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Serve You Custom Prescription Management v. Alabama State Board of Pharmacy

Alabama Court of Civil Appeals

February 27, 2015

Serve You Custom Prescription Management
v.
Alabama State Board of Pharmacy

Appeal from Jefferson Circuit Court CV-13-901272

DONALDSON, Judge.

Serve You Custom Prescription Management ("Serve You") appeals a judgment of the Jefferson Circuit Court ("the circuit court") dated March 13, 2014, in which the circuit court affirmed a decision of the Alabama State Board of Pharmacy ("the Board") to sanction Serve You for violations of certain proscribed acts and offenses set forth in §§ 34-23-33(a)(2) and 20-2-54(a)(4), Ala. Code 1975, in regard to the distribution of controlled substances. The circuit court entered a summary judgment affirming the Board's decision. For the reasons stated herein, we affirm the circuit court's judgment.

The facts of this case are undisputed. Serve You is a mail-order pharmacy based in Wisconsin. Alabama is one of the states to which Serve You has a permit to ship prescription medications. On February 15, 2011, Serve You entered into a "Stipulation and Final Agency Order" ("the stipulation") with the State of Colorado regarding violations of the Colorado Electronic Prescription Drug Monitoring Program ("PDMP"). In the stipulation, Serve You admitted that it

"failed to submit the required data to the PDMP reporting dispensing transactions of controlled substances in the State of Colorado for the reporting period of January 1 through January 10, 2011, and did not submit a 'zero' report indicating no dispensing transactions for said reporting period as required by Board rule."

The stipulation imposed fines and charges totaling $11, 000 on Serve You.

Based on the stipulation, the Board served a "Statement of Charges and Notice of Hearing" on Serve You on November 27, 2012. The Board charged Serve You with violations of §§ 34-23-33(a)(2), 34-23-33(a)(6), [1] and 20-2-54(a)(4).[2] Serve You filed a motion with the Board to dismiss the charges, and the Board denied that motion. The Board held a hearing on February 19, 2013. On March 7, 2013, the Board entered a "Final Order" finding that Serve You had violated §§ 34-23-33(a)(2) and 20-2-54(a)(4), imposed a fine of $2, 000, and placed Serve You's Alabama pharmacy and controlled-substance permits on probation for one year.

On April 4, 2013, Serve You filed a "Petition for Judicial Review" of the Board's decision in the circuit court pursuant to §§ 34-23-94 and 41-22-20, Ala. Code 1975, and the Board answered the petition. On June 20, 2013, Serve You filed a motion for a judgment on the pleadings or, in the alternative, for a summary judgment. On February 25, 2014, the Board filed its opposition to Serve You's motions and filed a motion for a summary judgment. The circuit court held a hearing on the motions. On March 5, 2014, the circuit court issued a detailed order denying Serve You's motions. By a separate order of March 13, 2014, the circuit court incorporated its March 5, 2014, order and granted the Board's motion for a summary judgment.

Serve You filed its timely notice of appeal to this court on March 13, 2014. This court has jurisdiction over the appeal. § 12-3-10, Ala. Code 1975. On appeal, Serve You argues that the Board does not have statutory authority to discipline a nonresident, mail-order pharmacy; that Serve You is not subject to § 34-23-33(a) because it is not a pharmacist and does not operate in Alabama; and that Serve You is not subject to discipline under § 34-23-33(a)(2) because Serve You violated Colorado law and not Alabama law.

The scope of judicial review of an agency decision issued by the Board is provided in § 41-22-20(k), Ala. Code 1975:

"Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) In violation of any pertinent ...

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