Opposition Brief — Medical Society v. Robins

No. 99-1131

In the Supreme Court, U.S,

Supreme Court of the United States * | 5 © YP

FEB 22 0

THE MEDICAL SOCIETY OF NEW JERSEY;

and W.C., M.D.,

Pettttoners;s-——

Vs

BERNARD ROBINS, M.D., individually and in his official

capacity as President of the New Jersey State Board of Medical

Examiners; ELEANOR BERNSTEIN, individually and in her

official capacity as a Deputy Attorney General of the State of New

Jersey; THE NEW JERSEY BOARD OF MEDICAL

EXAMINERS; THE DIVISION OF CONSUMER AFFAIRS OF

THE NEW JERSEY DEPARTMENT OF LAW AND PUBLIC

SAFETY; THE DIVISION OF LAW OF THE NEW JERSEY

DEPARTMENT OF LAW AND PUBLIC SAFETY; THE NEW

JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY;

THE STATE OF NEW JERSEY; and "JOHN & JANE DOES 1-

20", whose real identities are at this time unknown to the plaintiffs,

Respondents.

On Petition For a Writ of Certiorari to

The Supreme Court of The State of New Jersey

BRIEF IN OPPOSITION

JOHN J. FARMER, JR.

ATTORNEY GENERAL OF NEW JERSEY

Richard J. Hughes Justice Complex

P.O. Box 112

Trenton, New Jersey 08625

(973) 648-4730

ANDREA M. SILKOWITZ

ASSISTANT ATTORNEY GENERAL

Counsel of Record

DOUGLAS J. HARPER

DEPUTY ATTORNEY GENERAL

On the Brief

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THE QUESTION PRESENTED FOR REVIEW

WHETHER CERTIORARI SHOULD BE DENIED

WHERE THE APPELLATE DIVISION CONCLUDED ON

THE PRINCIPLES ENUNCIATED BY THIS COURT IN

NEW YORK V. BURGER THAT THE NEW JERSEY

BOARD OF MEDICAL EXAMINERS, AFTER A FULL

EVIDENTIARY HEARING AND ACTING PURSUANT TO

A COMPREHENSIVE REGULATORY SCHEME WHICH

CLOSELY REGULATES THE PRACTICE OF MEDICINE,

PROPERLY ORDERED THAT A WARRANTLESS

ADMINISTRATIVE INSPECTION BE MADE OF A

LICENSEE'S OFFICE, INCLUDING DRAWERS AND

CABINETS WHERE OUTDATED MEDICATIONS MIGHT

BE STORED AND WHERE, PRIOR TO THE ORDERED

INSPECTION, LIMITED JUDICIAL REVIEW WAS

AFFORDED BY WAY OF STAY APPLICATION AND NO

PROPERTY DEPRIVATION WAS VISITED UPON THE

LICENSEE BY THE BOARD'S ACTION.

ii

TABLE OF CONTENTS

THE QUESTION PRESENTED FOR REVIEW ...... i

COUNTERSTATEMENT OF THE CASE ........

REASONS FOR DENYING THE WRIT ..........

