Jefferson City Apothecary, LLC d/b/a Jefferson City Apothecary and Uldis Pironis, R.Ph. v. Missouri Board of Pharmacy , 2016 Mo. App. LEXIS 909 ( 2016 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JEFFERSON CITY APOTHECARY, )
LLC, d/b/a JEFFERSON CITY )
APOTHECARY and ULDIS PIRONIS, )
R.Ph., )
) WD79294
Appellants, ) (Consolidated with WD79295)
)
v. ) OPINION FILED:
) September 13, 2016
)
MISSOURI BOARD OF PHARMACY, )
)
Respondent. )
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Daniel R. Green, Judge
Before Division IV: Mark D. Pfeiffer, Chief Judge, Presiding, and
James Edward Welsh and Edward R. Ardini, Jr., Judges
Jefferson City Apothecary, LLC (“Apothecary”) and Mr. Uldis Pironis (“Pironis”) appeal
the judgments of the Circuit Court of Cole County (“circuit court”) affirming the joint decisions
of the Administrative Hearing Commission (“AHC”) and the Missouri Board of Pharmacy
(“Board”), which decisions found cause to discipline and imposed discipline on the Apothecary’s
pharmacy permit and Pironis’s pharmacist license. The Apothecary’s pharmacy permit and
Pironis’s pharmacist’s license were placed on probation for one year subject to terms and
conditions. We affirm the circuit court’s judgments.1
Factual and Procedural Background
Pironis is licensed by the Board as a pharmacist. He is the owner, permit holder, and
pharmacist-in-charge of the Apothecary. The Apothecary is engaged in compounding drug
products, as well as filling and dispensing retail prescriptions to consumers.
On April 29, 2011, Pironis was in Chicago for a continuing education seminar. He had
arranged for another pharmacist to work at the Apothecary on that date; however, the other
pharmacist did not report for work due to his wife’s illness. When pharmacy technician Ginger
Stratman informed Pironis that the other pharmacist had not reported for work, Pironis instructed
her to close the Apothecary but to leave the doors open so staff could explain to customers that
they could not pick up their prescriptions because there was no pharmacist on duty.
Ms. Stratman also notified Pironis that a doctor had called needing chemotherapy
medication made that day. Pironis initially instructed Ms. Stratman not to make the medication,
but later changed his mind and instructed Ms. Stratman to compound the chemotherapy medication
at the Apothecary and deliver it to the doctor’s office. Ms. Stratman did as she was instructed by
Pironis. Fortunately, there was no evidence that the patient had suffered any adverse effect as a
result of administration of the chemotherapy medication.
The Board was informed that someone in the Apothecary was practicing pharmacy without
a license when a pharmacist was not on duty, and the Board sent an investigator to the Apothecary.
Based upon the investigator’s inspection, the Board filed separate complaints with the AHC
1
On appeal of the trial court’s judgment following judicial review of an administrative agency’s decision,
this court reviews the decision of the administrative agency and not the judgment of the trial court. Atwell v.
Fitzsimmons, 452 S.W.3d 670, 673 n.2 (Mo. App. W.D. 2014). However, in our mandate, we reverse, affirm, or
otherwise act upon the trial court’s judgment. Id. See Rule 84.14.
2
seeking orders granting authority to discipline Pironis’s pharmacy license and the Apothecary’s
pharmacy permit. A consolidated hearing was conducted. Ultimately, the AHC issued separate
decisions on reconsideration, finding cause to discipline Pironis’s license and to discipline the
Apothecary’s permit under three provisions of section 338.055.2:
(6) Violation of, or assisting or enabling any person to violate, any provision of this
chapter, or of any lawful rule or regulation adopted pursuant to this chapter;
....
(10) Assisting or enabling any person to practice or offer to practice any profession
licensed or regulated by this chapter who is not registered and currently eligible to
practice under this chapter;
....
(15) Violation of the drug laws or rules and regulations of this state, any other state
or the federal government[.]
Thereafter, the Board conducted disciplinary hearings. At Pironis’s disciplinary hearing,
he stated that he thought he did the right thing on April 29, 2011, in directing his staff to compound
and dispense the chemotherapy drugs, and he would do the same thing again for the benefit of the
patient. Pironis admitted that he knew it was a violation of the law for an unlicensed person to
practice pharmacy, but if he were presented with the same situation, he would break the law again.
He claimed that he used his professional judgment to violate the law when he felt that it was in the
patient’s best interest. Following the disciplinary hearings, the Board issued orders placing
Pironis’s license to practice pharmacy and the Apothecary’s pharmacy permit on probation for one
year, subject to terms and conditions.
