N. Steinberg, R.PH. v. BPOA, State Board of Pharmacy ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Norman Steinberg, R.PH., :
:
Petitioner :
:
v. : No. 681 C.D. 2020
: Argued: April 15, 2021
Bureau of Professional and :
Occupational Affairs, State :
Board of Pharmacy, :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 18, 2021
Norman Steinberg, R.PH. (Licensee) petitions for review of the order
of the Bureau of Professional and Occupational Affairs, State Board of Pharmacy
(Board) that revoked his pharmacist license, based on Licensee’s 2003 conviction
for violating the Pharmacy Act.1 After careful review, we affirm.
The facts and procedural history of this matter are not in dispute.
Licensee holds a pharmacist license, originally issued on January 27, 1972, and
active through September 30, 2004. Reproduced Record (R.R.) at 3a.2 Licensee’s
1
Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. §§390-1 – 390-13.
2
Pa. R.A.P. 2173 states: “Except as provided in Rule 2174 (tables of contents and
citations), the pages of . . . the reproduced record . . . shall be numbered separately in Arabic
(Footnote continued on next page…)
pharmacist license was reactivated on December 2, 2015, renewed on October 31,
2016, and expired on September 30, 2018. R.R. at 77a, 82a.
From January 3, 1996, to April 30, 1997, Licensee, trading as Chelten
Pharmacy, violated the federal Drug Abuse Prevention and Control Law, 21 U.S.C.
§§801-971, specifically Section 843(a)(4)(A) of the statute,3 when he knowingly or
intentionally omitted material information from records required by law to be made,
kept, and filed, including records of sale, delivery, or other disposition of
approximately 410,000 tablets containing alprazolam, commonly known as Xanax,
which is a Schedule IV controlled substance. R.R. at 4a, 15a. Licensee sold his
pharmacy in April 1997 and moved to Costa Rica. Id. at 83a-84a. Licensee is a
citizen of Costa Rica and of the United States, and he has resided in Costa Rica from
1997 to the present. Id. at 83a, 137a, 139a. While living in Costa Rica, Licensee
has not practiced pharmacy. He has engaged in publishing, handicapping, and other
figures and not in Roman numerals: thus 1, 2, 3, etc., followed in the reproduced record by a small
a, thus 1a, 2a, 3a, etc.” Although the pagination of Licensee’s Reproduced Record does not
conform to the foregoing Rule, we will cite to the relevant pages as required by the Rule.
3
This section states, in relevant part:
(a) Unlawful acts
It shall be unlawful for any person knowingly or intentionally--
***
(4)(A) to furnish false or fraudulent material information in, or omit
any material information from, any application, report, record, or
other document required to be made, kept, or filed under this
subchapter or subchapter II . . . .
21 U.S.C. §843(a)(4)(A).
2
activities relating to international sports betting and prognostication, which has been
a life-long interest. Id. at 85a, 101a-04a.
Licensee traveled from Costa Rica to the U.S. in 2002 because his son
was ill, and he was arrested in the Miami Airport by law enforcement officials on an
outstanding warrant for the federal drug violations. R.R. at 86a. Licensee was
indicted on four counts of violating federal drug law. Id. at 11a-15a. Licensee was
detained and transported to Pennsylvania, where he was later released on bond. Id.at 86a-87a. On October 10, 2003, Licensee pleaded guilty in the United States
District Court for the Eastern District of Pennsylvania in the case of United States v.
Norman Steinberg t/a Chelten Pharmacy, (E.D.Pa. No. 99-594), to Count IV of the
indictment, a misdemeanor, for “Omitting Material Information from Required
Records” in violation of 21 U.S.C. §843(a)(4)(A), and Counts I, II, and III were
dismissed. Id. at 16a. On May 27, 2005, the court entered judgment, sentenced
Licensee to time served, and ordered him to pay the maximum fine of $30,000. Id.at 16a-36a. After his arrest, through sentencing, and for several years thereafter,
Licensee cooperated with, provided information for, and assisted federal law
enforcement officials in several jurisdictions with their ongoing investigations into
illegal gambling and related activities. Id. at 104a-10a; 120a-27a.