THE CENTRAL CONSTITUTIONAL ISSUE IN

THIS CASE INVOLVED NOTHING MORE

THAN THE APPLICATION OF WELL

ESTABLISHED FOURTH AMENDMENT

PRECEDENT OF THIS COURT HOLDING THAT

WARRANTLESS ADMINISTRATIVE SEARCHES

MAY BE AUTHORIZED IN CLOSELY

REGULATED COMMERCIAL ACTIVITY

AFFECTING THE PUBLIC INTEREST. SINCE

THE APPELLATE DIVISION CLEARLY

APPLIED THE STANDARDS ARTICULATED IN

NEW YORK V. BURGER CORRECTLY AND

GIVEN THE FACTS PRESENTED, FURTHER

REVIEW BY THIS COURT IS NOT

WINGERS 6 jo sk xe + URED OR

COMNL ELAM «060s ced eben eae ree ernest 14

iii

TABLE OF AUTHORITIES

CASES CITED Page

Barry v. Barchi, 443 U.S. 55 (1979) ............. 8

Crane v. Hahlo, 258 U.S. 142 (1922) ............ 7

Crowe v. DeGioia, 90 N.J. 126 (1982) ........... 7

Den et al. v. Hoboken Land and Improvement Co.,18

ty BBR ye et...) a cr arr 7

Donovan v. Dewey, 452 U.S. 594 (1981) .......... 8

F.D.I.C. v. Mallen, 486 U.S. 230 (1988) .......... 8

Gilbert v. Homar, 520 U.S. 924 (1997) ........... 8

Griffin v. Wisconsin, 483 8 36. x, rene 11

Katz v. United States, 389 U.S. 347 (1967)......... 8

~ Marshall v. Barlow's, Inc., 436 U.S. 307 (ivra? ..< 8, da

New York v. Burger, 482 U.S. 691 (1987) ...... passim

Parrat v. Taylor, 451 U.S. 527 (1981)............ 7

Sampson v. Murray, 415 U.S. 62 (1973) .......... 7

Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602

RE a ws Pa Rien ee Se 11

iv

United States v. Ju Toy, 198 U.S. 253 (1905) ....... 7

Veronica School District 47 J. v. Acton, 515 U.S. 646

GOOG aa RAE I ee Ce ee 11

Virginia Petroleum Jobbers Association v. Federal Power

Commission, 259 F.2d 921 (D.C. Cir. 1958) ..... 7

Withrow v. Larkin, 421 U.S. 35 (1975) ........... 13

STATUTES CITED

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ADMINISTRATIVE REGULATIONS CITED

Pines See WN Sa hie ee 10

COUNTERSTATEMENT OF THE CASE

On June 26, 1997, the New Jersey State Board of Medical

Examiners (hereinafter "Board") directed that an inspection of

the office of W.C., a physician licensed by the Board, be

performed following its receipt and review of a patient

complaint which alleged that W.C. had dispensed outdated

prescription legend drug medications and had also failed to

issue a detailed report. For that conduct the Board issued.a

private letter cautioning that W.C.'s staff may be dispensing

outdated medications. (Ra3)!

On October 30, 1997, Board investigators went to W.C. 's

office during regular business hours, presented her with a

Demand for Inspection signed by a Deputy Attorney General

and began an inspection of the receptionist area After

. “Ra” refers to the appendix filed in the Superior Court,

Appellate Division, the proceeding below, on behalf of the respondents.

: The New Jersey Statutory provision upon which the Board's

inspection was predicated states in pertinent part:

Whenever it shall appear to any board, the director or the

Attorney General that a person has engaged in, or is engaging

in any act or practice declared unlawful by a statute or

regulation administered by such board, or when the board, the

director or the Attorney General shall deem it to be in the

public interest to inquire whether any such violation may exist,

the board or the director through the Attorney General, or the

Attorney General acting independently, may exercise any of the

following investigative powers:

™« ” ”

¢. Inspect any premises from which a licensed profession or

occupation is conducted:

d. Examine any goods, ware or item used in the rendition of

any professional or occupational service;

¢. Examine any record, book, document, account or paper

maintained by or for any professional or occupational

2

2

opening a single cabinet door, the investigator was told by

W.C. that, on advice of her counsel, cabinet doors and

drawers could not be opened. The door to the cabinet was

immediately closed by the investigator without observation as

to its contents. (Ra26, fn 11, 29) Upon advising W.C. that

the inspection could not be performed without access to

cabinets and drawers, W.C. telephoned her attorney who

advised the investigator that any inspection must be limited to

that which was in plain view within the office. The

investigators then performed a brief walk-through of the office

during which two (2) bottles of topical antiseptics or

Sterilizing solutions, Betadine and Cidex, containing

expiration dates of 1982 and September 1997 respectively,

were observed. (Ra29) No observations of patient files or

other office records were attempted or made. (Ra30)

