dissenting:
The issue is whether “guilty of gross immorality,” as set out in section 7.6 of the Pharmacy Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.7—6), encompasses the plaintiffs’ Federal misdemeanor offenses of offering or making kickbacks or bribes in the course of furnishing drugs and pharmaceutical services. The majority seems to base its reasoning on essentiaUy two points. First, the majority sees here a lack of nexus between the kickbacks or bribes and the actual practice of pharmacy. Second, it finds significant that, subsequent to the plaintiffs’ commission of the Federal misdemeanors, the legislature enacted a provision which makes such conduct a ground for license revocation (Ill. Rev. Stat. 1975, ch. 91, par. 55.7—6, now Ill. Rev. Stat. 1977, ch. 111, par. 4019). Hence, it concludes, such conduct does not constitute “gross immorality.”
I disagree.
First, the plaintiffs’ payments of kickbacks or bribes were in connection with furnishing pharmaceutical services, or the practice of pharmacy. That is defined by statute:
“The term ‘practice of pharmacy’ or ‘practice of the profession of pharmacy’ 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.” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 91, par. 55.3(d).)
That language clearly is broad enough to bring the conduct of plaintiffs within the scope of the Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.1 et seq.), specifically within the ambit of “gross immorality,” proscribed by section 7.6 of the Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.7—6). Moreover, section 1 of the Act provides that it “shall be liberally construed to carry out” the purposes of the Act, also set out in section 1:
“The 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.” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 91, par. 55.1.
The plaintiffs’ conduct was a betrayal of public confidence; they failed to .meet their obligation to the public. Their actions were not profit-seeking schemes involving outside illicit business activities such as fraudulent real estate ventures or giving kickbacks on providing rocmpharmaceutical services, or unrelated misdemeanors such as traffic offenses. If it had been so, I would not be dissenting. (See Gordon v. Department of Registration & Education (1970), 130 Ill. App. 2d 435, 438-39.) Rather, their wrongful conduct was integrally a part of their profession or livelihood. The plaintiffs dispensed drugs and pharmaceutical services on the basis of monetarily induced demand. Such conduct would rightly encourage consumers and other members of the public to question the plaintiffs’ honesty and integrity while dealing with them. Prevention of injury would seem to be the purpose justifying State licensing of a profession. A qualification for receiving and retaining such professional licenses would seem to be honesty and integrity. (See generally People ex rel. State Board of Health v. Apfelbaum (1911), 251 Ill. 18, and Kaplan v. Department of Registration & Education (1977), 46 Ill. App. 3d 968.) Plaintiffs apparently lacked that qualification while practicing their profession.
Second, the legislature’s proscription of fee-splitting, including payment of kickbacks and bribes, by enactment after the plaintiffs’ illegal activities occurred, does not persuade me that this misdemeanor conduct was not, therefore, within the bounds of “gross immorality.” True, a legislative amendment creates a presumption that a change in law is effected, but this presumption is neither conclusive nor controlling. (Bruni v. Department of Registration & Education (1974), 59 Ill. 2d 6, 11-12; Merrill v. Drazek (1975), 62 Ill. 2d 1, 6; Chicago & Illinois Midland Ry. Co. v. Department of Revenue (1976), 63 Ill. 2d 474, 481.) It “may be overcome by more persuasive considerations.” (Scribner v. Sachs (1960), 18 Ill. 2d 400, 411.) “ ‘Gross immorality’ should be measured by the standards of each profession ***.” (Mingo County Medical Society, Inc. v. Simon (1942), 124 W. Va. 493, 496, 20 S.E.2d 807, 809. Accord, Gordon v. Department of Registration & Education (1970), 130 Ill. App. 2d 435, 438-39.) Here, the Board of Pharmacy, composed of plaintiffs’ peers within the pharmacy profession, determined that plaintiffs’ conduct fell below those standards. I think they would have an intimate knowledge of the complexities and mechanics óf their profession such as would justify giving substantial weight to their findings and the Department’s decision. This I find more persuasive than legislative afterthought.
I must acknowledge my serious misgivings about the legislature’s use of the words “gross immorality.” That is a broad, vague concept deserving of critical analysis. However, given the majority’s choice of not addressing that constitutional issue, given the inseparable connection between the plaintiffs’ profession and conduct as well as their betrayal of public confidence, and given the interpretation of “gross immorality” by plaintiffs’ peers, I must conclude that the Department’s revocations should have been affirmed.
UNDERWOOD and MORAN, JJ., join in this dissent.