Tucker v. Delaware Board of Pharmacy

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SHEILA P. TUCKER, : C.A. No. K19A-04-005 NEP
In and for Kent County
Appellant,
Vv.
DELAWARE BOARD OF
PHARMACY,
Appellee.
ORDER
Submitted: September 4, 2019
Decided: November 27, 2019
Upon Appeal from the Delaware Board of Pharmacy
AFFIRMED
Ciro Poppiti, II, Esquire, Poppiti Law, LLC, Attorney for Appellant Sheila P.
Tucker.
Eileen Kelly, Esquire, Department of Justice, Attorney for Appellee Delaware Board
of Pharmacy.
Before the Court is Sheila Tucker’s (hereinafter “Ms. Tucker”) appeal from
the Delaware Board of Pharmacy’s (hereinafter the “Board’’) decision to suspend her
pharmacy license for one year, followed by a three-year license probation. Upon an
extensive review of the record, this Court has determined that the Board had a
substantial basis for its decision and made no errors of law in reaching its
conclusions. Therefore, the Board’s decision is AFFIRMED.
I. Factual Background and Procedural History
Ms. Tucker has been a licensed pharmacist for the past thirty-six years, with
no prior discipline from the Board. Ms. Tucker has served as President of the
Delaware Pharmacists Society and has been active in the Delaware Society of Health
System Pharmacists. In 2003, Ms. Tucker opened Market Street Pharmacy
(hereinafter the “Pharmacy”) in Wilmington, Delaware, as part of her commitment
to serve underserved communities. Ms. Tucker owned and operated the Pharmacy
as its pharmacist-in-charge, and leased the building from McConnell Development,
Inc.
Over time, the Pharmacy began to decline. On or about July 29, 2016,
Respondent informed the Division of Professional Regulation (hereinafter the
“DPR”) that she planned to close the Pharmacy by August 8, 2016. On August 1,
2016, the DPR sent a letter to Ms. Tucker providing the legal requirements for
closure of a pharmacy under Board of Pharmacy Regulation 4.0.
Ms. Tucker retained closure documents, controlled substances, and patient
records in the building as she worked to close down the Pharmacy. McConnell
Development terminated Ms. Tucker’s lease on the property on October 31, 2016.
At some point between the closure of the Pharmacy and October 2016, Ms. Tucker
lost custody of the patient records and controlled substances. Ms. Tucker failed to
inform the Board, the Office of Controlled Substances, or the Drug Enforcement
Administration that this had occurred.
On or about August 7, 2018, the State of Delaware filed a professional
licensure complaint against Ms. Tucker with the Board. In response, Ms. Tucker
stipulated with the State that she had “violated each of the statutory and regulatory
1
provisions cited in the State’s complaint.
' App. to Ms. Tucker’s Opening Br. at A-18.
On November 30, 2018, Hearing Officer Roger Akin (hereinafter the
“Hearing Officer”) held a hearing on the State’s complaint. The Hearing Officer
accepted the stipulated facts and reviewed mitigating evidence from the following
individuals: (1) Ms. Tucker; (2) Mr. John Simpson, Ms. Tucker’s former employee
and mentee; (3) Senator Margaret Henry, a former state senator; (4) Mr. Christopher
Cook, Vice President of Greenhill Pharmacy; (5) Ms. Margaret Tigue, a community
activist; and (6) Mr. Kevin Smith, CEO for Habitat for Humanity, New Castle
County. The mitigating testimony spoke to Ms. Tucker’s reputation in the
community and in the pharmaceutical profession. To summarize the mitigating
evidence, the Hearing Officer stated that “there [was] no evidence . . . of any intent
on [Ms. Tucker’s] part to cause harm” and that Ms. Tucker had “demonstrated a
credible desire to serve the pharmacy needs of underserved, at-risk patients in
{Delaware].””
On January 9, 2019, the Hearing Officer recommended the following
conclusions of law based upon his factual findings:
(1) Ms. Tucker had violated 24 Del. C. § 2515(a)(6)° by violating Bd. Reg.
