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Alabama State Board of Pharmacy v. Parks

Alabama Court of Civil Appeals

May 17, 2019

Alabama State Board of Pharmacy
Demetrius Yvonne Parks et al.

          Appeal from Montgomery Circuit Court (CV-16-901576)


         The Alabama State Board of Pharmacy ("the board") appeals from a judgment of the Montgomery Circuit Court ("the circuit court") that reduced the punishment the board had imposed on pharmacist Demetrius Yvonne Parks and certain pharmacies that Parks owned. The circuit court upheld the board's determination that Parks and the pharmacies had violated numerous provisions of the Alabama Pharmacy Practice Act ("the PPA"), § 34-23-1 et seq., Ala. Code 1975, however.

         This is the third time that these parties have come before this court in connection with this matter. The first time they appeared before us, this court issued a writ of mandamus directing the circuit court to vacate an order amending a previous stay order without first providing the board an opportunity to present evidence challenging the propriety of the changes in the amended stay order. The amended stay order had eased restrictions against Parks and the pharmacies put in place by the initial stay order. Ex parte Alabama State Bd. of Pharmacy, 240 So.3d 594 (Ala. Civ. App. 2017).

         Subsequently, in Ex parte Alabama State Board of Pharmacy, 253 So.3d 972, 974 (Ala. Civ. App. 2017), this court concluded that the circuit court had exceeded its authority when it ordered the board to void a report required by federal law advising of the disciplinary action that had been taken against Parks and the pharmacies pending a final judicial review of the board's decision.

         In this appeal, we address the board's appeal of the circuit court's judgment that upheld the board's decision determining that Parks and the pharmacies had violated the PPA but reduced the sanctions the board imposed against Parks and the pharmacies. Specifically, the board contends that the circuit court erred by substituting its judgment for that of the board in easing those sanctions, even though the circuit court had found that substantial evidence supported the charges the board had levied against Parks and the pharmacies and the discipline imposed by the board was within the board's statutory authority.

         The evidence presented at the hearing before the board demonstrated that Parks operated a pharmacy with a proper permit at a location in Hayneville. She also operated two pharmacies in Montgomery and another in Gadsden. All of those pharmacies had obtained the proper permits from the board.

         The Hayneville pharmacy closed because its building was condemned. Parks then operated from a new location in Hayneville. However, she did not obtain a permit for that location. The new location had a sign over the door reading "Parks," and a sign on the door said: "All medications will be mailed out." A telephone number was provided for people needing assistance with prescriptions.

         The board received a complaint regarding the new Hayneville location from the Alabama Medicaid Agency. On May 6, 2015, in response to that complaint, board inspector Glenn Wells visited the Hayneville location. Libby Burke was the only employee present at that location; no pharmacist or pharmacy technician was there at the time of Wells's inspection. At the new location, Wells found a stockroom containing prescription drugs in stock bottles. There was also a box of filled prescriptions in the stockroom. Wells also discovered patient records, a patient signature log, pharmacy records, and prescriptions that had been faxed to the Hayneville location. The fax number for the Hayneville pharmacy location had been transferred from the original Hayneville location to the new location. Burke told Wells that she would forward the prescriptions she received to one of Parks's pharmacies in Montgomery, where she would later pick up the filled prescriptions and deliver them to patients.

         When Wells visited, Burke's vehicle was parked in front of the Hayneville location. When Burke gave Wells permission to look in the trunk of her vehicle, he found prescription medications inside it. He also found labels to apply to medicine bottles when they were delivered to patients. Wells said that Burke told him she would sometimes meet people inside the building or in the parking lot of the Hayneville location for them to pick up their prescriptions. Burke would also process payments for prescriptions at the Hayneville location. While Wells was there, he said, a woman arrived to pick up prescription medication for her husband and herself.

         In Montgomery, Parks operated two pharmacies--one on Mulberry Street and one on Adams Avenue. In November 2014, Parks notified the board that she was closing both locations, and the permits for both locations were ended. Within the month, Parks then reopened the Mulberry Street pharmacy using the permit from the Adams Avenue location, which was no longer valid. The Mulberry Street pharmacy purchased controlled substances from a wholesale drug provider after the permit had been ended. The board concluded that the actions were taken in an effort to avoid having to repay Medicaid more than $300, 000 as part of a recoupment order.

         On July 27, 2015, Wells inspected the Mulberry Street pharmacy. That inspection revealed incomplete, inaccurate, or incorrect records for controlled substances, as well as invoices for controlled substances that had not been signed by a pharmacist. The Mulberry Street pharmacy also filled prescriptions using labels showing that they were from a Parks pharmacy in Selma that had closed two years before.

         Wells inspected the Gadsden pharmacy on January 28, 2015, and on May 21, 2015. Although the pharmacy was open on both occasions, a pharmacist was not present. Nonetheless, the pharmacy received prescriptions from physicians, and prescriptions were filled and dispensed. Wells also found that prescription medication was stored outside the pharmacy area, that drugs were stored in excessive heat, and that a computer containing patient information was located outside the pharmacy area.

         Kenneth Green, a federal inspector from the Drug Enforcement Agency ("the DEA"), also inspected the Mulberry Street pharmacy, which had two DEA registration numbers. During Green's inspection, the Mulberry Street pharmacy was unable to provide him with certain required documentation. He also found that the Mulberry Street pharmacy had purchased controlled substances using an invalid controlled-substance registration number on ...

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