IN THE SUPREME COURT OF IOWA 

No. 36 / 06–1747 

Filed June 27, 2008 

GARVIS G. HOUCK, 

 Appellant, 

vs. 

IOWA BOARD OF PHARMACY EXAMINERS, 

 Appellee. 

 

Appeal from the Iowa District Court for Cerro Gordo County, 

Bryan H. McKinley, Judge. 

 Pharmacist appeals from the district court’s order affirming a 

decision of the Iowa Board of Pharmacy Examiners. AFFIRMED. 

 Michael M. Sellers of Sellers Law Office, West Des Moines, for 

appellant. 

Thomas J. Miller, Attorney General, and Scott M. Galenbeck, 

Assistant Attorney General, for appellee. 
2

HECHT, Justice. 

 A pharmacist compounded and sold a product to a customer 

without a prescription. The customer filed a complaint with the 

administrative agency that regulates the conduct of pharmacists, and a 

sanction was imposed against the pharmacist. In this appeal from the 

district court’s ruling affirming the agency’s action, we must decide 

whether the agency has authority to designate the compounded product 

as a drug that may be dispensed by a pharmacist only if it has been 

prescribed by a practitioner. We conclude the agency acted within its 

broad authority, and therefore affirm the district court’s ruling. 

I. Factual and Procedural Background. 

 Garvis Houck is a licensed Iowa pharmacist and the owneroperator of Houck Drug, a licensed Iowa pharmacy in Clear Lake. In 

2002 Shirley Meyer consulted Houck about nasal irritation. After 

offering to supply a product to ease Meyer’s symptoms, Houck 

compounded1 a nasal spray containing a mixture of: 2-deoxy-d-glucose 

(an antiviral); dyclonine (an anesthetic); miconazole (an antifungal); 

methylcellulose (a suspending agent); sodium chloride; and distilled 

water. Each of these substances was, by itself, a nonprescription drug. 

Houck sold the compounded product to Meyer in a bottle that was not 

labeled with a prescription number, a prescriber’s name, or a 

pharmacist’s initial on the label. Meyer used the nose drops once, 

experienced increased nasal irritation, and filed a complaint with the 

Iowa Board of Pharmacy Examiners (“board”). 

 1The Iowa Administrative Code defines “compounding” as “preparing, mixing, 

assembling, packaging, and labeling a drug or device for an identified patient . . . .” 

Iowa Admin. Code r. 657—20.2. 
3

 The board assigned an investigator, Jacky Devine, to investigate 

Meyer’s complaint.2 Houck admitted he compounded the nasal spray for 

Meyer without a prescription based on his experience in compounding 

some of the same substances for prescribers in the area. While 

conducting the investigation of the Meyer complaint, Devine found 

several violations of pharmacy regulations that had been noted in a prior 

inspection. Houck was unable to produce for Devine forms required to 

record transactions involving narcotics,3 a required log for permanent 

and nonpermanent pharmacist employees, compounding production 

records bearing the initials of the compounding pharmacist, and a 

logbook containing the initials of pharmacists who provided customers 

certain cough syrups containing codeine. Houck had been warned about 

all of these record-keeping deficits in 2000. 

 The board filed two charges against Houck based on the 

investigation of the Meyer transaction and the 2002 inspection: 

(1) intentional or repeated violation of the board’s rules regarding 

operation of a pharmacy and maintenance of controlled substance 

records; and (2) unlawful manufacturing and dispensing of a 

compounded drug without a prescriber’s authorization. Following a 

hearing, the board issued a written decision finding Houck committed 

the alleged violations and placed Houck and Houck Drug on probation 

for three years with several conditions. The board specifically ordered 

 2Devine had investigated for the board a similar complaint against Houck in 

October of 2000. That complaint also arose as a consequence of Houck’s compounding 

of “over-the-counter” substances without a prescription. Devine found Houck’s records 

to be out of compliance in several particulars with the board’s regulations at that time, 

and warned Houck against compounding and selling substances without a prescription. 

3Houck later provided Devine with most, but not all, of the missing forms. 
4

Houck to refrain from compounding of any kind without authorization 

from a prescriber. 

 Houck sought judicial review in the district court. He contended 

the regulations prohibiting pharmacists from compounding, without a 

prescription, substances separately available without a prescription are 

unconstitutional. Houck also asserted the board lacked authority to 

issue the regulations, and the board’s disciplinary action was not 

supported by substantial evidence. The district court denied Houck’s 

petition. 