4.1.2 (providing that upon permanent closure of pharmacy, certain
information must be provided to Executive Secretary of Board of
Pharmacy within seven days of closure).
(2) Ms. Tucker had violated 24 Del. C. § 2515(a)(6) by violating Bd. Reg.
4.1.3 (providing that upon permanent closure of pharmacy, person in
control of pharmacy must provide newspaper notification of such closure,
including date of closure and to which pharmacy prescriptions will be
transferred).
? Id. at A-27.
3 “A pharmacist licensed under this chapter is subject to disciplinary sanctions set forth in § 2516
of this title if, after a hearing, the Board finds that the pharmacist .... [h]as violated a lawful
provision of this chapter or any lawful regulation established hereunder.”
3
(3) Ms. Tucker had violated 24 Del. C. § 2515(a)(6) by violating Bd. Reg.
4.1.4 (providing that upon permanent closure of pharmacy, person in
control of pharmacy must surrender to appropriate authorities his or her
pharmacy permit, controlled substances permit, federal controlled
substances permit, and all unused 222 Schedule II order forms).
(4) Ms. Tucker had violated 24 Del. C. § 2515(a)(6) by violating Delaware
Uniform Controlled Substances Act Regulation (hereinafter “UCSR”)
6.1.2 (providing that those who prescribe or dispense controlled substances
must maintain certain records, including name and address of patients to
whom prescriptions are administered; dates, names, strengths, and quantity
of prescriptions; and whether refills are authorized).
(5) Ms. Tucker had violated 24 Del. C. § 2515(a)(6) by violating UCSR 6.1.3
(providing that dispensing pharmacist must maintain records concerning
controlled substances according to applicable federal regulations).
(6) Ms. Tucker had not violated UCSR 6.3.1 (providing that when
pharmacist-in-charge leaves position, complete inventory of all controlled
substances must be taken by departing pharmacist and arriving pharmacist)
since there was no “arriving” pharmacist in this case.
(7) Ms. Tucker had violated 24 Del. C. § 2515(a)(6) by violating UCSR 6.3.2
(providing that pharmacist closing practice must notify Office of
Controlled Substances within thirty days of such decision, and provide
Office with inventory of controlled substances “on hand”).
(8) Ms. Tucker had violated 24 Del. C. § 2515(a)(6) by violating UCSR 6.4
(providing that pharmacist must retain all records “required by” Uniform
Controlled Substances rules for at least two years).
(9) Ms. Tucker had violated 24 Del. C. § 2515(a)(2).!
The Hearing Officer recommended a two-year suspension of Ms. Tucker’s
pharmacy license, stayed immediately in lieu of a three-year license probation. The
Hearing Officer recommended that Ms. Tucker be subject to various requirements
as part of this probation.
On February 20, 2019, the Board held a hearing on Ms. Tucker’s case and
voted unanimously to accept the Hearing Officer’s conclusions of law. However,
the Board rejected the Hearing Officer’s discipline recommendation and instead
imposed a license suspension for one year, followed by a three-year period of
probation. The Board issued its final order on March 20, 2019. Ms. Tucker filed a
timely Notice of Appeal on April 17, 2019, challenging the discipline ordered by the
Board.
Il. Standard of Review
On appeal from an administrative board’s final order, the appellate court must
determine whether the board’s decision was supported by “substantial evidence”?
and that the board “made no errors of law.’® Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
The appellate court must review the record in a manner “most favorable to the
998
prevailing party below.”® The appellate court does not weigh the evidence or make
its own factual findings — rather, it determines if the evidence was adequate to
* “A pharmacist licensed under this chapter is subject to disciplinary sanctions set forth in § 2516
of this title if, after a hearing, the Board finds that the pharmacist ... . [hlas illegally,
incompetently, or negligently practiced pharmacy.”
