A. Any person who desires to operate or maintain the operation of a pharmacy or who engages in an activity in this state requiring licensure by the board shall apply to the board for the proper license and shall meet the requirements of the board and pay the fee for the license and its renewal. B. The board shall issue the following classes of licenses that shall be defined and limited by regulation of the board: (1) retail pharmacy; (2) nonresident pharmacy; (3) wholesale drug distributor; (4) drug manufacturer; (5) hospital pharmacy; (6) industrial health clinic; (7) community health clinic; (8) department of health public health offices; (9) custodial care facility; (10) home care services; (11) emergency medical services; (12) animal control facilities; (13) wholesaler, retailer or distributor of veterinary drugs bearing the legend: "caution: federal law restricts this drug to use by or on the order of a licensed veterinarian". Such drugs may be sold or dispensed by any person possessing a retail pharmacy license, outsourcing facility license, repackager license, wholesale drug distributor's license or drug manufacturer's license issued by the board, without the necessity of acquiring an additional license for veterinary drugs; (14) returned drugs processors; (15) drug research facilities; (16) drug warehouses; (17) contact lens sellers; (18) medicinal gas repackagers; (19) medicinal gas sellers; (20) outsourcing facilities; (21) repackagers; and (22) third-party logistics providers. C. Every application for the issuance or biennial renewal of: (1) a license for a retail pharmacy, nonresident pharmacy, hospital pharmacy or drug research facility shall be accompanied by a fee set by the board in an amount not to exceed three hundred dollars ($300) per year; (2) a license for a wholesale drug distributor, drug manufacturer, drug warehouse, outsourcing facility, repackager or third-party logistics provider shall be accompanied by a fee not to exceed one thousand dollars ($1,000) per year; (3) a license for a custodial care facility or a returned drugs processor business shall be accompanied by a fee set by the board in an amount not to exceed two hundred dollars ($200) per year; and (4) a license for an industrial health clinic; a community health clinic; a department of health public health office; home care services; emergency medical services; animal control facilities; wholesaler, retailer or distributor of veterinary drugs; contact lens sellers; or medicinal gas sellers shall be accompanied by a fee set by the board in an amount not to exceed two hundred dollars ($200) per year. D. If it is desired to operate or maintain a pharmaceutical business at more than one location, a separate license shall be obtained for each location. E. Each application for a license shall be made on forms prescribed and furnished by the board. F. Any person making application to the board for a license to operate a facility or business listed in Subsection B of this section in this state shall submit to the board an application for licensure indicating: (1) the name under which the business is to be operated; (2) the address of each location to be licensed and the address of the principal office of the business; (3) in the case of a retail pharmacy, the name and address of the owner, partner or officer or director of a corporate owner; (4) the type of business to be conducted at each location; (5) a rough drawing of the floor plan of each location to be licensed; (6) the proposed days and hours of operation of the business; and (7) other information the board may require, including a criminal background check and financial history, provided that manufacturers distributing their own products that have been licensed or approved by the food and drug administration shall be exempt from criminal background check and financial history requirements pursuant to this section. G. After preliminary approval of the application for a license for any facility or business listed in Paragraphs (1) through (8) and (10) through (22) of Subsection B of this section, a request for an inspection, together with an inspection fee not to exceed two hundred dollars ($200), shall be submitted to the board for each business location, and an inspection shall be made of each location by the board or its agent. H. Following a deficiency-free inspection, the executive director of the board may issue a temporary license to the applicant. The temporary license shall expire at the close of business on the last day of the next regular board meeting. I. Licenses, except temporary licenses provided pursuant to Subsection H of this section, issued by the board pursuant to this section are not transferable and shall expire on the expiration date set by the board unless renewed. Any person failing to renew a license on or before the expiration date set by the board shall not have the license reinstated except upon reapplication and payment of a reinstatement fee set by the board in an amount not to exceed one hundred dollars ($100) and all delinquent renewal fees. J. The board, after notice and a refusal or failure to comply, may suspend or revoke any license issued under the provisions of the Pharmacy Act at any time examination or inspection of the operation for which the license was granted discloses that the operation is not being conducted according to law