Case Information

*1 ‘198 .+ OFFlCE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN in

Bononb& It. 0. Pherr

couatf Attorney l3fJlte Bounty

cooper, Texas

d bevo on duty et phmwmi ea in operation es e pher- et tvm(ll) years in the t1oa1 subdivision in t.ie lobIght.' (6@yl, gee.

0. 18, P.C.)

Tour opfnion ie rsquestsd as to the oonatiuo- tion-of fhs~norde, ' *. . . .must have Ibsen in operation as a pharmaop-ior et least two. (2) y~ra....(

"The.ieots upon whioh thhie mqitest for opinion is based em aa Zollovra:.

wAbcmt $5 year6 ego i&e City BTU& Store, e' 'pher~aaoy,.nra~ established in the bity of Cooper,

199 Honorable Is. 0. Pharr, Page 2

Z)s1ta County, It was owaed and operated .a8 a pharuaoy by the same sah until he sold the

busimss in January of 1939. On the 9th day of Heroh 1959, the City hug Store was levied.

upon by the tax colleotor of Delta Oounty Sov delinquent tares. The store was closed on that date by eaid taxcolleotor, On the,22ud day of kaharah, lQ39, the City Drug Store, was sold at publia auetlon to Delta C.ouaty aud other taxiagunits havfug delinquent taxes against it, On April 29, 19.959, Delta County and other taxing units sold~sald Ulty Drl)rug Store-to an Individual purohaser, ivho; on April 90,. 19SQ re- opened the store far business. The, store'

(phapnacy) was .olosed betweeqharoh 9, 1999 and April 29, 1999, a period of iftty (50)..

bgl3. The keys were In the haads of the tax colleetar 0r Delta county. The. store was not In operation during those rifty (SO) days.

*The City Drug Stare ea auchlas been xe- gieterea with the State Board of Pharmaay for many yeara. It hes been located In Coeper,et leaet 55 .yeere. It hao been In operatiaoas a phenuaoy all this time with the exception of the JO days from PIareh 9, 19SQ to April 29, lQS9.

Wubseation 10 of Section 15 of the.Texas Llauor Contiol Aat states that the pharmar must *have beeoin operation as a phaimaoy~~ibr at few& two [2) yeers* betore it h 11 z sedi&&pemt to ,dibpens8 1iqUaE ;or ~%O~t Tuder the above stateme& ai iacts,'is the City hug Store in Cooper entitled to reoeive a Eediainal Permit at this time?

eon April 1, 1940 the owner of said City Drug Store made application to the Texas Liquor Control Board ror a.uedioinal perait. As eouaty attorney or Delta CoGty, it is my privilege to oontest thie application under authority Of said ~quor.Coutrol Aot.

*I amuuable tom ,rmd any euthoritiee on thie question sod am unable to find where your department Bonaabla B. k.'Pharr, Page'S

has ever passed :au thi,s question.

~mDeltci-County.has haketofore voted *&ry.* 1% $8 OUP vplnlon that we shvuld be alltied tv ren&n dry.'. We aannot da 80 rith a liquor drug crtoly .in’ oar aounty. We here none et thiktime.

It 5+ iny opinion that the llqaer lawe~ ehouid be aonatrued.svas to aocomplish the vnl'oroement of the y?ishvs~vf the people. Under the lo&m regu- lat$vus whioh'the'. lew~~lmposes on liquor thug tbtorbs, they anou&to hothIng,.less. than a package e-tore in a wet area.

"AZ%. ~-606 -.&'P..C; reads a8 foittms: ~~Vhis eatire ,aot sha&l; ba ;deemed an'exeratae oi the pi>lice.p~er.o~~the State far'the-proteation.vf the hlf&e, health, peaoe, temperahoe, and stiety'of the'people of the States, aud..aU. its.

provisions shall be l$beralij'aoniat~e& for the aoooaplisbrent vf that purposv.* .'%?a#& years agvwhsn Delta Couhty voted *dry;, the Wters vyidsntly believed.that liquor was -detri-

*Under the present conditions and alruimstances It appeamf.:ta me the phrase referred to should be .oonstrued~fo~mean that the pharuaey must have been In operation as a. pharmaoy~oontia@uely for two years next preveding the date of ths appltoatlvn SOT the pennit and that the twa year purled should beglu to run on the date the store reopened for business on April 29, 1999; that the twv year period dll not expire until April 29. 1e4LR

&tie16 666, Seotion lb, ,sub+6otlou 18, Vetnon* Texas Penal Code, reads in part as follower Annotated

"(18) Bedlvlnal Permits. Retail Pharsaoists shall be entitled to reeeiVe medicinal permits aud sell or dispense lfquor rvr rtedioihal purpvsesvnly.

The holders of suoh pvrmlts are authorized tv pur- ohase liquor frvm holder8 of wholeseler*s permits

203.

Hohorable E. 0. Pharr, Page 4

ia this State, Any pharaaay for whloh a permit is sou&$ must be a bona fide pbarmaoy registep- ed withqthe State 'Board of Phaagaoyz must emgloy aiid have::onIduty at all times a registered phama- aist end muat have been iu operation as a pharmacy for.et least, tee [2) years'in the particular poli- tical sub-division in rihloh a per&t is-sought.'=

Art$cle 4S42a, Vefnou's Anuotgted~~%xas ciril Sta- tutes, creates.the Tex,ee,Stete Board oi.P&%vmaoy, provides fOF the Uoenslng and registration at pharmaoists and regulates the preotloe of pharmaay .An this State:

. Sectlon~,'lQ of. Article 4542e, Vernod's Aauoteted Texas Cfvll 8tatate8, ,reads as rollowcr:

mA l pharumoyf-or 'drug store* as us&d in this Act KS'&+ store or plaae Wh6F6.drugs-ar sukdioinea‘are sold.'or furnished %a any boha f~de,manuer:at retail to the oousmer rhevbin.

~ar.egistere~ phan$aol~st is oonti.ngmely employ-

*"

Section 26 oft Artiole 4&42e; Vernon*8 Asnotated Texas Gi%il Statutes, reads as follow8r

*A' yphaxrmc~6&8 as used in this Act, meims a person liuensed by the Sta~e'Bctird.of Phariitacy, to prepare, oompouad and dispense physioianet prescriptions, drlngs end.aedloinea and ~~oieona.~

Section 15 of Article 4542a,, Vernon's Annotated Texas Civil Statutes, reads as follow8:

“In all &ores in which a iegistereil pharma- cist is continuously employed, and where the pro- visions or this Aot have been fully complied with, there'shall be ~displeyed in a prominent pIacre in or on the front oft said stove the word *Pharmacy.**

seotion 16 or Artlole 4542e, Vernon's Auuotated Texas. Clvll Statutes, veads as follows:

"It shall be unlawful for any person to die- play i& or on any s$ore or pjaoe of bw+ness the, word-'Phalmaoy* 6ither.I.n the English or any foreign lan&tige; unless ~there is continuously employed *5 HonorabZe E. '(2. Pbarr, Page 5

therein a registered pharmacist under the provi- slons 0r this Act.*

Seotlon 19 of Article 454Sa, Revised Civil Statutes of Texas, read8 as rollmr

Avery person, ilna, or oorpaation deslrfng to continue operaflag a retail pharmay or drug store in this State, as the mm ie defined herein, and every manufacturer OS drugs aud mediainea a8 defined herein, after the passage or.this bat shall procure frfan the Board a permit for each store or' taatory to be operated by meklng'wlthln sir (6) months applloationto the Board upen a form to be furnished by said Board, setting forth under oath ownership and location. and the name, with the aertirlcate number, or the pharmaoist registered In thla State, or physlolan, dentist, reterluar4an .or chiropodist who is tc be continuoualy~employed by the phermay or drug atore~ or faatgrg, prqvfded that the Roard may in its disaretion refuse to fssue such permit to such applicant unlese iurtished rfth satls2'actOry proof that said applicant %s engaged in the business of odtducting a pharmacy, drug store, or raotory ior the purpose of manafaoturing drugs; provided further that at any time artery the issusnae of a permit by the Bard to such applicant, the Board may revoke or camel thepermIt when satis- factory proof has been presented to such Board that said permit holder Is not conducting a bona fide pharmaoy or drug stars. The permit provided for herein shall be Issued annually.by the Board upon a reaeipt ,or proper application aaoomp pad by a fee of Two Dollars ($S); this permit to be isplayed aon- spicuously at all t%mes in the store or factory of original issue. Every person, rirpl or corporation desiring to open a new pharmacy, drug store, or factory shall procure the permit before mentioned, before commenolng business and the same disaretionalr posers may,be used by the Board in passing upon such application., Ro more than one store or faotory aLaY be operated under one persalt. In case of change or pereonuel or registered pharmacists, the J3card shall be notlf$ed.or such change within ten (10) daya; Pro- vided~thatthe same pharmaoist*e name shall not appear on more than on0 I11 permit.e~ Opinion 3% c)-337 or this department holds, among OtRer thiqa, tkat a pha~oy is not a bona fide pharmacy &so It ia regintered wltb the State Msrd of Phamasy, snd unlsaa It has at all tlmea a nglstend phamaiat. ,_~ ._-..- --.

TRta departzent held on Daosmber 14, 151313, in an opinion wrttten by Non. Jar Sharp, Awlstpt Attorney benaral, addrasaad to l?oon. Dmt Ford, J&clntitretO%, Texas liquor Ttn- tml ?%ard AuatLn, Texaa, that In ordar to ba ali&bls ior a nediaina!, pan& a ~ba~csoy roust bars bean re(klstered with t&o Stats %taC of ?ha~maay for at leoat tw gear8 prior to tha riling or its application for 8 wdloinal Raw&it and that in order to be a pharmsay it mat &+e had employed and had an Outg a registered phammbWt omtinuoua4 far the two year pork% prior to ths Z11i.w of the application.

‘Under the faata skiwd in your latter and Wer the above authoaltiaa the City Drug E&GM -8 n@t a "phanaaoy* a# tR&t term la deiinod b law during tbs fifty-&&y period bstwaan Earah 9, 1939 an& Sgzi 1 ZS, lQB9.

tharofore respectfully advised that It Ia the apir~ke%~%a depaxt&t that the aorm3udoo raa&aU by you in your 3attor is w%nantly dormot.

COMMITTEE