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Keywords

statutetestimonyregulationdue processcivil penalty
statuteappealappellantcivil penalty

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Matter of Heller, 73 N.J. 292, 374 A.2d 1191

Facts

Fred F. Heller, a registered pharmacist and president of Carfred, Inc., was charged with selling over 18,000 bottles of codeine-based cough syrup without proper medical justification, violating the standards for dispensing controlled substances. The Board of Pharmacy found that Heller's sales were excessive and conducted without proper professional judgment, leading to a civil penalty of $50,472. Heller maintained records of the sales and insisted on personal sales, but the Board concluded that he was guilty of grossly unprofessional conduct.

The Board of Pharmacy had issued a complaint charging that appellants, during a period between May 1973 and October 1974, sold improperly more than 18,000 four-ounce bottles of codeine-based cough syrup.

Issue

Was the revocation of the pharmacist's professional licenses for grossly unprofessional conduct valid, and was the imposition of a civil penalty a valid exercise of the Board's powers?

The appeal projects two basic issues: (1) Was the revocation of appellants' professional licenses for ‘grossly unprofessional conduct’ valid? (2) Was the imposition of a civil penalty in the amount of $50,472 a valid exercise of the Board's remedial powers in these circumstances?

Rule

The New Jersey State Board of Pharmacy can revoke a pharmacist's license for grossly unprofessional conduct, which is not limited to specific acts enumerated in the statute.

The last quoted statute empowers the Board to withhold, suspend or revoke a pharmacist's license for specific acts or conditions, including conviction of violating certain laws, chronic inebriety, drug addiction, adulteration of drugs, and incompetency.

Analysis

The court determined that Heller's conduct, characterized by the excessive sale of a controlled substance without legitimate medical purpose, fell under the definition of grossly unprofessional conduct. The Board's findings were supported by substantial evidence, including testimony from other pharmacists regarding the appropriateness of Heller's sales practices. The court rejected Heller's argument that his actions did not violate any specific statute or regulation.

The Board adjudged appellants guilty of all charges and entered an order revoking the permit of Heller Pharmacy to conduct a pharmacy and the certificate of Heller to practice pharmacy. It further ordered: That Heller Pharmacy and Fred Heller R.P., are herewith and hereby assessed a civil penalty in the amount of $50,472, which amount is equal to the minimum amount of unjust profit derived by Fred Heller, R.P., by means of grossly unprofessional conduct.

Conclusion

The court upheld the revocation of Heller's pharmacy license and certificate but modified the imposition of the civil penalty due to due process concerns.

Judgment modified and affirmed.

Who won?

The New Jersey State Board of Pharmacy prevailed in the case as the court affirmed the revocation of Heller's licenses based on his grossly unprofessional conduct.

The Board argues that to adequately fulfill its assigned task, it must be allowed to suspend or revoke a pharmacist's license, where the continuation of his practice poses a threat to the public health and especially where, as here, his conduct appears to be considerably more egregious than conduct specifically proscribed by N.J.S.A. 45:14—12 (a)—(f).

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