or regulations of the board. K. Pharmaceutical sales representatives who carry dangerous drugs shall provide the board with a written statement from the representative's employer that describes the employer's policy relating to the safety and security of the handling of dangerous drugs and to the employer's compliance with the federal Prescription Drug Marketing Act of 1987. Pharmaceutical sales representatives are not subject to the licensing provisions of the Pharmacy Act. History: 1953 Comp., § 67-9-45, enacted by Laws 1969, ch. 29, § 13; 1973, ch. 173, § 2; 1977, ch. 253, § 69; 1983, ch. 165, § 4; 1989, ch. 103, § 3; 1992, ch. 19, § 6; 1993, ch. 219, § 1; 1997, ch. 131, § 15; 2001, ch. 50, § 7; 2004, ch. 52, § 1; 2005, ch. 152, § 8; 2007, ch. 79, § 1; 2019, ch. 98, § 4. Cross references. — For the Parental Responsibility Act, see 40-5A-1 NMSA 1978 et seq. For the federal Prescription Drug Marketing Act of 1987, see 21 U.S.C. § 301, et seq. The 2019 amendment, effective June 14, 2019, established additional classes of licenses that are regulated by the board of pharmacy, and added contact lens sellers and medicinal gas sellers to the list of licensees that are required to pay a fee not more than two hundred dollars for each license application or renewal; in the section heading, deleted "wholesale drug distribution business licensure" and added "classes of licenses"; in Subsection A, after "pharmacy or who engages in", deleted "a wholesale drug distribution business" and added "an activity", and after "in this state", added "requiring licensure by the board"; in Subsection B, Paragraph B(13), after "pharmacy license", added "outsourcing facility license, repackager license", and added Paragraphs B(20) through B(22); in Subsection C, Paragraph C(2), after "drug warehouse", added "outsourcing facility, repackager or third-party logistics provider", and in Paragraph C(4), added "contact lens sellers; or medicinal gas sellers"; and in Subsection G, after "(10) through", deleted "(19)" and added "(22)". The 2007 amendment, effective June 15, 2007, amended Subsection C to lower the fee for issuance or renewal of a wholesale drug distributor, drug manufacturer or drug warehouse license to $1,000; and amended Subsection F to require all applicants for licenses to submit a criminal background check and financial history except manufacturers who distribute their own products and who are licensed or approved by the food and drug administration. The 2005 amendment, effective June 17, 2005, added Subsections B(17) through (19) to provide for the issuance of license to contact lens sellers, medical gas repackagers and medical gas sellers respectively; provided for the biennial renewal of licenses in Subsection C; and the expiration date of licenses shall be set by the board. The 2004 amendment, effective May 19, 2004, amended Subsection C to delete "wholesale drug distributor", "drug manufacturer" and "drug warehouse" from Paragraph (1), added new Paragraph (2) and redesignated Paragraphs (2) and (3) as Paragraphs (3) and (4) and amended Subsection K to delete the fifty dollar registration fee and add "provide the board with a written statement from the representative's employer that describes the employer's policy relating to the safety and security of the handling of dangerous drugs and to the employer's compliance with the federal Prescription Drug Marketing Act of 1987." The 2001 amendment, effective June 15, 2001, added Paragraphs (14), (15) and (16) in Paragraph B, substituted "hospital pharmacy, drug research facility or drug warehouse" for "or hospital pharmacy" in Paragraph C(1); inserted "or a returned drugs processor business" in Paragraph C(2); substituted the specific references to Subsection B for "new retail pharmacy, hospital pharmacy, wholesale drug distributor or drug manufacturer" in Subsections F and G, inserted "except temporary licenses provided pursuant to Subsection H of this section" in Subsection I; and in Subsection K, rewrote the second sentence which formerly read "The board may charge a fee not to exceed fifty dollars ($50.00) for registration and annual renewal." The 1997 amendment, effective June 20, 1997, deleted "permit or" preceding "license" in two places in Subsection A; rewrote Subsection B; rewrote Subsection C; deleted "or permit" following "license" in Subsection D; deleted "permit or" preceding "license" in Subsection E; substituted "drug distributor or drug manufacturer" for "drug business or drug manufacturing" in Subsection F; designated the former undesignated last paragraph of Subsection F as Subsection G; added Subsection H and redesignated the remaining subsections accordingly; in Subsection I, deleted "and permits" following "licenses", substituted "pursuant to" for "under", deleted "or permit" following "license" in two places, and inserted "reapplication and"; in Subsection J, substituted "may" for "is authorized to", deleted "or permit" following "license" in two places, and substituted "the operation" for "such place"; and added Subsection K. The 1993 amendment, effective July 1, 1993, added present Paragraph (11) to Subsection B, renumbering former Paragraph (11) as Paragraph (12) and making a related grammatical change; and in Paragraph (3) of Subsection C, inserted "a limited drug permit issued pursuant to the provisions of Paragraph (11) of Subsection B of