II. Scope of Review. 

On judicial review of final agency action, we review for errors at 

law. Hough v. Iowa Dep’t of Pers., 666 N.W.2d 168, 170 (Iowa 2003). In 

determining the appropriate scope of review of an agency’s interpretation 

of a statute, the crucial question for the reviewing court is whether the 

interpretation of the statute has clearly been vested by a provision of law 

in the agency’s discretion. See Iowa Code § 17A.19(10)(c), (l). If the 

agency has been clearly vested with interpretive authority, we generally 

defer to the agency’s interpretation, and may grant relief only if the 

agency’s interpretation is “irrational, illogical, or wholly unjustifiable.” 

Id. § 17A.19(10)(l). If the agency has not been clearly vested with 

discretion to interpret the statute, “we are free to substitute our 

judgment de novo for the agency’s interpretation and determine if the 

interpretation is erroneous.” Auen v. Alcoholic Beverages Div., 679 

N.W.2d 586, 589–90 (Iowa 2004) (citing Iowa Code § 17A.19(10)(c)). 

The legislature has delegated broad authority to the Board of 

Pharmacy Examiners for the regulation of the practice of pharmacy in 
5

Iowa. Iowa Code section 147.76 (2007)4 confers upon the board the 

authority to “adopt all necessary and proper rules to implement and 

interpret [chapter 155A].” See also Iowa Code § 155A.3(3) (stating the 

term “board” in chapter 155A refers to the board of pharmacy 

examiners). We have previously held similar language in other statutes 

constituted a clear vesting in the agency of the authority to interpret a 

statute. Thoms v. Iowa Pub. Employees’ Ret. Sys., 715 N.W.2d 7, 11 

(Iowa 2006) (finding a clear vesting of interpretive authority where a 

statute directed the agency to “adopt . . . rules . . . and take other action 

it deems necessary for the administration of the retirement system”); 

Auen, 679 N.W.2d at 590 (holding grant of authority to an agency to 

adopt rules “necessary to carry out this chapter” clearly vested in the 

agency authority to interpret a statute); City of Marion v. Iowa Dep't of 

Revenue & Fin., 643 N.W.2d 205, 207 (Iowa 2002) (holding statute 

providing “[t]he director shall have the power and authority to prescribe 

all rules not inconsistent with the provisions of this chapter, necessary 

and advisable for its detailed administration and to effectuate its 

purposes,” vested authority in the department of revenue and finance to 

interpret section 422.45(20)). Section 147.76 clearly vests the board of 

pharmacy examiners with authority to interpret chapter 155A. We will 

therefore overturn the board’s interpretation of that chapter only if it is 

“irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(l). 

 4The events giving rise to this case occurred in 2002. Accordingly, the statutes 

controlling our disposition were codified in the 2001 Iowa Code. Those statutes were 

renumbered and relocated in the code without substantive change after 2001. The 

parties have uniformly cited those statutes as they appear in the 2007 Code, and we 

will do so as well. 
6

We review an agency’s factual findings for substantial evidence 

based on the record viewed as a whole. Id. § 17A.19(10)(f). Substantial 

evidence is 

the quantity and quality of evidence that would be deemed 

sufficient by a neutral, detached, and reasonable person, to 

establish the fact at issue when the consequences resulting 

from the establishment of that fact are understood to be 

serious and of great importance. 

Id. § 17A.19(10)(f)(1). 

 We review constitutional claims de novo. Wright v. Iowa Dep’t of 

Corr., 747 N.W.2d 213, 216 (Iowa 2008). 

III. Discussion. 

A. Board’s Authority to Regulate Compounding of 

Nonprescription Drugs. 

1. Board’s authority to define “prescription drugs.” The primary 

controversy in this case centers on the board’s interpretation of Iowa 

Code section 155A.3(35). This statute defines a “prescription drug” as 

any of the following: 

a. A substance for which federal or state law requires a 

prescription before it may be legally dispensed to the 

public. 

b. A drug or device that under federal law is required, 

prior to being dispensed or delivered, to be labeled 

with one of the following statements: 

(1) Caution: Federal law prohibits dispensing 

without a prescription. 

(2) Caution: Federal law restricts this drug to use 

by or on the order of a licensed veterinarian. 

