{ "id": 3400612, "name": "OSCO DRUG, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellant", "name_abbreviation": "Osco Drug, Inc. v. Department of Registration & Education", "decision_date": "1977-11-07", "docket_number": "No. 76-1571", "first_page": "936", "last_page": "943", "citations": [ { "type": "official", "cite": "54 Ill. App. 3d 936" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "319 N.E.2d 34", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953913 ], "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0284-01" ] }, { "cite": "45 Ariz. 143", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 5077308 ], "weight": 4, "pin_cites": [ { "page": "154" }, { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/ariz/45/0143-01" ] }, { "cite": "118 So. 2d 781", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9895740 ], "weight": 2, "year": 1935, "pin_cites": [ { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/so2d/118/0781-01" ] }, { "cite": "51 A.2d 239", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1960, "opinion_index": 0 }, { "cite": "135 N.J.L. 282", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 143363 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/njl/135/0282-01" ] }, { "cite": "48 A. 2d 199", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1947, "opinion_index": 0 }, { "cite": "134 N.J.L. 381", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 141274 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/njl/134/0381-01" ] }, { "cite": "58 N.E. 906", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "188 Ill. 243", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3234101 ], "opinion_index": 0, "case_paths": [ "/ill/188/0243-01" ] }, { "cite": "58 N.E. 616", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1900, "opinion_index": 0 }, { "cite": "187 Ill. 587", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3231459 ], "year": 1900, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/ill/187/0587-01" ] }, { "cite": "10 N.E.2d 961", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "367 Ill. 217", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2575203 ], "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/ill/367/0217-01" ] }, { "cite": "150 N.E.2d 832", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2769394 ], "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0126-01" ] }, { "cite": "353 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 249", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2489082 ], "year": 1958, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0249-01" ] }, { "cite": "88 N.E.2d 29", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "404 Ill. 117", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5307330 ], "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill/404/0117-01" ] } ], "analysis": { "cardinality": 726, "char_count": 16793, "ocr_confidence": 0.893, "pagerank": { "raw": 9.23948272833992e-08, "percentile": 0.5109280502454004 }, "sha256": "d4d97d9fb636709abaec68721bed8ffcac24e73c50abee7ad96556bf1bcac22e", "simhash": "1:11a5547d78ad7fa9", "word_count": 2677 }, "last_updated": "2023-07-14T21:56:34.806209+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "OSCO DRUG, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nOseo Drug, Inc. (plaintiff), filed an amended complaint for declaratory judgment and injunctional relief against the Illinois Department of Registration and Education (defendant). The amended complaint involved construction of the Pharmacy Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 55.1 et seq.), regarding whether plaintiff was required to have a registered pharmacist present for a majority of the hours that its stores were open to the public. Defendant filed a motion for judgment on the pleadings. Plaintiff filed a motion for summary judgment. After a hearing the trial court entered a judgment order granting plaintiff the relief prayed. Defendant has appealed.\nIn. our opinion, no factual issue is presented by this record. Both parties have in effect treated the allegations of the amended complaint as true for purposes of this litigation. The sole legal issue involved is construction of the applicable portions of the Pharmacy Practice Act.\nIn the amended complaint, plaintiff alleged that it operates many stores in the State of Illinois. These stores are often open for exceedingly long and extraordinary hours. Some of them are operated in conjunction with Jewel Food Stores. Plaintiff is engaged in the practice of pharmacy in that drugs and medicines are compounded and dispensed pursuant to physicians\u2019 prescriptions. In all cases, these activities are conducted in a segregated and limited area of plaintiff\u2019s stores. These areas are accessible to the public only during certain designated hours regardless of business being carried on in other portions of the store. These areas are not always open for a majority of hours during each day that an entire store functions. Plaintiff\u2019s stores also sell many products, such as cosmetics, books and miscellaneous sundries unrelated to the practice of pharmacy.\nDefendant notified plaintiff to have its pharmacy open in each of its stores for a majority of the hours of each day during which the entire store was open. Plaintiff sought a declaration of right regarding compliance with this requirement and the consequent necessity of attendance of a registered or assistant pharmacist.\nThe trial court found that plaintiff is engaged both in the practice of pharmacy and in a general retail business \u201cinvolving the sale of numerous products unrelated to the practice of pharmacy.\u201d The court found that the Pharmacy Practice Act was intended solely \u201cto regulate the practice of pharmacy.\u201d The court construed the pertinent statute as requiring the presence of a registered pharmacist only for a majority of hours during which plaintiff\u2019s stores practice pharmacy and either a registered pharmacist or assistant registered pharmacist for the remaining hours of such practice.\nIn this court, defendant contends that the terms \u201cpharmacy\u201d and \u201cdrugstore\u201d as used in the statute refer to an entire store and are not limited to the prescription counter; the statute requires the presence of a registered pharmacist for the majority of hours plaintifFs entire stores are open to the public, and that such a requirement is not unconstitutional. Plaintiff responds that defendant\u2019s analysis of the term \u201cpharmacy\u201d is irrelevant because the statute monitors only the hours of actual pharmacy practice; the statute applies solely when the practice of pharmacy is being carried on and interpreting the statute to require the presence of a pharmacist for a majority of the hours plaintifFs stores are open would impose unconstitutional restrictions.\nThe portion of the statute applicable here (Ill. Rev. Stat. 1975, ch. 91, par. 55.8), provides in pertinent part:\n\u201cIt shall be unlawful for the owner of any drugstore, shop or other place in this State, defined in this Act as \u2018a pharmacy\u2019 or as \u2018a drug store\u2019, to operate or conduct the same, or to allow the same to be operated or conducted, unless:\n(a) there is in charge thereof and present therein a registered pharmacist in good standing in this State during at least the majority of hours of each day that the same shall be open to the public; and there is in charge thereof and present therein, during the remainder of the hours of each day during which the practice of pharmacy shall be carried on therein, either a registered pharmacist or a registered assistant pharmacist in good standing in this State;\n(b) at all times when the practice of pharmacy is carried on therein, such practice of pharmacy shall be carried on only by a person or persons then authorized to practice pharmacy in this State under the provisions of this Act; \u201d \u00b0\nThe essence of defendant\u2019s argument is its initial contention: that the words \u201cpharmacy\u201d and \u201cdrugstore\u201d as used in the above enactment refer to plaintiff\u2019s entire store. In support of this interpretation defendant cites the statutory definition of these terms (Ill. Rev. Stat. 1975, ch. 91, par. 55.3(a)):\n\u201c(a) The term \u2018a pharmacy\u2019 or \u2018a drugstore\u2019 means and includes every store, or shop, or other place where: (1) drugs, medicines, or poisons are dispensed, or sold or offered for sale at retail; or displayed for sale at retail; or (2) where prescriptions of physicians, dentists, veterinarians, or other allied medical practitioners are compounded, filled, or dispensed; * *\nAs a general matter, the legislature has authority \u201cto define, for the purpose of the statute, the terms used therein * * *\u201d and these definitions prevail in application of the statute. (Bohm v. State Employees\u2019 Retirement System (1949), 404 Ill. 117, 120, 88 N.E.2d 29.) However, in determining what meaning should be given to a statutory provision, it is important to look \u201cat the whole Act and the purpose for which it was enacted.\u201d (Tri-County Landfill Co. v. Pollution Control Board (1976), 41 Ill. App. 3d 249, 253, 353 N.E.2d 316.) Further, \u201c[ejach section and provision should be construed in connection with every other part or section.\u201d Huckaba v. Cox (1958), 14 Ill. 2d 126, 131, 150 N.E.2d 832.\nThe purpose of enacting the Pharmacy Practice Act was to regulate the practice of pharmacy. This is apparent both from the title itself, \u201cAn Act to regulate the practice of pharmacy \u201d \u201d and the legislative declaration in section 1 (Ill. Rev. Stat. 1975, ch. 91, par. 55.1):\n\u201cThe Practice of Pharmacy in the State of Illinois is declared a professional practice affecting the public health, safety and welfare and is subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of pharmacy, as defined in this Act, merit and receive the confidence of the public and that only qualified persons be permitted to practice pharmacy in the State of Illinois. This Act shall be liberally construed to carry out these objects and purposes.