> 29 Del. C. § 10142(d); Tri-State Liquor Mart, Ltd. v. Delaware Alcoholic Beverage Control
Comm’n, 1995 WL 656872, at *2 (Del. Super. Oct. 2, 1995); Sekyi v. Delaware Board of
Pharmacy, 2018 WL 4177544, at *3 (Del. Super. Aug. 29, 2018).
° Sekyi, 2018 WL 4177544, at *3.
7 Id. (quoting Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998)).
8 Td. (quoting Bermudez v. PTFE Compounds, Inc., 2006 WL 2382793, at *3 (Del. Super. Aug.
16, 2006); Gaskill v. State, 2018 WL 3213782, at *1 (Del. Super. June 29, 2018).
5
support the board’s factual findings.? As part of this process, the appellate court
must review the record to determine whether the administrative board could have
“fairly and reasonably” reached its conclusions.!'? The party challenging the board’s
decision bears the burden of proof.'!
III. Discussion
Ms. Tucker challenges the Board’s final order, arguing that it: (1) failed to
rely on substantial evidence, demonstrated by the fact that it did not address a key
portion of the Hearing Officer’s findings of fact; and (2) contains an error of law
because it imposed a higher level of discipline than what the Hearing Officer had
recommended.
Under 29 Del. C. § 8735(v)(1)d, “[t]he findings of fact made by a hearing
officer on a complaint are binding upon the board... . [and] [t]he board shall make
its final decision to affirm or modify the hearing officer’s recommended conclusions
of law and proposed sanctions based upon the written record.” The board must make
its decision based upon the entire factual record,'* but there is no statutory
requirement that the Board discuss each portion of the Hearing Officer’s findings of
fact in its deliberations.
During the hearing, the Board failed to discuss Ms. Tucker’s written
statement, Mr. Simpson’s testimony, Senator Henry’s email, Mr. Cook’s letter, Ms.
Tigue’s email, and Mr. Smith’s email. The Board also failed to mention this
evidence in its final order. Ms. Tucker argues that these failures demonstrate that
the Board failed to review the entire record and therefore that the Board’s decision
? Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
10 Sekyi, 2018 WL 4177544, at *3 (citing Nat’l Cash Register v. Riner, 424 A.2d 669, 674-75
(Del. Super. 1980)).
'! Gaskill, 2018 WL 3213782, at *1 (citing Dep't of Justice v. Unemployment Ins. Appeal Bd,
2016 WL 3742158, at *4 (Del. Super. July 6, 2016)).
'2 29 Del. C. § 10128(a) (“The agency shall make its decision based on the entire record of the
case upon the summaries and recommendations of its subordinates.”).
6
was not supported by substantial evidence. This argument is unpersuasive because
it is grounded in a misrepresentation of the law. The Board was required to accept
the Hearing Officer’s findings of fact, and base its decision on said facts, but it was
not required to discuss or write about the entire factual record.
Moreover, the Board’s deliberations demonstrate that its decision was based
on substantial evidence and that the five Board members present were familiar with
the record and the Hearing Officer’s Recommendation, which included his findings
of fact. Board members Tejal Patel and Jay Galloway each stated that they had read
the Recommendation.'? Board members Hooshang Shanehsaz, Susan Esposito, and
Bonnie Wallner made comments demonstrating their familiarity with the facts and
circumstances of the case, thereby indicating that they too had read the
Recommendation."4
Furthermore, Eileen Kelly, Esquire’s (hereinafter “Ms. Kelly”),!° question of
“[h]ave the Board members had a chance to look at [the Hearing Officer’s report]?”
appeared to be posed to the entire Board, to which the Board President,
presumptively the spokeswoman of the group, replied “yes.”'® Therefore, giving
appropriate deference to the prevailing party below,!’ one can reasonably conclude
that the entire Board had read the Recommendation.