(3) Caution: Federal law restricts this device to sale 

by, or on the order of, a physician. 

(4) Rx only. 

c. A drug or device that is required by any applicable 

federal or state law or regulation to be dispensed on 
7

prescription only, or is restricted to use by a 

practitioner only. 

Iowa Code § 155A.3(35) (emphasis added). The board has interpreted 

subsection (c) as a positive grant of authority by the legislature to the 

board to enact regulations requiring that certain drugs be dispensed on 

prescription only. Relying on such authority, the board enacted 

rule 20.2, a rule which, in relevant part, prohibits a pharmacist from 

dispensing compounds consisting of exclusively nonprescription 

components without a prescription from a practitioner.5 Iowa Admin. 

Code r. 657—20.2. Rule 20.2 thus brings a compound made from 

exclusively nonprescription components within the definition of a 

“prescription drug” in section 155A.3(35)(c). Houck contends section 

155A.3(35)(c) does not vest the board with the authority to designate as a 

“prescription drug” a compounded substance consisting of a combination 

of nonprescription substances. 

After carefully reviewing chapter 155A in light of the board’s 

authority to implement and interpret that chapter, we cannot say the 

board’s interpretation of section 155A.3(35)(c) as a positive grant of 

authority to the board to designate all compounded substances as 

“prescription drugs” is irrational, illogical, or wholly unjustifiable. The 

plain language of section 155A.3(35)(c) clearly evidences legislative intent 

to identify, at least in part through state administrative rule, those 

substances which may be dispensed by pharmacists only if prescribed by 

 5The Iowa Code defines a “practitioner” as 

a physician, dentist, podiatric physician, veterinarian, or other person 

licensed or registered to distribute or dispense a prescription drug or 

device in the course of professional practice in this state or a person 

licensed by another state in a health field in which, under Iowa law, 

licensees in this state may legally prescribe drugs. 

Iowa Code § 155A.3(33). 
8

a practitioner. As we have already noted, the board has been vested with 

broad authority to adopt rules to “implement and interpret” chapter 

155A. Iowa Code § 147.76. The board is the agency charged with 

administering Iowa Code chapter 124 (“Controlled Substances”) and Iowa 

Code chapter 126 (“Iowa Drug, Device, and Cosmetic Act”). Id.

§§ 124.101(3), .201, .301; 126.2(3), .17. The board asserts, and Houck 

does not dispute, that no other state administrative agency is assigned 

regulatory power over controlled substances or prescription drugs. We 

conclude the board’s interpretation of section 155A.3(35)(c) as a statutory 

authorization to identify prescription drugs by administrative rule is not 

irrational, illogical, or wholly unjustifiable. It is an interpretation that 

gives reasonable and logical meaning to the words “or regulation” in the 

statute. See T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 

162 (Iowa 1999) (noting interpretations that render a portion of a statute 

redundant or irrelevant should be avoided). 

Houck contends the general assembly enumerated in chapter 124 

the list of drugs which may be regulated as “prescription drugs” under 

chapter 155A. According to Houck, the board’s only authority to 

influence what is a “prescription drug” is its role in recommending to the 

general assembly the appropriate classification for controlled substances 

in chapter 124. Iowa Code § 124.201. Chapters 124 and 155A, however, 

do not narrowly limit the board’s authority to regulate prescription drugs 

in the manner suggested by Houck. 

As averred by Houck, chapter 124 lists five categories, or 

schedules, of “controlled substances.” See generally id. §§ 124.203–.212. 

As the term is used in chapter 124, a “controlled substance” is “a drug, 

substance, or immediate precursor in schedules I through V of division II 

of this chapter.” Id. § 124.101(5). The schedules categorize various 
9

substances according to their relative potential for abuse, the degree to 

which the substance has an accepted medical use, and likelihood that 

abuse of the substance would lead to psychic or physical dependence. 

Id. § 124.201. Contrary to Houck’s assertion, however, chapter 124 does 

not define “prescription drug”; nor does it purport to present an 

exhaustive list of substances which may be only dispensed by a 

pharmacist pursuant to a practitioner’s prescription. We find no 

limitation in chapter 124 on the board’s authority to define “prescription 

drugs.” 

Our rejection of Houck’s contention that chapter 124 limits the 

board’s authority to define “prescription drugs” is strengthened by the 

careful distinctions drawn by the general assembly in chapter 155A 

between “controlled substances” and “prescription drugs.” A 

“prescription drug” may be either a “drug” or “device.”6 Id.