On November 3, 1997, the Board, on the Attorney

General's complaint, ordered W.C. to show cause why she

should not be disciplined for failing to cooperate in the

Board's inspection. The complaint alleged that W.C.'s "plain

view" limitation and prohibition of full access to her office

violated a Board regulation requiring licensees to cooperate in

investigations by making their premises, records and related

goods available for inspection.

licensee in the regular course of practicing such profession

or engaging in such occupation .... [N.J.S.A. 45:1-18].

: The uniform regulation, adopted by all professional licensing

boards within the New Jersey Division of Consumer Affairs, provides in

pertinent part:

A licensee shall cooperate in any inquiry, inspection or

investigation conducted by, or on behalf of, a board ... into a

licensee's conduct .... A licensee's failure to cooperate, absent

good cause or bona fide claim of a privilege not identified in

N.J.A.C. 13:45C-1.5 as unavailable, may be deemed by the

board ... to constitute professional or occupational misconduct

within the meaning of N.J.S.A. 45:1-21(e) ... and thus subject

3

Following a full evidentiary hearing before the Roard in

which the petitioners advanced various constitutional and State

Statutory defenses, the Board issued a Final Decision and

Order dated December 25, 1997.4 The Board found that

W.C.'s refusal to permit inspection of her office records and

goods, including items contained in cabinets and drawers,

constituted a failure to permit an inspection and examination

Of premises, goods and records maintained in the regular

course of the practice of medicine and surgery, and, as such,

violated the Duty to Cooperate regulation and constituted

professional misconduct under State law. (N.J.S.A. 45:1-

21(e)). (Ra30) Based upon these findings the Board ordered

a licensee to disciplinary action pursuant to N.J.S.A. 45: 1-2] (h)

And further:

(a) The following conduct by a licensee may be deemed a

failure to cooperate and, therefore, professional or occupational

misconduct or other good cause or grounds for suspension or

revocation of licensure:

4. The failure ... to provide access to any premises from

which a licensed profession or occupation is conducted.

included within this paragraph shall be the failure to ... permit

the examination of any goods, ware or item used in the

rendition of the professional or occupational service and the

failure to grant access to records, books or other documents

utilized in the practice of the occupation or profession.

(N.J.A.C. 13:45C-1.3(a)4].

Violation of a Board regulation may subject a licensee to disciplinary

action under New Jersey's Uniform Enforcement Act (N.J.S.A. 45:1-

21(h)).

* Petitioner, Medical Society of New Jersey was permitted to

intervene and present limited legal arguments challenging the complaint.

4

a new inspection to be conducted not later than January 8 and ~

directed W.C. to fully cooperate in the inspection by

permitting access to:

. the books, records, documents, equipment and other

items in her office maintained for the practice of

medicine. The inspection shali include but not be

limited to items located in her drawers and cabinets of

the office. (emphasis added)

The Board's order further provided that items deemed

"personal" or which were subject to a good faith belief as

being within an attorney-client privilege could be withheld

upon identification to the Board. (Ra31) A civil penalty of

$1,000 was also imposed, payment of which was stayed

conditioned upon W.C.'s compliance with the ordered access.

No suspension of licensure was ordered, and the Board's

action was not reported to the National Practitioner's Data

Bank. (Ra30-31)

Prior to the date of the ordered inspection, petitioner

attacked the Board's order by filing a complaint in a State trial

court alleging violation of 42 U.S.C. §1983. (Pb7) On

transfer of that action to the Superior Court, Appellate

Division, petitioners sought a stay of the Board's order.