The Apothecary and Pironis each petitioned for judicial review of the AHC’s decision and
the Board’s disciplinary order. The circuit court entered judgment in each case, affirming the joint
decision of the AHC and the Board.
The Apothecary and Pironis appeal.
3
Standard of Review
In a permit or license disciplinary proceeding, section 621.145 directs that we treat the
AHC’s decision as to the existence of cause and the Board’s subsequent disciplinary order “as one
decision,” and that we review that combined decision, not the circuit court’s judgment. Kerwin v.
Mo. Dental Bd., 375 S.W.3d 219, 224 (Mo. App. W.D. 2012). This court will affirm the existence
of cause decision and the disciplinary order unless the agency action:
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.
§ 536.140.2.2 An agency’s decision is unsupported by sufficient competent and substantial
evidence upon the whole record only “in the rare case when the [decision] is contrary to the
overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223
(Mo. banc 2003). “We will not substitute our judgment for that of the [agency] on factual matters,
but questions of law are matters for the independent judgment of this court.” Kerwin, 375 S.W.3d
at 225 (internal quotation omitted). We view the evidence objectively and not in the light most
favorable to the agency’s decision. Hampton, 121 S.W.3d at 223. “However, we defer to the AHC
on issues involving the credibility of witnesses and the weight and value to be given to their
testimony.” Kerwin, 375 S.W.3d at 225.
2
All statutory references are to the Revised Statutes of Missouri 2000, as supplemented.
4
Multifarious Point Relied On
Before addressing the Apothecary and Pironis’s claims on appeal, we note that their first
point relied on contains multifarious claims of error and, accordingly, violates Rule 84.04.
Wennihan v. Wennihan, 452 S.W.3d 723, 728 (Mo. App. W.D. 2015). “A point relied on should
contain only one issue, and parties should not group multiple contentions about different issues
together into one point relied on.” Id. (internal quotation omitted). “Despite this flagrant disregard
of the rules, the policy of the appellate courts in this State is to decide a case on the merits rather
than technical deficiencies in the brief.” Id. (internal quotation omitted). “Because we are able to
discern the claims being made and the defective nature of the point relied on does not impede our
disposition of the case on the merits, we will exercise our discretion to attempt to resolve the issues
on the merits.” Id. (internal quotation omitted). “We will separate [the Apothecary and Pironis’s]
contentions, as best we can discern them, and respond to each one individually.” Id. (internal
quotation omitted).3
Analysis
The Apothecary and Pironis raise three points on appeal. In their first point, they assert
three reasons that the AHC erred in determining that the Board established cause to discipline:
they did not violate any drug laws; Pironis did not neglect his duties as a pharmacist in violation
of 20 CSR 2220-2.090(2); and the AHC’s decision was issued by a Commissioner who did not
3
In the appellants’ reply brief, they raise a new claim of error that they assert relates to Point II—claiming
that the AHC had no authority to reconsider an earlier dismissal of the complaint against the appellants. First, “[a]
reply brief is to be used only to reply to arguments raised by respondents, not to raise new arguments on appeal.” Arch
Ins. Co. v. Progressive Cas. Ins. Co., 294 S.W.3d 520, 524 n.5 (Mo. App. W.D. 2009) (internal quotation omitted).
“[W]e do not review an assignment of error made for the first time in the reply brief.” Id. Second, in attempting to
tack on another legal argument to Point II, the appellants are again attempting to create and submit another multifarious
point relied on, which is not permissible pursuant to Rule 84.04. Third, the AHC does, in fact, possess the authority
to consider a motion for reconsideration if it is timely filed within the thirty-day time limit set for appeal to this court.
Woodman v. Dir. of Revenue, 8 S.W.3d 154, 157 (Mo. App. W.D. 1999). Here, the motion for reconsideration was
timely filed and considered by the AHC; thus, ex gratia, we note that the appellants’ belated argument is without any
substantive merit.
5
hear the case. In their second point, they contend that the Board’s imposition of disproportionate
discipline was unsupported by competent and substantial evidence on the record; was arbitrary,
capricious, and unreasonable; was an abuse of discretion; and violated their constitutional rights
to due process and equal protection of the laws. In their third point, they assert that the Board
erred in issuing its orders because the orders did not comply with section 536.090.
