Wray's Pharmacy, Inc. v. Lee
| Decision Date | 07 January 1941 |
| Citation | 145 Fla. 435,199 So. 767 |
| Parties | WRAY'S PHARMACY, Inc., et al. v. LEE, Comptroller. |
| Court | Florida Supreme Court |
Rehearing Denied Jan. 29, 1941.
En Banc.
Injunction suit by Wray's Pharmacy, Inc., and others against J. M Lee, individually, and as Comptroller of the State of Florida. From a decree denying plaintiffs' motion for an interlocutory injunction, the plaintiffs appeal.
Decree affirmed. Appeal from Circuit Court, Leon County; W. May Walker, Judge.
Robert T. Dewell, of Haines City, and Maxwell & Cobbey, of Taxpa for appellants.
George Couper Gibbs, Atty. Gen., Tyrus A. Norwood, Asst. Atty. Gen and Keen & Allen, of Tallahassee, for appellee.
Plaintiffs who are appellants herein, are a number of druggists and registered pharmacists, and owners and operators of drug stores who are doing business in this State. They filed their bill of complaint against the defendant, J. M. Lee, as Comptroller, in which they alleged they were engaged in the practice of compounding medicines from the prescriptions of doctors, and likewise that they dispensed other drugs and pharmaceuticals, not upon prescription and not requiring professional skill and knowledge.
The bill further avers that plaintiffs operate the practice of their profession as a distinct and separate business unconnected with the sale of general merchandise in the other departments of their drug stores; that separate records of the gross receipts accruing from the sale of prescriptions is kept; that the total cost of the ingredients used in compounding a prescription varies from 25 to 50 per cent of the total cost thereof and that the balance of the charge is for plaintiffs' professional services.
Plaintiffs' contention is that the sale of prescriptions in the manner alleged is not a retail sale of 'tangible personal property' within the definition set forth in section 2, Chapter 16848, Acts of 1935, but that such is a sale of professional services and not subject to the provisions of the gross receipts tax.
The defendant moved to dismiss the bill of complaint which the lower court granted, and a final decree was entered denying plaintiffs' motion for an interlocutory injunction. From this decree, the plaintiffs appeal. Appellants, in support of their contention, have cited us to the rules developed in connection with the application of the statute of frauds to determine whether certain transactions are sales or contracts for work and labor. They have also strongly urged the adoption of the Illinois rule holding the retail sales tax in that jurisdiction to be inapplicable where the article sold is a mere incident and the skilled service is that which is required. Burgess Co. v. Ames, 359 Ill. 427, 194 N.E. 565. But in view of the fact that Chapter 16848, supra, contains its own definition of a 'sale' and what is meant by 'gross receipts', we believe such rules are inappropriate to the question in this State.
A 'sale' is defined in Chapter 16848, supra,...
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...our statute 'services that are a part of such sale' are within our definition of 'sale price.' Same also in Wray's Pharmacy, Inc., et al. v. Lee (1941) 145 Fla. 435, 199 So. 767 (filling of drug prescriptions, And the transaction is to be determined by its character under the statute rather......
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Terteling Bros. v. Glander
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