Within that application petitioners filed a brief in which

essentially the same constitutional arguments advanced here

were asserted and rejected by the Court. (Pbrf., Ral36, 7)

Interlocutory review of that decision was denied in the

Supreme Court of New Jersey.° A 20 minute inspection was

thereafter conducted on February 6, 1998 which disclosed no

additional outdated medications. (Pa6-7)

On June 2, 1999, the Superior Court, Appellate Division,

dismissed petitioners' appeal as moot for want of disciplinary

sanctions or civil penalty exaction given W.C.'s ultimate

* The District Court dismissed petitioners’ complaint for want of

jurisdiction.

5

compliance with the Board ordered inspection and the Board's

adoption of a new regulation prohibiting the maintenance of

outdated medications by licensees.° The Court also remanded

the matter to the trial court for further proceedings on

petitioners’ 42 U.S.C. §1983 complaint. In so holding, the

Court rejected the petitioners' central legal argument that the

Board's warrantless administrative inspection violated the

Fourth Amendment. It further concluded that the New Jersey

statutory provision, N.J.S.A. 45:1-18, in expressly

authorizing such inspections, when applied to the practice of

medicine, satisfied well established precedents of both this

Court and New Jersey courts, holding that in settings

involving closely regulated commercial activity, substantially

diminished privacy expectations are present such that given

compliance with the tests articulated by New York v. Burger,

482 U.S. 691 (1987), a judicial warrant is not required for

administrative inspections of closely regulated activities.

* The regulation was not in effect at the time of the inspection

(Pa3, fn3). The Board in its decision found that maintaining and

dispensing substantially outdated medications deviated from appropriate

standards of medical care. (Ral8, fn)

6

REASONS FOR DENYING THE WRIT

THE CENTRAL CONSTITUTIONAL ISSUE IN THIS

CASE INVOLVED NOTHING MORE THAN THE

APPLICATION OF WELL ESTABLISHED FOURTH

AMENDMENT PRECEDENT OF THIS COURT

HOLDING THAT WARRANTLESS ADMINISTRATIVE

SEARCHES MAY BE AUTHORIZED IN CLOSELY

REGULATED COMMERCIAL ACTIVITY AFFECTING

THE PUBLIC INTEREST. SINCE THE APPELLATE

DIVISION CLEARLY APPLIED THE STANDARDS

ARTICULATED IN NEW YORK VY. BURGER

CORRECTLY AND GIVEN THE FACTS PRESENTED,

FURTHER REVIEW BY THIS COURT IS NOT

WARRANTED. ;

Notwithstanding petitioners’ assertions to the contrary, a

review of the decision below discloses two simple and straight

forward holdings: (1) on the facts presented the matter was

moot under State law principles given the absence of any

license suspension or other property deprivation; and (2) the

Board's ordered inspection was constitutionally compliant

with this Court's holding in New York v. Burger, 482 U.S.

691 (1987). As to the former, the issue certainly is not one

for further review by this Court, and as to the latter, there

simply is no question concerning the correctness of the

Appellate Division's application of the controlling law as

announced in Burger.

It should be noted preliminarily that, contrary to the

repeated assertions that W.C. was unconstitutionally deprived

of a judicial hearing prior to the inspection of her office, the

facts plainly show that, on advice of counsel, she initially

restricted the inspection to open areas and items in "plain

view". Except for a fleeting momentary look which was

terminated on W.C.'s direction, no further inspection of

drawers or cabinets was undertaken until after the holding of

an evidentiary hearing by the Board and preliminary review

by the Appellate Division and the Supreme Court of New

7

Jersey by way of applications to Stay the Board's ordered

inspection.’

It is long established that due process is not necessarily

judicial process and that administrative proceedings may

afford the same due process as judicial proceedings. United

States v. Ju Toy, 198 U.S. 253 (1905); Crane v. Hahlo, 258

U.S. 142 (1922); Den et al. y. Hoboken Land and

Improvement Co., 18 How aa, 15 L.Ed. 372 (1856).

Accordingly, the assertion that a hearing was denied before an

opportunity to challenge the inspection is both factually and

legally devoid of merit.

