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Talman v. Dept. of Registration & Education





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.


The plaintiff, Irving Talman, appeals from an order of the circuit court of Cook County which sustained an order of the Director of the Department of Registration and Education (the Department). The latter order revoked the plaintiff's pharmacist's license. *fn1 On appeal, the plaintiff argues the findings and conclusions of the State Board of Pharmacy (the Board) and the Department are against the manifest weight of the evidence; that the Board abused its discretion in recommending the revocation of his license; that he was denied due process of law by virtue of the inadequate notice of charges contained in the complaint filed by the Department; that the statutory term "good faith" is unconstitutionally vague and uncertain; and that the trial court erred by refusing to remand the case to the Board for a reconsideration of the penalty in light of its dismissal of one count of the complaint.

Count I of the complaint charged that the plaintiffs had billed an insurance company for services which were not provided. This allegedly constituted a violation of section 7-6 of the Pharmacy Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 55.7-6), which allows the Department to "[r]efuse to issue or renew, or revoke or suspend, any license or certificate of registration * * *" on a number of grounds including where the holder of the license or certificate is found to be guilty of "gross immorality." The trial judge dismissed count I on the basis of its holding in earlier cases that "gross immorality" is unconstitutionally vague. The Department has not appealed the dismissal of count I.

Count II alleged the plaintiffs had shortages of certain controlled substances as discovered in an audit by the Department; that the plaintiffs had dispensed 194 bottles of Hycomine syrup, a controlled substance, to a single family in an eight-month period; that the plaintiffs had dispensed 1000 tablets of Preludin during a one-year period; and that certain wholesaler invoices were missing from the plaintiffs' files. These charges were alleged to violate section 7-6 of the Pharmacy Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 55.7-6) and sections 102(w)(2), (3), (4) and 306 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, pars. 1102(w)(2), (3), (4) and 1306).

Section 7-6 of the Pharmacy Practice Act provides for revocation or suspension of a license or certificate when, among other grounds, the holder "is found to have wilfully violated any of the rules and regulations promulgated for the administration of this Act * * *." (Ill. Rev. Stat. 1975, ch. 91, par. 55.7-6.) The portions of the Illinois Controlled Substances Act which the plaintiff is charged with violating are: (1) the "good faith" definitional section which sets forth guidelines to be followed by a pharmacist in the dispensing of controlled substances (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1102(w)), and (2) a requirement that pharmacists maintain records and inventories of their controlled substances "in conformance with" Federal law and "any additional rules and forms issued by the Department * * *." (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1306.) The specific recordkeeping requirement which the plaintiff was found to have violated provides that practitioners must maintain inventories and records of controlled substances (1) "separately from all other records of the registrant" or (2) "in such form that the information required is readily retrievable from the ordinary business records of the registrant." 21 C.F.R. § 1304.04(b), (c).

At a hearing before the Board, Sandor Smehoff, an investigator for the Department, described an audit he conducted at the Harding Pharmacy. The results of the audit were contained in a report which was attached to the complaint and showed significant shortages in the pharmacy's stock of controlled substances. Smehoff also discovered that certain invoices from the pharmacy's suppliers were not in the pharmacy's records. Finally, Smehoff said he discovered what he considered to be excessive sales of Hycomine syrup to one family.

The plaintiff testified that when he received a prescription for Hycomine syrup for the members of the family in question, he would call the prescribing physician. He also called Children's Memorial Hospital and spoke to a physician there to verify whether the family required such large amounts of the drug. The doctor confirmed that the family suffered from a condition requiring the Hycomine. The plaintiff also testified that each of the prescriptions was for four ounces, a normal quantity, and that the prescribed instructions called for the patient to take the drug three times a day, which is a normal interval.

The plaintiff testified that several of the missing invoices had been destroyed in a flood in the basement of his store. In regard to the inventory shortages, the plaintiff said he had located many prescriptions for the drugs in question since the audit. He also said that there had been one robbery and one burglary at the store during which some of the controlled substances had been taken. The plaintiff introduced into evidence police reports made in connection with the robbery and burglary. One of the reports showed that 400 Preludin 75 mg. tablets were reported as stolen. The 400 Preludin tablets represent only a small portion of the controlled substance shortages as shown in the audit report.

The Board made findings of fact which it filed with the Director of the Department. The Board found the allegations of the complaint concerning the shortages of controlled substances, the dispensing of Hycomine to a particular family and the missing invoices had been substantiated. The Board also found that the plaintiff failed to maintain invoices as required by Federal law codified at 21 C.F.R. § 1304.04. The Board concluded the plaintiff had violated the Pharmacy Practice Act and the Controlled Substances Act.

The trial court, in response to the plaintiff's complaint for administrative review, considered the evidence which was presented to the Board, heard arguments from counsel, dismissed the first count as noted above, and sustained the order finding the plaintiff guilty of the charges enumerated in the second count. The order revoking the plaintiff's pharmacist's license was also sustained.

The plaintiff's first argument is that the findings of fact, conclusions of law, recommendations of the Board and subsequent order of the director are against the manifest weight of the evidence. More specifically, the plaintiff contends it was incumbent upon the Department to show how the good-faith guidelines enumerated in section 102(w)(2), (3), (4), of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1102(w)(2), (3), (4)) were violated in the dispensing of the Hycomine syrup and that the Department should have shown that the plaintiff did not exercise professional judgment when dispensing the drug. The plaintiff notes that the Department did not introduce into evidence any of the Hycomine prescriptions; that the only evidence in support of the Hycomine allegation consisted of the oral testimony of Smehoff.

If there is substantial evidence to support an agency's decision, the decision must be affirmed. Lo Piccolo v. Department of Registration & Education (1972), 5 Ill. App.3d 1077, 284 N.E.2d 420.

• 1 We believe Smehoff's testimony concerning the quantities of Hycomine syrup dispensed by the plaintiff to a single family during an eight-month period was sufficient for the Board to have found that the plaintiff violated the "good faith" standard set out in section 102(w)(2), (3), (4). The Board is composed of registered pharmacists. The Illinois Administrative Procedure Act (Ill. Rev. Stat. 1975, ch. 127, par. 1001 et seq.) states in part "[t]he agency's experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence." (Ill. Rev. Stat. 1975, ch. 127, par. 1012(c).) In light of this legislative declaration, we must assume that the Board possesses the necessary knowledge and expertise to determine when a lack of good faith is shown by a pharmacist in the dispensing of large quantities of a controlled substance to a single family.

The plaintiff also argues that both the State and Federal controlled substances statutes require only registrants under those statutes to keep and maintain records. He contends that an individual pharmacist is not required to be registered and argues that ...

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