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Knop v. Dept. of Regis. & Education

OPINION FILED JUNE 9, 1981.

GEORGE KNOP ET AL., PLAINTIFFS-APPELLEES,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Randolph County; the Hon. CARL H. BECKER, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Following a hearing by the State Board of Pharmacy of the State of Illinois (hereinafter the Board), the Department of Registration and Education of the State of Illinois (hereinafter the Department) revoked respondent George Knop's license as a pharmacy apprentice and suspended respondent Mark Humphrey's license as a registered pharmacist. From the circuit court's subsequent reversal of that order the Department now appeals raising a single issue, whether the decision of the administrative agency was against the manifest weight of the evidence.

The charges made by the Department in this case arose out of an incident that occurred on August 2, 1977, in which a prescription for Mysoline, an anticonvulsant drug, was filled mistakenly with a strength of the drug five times more potent than that prescribed by the physician for his seven-year-old patient, Eric Polley. Late the next day the error was detected at the pharmacy by respondent Humphrey, whereupon respondent Knop took the correctly filled prescription to the Polley residence, offering his apologies and a refund, in exchange for the incorrectly filled prescription, to Loren Polley, the child's father. The Department alleged, inter alia, that respondent Knop had filled and dispensed the prescription to the child's mother, Charlotte Polley, without the supervision of a registered pharmacist. Respondent Humphrey was charged with permitting respondent Knop to dispense the drug without supervision.

Respondent Knop owns Orr Rexall Drugs, where the incident occurred and where he employs respondent Humphrey as the registered pharmacist. Respondent Knop received his license as a pharmacy apprentice in 1949. Respondent Humphrey received his license as a registered pharmacist in 1974. Respondent Knop testified that at no time during this period of 30 years had he once filled a prescription without the presence of a registered pharmacist.

Rule VIII of the Rules and Regulations Promulgated for the Administration of the Illinois Pharmacy Practice Act provides in part:

"It shall be a violation of these Rules and Regulations of this Act if a registrant willfully and/or knowingly:

(1) Permits, whether or not such registrant is the registered pharmacist in charge, the dispensing of a prescription medication to an ultimate consumer in the absence of a registered pharmacist, local registered pharmacist or registered assistant pharmacist.

(2) Permits, whether or not such registrant is the registered pharmacist in charge, the distribution of a prescription medication to an ultimate consumer without the availability of consultation with a registered pharmacist or registered assistant pharmacist. Said pharmacist must be physically present and on duty in the establishment."

Following the hearing, the Board made the following findings of fact:

"14. THAT the Department established by competent evidence, testimony and proof that Respondent Knop, as owner of Respondent Pharmacy, operated, conducted, and practiced pharmacy without the presence of a registered pharmacist on August 2, 1977.

15. THAT on August 22 [sic], 1977 Respondent Knop dispensed * * * prescription #366931 in error, substituting Mysoline 250 mg. for Mysoline 50 mg. to Ms. Charlotte Polley; further Respondent Knop was not wearing a badge identifying himself as a pharmacy apprentice; further no sign was posted signifying the absence of a registered pharmacist.

16. THAT the Department by competent evidence, testimony and proof, did establish that Respondent Knop dispensed the above-mentioned prescription #366931 without the supervision of a registered pharmacist.

18. THAT the Department did establish by competent evidence, testimony and proof the allegations that Respondent Humphrey, while acting as registered pharmacist in charge, was not present on August 2, 1977 and did not supervise Respondent Knop at the time of the aforementioned prescription was [sic] filled.

22. THAT the contradictory testimony of Respondent Knop and Respondent Humphrey introduced during Respondent's Case-in-Chief was considered by the Board and was not found to be sufficiently creditable to overcome the Department's evidence, testimony, and proof."

Thereafter, respondents Knop and Humphrey moved that the Department grant them a rehearing in the matter. In the order of the director of the Department that followed, the motion for rehearing was denied, the "Findings of Fact, Conclusions of Law and Recommendations to the Director heretofore filed by the Illinois State Board of Pharmacy are adopted," the pharmacy apprentice license of respondent Knop was revoked and the registered pharmacist license of respondent Humphrey was suspended for 10 days. The pharmacy license of Orr Rexall Drugs was ordered to remain in good standing. The findings of the Director of the Department included the following:

"3. That Respondents have failed to introduce any new evidence to warrant a rehearing;

4. That after careful review of the complete record and careful deliberations, in this matter, the Director finds that the recommendation of revocation of the license of Respondent George Knop is consistent with the Findings of Fact and the Conclusions of Law.

