Hendelberg v. Goldstein

• Decision Date: 11 March 1954
• Docket Number: No. 11751.,11751.
• Citation: 93 US App. DC 395,211 F.2d 428
• Parties: HENDELBERG v. GOLDSTEIN et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 395, 211 F.2d 428 (1954)

HENDELBERG v. GOLDSTEIN et al.

No. 11751.

United States Court of Appeals District of Columbia Circuit.

Argued December 2, 1953.

Decided March 11, 1954.

Mr. I. Irwin Bolotin, Washington, D. C., with whom Mr. M. Taft Woodruff, Washington, D. C., was on the brief, for appellant.

Mr. Hubert B. Pair, Washington, D. C., Assistant Corporation Counsel for the District of Columbia, with whom Messrs. Vernon E. West, Corporation Counsel, Chester H. Gray, Principal Assistant Corporation Counsel, and Harry L. Walker, Assistant Corporation Counsel, Washington, D. C., were on the brief, for appellees.

Before WILBUR K. MILLER, BAZELON and FAHY, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

This is an appeal from an order of the Board of Pharmacy of the District of Columbia. It is styled as above because, at the time of filing, Goldstein was chairman of the Board.

Isadore J. Hendelberg applied November 28, 1952, to the Board for renewal of a pharmacist's license formerly held by him which had expired October 31, 1947.¹ The Board treated the application as having been seasonably filed, but denied it December 31, 1952, because the applicant had been convicted December 9, 1952, of selling drugs illegally.

At a subsequent hearing before the Board, requested by Hendelberg, the evidence tended to show that, in addition to the conviction of December 9, 1952, the applicant had in recent years been convicted of three other offenses, including an assault upon a female. The Board concluded he was a person of immoral character and again refused to renew the long-expired license.

On this appeal, Hendelberg assails the renewal statute as unconstitutional, charges he was denied due process of law, and argues the evidence adduced at the hearing was inadmissible and also was insufficient to sustain the Board's decision.

We need not consider these contentions, for Hendelberg was much too late in applying for renewal of the license which expired October 31, 1947, and the Board was without authority to grant or even to entertain his application, made more than five years thereafter. This conclusion is required by the renewal statute, § 2-606, D.C.Code 1951, which is in pertinent part as follows:

"In the month of November of each year every licensed pharmacist * * * whose license * * * has been issued not less than three years prior to the first day of such month, shall apply to the Board of Pharmacy for the renewal of such license * * *. And said Board is hereby authorized * * * to renew such license * * * in the month of November for a period of three years from the 31st day of October immediately preceding the date thereof. And every license * * * not renewed within the month of November as aforesaid shall be void and of no effect unless and until renewed. * * *

"In the event the board shall fail or refuse to renew any license * * within the month of November, for which application has been made, it shall make written record of the reasons for such nonrenewal. Upon request of the person seeking renewal of his license * * * the Board shall grant a hearing, and the applicant shall have the right to be represented by counsel, introduce evidence, and examine and cross-examine witnesses. * * *." (Our emphasis.)

The statute clearly contemplates that a license be renewed in the month of November following its expiration on October 31. Not only is the pharmacist required to apply for renewal within the month after expiration, but also the Board is expressly authorized to grant renewal only during that month. If the Board should fail or refuse to grant, during the month following expiration, an application filed during that month, it must record the reason for such failure or refusal. When that is done, we think the Board may thereafter grant renewal upon such an application, since the statute provides that a license not renewed within the month of November following expiration is "void and of no effect unless and until renewed." (Our emphasis.)

Some flexibility of action by the Board is of course desirable and, as we have indicated, seems to be permitted by the words "unless and until renewed" in the statutory phrase just quoted. Pressure of business might cause the Board to fail to act in November on certain applications, particularly those filed very late in the month; or it might refuse to act in November on a timely application because of need for further investigation, or for some other reason. Such failure or refusal to take action in November...