FLORIDA PHARMACY ASSOCIATION, INC., A FLORIDA NOT FOR PROFIT CORPORATION, AND JOE B. PACE, INC., A FLORIDA CORPORATION, DOING BUSINESS AS DUBERRY-PACE PHARMACY, PETITIONERS,
v.
LARRY STRONG, IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF THE DEPARTMENT OF MANAGEMENT SERVICES, RESPONDENT
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The Florida Pharmacy Association and a pharmacy business petitioned for a writ of mandamus to compel the Acting Secretary of the Department of Management Services to amend a pharmaceutical contract to reflect new statutory reimbursement rates. The court denied the petition, finding that petitioners failed to make a prior demand on the respondent and that mandamus was an inappropriate remedy for resolving the complex contractual dispute.
The court denied the petition for writ of mandamus on two independent grounds: (1) petitioners failed to make an express and distinct demand on the respondent to perform the duty before seeking mandamus relief, and (2) mandamus was an inappropriate remedy because the dispute involved factual questions, contract construction, and interests of third parties that required resolution in circuit court.
[1] Mandamus will not be considered where private individuals seek to compel a public official to perform a duty without first making an express and distinct demand on the re…
[2] Mandamus is an extraordinary remedy and is not appropriate for resolving disputes that may present questions of fact or require the construction of contract terms.
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Join FLexlaw to unlock all legal intelligence“Where private individuals seek mandamus to compel a public official to perform a duty, they must first make an express and distinct demand on the respondent to perform the duty before the remedy of mandamus will be considered.”
Establishes the procedural requirement that petitioners failed to satisfy before seeking mandamus relief.
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Join FLexlaw to unlock all legal intelligenceThe Department of Management Services administers a group health insurance plan for state employees that includes pharmacy services. The existing phar…
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PER CURIAM.
Florida Pharmacy Association, Inc. and Joe B. Pace, Inc. (Pace) seek relief from this court by petition for writ of mandamus. For the reasons that follow, we deny the petition.
The petitioners show that respondent is the Acting Secretary of the Department of Management Services (DMS), successor to the Department of Administration (DOA). DMS is responsible for the group health insurance plan for state employees, including pharmacy services. DOA previously entered into a contract with Consultec whereby pharmacies would be reimbursed for prescriptions filled under the plan at Average Wholesale Price (AWP) minus 18 percent. According to petitioners, only a few large retail chain pharmacies can profitably participate in the program at this rate of reimbursement. The petitioner association states that it represents pharmacies which would like to provide services to members of the state health plan, and petitioner Pace is such a pharmacy.
Petitioners rely on legislation enacted during the recent special session which provides that the existing pharmaceutical contract shall be amended to provide for prescription drug reimbursement at AWP minus 12 percent for brand name drugs. According to petitioners, respondent Strong has not so amended the contract and they ask this court for an order compelling him to do so.
Petitioners fail to show that they requested respondent Strong to amend the contract to conform with the enactment. Where private individuals seek mandamus to compel a public official to perform a duty, they must first make an express and distinct demand on the respondent to perform the duty before the remedy of mandamus will be considered. State ex rel. DuPont Ball, Inc. v. Livingston, 104 Fla. 33, 139 So. 360 (1932); State ex rel. Citizens Gas Light Co. v. City of Jacksonville, 22 Fla. 21 (1886). In the absence of a showing of such a demand, this court will not consider the extraordinary remedy of mandamus.
We also find that even if this defect were cured, mandamus is not an appropriate method to resolve the dispute before us. Questions of fact may be presented, and the terms of the current contract may require construction. Further, Consultec and/or pharmacies participating at the current rate of reimbursement may wish to appear and be heard. Thus, it appears the more appropriate forum to litigate the issues presented in the petition is the circuit court.
It therefore appearing to this court that petitioners have selected an inappropriate remedy, the petition for writ of mandamus is denied.
SMITH, ZEHMER and BARFIELD, JJ„ concur.
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Marzuq Al-Hakim v. State, 783 So. 2d 293 (Fla. 5th DCA 2001)…instant petition is legally insufficient because an individual seeking to compel a public official to act must first make an express and distinct demand for performance before mandamus will be considered. See Florida Pharmacy Ass’n, Inc. v. Strong, 604 So. 2d 529 (Fla. 1st DCA 1992). Though Al-Hakim is presently incarcerated, he would be able to attend a telephonic hearing should the trial court in its discretion decide to hold one. Gosby v. Third Judicial Circuit, 586 So. 2d 1056 (Fla.1991) (trial court has…
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Buonanno v. Buonanno, 33 So. 3d 782 (Fla. 5th DCA 2010)…PER CURIAM. Petition for Writ of Mandamus denied. See Fla. Pharmacy Ass’n, Inc. v. Strong, 604 So. 2d 529 (Fla. 1st DCA 1992) (where private individual seeks mandamus to compel public official to perform duty, individual must first make express and distinct demand on public official to perform duty before remedy of mandamus will be considered). PETITI…
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Medberry v. Cir. Court FOR Brevard Cnty., 762 So. 2d 1037 (Fla. 5th DCA 2000)…oner seeking to compel action on the part of a judge or public official must first make an express, distinct demand for performance to that person or court, before we shall consider the remedy of mandamus. See Florida Pharmacy Ass’n, Inc. v. Strong, 604 So. 2d 529 (Fla. 1st DCA 1992). The fact that Medberry is currently incarcerated in Union Correctional Facility does not excuse his duty to first apply to the circuit court for a ruling before approaching this court. Our denial of Medberry’s petition for wri…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Livingston, 104 Fla. 33 (Fla. 1932)
- State v. The Mayor & Aldermen of the City of Jacksonville, 22 Fla. 21 (Fla. 1886)