McKaba v. Board of Regents of University of State of N. Y.
| Citation | 294 N.Y.S.2d 382,30 A.D.2d 495 |
| Parties | In the Matter of Arthur McKABA, Petitioner, v. BOARD OF REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK, Respondent. |
| Decision Date | 04 November 1968 |
| Court | New York Supreme Court Appellate Division |
Bernard Weitzman, New York City, for petitioner.
Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch and Thomas G. Conway, Albany, of counsel), for respondent.
Before HERLIHY, J.P., and REYNOLDS, AULISI, STALEY, and GABRIELLI, JJ.
This is a proceeding under CPLR article 78 to review a determination of the Board of Regents which suspended the license of petitioner to practice pharmacy for six months.
The petitioner is a licensed pharmacist and the holder of a license for a retail pharmacy. Charges were preferred against him for the revocation of his license, and an administrative hearing was held on April 10, 1967 by the New York State Board of Pharmacy. Three charges were specified against him as follows: (1) Unprofessional conduct in that he failed to maintain records of all narcotic drugs received and disposed of, in violation of subdivision 3 of section 3333 of the Public Health Law and subdivision 10 of section 57 of the Regulations of the Commissioner of Education (8 NYCRR 63.3(j)); having dispensed exempt narcotic drugs not in good faith as a medicine to persons he knew or should have known were misusing said drugs; having failed to give access to inspectors of the Narcotic Control Bureau to records required to be kept by article 33 of the Public Health Law; (2) that he wilfully or repeatedly violated article 137 of the Education Law, and (3) that he had been convicted of a crime within the purview and meaning of subdivision 1(b) of section 6804 of the Education Law.
At the hearing a certified copy of the record of conviction of the petitioner for violations of sections 3324, 3325, 3333 and 3350 of the Public Health Law, based upon his plea of guilty, was introduced in evidence.
The Board of Pharmacy found the petitioner guilty of the charges contained in the three specifications, and determined that his license to practice pharmacy be suspended for three months on each specification, to run consecutively. On review the Regents' Committee on Discipline recommended 'that the Board of Regents accept the findings of the State Board of Pharmacy, that respondent is guilty of all three specifications, as charged in the petition except that portion of the specification of unprofessional conduct charging respondent with failing to give an inspector of the Narcotic Control Bureau access to his narcotic records,' and recommended that the measure of discipline be modified, and that petitioner's license be suspended for six months on each specification, said suspension to run concurrently. The Board of Regents accepted this recommendation and suspended the petitioner's license to practice pharmacy 'for a period of six months on each specification, said suspension to run concurrently.'
The execution and enforcement of this suspension has been stayed by this court pending a determination in this proceeding. It is undisputed that the evidence adduced at the hearing supports the findings of the Board of Pharmacy. The petitioner now contends, however, that the greater part of this evidence was obtained in violation of his constitutional rights in that no search warrant was obtained by the inspectors of the Department of Health prior to their inspection of the petitioner's records and examination of his stock of narcotic drugs. The petitioner concedes that the inspectors had a right to examine his purchase and sale records of narcotic drugs, and bases his contention of unlawful search on the ground that the inspectors, without the benefit of a search warrant or permission from him, proceeded to summarily count his inventory of narcotic drugs.
The petitioner contends he was not asked for permission to count the inventory, and he simply absented himself while he suffered said inventory to be taken. The petitioner, however, testified at the hearing that whenever a pharmacy or narcotic inspector came in and stated that he was from the Pharmacy Board, Thus, by his own testimony, the petitioner granted the inspectors a general permission to examine his records and inventory of narcotic drugs, and his contention that the counting of his inventory of narcotic drugs constituted an unlawful search is without merit. Further, the petitioner was represented by counsel at every stage of the hearings, and no objection was made to the introduction of the exhibits relating to the inventory...
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