46 A.D.2d 974 | N.Y. App. Div. | 1974
Appeal from a judgment of tin; Supreme Court, entered January 30, 1974 in Albany County, upon a decision of the court at a Trial Term, without a jury, which dismissed the complaint on the merits and vacated a preliminary injunction previously granted. The plaintiff is a pharmacist who, in the fall of 1971, advertised through local newspapers discounts on all drug needs and offered free $2 certificates good at his pharmacy against the price of drugs. Thereafter, in February of 1972, the State Board of Pharmacy, a licensing board under the aegis of the defendant Board of Regents, notified the plaintiff to appear before it to answer charges that such advertising constituted unprofessional conduct within the meaning of the Regulations of the Commissioner of Education which condemn discount advertising by pharmacists (8 NYCRR 63.3 [e]). Before the scheduled hearing date, however, the plaintiff brought this action to declare the subject regulation invalid and obtained an order staying administrative action pending the outcome of the suit. As noted above, the trial court ultimately dismissed the complaint and vacated the order. On this appeal, the plaintiff first contends that the challenged regulation (8 NYCRR 63.3 [c]) is invalid because it exceeds the Legislature’s delegation of rule-making power. This argument is clearly without merit, however, because the Legislature has specifically provided that the responsibility for determining which types of advertising are improper lies with the defendant board (Education Law, § 6506, subd. [9]). Nor is this delegation of responsibility to the board so broad as to violate the constitutional provision vesting legislative power in the Senate and Assembly (N. Y. Const., art. Ill, § 1). At least by implication, the relevant statute (Education Law, § 6506, subd. [9]) adopts the ethical practices of the profession to be regulated as a guide for the board’s exercise of its rule-making power, pursuant to which acts or conduct may be banned only upon a reasonable ground (ef. Matter of Cherry v. Board of Begents of TJniv. of State of N. Y., 289 N.Y. 148). Thus, an adequate and ascertainable standard is provided for the administrative action, and the Legislature need not expressly enumerate