\u201d\nThe Act defines the term \u201cpractice of pharmacy\u201d (Ill. Rev. Stat. 1975, ch. 91, par. 55.3(d)), as follows:\n\u201cThe term \u2018practice of pharmacy\u2019 or \u2018practice of the profession of pharmacy\u2019 means and includes the compounding, dispensing, recommending or advising concerning contents and therapeutic values and uses, offering for sale or selling at retail, drugs, medicines or poisons, whether pursuant to prescriptions or orders of duly licensed physicians, dentists, veterinarians, or other allied medical practitioners, or in the absence and entirely independent of such prescriptions or orders, or otherwise whatsoever, or any other act, service operation or transaction incidental to or forming a part of any of the foregoing acts, requiring, involving or employing the science or art of any branch of the pharmaceutical profession, study or training.\u201d\nOther sections of the Act pertinent to this appeal are section 7a3 (Ill. Rev. Stat. 1975, ch. 91, par. 55.7a3) which provides in part:\n\u201c[S]uch pharmacy will have and shall maintain adequate space for the prescription department.\nOn or after January 1, 1964, every pharmacy shall be in a suitable, well-lighted and well-ventilated room, with clean and sanitary surroundings and shall be suitably equipped for compounding prescriptions and sale of drugs. The space occupied shall be equipped with a sink with hot and cold water or facilities for heating water, proper sewage outlet, refrigeration storage equipment, and such fixtures, facilities and equipment as will enable it to operate as a pharmacy. * *\nand also section 4(d) (Ill. Rev. Stat. 1975, ch. 91, par. 55.4(d)) which excludes from applicaton of the Act:\n\u201cthe sale of patent or proprietary medicines and household remedies when sold in original and unbroken packages only, if such patent or proprietary medicines and household remedies be properly and adequately labeled as to content and usage and generally considered and accepted as harmless and non-poisonous when used according to the directions on the label, and also do not contain opium of cocoa leaves, or any compound, salt or derivative thereof, or any drug * \u00b0\nIn our view it is not necessary to construe these terms \u201cpharmacy\u201d and \u201cdrugstore\u201d as used in this statute as applying to an entire retail establishment in order to effect the purposes of the Pharmacy Practice Act. As enunciated in the title and in section 1 (Ill. Rev. Stat. 1975, ch. 91, par. 55.1), the basic purpose of this Act is to regulate the practice of pharmacy. Section 3(d) specifically defines the practice of pharmacy as \u201cthe compounding, dispensing [etc.]\u201d of \u201cdrugs, medicines or poisons\u201d and stresses the importance of including within this definition all other acts \u201crequiring, involving or employing the science * * * of the pharmaceutical profession * * (Ill. Rev. Stat. 1975, ch. 91, par. 55.3(d).) The purpose of the statute to classify the practice of pharmacy as a technical, specialized profession appears from the statement that it is \u201ca matter of public interest and concern \u201d * * that only qualified persons be permitted to practice pharmacy * \u201c (Ill. Rev. Stat. 1975, ch. 91, par. 55.1.) In view of the undisputed facts that plaintiff\u2019s stores engage in an extensive general retail business unrelated to \u201cdrugs, medicines or poisons\u201d and often function in conjunction with Jewel Food Stores, it is sufficient to consider the \u201cpharmacy\u201d or \u201cdrugstore\u201d in plaintiff\u2019s establishments to be those limited areas which engage in the practice of pharmacy as delineated in section 3(d).\nDefendant contends that construing \u201cpharmacy\u201d and \u201cdrugstore\u201d in plaintiff\u2019s stores as the limited area above outlined would convert section 7a3 of the Act (Ill. Rev. Stat. 1975, ch. 91, par. 55.7a3) to surplusage. Defendant particularly cites the phrase \u201csuch pharmacy will have and shall maintain adequate space for the prescription department,\u201d urging that it would be redundant to require a \u201cprescription\u201d section within a pharmacy unless the term pharmacy referred to plaintiffs entire store. In view of the varied pharmaceutical activities enumerated in section 3(d) above cited which defines the practice of pharmacy, the legislative requirement of a \u201cprescription department\u201d within a \u201cpharmacy\u201d reflects attention to but one aspect of pharmaceutical practice. Similarly, in our opinion, the requirement of section 7a3 above set out that every pharmacy be in a \u201cwell-lighted * * * room\u201d complete with \u201csink\u201d and other fixtures exemplifies the regulatory concern of the legislature with the actual practice of pharmacy and indicates strongly that the \u201cpharmacy\u201d itself is that area wherein all aspects of a pharmacy practice are pursued.\nDefendant also contends that interpreting \u201cpharmacy\u201d or \u201cdrugstore\u201d in this case to mean a limited area of plaintiff s stores would do injustice to the principle of ejusdem generis. Defendant urges that because section 3(a) defines these terms as including \u201cevery store, or shop, of other place * * (emphasis added), \u201cother\u201d includes only a \u201cstore,\u201d \u201cshop\u201d or similar place. (Bullman v. City of Chicago (1937), 367 Ill. 217, 226, 10 N.E.2d 961.) However, the doctrine of ejusdem generis should not be used to frustrate legislative intent. When the phrase \u201cstore, or shop, or other place \u201d * is read in conjunction with other portions of the statute, as above shown, it is impermissible to construe the words \u201cother place\u201d as being applicable only to the entire store or shop within which the \u201cother place\u201d is contained.