On July 11, 2016, the Bureau of Professional and Occupational
Licenses (Bureau) filed an Order to Show Cause to consider professional discipline
against Licensee for his federal drug law conviction, which constituted a violation
of Section 5(a)(2) of the Pharmacy Act. 4 R.R. at 1a-8a. Licensee filed a response
4
Section 5(a)(2) of the Pharmacy Act provides, in relevant part:
(Footnote continued on next page…)
3
to the Order to Show Cause and requested a hearing to present mitigating evidence.
Id. at 23a-30a. The hearing before the Board-appointed hearing examiner took place
on January 12, 2017, at which Licensee and the Bureau were represented by counsel.
Id. at 63a-64a. The Bureau presented documentary evidence of Licensee’s
conviction. Licensee presented documentary evidence and his own testimony in
support of mitigation. Licensee also presented the testimony of Melanie
Zimmerman, the Board’s Executive Secretary, for details on Licensee’s application
to reactivate his license. Id. at 65a-66a. The hearing examiner circulated a proposed
adjudication on June 6, 2017, recommending Licensee’s license be revoked. Id. at
234a-56a. The Board filed a Notice of Intent to Review the hearing examiner’s
decision. Id. at 257a. Licensee filed exceptions to the hearing examiner’s proposed
adjudication, focusing on the proposed revocation, and arguing the hearing examiner
mischaracterized the evidence presented. Id. at 258a-80a. The Board reviewed the
entire record, including Licensee’s exceptions, and issued its Final Adjudication and
Order on June 22, 2020, revoking Licensee’s pharmacist license. Id. at 281a-94a.
(a) The board shall have the power to refuse, revoke or suspend
the license of any pharmacist upon proof satisfactory to it that the
pharmacist:
***
(2) Has been found guilty, pleaded guilty, entered a plea of nolo
contendere, or has received probation without verdict, disposition in
lieu of trial or an Accelerated Rehabilitative Disposition in the
disposition of felony charges, to any offense in connection with the
practice of pharmacy or any offense involving moral turpitude
before any court of record of any jurisdiction[.]
63 P.S. §390-5(a)(2).
4
In its decision, the Board concluded, and the parties did not dispute,
that Licensee’s federal drug law conviction was directly connected with the practice
of pharmacy, thus subjecting him to the Board’s jurisdiction and discipline under
Section 5(a)(2) of the Pharmacy Act. The Board stated: “This conviction alone
establishes that [Licensee] was the pharmacy owner during a thirteen-month period
during which the criminal action was occurring, resulting in 410,000 tablets being
unaccounted for.” R.R. at 288a. The Board considered each of Licensee’s
exceptions before determining the appropriate sanction. Id. The Board considered
Licensee’s assistance to federal authorities, but did not find it relevant to his
culpability for the Pharmacy Act violation. The Board stated: “Additionally, it
should be noted that in considering [Licensee’s] criminal culpability, the Board is
not concerned with the degree of assistance provided to the U.S. Attorneys by
[Licensee], as those efforts only speak to the mitigation of his criminal sentence.”
Id. at 288a-89a. The Board was not persuaded by Licensee’s contention that his
lenient sentence was “based on the justice system’s view of the crime itself.” Id. at
289a. The Board concluded that Licensee received a lenient sentence because of the
assistance that he provided to federal authorities for their international gambling
investigation, and “not because the justice system viewed his crime as not being
serious. As such, the Board finds this argument without merit.” Id.
The Board also addressed Licensee’s argument that he deserved a lesser
sanction because of the age of the conviction. The Board concluded that, “[w]hile
the action may have occurred several years ago, the Board did not learn of his
conviction until at least 2014 and that information was not passed along to the legal
department until at least December 2015.” R.R. at 289a. The Board stated that
Licensee’s criminal charges “stem from [Licensee’s] lack of supervision and
5
oversight resulting in 410,000 tablets being unaccounted for. [Licensee] does not
have an explanation for his behavior, but rather blames his employees for their
behavior and notes his failure to supervisor them properly.” Id. The Board
concluded that
[Licensee’s] behavior was egregious, and he offers
nothing of substance in mitigation of that behavior.
