                                                                ‘198




1
 .+       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 subdivisionin
                           t.ie lobIght.'(6@yl,gee.
                       0. 18, P.C.)
               Tour opfnion ie rsquestsd as to the oonatiuo-
          tion-of fhs~norde,'*....must have Ibsenin operation
          as a pharmaop-ioret least two.(2) y~ra....(
               "The.ieotsupon whioh thhiemqitest for opinion
          is based em aa Zollovra:.
              wAbcmt $5 year6 ego i&e City BTU& Store, e'
         'pher~aaoy,.nra~
                       establishedin the bity of Cooper,
                                                            199




Honorable Is.0. Pharr, Page 2


     Z)s1taCounty, It was owaed and operated .a8a
     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 colleotorof 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.ouatyaud other
     taxiagunits havfug delinquenttaxes against
     it, On April 29, 19.959,Delta County and other
     taxing units sold~saldUlty Drl)rug
                                      Store-to an
     Individualpurohaser,ivho;on April 90,.19SQ re-
     opened the store far business. The,store'
     (phapnacy)was .olosedbetweeqharoh 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 PIareh9, 19SQ to April 29, lQS9.
          Wubseation 10 of Section 15 of the.Texas
     Llauor Contiol Aat states that the pharmar
     must *have beeoin operationas a phaimaoy~~ibr
     at few& two [2) yeers* betore it h 11       1
     z sedi&&pemt     to ,dibpens81iqUaE ;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 applicationto the Texas Liquor
     Control Board ror a.uedioinalperait. 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
                                                            200




Bonaabla B. k.'Pharr,Page'S


     has ever passed :authi,squestion.
          ~mDeltci-County.has
                            haketoforevoted *&ry.*
     1% $8 OUP vplnlon that we shvuld be alltied tv
     ren&n dry.'.We aannot da 80 rith a liquor drug
     crtoly.in’
              oar aounty. We here none et thiktime.
     It 5+ inyopinion that the llqaer lawe~ehouid be
     aonatrued.svas to aocomplish the vnl'oroement of
     the y?ishvs~vfthe people. Under the lo&m regu-
     lat$vus whioh'the'.
                       lew~~lmposeson liquor thug
     tbtorbs,they anou&to hothIng,.less. than a package
     e-torein a wet area.
          "AZ%.~-606-.&'P..C;reads a8 foittms:
              ~~Vhis eatire ,aotsha&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 aoooaplisbrentvf that purposv.*
         .'%?a#&
               years agvwhsn Delta Couhty voted *dry;,
    the Wters vyidsntlybelieved.thatliquor was -detri-



         *Under the present conditionsand alruimstances
    It appeamf.:tame the phrase referred to should be
    .oonstrued~fo~meanthat the pharuaey must have been
    In operation as a.pharmaoy~oontia@uelyfor two years
    next preveding the date of ths appltoatlvnSOT 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*
Annotated Texas Penal Code, reads in part as follower
         "(18) Bedlvlnal Permits. Retail Pharsaoists
    shall be entitled to reeeiVe medicinal permits aud
    sell or dispense lfquor rvr rtedioihalpurpvsesvnly.
    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 'Boardof Phaagaoyz must emgloy
    aiidhave::onIdutyat all times a registeredphama-
    aist end muat have been iu operationas a pharmacy
    for.et least,tee [2) years'in the particularpoli-
    tical sub-divisionin rihloha per&t is-sought.'=
          Art$cle 4S42a, Vefnou's Anuotgted~~%xasciril Sta-
tutes, creates.the Tex,ee,Stete  Board oi.P&%vmaoy,providesfOF
the Uoenslng and registrationat pharmaoistsand regulates
the preotloe of pharmaay
                     .     .Anthis State:
          Sectlon~,'lQ of.Article 4542e, Vernod's Aauoteted
Texas Cfvll 8tatate8, ,readsas rollowcr:
         mA lpharumoyf-or 'drug store* as us&d in
    this Act KS'&+ store or plaae Wh6F6.drugs-ar
    sukdioinea‘aresold.'orfurnished%a any boha
    f~de,manuer:atretail to the oousmer rhevbin.
    ~ar.egistere~phan$aol~stis oonti.ngmelyemploy-
      *"
          Section 26 oftArtiole 4&42e; Vernon*8 Asnotated
Texas Gi%il Statutes, reads as follow8r
         *A'yphaxrmc~6&8as used in this Act, meims
    a person liuensed by the Sta~e'Bctird.of
                                           Phariitacy,
    to prepare, oompouad and dispense physioianet
    prescriptions,drlngsend.aedloineaand ~~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 continuouslyemployed,and where the pro-
     visions or this Aot have been fully compliedwith,
     there'shall be ~displeyedin a prominent pIacrein
     or on the front oftsaid 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 ~thereis continuouslyemployed
                Pbarr,
HonorabZe E. '(2.        Page 5



     therein a registeredpharmacist 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 operaflaga retail pharmay or drug
     store in this State, as the mm    ie defined herein,
     and every manufacturerOS drugs aud mediainea a8
     defined  herein, after the passage or.this bat shall
     procure frfanthe Board a permit for each store or'
     taatory to be operated by meklng'wlthlnsir (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
     aertirlcatenumber, or the pharmaoist registered
     In thla State, or physlolan,dentist, reterluar4an
     .orchiropodistwho 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 arterythe
     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 conductinga bona fide
     pharmaoy or drug stars. The permit provided for
     herein shall be Issued annually.bythe Board upon a
     reaeipt ,orproper applicationaaoomppad     by a fee of
     Two Dollars ($S); this  permit to be isplayed aon-
     spicuously at all t%mes in the store or factory of
     original issue. Every person, rirpl or corporation
     desiring to open a new pharmacy, drug store, or
     factory shall procure the permit before mentioned,
     before commenolngbusiness and the same disaretionalr
     posers may,be used by the Board in passing upon such
     application.,Ro more than one store or faotory aLaY
     be operated under one persalt. In case of change or
     pereonuel or registeredpharmacists,the J3cardshall
     be notlf$ed.or such change within ten (10) daya; Pro-
     vided~thatthe same pharmaoist*ename shall not
     appear on more than on0 I11 permit.e~
                                                               203




          Opinion 3% c)-337or this department holds, among
OtRer thiqa, tkat a pha~oy is not a bona fide pharmacy
&so    It ia reginteredwltb the State Msrd of Phamasy,
snd unlsaa It has
               ,_~
                ._-..-   --. a nglstend
                  at all tlmea            phamaiat.
          TRta departzent held on Daosmber 14, 151313,
                                                    in an
opinion wrttten by Non. Jar Sharp, Awlstpt Attorney benaral,
addrasaadto 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 roustbars bean re(klstered with
t&o Stats %taC of ?ha~maay for at leoat tw gear8 prior to
tha riling or its applicationfor 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 authoaltiaathe 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& Sgzi1 ZS, lQB9.
                  tharofore respectfullyadvised that It Ia
the apir~ke%~%a    depaxt&t that the aorm3udoo raa&aU by
you in your 3attor is w%nantly dormot.




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