Miller v. Department of Registration and Ed.
| Decision Date | 26 January 1979 |
| Docket Number | Nos. 50570,50571 and 50663,s. 50570 |
| Citation | 25 Ill.Dec. 644,387 N.E.2d 300,75 Ill.2d 76 |
| Parties | , 25 Ill.Dec. 644 Sheldon MILLER, Appellee, v. The DEPARTMENT OF REGISTRATION AND EDUCATION, Appellant. Theodore DOLITSKY, Appellee, v. The DEPARTMENT OF REGISTRATION AND EDUCATION, Appellant. Aaron FINN, Appellant, v. The DEPARTMENT OF REGISTRATION AND EDUCATION, Appellee. |
| Court | Illinois Supreme Court |
William J. Scott, Atty. Gen., Chicago (Charles J. Pesek, Asst. Atty. Gen., of counsel), for appellant Ill. Dept. of Registration and Ed.
Joel M. Hurwitz of Fohrman, Lurie, Holstein, Sklar & Cottle Ltd., Chicago, for appellant Aaron Finn.
Bernard B. Brody, Chicago (Allan A. Ackerman of Ackerman, Durkin & Egan, Chicago, of counsel), for appellee Theodore Dolitsky.
Samuel Shkolnik, Chicago, for appellee Sheldon Miller.
The Director of the Department of Registration and Education (Department) revoked three pharmacists' licenses to practice pharmacy after an administrative determination that they were guilty of "gross immorality" under the Pharmacy Practice Act (Ill.Rev.Stat.1973, ch. 91, par. 55.7-6, now Ill.Rev.Stat.1977, ch. 111, par. 4019, as amended). The revocations were premised upon Federal convictions following the entry of pleas of guilty by Theodore Dolitsky, Sheldon Miller and Aaron Finn to the Federal misdemeanor offense of offering and making a kickback or bribe in connection with the furnishing of drugs and pharmaceutical services for which payment is made in whole or in part out of Federal funds under an approved State medical assistance plan (42 U.S.C. sec. 1396h(b)(1) (1976)). The pharmacists filed three separate actions for administrative review in the circuit court of Cook County.
The complaints filed by Miller and Dolitsky were heard by Judge Richard L. Curry, who ruled that the term "gross immorality" is unconstitutionally vague; that the Federal misdemeanor offense to which Miller and Dolitsky pleaded guilty is not encompassed by the legislative proscription of "gross immorality"; and that the pharmacists did not receive a fair hearing before the State Board of Pharmacy since the Board was supplied with the entire 49-count indictment, although the pharmacists were convicted upon only one count following their guilty pleas. Judge Curry reversed the decision to revoke, and the Department filed the instant direct appeal under Rule 302(a) (58 Ill.2d R. 302(a)) on the ground that the circuit court had held section 7-6 of the Pharmacy Practice Act (Ill.Rev.Stat.1973, ch. 91, par. 55.7-6) invalid.
The complaint filed by Finn was heard by Judge Arthur L. Dunne, who found that the order of revocation was properly entered and affirmed the decision as not contrary to the manifest weight of the evidence or contrary to law. This court allowed Finn's motion for direct appeal under Rule 302(b) (58 Ill.2d R. 302(b)) and consolidated all three appeals.
The pharmacists' licenses were revoked following three separate hearings before the State Board of Pharmacy. At each hearing certified copies of the Federal convictions were introduced as evidence. Copies of the multicount indictments were attached to the complaints filed with the Board, and in the cases of Miller and Dolitsky, they were admitted into evidence over the objection of counsel. In each case the Board found that the pharmacist had been convicted of the Federal misdemeanor and concluded that the conviction of such an offense constituted "gross immorality" within the meaning of the Pharmacy Practice Act. The Board recommended to the Director of Registration and Education that the pharmacists' licenses be revoked. After the denial of separate motions for rehearing, the Director accepted the findings, conclusions and recommendations of the Board and revoked the licenses of all three pharmacists.