Instead, [Licensee] bombards the Board with his stories of
his assistance to U.S. Attorneys, relating to gambling and
money laundering cases, but his actions do little to
establish his competency or trustworthiness to practice as
a pharmacist.
Id. at 290a.
In determining that revocation is the appropriate sanction in this case,
the Board agreed that the purpose of discipline is “not to exact retribution” against
Licensee, but rather to “protect public health and safety.” R.R. at 289a. The Board
stated that “[t]he sole fact that 410,000 tablets went unaccounted for under
[Licensee’s] supervision proves that [Licensee] is not responsible enough to be
trusted to engage in the practice of pharmacy.” Id. The Board also stated that “the
sanction imposed needs to send the appropriate message to [Licensee] that
accountability and responsibility regarding compliance with the Pharmacy Act and
the Board’s regulations rest solely with the licensee.” Id. at 290a. The Board
concluded: “Here, the Board finds that to fulfill its duty as protectorate of the
public and to the integrity of the profession it needs to send a clear message about
the severity of [Licensee’s] violations—both to the citizens of the Commonwealth
and to [Licensee] himself.” Id. Licensee appealed the Board’s decision to this
Court.5
5
This Court’s scope of review is as follows:
(Footnote continued on next page…)
6
Licensee presents one question for review, whether the Board
manifestly abused its discretion when it revoked Licensee’s pharmacist license based
on his conviction, which violated the Pharmacy Act. Licensee does not dispute that
he was convicted of violating federal drug laws, nor does he dispute that this
conviction is a violation of the Pharmacy Act. Licensee argues that the Board
manifestly abused its discretion when it failed to consider the mitigating evidence
that he presented, and when it imposed the ultimate discipline of revoking his
pharmacist license based on his 2003 conviction and 2005 sentencing, which
occurred approximately 10 years before the Bureau issued its Order to Show Cause.6
Licensee relies primarily on two cases to support his mitigation
arguments. In Secretary of Revenue v. John’s Vending Corporation, 309 A.2d 358(Pa. 1973), a licensee’s shareholder was convicted of several crimes of moral
turpitude 20 years before the licensee applied for his vending license. The
shareholder’s crimes involved selling untaxed liquor, possessing and transporting
unstamped whiskey, and selling opium derivatives. Our Supreme Court reversed
the licensee’s license revocation, holding that the convictions from 20 years earlier
failed to provide any basis to evaluate his present character, where the record showed
Unless the occupational licensing board is accused of bad faith or
fraud, . . . the scope of appellate review of the board’s disciplinary
sanction is “limited to the determination of whether there has been
a manifest and flagrant abuse of discretion or a purely arbitrary
execution of the agency’s duties or functions.”
Ake v. Bureau of Professional and Occupational Affairs, State Board of Accountancy, 974 A.2d
514, 519 n.6 (Pa. Cmwlth. 2009)(citations omitted).
6
Licensee sought a stay of the Board’s June 22, 2020 order that revoked his pharmacist
license, which this Court denied in a Memorandum Opinion and Order dated August 11, 2020.
7
that he had worked without incident as a wholesale cigarette dealer for 12 years
before the license revocation. Id. at 362.
The second case that Licensee relies on is Ake v. Bureau of Professional
and Occupational Affairs, State Board of Accountancy, 974 A.2d 514 (Pa. Cmwlth.
2009). In Ake, the board revoked a licensee’s certified public accountancy (CPA)
certificate and license based on his conviction for criminal harassment in Illinois
seven years earlier. The licensee argued that the board abused its discretion when it
imposed the maximum penalty, revocation, for a seven-year-old conviction that was
not related to his profession as an accountant. The licensee further argued that the
board abused its discretion by not considering additional mitigation evidence,
namely, that he truthfully disclosed his conviction, that he participated in counseling
and community service to become rehabilitated, and that he needed his accountancy
license to maintain gainful employment. Id. at 515-516. In Ake, this Court
recognized that the board “exercises considerable discretion in policing its licensees.
However, this Court is ‘required to correct abuses of discretion in manner or degree
of penalties imposed.’ Foose v. State Board of Vehicle Manufacturers, Dealers and
Salespersons, 578 A.2d 1355, 1359 (Pa. Cmwlth. 1990).” Ake, 974 A.2d at 519.
