Tadrus v. Missouri Bd. of Pharmacy, WD

• Decision Date: 23 February 1993
• Docket Number: No. WD,WD
• Parties: Salim S. TADRUS, R.Ph., Sam's Prescription Shop, Inc., Appellants, v. MISSOURI BOARD OF PHARMACY, Respondent. 45464.
• Court: Missouri Court of Appeals

Page 222

849 S.W.2d 222

Salim S. TADRUS, R.Ph., Sam's Prescription Shop, Inc., Appellants, v. MISSOURI BOARD OF PHARMACY, Respondent.

No. WD 45464.

Missouri Court of Appeals Western District.

Feb. 23, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 30, 1993.

Ronald Jenkins, St. Louis, James W. Gallaher, II, Jefferson City, for appellants.

William L. Webster, Atty. Gen., Audrey L. Hanson, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and BRECKENRIDGE and HANNA, JJ.

KENNEDY, Presiding Judge.

Salim Tadrus and Sam's Prescription Shop, Inc., appeal the decision of the circuit court affirming the suspension of Mr. Tadrus's pharmacist's license for three months, followed by five years probation, and the placing of Sam's Prescription Shop on probation for five years.

On January 31, 1986, the State Board of Pharmacy (hereinafter "the Board") filed a complaint with the Administrative Hearing Commission ("the AHC") seeking a hearing and determination that Mr. Tadrus's pharmacist's license and the pharmacy permit of Sam's Prescription Shop, Inc., were subject to revocation or suspension pursuant to section 338.055 RSMo Supp.1984. Salim Tadrus is a registered pharmacist and the owner of three pharmacies named Sam's Prescription Shop, two of them in Moberly and a third in Brookfield. The complaint grew out of inspections of the Sam's located at 513 West Reed in Moberly, Missouri (which we will call Sam's # 1 to avoid confusion), carried out by the Board in January and July of 1985. A hearing on the first amended complaint was held and Commissioner Paul R. Otto issued findings of fact, conclusions of law and a statement of the case on June 19, 1989. Commissioner Otto found that Mr. Tadrus and Sam's Prescription Shop, Inc. were subject to discipline pursuant to section 338.055.2, subsec. 5, 6 and 15 and section 338.285 RSMo 1986 ¹ for some or all of the conduct charged in Counts II, V, and VI of the six count complaint. Section 338.055.2, in pertinent part, provides:

2. The board may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any holder of any certificate of registration or authority, permit or license required by this chapter ... for any one or any combination of the following causes:

(5) Incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties of any profession licensed or regulated by this chapter;

(6) Violation of, or assisting or enabling any person to violate, any provision of this chapter, or of any lawful rule or regulation adopted pursuant to this chapter;

(15) Violation of the drug laws or rules and regulation of this state, any other state or the federal government;

On September 24, 1989, a hearing was held before the Board to determine the appropriate discipline for Mr. Tadrus and Sam's Prescription Shop, Inc. On October 2, the Board issued its findings of fact, conclusions of law and disciplinary order. The Board ordered that Mr. Tadrus's license be suspended for three months, followed by a five year period of probation. The pharmacy permit of Sam's Prescription Shop, Inc. was placed on probation for five years. Both the Board on one side and Mr. Tadrus and Sam's Prescription Shop, Inc. appealed those sections of the order that were ruled against them to the circuit court. The Circuit Court of Cole County affirmed the decisions of the AHC and the Board. Mr. Tadrus and Sam's Prescription Shop, Inc. then appealed to this court.

I.

We deal first with appellants' constitutional challenge. Mr. Tadrus contends that he was denied due process of law by the Board's failure to promulgate guidelines or standards which would have informed him what actions would subject him to discipline. Mr. Tadrus asserts that section 338.055.2(5) is insufficient on its own to alert pharmacists as to what the Board will consider to be a violation, and that determinations made by the Board without written standards are arbitrary, capricious, and a violation of due process. The Board of Pharmacy did promulgate guidelines four months after the inspections of Sam's Prescription Shop in 1985.

Mr. Tadrus's failure to raise this constitutional issue at the administrative hearing level is not fatal to his claim. Mr. Tadrus did raise this issue at the circuit court level. A constitutional challenge must be raised at the earliest possible stage or it is waived. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372 (banc. 1949). Since an administrative hearing commission is not empowered to determine the constitutionality of statutes, a party is not required to raise those issues at that level. Duncan v. Missouri Board of Architects, Professional Engineers & Land Surveyors, 744 S.W.2d 524, 531 (Mo.App.1988).