5. That there is nothing contained in the record which would prejudice the right of Respondent, George Knop, under Chapter 111, Illinois Revised Statutes, Section 4046 from petitioning for a restoration of his license."

Upon administrative review the circuit court reversed the order of the Department. In a memorandum filed in conjunction with its order the trial court stated,

"In pursuing the record in this case, the Court finds that there was not any question of credibility of any of the witnesses, that there is nothing in the record to indicate that the Board in any way questioned the credibility of any of the witnesses, and while the Court is not concerned with this matter, it does not appear that there is any question about the truthfulness or honesty of the testimony of the witnesses in this case. However, the Court is concerned with the question whether or not the findings and decision of the Board is supported by the evidence and whether or not the findings and decision of the Board are contrary to the manifest weight of the evidence.

The only evidence before the Board in this case that Plaintiff Humphrey was not present and supervising the dispensing of the drug in this case by the Plaintiff Knop is the testimony of Mrs. Polley that she did not see or could not see the Plaintiff Humphrey in the store at the time she purchased the drug. The record is clear that she did not say he was not there, but only that she could not see him. The physical layout of the store would appear to substantiate her testimony and make it possible for this to have occurred. There were also other distractions in the store at the time such as other customers and it appears there was approximately ten customers [sic] waiting at the pharmacy at the time. Plaintiffs Knop and Humphrey and also Mrs. Carter, a Clerk in the store, all testified that Humphrey was present. There is no testimony in the record anywhere to rebut their testimony in any way. It appears that the Board in this case has completely disregarded their testimony in reaching its decision."

The trial court was correct in stating that Charlotte Polley testified that she did not see respondent Humphrey behind the prescription counter, not that he was, in fact, not there. The trial court was also correct in stating not only that Miss Emma Carter, the drugstore clerk, an employee of Orr Rexall Drugs for 16 years, testified as to respondent Humphrey's presence in the drugstore at the time of the incident but also that both respondents Knop and Humphrey testified as to Humphrey's presence and supervision at that time. The court erred, however, in stating that there is no testimony in the record to rebut respondents' testimony in that respect. As steadfastly as respondents maintained that both were present at the filling of the prescription in question, Loren Polley maintained that during a telephone conversation on August 4 or 5, two to three days after the incident occurred, respondent Humphrey admitted to him that he was either out of the store or in the storeroom at the time the child's prescription was filled and that he had not seen the prescription when it was filled.

We quote verbatim Loren Polley's testimony during both direct and cross-examination with respect to that telephone conversation with respondent Humphrey. On direct examination the witness testified as follows:

"Q [Ms. Cervini, attorney for the Department]: Okay. Did you have a conversation with Respondent Mark Humphrey subsequent to August 3rd, 1977?

A [Loren Polley]: Yes, I did. I don't recall whether it was the 4th or the 5th, but one of those two days, I made a phone call over there. It had been brought to my attention Mr. Knop was not a pharmacist.

MR. BRODY [Respondents' attorney]: Objection. He has already answered the question.

CHAIRMAN BLAKE: Just answer the question.

THE WITNESS: Well, I was leading up as to why I had the conversation.

MR. BRODY: Objection.

BY MS. CERVINI:

Q: Was the conversation by telephone or in person?

A: It was by telephone.

Q: Did you place the call?

A: Yes, I did.

Q: What conversation did you have? What did you say to him, and what did he say to you?

MR. BRODY: I am going to object to that; no foundation to him. It is irrelevant what took place on August the 4th or 5th with Mark Humphrey.

CHAIRMAN BLAKE: Overruled.

BY MS. CERVINI:

Q: Please answer.

A: Ask the question again, please.

Q: In this conversation, what did you say to Mark Humphrey, and what did he say to you?

A: I asked Mark Humphrey if Mr. Knop was a Registered Pharmacist. And he told me, `No.' What led up ...


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