This Court vacated and remanded the licensee’s revocation, and held that although
the licensee’s harassing conduct in Illinois was deplorable, it did not relate to
character qualities identified as central to holding a CPA license under the CPA
Law,7 which governed. Ake, 974 A.2d at 520.
Here, Licensee testified that he cooperated with federal authorities in
numerous federal jurisdictions including the Southern District of Florida, the Eastern
District of Pennsylvania, the Western District of Pennsylvania, and the Eastern
7
Act of May 26, 1947, P.L. 318, as amended, 63 P.S. §§ 9.1-9.16b.
8
District of Missouri, to assist in their investigations of illegal gambling. R.R. at
106a, 126a, 232a-33a. Based on his cooperation in their investigations, U.S.
Attorneys argued for, and Licensee received, a reduced sentence for his drug
violation, which Licensee refers to repeatedly as a “record keeping violation.” Id. at
108a, 140a. Licensee argues that his guilty plea to one drug violation and the
sentence that followed were influenced by his cooperation with the federal
authorities in their gambling investigations. Licensee argues that because the federal
authorities used his cooperation to support leniency in his drug violation, his
cooperation must be considered to mitigate his culpability for the Pharmacy Act
violation. Licensee points to comments from the federal authorities in the downward
deviation sentencing memorandum as mitigation evidence.8 Licensee testified that
although he was the supervising pharmacist, it was his employees, not himself, who
improperly ordered and disposed of the Xanax. Id. at 90a-92a. Licensee testified
8
At the Board hearing, Licensee requested that the sentencing memorandum be sealed
because of potential danger to him from those being investigated. Following a discussion among
the parties, the hearing examiner denied Licensee’s motion to seal, and the documents were
admitted. R.R. at 108a-16a. Licensee relies upon statements contained in the sentencing
memorandum, specifically those contained in a footnote, to support mitigation:
The Probation Office calculated a higher offense level and
sentencing range (level 23, with a range beginning at 46 months)
counting as relevant conduct quantities of Schedule II controlled
substances charged in counts to which [Licensee] did not plead
guilty. The government agreed to the more limited guilty plea and
guideline calculation following a review of the available evidence
more than six years after the pharmacy audit in question, and a
proffer by [Licensee] credibly calling into question the veracity and
innocence of one of his former employees. In short, the government
did not view the evidence as justifying inclusion of the Schedule II
controlled substances. The government, of course, must and does
adhere to the stipulations reflected in the plea agreement.
R.R. at 199a.
9
that he accepted responsibility as “captain of the ship,” agreed that he should have
supervised his employees more closely, but maintained they were responsible. Id.
at 136a.
Licensee argues that his 2003 conviction under the federal drug law
would not stand under current law, which was amended shortly after the underlying
events occurred. Licensee argues that because the current law requires negligence
for record-keeping violations, he likely would not have been charged or convicted
today.
Licensee also argues that the Board’s revocation was not related to
public safety concerns. He argues that the Board capriciously disregarded mitigation
evidence when it failed to adopt any of the 75 proposed findings in his post-hearing
brief, which outlined his extensive cooperation with authorities in their illegal
gambling investigations. Licensee argues that the Board’s finding that it “is not
concerned with the degree of assistance provided to U.S. Attorneys by [Licensee],
as those efforts only speak to mitigation of his criminal sentence” evidences its
capricious disregard of the mitigation evidence. R.R. at 288a-89a.
The Board responds that the revocation of Licensee’s pharmacy license
should be affirmed because it did not manifestly abuse its discretion. The Board
argues that Licensee is asking this Court to reweigh the evidence, and to conclude
the sanction of revocation is unreasonable, which it may not do under the applicable
standard of review. Otherwise, this Court’s review would “swallow up the whole
system of administrative adjudications, in which administrative bodies having
expertise in specific areas of law are entrusted to fashion administrative remedies
that are fair and appropriate.” Slawek v. Board of Medical Education and Licensure,
586 A.2d 362, 366 (Pa. 1991). The Board argues that an agency’s decision is
10
arbitrary and capricious only where there is no rational connection between the facts
found and the choices made. The weight that the Board assigns to mitigation
evidence is a matter within its discretion. Burnworth v. State Board of Vehicle
Manufacturers, Dealers and Salespersons, 589 A.2d 294, 296 (Pa. Cmwlth. 1991).