We review the constitutional challenge to see if it is substantial, in which case jurisdiction would vest in the Missouri Supreme Court. Mo. Const. Art. V, Sec. 3. If the challenge is merely colorable, we retain jurisdiction. Duncan, 744 S.W.2d at 531.

While the question whether the statute is unconstitutionally vague has not been ruled on in the area of this particular statute, it has come up in relation to other licensing statutes. In Duncan v. Missouri Board of Architects, the appellants claimed the licensing statute for engineering licenses was so vague it violated due process. The statute provided for discipline for acts of "gross negligence." The court held that this challenge was merely colorable, pointing to instances where courts upheld similar statutes which used terms such as "unprofessional and dishonorable conduct", "bad moral character", and "misconduct or dishonesty." Id. at 532 (citations omitted). The reasoning behind these decisions is equally applicable here. "It is indeed impossible to define or categorize all the acts which might constitute terms such as "unprofessional conduct" or "gross negligence." " Id. at 532 (citation omitted). "The crucial aspect is that the legislature establish minimal guidelines to govern law enforcement or, in this case, licensing discipline." Id. at 531 (citations omitted). Every infraction found by the AHC was a violation of a statute and/or regulation in effect at the time of the inspections. Mr. Tadrus can hardly assert that he was unaware of the regulations and statutes governing the conduct of licensed pharmacists at the time of the inspections.

We next turn to appellants' other points on appeal, the majority of which challenge the AHC's findings as not supported by the evidence. This court reviews the findings of the administrative agency, not the decision of the circuit court. Americare Systems v. Missouri Dept. of Social Services, 808 S.W.2d 417, 419 (Mo.App.1991). We reverse the decision of the agency "only where no substantial and competent evidence exists to support it, where the agency has abused its discretion or where the agency has acted arbitrarily, capriciously or unreasonably," Id. Substantial evidence is evidence which, if believed, would have a probative force upon the issues. Brooks v. General Motors Assembly Div., 527 S.W.2d 50, 53 (Mo.App.1975).

II.

Mr. Tadrus first complains about the AHC's finding that he had violated section 338.250 and 4 C.S.R. 220-2.010(1)(C) ² by failing to have on hand the current revision of the United States Pharmacopeia (U.S.P.) and National Formulary (N.F.) at the January 22, 1985 inspection of Sam's # 1. A pharmacy is required by section 338.250 to keep on file two reference books. One is "the latest decennial revision of the United States Pharmacopeia," and the other is "the latest edition of the National Formulary."

A regulation (4 C.S.R. 220-2.010(1)(C)) requires the pharmacy to maintain "at least one (1) U.S.P. (current revision), one (1) N.F. (current revision)."

On January 22, 1985, an inspector found that Sam's Prescription Shop, Inc., had on hand a 1980 edition of the United States Pharmacopeia, but this was not the latest revision, or the current revision. A new revision of the two books (now published in a single volume) had become available in October, 1984. The cover of the newest revision announced it was "(o)fficial from January 1, 1985."

Appellant says he was in compliance with the statute in having on hand the 1980 edition of the U.S.P. This edition said on its cover, "Official from July 1, 1980." This was not the latest revision, he admits, but he underlines the word "decennial" in the statutory phrase "latest decennial revision," and argues he was in compliance since his revision was less than ten years old. Apparently when this statute was enacted, the U.S.P. was revised every decade, but then it was changed to five-year intervals, so there is no "decennial revision" of the book.

We are faced with a statute which, if read literally, does not make sense. This court, in Bank of Belton v. State Banking Board, 554 S.W.2d 451, 456 (Mo.App.1977), stated:

... the legislature never intends to enact an absurd law, incapable of being enforced, and on the principle that the reason of the law should prevail over the letter of the law, courts on numerous occasions, confronted with ambiguous or contradictory language, have adopted a constructor which modifies the literal meaning of the words, and in extreme cases have stricken out words or clauses regarded as improvidently inserted, in order to make all sections of a law harmonious with the plain intent or apparent purpose of the legislature. (quoting City of Joplin v. Joplin Water Works Co., 386 S.W.2d 369, 373 (Mo.1965)).

The plain intent of the legislature was to require pharmacies to have on hand the latest revision of the U.S.P.. We, therefore, read the statute as if the word "decennial" was not there. Under this interpretation of the statute, the Commissioner's finding is sustained.

III.

As to Mr. Tadrus's failure to have the latest edition of the...