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In re Suspension or Revocation of Certificate of Fred F. Heller

Decided: December 22, 1975.

IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE CERTIFICATE OF FRED F. HELLER, R.P. TO PRACTICE PHARMACY IN THE STATE OF NEW JERSEY; AND OF THE PERMIT OF CARFRED, INC.; T/A HELLER PHARMACY TO CONDUCT A PHARMACY IN THE STATE OF NEW JERSEY


Halpern, Crane and Michels. Crane, J.A.D. (dissenting in part and concurring in part).

Per Curiam

[150 NJSuper Page 26] The New Jersey State Board of Pharmacy (Board) filed a detailed five-count complaint against appellant Fred F. Heller, a licensed and registered pharmacist of this State, and Carfred, Inc., t/a Heller Pharmacy, which possessed a permit to operate a pharmacy. The thrust of the complaint was that appellants were guilty of grossly unprofessional conduct, in violation of N.J.S.A. 45:14-12. Following a hearing before the Board, at which appellant did not testify, the Board revoked Heller's license to practice pharmacy and Carfred, Inc.'s permit to operate a pharmacy. In addition, a civil penalty of $50,427 was imposed against appellants.

In seeking to reverse the Board's determinations, appellants raise the following four points in their brief:

Point I: The Board of Pharmacy's imposition of a civil penalty of $50,427.00 was manifestly arbitrary and capricious and a denial of due process of law.

Point II: There is no authority to justify the finding of unprofessional conduct by the Board.

Point III: Appellant, Fred Heller, did not violate any known or existing statutes or regulations concerning the dispensation of cough preparations.

Point IV: Appellant was denied a fair hearing due to the use of non-expert testimony to establish a standard of professional conduct.

The scope of our judicial review involving an appeal from the Board's determination is the same as that used for other administrative agencies. Thus, where an administrative agency has acted within its authority its actions will not be reversed, absent an affirmative showing that its judgment was arbitrary, capricious or unreasonable. Supermarkets General Corp. v. Sills , 93 N.J. Super. 326, 350 (Ch. Div. 1966); East Paterson v. Civil Service , 47 N.J. Super. 55, 65 (App. Div. 1957). Our goal is to determine whether the Board's findings are supported by substantial credible evidence. Maple Hill Farms, Inc. v. Div. of N.J. Real Estate Commission , 67 N.J. Super. 223, 226-227 (App. Div. 1961).

Appellants' contentions are interlaced with the argument that they violated no known statute or Board regulation with respect to how and to whom they sold cough syrups containing codeine, classified as a schedule V controlled dangerous substance. They assert that even though they sold about 18,600 bottles of such preparations within a period of about 17 1/2 months, they were not guilty of grossly unprofessional conduct. They take too narrow a view on this issue.

In determining standards fixed by statute or regulation we are not confined to specific terms; rather, we look at the statutory policy sought to be achieved by examining the

entire statutory enactment and decide whether the standards may be reasonably implied therefrom. See Securities Exchange Comm'n v. Chenery Corp. , 332 U.S. 194, 202, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947); R.H. Macy & Co. v. Div. of Taxation , 77 N.J. Super. 155 (App. Div. 1962); Mitchell v. Cavicchia , 29 N.J. Super. 11 (App. Div. 1953). This is particularly true of the pharmacy profession in whom the Legislature reposed great confidence and reliance to protect the public's health. Supermarkets General Corp., supra 93 N.J. Super. at 338. That which is implied is as much a part of the law as that which is expressed. As indicated by Justice Jacobs in Ward v. Scott , 11 N.J. 117, 123-124 (1952), "But the exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulatory enactments under the police power." See also, Goodley v. N.J. Real Estate Comm. , 29 N.J. Super. 178 (App. Div. 1954); Berardi v. Rutter , 42 N.J. Super. 39 (App. Div. 1956); Banking Comm'r v. Parkwood Co. , 98 N.J. Super. 263, 273 (App. Div. 1967); Humane Soc. of U.S., N.J. Branch, Inc. v. N.J. State Fish and Game Council , 129 N.J. Super. 239 (Ch. 1974); Cherry Hill Tp. v. N.J. Racing Comm'n , 131 N.J. Super. 125 (Law Div. 1974) aff'd 131 N.J. Super. 482 (App. Div. 1975). Justice Mountain enunciated the same principle in N.J. Builders, Owners and Managers Assn. v. Blair , 60 N.J. 330, 338 (1972), thusly: "Where a literal rendering will lead to a result not in accord with the essential purpose and design of the act, the spirit of the law will control the letter. This doctrine permeates our case law."

In short, where the Legislature has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy, the relation of the remedy to the policy is peculiarly a matter for administrative competence. American Power Co. v. S.E.C. , 329 U.S. 90, 112, 67 S. Ct. 133, 91 L. Ed. ...


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