The opinion of the court was delivered by: Justice Hoffman
Appeal from the Circuit Court of Cook County.
Honorable Albert Green, Judge Presiding.
Defendant Leonard Sherman, Director of the Illinois Department of Professional Regulation (Director), signed an order suspending the pharmacy license of the plaintiff, Donald G. Wilson, Jr., for 9 months followed by probation for 27 months, and revoking the license of Ablin Pharmacy (Ablin), which was owned and operated by Wilson. This order (also referred to herein as the "Department's Decision") imposed a harsher sanction against Wilson than had been recommended by the Illinois State Pharmacy Board (Board), and constituted a final decision of the Department. Wilson sought administrative review before the circuit court, *fn1 which reversed the order and remanded the case with directions that the Board's recommended sanction be imposed. The disciplinary action taken against Ablin was not contested. The Illinois Department of Professional Regulation (Department) and the Director (collectively referred to as the "defendants") filed this timely appeal. For the reasons which follow, we reverse the judgment of the circuit court and confirm the Department's Decision.
Wilson and several other pharmacists were indicted as a result of a federal investigation which became known as "Operation Goldpill." Wilson pled guilty to the felony of receipt of misbranded drugs through interstate commerce in violation of the Food, Drug and Cosmetic Act (21 U.S.C. §§ 331(c), 333(a)(2) (1988)). He was placed on probation for a period of one year and ordered to perform 200 hours of community service, which he successfully completed.
As a result of Wilson's conviction, the Department filed a complaint against him and Ablin pursuant to section 30 of the Pharmacy Practice Act of 1987 (Pharmacy Act) (225 ILCS 85/30(a)(2), (a)(14) (West 1996)), seeking to revoke or suspend their licenses. The Department's complaint referred to Wilson's admission in his plea agreement that, on three different occasions in June 1992, he knowingly purchased up to seven different types of misbranded drugs.
The parties appeared before an administrative law judge (ALJ) for an evidentiary hearing. The ALJ admitted Wilson's Federal plea agreement into evidence. In that agreement, Wilson admitted that he purchased drugs which he knew to be "diverted" since they had been removed from their packages, the safety seals had been broken, and the manufacturers' labels had been removed. He further admitted in the plea agreement that he had intended to sell the drugs at retail prices without disclosing that they had been "diverted," and that he had, in fact, sold some of the drugs to the public.
At the hearing, Wilson testified that he had been a pharmacist for over 20 years and that he never had legal problems before this incident. He explained that he was having financial difficulties when a vendor from whom he had purchased goods over the years offered to sell him some drugs which the vendor claimed came from pharmacies which had closed. Despite the admissions contained in his Federal plea agreement, at the hearing, Wilson denied that he sold any of these drugs to the public, stating that the FBI confiscated them during a raid shortly after he purchased them. He also denied that he purchased the quantities of drugs listed in the plea agreement, stating that he signed the agreement on the advice of his attorney. However, Wilson did acknowledge that what he did was wrong, and stated that he understood how his conduct could be viewed as endangering the public. Wilson also presented the testimony of several character witnesses and letters of recommendation from community members who attested to his integrity and their trust in him.
After the hearing, the ALJ issued a report and recommendation in which she found that: (1) the Department proved that Wilson was convicted of a felony based on a violation of the Food, Drug and Cosmetic Act, and that his conviction was a basis for disciplinary action under section 30 of the Pharmacy Act (225 ILCS 85/30(a)(2), (a)(14) (West 1996)); (2) Ablin, although not convicted, had aided and abetted Wilson in the felony, conduct which also provided grounds for disciplinary action under section 30 of the Pharmacy Act (225 ILCS 85/30(a)(2), (a)(5) (West 1996)); and (3) Wilson was a credible witness, acknowledged his misconduct, and had not been previously disciplined by the Department. Based on these findings, the ALJ recommended that Ablin's license be revoked and that, among other things, Wilson's license be suspended for 3 months followed by probation for 9 months. The ALJ stated that she had considered certain factors in mitigation, including: the type and length of Wilson's criminal sentence; the fact that the wrongdoing had occurred five years prior and that Wilson had been released from probation one year before the hearing; the absence of any wrongdoing since June 1992; community support; a lack of prior disciplinary history; and Wilson's sincere remorse. The ALJ stated her belief that the discipline recommended was appropriate and "consistent with other Departmental cases." Subsequently, the Board adopted the ALJ's findings of fact and recommended the same sanction in its written report filed pursuant to section 35.6 of the Pharmacy Act (225 ILCS 85/35.6 (West 1996)).