this section" and substituted "Paragraph (12)" for "Paragraph (11)". The 1992 amendment, effective May 20, 1992, inserted "wholesale" in the section heading; inserted "who engages in a wholesale" in Subsection A; rewrote Subsection B(2), which formerly read: "wholesale drug dealer's license"; added present Subsection B(3); redesignated former Subsections B(3) to B(7) as present Subsections B(4) to B(8); added present Subsection B(9); redesignated former Subsections B(8) and B(9) as present Subsections B(10) and B(11); substituted "distributor's" for "dealer's" in the second sentence of Subsection B(11); substituted "distributor, nonresident pharmacy, pharmaceutical sales representative" for "dealer" in Subsection C(1); added the second sentence of Subsection G; substituted "department of health" for "health and environment department" several times throughout the section; and made minor stylistic changes throughout the section. The 1989 amendment, effective June 16, 1989, substituted "three hundred dollars ($300)" for "two hundred dollars ($200)" in Subsection C(1); substituted "one hundred dollars ($100)" for "fifty dollars ($50.00)" in Subsection C(2); substituted "two hundred dollars ($200)" for "one hundred dollars ($100)" in Subsections C(3) and C(4); and substituted "an inspection fee not to exceed two hundred dollars ($200)" for "a one hundred dollar ($100) inspection fee" in Subsection F(7). Defendants did not meet the definition of "custodial care facilities," and therefore did not require a pharmacy license. — Where the board of pharmacy notified defendants, two community care homes that provide full-time care, supervision and support to children, that they needed a pharmacy license to maintain their children, youth and families department (CYFD) licenses, claiming that defendants were considered "custodial care facilities" under the Pharmacy Act, §§ 61-11-1 through 61-11-29 NMSA 1978, and where defendants responded that they were not required to hold a pharmacy license because they were not "custodial care facilities," and where defendants filed a complaint in district court seeking declaratory and injunctive relief to prevent their licenses from being revoked, the district court did not abuse its discretion in granting declaratory and injunctive relief in defendants' favor, because defendants did not meet the definition of "custodial care facilities." Defendants' purpose is to provide safe care for certain children, not medical or health care, and the children which defendants care for are not placed there for health care purposes; defendants do not retain nurses or doctors on staff, and do not provide the children with extended health care or prescribe them medications. Defendants are not "custodial care facilities" as contemplated by the Pharmacy Act, but are "community homes," as defined by CYFD regulations, which are not required to obtain a pharmacy license to operate. N.M. Boys & Girls Ranch v. N.M. Bd. of Pharmacy , 2022-NMCA-047, cert. denied. Pharmacy board exceeded its regulatory authority by expanding the statutory definition of "custodial care facility". — Where the board of pharmacy (board) notified defendants, two community care homes that provide full-time care, supervision and support to children, that they needed a pharmacy license to maintain their children, youth and families department licenses, claiming that defendants were considered "custodial care facilities" under the Pharmacy Act, §§ 61-11-1 through 61-11-29 NMSA 1978, and where defendants responded that they were not required to hold a pharmacy license because they were not "custodial care facilities," and where defendants filed a complaint in district court seeking declaratory and injunctive relief to prevent their licenses from being revoked, the district court did not abuse its discretion in granting declaratory and injunctive relief in defendants' favor, because the board acted outside its statutory authority in defining "custodial care facility" by regulation in a manner that excessively expanded upon the legislature's definition of "custodial care facility" in the Pharmacy Act. The board's definition is therefore void. N.M. Boys & Girls Ranch v. N.M. Bd. of Pharmacy , 2022-NMCA-047, cert. denied. Drug manufacturer or wholesaler is required to have separate license for that particular operation; license to operate a drugstore does not extend to manufacturing or wholesaling activities. 1955 Op. Att'y Gen. No. 55-6211. Hospital or clinic pharmacy must be licensed and registered, and, except in limited situations, prescriptions must be filled by a registered pharmacist. 1961 Op. Att'y Gen. No. 61-52. Law reviews. — For note, "On Building Better Laws for New Mexico's Environment," see 4 N.M.L. Rev. 105 (1973). Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drugs, Narcotics and Poisons § 76. Revocability of license for fraud or other misconduct before or at time of its issuance, 165 A.L.R. 1138. Stay pending review of judgment or order revoking or suspending license, 166 A.L.R. 575. Bias of members of license revocation board, 97 A.L.R.2d 1210. Revocation or suspension of license or permit to practice pharmacy or operate drugstore because of improper sale or distribution of narcotic or stimulant drugs, 17 A.L.R.3d 1408. 28 C.J.S. Drugs and Narcotics § 29 et seq.
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