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02/16/88 Ballin Drugs, Inc., Et Al. v. the Department of

February 16, 1988

BALLIN DRUGS, INC., ET AL., PLAINTIFFS-APPELLEES

v.

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



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

519 N.E.2d 1151, 166 Ill. App. 3d 520, 116 Ill. Dec. 936 1988.IL.218

Appeal from the Circuit Court of Cook County; the Hon. Joseph M. Wosik, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Defendant, the Illinois Department of Registration and Education (Department), appeals from the order of the circuit court of Cook County reversing the decision of the Director of the Department revoking the plaintiff Ballin Drugs' (Ballin's or Ballin Drugs') controlled substances license and pharmacy license and the plaintiffs', Sidney Brottman's (Brottman's) and Burton Kaufman's (Kaufman's), pharmacist licenses.

On appeal, the Department contends: (1) the "good faith" provision of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1100 et seq.) is not unconstitutionally vague and uncertain; (2) the Department conducted the administrative proceedings according to the processes prescribed by law; (3) members of the State Board of Pharmacy have the authority to conduct administrative hearings and to examine witnesses at them; (4) the hearing officer did not abuse his discretion in making evidentiary rulings during the administrative hearing; (5) the Department's findings and Conclusions were not erroneous; and (6) the Department properly revoked plaintiffs' licenses.

From January 1, 1978, through December 31, 1981, Ballin Drugs was a licensed pharmacy with a license to dispense controlled substances. From January 1, 1978, through April of 1981, Brottman was the pharmacist in charge and a dispensing pharmacist at Ballin. During that same time period, Kaufman was a dispensing pharmacist at Ballin as well as being a corporate officer and stockholder of Ballin. In April of 1981, Brottman became the owner of Ballin when Kaufman left.

In 1983, the Department filed an action against the plaintiffs seeking revocation or suspension of their licenses due to alleged abusive dispensing of schedule II controlled substances by Brottman and Kaufman at Ballin. On April 11, 1984, a hearing was held before the Illinois State Board of Pharmacy (Board). At the hearing, Richard Kuhlman (Kuhlman), who was employed by the Department as a drug compliance investigator, testified on behalf of the Department and stated that he investigated Ballin in 1983. During that investigation, he reviewed Ballin's schedule II prescription file and noted patients' names, prescribing physicians, how often prescriptions were filled, types of drugs prescribed, prescription numbers, quantities, dosages and directions. He did not take notes on all of the prescriptions he examined.

Kuhlman further testified that all of the prescriptions he examined were marked with the initials "S.B." or "B.K." The drug most frequently prescribed was Preludin, an anorectic, habit-forming drug prescribed for obesity. Kuhlman prepared charts summarizing his review of Ballin's files for the years 1978 through 1981.

The Department also called two expert witnesses to testify: (1) Marvin Graber (Graber), who was a registered pharmacist for approximately 35 years and who was paid by the Department to testify, and (2) Lawrence Slotnick (Slotnick), a registered pharmacist and drug compliance coordinator for the Department. Both men testified that the prescriptions which Kuhlman had examined were not filled in good faith as required by the Illinois Controlled Substances Act. Ill. Rev. Stat. 1981, ch. 56 1/2, pars. 1102(v), 1312(a).

The plaintiffs called James Piacentini (Piacentini), a registered pharmacist since 1955, to testify. He stated that in 1979, he worked for the Department as a drug compliance investigator. At that time, he audited Ballin for the years 1978 and 1979. No action was taken against Ballin after that audit. Piacentini worked for the Department for 16 years, until July of 1981. At the time of the hearing, he worked for the Department of Mental Health. He testified that the prescriptions in question were filled in good faith and that checking with the prescribing physician in order to verify the prescription was sufficient to show good faith.

Brottman and Kaufman, both testifying on their own behalf, maintained that verifying a prescription with the physician shows good faith.

After the hearing, the Board entered findings of fact, Conclusions of law and made a recommendation to the Director. The Board found that plaintiffs had dispensed substances as summarized in the Department's exhibits Nos. 1 through 4 (Kuhlman's summary of his audit) and that they lacked good faith in dispensing those substances. The Board recommended revoking plaintiffs' licenses.

On January 14, 1985, the Director revoked Ballin's pharmacy license and controlled substance dispenser license and Brottman's and Kaufman's pharmacist licenses.

On February 20, 1985, plaintiffs filed a complaint in the circuit court of Cook County seeking administrative review of the Department's decision. After briefing by the parties, on December 17, 1986, the circuit court reversed the Department, holding that its decision was contrary to the manifest weight of the evidence and Illinois law. In a 15-paragraph order it cited numerous errors in the Department's decision.

The circuit court first found that the "good faith" provision of the Illinois Controlled Substances Act (the Act) (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1102(v)) is unconstitutionally vague and uncertain and unlawfully delegates legislative power by giving the Board of Pharmacy discretionary power without defining the terms used in the statute. In addition, calling the prescribing physician to verify a prescription and checking a patient's identification are sufficient to show good faith. The Department contends that those findings were erroneous. We agree.

The pertinent provisions of the Act state, in part, as follows:

"A practitioner, in good faith, may dispense a Schedule II controlled substance . . .." (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1312(a).)

"'Good Faith' means the prescribing or dispensing of a controlled substance by a practitioner in the regular course of professional treatment to or for any person who is under his treatment for a pathology or condition other than that individual's physical or psychological dependence upon or addiction to a controlled substance, except as provided herein: and application of the term to a pharmacist shall mean the dispensing of a controlled substance pursuant to the prescriber's order which in the professional judgment of the pharmacist is ...


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