Urowsky v. Board of Regents of University of New York
| Decision Date | 20 November 1973 |
| Citation | 76 Misc.2d 187,349 N.Y.S.2d 600 |
| Parties | Eric G. UROWSKY, Plaintiff, v. BOARD OF REGENTS OF UNIVERSITY OF NEW YORK, Defendant. |
| Court | New York Supreme Court |
Friedman, Ladd & Maksail, Schenectady, for plaintiff; Van Buren Wake, Jr., Milwaukee, Wis., of counsel.
Robert D. Stone, Albany, for defendant; Donald O. Meserve, Albany, of counsel.
This is an action to declare a regulation of the Commissioner of Education unconstitutional and for a permanent injunction restraining the Board of Regents from enforcing the regulation. The regulation in question (8 NYCRR 63.3) reads as follows:
63.3 Unprofessional counduct. Unprofessional conduct in the practice of pharmacy within the meaning of section 6804 of the Education Law shall include but shall not be limited to the following:
(c) a registered pharmacist, or the owner of a pharmacy participating in any plan, agreement or arrangement which advertises fixed or discount prescription prices or permitting any agent or any other person, group or organization to use such advertising in his behalf . . .
On or about February 16, 1972, the State Board of Pharmacy, a licensing board under the jurisdiction of the defendant, notified plaintiff to appear before a committee of said board pursuant to section 6809 of the Education Law to answer charges that the U.P.C. Prescription Center of Schenectady, Inc., where plaintiff is supervising pharmacist, was advertising through local newspapers discounts on all drug need and was offering free $2.00 certificates for all drug needs.
On February 29, 1972, plaintiff instituted the present action. By order dated May 10, 1972, a preliminary injunction was granted plaintiff restraining the defendant from conducting the hearing and from attempting to enforce the regulation.
On May 4, 1972, the regulation in question was amended, effective June 1, 1972; former subdivision (c) of section 63.3 was repealed and new subdivisions (c) and (m) were added as follows:
63.3 Unprofessional conduct. Unprofessional conduct in the practice of pharmacy within the meaning of section 6804 of the Education Law shall include but shall not be limited to the following:
(c) advertising of fixed fees or prices for professional services or the use of the words 'cut rate', 'discount' or other words having a similar connotation in connection with the offering of professional services by a pharmacist, the owner of a pharmacy or by any other person, group or organization in behalf of and with the permission of a pharmacist or the owner of a pharmacy, provided, however, that proper actions taken in meeting the requirements of subdivision (m) shall not be construed as constituting advertising;
(m) failure to make prescription fee or price information readily available by:
(1) providing such information upon request and upon the presentation of a prescription for pricing or dispensing; or,
(2) offering to provide such information by posting a sign measuring 9 inches by 12 inches in the window or within the pharmacy at the area where prescriptions are normally received or, in the case of pharmacies located in general merchandising establishments at the registered area reading:
'The price for which your prescription will be dispensed will be provided upon request and upon presentation of such prescription for pricing or dispensing.'
The sign must in every case be clearly visible to the patrons to be served.
The parties have stipulated that there is no issue of fact to be tried and that the issues raised are ones of law relating to the validity of section 63.3 of the regulations.
It is the position of plaintiff that the discount advertising restrictions set forth in former 63.3(c) as well as the present 63.3(c) are invalid because there is no reasonable basis for the existence of these regulations. It is to be noted that there is a difference in the two regulations. The former section 63.3(c) prohibited a pharmacist from advertising 'discount prescription prices' whereas the present section prohibits a pharmacist from advertising discounts in connection with the offering of professional services of a pharmacist. As a practical matter, the substance of the prohibition in the two sections is the same. Thus, while the present action is concerned only with the validity of former section 63.3(c), the validity of the present section, at least inferentially, must also be determined in this action.
The plaintiff's main argument is that the regulation prohibiting the advertising of discount prescription prices is not reasonably related to the health and welfare of the public and, therefore, is unreasonable and arbitrary and violative of plaintiff's right to due process of law (Defiance Milk Products Co....
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