Brown v. Com., State Bd. of Pharmacy ( 1989 )

SMITH, Judge.

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 Act¹ 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 Act² (Drug Act). The Board’s suspension was predicated upon Section 5.1 of the Pharmacy Act³ which provides for the automatic suspension of a license following a licensee’s conviction under the Drug Act.

Several days after the Board issued its notice of suspension, the General Assembly enacted legislation amending the Pharmacy Act by adding Section 5(d)⁴ 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 order⁵: (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.⁶

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 1155, 1158 (1985). Petitioner’s license was not revoked, but suspended, and thus the nature of his interest is not so clearly defined. A suspension of right is defined as:

“[t]he act by which a party is deprived of the exercise of his right for a time. A temporary stop of a right, a partial extinguishment for a time, as contrasted with a complete extinguishment, where the right is absolutely dead---- It differs from extinguishment because a suspended right is susceptible of being revived which is not the case where the right was extinguished.”

Black’s Law Dictionary 1297 (5th ed.1979). Insofar as Petitioner’s suspended license was susceptible to revival, this Court finds that he still possessed a property right entitled to due process protection.

II

It is then necessary to determine whether the Board’s reliance on Section 5(d) in its order denying Petitioner a hearing constituted retroactive application of the legislation. The Board argues that the fact that Petitioner applied for reinstatement after the effective date of the legislation made his petition subject to the ten-year limitation of Section 5(d), while Petitioner maintains that the date of his suspension is the relevant date and thus Section 5(d) should not apply. This Court has previously held that “[ujnder the Pharmacy Act, the event which results in the automatic suspension of Petitioner’s license ... is his ‘conviction' of felonies under the Drug Act----” Morris v. Pennsylvania State Board of Pharmacy, 113 Pa.Commonwealth Ct. 318, 322, 537 A.2d 93, 95 (1988). In Morris, petitioner argued that the date he committed the crimes (that date being prior to January 1, 1986) was the relevant date. This Court rejected Morris’ argument holding that his commission of the felonies “was merely an antecedent act, albeit of course an important one, which put the chain of events in motion.” Id.

The same analysis employed in Morris is applicable here. Petitioner’s conviction was the event that triggered his automatic suspension under Section 5.1 of the Pharmacy Act; however, it was the actual suspension of his license which triggered Section 5(d) imposing the ten-year waiting period for reinstatement. Therefore, the Board’s reliance upon Section 5(d), which was not effective until twelve days after suspension, did constitute retroactive application.

A statute shall not be construed to be retroactive “unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. § 1926 (1989-90). “[Retrospective laws which have been deemed reasonable are those which ‘impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted.’ ” Krenzelak v. Krenzelak, 503 Pa. 373, 382-383, 469 A.2d 987, 991 (1983) (quoting Barnesboro Borough v. Speice, 40 Pa.Superior Ct. 609, 612 (1909)). Thus, retroactive application of legislation is not constitutionally objectionable when a statutory amendment involves a merely procedural change. Lang v. County of Delaware, 88 Pa. Commonwealth Ct. 452, 490 A.2d 20 (1985). As noted by this Court in Bortulin v. Harley-Davidson Motor Co., Inc., 115 Pa.Commonwealth Ct. 42, 539 A.2d 906, appeal denied, 521 Pa. 606, 555 A.2d 116 (1988):

In determining whether a particular statute is to be given retroactive effect, the Pennsylvania Supreme Court has distinguished between statutes which impact upon procedural matters and those which affect a party’s substantive rights. In Bell v. Koppers Co., Inc., 481 Pa. 454, 392 A.2d 1380 (1978), the Supreme Court concluded that when a party’s substantive rights are involved, the law which was in effect at the time the cause of action arose must be applied. In contrast, procedural rules are applicable to actions instituted after the effective date of the rules.

Id., 115 Pa.Commonwealth Ct. at 47, 539 A.2d at 909.⁷

III

The Board correctly argues that Petitioner cannot claim a due process right to a hearing unless he can show that he had a legitimate and identifiable claim of entitlement to that hearing. Pennsylvania Interscholastic Athletic Association v. Greater Johnstown School District, 76 Pa.Commonwealth Ct. 65, 463 A.2d 1198 (1983). Prior to the enactment of the ten-year limitation of Section 5(d), the Pharmacy Act was silent as to the length of any suspension for a drug-related conviction. The Board interprets this silence in the prior legislation to mean that Petitioner had no right to a hearing for reinstatement and in fact argues that when Section 5(d) became effective, he gained a substantive right. The right gained, according to the Board, was the “substantive right to petition for reinstatement pursuant to certain objective criteria, by and through Section 5(d) of the Pharmacy Act____” Respondent’s Brief, p. 8.

The argument presented by the Board is inconsistent. If the Board concedes that Petitioner has a substantive right under Section 5(d) to petition for reinstatement after ten years, it does not logically follow that he enjoyed no rights under the prior legislation which allowed Petitioner to petition for rehearing at any time. This Court finds that rather than granting new rights, the result of Section 5(d) was to burden previously existing substantive rights. “[W]hen substantive rights are involved, the applicable law must be that which is in effect at the time the cause of action arises.” Bell v. Koppers Co., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978). Insofar as Section 5(d) of the Pharmacy Act impaired Petitioner’s right to petition the Board for revival or reinstatement of his license, this Court finds that its retroactive application was unconstitutional.

Accordingly, the order of the Board denying Petitioner a hearing on his petition for reinstatement is reversed.

ORDER

AND NOW, this 27th day of November, 1989, the order of the State Board of Pharmacy is reversed.

1 . Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. §§ 390-1 to 390-13.

2 . Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 to 780-144.

3 . Added by Section 2 of the Act of May 2, 1985, P.L. 26, repealed and reenacted as Section 7(d.2) by Section 7 of the Act of December 20, 1985, P.L. 433, 63 P.S. § 390-7(d.2).

4 . Added by Section 4 of the Act of December 20, 1985, P.L. 433, 63 P.S. § 390-5(d).

5 . This Court’s scope of review is limited to determining whether constitutional rights have been violated, an error of law committed, or necessary findings of fact were supported by substantial evidence. DePanfilis v. State Board of Pharmacy, 121 Pa.Commonwealth Ct. 526, 551 A.2d 344 (1988).

6 . Petitioner argues that Section 5(d) is penal in nature and that application of its provisions to his case constitutes a violation of the ex post facto clause of the Pennsylvania Constitution, Article I, Section 17. Insofar as Section 5(d) addresses reinstatement procedures as opposed to suspension procedures, it is regulatory in nature and not penal, its purpose being the regulation of those who practice pharmacology in the Commonwealth. Galena v. Department of State Professional & Occupational Affairs, 122 Pa.Commonwealth Ct. 315, 551 A.2d 676 (1988).

7 . Substantive law is defined as: "[T]hat which creates duties, rights and obligations, while 'procedural or remedial law’ prescribes methods of enforcement of rights or obtaining redress____’’ Black’s Law Dictionary 1281 (5th ed.1979).