Appeal
from Montgomery Circuit Court (CV-16-901576)
On
Application for Rehearing
THOMPSON, PRESIDING JUDGE.
This
court's opinion of May 17, 2019, is withdrawn, and the
following is substituted therefor.
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 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 ...