More fundamentally, however, this Court has repeatedly

held that due process does not always require a predeprivation

hearing. Thus:

It is now well established that "'[dJue process,’ unlike

some legal rules, is not a technical conception with a

fixed content unrelated to time, place and

circumstances." (auth. omitted) "[D]ue process is

flexible and calls for such procedural protections as the

particular situation demands. (auth. omitted) This

i . 4

. (auth. omitted) Indeed, in Parrat

v. Taylor, 451 U.S. 527, 68 L.Ed.2d 420, 101 S.Ct.

” Within those applications petitioners submitted a brief asserting

essentially the sarne constitutional arguments asserted here The well-

established test for a stay requires that an application demonstrate (1) a

likelihood of success on the merits, (2) irreparable injury absent a stay, (3)

the probability of harm to others will not be greater than the harm the

movant will suffer absent a stay and (4) the public interest will not be

adversely affected by a stay. Sampson v. Murray, 415 U.S. 62 (1973);

Virginia Petroleum Jobbers Association v. Federal Power Commission,

259 F.2d 921 (D.C. Cir. 1958); Crowe v. DeGioia, 90 N.J. 126 (1982).

8

1908 (1981), ... we specifically noted that "we have

rejected the proposition that [due process] always

saul he S vid iaaal

initial deprivation of property. (auth. omitted) [Gilbert

v. Homar, 520 U.S. 924 (1997)}]

And see also F.D.I.C. v. Mallen, 486 U.S. 230 (1988); Barry

v. Barchi, 443 U.S. 55 (1979). Obviously, where acts or

practices within a physician's office imperil patient safety (as

here) or otherwise implicate important public health, safety or

welfare issues, the long established principle as restated in

Gilbert becomes operative. Accordingly, nothing novel or

important exists within the context of this case to justify

further review by this Court as to any claimed right as to a

predeprivation hearing.

Similarly, the conclusory assertion, without elaboration,

that the Appellate Division erred in applying Burger, affords

no basis for review. Initially, as noted by the court below,

this Court, for Fourth Amendment purposes, has explicitly

recognized a reduced expectation of privacy by the owner of

commercial premises in a closely regulated industry. Thus:

An expectation of privacy in commercial premises,

however, is different from, and indeed less than, a

similar expectation in an individual's home. See

Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S.Ct.

2534, 2537-38, 69 L.Ed.2d 262, 268-69 (1981). This

expectation is particularly attenuated in commercial

The Court observed in Marshall v. Barlow's, Inc.:

"Certain industries have such a history of government

oversight that no reasonable expectations of privacy, see

Katz v. United States, 389 U.S. 347, 351-52, [88 S.Ct.

507, 511-12, 19 L.Ed.2d 576] (1967), could exist for a

proprietor over the stock of such an enterprise." 436

U.S. 307, 313, 98 S.Ct. 1816, 1821, 56 L.Ed.2d 305,

312 (1978).

9

[New York v. Burger, supra, 482 U.S. at 700 (emphasis

added)]

Significantly, petitioners do not assert that the Burger

threshold prerequisite of a "closely regulated" activity is not

Satisfied. As the court below found, there can be no doubt

that the medical profession is highly regulated by virtue of

licensure, education and a plethora of other State regulatory

requirements. Moreover, there is nothing constitutionally

unique (nor do petitioners so assert) about a physician's office

for the purpose of applying the Burger test.*

Similarly, the three Prong test of Burger, given this

Satisfaction of the threshold requirement, is plainly met.°

* To the extent that patient confidentiality interests arise, the New

Jersey statutory scheme accommodates the same by affording

confidentiality to all information obtained during an investigation prior to

the filing of an administrative complaint. N.J.S.A. 45:9-19.3.

Given the presence of pervasively regulated activity, the Burger

test requires:

First, there must be a ‘substantial’ government

interest that informs the regulatory scheme pursuant

to which the inspection is made....

