The petitioners added that there was room for an oral hearing and that the respondents ignored a number of things. This includes, your request to hold the hearing in this manner; from the petitioner's proposal to appoint an agreed professional manager, who will be responsible for the proper management and professional supervision of the chain's branches; of the changes that occurred after the audit, including the appointment of Jabareen as the pharmacist in charge; This is due to the fact that in December 2023, following this appointment, the Tiberias branch was granted a business license that is still valid.
It was also claimed that Marom (Acting Pharmacy Division) did not respond to the petitioners' complaints against the district pharmacist, who, according to them, is systematically trying to close the chain's branches, and that since he is a member of the hearing committee, there is a substantial concern of a conflict of interest on his part and a violation of the rules of natural justice. It was argued that this was also expressed in the fact that the petitioner was not given a real right to a hearing after further review by an objective party.
- The petitioners also raised claims regarding the manner in which the audit was conducted at the Tiberias branch. According to them, contrary to the Section 60Power IIPharmacists Ordinance, the team that conducted the audit did not wear identification tags and that the respondents' claim that there was prior acquaintance between the branch employees and the audit team cannot be accepted. It was further claimed that the audit team acted illegally by infiltrating the branch's computers without the presence of the branch's employees. It was argued that the respondents improperly relied on Section 60K(2) IIPharmacists Ordinance for the purpose of qualifying invalid evidence, while ignoring the fact that this section includes a component of a document requirement.
- Respondents' arguments
- The respondents argued that the petition should be dismissed in the absence of grounds to intervene in the decision at the hearing, which will take effect upon the expiration of the business license of the Tiberias branch. It was argued that there was no flaw in the hearing process, at the end of which a reasoned, well-founded, reasonable and proportionate decision was rendered, most of which was not disputed. The decision also allows the continued activity of the chain's branches, provided that the petitioner ceases his ties to them and that this determination is in light of his conduct. The respondents argued that there was no obligation to hold an oral hearing and that the decision was made after the petitioner raised all of his arguments in his comprehensive written response and in his additional letters. It was also argued that the court does not replace the discretion of the administrative authority, including the hearing committee, unless there is a flaw in its decision. This is especially true since the decision is also based on the recommendation of the professional bodies.
- On the merits, it was argued that among all the entities dealing with cannabis, pharmacies are the only entity that is subject to a number of regulators. While the rest of the entities are required to obtain a license to practice only from the ICR, pharmacies must obtain a business license from both the local authority and approvals from the District Pharmacy, in addition to the approval of the ICR, as indicated in Section 4.1.2 of the Licensing Guidelines.
It was argued that there is no substance to the petitioners' claims regarding the lack of criteria for the revocation of an occupational license, since explicit rules were established regarding the conduct of a license holder to engage in cannabis, which the petitioners did not comply with and are therefore irrelevant to the case law to which they referred. The respondents added that the renewal of the business license of the Tiberias branch was done before the accumulation of deficiencies and evidence that was the basis of the hearing. For this reason, Jabareen, the pharmacist in charge, was also asked to submit monthly reports, which indeed attested to gaps in the management of the cannabis issue and the lack of lessons learned following the audit, and therefore, in the absence of explanations on her part, she was indeed summoned to the hearing. It was further argued that even in the hearing held for the previous pharmacist in charge, it was discovered that the documentation of cannabis deliveries was in violation of the Drugs Regulations, in a manner that raised concerns about the reliability of the prescription books. This branch also discovered that cannabis had been returned for destruction without authorization and full documentation. As a result, a disciplinary proceeding was conducted in the case of the pharmacist in charge, in which he admitted that there had been cannabis dispensations other than through a pharmacist and in violation of the regulations, and he also admitted that items prohibited in possession were kept in the warehouse.
- With regard to the issue of publication, the respondents argued that the principles in this matter were clarified in the letter of the Attorney General dated June 9, 2021. Section 4 precisely determines the manner of permitted advertising, including prohibition of publication that may encourage the use of cannabis illegally and for medical purposes, as well as publication that may be misleading. The respondents argued that the petitioners' publications mentioned in the summons to the hearing did not comply with the same provisions, and therefore there is no basis for their arguments regarding the correctness of the publication. It was also argued that the ruling to which they referred did not deal with the publication on its merits or its legality, but only with flaws relating to the procedures and the attack on the policy of the Ministry, which was not a party to the proceeding.
- Regarding the documentation of the audit at the Tiberias branch, it was argued that the petitioner's interference and the fact that he prevented the employees from answering questions on the pretext that he was only explaining their rights to them can be clearly seen.
The respondents argued that the claim of infringement of the freedom of occupation should be rejected. It has been held more than once that freedom of occupation is not absolute and that it can be restricted by legislation, as is done with occupations that are contingent on obtaining a license. The petitioner has no vested right to engage in the field of cannabis, and this is especially so, since the rule is a prohibition on dealing in a dangerous drug, unless an appropriate license is granted. The petitioner can continue to operate a pharmacy, but without dealing with cannabis, or alternatively, he can allow branches in Tiberias and Kiryat Ata to operate, without having an owner.
