Gastman, Matter of

• Decision Date: 12 January 1977
• Parties: In the Matter of the Controlled Dangerous Substance Registration of Marvin GASTMAN, D.O.
• Court: New Jersey Superior Court — Appellate Division

Page 101

147 N.J.Super. 101

370 A.2d 866

In the Matter of the Controlled Dangerous Substance Registration of Marvin GASTMAN, D.O.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 30, 1976.

Decided Jan. 12, 1977.

Jeffrey Barton Cahn, Newark, for appellant Marvin Gastman, D.O. (Sills, Beck, Cummis, Radin & Tischman; Arthur J. Sills, Newark, of counsel).

Charlotte Kitler, Deputy Atty. Gen., for respondent, State Com'r of Health. (William F. Hyland, Atty. Gen., attorney; Erminie L. Conley, Deputy Atty. Gen., of counsel).

Before Judges CRANE, MICHELS and PRESSLER.

The opinion of the court was delivered by

MICHELS, J.A.D.

Appellant Marvin Gastman, an osteopathic physician, appeals from a final order of the State Commissioner of Health suspending for six months his New Jersey controlled dangerous substances registration for violations of Department of Health regulations relating thereto.

Dr. Gastman operated an office in Ringwood, New Jersey, spending approximately 40% Of his time in the medical management of obesity and the remainder in the general practice of medicine and surgery. To aid in this practice, Dr. Gastman obtained a State registration enabling him to dispense medications--particularly amphetamines--denominated Schedule II drugs under the Dangerous Substances Control (CDS) Act. See N.J.S.A. 24:21--6 and 10; N.J.A.C. 8:65--10.1 (Supp. 6--30--74).

In August 1973 Dr. Gastman's Ringwood office was inspected by the State Department of Health to determine if Dr. Gastman was in compliance with the CDS Act and the rules and regulations promulgated by the Commissioner thereunder. See N.J.S.A. 24:21--10(f). The violations found to exist at that time were: (1) the failure to take a biennial inventory, (2) the failure to record on federal drug order forms when CDS items are received as well as quantity received, and to retain the forms for two years, and (3) the failure to keep Schedule II controlled dangerous substances in a safe or in a substantially secure cabinet. In September 1973 Dr. Gastman was notified of these violations, urged to take remedial action, and informed of the penalties that could result from further violation of the CDS Act. A rehearing was held pursuant to N.J.A.C. 8:65--9.16. Dr. Gastman appeared Pro se, and although violations were found to exist, no penalty was imposed. The Ringwood office has not been reinspected since August 1973, and Dr. Gastman's CDS registration for that office has been annually renewed.

In January 1975 Dr. Gastman opened an office in Fort Lee which he used six to eight hours a week for a practice limited to the management of obesity. He obtained a CDS registration for this office as well, as required by N.J.S.A. 24:21--10(e), and presently dispenses there approximately 40,000 amphetamine capsules a month. ¹

In January 1976 the State Department of Health inspected Dr. Gastman's Fort Lee office. The inspection revealed substantially the same violations noted in his Ringwood office in August 1973. Specifically, Dr. Gastman was charged with: (1) failure to make a biennial inventory, as required by N.J.A.C. 8:65--5.7; (2) failure to record on federal order forms for Schedule II substances the items received from the supplier and the dates (N.J.A.C. 8:65--6.9(e)), and to keep those forms for two years (N.J.A.C. 8:65--6.13(c)), and (3) failure to keep Schedule II substances stored in a securely locked, substantially constructed cabinet. (N.J.A.C. 8:65--2.5(b)). As a result, on March 10, 1976 the Deputy Commissioner of Health issued an order to show cause why Dr. Gastman's CDS registration should not be suspended or revoked. See N.J.S.A. 24:21--12 a(3).

On April 13, 1976 a hearing was held before a hearing officer. Dr. Gastman, who appeared Pro se, denied the first and third charges and alleged that corrective measures were being effected regarding the second charge. He contended that his drug storage was adequate. In support, he stated that he took corrective measures to cure the violation found at his Ringwood office with respect to drug security by substituting a solid core door for a hollow core door on his storage closet and by installing a tumbler lock, and that those same security measures were taken by him at his Fort Lee office. He attempted to excuse the other violations by claiming that required records had been stolen during a break-in at his Fort Lee office in August 1975. At the conclusion of the hearing, the hearing officer submitted his report of hearing, findings and recommendations. He found that Dr. Gastman failed to adhere to state regulations in 1975, as he similarly failed to do in 1973, and recommended that his registration for Controlled Dangerous Substances be revoked. In reaching this decision, the hearing officer, in part, stated:

There was no dispute at the hearing that Doctor Gastman received notice in September 1973, that the acts alleged in the March 10, 1976 letter were violations of State regulations. It is not denied that the May 1, 1975 inventory was not available, nor that certain forms were missing. Doctor Gastman asserts that these deficiencies were the result of circumstances beyond his control, i.e., a theft of the once existing documents. However, Doctor Gastman's testimony lends some doubt as to the theft of these documents, and raises some question as to their prior existence.

