"The Lentine court went on to state that the statutory terms `bad moral character' and `unprofessional and dishonorable conduct' were not so vague as to render the statute unconstitutional"
How later courts described this case
- "The Lentine court went on to state that the statutory terms `bad moral character' and `unprofessional and dishonorable conduct' were not so vague as to render the statute unconstitutional"
- listing instances of unprofessional conduct by pharmacists so "inherently wrong and obviously `unprofessional'" as to permit punishment without a specific regulation
- 6 Justices + 1 judge temporarily assigned
Written by the judges who cited it.
The opinion
Schreiber, J.
(dissenting and concurring in part). If the issue before this Court were whether in the abstract Heller was guilty of grossly unprofessional conduct as a pharmacist, I would have no hesitancy in joining the majority. Nor can there be any doubt that the Legislature could properly delegate to the Board of Pharmacy the authority to revoke or suspend a pharmacist’s certificate because of grossly unprofessional conduct. That clearly is a sufficient guideline for an administrative agency. But these are not the questions raised in this case. Rather the problem to which we are directed is whether the Board of Pharmacy has been authorized to revoke a pharmacist’s license for the reasons charged by the Board.
The Board has only those powers delegated to it by the Legislature — whether express, implied or incidental. If the power to revoke has not been entrusted to the Board, then no matter how strongly we feel that the Legislature should have taken that step, we must respect its judgment. The Board of Pharmacy, when created in 1901, was empowered to license pharmacists, L. 1901, c. 51, § 3, but it was not until 1934 that the Board was authorized to revoke a certificate, and then only for eight grounds, none *312 of which included grossly unprofessional conduct. L. 1934, c. 197, § 1. Conspicuous by its absence is any legislative history which suggests any different intent from that expressed in the statute with respect to the pharmacy board’s license nullification power. Therefore careful analysis of N. J. S. A. 45:14-12 is in order.
The Board of Pharmacy’s five count complaint charged Fred F. Heller with “grossly unprofessional conduct” in violation of N. J. S. A. 45:14-12 and sought to suspend or revoke his certificate to practice pharmacy. The complete provision reads as follows:
The board may refuse an application for examination or may suspend or revoke the certificate of a registered pharmacist or a registered assistant pharmacist for any of the following causes: When the applicant or registration is shown to have been obtained by misrepresentation or fraudulent means or when the applicant or registrant is guilty of chronic or 'persistent inebriety, or has been adjudged guilty of violating any State or Federal law or any law of the District of Columbia or of any territory of the United States relating to the practice of pharmacy, or relating to the dispensing of drugs, or has been convicted of a crime involving moral turpitude, or has impersonated an applicant for registration before the board or .has been convicted of knowingly, intentionally or fraudulently adulterating or causing to be adulterated drugs, chemicals or medicinal preparations or has sold or caused to be sold adulterated drugs, chemicals or medicinal preparations knowing, or having reason to know, that same were adulterated, or has procured or attempted to procure registration for another by misrepresentation or fraudulent means, and the board shall refuse an application for examination or suspend or revoke the certificate of a registered pharmacist or a registered assistant pharmacist when the applicant or registrant is shown to be addicted to the use of narcotic drugs, or has been convicted of violating any law of this or any other state or of the United States relating to narcotic drugs or has been .adjudicated an incompetent, or is shown to have any abnormal physical or mental condition which threatens the safety of persons to whom said applicant or registrant might sell or dispense prescriptions, drugs, chemicals, medicinal preparations or devices or for whom he might manufacture, prepare or package, or supervise the manufacturing, preparation or packaging of prescriptions, drugs, chemicals, medicinal preparations or devices. In addition, the hoard, may refuse an application for examination or may suspend or revolee the certificate of a registered pharmacist or a registered assistant pharmacist upon proof satisfactory to the hoard that such registered pharmdcist *313 or such registered assistant pharmacist is guilty of grossly unprofessional conduct and the following acts are hereby declared to constitute grossly unprofessional conduct for the pwrpose of this act:
a. Paying rebates or entering into an agreement for payment of rebates to any physician, dentist or other person for the recommending of the services of any person.
b. The providing or causing to be provided to a physician, dentist, veterinarian or other persons authorized to prescribe, prescription blanks or forms bearing the pharmacist’s or pharmacy’s name, address or other means of identification.
c. The promotion, direct or indirect, by any means, in any form and through any media of the prices for prescription drugs and narcotics or fees or for services relating thereto or any reference to the price of said drugs or prescriptions whether specifically or as a percentile of prevailing prices or by the use of the terms “cut rate,” “discount,” “bargain” or terms of similar connotation; but this shall not include the term nonprofit if such term is used by a nonprofit entity; and this paragraph shall not be construed or apply to have any effect with respect to sales made by pharmacists or pharmacies directly to physicians, dentists, veterinarians or other persons authorized to prescribe, or to hospitals, nursing homes,' gov-, ernmental agencies, or other institutions licensed under Title. 30 of the Revised Statutes, as amended or to the advertising or issuance of trading stamps and similar devices in connection with the sale of said prescription drugs and narcotics.
d. The claiming of professional superiority in the compounding or filling of prescriptions or in any manner implying professional superiority which may reduce public confidence in the ability, character or integrity of other pharmacists.
e. Fostering the interest of one group of patients at the expense of another which compromises the quality or extent of professional services or facilities made available.
f. The distribution of premiums or rebates of any kind whatever in connection with the sale of drugs and medications provided, however, that trading stamps and similar devices shall not be considered to be rebates for the purposes of this chapter and provided further that discounts, premiums and rebates may be provided in connection with the sale of drugs and medications to any person who is 62 years of age or older. Before a certificate shall be refused, suspended or revoked, the accused person shall be furnished with a copy of the complaint and given a hearing before the board. ■ Any person whose certificate is so-suspended or revoked shall be deemed an unregistered person during the period of such suspension or revocation, and as such shall be subject to the penalties prescribed in this chapter, but such person may, at the discretion of the board, have his certificate reinstated at any time without an examination, upon application to the board. Any person to whom a certificate shall be denied by the board or whose certificate shall be suspended or revoked by the board shall have the right to review such action by appeal to the Appellate *314 Division of the Superior Court in lieu of prerogative writ. [Emphasis supplied].
