Osco Drug, Inc. v. Department of Registration and Ed.

• Decision Date: 07 November 1977
• Docket Number: No. 76-1571,76-1571
• Citation: 12 Ill.Dec. 436,370 N.E.2d 59,54 Ill.App.3d 936
• Parties: , 12 Ill.Dec. 436 OSCO DRUG, INC., Plaintiff-Appellee, v. DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 59

370 N.E.2d 59

54 Ill.App.3d 936, 12 Ill.Dec. 436

OSCO DRUG, INC., Plaintiff-Appellee, v. DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellant.

No. 76-1571.

Appellate Court of Illinois, First District, First Division.

Nov. 7, 1977.

William J. Scott, Atty. Gen. of the State of Illinois, Chicago (Charles J. Pesek, Asst. Atty. Gen., of counsel), for defendant-appellant.

McDermott, Will & Emery, Chicago (Harold J. Bressler and Robert T. Palmer, Chicago, of counsel), for plaintiff-appellee.

Sidney Waller, Waller & Waller, Chicago, for amicus curiae The Chicago Retail Druggists Assn. and The Illinois Pharmaceutical Assn.

GOLDBERG, Presiding Justice:

Osco Drug, Inc. (plaintiff) filed an amended complaint for declaratory judgment and injunctional relief against the Illinois Department of Registration and Education (defendant). The amended complaint involved construction of the Pharmacy Practice Act (Ill.Rev.Stat.1975, ch. 91, par. 55.1 et seq.; hereinafter referred to as the Pharmacy Practice Act), regarding whether plaintiff was required to have a registered pharmacist present for a majority of the hours that its stores were open to the public. Defendant filed a motion for judgment on the pleadings. Plaintiff filed a motion for summary judgment. After a hearing the trial court entered a judgment order granting plaintiff the relief prayed. Defendant has appealed.

In our opinion, no factual issue is presented by this record. Both parties have in effect treated the allegations of the amended complaint as true for purposes of this litigation. The sole legal issue involved is construction of the applicable portions of the Pharmacy Practice Act.

In the amended complaint, plaintiff alleged that it operates many stores in the State of Illinois. These stores are often open for exceedingly long and extraordinary hours. Some of them are operated in conjunction with Jewel Food Stores. Plaintiff is engaged in the practice of pharmacy in that drugs and medicines are compounded and dispensed pursuant to physicians' prescriptions. In all cases, these activities are conducted in a segregated and limited area of plaintiff's stores. These areas are accessible to the public only during certain designated hours regardless of business being carried on in other portions of the store. These areas are not always open for a majority of hours during each day that an entire store functions. Plaintiff's stores also sell many products, such as cosmetics, books and miscellaneous sundries unrelated to the practice of pharmacy.

Defendant notified plaintiff to have its pharmacy open in each of its stores for a majority of the hours of each day during which the entire store was open. Plaintiff sought a declaration of right regarding compliance with this requirement and the consequent necessity of attendance of a registered or assistant pharmacist.

The trial court found that plaintiff is engaged both in the practice of pharmacy and in a general retail business "involving the sale of numerous products unrelated to the practice of pharmacy." The court found that the Pharmacy Practice Act was intended solely "to regulate the practice of pharmacy." The court construed the pertinent statute as requiring the presence of a registered pharmacist only for a majority of hours during which plaintiff's stores practice pharmacy and either a registered pharmacist or assistant registered pharmacist for the remaining hours of such practice.

In this court, defendant contends that the terms "pharmacy" and "drugstore" as used in the statute refer to an entire store and are not limited to the prescription counter; the statute requires the presence of a registered pharmacist for the majority of hours plaintiff's entire stores are open to the public, and that such a requirement is not unconstitutional. Plaintiff responds that defendant's analysis of the term "pharmacy" is irrelevant because the statute monitors only the hours of actual pharmacy practice; the statute applies solely when the practice of pharmacy is being carried on and interpreting the statute to require the presence of a pharmacist for a majority of the hours plaintiff's stores are open would impose unconstitutional restrictions.