No mention of a theft was made by Doctor Gastman until this hearing. The police officer's report of the theft indicates: 1) nothing was taken; 2) the theft occurred in early August, and 3) the Controlled Substances cabinet was in fact broken into; all in contradiction of Doctor Gastman's testimony concerning the theft. Finally, Doctor Gastman could have taken an inventory subsequent to the break-in to reflect drugs on hand on a given date. He didn't and overages were found.

Typical is Doctor Gastman's comment regarding his failure to date and identify the quantity of items received on the federal forms; conceding the irregularity of their handling by him up to a given point in time and offering subsequent corrective measures as purging the prior errors. It is too little, too late.

Dr. Gastman, then represented by counsel, moved to supplement the record. The motion was denied. He then filed exceptions to the hearing officer's report. On September 17, 1976 the Commissioner entered a final order adopting the findings of fact and conclusions of law of the hearing officer and permanently revoking Dr. Gastman's New Jersey controlled dangerous substance registration. Thereafter, the Commissioner reviewed the entire record again, including the materials submitted on the motion to supplement, and informed Dr. Gastman that she was adhering to her prior conclusion that he violated the controlled dangerous substance regulations. However, the Commissioner modified the penalty of permanent revocation to six months' suspension of his CDS registration because of Dr. Gastman's subsequent attempts to correct the violations and because of the adverse effect that permanent revocation might have upon the other physician with whom he was in practice. Dr. Gastman appeals.

In seeking (1) a reversal of the amended final order of suspension of his CDS Registration, (2) alternatively, a remand for supplementation of the record, or (3) a modification of the sanction to a reprimand, Dr. Gastman raised the following issues in his brief:

POINT I: AS A MATTER OF LAW APPELLANT CANNOT BE FOUND TO HAVE VIOLATED THE

BIENNIAL INVENTORY REQUIREMENTS OF N.J.A.C. 8:65--5.7(b).

POINT II: THERE IS NO EVI- IN THE RECORD TO SUPPORT ANY ALLEGED VIOLATION OF N.J.A.C. 8:65--2.5 REQUIRING CONTROLLED DANGEROUS SUBSTANCES TO BE STORED IN A SECURELY LOCKED, SUBSTANTIALLY CONSTRUCTED CABINET. THE FINDING OF A VIOLATION OF THAT REGULATION MUST BE REVERSED AS A MATTER OF FACT AND AS A MATTER OF LAW.

A. There Are No Facts of Record to Sustain a Finding of Violation of N.J.A.C. 8:65--2.5.

B. Since N.J.A.C. 8:65--2.5 is Void for Vagueness, the Finding that Appellant Violated It Must Be Reversed.

POINT III: THE DEPARTMENT OF HEALTH HAS FAILED TO CARRY ITS BURDEN OF PROOF SET FORTH IN N.J.A.C. 8:65--9.35 WITH RESPECT TO ANY OF THE VIOLATIONS SET FORTH IN THE ORDER TO SHOW CAUSE.

POINT IV: THE DECISION OF THE COMMISSIONER OF HEALTH IS IN VIOLATION OF THE PROVISIONS OF N.J.S. 24:21--12(a)(3).

POINT V: APPELLANT WAS IMPROPERLY DENIED A REMEDIAL HEARING PROVIDED BY N.J.A.C. 8:65--9.16.

POINT VI: THE SIX MONTH SUSPENSION OF APPELLANT'S C.D.S. REGISTRATION SHOULD BE SET ASIDE AS UNDULY SEVERE UNDER THE FACTS OF THIS CASE.

POINT VII: THE PROCEDURAL DENIAL BY THE DEPARTMENT OF HEALTH OF APPELLANT'S MOTION TO SUPPLEMENT THE RECORD PRIOR TO THE FILING OF EXCEPTIONS TO THE HEARING OFFICER'S REPORT VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW AND REQUIRES REVERSAL AND A REMAND FOR THE TAKING OF ADDITIONAL EVIDENCE BY THE DEPARTMENT OF HEALTH.

The scope of judicial review of the Commissioner's determination is thoroughly established. Our role in reviewing her findings is to determine " whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility * * * and * * * with due regard also to the agency's expertise where such expertise is a pertinent factor.' Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 92--93, 312 A.2d 497, 500 (1973); Jackson v. Concord Co., 54 N.J. 113, 117--118, 253 A.2d 793 (1969); Close v. Kordulak Bros., 44 N.J. 589, 599, 210 a.2d 753 (1965); Associated Utility Services v. Board of Review, 131 N.J.Super. 584, 588, 331 A.2d 39 (App.Div.1974).

Dr. Gastman's contentions are interlaced with arguments that he did not violate any of the regulations promulgated by the Commissioner, that the regulations he allegedly violated were vague, and that none of the violations charged...