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Alabama State Board of Pharmacy v. Parks

Alabama Court of Civil Appeals

July 26, 2019

ALABAMA STATE BOARD OF PHARMACY
v.
Demetrius Yvonne PARKS et al

         Certiorari Denied October 11, 2019.

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

          James S. Ward of Ward & Cooper, LLC, Birmingham, for appellant.

          Julian McPhillips, Jr., of McPhillips Shinbaum, LLP, Montgomery; and Tanika Finney, Montgomery, for appellees.

         On Application for Rehearing

         THOMPSON, Presiding Judge.

         This court's opinion of May 17, 2019, is withdrawn, and the following is substituted therefor.

Page 317

          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, the board seeks review of the circuit court's judgment upholding the board's decision determining that Parks and the pharmacies had violated the PPA but reducing 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 ...


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