§ 155A.3(35)(c). A “drug” is any of the following: 

a. A substance recognized as a drug in the current 

official United States Pharmacopoeia and National 

Formulary, official Homeopathic Pharmacopoeia, or 

other drug compendium or any supplement to any of 

them. 

b. A substance intended for use in the diagnosis, cure, 

mitigation, treatment, or prevention of disease in 

humans or other animals. 

c. A substance, other than food, intended to affect the 

structure or any function of the body of humans or 

other animals. 

d. A substance intended for use as a component of any 

substance specified in paragraph “a”, “b”, or “c”. 

 6A “device” is “an instrument, apparatus, implement, machine, contrivance, 

implant, in vitro reagent, or other similar or related article, including any component 

part or accessory, that is required under federal or state law to be ordered or prescribed 

by a practitioner.” Iowa Code § 155A.3(10). This case does not involve a “device,” and 

we therefore consider only the portion of the statute pertaining to “drugs.” 
10

e. A controlled substance. 

Id. § 155A.3(13) (emphasis added). As in chapter 124, the term 

“controlled substance” in chapter 155A refers to the substances or 

precursors to the substances listed in the chapter 124 schedules. Id.

§ 155A.3(6). Thus, in chapter 155A the terms “drug” and “prescription 

drug” are not limited to the substances in the controlled substance 

schedules. Although the legislature has granted the board only the 

limited authority to recommend to the general assembly substances to be 

designated as “controlled substances,” id. § 124.201, no such limitation 

appears in section 155A.3(35)(c) in connection with the board’s authority 

to define “prescription drugs.” 

2. Validity of the board’s compounding rule. Having found the 

board could rationally conclude it had the authority to require a drug to 

be dispensed by prescription only, we must determine whether the 

board’s compounding rule is irrational, illogical, or wholly unjustifiable. 

Houck contends the relevant portion of the rule is irrational because it 

forbids pharmacists, who have special training regarding interactions 

between drugs, from combining and distributing compounds consisting 

exclusively of substances available without a prescription while allowing 

nonpharmacists to do so. We disagree. The board’s inclusion of all 

compounded substances within the definition of “prescription drug” is 

sufficiently related to the goals of chapter 155A to survive our scrutiny 

under the applicable deferential standard of judicial review. 

Rule 20.2 is properly within the bounds of the board’s authority 

under section 155A.3(35). As noted above, that statute requires a 

“prescription drug” be a “drug or device.” Id. § 155A.3(35)(c). A “drug” 

includes “[a] substance, other than food, intended to affect the structure 

or any function of the body of humans.” Id. § 155A.3(13)(c). The product 
11

compounded by Houck for Meyer easily fits within this definition of 

“drug.” Rule 20.2 promulgated by the board expressly confines the 

definition of compounding to “preparing, mixing, assembling, packaging, 

and labeling a drug or device for an identified individual patient . . . .” 

Iowa Admin. Code r. 657—20.2 (emphasis added). Because the rule 

applies only to compounded “drugs” and “devices,” it is firmly within the 

board’s authority to require that drugs or devices be dispensed on 

prescription only. 

A rational and logical connection exists between the rule and the 

board’s duties under chapter 155A. The purpose of chapter 155A is “to 

promote, preserve, and protect the public health, safety, and welfare 

through the effective regulation of the practice of pharmacy . . . .” Iowa 

Code § 155A.2. The board asserts it enacted rule 20.2 in order to draw a 

bright line between the practice of medicine and the practice of 

pharmacy. Generally speaking, the practice of medicine involves the 

intake of patients, diagnosis of illnesses, and prescription of treatment, 

while the practice of pharmacy primarily consists of preparing and 

dispensing medications. By requiring the 

“prescriber/patient/pharmacist” relationship as a prerequisite to the 

dispensing of compounded drugs by pharmacists, the board has 

exercised administrative discretion to prohibit pharmacists from 

diagnosing illnesses and prescribing treatment for their customers—

functions traditionally undertaken by doctors. The board could 

rationally and logically have concluded this exercise of discretion clearly 

separating the pharmacist function from that of the prescriber advances 

the health, safety, and welfare of pharmacists’ customers. 