The Department filed a motion entitled "Motion for Contrary Action by the Director or Motion for Reconsideration," asking for the imposition of a sanction against Wilson greater than that recommended by the Board or that the case be remanded to the Board for it to reconsider its findings of fact, conclusions of law, and recommended sanction. The Department argued that the record reflected that Wilson failed to accept responsibility and that the recommended sanction was too lenient in comparison to other pharmacists convicted in "Operation Goldpill." In response, Wilson argued, inter alia, that the Department was without authority to file such a motion. On July 16, 1998, Nikki M. Zollar, the Director's predecessor, remanded the case to the Board for reconsideration, stating, among other things, that she did not have sufficient information to support the conclusion that Wilson's sanction was consistent with recommendations made in cases in which similar violations had occurred.
On remand, the Board issued a recommendation to the Director in which it stated that it "determines that its original recommendation for a three (3) month suspension followed by a nine (9) month probation pertaining to [the] pharmacist license of Donald G. Wilson, Jr. is consistent with recommendations made in cases in which similar violations occurred and hereby stands by its original recommendation." Thereafter, the Department filed a second motion entitled "Motion for Contrary Action by the Director," asking the Director to impose a more severe sanction. Wilson again argued that the Department was without authority to file such a motion.
On June 10, 1999, the Director signed the order suspending Wilson's license for 9 months to be followed by a 27 month period of probation. On June 22, 1999, Wilson filed the instant administrative review proceeding. After finding, inter alia, that the Pharmacy Act does not authorize the Department to file post-hearing motions and that the Department's Decision increasing Wilson's sanction is against the manifest weight of the evidence, the circuit court reversed the Department's Decision and remanded the matter with directions to impose the sanction recommended by the Board. This appeal followed.
In urging reversal of the circuit court's order, the defendants argue that: (1) the Department has the authority to file post-hearing motions of the type filed in this case and, in any event, the Director and his predecessor acted pursuant to explicit grants of authority set forth in the Pharmacy Act; and (2) the sanction against Wilson ordered by the Director was not an abuse of discretion. We will address the defendants' contentions relating to the Department's right to file motions for rehearing or reconsideration separately from those relating to its right to file a motion requesting that the Director take action contrary to the Board's recommendation.
Considerable portions of the parties' briefs are devoted to arguments addressing the Department's right to seek either a rehearing or an order directing the Board to reconsider its recommendation. For its part, the circuit court found that the Department was not authorized to seek such relief. However, for the reasons which follow, we need not resolve the issue.
Section 35.9 of the Pharmacy Act (225 ILCS 85/35.9 (West 1996)) specifically authorizes a director to order the Board to rehear a case "[w]henever *** [he or she] is satisfied that substantial justice has not been done[,]" and section 35.8 authorizes a respondent to file a motion seeking a rehearing (225 ILCS 85/35.8 (West 1996)). Although nothing in the Pharmacy Act specifically authorizes the Department to file either a motion for rehearing or a motion for reconsideration, the defendants argue that sections 1110.210(a)(8) and 1110.240(g) of the Illinois Administrative Code (68 Ill. Adm. Code §§1110.210(a)(8), 1110.240(g) (1996)) authorize the Department to file motions seeking either form of relief. However, even assuming for the sake of analysis that Wilson is correct in his assertion that a director is not authorized by statute to remand a matter to the Board with instructions to reconsider its recommendation and the Department is not authorized to request such relief, we fail to see how the Department's motion seeking an order upon the Board to reconsider its recommendation or Zollar's order of July 16, 1998, could be grounds for reversing the Department's Decision. On ...