Eichberg v. Maryland Bd. of Pharmacy

• Decision Date: 06 November 1981
• Docket Number: No. 295,295
• Parties: Daniel M. EICHBERG v. MARYLAND BOARD OF PHARMACY.
• Court: Court of Special Appeals of Maryland

Page 189

50 Md.App. 189

436 A.2d 525

Daniel M. EICHBERG v. MARYLAND BOARD OF PHARMACY.

No. 295.

Court of Special Appeals of Maryland.

Nov. 6, 1981.

Mark Woodard, with whom were Allen D. Greif and Greif, Cohen & Alpert, Baltimore, on the brief, for appellant.

Ronald S. Gass, Asst. Atty. Gen., with whom was Stephen H. Sachs, Atty. Gen. on the brief, for appellee.

Argued before MASON, LISS and BISHOP, JJ.

LISS, Judge.

Appellant, Daniel Moses Eichberg, filed this appeal from an order of the Circuit Court for Baltimore County affirming the action of the Maryland Board of Pharmacy in revoking the appellant's license to practice pharmacy.

Appellant was charged by indictment in the Circuit Court for Baltimore County with violations of various provisions of the Maryland drug abuse statutes. The case resulted in a mistrial because a newspaper, which included an article about Eichberg's trial was found in the jury room. Appellant subsequently entered an Alford plea ¹ of guilty to the charge of unlawfully dispensing a controlled dangerous substance without a prescription.

At the conclusion of the criminal proceedings against appellant, the Maryland Board of Pharmacy, the appellee herein (hereinafter the "Board") charged the appellant with violating various provisions of the Maryland pharmacy statute, Maryland Code (1957, 1980 Repl.Vol.), Article 43, § 266A, et seq. ² A hearing was held before the Board on October 17 and 22, 1979. On November 21, 1979, the Board, by unanimous vote, issued an order revoking appellant's license to practice pharmacy in Maryland after finding him guilty of all charges.

Appellant then appealed this order to the Circuit Court for Baltimore County. A hearing was held on January 22, 1981 and on March 10, 1981 the court issued an opinion and order affirming the decision of the Board. Appellant now asks us to review that order. He raises the following issues to be determined by this Court:

I. Whether the trial court erred in holding that the previously recorded testimony of an adverse witness in the criminal proceedings against appellant were admissible at the revocation hearing before the Board of Pharmacy?

II. Whether hearsay evidence is admissible at administrative hearings which appellant contends are quasi-criminal?

III. Whether an Assistant Attorney General's letter to the Board prior to its rendering a decision on the merits, outlining past unfavorable incidents by appellant and recommending revocation of his license and whether the Board's having a file on appellant's prior history from the inception of the case amounts to sufficient evidence to rebut the presumption of proper conduct by public officials?

IV. Whether the composition of the Board of Pharmacy, which is composed of practicing pharmacists that have an economic interest in having fewer pharmacists and reducing their competition, constitutes an inherent bias and resulting conflict of interest, such that the appellant was denied a fair and impartial hearing?

I. & II.

At the appellant's criminal trial, Joyce Ann Buckley, a police informant, appeared as a witness for the State. At the subsequent hearing before the Board, the Assistant Attorney General and administrative prosecutor for the Board offered into evidence as a State's exhibit a certified copy of Ms. Buckley's testimony at the criminal trial. The transcript included the direct examination by the State's Attorney and the cross-examination by appellant's counsel who represented the appellant at both the criminal trial and at the administrative hearing below.

Appellant initially complains that the admission by the Board of the transcribed testimony of Ms. Buckley was an abuse of discretion in that the testimony as given in the criminal trial was hearsay, biased and self-serving. He cites in support of this contention the rule adopted by the Board to regulate formal hearings in contested cases. ³ The rule is stated as follows:

In contested cases:

(a) Agencies may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonable and prudent men in the conduct of their affairs .... They may exclude incompetent, irrelevant, immaterial and unduly repetitious evidence.

As appellant concedes, it is well settled in Maryland that hearsay evidence is admissible into evidence at administrative hearings. In Montgomery County v. National Capital Realty Corp., 267 Md. 364, 297 A.2d 675 (1972), the Court of Appeals stated:

(A)dministrative agencies are not generally bound by the technical common-law rules of evidence, although they must observe the basic rules of fairness as to parties appearing before them. Thus, even hearsay evidence may be admitted in contested administrative proceedings. Maryland Fire UW v. Insurance Comm'r, 260 Md. 258, 267, 272 A.2d 24 (1971); Neuman v. City of Baltimore, 251 Md. 92, 97, 246 A.2d 583 (1968); Dal Maso v. Board of County Comm'rs of Prince George's County, 238 Md. 333, 209 A.2d 62 (1965). (267 Md. at 376.)

