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“Gross immorality:” What does it mean in professional discipline?

An Ohio appellate court in Ohio restored discipline imposed by the state’s board of pharmacy on a licensee who had fondled a co-worker at a drugstore in the state. The June 13 ruling overturned a lower court that the phrase “gross immorality” was insufficiently defined under the law (Raymond P. Denuit v. Ohio State Board of Pharmacy).

The case involved Raymond P. Denuit, a pharmacist at a CVS in Portsmouth, Ohio, who was terminated in 2007 after his employers learned that he had groped a female co-worker. Denuit initially submitted a written statement claiming that the woman had “seemed to invite breast massage,” but later denied the groping had occurred at all during testimony at a discipline hearing initiated by the state’s pharmacy board in response to the accusation.

However, store video cameras provided concrete evidence of Denuit’s impropriety, and the board ruled that he had not only committed the infraction, but had also lied to the board during its investigation. Denuit, who the board ruled was guilty of “gross immorality” and unprofessional conduct, was assessed a $6,500 fee and had his license suspended indefinitely.

When Denuit appealed, the state trial court ruled that the evidence showed that the pharmacist did, indeed commit the sexual offense but the board had failed to
provide sufficient evidence that Denuit had misled investigators.

Resorting to the use of a Webster’s Dictionary, the court concluded that a licensee was guilty of gross immorality “when his conduct goes flagrantly beyond accepted standards of what is right or just in behavior or is unmitigated in any way.”

The court also found that the board had failed to show that the lone surviving charge against Denuit was sufficiently wicked, on its own, to be classified as “gross immorality.” Because the wording of the board’s decision indicated that the “gross immorality” tag applied to Denuit’s conduct referred to the commission of all three of the violations the pharmacist had committed, the court remanded the case to the board for a re-determination of the penalties to be imposed on him.

The board, unrepentant, issued a particularly unsparing response to the trial court’s order, noting that Denuit’s behavior was “not only immoral but grossly immoral” and that “to force oneself on another in such a sexual manner in the confines of a board-licensed facility . . . is exceptionally unprofessional.”

The board then reimposed the indefinite suspension of Denuit’s license, and the pharmacist appealed again.

On the next appeal, the trial court again ruled against the board, stating that it had not provided a standard by which “gross immorality” could be defined and that the standard was, thus, impermissibly vague. And, citing the statutory provision defining “unprofessional conduct,” the court declared that Denuit’s actions clearly did not meet that definition. The decision of the board was reversed. The board then appealed both decisions to the Court of Appeals of Ohio, Jackson County.

In this appeal, the board argued that the lower court had abused its discretion when it had reversed the discipline imposed on Denuit, claiming that the lower court was wrong when it ruled that the groping, by itself, was insufficient to warrant the label “gross immorality,” that the phrase itself was impermissibly vague, and that the court acted improperly when it ordered a reconsideration of the penalties against Denuit without offering any guidance, an action the board considered an intrusion on its authority.

The Court of Appeals, in a decision by Judge William Harsha, upheld the lower court’s order that the board reconsider whether “gross immorality” could be applied to the single remaining charge against Denuit and to reconsider the penalty against the pharmacist.

Harsha said an order to reconsider the penalty was a reasonable response to the vagueness of the board’s order, and did not constrain the board in any way that lessened its authority.