Second, the warrantless inspections must be

‘necessary to further (the) regulatory scheme’...

Finally, ‘the statute's inspection program, in terms

of the certainty and regularity of its application

[must] providfe] a constitutionally adequate

substitute for a warrant.’ (auth. omitted) In other

words, the regulatory statute must perform the two

basic functions of a warrant: it must advise the

owner of the commercial premises that a search is

being made pursuant to the law and has a properly

defined scope, and it must limit the discretion of the

inspecting officers. (auth. omitted) To perform this

function, the statute must be ‘sufficiently

10

Thus, there can be no question that the State has a substantial

governmental interest in regulating physicians to ensure the

providing of lawful, safe, proper and effective medical

services to the public. The State's "paramount" obligation to

protect the public's general health, is clear. Similarly, a

warrantless inspection is both necessary and rationally related

to the effective implementation of the regulatory scheme.

Prompt and unfettered office inspections and visitations are

obviously necessary to investigate complaints; to determine

cleanliness and safe operation (including the providing of

medications and the use of medical solutions within

presumptively safe and effective periods following

manufacture); to determine whether individuals are properly

licensed to provide regulated health care services; and to

determine whether any of a myriad of other unlawful acts

have occurred or may occur which directly implicate the

public's health, safety and welfare.

A warrant requirement would foreseeably impair prompt

investigative responses thereby inhibiting effective

enforcement activity. Given such considerations, and where,

as here, the protection afforded by a warrant would be

"negligible," this Court has held the Fourth Amendment's

warrant requirement to be inapplicable. New York v. Burger,

supra 482 U.S. at 710.

Finally, the statutory scheme as implemented by the

Board's Duty to Cooperate regulation (N.J.A.C. 13:45C 1.2,

1.3(a)(4)) and in this case, its Final Decision and Order,

clearly constitute an adequate substitute for a warrant. Thus,

comprehensive and defined that the owner of

commercial property cannot help but be aware that

his property will be subject to periodic inspections

undertaken for specific purposes. (auth. omitted) In

addition, in defining how a statute limits the

discretion of the inspectors ... it must be ‘carefully

limited in time, place, and scope.’ (auth. omitted)

[New York v. Burger, supra, 482 U.S. at 702-703]

1]

N.J.S.A. 45:1-18(c), (d) and (e) and the Board's regulation

put licensees on clear notice that State investigation by

inspection of premises and the examination of goods and

records used in the course of Practicing the licensed activity

may be expected where a violation of a statute or regulation

has occurred or where it may be in the public interest to

inquire whether such an unlawful act may exist. Since the

Statute when read on its face and, as applied by the Court

below, plainly passes constitutional muster under Burger and

given the absence of any articulated reason by petitioner to the

contrary, the decision below requires no further review by

this Court.

within the proceedings below. Most Clearly in this regard is

the assertion that the only setting in which the Constitution

does not compel a warrant is where Congress has determined

concomitantly heightened. New York v. Burger, supra 482

U.S. at 702. See also Veronica School District 47 J v.

Acton, 515 U.S. 646 (1995) (student drug testing as condition

for participation in athletics held "special need"): Skinner y.

Railway Labor Executives’ Ass n, 489 U.S. 602 (drug testing

for federal railroad employees held "special need") (1989):

Griffin v. Wisconsin, 483 U.S. 868 (1987) (search of

probationer's home authorized by state agency regulation held

"special need"). So too here. New Jersey's long established

regulatory scheme for the practice of medicine adopted by

Statute and administrative regulations implicate highly

regulated activity centered in licensure and ongoing oversight

in order to protect the public's health, safety and welfare.

12

The court's decision below in applying Burger recognizes this

principle and is completely consistent with the decisions of

this Court which have sustained warrantless searches.

