Denied October 11, 2019.
from Montgomery Circuit Court (CV-16-901576)
S. Ward of Ward & Cooper, LLC, Birmingham, for appellant.
McPhillips, Jr., of McPhillips Shinbaum, LLP, Montgomery; and
Tanika Finney, Montgomery, for appellees.
Application for Rehearing
court's opinion of May 17, 2019, is withdrawn, and the
following is substituted therefor.
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.
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).
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
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.
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.
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.
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