Arenstein v. California State Bd. of Pharmacy

• Decision Date: 26 August 1968
• Citation: 265 Cal.App.2d 179,71 Cal.Rptr. 357
• Court: California Court of Appeals Court of Appeals
• Parties: William Morris ARENSTEIN, Harriet Fellows Ursem and North Palos Drug Corporation, a corporation, Petitioners and Appellants, v. CALIFORNIA STATE BOARD OF PHARMACY, Defendant and Respondent. Civ. 31292.

Page 357

71 Cal.Rptr. 357

265 Cal.App.2d 179

William Morris ARENSTEIN, Harriet Fellows Ursem and North Palos Drug Corporation, a corporation, Petitioners and Appellants, v. CALIFORNIA STATE BOARD OF PHARMACY, Defendant and Respondent.

Civ. 31292.

Court of Appeal, Second District, Division 1, California.

Aug. 26, 1968.

Dean M. McCann, Los Angeles, for appellants.

Thomas C. Lynch, Atty. Gen., Lynn Henry Johnson, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

State Board of Pharmacy filed an administrative accusation charging Arenstein and Ursem each with refilling a prescription for a dangerous drug without authorization of the prescriber (§ 4229, Bus. & Prof.Code), and that the corporation was subject to discipline because of their acts (§ 4357, Bus. & Prof.Code). ¹ The board adopted the hearing officer's proposed decision holding the three licensees to be subject to discipline and recommending suspension of the pharmacy permit of the corporation be suspended for thirty days (reduced to five days by the board) and the professional licenses of Arenstein and Ursem for fifteen. A request for reconsideration having been denied, licensees filed petition for writ of mandate in the superior court. From the bench Judge Nutter orally indicated he was ruling in favor of licensees but later held in favor of the board, filed his findings and entered judgment denying the peremptory writ; subsequently he granted a motion for new trial. At the conclusion of the second trial, Judge Tante granted the petition but later, on his own motion, placed the matter on calendar and after further hearing reversed his decision, vacated the previous order, denied the petition and discharged the alternative writ. Findings of Fact and Conclusions of Law were filed and judgment was entered denying the peremptory writ of mandate. From this judgment all licensees appeal.

On the evidence contained in the administrative record the superior court held that the 'weight of the evidence' supports the findings of the board that Arenstein, president of, and while on duty as a pharmacist at North Palos Drug Corporation, a retail pharmacy, and Mrs. Ursem, an employee of, and while on duty as a pharmacist at said corporation refilled prescriptions (Nos. 39213 and 39023) for Dexedrine and Equanil for Chaffee and Leland on June 4, 1963, and July 12, 1963, respectively, without authorization of the prescribing doctor, and that Dexedrine and Equanil are dangerous drugs; and found 'as facts the matters related in the Board's findings of fact.' The superior court having undertaken an independent review of the evidence, our function on appellate review is solely to decide whether credible, competent evidence supports that court's judgment. (YAKOV V. BOARD OF MEDICAL EXAMINERS, 68 CAL.2D ---, ---^A 64 Cal.Rptr. 785, 435 P.2d 553.

Certified copy of federal information, pleas of guilty and other proceedings in the United States District Court (Exh. 2) establish that previously Arenstein had pleaded guilty to Count I of an information alleging that prior to July 4, 1943, Dexedrine tablets, a drug within the meaning of 21 U.S.C. § 353(b)(1)(B), ² were shipped in interstate commerce into California in a bottle labeled 'CAUTION--Federal law prohibits dispensing without prescription'; that on June 4, 1963, while the tablets were being held for sale at the premises of North Palos Drug Corporation, said corporation and Arenstein, its president, dispensed said Dexedrine tablets to William M. Chaffee, upon his request for refill of a prescription (No. 39213) without obtaining authorization of the prescriber, in a vial displaying the label

'NORTH PALOS DRUG CORP.

26636 So. Western Ave., Lomita, Calif.

Rx No. 39213

ONE IN MORNING 5--16--63 WA';

and that the act of dispensing said drug as aforesaid is contrary to section 353(b)(1) which resulted in said vial being misbranded in violation of 21 U.S.C. § 331(k). ³ Exhibit 2 also shows that Ursem pleaded guilty to Count VIII charging a similar violation on July 12, 1963, by dispensing Equanil, a drug within the meaning of 21 U.S.C. § 353(b)(1)(C), ⁴ to John S. Leland without obtaining authorization of the prescriber. Ursem and Arenstein each was placed on probation for four years and the corporation was fined $900. The hearing officer took official notice of Dexedrine and Equanil as dangerous drugs within the meaning of section 4211, Business and Professions Code.

