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05/19/94 DENNIS SENDER AND SHELDON WEINER v.

May 19, 1994

DENNIS SENDER AND SHELDON WEINER, PLAINTIFFS-APPELLANTS,
v.
THE DEPARTMENT OF PROFESSIONAL REGULATION AND NIKKI ZOLLAR, DIRECTOR, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Everette A. Braden, Judge Presiding.

Released for Publication July 14, 1994. As Corrected August 1, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Cahill, Johnson, Hoffman

The opinion of the court was delivered by: Cahill

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Two pharmacists, Dennis Sender and Sheldon Weiner, appeal the order of the circuit court affirming the decision of the Department of Professional Regulation (the Department). The Department found that Weiner and Sender violated sections of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1100 et seq.), title 68 of the Administrative Code (68 Ill. Adm. Code § 1330 et seq. (1988 Supp.)), and the Pharmacy Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4121 et seq.). The Department suspended Weiner's license to practice pharmacy for five years and fined him $2,000. It suspended Sender's license for three years and fined him $1,500. On appeal Sender argues that the department erred when it found he violated the Pharmacy Practice Act based solely on his status as a shareholder of the pharmacy. Weiner and Sender argue that the Department erred when it found they, as individuals, violated the Controlled Substances Act. Weiner and Sender also argue that the Department abused its discretion when it determined their suspensions and fines. We affirm in part, reverse in part and remand.

Weiner and Sender are licensed pharmacists. Each owned 50% of the shares of Meyer Drug and Truss Company. Meyer Drug and Truss Company, an Illinois corporation, owned Sure Save Drugs. The Department conducted an audit of Sure Save Drugs for the period from April 30, 1988, to December 20, 1989. The audit showed that 38,000 tablets of controlled substances were missing from the pharmacy's inventory. Based on the audit, the Department filed a complaint against the pharmacy, Weiner, and Sender, alleging violations of the Controlled Substance Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1100 et seq.) and the Pharmacy Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 4121 et seq.).

A hearing was held in May 1991 before a hearing officer and member of the board of pharmacy. Weiner and Sender did not dispute the audit. Instead, Weiner explained that an employee had stolen the tablets. When Weiner discovered and verified the theft in December 1988, he fired the employee. Weiner was the registered pharmacist in charge. He ordered the prescription drugs and was responsible for security at the pharmacy. He admitted that he did not conduct or request an audit of the inventory after he fired the employee. Weiner had been practicing pharmacy for 32 years.

Sender worked part time as a pharmacist at Sure Save Drugs. He ordered the cigarettes, sundries, and non-prescription drugs. Sender had been practicing pharmacy for 25 years.

Before the hearing ended, the Department moved to amend the complaint against Weiner and Sender to include violations of sections 1330.91(d)(1)(B) and 1330.91(e)(2) of the Illinois Administrative Code (68 Ill. Adm. Code § 1330.91 (1988 Supp.)). The hearing officer allowed the amendment of the complaint to conform to the evidence produced at the hearing.

The hearing officer concluded that Weiner failed in his duty as pharmacist in charge by the "mere fact that such substantial shortages occurred." He further stated:

"There was no evidence presented that either Weiner or Sender had diverted any of the shortages of controlled substances. However, given the years of professional experience of both Weiner and Sender, it is incomprehensible that they would not conduct or request an audit after the alleged theft * * *. This is particularly true, since the over-all security of the pharmacy and the controlled substances area was so lacking."

The hearing officer found that Weiner, Sender, and Sure Save Drugs violated section 30(19) of the Pharmacy Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 4150(19)) and sections 304(a)(6) and 306 of the Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56 1/2, pars. 1304(a)(6), 1306). He found that Weiner and Sender also violated sections 1330.91(d)(1)(B) and 1330.91(e)(2) of the rules promulgated to administer the Pharmacy Practice Act (68 Ill. Adm. Code § 1330.91 (1988 Supp.)). The hearing officer recommended to the board of pharmacy that the pharmacy's license and registration be revoked. He also recommended that the department suspend Weiner's license for a minimum of 30 months and Sender's license for a minimum of 18 months.

The board of pharmacy adopted the hearing officer's findings of fact, Conclusions of law, and recommendation that the pharmacy's license and registration be revoked. However, the board recommended to the director of the Department that Weiner's license be suspended for a minimum of five years and that he pay a $2,000 fine. It also recommended that ...


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