The first issue we address is whether conviction of the Federal misdemeanor offense to which the pharmacists pleaded guilty may constitute a basis for the revocation of their licenses under the Pharmacy Practice Act (Ill.Rev.Stat.1973, ch. 91, pars. 55.1 to 55.24). The pharmacists were convicted of paying kickbacks or bribes to nursing homes in connection with the furnishing of drugs and pharmaceutical services in violation of a Federal statute, which at the time the offenses were committed provided:
"(b) Whoever furnishes items or services to an individual for which payment is or may be made in whole or in part out of Federal funds under a State plan approved under this subchapter and who solicits, offers, or receives any
(1) kickback or bribe in connection with the furnishing of such items or services or the making or receipt of such payment, or
(2) rebate of any fee or charge for referring any such individual to another person for the furnishing of such items or services
shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $10,000 or imprisoned for not more than one year, or both." 42 U.S.C. sec. 1396h(b) (1976).
At the time the pharmacists committed the acts which formed the basis of the Federal misdemeanor convictions, the Pharmacy Practice Act (Ill.Rev.Stat.1973, ch. 91, par. 55.7-6) provided that the Department of Registration and Education shall "(r)efuse to issue or renew, or revoke or suspend, any license or certificate of registration issued under the provisions of this Act or of any prior Act of this State when such registration is satisfactorily shown to have been obtained by fraudulent means, or when the applicant for or holder of such license or certificate has been convicted in this or any other state of any crime which is a felony under the laws of this state or convicted of a felony in a federal court, or is Found to be guilty of gross immorality, or is found to have wilfully violated any of the rules and regulations promulgated for the administration of this Act, or to be addicted to drugs to such a degree as to render him unfit to practice pharmacy in this state." (Emphasis added.) No express provision was made for revocation for the commission of misdemeanors or for the payment of bribes or kickbacks. Revocation of the licenses of the pharmacists was based on the general ground of "gross immorality."
The meaning attached to a statutory provision is derived from an examination of the language of the statute and its purpose (see Village of Lombard v. Pollution Control Board (1977), 66 Ill.2d 503, 507, 6 Ill.Dec. 867, 363 N.E.2d 814). The statute should be evaluated as a whole; each provision should be construed in connection with every other section and in light of the statute's general purposes. (Neville v. Friedman (1977), 67 Ill.2d 488, 492, 10 Ill.Dec. 575, 367 N.E.2d 1341; Huckaba v. Cox (1958), 14 Ill.2d 126, 131, 150 N.E.2d 832).
The principal concern of the Pharmacy Practice Act, as provided in the legislative declaration, is with the protection of public health, safety, and welfare.
(Ill.Rev.Stat.1973, ch. 91, par. 55.1.)
The Act is designed to assure, through regulations and control in the public interest, that only those who possess the requisite professional qualifications are licensed to practice pharmacy.
The term "practice of the profession of pharmacy," as defined in the Act, means "the compounding, dispensing, recommending or advising concerning contents and therapeutic values and uses, offering for sale or selling at retail, drugs, medicines or poisons, whether pursuant to prescriptions or orders of duly licensed physicians, dentists, veterinarians, or other allied medical practitioners, or in the absence and entirely independent of such prescriptions or orders, or otherwise whatsoever, or any other act, service operation or transaction incidental to or forming a part of any of the foregoing acts, Requiring, involving or employing the science or art of any branch of the pharmaceutical profession, study or training." (Emphasis added.) (Ill.Rev.Stat.1973, ch. 91, par. 55.3(d).) The definition emphasis the performance of acts requiring professional study and training in the science of pharmacy, rather than the business aspects of the practice of pharmacy.
The pharmacists and the Department place emphasis on Gordon v. Department of Registration & Education (1970), 130 Ill.App.2d 435, 264 N.E.2d 792, for the proposition that only convictions for misdemeanors which concern the practice of pharmacy constitute "gross immorality" within the intent and purpose of the Pharmacy Practice Act. The pharmacists argue that their misdemeanors did not concern the practice of pharmacy; the Department argues to the contrary. In Gordon the pharmacist pleaded Nolo contendere in the United States district court to two charges of dispensing drugs without a prescription in violation of Federal law. The State Board of Pharmacy determined that two separate sales of legend drugs without a prescription on the same date to the same person indicated a woeful disregard for regulations and was contrary to the public interest. The Gordon court noted that "(t)here are, indeed, many misdemeanors which are not concerned with professional practice and conviction upon such may not be a concern of public interest or welfare." 130 Ill.App.2d 435, 439, 264 N.E.2d 792, 794.
The payment of kickbacks or bribes is not concerned with the exercise of the professional skill of a pharmacist, the focus of the definition of the practice of...
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