In their testimony before the hearing officer Arenstein and Ursem repudiated their pleas of guilty testifying they were innocent of the criminal charges, did not consider themselves guilty and had never refilled a prescription for a dangerous drug without authorization of the prescribing doctor. Arenstein further testified that he refilled the prescription for Chaffee but only after calling Dr. Delaplaine for authority; Mrs. Ursem claimed she refilled the prescription for Leland but only after calling Dr. Groveman's office and obtaining authorization therefor. None of the following was called as a witness--Dr. Delaplaine, Dr. Groveman, William M. Chaffee or John S. Leland. As to why they pleaded guilty each said he did so on the advice of counsel as a result of which other counts against them in the information were dismissed. However, Exhibit 2 establishes that before their pleas of guilty were accepted by the United States District Court, Arenstein and Ursem each filed therein Petition To Enter Plea Of Guilty (Fed.R.Cr.Proc., Rules 10 and 11) wherein each separately declared and represented to the court that he had read the accusations, discussed them with his counsel and understood the same, that he told the facts and circumstances concerning the matters in the information to his counsel who advised him as to the nature of the accusations against him, any possible defenses he might have thereto and the punishment therefor provided by law, that he understood the proceedings against him, and that he 'know(s) the court will not accept a plea of 'GUILTY' from anyone who claims to be innocent, with that in mind and because I make no claim of innocence, I wish to plead 'GUILTY'.' Appellants' attorney also filed for each, Certificate of Counsel declaring that the pleas of guilty were voluntarily and understandingly made by them and recommending to the court that they be accepted and entered on behalf of his clients.

Appellants raise the following issues--the ruling of Judge Nutter that the motion for new trial was granted 'on the grounds of insufficiency of the evidence and judgment as against the law' was binding on Judge Tante in the second trial; twice Judge Nutter and once Judge Tante found the evidence to be insufficient to support the board's decision, thus, the latter erred in denying the writ; their pleas of guilty in the federal court were not admissions of violations of section 4229, Business and Professions Code, but even so, they should have been given no weight; there is no evidence of a corporate violation; there is no evidence that Dexedrine and Equanil are dangerous drugs within the meaning of section 4211, Business and Professions Code; section 4211 is unconstitutional.

'That the trial court in this case was 'authorized by law to exercise its independent judgment on the evidence' is well established. (Citations.) * * * 'Thus, the ultimate power of decision rests with the trial court. '' (Moran v. Board of Medical Examiners, 32 Cal.2d 301, 308, 196 P.2d 20, 25; YAKOV V. BOARD OF MEDICAL EXAMINERS, 68 CAL.2D ---, ---, 64 CAL.RPTR. 785, 435 P.2D 553.)^B As to appellate review, the court in YAKOV V. BOARD OF MEDICAL EXAMINERS, 68 CAL.2D ---,^C said at page ---, 64 Cal.Rptr. at page 789, 436 P.2d at page 557: 'As we stated in Moran, supra, 32 Cal.2d 301, 308, 196 P.2d 20, 25, quoting from Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183: "'In reviewing the evidence * * * all conflicts must be resolved in favor of respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. * * * When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its decisions for those of the trial court. "' 'The rule quoted is as applicable in reviewing the findings of a judge as it is when considering a jury's verdict.' (Estate of Bristol (1943) 23 Cal.2d 221, 223, 143 P.2d 689, 690; Moran v. Board of Medical Examiners, supra, 32 Cal.2d 301, 308, 196 P.2d 20.)' Thus, pursuant to Moran and Yakov the question before this court turns upon whether the evidence reveals substantial support, contradicted or uncontradicted, for the trial court's decision that the weight of the evidence shows appellants violated section 4229, Business and Professions Code.

The ruling of Judge Nutter granting the motion for new trial on specified 'grounds of insufficiency of the evidence and judgment as against the law' (see § 657(6), Code Civ.Proc.) was not binding on Judge Tante and did not preclude a subsequent retrial and re-examination of all issues of fact, even though no additional evidence was offered. ⁵ The motion was granted for the sole purpose of according appellants a new trial which consists of 'a re-examination of (all) issue(s) of fact in the same court * * *.' (§ 656, Code Civ.Proc.); and a re-examination of all issues contemplates an independent determination of the cause. However, the record shows that the motion was granted by Judge Nutter primarily because of his doubt that he had properly decided the legal issue whether the hearing officer could take official notice of the dangerous character of the drugs referred to by their trade names, and it follows that if he could not, the evidence would not support the board's finding that Dexedrine and Equanil are dangerous drugs. Too, this was the basis of Judge Tante's initial ruling granting the peremptory writ--'primarily on the fact that the administrative agency did not have the...