Ms. Tucker also argues that the Board’s failure to correct Ms. Kelly’s
“misstatement of the evidence” demonstrated that it had not read the Hearing
Officer’s Recommendation in its entirety. During the hearing, Ms. Kelly told the
Board that Ms. Tucker “had a couple of character witnesses, one testified through
letters.”!8
'3 App. to Ms. Tucker’s Opening Br. at A-31, A-42.
4 Id. at A-37, A-39, A-44,
' Ms. Kelly was the Board’s attorney at the time of the hearing.
'6 App. to Ms. Tucker’s Opening Br. at A-31.
" Sekyi, 2018 WL 4177544, at *3.
'8 App. to Ms. Tucker’s Opening Br. at A-32.
First, Ms. Kelly’s statement, while not exact, is substantially correct. Ms.
Tucker did indeed have multiple character witnesses, one who spoke at the hearing
— Mr. Simpson; three who submitted emails for review at the hearing — Senator
Henry, Ms. Tigue, and Mr. Smith; and one who “testified through letters” — Mr.
Cook.
Second, assuming arguendo that this statement was incorrect, in the context
of the hearing it logically follows that the Board would choose not to correct such a
minor point. The Board may have found this statement not worth correcting because
it was unrelated to their main concern, which was that Ms. Tucker had negligently
committed multiple violations, despite the fact that she had practiced pharmacy for
thirty-six years and “knew or should have known” what was required of her.!°
Finally, the Court holds that the Board did not make an error of law when it
imposed greater discipline than what the Hearing Officer had recommended. The
Board has full discretion to impose the penalty that it deems appropriate and is not
bound to follow the hearing officer’s recommendation.”° Here, the Hearing Officer
”21 which range from a
“acknowledged the statutory guidelines for each violation,
letter of reprimand to the licensee to a complete revocation of the licensee’s license.””
The Hearing Officer recommended a penalty within this range, and although the
Board modified that recommendation, it nevertheless imposed discipline that was
'9 Td. at A-5.
*0 29 Del. C. § 8735(v)(1)d (“[t]he board or commission shall make its decision to affirm or modify
the hearing officer’s ... proposed sanctions.”); see Centers v. Delaware Bd. of Med. Licensure
and Discipline, 2017 WL 2558266, at *3 (Del. Super. June 12, 2017) (affirming board’s decision
to increase discipline from that imposed by the hearing officer); see also Sheck v. Bd. of Educ. of
Colonial Sch. Dist., 1983 WL 409633, at *1 (Del. Super. Feb. 10, 1983) (affirming board’s
decision to reject hearing officer’s recommendation for license suspension and terminate license
instead).
21 Centers, 2017 WL 2558266, at *4.
22 24 Del. C. § 2516(a)(1-6); see Centers, 2017 WL 2558266, at *4 (court presenting range of
penalties available under statute and holding hearing officer imposed discipline within statutorily-
authorized range).
8
“within the guidelines.””? Moreover, the Board explained in its written decision its
reasons for imposing greater discipline than that recommended by the Hearing
Officer, concluding that the Hearing Officer’s recommended discipline was
“insufficient to address the risk to the public presented by Ms. Tucker.”* Therefore,
“the discipline imposed upon Ms. Tucker will not be disturbed,””° and it is irrelevant
that the parties agreed to different discipline than that ultimately imposed by the
Board.
IV. Conclusion
The Board must base its decision on the entire factual record. However, it is
not required to discuss or mention every fact within the Hearing Officer’s report.
Further, the Board is not bound by a Hearing Officer’s recommended discipline.
Here, the Board’s decision was based on substantial evidence from the entire
record and contained no error of law. Therefore, the decision is affirmed.
WHEREFORE, for the forgoing reasons, the decision of the Board of
Pharmacy is AFFIRMED.
IT IS SO ORDERED.
/s/ Noel Eason Primos
Judge
NEP/wijs
Sent via File & ServeXpress
oc: Prothonotary
Counsel of Record
3 Centers, 2017 WL 2558266, at *4.
*4 App. to Ms. Tucker’s Opening Br. at A-5.
25 Centers, 2017 WL 2558266, at *4.