Bernstein v. Allen

26 A.D.2d 727, 271 N.Y.S.2d 935, 1966 N.Y. App. Div. LEXIS 3626

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 1966
• Status: Published

Opinion

Staley, Jr., J.

In this article 78 proceeding the petitioner seeks review of a determination of the Board of Regents which suspended petitioner’s license to practice pharmacy for a period of one year. Petitioner was charged with willful or repeated violations of the provisions of the Education Law relating to pharmacy, and of the rules duly promulgated thereunder, within the purview and meaning of section 6804 (subd. 1 par. [i]) of the Education Law. Petitioner was a supervising pharmacist employed by the corporate owner of a retail pharmacy in which he was one-half owner and secretary of the corporation. It is conceded that, during the period of less than a year, an unlicensed employee of the corporation was responsible for a substantial number of violations of the law and rules promulgated thereunder consisting mainly of selling prescription-required drugs without prescriptions, which drugs were also misbranded. It is petitioner’s contention that, although as supervising pharmacist, he was technically responsible for the acts of the employees of the pharmacy, nevertheless, since he was not present when the violations took place, and had no knowledge of them, he should not have been disciplined. However, it is clear that, if petitioner had properly performed the duties of his position, he should have been apprised of the improper activity of the pharmacy and its employees which even the prescription records disclosed. The record substantially supports the finding that petitioner had knowledge of the violations, and that he failed to exercise his responsibility of supervision over the activities of the employees of the pharmacy. Determination confirmed, without costs. Gibson, P. J., Herlihy, Reynolds and Taylor, JJ., concur.