- The respondents referred to all the many proceedings taken by the petitioners, as detailed above, including the rulings in those petitions regarding their lack of good faith and lack of cleanliness. It was argued that the petitioners continued to act with a lack of cleanliness by choosing to smear the district pharmacist and other public servants on social media, even though in practice, their claims were not accepted in the proceedings taken by the petitioners regarding them.
With regard to the claim of selective enforcement, it was argued that the petitioners' arguments in this matter, which were based on the opinion submitted in the hearing proceeding, contradict their arguments. It emerged that there was no more frequent audit in the petitioners' branches with respect to the deficiencies that were discovered and in view of the practice of cannabis. It was argued that the inspection program of the district pharmacists is determined in accordance with risk management, according to clear criteria, including that inspections are conducted in order to verify that the pharmacy complies with the provisions of the law one year after it opened; The time has elapsed since the last audit (at least once every three years, unless a specific problem is known); due to the fear of danger due to the multitude of defects, which requires repeated inspections; for the purpose of licensing, including for a license from the local authority; for the purpose of certifying a responsible pharmacist and examining his functioning; due to a complaint or unusual information; By checking an annual drug report that pharmacies must submit to the District Pharmacy.
- The respondents added that the case in question is not the first time that pharmacy owners have been disqualified from dealing in cannabis. However, most of the disqualifications were due to the recommendation of the police. In one case in which the dealer was disqualified due to a negative recommendation by the police and a petition was filed, it was rejected due to non-exhaustion of proceedings (Administrative Petition (Jerusalem) 15508-04-22 Arengold v. Ministry of Health (16.8.2022).
It was further argued that the petitioner's disqualification does not constitute selective enforcement, since his conduct is extreme and unique. It was also argued that the decision at the hearing was reasonable, proportionate and even necessary. This was due, inter alia, to the petitioner's attempt to prevent the supervision proceedings, inter alia, through the many legal proceedings he took, while attacking the supervisory officials and officials in the Ministry of Health, while attacking them in an improper manner, and the fact that during the hearing it emerged that he had no intention of correcting his ways. It was argued that, unlike the case law presented by the petitioner, which relates to a brokerage license for the import of vehicles, the issue of medical cannabis deals with the law of life. Nor is this a single violation; There was a case that required the involvement of several district pharmacists; The petitioners' case touched on various aspects of the Drugs Ordinance; Deficiencies were found beyond those found in the audit and those that persisted over time; Her appointment as the chief pharmacist in the Tiberias branch did not lead to a solution to the deficiencies stemming from the Petitioner's ownership of the chain; His claims regarding the district pharmacist's conflict of interest were also rejected in the courts in the framework of the previous proceedings; In order to prevent allegations of a conflict of interest, three senior officials in the Ministry of Health from various fields participated in the hearing.
- Regarding the claims regarding the defects in the audit conducted at the Tiberias branch, it was argued that they have no substance and that they should be rejected. The fact that the audit team did not wear badges is not a defect that impairs the audit itself, especially due to the previous acquaintance between the staff and the branch employees (Section 60Power IIPharmacists Ordinance). In addition, contrary to the petitioners' claims, no court order was required for the purpose of producing the data (section 60K(2) IIPharmacists Ordinance) and in any case, the employee had difficulty in producing the data and therefore asked for the help of the audit team in producing it.
Discussion and Decision
- The hearing was held before three senior professionals in the Ministry of Health after an orderly process that included addressing all the allegations against the petitioners in the letter of invitation to the hearing dated April 7, 2024. The petitioners were then given a full opportunity to respond to all the arguments, and they did so in a number of letters and stages, as detailed above, and mainly in their detailed and comprehensive response of June 23, 2024, which was submitted through their counsel. The decision at the hearing was made on July 25, 2024, inter alia, based on the comprehensive opinion of three district pharmacists dated June 13, 2024, who addressed the professional aspects and matters that arose following the petitioners' partial responses that were submitted prior to the detailed response.
As a rule and as is well known, the decision at the hearing is examined like any decision of an administrative authority, and therefore intervention in the decision will be made only if a reason is found that justifies it. This includes if the decision exceeds the realm of reasonableness, if it was given in deviation from authority, due to extraneous considerations, arbitrarily or while creating discrimination. However, if there was no defect of this kind, the court does not examine whether it could have been decided otherwise and does not substitute the discretion of the administrative authority, including the hearing committee, for its own discretion (see, for example, from many: High Court of Justice 389/80 Yellow Pages 2 Tax Appeal v. Broadcasting Authority, IsrSC 35(1) 421 (1980), the Honorable Justice (as he was then called), A. Barak; High Court of Justice 6274/11 Delek Israel Fuel Company inTax Appeal v. Minister of Finance (November 26, 2012), Honorable Justice A. Vogelman (November 26, 2012), para. 11; High Court of Justice 5557/13 Oof Oz (Marketing) inTax Appeal v. Director of the Investment Center at the Ministry of Economy (December 18, 2017), the Honorable Justice H. Meltzer, para. 50).