FLORIDA BOARD OF PHARMACY, APPELLANT,
v.
HERBERT LEVIN, APPELLEE
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The Florida Board of Pharmacy appealed a circuit court judgment that vacated its suspension of a pharmacist's license for violating the Florida Barbiturate Law. The court affirmed the vacation, finding the Board violated essential procedural requirements by charging the pharmacist with violating a specific statutory section but finding him guilty of violating the entire chapter.
The Board did not proceed in accordance with the essential requirements of law because it charged Levin with violating a particular section of the Florida Statutes (Section 404.03(1)) but found him guilty of violating the entire Chapter 404. This violation of procedural requirements justified the circuit court's vacatur of the Board's suspension order.
“the appellee was charged with having violated a particular section of the Florida Statutes and was found guilty of having violated the entire Chapter. Hence, it may not be argued that the appellant proceeded in accordance with the essential requirements of the law.”
Establishes the core procedural defect: mismatch between the charge (specific section) and the finding (entire chapter)
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Join FLexlaw to unlock all legal intelligenceHerbert Levin, a licensed pharmacist, was charged with unlawfully delivering 100 tablets of amphetamine salts to V.K. Bell on April 13, 1964, without …
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This is an appeal from a judgment of the circuit court on petition for certiorari. The judgment vacated an order of the Florida Board of Pharmacy which suspended ap-pellee’s pharmacy license for six months for violating Chapter 404, Fla.Stat, F.S.A., which is entitled the “Florida Barbiturate Law.” The Board of Pharmacy contends on this appeal that the judgment quashing its order should be reversed because the Board proceeded in accordance with the es-tential requirements of law, and that there was substantial competent evidence before the Board upon which the suspension could be based.
The record before the circuit court reveals that the complaint and notice to show cause was as follows:
“That you, Herbert Levin, while licensed as a pharmacist in the State of Florida, did, on April 13, 1964, unlawfully deliver to another, to-wit, V. K. Bell, a central nervous system stimulant, to-wit, one-hundred (100) tablets containing amphetamine salts, without first being furnished with a prescription therefor from a duly licensed practitioner, such act being in violation of Section 404.03(1), Florida Statutes (1963).”
The Florida Statutes do not contain a Section 404.03(1), but Section 404.03 provides :
“404.03 Exemptions, general. — Nothing in this chapter shall apply to any compounds, mixture, or preparation containing, in addition to a barbiturate or a central nervous system stimulant, a sufficient quantity of another potent drug or drugs to prevent its use as a hypnotic, or a somnifacient, or a central nervous system stimulant, as the case may be.”
The order of appellant found the appel-lee guilty “for 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.”
From the foregoing, it is apparent that the appellee was charged with having violated a particular section of the Florida Statutes and was found guilty of having violated the entire Chapter. Hence, it may not be argued that the appellant proceeded in accordance with the essential requirements of the law. Cf., State ex rel. Jordan v. Pattishall, 99 Fla. 296, 126 So. 147 (1930).
Affirmed.
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Fla. Bd. OF Pharmacy v. Levin, 190 So. 2d 768 (Fla. 1966)…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, to-w…1 / 2
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Fla. Bd. OF Pharmacy v. Levin, 192 So. 2d 14 (Fla. 3d DCA 1966)…PER CURIAM. Whereas, the judgment of this court was entered on January 11, 1966 (181 So. 2d 743) affirming the order of the Circuit Court for Dade County, Florida, in the above styled cause; and Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed October 12, 1966 (190 So.…
Authorities Cited
- State v. Pattishall, 99 Fla. 296 (Fla. 1930)