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Miller v. Dept. of Registration & Edu.

OPINION FILED JANUARY 26, 1979.

SHELDON MILLER, APPELLEE,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION, APPELLANT. — THEORDORE DOLITSKY, APPELLEE,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION, APPELLANT. — AARON FINN, APPELLANT,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION, APPELLEE.



Nos. 50570, 50571. — Appeal from the Circuit Court of Cook County, the Hon. Richard L. Curry, Judge, presiding.

No. 50663. — Appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 30, 1979.

Joel M. Hurwitz, of Fohrman, Lurie, Holstein, Sklar & Cottle, Ltd., of Chicago, for appellant.

William J. Scott, Attorney General, of Springfield (Charles J. Pesek, Assistant Attorney General, of Chicago, of counsel), for appellee.

The Director of the Department of Registration and Education (Department) revoked three pharmacists' licenses to practice pharmacy after an administrative determination that they were guilty of "gross immorality" under the Pharmacy Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.7-6, now Ill. Rev. Stat. 1977, ch. 111, par. 4019, as amended). The revocations were premised upon Federal convictions following the entry of pleas of guilty by Theodore Dolitsky, Sheldon Miller and Aaron Finn to the Federal misdemeanor offense of offering and making a kickback or bribe in connection with the furnishing of drugs and pharmaceutical services for which payment is made in whole or in part out of Federal funds under an approved State medical assistance plan (42 U.S.C. § 1396h(b)(1) (1976)). The pharmacists filed three separate actions for administrative review in the circuit court of Cook County.

The complaints filed by Miller and Dolitsky were heard by Judge Richard L. Curry, who ruled that the term "gross immorality" is unconstitutionally vague; that the Federal misdemeanor offense to which Miller and Dolitsky pleaded guilty is not encompassed by the legislative proscription of "gross immorality"; and that the pharmacists did not receive a fair hearing before the State Board of Pharmacy since the Board was supplied with the entire 49-count indictment, although the pharmacists were convicted upon only one count following their guilty pleas. Judge Curry reversed the decision to revoke, and the Department filed the instant direct appeal under Rule 302(a) (58 Ill.2d R. 302(a)) on the ground that the circuit court had held section 7-6 of the Pharmacy Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.7-6) invalid.

The complaint filed by Finn was heard by Judge Arthur L. Dunne, who found that the order of revocation was properly entered and affirmed the decision as not contrary to the manifest weight of the evidence or contrary to law. This court allowed Finn's motion for direct appeal under Rule 302(b) (58 Ill.2d R. 302(b)) and consolidated all three appeals.

The pharmacists' licenses were revoked following three separate hearings before the State Board of Pharmacy. At each hearing certified copies of the Federal convictions were introduced as evidence. Copies of the multicount indictments were attached to the complaints filed with the Board, and in the cases of Miller and Dolitsky, they were admitted into evidence over the objection of counsel. In each case the Board found that the pharmacist had been convicted of the Federal misdemeanor and concluded that the conviction of such an offense constituted "gross immorality" within the meaning of the Pharmacy Practice Act. The Board recommended to the Director of Registration and Education that the pharmacists' licenses be revoked. After the denial of separate motions for rehearing, the Director accepted the findings, conclusions and recommendations of the Board and revoked the licenses of all three pharmacists.

The first issue we address is whether conviction of the Federal misdemeanor offense to which the pharmacists pleaded guilty may constitute a basis for the revocation of their licenses under the Pharmacy Practice Act (Ill. Rev. Stat. 1973, ch. 91, pars. 55.1 to 55.24). The pharmacists were convicted of paying kickbacks or bribes to nursing homes in connection with the furnishing of drugs and pharmaceutical services in violation of a Federal statute, which at the time the offenses were committed provided:

"(b) Whoever furnishes items or services to an individual for which payment is or may be made in whole or in part out of Federal funds under a State plan approved under this subchapter and who solicits, offers, or receives any —

(1) kickback or bribe in connection with the furnishing of such items or services or the making or receipt of such payment, or

(2) rebate of any fee or charge for referring any such individual to another person for the ...


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