On appeal from the State of New Jersey, Department of Law and Public Safety, Division of Consumer Affairs, State Board of Pharmacy.
Shebell, Gaynor and Arnold M. Stein. The opinion of the court was delivered by Arnold M. Stein, J.s.c. (temporarily assigned).
Timothy Brophy, the resident pharmacist at the CVS Pharmacy on Hamburg Turnpike in Wayne, was found by the State Board of Pharmacy to have committed an act of grossly unprofessional conduct, in violation of N.J.S.A. 45:14-12f. The Board imposed a penalty of $500. We reverse and find that subsection f is unconstitutional in that it fails to satisfy due process of law requirements in two respects: it does not fulfill the purpose of serving the public health, safety or welfare, and it is void for vagueness.
We recognize our obligation to avoid constitutional issues where a case can be decided on other grounds. Donadio v. Cunningham, 58 N.J. 309, 325-326 (1971). After a thorough
review of the record, we conclude that there is no other basis upon which this appeal can be resolved.
In March 1985, CVS distributed mail circulars advertising that from Saturday, March 23 through Saturday, March 30, 1985, thirty-day supplies of all prescriptions, with certain specified exceptions, would be offered for sale at both of its Wayne stores for a flat price of $3. Thereafter, in a penalty letter dated July 15, 1985, Brophy was charged with violating N.J.S.A. 45:14-12f in the following manner:
Advertisement of Discounts to persons under 62 years of age, (The distribution of premiums or rebates of any kind whatever in connection with the sale of drugs and medications) -- $500.00
Following a hearing, Brophy was found guilty. At the hearing, Brophy testified that he was the pharmacist-in-charge of the Hamburg Turnpike CVS store during the week of the $3 prescription offering; that the decision to run the advertisement was not made by him, but was a CVS corporate level decision; and that $3 is not the customary price for most prescriptions; in fact, for certain drugs, this price was less than the pharmacy's acquisition cost.
N.J.S.A. 45:14-12 provides in pertinent part that
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.
N.J.A.C. 13:39-8.14b14 makes the pharmacist-in-charge responsible for any advertising utilized by the pharmacy.
It appears that CVS is offering up Brophy as the vehicle for making an assault upon the constitutionality of N.J.S.A. 45:14-12f. Our Supreme Court has expressed its distaste at this procedure of risking penal sanction rather than testing a ...