Similarly, petitioners’ assertion that the holding in

Marshail v. Barlow's, Inc., 436 U.S. 307 (1978) dealt with a

"nearly identical" regulatory scheme to that involved here is

patently erroneous. In Marshall, unlike the focused statutory

enactment here which operates only within discreet regulated

professions and occupations, the federal act (OSHA) provided

for warrantless inspections of all businesses engaged in

interstate commerce. Further, pursuant to administrative

regulation, field inspections were authorized with local

inspectors empowered to determine what businesses were to

be inspected and when. The federal act did not, as here,

involve a single pervasively regulated industry, and

warrantless searches were found unreasonable primarily due

to the unbridled discretion vested in the field inspector.

No such parallel exists here. The New Jersey regulatory

scheme and the facts presented here reflect a statutory

requirement that reasonable suspicion be found by high level

state officials as a predicate for any inspection of a licensee's

premises (N.J.S.A. 45:1-18(c)). That is precisely what

occurred here, for when all is said and done, the primary

operative facts involve nothing more than the State's licensing

agency directing an inspection of a licensee's office after

receipt of a patient complaint indicating the dispensing of

outdated medications, later buttressed by investigator "plain

view" observations of two additional outdated antiseptic

substances in the licensee's office. This setting, as held by

the court below, entails precisely the type of special need

which this Court in Burger and its progeny have recognized

in sustaining warrantless administrative searches against

Fourth Amendment challenges. Accordingly, the narrow

exception urged by petitioners provides no basis for further

review by this Court.

Equally unavailing is the assertion of impropriety arising

from the Attorney General's performing both a prosecutorial

OO

13

and counseling function in the Board's disciplinary

proceeding. Initially, petitioner fails to point out that under

New Jersey statutes, the Attorney General is required to act

as the sole legal adviser to State administrative agencies and

to provide legal services in relation to litigation involving

such agencies. N.J.S.A. 52:17A-4(c), (e). Further,

petitioners neglect to advise the Court that separate deputy

attorneys general performed the counseling and advisory

functions in the Board proceeding and are subject to separate

and distinct supervisory lines of authority with internal

administrative safeguards in place to ensure independence and

separation in the performance of the respective functions.

Finally, of course, it is long established that the merger of

functions within State administrative agencies, absent a

showing of impropriety, does not per se effect a due process

deprivation and that State licensing boards are entitled to a

presumption of good faith when engaged in administrative

decision-making in disciplinary proceedings. Withrow v.

Larkin, 421 U.S. 35, 43, 55 L.Ed.2d 712, 728, 95 S.Ct.

1456, 1468 (1975). Nothing in the facts of this case or the

law established to date by this Court supports any claim of

impropriety sounding in merger of functions so as to warrant

further review here.

The assertion that the Board's directed and ordered

inspections were overbroad is also plainly without merit.

Each element of both the initial Demand for Inspection and

the Board's Final Order therefor was rationally related to a

legitimate investigative need. Thus, licenses on W.C.'s

premises would permit a determination of whether individuals

dispensing medications, outdated or otherwise, were properly

authorized by law to do so; records would identify who may

have received outdated medications, when, and why, and

what, if any, charges therefor were made; and access to

equipment maintained in the office would disclose where

outdated medications may have been stored. Petitioners’

assertions notwithstanding, the Board's Final Order explicitly

excepted from inspection any documents deemed confidential

or privileged and subjected such documents to further Board

14

scrutiny, (Ra31) which ultimately was unnecessary given the

brief and uneventful final inspection. In short, the claimed

overbreadth urged by petitioners as a basis for further review,

wholly apart from the absence of any cited prior authority of

this Court indicating Fourth Amendment impropriety, is

simply without factual support in the record below.

Accordingly, review by this Court is not warranted.

CONCLUSION

For the above stated reasons, it is respectfully submitted

that the petition for certiorari should be denied.

Respectfully submitted,

John J. Farmer, Jr.

Attorney General of New Jersey

Attorney for Respondents

By: Andrea M. Silkowitz

Assistant Attorney General

Dated: February 2, 2000