The revocation authority vested in the Board by the statute applies to two major classes of misconduct. The first group enumerated in the first paragraph of the section refers to a host of grounds which fall into three general categories: (a) convictions of various crimes, such as knowingly selling adulterated drugs, (b) the pharmacist’s physical or mental condition which threatens the safety of persons to whom drugs .may be sold, or (c) fraud or misrepresentation with respect to securing the pharmacist’s certificate. The second group consists of acts which are defined to be grossly unprofessional conduct. The statute declares that “the following acts are hereby declared to constitute grossly unprofessional conduct for the purpose of this act: . . .” Then follow six proscribed activities. Coneededly, Heller has not violated any of these.
Nowhere does it appear that this list should be considered as anything but exclusive. In effect the majority has amended the statute to read that “the following acts among others are hereby declared to constitute grossly unprofessional conduct.” Its argument that the six proscribed activities are all of the same nature (at 306) supports the thesis that the Legislature intended the phrase “grossly unprofessional conduct” to be limited and restricted to that particular class of activities.
Eecent legislative history buttresses this interpretation. A newly enacted statute provides that a valid ground for revocation of a license “to practice a health care profession, subject to regulation in this State, including the practice of pharmacy” exists where the licensee knows or should have known that the substances prescribed or dispensed are to be used for unauthorized purposes. N. J. S. A. 45:1-13 [ L. 1975, c. 382, effective March 3, 1976]. This act does not amend the definition of “grossly unprofessional conduct” in N. J. S. A. 45 but states a ground for *315 revocation generally applicable to health care professions, and particularizing pharmacists. Obviously, that specificity would have been unnecessary if the proscribed conduct had been subsumed by the definition in N. J. S. A. 45:14-12.
The majority contends that Heller, having violated N. J. S. A. 24:21-15(e), namely that no controlled dangerous substance of the codeine cough category may be dispensed other than for a valid and accepted medical purpose, must be guilty of grossly unprofessional conduct. In addition to ignoring the plain statutory language, the contention overlooks the fact that N. J. S. A. 45:14-12 expressly states that conviction of a law “relating to narcotic drugs” is a ground for revocation. But Heller has not been convicted of violating N. J. S. A. 24:21-15(e), a misdemeanor, N. J. S. A. 24:21-23, and revocation of his certificate prior to conviction is not justified. See State Bd. of Medical Examiners v. Weiner, 68 N. J. Super. 468 (App. Div. 1961), where it was held that although the State Board of Medical Examiners could suspend or revoke a license for conviction of a crime, it had no authority to suspend a doctor’s license where the doctor had been indicted, but not convicted, for manslaughter for deaths allegedly due to improper injections.
There being no legislative history which throws any different light on the patently plain and unambiguous statutory language, I am constrained to follow that language. Safeway Trails, Inc. v. Furman, 41 N. J. 467, 478 (1964); Myers v. Cedar Grove Tp., 36 N. J. 51, 61 (1961). This is especially so where a person will be forced to forego his profession and his livelihood is at stake. Fair process does not sanction license revocation on an ad hoc basis absent statutory underpinning. See Boiler Beverages, Inc. v. Davis, 38 N. J. 138, 152 (1962).
In passing I note that the Legislature has not seen fit to vest in the Board of Pharmacy any broad rule-making power with respect to the suspension or revocation of pharmacists’ certificates. The Legislature has empowered the *316 Board to promulgate rules and regulations in connection with other aspects of its regulatory authority. See, e. g., N. J. S. A. 45:14-17, rule and regulation making power for enforcement of N. J. S. A. 45:14-13 to 16; N. J. S. A. 45:14-26, rules and regulations for N. J. S. A. 45:14-23 to 25; N. J. S. A. 45:14-36, rules and regulations for N. J. S. A. 45:14-32 to 35; and N. J. S. A. 45:14-36.1, rules and regulations with respect to facilities, equipment and cleanliness in drug stores. In view of the absence of the Board’s rule-making authority, the Court is not confronted with the issue of whether rule-making rather than ad hoc adjudicatory process is appropriate. See Securities and Exchange Commission v. Chenery Corp., 332 U. S. 194, 201-202 , 67 S. Ct. 1575, 1580 , 91 L. Ed. 1995, 2002 (1947).
The Board of Pharmacy also revoked the permit of Carfred, Inc. to conduct a pharmacy, N. J. S. A. 45:14-32 and 33. The statutory basis for that revocation is not keyed to the “grossly unprofessional conduct” criteria applicable to an individual’s license and no arguments have been advanced which would invalidate the Board’s revocation of that permit.
I would reverse the order of the Board .of Pharmacy in revoking Heller’s license and affirm the Board’s order in revoking Carfred, Inc.’s permit. I join in the majority’s opinion and order that the “civil penalty” be set aside as to both Heller and Carfred, Inc.
For affirmance as modified — Chief Justice Hughes, Justices Mountain, Sullivan, P ashman and Clifford and Judge Conford — 6.
Dissenting and concurring in part — Justice Schreiber — 1.