In Redding v. Board of County Commissioners for Prince George's County, 263 Md. 94, 282 A.2d 136 (1971), cert. denied, 406 U.S. 923, 92 S.Ct. 1791, 32 L.Ed.2d 124 (1972), the same Court noted:

(W)e have held that (hearsay) evidence is admissible before an administrative body in contested cases and, indeed, if credible and of sufficient probative force, may be the sole basis for the decision of the administrative body. See Tauber v. County Board of Appeals, 257 Md. 202, 213, 262 A.2d 513, 518 (1970) and prior cases therein cited. (263 Md. at 110-11, 282 A.2d 136.)

The provisions of the Administrative Procedure Act (APA) are consistent with the case law hereinbefore cited. It is important to distinguish that the test of admissibility under the Maryland APA is the probative value of the evidence not its credibility. Appellant attempts to attack Ms. Buckley's testimony not only on the basis of hearsay, but also that the testimony was biased and self-serving. This line of reasoning clearly confuses probative value with credibility. See generally McCormick, Evidence § 350 (2d ed. 1972). Probative value relates to the degree by which the evidence advances the inquiry; whereas credibility relates to the weight to be given to the evidence by the trier of fact. Appellant does not object to the admissibility of the testimony on the grounds that it lacks probative value or relevancy; rather, he asserts that the testimony lacks the requisite credibility, which in turn goes to the weight that the Board should have accorded her testimony, not as to whether the testimony should have been excluded.

The transcribed testimony of Ms. Buckley at the previous criminal trial was admissible because it was taken under oath, she was subject to cross-examination and the witness was unavailable to testify in person. The record clearly demonstrates that Ms. Buckley did not appear at the hearing before the Board because she was beyond the jurisdiction of the Board and the State's effort to produce her was unsuccessful. The Board's charges were essentially the same as those tried in the criminal case. Ms. Buckley testified under oath at a public trial. The appellant, as the defendant in the criminal trial and the respondent in the action before the Board, was afforded an opportunity to cross-examine Ms. Buckley at the criminal trial and from the record it is apparent that he extensively availed himself of that opportunity.

Two cases from other jurisdictions are factually similar to the case at bar: Zimmerman v. Board of Regents, 31 App.Div.2d 560, 294 N.Y.S.2d 435 (1968) and Davis v. Board of Medical Examiners, 108 Cal.App.2d 346, 239 P.2d 78 (1951). In Zimmerman, supra, the Board of Regents of the state University of New York suspended a physician's license to practice medicine for one year. At the hearing the transcribed testimony of two witnesses at the criminal trial was introduced to substantiate the charges against Zimmerman. On appeal, the physician challenged the admissibility of the testimony of the witnesses on the ground that they did not appear at the administrative hearing and as a result the doctor was deprived of his right to cross-examine. The court found the testimony was admissible for basically the same reasons hereinbefore stated. In Davis, supra, a transcript of a prior criminal action was admitted into evidence in a disciplinary hearing against a physician before the California Board of Medical Examiners. The doctor challenged the evidence on the ground that the criminal action had been dismissed because of a hung jury. The court held the transcript was admissible.

Appellant next argues on this issue that the administrative proceedings in this case are "quasi-criminal." We know of no such mutation in Maryland law. Appeals of disciplinary actions by administrative agencies are civil actions. See Unnamed Physician v. Commission on Medical Discipline, 285 Md. 1, 400 A.2d 396, cert. denied, 444 U.S. 868, 100 S.Ct. 142, 62 L.Ed.2d 92 (1979). Appellant, however, cites three cases from other jurisdictions to support his contention that the disciplinary hearing was "quasi-criminal" and that the hearsay evidence should therefore be excluded. ⁴ After reviewing those cases we find them to be distinguishable on the facts and we decline to extend any of the rules enunciated in those cases to our jurisdiction.

Finally on this issue, appellant complains that the prior recorded testimony of Sidney Pats, another of the State's witnesses in the criminal trial, was inadmissible. The short answer to this objection is that Pats' testimony was never offered into evidence. Pats appeared and testified at both the criminal trial and the administrative hearing. Apparently appellant's counsel initially objected to the administrative prosecutor's use of Pats' transcribed testimony to refresh his recollection. After discussion he withdrew his objection. We have carefully read his testimony at the...