State v. Leone
| Decision Date | 16 March 1960 |
| Citation | 118 So.2d 781 |
| Parties | STATE of Florida, Appellant, v. Salvatore LEONE, Appellee. |
| Court | Florida Supreme Court |
Richard W. Ervin, Atty. Gen., B. Clarke Nichols, Asst. Atty. Gen., Richard E. Gerstein, State Atty. and Roy S. Wood, Asst. State Atty., Miami, for appellant.
Boardman, Bolles & Davant, Miami, for appellee.
This cause had its beginning in an information filed by the State, appellant here, against Salvatore Leone, the appellee, which information charged that appellee:
'did then and there unlawfully own, operate, maintain, open, establish, conduct or have charge of, alone or with another person or persons, a retail drug establishment, located at 14504 N.W. 7th Avenue, Dade County, Florida, known as White Cross Drugs which then and there was not, while open for business or while engaged in the business of compounding, dispensing, or selling drugs or medical supplies, under the constant and immediate supervision of a person licensed as a pharmacist in this state, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.' (Emphasis added.)
The basis for the information is § 465.18(1), F.S.1959, F.S.A.
Appellee moved to quash the information. The trial court granted the motion holding § 465.18(1) unconstitutional 'for the reason that to enforce such law would be an abridgement of the privileges of certain citizens of the State of Florida and the United States in that it discriminates against said defendant and other citizens of a similar class.' The State appeals from the order quashing the information.
The specific subsections of the statute here involved, § 465.18(1, 5), provide that anyone who:
'(1) owns, operates, maintains, opens, establishes, conducts, or has charge of, either alone or with another person or persons, a retail drug establishment that is not, while open for business or while engaged in the business of compounding, dispensing, or selling drugs or medical supplies, under the constant and immediate supervision of a person licensed as a pharmacist in this state, or
* * *
* * *
'(5) * * * shall, upon conviction, be fined a sum not to exceed one thousand dollars, or be imprisoned for a period not to exceed six months, or shall be so fined and imprisoned for each violation. * * *'
The term 'retail drug establishment' is defined in § 465.031(1), F.S.A., in such manner as to make the term applicable to all retail stores using the term 'drug store' or various related terms, either in signs thereon or in advertising. As defined in the statute the term includes both those businesses which deal solely in drugs and medicines, the preparation and sale of which is controlled by law, and the modern versions of the drug store which deal in the preparation and sale of such drugs and medicines, but also in varying degrees engage in the business of selling items not controlled by law, such as food, proprietary or patent medicines, cosmetics, tobacco, household and personal articles unending in number and description. In many, if not most, of the latter stores the preparation and sale of controlled drugs is only a part of the total business done.
The statute establishes two conditions requiring supervision of a retail drug establishment by a licensed pharmacist. The conditions are stated in the disjunctive; therefore, it must be assumed that the legislature intended them to be separate and distinct from each other.
The first requires supervision by such a person while the establishment is 'open for business.' This would require such supervision of the establishment even though the establishment at that time not be engaged in the preparation or sale of controlled drugs or medical supplies.
The second requires supervision by such a person while the establishment is engaged in the 'compounding, dispensing, or selling' of controlled drugs or medical supplies.
The second condition appears to be included within the first, since 'while open for business' would seem to include all transactions and operations of a retail store. Certainly 'while open for business' would include the 'dispensing, or selling' of such controlled drugs and medical supplies. It is possible, however, that such a store could be closed for business, in the sense that its doors would be closed to patrons, and yet be engaged in 'compounding' such controlled items. The second condition could therefore have this meaning which would not be covered by the first.
The statute requires the supervision by the licensed pharmacist to be exercised not only over that part of the business involving the compounding, dispensing, or selling of controlled drugs and medical supplies but over all other phases and facets thereof.
Therefore the requirement of the statute is that one who owns or operates a retail drug establishment must have a licensed pharmacist in constant and immediate supervision of the entire operation of the store while open for business of any kind and when closed, if there be any compounding of controlled drugs or medical supplies. The subsection of the statute with which we are concerned is not limited in application to those drug stores or pharmacies which deal solely in controlled drugs and medical supplies, but applies to all retail drug establishments as defined in the statute.
It cannot be doubted that the State in the interest of the public health may require that the compounding, dispensing, or selling of drugs and medical supplies, which are potentially harmful or dangerous to an uninformed or incautious user, be done only under supervision of a licensed pharmacist. This would apply to such acts whether done when the store is open for business or when its doors are closed to its customers.
The question then to be decided is whether this requirement of supervision by a licensed pharmacist may be lawfully extended so as to cover all of the operations of a drug store, including those which are unrelated by their nature to the preparation and sale of controlled drugs and medicines.
We think the answer to the question must be in the negative.
Unquestionably the purpose of Chapter 465, F.S.A., and the specific subsection involved here, is to protect the public health by limiting the preparation and sale of those drugs and medicines which are potentially dangerous or harmful, either in preparation, handling, possession, or use, to those persons possessing requisite pharmaceutical skill and knowledge. It is clear from the act itself that the prohibitions and restrictions prescribed in the act were not intended to be applicable to the preparation or sale of non-controlled drugs and medical supplies sold by drug stores, for § 465.021(1) provides that the act does not apply to the sale by merchants of home remedies or patent medicines.
It is only that part of the business of a retail drug establishment which deals with the preparation and sale of controlled drugs which affects the public health, as the legislature intended to safeguard it in the pharmacy statute. The many other operations of a modern drug store admittedly require no pharmaceutical skill and knowledge. Other retail stores perform all of these operations and sell the same non-controlled drugs and medical supplies freely, without supervision by a licensed pharmacist.
In order for the State to lawfully include those operations of a drug store which do not deal with the preparation of controlled drugs and medical supplies under the regulation of the statute it must be shown that the innocent or innocuous facets of the drug store's business are so related to the preparation and sale of the controlled drugs and medical supplies as to make their inclusion necessary in order to secure efficient enforcement of the act.
This doctrine which allows inclusion of innocent acts within the regulations or prohibitions of an act passed in exercise of the police power is discussed at length in the case of L. Maxcy, Inc. v. Mayo, 1932, 103 Fla. 552, 139 So. 121.
It is on this doctrine that the State bases its contention that the statute is valid. For, says the State, if the subsection is not upheld 'an army of enforcement officers' will be required to insure that controlled drugs and medical supplies are compounded, dispensed, or sold only under the supervision of licensed pharmacists.
Undoubtedly, the doctrine discussed in the Maxcy case is a good one and there are instances where the public interest may require the regulation or prohibition of innocent acts in order to reach or secure enforcement of law against evil acts. But we do not regard the situation presented here as one justifying the application of the doctrine.
As pointed out in the Maxcy case on page 130 of 139 So., this Court in speaking of the limitations of the inclusion of innocent acts doctrine said:
'* * * It cannot be relied on to sustain a measure of prohibition so loosely or broadly drawn as to bring within its scope matters which are not properly subject to police regulations or prohibitions * * *.'
While it is true that the constitutional guarantee of individual rights does not prevent the exercise of the police power so as to interfere with such rights, it does operate to limit the exercise...
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