"Gross Immorality" Provision in Pharmacy Practice Act

ISSUE OF THE CASE

When a pharmacist is charged with engaging in truly outlandish behavior while in the pharmacy and the board of pharmacy takes steps to penalize the pharmacist under the “gross immorality” standard in state law, will the pharmacist prevail when he or she challenges that descriptive standard of behavior as being impermissibly vague?

FACTS OF THE CASE

An official of the state board of pharmacy in a midwestern state was told that a national pharmacy chain had terminated the employment of a relief pharmacist for improperly touching another employee. That information led to an investigation and an administrative hearing regarding the incident.

The facts of the situation were described by the board as follows: A female shift supervisor for the pharmacy chain was in the office to perform administrative duties while a male pharmacist closed up the prescription department for the evening. The pharmacist approached the supervisor from behind and placed the pharmacy key beside her. He then put one hand on her shoulder and used his other hand to unbutton one of her shirt buttons. He slid a hand under her bra and touched her breasts. After he stopped, she asked whether his wife knew he was a “dirty old man” and reminded him that he was on camera. She testified that she never had a consensual sexual relationship with him.

The board investigator obtained copies of the written statements given by both the pharmacist and the supervisor to chain management. The pharmacist had written that he felt the supervisor was “stressed,” so he gave her a back and neck massage. He wrote that she “turned and to me seemed to invite breast massage.… I thought she was okay with touching of her breast.”

When confronted with the wording of what he had written, the pharmacist indicated that it was not what he had intended to say. He denied touching her breast and claimed that if he did it was only by accident.

At the hearing, the investigator presented the video footage of the incident provided by the chain. In his testimony the investigator stated that the video clip was, in his opinion, consistent with the supervisor’s statement. Whereas the pharmacist maintained that the supervisor had turned in her swivel chair to cause the touching the investigator observed, the video showed that at no time did the supervisor turn in the chair and place the pharmacist in a position to accidentally brush her breast.

The pharmacist was given a subpoena to appear at the board administrative hearing but invoked his Fifth Amendment right against self-incrimination when questioned about the incident.

At the conclusion of the hearing, the board reached 4 conclusions: (1) the pharmacist was indeed licensed in the state and subject to the jurisdiction of the board; (2) he had fondled the breast of a fellow employee; (3) he had lied to a representative of the board conducting the investigation; and (4) he had failed to cooperate with the investigation and divulge relevant information upon request. The board then concluded that (2), (3), and (4), taken together, meant he was guilty of gross immorality and unprofessional conduct. The board imposed a fine of $6500 and suspended the pharmacist’s license indefinitely.

The pharmacist appealed that decision for court review and the court ruled that there was sufficient evidence to support (2) but not (3) or (4). The court also concluded that the maximum fine the board could impose under its relevant authority was $500. The court sent the matter back to the board.

The board affirmed its earlier conclusion that the pharmacist’s conduct constituted gross immorality and unprofessional conduct. It imposed a $500 fine and again indefinitely suspended his license. The pharmacist again appealed this result of the administrative process to the state court of appeals.

THE COURT’S RULING

Differing with the lower court, the appellate court concluded that the “gross immorality” standard in the pharmacy practice act was not vague.

THE COURT’S REASONING

The appellate court ruled that the clear meaning of the phrase “gross immorality” could be ascertained from a dictionary. The phrase meant this to the appellate court: “conduct that goes flagrantly beyond accepted standards of what is right or just in behavior or is unmitigated in any way.” To the court the behavior might have been mitigated if it had been explicitly or implicitly invited, but that did not occur here.

The court emphasized that “When analyzing a statute, we first examine its plain language and apply the statute as written when the meaning is clear and unambiguous.” If a statutory term has not been given a specific definition by the legislature, then “it should be accorded its plain and ordinary meaning.” Moreover, the board’s “failure to define gross immorality in its decision does not render its gross immorality finding unsupported by reliable, probative, and substantial evidence.”

Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.