4227 and 4228 of the Business and Professions Code. Such accusation reads in part as follows:

'That the respondent has violated the provisions of §§ 4227 and 4228 of the Business and Professions Code of the State of California, which is gound (sic) for disciplinary action pursuant to § 4357 of the Business and Professions Code, in the manner more particularly hereinafter alleged:

'That on or about April 10, 1947 (sic) respondent furnished a bottle containing 100 tablets of a dangerous drug, to wit: dexedrine, to one Martin Denkin; that at this time said Martin Denkin did not have, nor did he offer, a prescription for the said drug from any physician, dentist, chiropodist or veterinarian.'

Section 11503 ² of the Government Code provides for the requirements of an accusation.

By stipulation the two matters, that is the petition to revoke the probation and the accusation as a new proceeding were consolidated and heard on January 30, 1958 before the Board with a hearing officer presiding. On February 11, 1958, the Board rendered its decision which was to the effect that appellant had violated the provisions of the Business and Professions Code, Sections 4227 and 4228. In Case No. 255 the Board set aside its previous order, which was effective as of February 1, 1957 (suspending the one-year suspension), and ordered the suspension in full force and effect; however, it also made its order in Case No. 255 subject to its order in Case No. 283. In Case No. 283 it revoked appellant's license and stayed the revocation and placed appellant on probation, a part of the terms being that appellant not exercise the privilege of his license for six months, that he report to the Board whenever so ordered, and further that he comply with all of the laws and rules and regulations of the state. The Board made its Finding No. IV, among other things, as set forth herein. ³

Appellant filed a petition for a writ of mandate in an effort to compel the Board to set aside its decision. The Board filed its answer and the matter was heard in court on August 27, 1958. On November 7, 1958, Findings of Fact, Conclusions of Law, and a Judgment were filed. Findings 8 and 13 of the trial judge are set forth herein. ⁴ The judgment ordered in effect that plaintiff take nothing by reason of his petition. The appeal is from that judgment.

It was stipulated that the transcript of the testimony taken at the...