On appeal from the Superior Court, Law Division, Burlington County.
Furman, Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
The New Jersey Board of Pharmacy appeals from a Law Division order quashing a subpoena by which it sought to obtain prescriptions and patient records in connection with its investigation of improper practices by plaintiffs, Sidney Greenblatt and Stiles Pharmacy, Inc. Plaintiffs have cross-appealed from that portion of the decision upholding the constitutionality of the challenged statutes.
On November 28, 1983 the Attorney General, on behalf of the Board of Pharmacy, served a subpoena duces tecum on Sidney Greenblatt, proprietor of the Stiles Pharmacy in Moorestown, demanding that Greenblatt appear before the Board in Newark on December 6, 1983 with 28 original prescriptions and 11 patient profile cards.
Greenblatt disregarded the subpoena, and in January 1984 he and the pharmacy filed a complaint in the Law Division seeking an order to show cause to quash the subpoena on the ground that it failed to disclose required information regarding its purpose and if complied with would disrupt business and endanger patients. In its answer the Board asserted that the subpoena "was properly served, and is valid and authorized in all respects. . . ." On motion the New Jersey Pharmaceutical Association was permitted to appear in the action as amicus curiae.
After oral argument, the Law Division issued a written opinion rejecting plaintiffs' attack on the constitutionality of the statutes, but accepting plaintiffs' position that the Board in pursuing the records acted illegally. The Board moved to alter
or amend the decision; however, the court entered a final order quashing the subpoena on December 19, 1984.
The Law Division Judge did not assess the validity of the subpoena itself. Rather, he stressed what he found to be the Board's violation of the copying requirement of N.J.S.A. 45:14-15, which allows the Board to seize original prescriptions during inspections. The Board, however, relied on the specific subpoena power granted by N.J.S.A. 45:1-18. The judge appears to have engrafted the elements of N.J.S.A. 45:14-15 onto N.J.S.A. 45:1-18.
N.J.S.A. 45:14-15 is a section of the act regulating the pharmacy profession in New Jersey. N.J.S.A. 45:14-1 et seq. That section, dating from 1933, declares a pharmacist's duties with respect to numbering and filing original prescriptions and confers upon the Board the power to take prescriptions from the premises as long as copies are left with the pharmacist:
It was under this section that the Board claims to have acted during an earlier inspection on November 23, 1983, asserting it offered to leave copies of the prescriptions, but that Greenblatt nonetheless refused to turn them over. Because of this resistance a subpoena was served on Greenblatt five days later, under authority of N.J.S.A. 45:1-18, a part of the Uniform Enforcement Act. N.J.S.A. 45:1-14 et seq. This act, adopted in 1978, created uniform disciplinary, investigative, and enforcement procedures for the various professional boards, including the Board of Pharmacy, within the Division of Consumer Affairs. N.J.S.A. 45:1-14. The Senate committee's statement declared:
. . . The act is deemed remedial, and does not alter any prior statutory enactments except those dealing with the substantive areas of investigative and enforcement powers and the bases for disciplinary action. Prior law is repealed and superseded only to the extent that it is inconsistent with the terms of this act. [ Senate Labor, Industry ...