Our confidence in the conclusion the board’s rule is neither 

illogical nor unreasonable is not diminished by the fact that it does not 
12

preclude nonpharmacists from compounding nonprescription 

substances. Nonpharmacists are not licensed to dispense drugs, and do 

not hold themselves out as experts in compounding substances sold to 

treat health problems suffered by human beings. As a consequence, 

there is no significant market for the compounding services of 

nonpharmacists. Pharmacists, on the other hand, are licensed and 

widely regarded by their customers as experts who reliably dispense 

drugs manufactured by others or compounded by them. The board 

could logically and rationally conclude the substantial market for the 

compounding services of pharmacists justifies regulation, and the 

nonexistent demand for compounding services by nonpharmacists does 

not. Furthermore, chapter 155A grants the board no authority to 

regulate the activities of nonpharmacists. 

Houck correctly posits that pharmacists are not prohibited by 

statute or agency rule from recommending nonprescription medications 

to customers who describe their symptoms and seek advice. He relies on 

this fact to support his contention that the board does not truly draw the 

line between pharmacy and medicine at “diagnosing” and “prescribing.” 

Even if we acknowledge the apparent plausibility of Houck’s contention, 

however, we conclude it does not undermine the board’s authority to 

prohibit compounding of drugs without a prescription or render rule 20.2 

irrational. The board could rationally conclude, as it did, that 

compounding of substances—including “drugs” not enumerated as 

controlled substances under chapter 124 and consisting entirely of “overthe-counter” components—by pharmacists without a prescription for the 

treatment of maladies or symptoms presented by customers poses risks 

to the public health, safety, and welfare. Accordingly, rule 20.2 is not 

rendered invalid as a consequence of the board’s failure to require a 
13

prescription for the dispensing by pharmacists of “over-the-counter” 

drugs manufactured by others. 

3. Constitutional challenge. Houck also contends the board’s 

regulation violates the equal protection clauses of the federal and Iowa 

Constitutions because it unfairly discriminates against pharmacists with 

respect to compounding of nonprescription substances. See U.S. Const. 

amend. XIV; Iowa Const. art. 1, § 6. Houck is a licensed pharmacist, 

and is therefore not similarly situated to a non-pharmacist. The 

legislature may therefore treat him differently than a non-pharmacist. 

See In re Det. of Hennings, 744 N.W.2d 333, 339 (Iowa 2008) (noting 

dissimilar treatment of persons not similarly situated does not offend 

equal protection). Because he has failed to demonstrate dissimilar 

treatment of similarly situated individuals, Houck’s equal protection 

challenge to the board’s rule is without merit. 

B. Noncompounding Violations. Houck also broadly asserts 

the factual findings underlying the board’s decision to sanction him for 

the other, noncompounding violations were not supported by substantial 

evidence. While asserting the board made its findings of fact “based 

solely on its compliance officer’s report regarding arguable and 

meaningless minor violations” of administrative rules, and that the 

violations were the result of a “hyper-technical application” of 

administrative rules, Houck does not actually assail the substantiality of 

the evidence supporting the facts found by the board. Upon a careful 

review of the record, we find ample support for the board’s finding that 

Houck engaged in a “pattern of choosing which rules to follow and which 

rules to ignore.” The board’s findings are supported by substantial 

evidence. 
14

C. Sanction. We have previously noted the limited scope of 

judicial review of sanctions imposed by administrative agencies. When a 

“licensing board is made up of members of the profession they are 

licensing, the court should not second guess the board’s decision” as to 

the appropriate sanction. Burns v. Bd. of Nursing of Iowa, 528 N.W.2d 

602, 605 (Iowa 1995). The pharmacy board is primarily constituted of 

pharmacists, see Iowa Code § 174.14(5), and we see no basis in the 

record to depart from this sound rule. We accordingly uphold the 

board’s findings that Houck’s serial violations of administrative rules 

warranted the imposition of a three-year probation. 

IV. Conclusion. 

We find the board could have rationally concluded the general 

assembly delegated to it the authority to designate drugs compounded by 

pharmacists as “prescription drugs” to be dispensed only if prescribed by 

a practitioner. The rule adopted by the board consistent with that 

authority is not irrational, illogical, or wholly unjustifiable. The board’s 

adoption of that rule and enforcement of it against Houck did not deprive 

him of equal protection of the law. The board’s factual findings are 

supported by substantial evidence in the record. 

AFFIRMED. 

All justices concur except Baker, J., who takes no part.