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DESMOND BROWN v. COMMONWEALTH PENNSYLVANIA (11/27/89)

decided: November 27, 1989.

DESMOND BROWN, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF PHARMACY, RESPONDENT



PETITION FOR REVIEW (STATE BOARD OF PHARMACY).

COUNSEL

James R. Protasio, Marcello & Lepley, Williamsport, for petitioner.

Alexandra J. Matthews, Velma A. Boozer, Chief Counsel, Dept. of State, Joyce McKeever, Chief Counsel, Bureau of Professional & Occupational Affairs, Harrisburg, for respondent.

Doyle and Smith, JJ., and Barbieri, Senior Judge. Doyle, Judge, concurring and dissenting.

Author: Smith

[ 129 Pa. Commw. Page 644]

Desmond Brown (Petitioner) appeals an order of the State Board of Pharmacy (Board) denying a hearing on his petition for reinstatement of license to practice pharmacy and giving notice that pursuant to Section 5(d) of the Pharmacy Act*fn1 Petitioner could not apply again for reinstatement until October of 1995. This Court reverses the order of the Board.

Petitioner was licensed to practice pharmacy until December 16, 1985, at which time his license was automatically suspended by the Board following Petitioner's conviction on October 23, 1985 of five felonies under The Controlled Substance, Drug, Device and Cosmetic Act*fn2 (Drug Act). The Board's suspension was predicated upon Section 5.1 of the Pharmacy Act*fn3 which provides for the automatic suspension of a license following a licensee's conviction under the Drug Act.

[ 129 Pa. Commw. Page 645]

Several days after the Board issued its notice of suspension, the General Assembly enacted legislation amending the Pharmacy Act by adding Section 5(d)*fn4 which states that:

Any person whose license, certificate or registration has been suspended or revoked because of a felony conviction under the act of April 14, 1972 (P.L. 233, No. 64), known as 'The Controlled Substance, Drug, Device and Cosmetic Act,' . . . may apply for reinstatement after a period of at least ten years has elapsed from the date of conviction.

Section 5(d) became effective January 1, 1986, twelve days after Petitioner received actual notice of his suspension. On October 6, 1988, Petitioner filed a petition for reinstatement of license in which he requested a hearing. The Board denied the petition relying upon Section 5(d) and further notified Petitioner that Section 5(d) prohibited the Board from even considering an application for reinstatement until ten years after the date of his conviction.

I

Several issues are presented on review of the Board's order:*fn5 (1) whether Petitioner has any property rights in his suspended license; (2) whether the Board's reliance on Section 5(d) of the Pharmacy Act was a retroactive application since Petitioner's conviction and suspension preceded the effective date of Section 5(d); and, if so, (3) whether Section 5(d) impacts merely procedural matters or affects Petitioner's substantive rights thus making the Pharmacy Act's retroactive application impermissible.*fn6

[ 129 Pa. Commw. Page 646]

Undoubtedly, the holder of a valid and existing professional license has a property interest in such license. "[T]he right to practice a profession, once acquired, does constitute a property right in the license." Brady v. State Board of Chiropractic Examiners, 79 Pa. Commonwealth Ct. 608, 613, 471 A.2d 572, 575, appeal dismissed, 506 Pa. 83, 483 A.2d 1376 (1984). Once that license has been revoked, however, "through a procedure consistent with the individual's due process guarantees, that individual is stripped of whatever property interest he possessed in the license." Keeley v. State Real Estate Commission, 93 Pa. Commonwealth Ct. 291, 296, 501 A.2d ...


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