The portion of the statute applicable here (Ill.Rev.Stat.1975, ch. 91, par. 55.8), provides in pertinent part "It shall be unlawful for the owner of any drugstore, shop or other place in this State, defined in this Act as 'a pharmacy' or as 'a drug store', to operate or conduct the same, or to allow the same to be operated or conducted, unless:

"(a) there is in charge thereof and present therein a registered pharmacist in good standing in this State during at least the majority of hours of each day that the same shall be open to the public; and there is in charge thereof and present therein, during the remainder of the hours of each day during which the practice of pharmacy shall be carried on therein, either a registered pharmacist or a registered assistant pharmacist in good standing in this State;

"(b) at all times when the practice of pharmacy is carried on therein, such practice of pharmacy shall be carried on only by a person or persons then authorized to practice pharmacy in this State under the provisions of this Act * * *."

The essence of defendant's argument is its initial contention: that the words "pharmacy" and "drugstore" as used in the above enactment refer to plaintiff's entire store. In support of this interpretation defendant cites the statutory definition of these terms (Ill.Rev.Stat.1975, ch. 91, par. 55.3(a)):

"(a) The term 'a pharmacy' or 'a drugstore' means and includes every store, or shop, or other place where: (1) drugs, medicines, or poisons are dispensed, or sold or offered for sale at retail; or displayed for sale at retail; or (2) where prescriptions of physicians, dentists, veterinarians, or other allied medical practitioners are compounded, filled, or dispensed * * *."

As a general matter, the legislature has authority "to define, for the purpose of the statute, the terms used therein * * *" and these definitions prevail in application of the statute. (Bohm v. State Employees' Retirement System (1949), 404 Ill. 117, 120, 88 N.E.2d 29, 30.) However, in determining what meaning should be given to a statutory provision, it is important to look "at the whole Act and the purpose for which it was enacted." (Tri-County Landfill Co. v. Pollution Control Board (1976), 41 Ill.App.3d 249, 253, 353 N.E.2d 316, 320.) Further, "(e)ach section and provision should be construed in connection with every other part or section." Huckaba v. Cox (1958), 14 Ill.2d 126, 131, 150 N.E.2d 832, 835.

The purpose of enacting the Pharmacy Practice Act was to regulate the practice of pharmacy. This is apparent both from the title itself, "AN ACT to regulate the practice of pharmacy * * *" and the legislative declaration in section 1 (Ill.Rev.Stat.1975, ch. 91, par. 55.1):

"The Practice of Pharmacy in the State of Illinois is declared a professional practice affecting the public health, safety and welfare and is subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of pharmacy, as defined in this Act, merit and receive the confidence of the public and that only qualified persons be permitted to practice pharmacy in the State of Illinois. This Act shall be liberally construed to carry out these objects and purposes."

The Act defines the term "practice of pharmacy" (Ill.Rev.Stat.1975, ch. 91, par. 55.3(d)), as follows:

"The term 'practice of pharmacy' or 'practice of the profession of pharmacy' means and includes 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."

Other sections of the Act pertinent to this appeal are section 7a.3 (Ill.Rev.Stat.1975, ch. 91, par. 55.7a.3) which provides in part:

"such pharmacy will have and shall maintain adequate space for the prescription department.

"On or after January 1, 1964, every pharmacy shall be in a suitable, well-lighted and well-ventilated room, with clean and sanitary surroundings and shall be suitably equipped for compounding prescriptions and sale of drugs. The space occupied shall be equipped with a sink with hot and cold water or facilities for heating water, proper sewage outlet, refrigeration storage equipment, and such fixtures, facilities and equipment as will enable it to operate as a pharmacy. * * *."

and also section 55.4(d) (Ill.Rev.Stat.1975, ch. 91, par. 55.4(d)) which excludes from application of the Act:

"the sale of patent or proprietary medicines and household remedies when sold in original and unbroken packages only, if such patent or proprietary medicines and household remedies be properly and adequately labeled as to content and usage and generally considered and accepted as harmless and non-poisonous when used according to the directions on the label, and also do not contain opium or cocoa leaves, or any compound, salt or derivative thereof, or any drug * * *."

In our view it is not necessary to construe these...