Point I
First, the Apothecary and Pironis assert that the AHC erred in determining that the Board
established cause to discipline because they did not violate any drug laws. It was undisputed that
on April 29, 2011, Pironis instructed an unlicensed person to compound and dispense a
chemotherapy prescription when he was not physically present in the pharmacy. Based on these
undisputed facts, the AHC found cause to discipline the Apothecary’s permit and Pironis’s license
for violation of section 338.010.1, which prohibits an unlicensed person from engaging in the
practice of pharmacy.4 The Apothecary and Pironis admit in their brief that the presence of a
4
The “practice of pharmacy” is defined in pertinent part as the “receipt, transmission, or handling of [medical
prescription] orders or facilitating the dispensing of such orders; . . . the compounding, dispensing, [and] labeling . . .
of drugs . . . pursuant to medical prescription orders . . . and the offering or performing of those acts, services,
operations, or transactions necessary in the conduct, operation, management and control of a pharmacy.” § 338.010.1.
Auxiliary personnel assisting a pharmacist in any of his or her duties must be under the pharmacist’s direct supervision,
and the pharmacist will be responsible for the actions of the auxiliary personnel acting in his or her assistance. Id.
6
pharmacist was required by 20 CSR 2220-2.010(1)(A)5 and (B)6 and 20 CSR 2220-2.200(12)(A).7
The AHC also found cause to discipline the Apothecary’s permit and Pironis’s license for violation
of section 338.055.2, subsections (6) (enabling any person to violate any provision of Chapter 338,
or of any lawful rule or regulation), (10) (enabling an unlicensed person to practice pharmacy),
and (15) (violating federal or state drug laws or rules and regulations). The Apothecary and Pironis
attempt to justify these violations by arguing that Pironis was exercising his professional judgment
as a pharmacist when he decided to have Ms. Stratman compound the chemotherapy medication,
that he had the patient’s interest in mind, and that no one complained about the product or was
harmed by his decision. The Apothecary and Pironis cite no authority supporting these statements
as justifications for violating the law, and we have found none. Simply put, the regulations in
question are not suggestions for use, they are mandatory rules established and designed to protect
the public. There is no excuse for Pironis’s flagrant disregard of the regulations.
Second, the Apothecary and Pironis claim the AHC erred in determining that the Board
established cause to discipline because Pironis did not violate his duties under
5
20 CSR 2220-2.010(1)(A) provides in pertinent part:
At all times when prescriptions are compounded in a pharmacy or other establishments holding a
Missouri pharmacy permit, there shall be on duty and present in that place of business a pharmacist
licensed in Missouri as provided by law. . . . When there is no pharmacist on duty, no prescription
will be compounded, dispensed or otherwise provided and the public will be advised that no
pharmacist is on duty . . . .
6
20 CSR 2220-2.010(1)(B) provides in pertinent part:
Whenever, in a pharmacy or other establishment holding a Missouri pharmacy permit, a person
other than a licensed pharmacist does compound, dispense or in any way provide any drug, medicine
or poison pursuant to a lawful prescription, a licensed pharmacist must be physically present within
the confines of the dispensing area, able to render immediate assistance and able to determine and
correct any errors in the compounding, preparation or labeling of that drug, medicine or poison
before the drug, medicine or poison is dispensed or sold. . . . The pharmacist personally shall inspect
and verify the accuracy of the contents of, and the label after it is affixed to, any prescribed drug,
medicine or poison compounded or dispensed by a person other than a licensed pharmacist.
20 CSR 2220-2.200(12)(A) provides in pertinent part that: “The pharmacist must verify that the product
7
was compounded accurately as to the ingredients, quantities, containers, and reservoirs.”
7
20 CSR 2220-2.090(2) in that the record does not support the conclusion that Pironis neglected his
duties as pharmacist-in-charge to anyone’s detriment. The AHC found that Pironis failed to adhere
to his responsibilities as a pharmacist-in-charge with regard to 20 CSR 2220-2.090(2)(E), (N), and
(W), which provide that, at a minimum, a pharmacist-in-charge will:
(E) Assur[e] that all procedures of the pharmacy in the handling, dispensing and
recordkeeping of controlled substances are in compliance with state and federal
laws;
....
(N) [B]e responsible for the supervision of all pharmacy personnel, to assure full
compliance with the pharmacy laws of Missouri;
....
(W) Assure full compliance with all state and federal drug laws and rules[.]
Pironis does not deny that he was not physically present when Ms. Stratman compounded the
medications without supervision. However, he contends that he did not neglect his duties as
pharmacist-in-charge. Again, Pironis attempts to justify his knowing violation of Board
regulations by arguing that he was exercising his professional judgment as a pharmacist under
extraordinary circumstances, that he had the cancer patient’s care in mind, and that he “knew” the
medications would be properly compounded by Ms. Stratman and checked by the doctor’s office.
The Apothecary and Pironis cite no authority supporting these statements as justifications for
neglecting his duties as a pharmacist-in-charge, and we have found none. Again, Pironis’s decision
to pick and choose which mandatory regulations he believes himself to be bound by in his expertise
is nothing short of the sort of arrogance that the regulations are designed to guard the public
against.
Third, the Apothecary and Pironis claim the AHC erred by permitting a commissioner who
did not hear the case to render its final decision, though the appellants cite to no case precedent in
support of their argument. Thus, initially, we note that “[m]ere conclusions and the failure to
8
develop an argument with support from legal authority preserve nothing for review.” Frazier v.
City of Kansas City, 467 S.W.3d 327, 346 (Mo. App. W.D. 2015) (internal quotation omitted). “If
a party does not support contentions with relevant authority or argument beyond conclusory
statements, the point is deemed abandoned.” Id. (internal quotation omitted). See also Willis v.
Mo. Farm Bureau Servs., Inc., 396 S.W.3d 451, 454 (Mo. App. W.D. 2013).
Further, at no point in this conclusory argument on appeal have either of the appellants
provided this court with any evidence suggesting that the AHC commissioner deciding the case
failed to read and consider all of the evidence from the hearing or that the AHC commissioner was
not subject to the sort of gauge and criteria contemplated by the Missouri Administrative Procedure
Act.
Ex gratia, then, we note that section 536.080.2 provides that:
In contested cases, each official of an agency who renders or joins in rendering a
final decision shall, prior to such final decision, either hear all the evidence, read
the full record including all the evidence,8 or personally consider the portions of
the record cited or referred to in the arguments or briefs.
§ 536.080.2 (emphasis added). As we have commented recently with regard to contested case
administrative review, due process requires a hearing and opportunity to be heard and a final
decision-maker that is subject to “gauge or criteria.” Sanders v. City of Columbia, 481 S.W.3d
136, 144 (Mo. App. W.D. 2016) (citing to McCoy v. Caldwell Cty., 145 S.W.3d 427 (Mo. banc
2004) and Kunzie v. City of Olivette, 184 S.W.3d 570 (Mo. banc 2006)). Here, there is no dispute
that the Apothecary and Pironis received an evidentiary hearing and there is no argument or
evidence suggesting that the final decision-maker failed to review the transcript and evidence from
the hearing or was not subject to “gauge or criteria.” Instead, the only argument on appeal is that
8
The undisputed record reflects that the AHC Commissioner rendering the final decision did, in fact, read
the full record including all the evidence presented at the evidentiary hearing.
9
the final decision-maker was not the same AHC commissioner as the AHC commissioner who
conducted the evidentiary hearing—an argument that has been rejected by Missouri courts in the
past. See Angelos v. State Bd. of Registration for Healing Arts, 90 S.W.3d 189, 193 (Mo. App.
S.D. 2002) (citing Kraus v. Dir. of Revenue, 935 S.W.2d 71, 73 (Mo. App. W.D. 1996). See also
Schrewe v. Sanders, 498 S.W.2d 775, 778 (Mo. 1973); Ferrario v. Baer, 745 S.W.3d 193, 198
(Mo. App. E.D. 1987).
Point I is denied.
Point II
In the Apothecary and Pironis’s second point, they contend that the Board’s imposition of
disproportionate discipline was unsupported by competent and substantial evidence on the record;
was arbitrary, capricious, and unreasonable; was an abuse of discretion; and violated their
constitutional rights to due process and equal protection of the laws. “Substantial evidence is
competent evidence that, if believed, has probative force upon the issues.” Danna v. Mo. Dep’t of
Soc. Servs., 449 S.W.3d 821, 824 (Mo. App. W.D. 2014). “An administrative agency acts
unreasonably and arbitrarily if its decision is not based on substantial evidence.” Id. (internal
quotation omitted). “An agency action is capricious if it is whimsical, impulsive, or
unpredictable.” Id. “To meet basic standards of due process and to avoid being arbitrary,
unreasonable, or capricious, an agency’s decision must be made using some kind of objective data
rather than mere surmise, guesswork, or gut feeling.” Id. (internal quotation omitted).
Section 338.055.3 provides in pertinent part:
Upon a finding by the administrative hearing commission that the grounds,
provided in subsection 2 of this section, for disciplinary action are met, the board
may, singly or in combination, censure or place the person named in the complaint
on probation on such terms and conditions as the board deems appropriate for a
period not to exceed five years, or may suspend, for a period not to exceed three
years, or revoke the license, certificate, or permit.
10
The severity of discipline to be imposed rests in the discretion of the Board. Tadrus v. Mo. Bd. of
Pharmacy, 849 S.W.2d 222, 228 (Mo. App. W.D. 1993). The Board’s decision as to discipline
will be “upheld unless its determination is: unsupported by competent and substantial evidence;
arbitrary, capricious or unreasonable; an abuse of discretion; or unauthorized by the law.” KV
Pharm. Co. v. Mo. State Bd. of Pharmacy, 43 S.W.3d 306, 310 (Mo. banc 2001). “Discretion is
abused when the ruling is clearly against the logic of the circumstances then before the court and
is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful
consideration.” Kerwin v. Mo. Dental Bd., 375 S.W.3d 219, 231 (Mo. App. W.D. 2012) (internal
quotation omitted). On appeal, a court will rarely interfere with sanctions imposed by an
administrative board that are within the statutory authority of the board. Id. “A part of the
expertise of the members of the [Board] consists of the ability, drawn from their knowledge of the
industry practices and standards, to assess the gravity of the licensee’s infractions, and to fit the
sanction to the offense.” Id. at 231-32 (internal quotation omitted).
The Apothecary and Pironis argue that the discipline ordered by the Board pursuant to
section 338.055 bears no rational relationship to the Board’s interest in protecting the public. They
contend that even though Pironis instructed an unlicensed pharmacy technician to compound and
dispense medication without a pharmacist’s presence and supervision in violation of the law,
Pironis’s action was acceptable because his decision was made in the best interest of the patient,
the technician was highly competent, and no one was harmed. That Pironis would place his
personal judgment above the law is a danger to the public. Under these circumstances, there is a
rational basis for the Board placing the Apothecary’s permit and Pironis’s license on probation
due to Pironis’s intentional misconduct. “The reason professional license discipline laws exist is
11
to protect the public served by those who have been granted such licenses.” Peer v. Mo. Bd. of
Pharmacy, 453 S.W.3d 798, 811 (Mo. App. W.D. 2014) (internal quotation omitted).
The Apothecary and Pironis contend that the Board was not motivated primarily by public
protection but, rather, by a desire to punish the Apothecary and Pironis. This assertion is
unsustainable. The state has a legitimate interest in protecting its citizens from pharmacists who
violate the law and regulations. “The purpose behind licensing statutes is to protect the public
rather than to punish the licensed professional.” Duncan v. Mo. Bd. for Architects, Prof’l Eng’rs
& Land Surveyors, 744 S.W.2d 524, 531 (Mo. App. E.D. 1988) (citing State ex rel. Lentine v. State
Bd. of Health, 65 S.W.2d 943 (Mo. 1933)).
The Apothecary and Pironis next contend that their rights to equal protection were violated
because the one-year probation each received was harsher than that imposed in cases involving
similar or more severe conduct. At Pironis’s disciplinary hearing, he offered as exhibits selected
Board settlement agreements where the Board had imposed censure as the appropriate discipline.
However none of the selected cases involved similarly situated pharmacists who, like Pironis,
made a conscious decision to direct a pharmacy technician to compound and dispense a
prescription when a pharmacist was not present or who said they would repeat their error if
presented with the same situation. “It is well settled that the imposition of [discipline] on one
person more harshly than another does not, of itself, give rise to an equal protection violation.”
Mo. State Bd. of Registration for Healing Arts v. Brown, 121 S.W.3d 234, 236 (Mo. banc 2003).
Rather, to establish an equal protection claim, the Apothecary and Pironis must establish that they
have been “intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Id. at 236 (internal quotation omitted). The
Apothecary and Pironis have not met their burden.
12
The Board’s decision to place Pironis’s pharmacy license and the Apothecary’s pharmacy
permit on probation for one year was within the statutory range of discipline available to the Board,
and such discipline was supported by competent and substantial evidence and was not arbitrary,
capricious, unreasonable, or disproportionate. Likewise, the Apothecary’s and Pironis’s
constitutional rights have not been violated, and the Board’s decision was not an abuse of
discretion.
Point II is denied.
Point III
In the Apothecary and Pironis’s third point, they assert that the Board erred in issuing its
orders because the orders did not comply with section 536.090. They contend that the orders were
not sufficiently specific either to show how the Board decided the discipline to be imposed or to
allow a reviewing court to determine if there was a reasonable basis in fact for the disciplinary
decisions reached. The Apothecary and Pironis argue that there was no justification for the orders,
especially when there were no allegations against Pironis of patient harm, drug use, or criminal
history.
Section 536.090 provides in pertinent part:
Every decision and order in a contested case shall be in writing, and . . . the decision
. . . shall include or be accompanied by findings of fact and conclusions of law. The
findings of fact shall be stated separately from the conclusions of law and shall
include a concise statement of the findings on which the agency bases its order.
“Generally, an administrative proceeding to discipline a pharmacy license is bifurcated.” Peer,
453 S.W.3d at 805. If the Board concludes that the holder of a pharmacy permit or license has
committed an act or is engaging in a practice constituting grounds for disciplinary action as
provided in section 338.055.2(1)-(17), the Board may file a complaint with the AHC. See
§ 621.045.1. After the filing of such complaint, if the AHC finds that the grounds for disciplinary
13
action are met, a second hearing is held by the Board to assess on the permittee or licensee an
appropriate level of discipline, singly or in combination: censure, probation on such terms and
conditions as the Board deems appropriate for a period not to exceed five years, suspension for a
period not to exceed three years, or revocation of the permit or license. § 338.055.3.
The Board incorporated the AHC’s decisions, which included findings of fact and
conclusions of law, into its orders. After the AHC determined that cause for discipline existed,
the Board had broad discretion to determine the form of discipline that would be imposed.
§ 338.055.3. Section 338.055.3 does not expressly require the Board to make additional findings
of fact and conclusions of law to justify the form of discipline determined to be appropriate in each
case. See Schumer v. Lee, 404 S.W.3d 443, 451 (Mo. App. W.D. 2013) (explaining that findings
and conclusions issued by the AHC and adopted by the Director of the Department of Public Safety
were sufficient to support revocation of police officer’s peace officer license, and additional
findings and conclusions by the Director were not required).
Nevertheless, the Board did make additional findings on which it based its disciplinary
orders. In the Pironis case, the Board found:
10. Mr. Pironis admitted he violated the law in the incidents of April 29, 2011. See
Transcript P pages 12-13, 17, 22, and 24.
11. Mr. Pironis stated he would violate the law again if confronted with the same
situation as he faced in April 2011. See Transcript P pages 17, 22, and 26.
12. Mr. Pironis admitted that he knew at the time of the April 29, 2011, incident
that what he had his staff do was “wrong”, but claimed that he used his
“professional judgment” to violate the law when he felt that it was in the patient’s
best interest. See Transcript P pages 13, 17, and 22-23.
13. Mr. Pironis admitted that he knowingly broke the law. See Transcript P pages
27-28 and 29.
14. Mr. Pironis admitted that he thought about breaking the law before he directed
his staff to compound and dispense the chemotherapy drugs and made an
14
affirmative decision to direct his staff to violate Chapter 338. See Transcript P
page 29.
15. Pironis testified on direct examination that he had never been disciplined by
the Board. See Transcript P page 12. However, on cross examination, he admitted
he had been previously disciplined by the Board, and conceded that he had been
previously disciplined when questioned by a Board member about his inconsistent
testimony. See Transcript pages 25 and 27.
16. Pironis testified regarding the impact on him personally and professionally as
a result of the Board’s filing of its Complaint, but agreed that the decisions he made
in the circumstances were voluntary on his part. See Transcript P pages 18-19 and
27-28.
17. The Board considered all of its decisions in other cases requested by Pironis’[s]
attorney and as demonstrated by Exhibits D-O. See Transcript P pages 35-39.
Pironis’[s] attorney agreed that he picked those decisions out of hundreds of other
decisions. See Transcript P pages 37-38. The Board takes notice of its prior
decisions in rendering the decision reflected in this Order.
18. Pironis’[s] attorney conceded in closing argument that Pironis had violated the
law and that Pironis knew it was wrong for him to violate the law when he did it.
See Transcript P pages 41-42. He also asked that the Board not impose any
discipline, but if it did impose discipline, to limit it to censure. See Transcript page
46.
These findings were incorporated by reference into the Apothecary’s disciplinary order. The
Board’s orders contain specific findings that serve as a rational basis to justify the form of
discipline it determined was appropriate in each case.
Point III is denied.
Conclusion
The judgment of the circuit court is affirmed.
Mark D. Pfeiffer, Chief Judge
James Edward Welsh and Edward R. Ardini, Jr., Judges, concur.
15