The Board contends that this Court should not substitute its judgment for that of the
Board on matters of professional competence.
The Board agrees that Licensee’s conviction was for a record-keeping
violation. However, the behavior underlying the conviction was his failure to
account for 410,000 missing Xanax tablets, a controlled substance, in a Pennsylvania
pharmacy that he owned and in which he was working. After the violations came to
light, Licensee sold his pharmacy and went to live in Costa Rica to continue his
gambling business, where he lived and worked from 1997 to 2002. License returned
to the U.S. in 2002 because his son was ill, and he was arrested in the Miami Airport
on his outstanding warrant. The Board notes that Licensee did not voluntarily
surrender, as he misstates in his brief.
The Board further responds that the cases on which Licensee relies are
distinguishable. In John’s Vending, the licensee’s shareholder’s conviction for tax
and liquor violations occurred 20 years before the licensee had applied for a license,
and the licensee had worked for 12 years without incident in his profession before
being faced with a revocation. In Ake, the licensee’s harassment conviction was
unrelated to his chosen profession, was an isolated incident that took place over a
two-week period, and he had not engaged in similar conduct since his arrest.
Here, the Board argues, Licensee’s conduct and his conviction were
directly related to the pharmacy profession. Licensee failed to account for 410,000
missing Xanax tablets over a 13-month period, meaning that approximately 1,000
11
pills went missing each day in which Licensee failed to act. The Board argues that
it did not become aware of Licensee’s 2003 conviction and 2005 sentence until 2015,
when it arose during Licensee’s application to renew. The Board argues that the
nature of the offending conduct and its remoteness in time “must be considered for
revocation actions.” Ake, 974 A.2d at 520 (emphasis added).
The Board argues that its purpose under the Pharmacy Act is to regulate
the practice of pharmacy for the protection and promotion of public health, safety,
and welfare.9 The Board argues that Licensee’s revocation is related to this purpose
and is the appropriate sanction so that other pharmacists are put on notice that one
cannot merely leave the state to avoid discipline. The Board agrees that individuals
have the right to pursue their lawful occupation, but this is not a fundamental right.
It may be subject to limitations imposed by valid exercise of authorities to regulate
professions as authorized by statute. Nixon v. Commonwealth, 839 A.2d 277, 288
(Pa. 2003).
The Board further responds that Licensee’s argument that he would
probably not be convicted today under amended federal law is mere speculation.
Licensee was convicted under Section 843(a)(4)(A) of the United States Code,
which was not amended, and not Section 842 of the United States Code, as Licensee
suggests.10 He pleaded guilty to Count IV of the indictment, which stated that he
knowingly and intentionally omitted material information from required records.
The Board further responds that it did not err when it considered
Licensee’s mitigation evidence, but failed to give it the weight that Licensee had
9
See Section 6(k)(9) of the Pharmacy Act, 63 P.S. §390-6(k)(9) (“The board shall have
the power, and it shall be its duty . . . to regulate the distribution of drugs and devices and the
practice of pharmacy for the protection and promotion of the public health, safety and welfare.”).
10
Compare 21 U.S.C. §843(a)(4)(A) with 21 U.S.C. §842.
12
hoped. The Board found that failing to account for 410,000 Xanax tablets showed
that he was not responsible enough to remain a licensed pharmacist. Licensee’s
evidence of his cooperation with U.S. Attorneys on gambling cases did not mitigate
his behavior, but merely afforded him a more lenient sentence. Although Licensee
accepted responsibility as “captain of the ship,” he blamed his employees for the
wrongdoing, and noted that he should have supervised them better. He then moved
to Costa Rica where he worked in the international betting industry, and not as a
pharmacist. His assertion that the rest of his pharmacy record is clean is misleading
because he has not worked as a pharmacist since 1997, when he moved to Costa
Rica.