\nFurther, section 4(d) of the Act, above quoted, exempts from its application \u201cthe sale of patent or proprietary medicines and household remedies when sold in original and unbroken packages only.\u201d This section was passed pursuant to judicial recognition that registered pharmacists do not have an exclusive privilege to sell these items. (Noel v. People (1900), 187 Ill. 587, 594, 58 N.E. 616. See also Saddler v. People (1900), 188 Ill. 243, 58 N.E. 906.) The statute thus distinguishes those retail activities involving exercise of pharmaceutical practice in a pharmacy from sales unrelated to such practices.\nIn view of this analysis, that the terms \u201cpharmacy\u201d and \u201cdrugstore\u201d cannot reasonably encompass and include plaintiffs entire stores, we construe the statute as not requiring the presence of a registered pharmacist for a majority of hours that an entire store of the plaintiff is open for general retail business. In our opinion, the statute requires the presence of a registered pharmacist for a majority of hours during which those areas of plaintiffs stores in which pharmacy is practiced are open to the public. Therefore both clauses of the pertinent statute, section 8(a), can be read as complementing each other so as to require that those pharmaceutical areas of plaintiff s stores engaging in the \u201cpractice of pharmacy,\u201d whether open for sales or involved in other aspects of a pharmacy practice, have, at a minimum, an assistant registered pharmacist if a registered pharmacist is not on duty.\nCases from other jurisdictions support the position that section 8(a) does not require that a registered pharmacist be on duty for a majority of the hours that the entire retail establishment, of which the pharmacy itself is a smaller part, is open to the public. (Packard Bamberger & Co. v. Board of Pharmacy (1946), 134 N.J.L. 381, 48 A. 2d 199, aff'd per curiam (1947), 135 N.J.L. 282, 51 A.2d 239; State v. Leone (Fla. 1960), 118 So. 2d 781; Stewart v. Robertson (1935), 45 Ariz. 143, 40 P.2d 979.) These cases refused enforcement of administrative or legislative requirements that registered pharmacists be present the entire time that stores containing pharmacy departments are open to the public. However, the underlying rationale of these cases is that areas subject to regulation pertaining to the practice of pharmacy \u201cdo not mean the entire building or store where such things are sold *** but refer only to that portion of the business in which the sale, dispensing or compounding of the particular articles * * * is carried on * * Stewart, 45 Ariz. 143, 154, 40 P.2d 979, 984.\nIn Leone, the court held that the \u201crequirement of supervision by a licensed pharmacist * * *\u201d may not be \u201clawfully extended so as to cover aH of the operations of a drug store, including those which are unrelated by their nature to the preparation and sale of controlled drugs and medicines.\u201d 118 So. 2d 781, 783.\nBecause we hold that plaintiff s stores are not required to have a registered pharmacist present for a majority of the hours during which the entire establishment is open for general retail business, it is unnecessary for us to consider whether such a requirement would violate constitutional principles. In our opinion, resolution of the constitutional issue raised by the briefs is not necessary to a disposition of the case before us. Bender v. City of Chicago (1974), 58 Ill. 2d 284, 287, 319 N.E.2d 34.\nThe Chicago Retail Druggists Association and the Illinois Pharmaceutical Association have filed an amicus curiae brief suggesting that affirming the judgment herein would impose undue economic hardship upon the independent community pharmacist. This matter would be more appropriately resolved by the policy-making functions of the legislature than by an opinion of this court.\nThe judgment appealed from is accordingly affirmed.\nJudgment affirmed.\nMcGLOON and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "William J. Scott, Attorney General, of Chicago (Charles J. Pesek, Assistant Attorney General, of counsel), for appellant.", "McDermott, Will & Emery, of Chicago (Harold J. Bressler and Robert T. Palmer, of counsel), for appellee.", "Sidney Waller, of Waller and Waller, of Chicago, for amici curiae The Chicago Retail Druggists Ass\u2019n and The Illinois Pharmaceutical Ass\u2019n." ], "corrections": "", "head_matter": "OSCO DRUG, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellant.\nFirst District (1st Division)\nNo. 76-1571\nOpinion filed November 7, 1977.\nWilliam J. Scott, Attorney General, of Chicago (Charles J. Pesek, Assistant Attorney General, of counsel), for appellant.\nMcDermott, Will & Emery, of Chicago (Harold J. Bressler and Robert T. Palmer, of counsel), for appellee.\nSidney Waller, of Waller and Waller, of Chicago, for amici curiae The Chicago Retail Druggists Ass\u2019n and The Illinois Pharmaceutical Ass\u2019n." }, "file_name": "0936-01", "first_page_order": 958, "last_page_order": 965 }