We are mindful that “[i]n the absence of bad faith, fraud, capricious
action or abuse of power, reviewing courts will not inquire into the wisdom of the
agency’s action or into the details or manner of executing agency action.” Slawek,
586 A.2d at 365. Here, Licensee does not dispute that his conviction was directly
related to the practice of pharmacy, but he argues that it was too remote in time to
justify revocation of his license. Relying on Johns’s Vending and Ake, we conclude
that although Licensee’s conviction took place approximately 10 years before the
Board took action, because it relates directly to his profession, the Board did not err
in revoking his license. Although his conviction in 2003 and sentencing in 2005
occurred approximately 10 years before the Bureau issued an Order to Show Cause,
the Board only became aware of the conviction in 2015, when Licensee applied to
reactivate his pharmacy license. Further, we cannot conclude that the Board abused
its discretion in considering Licensee’s 2003 conviction, when the conviction is
rationally connected to the Pharmacy Act’s purpose of promoting and protecting
public health, safety, and welfare.
13
We also conclude that the Board did not manifestly abuse its discretion
in imposing the most severe penalty, revocation, on Licensee. The Board must
consider mitigation evidence offered by Licensee, which the record shows that it did
here. The Board concluded, however, that Licensee’s cooperation with federal
authorities on their international gambling investigations did not reduce his
culpability for the violation of the Pharmacy Act. A Board may give greater weight
to the seriousness of a licensee’s criminal convictions than to mitigating evidence.
Burnworth, 589 A.2d at 297.
Further, the Court may not reweigh the evidence presented to the Board,
including the mitigation evidence that Licensee presented here. Burnworth, 589
A.2d at 296. The Board found that Licensee failed to fully accept responsibility for
his actions, stating that he was responsible as “captain of the ship,” but that it was
his employees’ fault for diverting the pills, and he admitted that he “just didn’t keep
an eye on matters.” R.R. at 90a. Although the Board found that Licensee had no
other Pharmacy Act violations, it failed to give significant weight to that fact because
Licensee admitted that he did not practice pharmacy since he left for Costa Rica in
1997. We conclude that the Board did not manifestly abuse its discretion when it
made these findings based on Licensee’s testimony in the record. Further, we note
that, unlike cases where licensees presented mitigating evidence such as showing
that they needed their job to support their family, showing that they had taken steps
to rehabilitate themselves from prior bad acts, or testimony from character witnesses
as to their diligence and honesty, Licensee presented no such mitigating evidence.11
11
See, e.g., Bentley v. Bureau of Professional and Occupational Affairs, State Board of
Cosmetology, 179 A.3d 1196, 1201 (Pa. Cmwlth. 2018) (“Here, the [b]oard’s adjudication recited
that it ‘reviewed the entire record.’ However, this conclusory recital cannot be reconciled with the
[b]oard’s adjudication, which does not address the hearing examiner’s extensive findings on and
discussion of [the licensee’s] mitigating evidence.”) (citations to the record omitted).
14
Here, in support of mitigation, Licensee offered only his own testimony
and the federal sentencing memorandum, focusing on a footnote that does not relate
to the charge of which Licensee was convicted, but to charges that were ultimately
dismissed. Licensee testified that he did not need his license to make a living, that
he was currently retired, and that he was doing pretty well. Licensee testified that
he did not intend to return to Pennsylvania and practice pharmacy. R.R. at 138a,
141a-42a. Therefore, we conclude that the Board did not manifestly abuse its
discretion when it considered Licensee’s mitigation evidence, and determined that
revocation was the appropriate sanction, based on Licensee’s conviction for a crime
directly related to the practice of pharmacy.
For the foregoing reasons, we affirm the Board’s Order dated June 22,
2020.
MICHAEL H. WOJCIK, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Norman Steinberg, R.PH., :
:
Petitioner :
:
v. : No. 681 C.D. 2020
:
Bureau of Professional and :
Occupational Affairs, State :
Board of Pharmacy, :
:
Respondent :
ORDER
AND NOW, this 18th day of August, 2021, the Final Order of the
Department of State, Bureau of Professional and Occupational Affairs, State Board
of Pharmacy dated June 22, 2020, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge