Sekyi v. Delaware Board of Pharmacy ( 2018 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
KODWO BEDU SEKYI,
K17A-10-0()1 WLW
Appellant-Defendant BeloW,
V.
DELAWARE BOARD 0F
PHARMACY,
Appellee-Plaintiff Below.
Submitted: June 7, 2018
Decided: August 29, 2018
OPINION AND ORDER
Upon an Appeal from the Decision
of the Delaware Board of Pharmacy.
Reversed and Remanded.
Gregory A. Morris, Esquire of Liguori & Morris, Dover, Delaware; attorney for
Appellant/Defendant-Below.
Eileen Kelly, Esquire of the Delaware Department of Justice, Dover, Delaware;
attorney for appellee/Plaintiff-Below.
WITHAM, R.J.
Kodwo B. Sekyi v. Del. Ba'. of Pharmacy
C.A. No. Kl7A-lO-()Ol WLW
August 29, 2018
Before the Court is Kodwo Bedu Sekyi’s (hereinafcer, the “Appellant”) appeal
from the Delaware Board of Pharmacy’ s (hereinafter, the “Pharmacy Board”) decision
to impose sanctions, including a two-year suspension of the Appellant’s pharmacist
license, against the Appellant based upon a hearing officer’s (hereinafter, the
“Hearing Officer”) determination that the Appellant violated certain provisions of the
Pharmacy Board’s Practice Act, Chapter 25 of 'l`itle 24 (hereinafter, the “Practice
Act”) of the Delaware Code, and certain Pharmacy Board regulations After an
extensive review of the record, it is clear to the Court that the Pharmacy Board
improperly considered additional evidence, that was not included in the written
record, when the Pharmacy Board imposed the sanctions against the Appellant.
Accordingly, the Pharmacy Board’s decision is hereby REVERSED and
REMANDED.
FACTUAL AND PROCEDURAL BACKGROUNDl
The facts leading to the Pharmacy Board’s sanctions against the Appellant are
undisputed. The Appellant was, prior to the Pharmacy Board’s proceedings, a permit
holder and pharmacist-in-charge (hereinafter, “PIC”) of the Pill Box Pharmacy in
Milford, Delaware.
In July and Au gust of 20 l 5 , the Drug Enforcement Administration (hereinafter,
the “DEA”) and Delaware’s Division of Professional Regulation inspected the Pill
' Since this matter involves an appeal of an administrative agency’s decision, the Court
confines its review to the facts contained in the entire record. lt is those facts that are referenced
herein.
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Box Pharmacy. The investigation uncovered a number of violations of federal and
State laws and regulations pertaining to the operation of pharmacies. Many of those
violations formed the basis of the allegations against the Appellant before the Hearing
Offlcer and the Pharmacy Board.
On May 23, 2017, the Hearing Officer held a hearing pursuant to the authority
granted by 29 Del. C. § 8735(v)( l ). The Hearing Offlcer recommended, based on his
factual findings, the following conclusions of law:
The Appellant violated 24 Del. C. § 2515(a)(6) and Pharmacy Board
Regulation 2.l.l in that he violated sections of both the Practice Act and Board
regulations
The Appellant violated Pharmacy Board Regulation 3.1.2.2 in his failure to
maintain records required by the Uniform Controlled Substance Act and other
relevant State and federal regulations.
The Appellant violated Pharmacy Board Regulation 3.1.2.3 in that he failed to
maintain proper security at the Pill Box Pharmacy. In particular, a substantial number
of filled prescriptions were left in the pharmacy in cardboard boxes available to
employees. And, the Appellant did not maintain inventory of stock at the Pill Box
Pharmacy.
The Appellant violated Pharmacy Board Regulation 3.1.2.7 in that, as the PIC,
he failed to conduct an annual pharmacy inspection and prepare a PIC report.
The Appellant violated Pharmacy Board Regulation 3.4.4 with respect to the
required parameters for refrigeration of drugs. Testimony at the hearing established
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that there was no evidence of a temperature monitor in the refrigerator nor were any
records routinely kept logging refrigerator temperatures
The Appellant violated Pharmacy Board Regulation 2.1.11 which, in part,
precludes the dispensing of “1egend” drugs without a valid order from a prescriber.
During the inspection, the investigators found a prescription for a controlled
substance which was not signed by the prescriber but which was dispensed by the
Appellant.
The Appellant violated Pharmacy Board Regulation 2.1.21 in that he engaged
in activities that would “discredit the profession of pharmacy.” In support of this
recommended conclusion, the Hearing Officer pointed to the Appellant’s failure to
maintain required inventories at the Pill Box Pharmacy for years since he opened it
and became PIC in 2006; the Appellant failed to report suspected theft; the Appellant
left substantial quantities of filled prescriptions for both controlled and non-
controlled substances unattended in cardboard boxes; and, on at least one occasion,
the Appellant dispensed a Schedule II controlled substance with an unsigned
prescription
The Appellant practiced pharmacy negligently. In support of this
recommendation, the Hearing Officer noted that the Appellant’s neglect of record-
keeping was a persistent failure over a number of years The Hearing Offrcer further
noted that the Appellant’s testimony about certain personal issues that occupied his
time away from the Pill Box Pharmacy did not excuse his substantial regulatory
violations
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In light of the foregoing violations, the Hearing Officer determined that a one-
year period of suspension of the Appellant’s pharmacist license, along with other
sanctions, was appropriate
On August 16, 2017, the Pharmacy Board provided the Appellant an
opportunity to present oral exceptions to the Hearing Officer’s recommendations
(hereinafter, the “Pharmacy Board Hearing”). The Appellant did not dispute the
Hearing Officer’s findings of fact but asked the Pharmacy Board to consider the
personal hardships that he faced in determining appropriate sanctions Ultimately,
the Pharmacy Board accepted the Hearing Officer’s recommended conclusions of
law. However, the Pharmacy Board rejected the sanctions proposed by the Hearing
Officer. lnstead, the Pharmacy Board, in addition to numerous other sanctions not
listed here, extended the suspension period of the Appellant’ s pharmacist license from
one-year to two-years and imposed a five-year probationary period to follow the
suspension.
On September 20, 2017, the Pharmacy Board issued a final order (hereinafter,
the “Pharmacy Board’s Final Order”). The order memorialized, in writing, the
Pharmacy Board’s decision to accept the Hearing Officer’s recommended conclusions
of law and set forth the newly agreed upon sanctions that were discussed during the
Pharmacy Board Hearing. The order specified that it declined to accept the Hearing
Officer’s recommended discipline because it was insufficient to address the
“significant risk to the public” presented by the Appellant.
The Appellant appealed the Pharmacy Board’s final decision to this Court.
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THE PARTIES CONTENTIONS
The Appellant’s only contention is, essentially, that the Pharmacy Board’s
decision was based upon facts or allegations not previously made against the
Appellant or considered by the Hearing Officer.
In response, the Pharmacy Board contends that the Court is not permitted to
consider the Pharmacy Board’s comments at the Pharmacy Board Hearing. The
Court’s review, apparently, is confined to the Pharmacy Board’s Final Order. And,
upon such a review, the Pharmacy Board’s decision should be affirmed because the
modified sanctions have a substantial and rational basis, are supported by substantial
evidence, and are free from legal error.
STANDARD OF REVIEW
Upon appeal from a decision of the Pharmacy Board, the Court’s function “is
confined to ensuring that the [Pharmacy] Board made no errors of law and
determining whether there is ‘substantial evidence’ to support the [Pharmacy] Board’s
factual findings.”2 Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”3 The “substantial
evidence” standard requires “more than a scintilla but less than a preponderance of
2 Bermudez v. PTFE Compounds, lnc., 2006 WL 23 82793, at *3 (Del. Super. Aug. 16, 2006).
3 Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998) (quoting Olney v.
Cooch, 425 A.2d 610, 614 (Del. 1981)).
Koa'wo B. Sekyi v. Del. Ba'. OfPharmacy
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the evidence.”4
The Court “does not weigh the evidence, determine questions of credibility, or
make its own factual findings.”5 These functions are reserved exclusively for the
Pharmacy Board.6 The Court must afford “a significant degree of deference to the
[Pharmacy] Board’s factual conclusions and its application of those conclusions to
the appropriate legal standards.”7 In reviewing the evidence, the Court must consider
the record “in the light most favorable to the prevailing party below.”8 The Court
reviews questions of law de novo “to determine whether the [Pharmacy] Board erred
in formulating or applying legal precepts.”9
In applying the standard of review, the Court must search the entire record to
determine whether, on the basis of all the testimony and exhibits, the Pharmacy Board
could fairly and reasonably reach its conclusions10 Where the evidence is sufficient
4 Breea'ing v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988) (citing DiFilippo v.
Beck, 567 F. Supp. 110, 112 (D. Del. 1983)).
5 Hall v. Rollins Leasing, 1996 WL 659476, at *2 (Del. Super. Oct. 4, 1996) (citing Johrzson
v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
6 See Giofre v. G.C. Capital Group, 1995 WL 264585, at *3 (Del. Super. Apr. 17, 1995),
ajj”’d, 670 A.2d 1338 (Del. 1995) (TABLE).
7 Bermudez, 2006 wL 23 82793 at *3 (citing 29 Del. C. § 10142(d)).
8 Id. (quoting General Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del. Super. Aug. 16,
1991)).
9 Bermudez, 2006 WL 2382793 at *3.
10 See National Cash Register v. Riner, 424 A.2d 669, 674-75 (Del. Super. 1980).
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to support the Pharmacy Board’s conclusions its decision will not be disturbed absent
an error of 1aw.11
These general standards are guidelines regularly administered by Delaware
appellate courts in reviewing various board’s decisions, e.g. Industrial Accident
Board proceedings The application of these guidelines, however, is not limited.
They have been expanded in application to the decisions and proceedings of other
boards and administrative agencies, e.g. Board of Adjustment proceedings;12 Board
of Accountancy proceedings;13 Delaware Alcoholic Beverage Control Commission
proceedings;14 and Delaware State Board of Examiners in Optometry proceedings15
lt is with these guidelines in mind that the Court conducts its review of the appeal of
the Pharmacy Board’s sanctions against the Appellant.
DISCUSSION
Despite the Appellant and the Pharmacy Board’s failure to address 29 Del. C.
§ 8735(v)(l), the Court finds that the claims on appeal require interpretation of it.
The General assembly enacted 29 Del. C. § 873 5 (v)(l) to give the Division of Public
11 See General Motors Corp. v. Freemarz, 164 A.2d 686, 689 (Del. 1960).
12 See, e.g., AT&Tv. Sussex County Bd. ofAdjustment, 2015 WL 1975629 (Del. Super. Apr.
30, 2015).
13 See Estep v. Bd. of Accountancy, 2012 WL 5432367 (Del. Super. Oct. 2, 2012).
14 See Kirpat, Irzc. v. Delaware Alcoholic Beverage Control Com ’rc, 1998 WL 73 1 5 77 (Del.
Super. Mar. 31, 1998).
15 See Warmouth v. Delaware State Bd. of Examiners in Optometry, 514 A.2d 1119 (Del.
Super. 1985).
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Regulation “the power to retain hearing officers to handle evidentiary hearings and
other matters.”16 By its terms, § 8735(v)( l) creates the full-time position of ‘Hearing
Officer’ “[w]ith respect to case decisions arising under Title 29, Chapter 101,
746
subchapter III.”17 The provision confers upon ‘Hearing Officers [a]ll the powers
and duties conferred or imposed upon such officers by law or by the Rules of
Procedure for any board or commission under Titles 23, 24 and 28.”18 Title 24
creates regulatory boards for a number of professions, including pharmacists;
accordingly, § 8735(v)(l) applies to the Pharmacy Board.19
The Hearing Officer’s powers under § 8735(v)(1) include the “power to
conduct hearings including any evidentiary hearings.”20 Specifically, § 873 5(v)( l )d
StatCSI
The testimony or evidence so taken [by the Hearing Officer] shall have
the same force or effect as if taken or received by the board or
commission. Upon completion of such hearings or the taking of such
testimony and evidence, the hearing officer shall submit to the board or
commission findings and recommendations thereon. The findings of fact
made by a hearing ojj‘icer on a complaint are binding upon the board
or commission. The board or commission may not consider additional
16 Richardson v. Bd. of Cosmetology and Barbering, 69 A.3d 353, 356 (Del. 2013) (citation
omitted).
17 29 Del. C. § 8735(v)(l),
18 29 Del. C. § 8735(v)(1)a.
19 24 Del. C. § 2501 et seq.
20 29 Del. C. § 8735(v)(1)d.
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evidence When the proposed order is submitted to the board or
commission, a copy shall be delivered to each of the other parties, who
shall have 20 days to submit written exceptions, comments and
arguments concerning the conclusions of law and recommended penalty.
The board or commission 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.21
The Court has emphasized the preceding language because, as contended by
the Appellant, it is readily apparent from the transcript of the Pharmacy Board
Hearing that the Pharmacy Board considered additional evidence, not included in the
written record, when the board modified the Hearing Officer’s recommended
sanctions against the Appellant. The Court relies upon the following excerpts from
the transcript in making this finding:
[Susan] Esposito:22 Um, that if 1 had to produce them - but 1 would _
and the other concern I have is that l did not see anywhere, where he
tried to contact the [Pharmacy] Board to ask for assistance in what was
needed of recordkeeping or -I mean, if he came here as the PIC, we are
pretty good about reviewing what the - what your responsibilities are.
I’m just a little concerned that it took - um, an inspection, to - you
know, whatever your personal life was, this is a business, and there’s a
lot of laws And they are readily available.
So, 1 mean - um, as [Pharmacy] Board Members, we get calls from
people all the time, asking questions And we’re here to help people,
21 Id. (emphasis added).
22 Susan Esposito, R.Ph. is a member of the Pharmacy Board,
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from getting into these types of situations
So, you know, I’m - I’m a little concerned that - that you didn’t reach
out for that kind of assistance.
[Eileen] Kelly:23 Well, I don ’t know whether he did or not. That ’s just
not on the record.24
[Kimberly] Robbins:25 One of my biggest concerns, in all this, is the 280
prescriptions -
[Hooshang] Shanehsaz:26 Yes.
Ms. Robbins: - that had not been reversed.
Mr. Shanehsaz: F or five years
Ms. Robbins: That, to me, it’s probably any pharmacist, who is working
any type of retail claims, should know that you need to reverse these
claims
Mr. Shanehsaz: Mm-hm.
23 Eileen Kelly, Esq. of the Delaware Department of J ustice is the Pharmacy Board’ s counsel.
Ms. Kelly advised the Pharmacy Board during the Pharmacy Board Hearing.
24 Transcript of Pharmacy Board Hearing at 11-12 (emphasis added).
25 Kimberly Robbins, R.Ph. was a member of the Pharmacy Board at the time of the
Pharmacy Board Hearing.
26 Hooshang Shanehsaz, R.Ph. is the President of the Pharmacy Board.
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Ms. Robbins: That’s my biggest problem, is the ~ um, insurance fraud,
from that. And, as this moves on, l’m hopeful that this - is this moving
on with insurance, the different insurance, um, carriers?
Because, 1 15 of those, that they found were State Medicaid, of the 280.
MS. Kelly: There were no findings against him of insurance pcaud. That
wasn ’t part of the case.
Ms. Robbins: Okay.
Ms. Kelly: lt was - it was more like, they weren’t reversed. l don’t
know that there was anything, like, any criminal -
Mr. Shanehsaz: l have to admit, as a pharmacist -
Ms. Robbins: That’s my biggest concem.27
[Jay] Galloway:28 l’ve - l’ve known [the Hearing Officer] for years
And so, it - you know, based on his - if that’s his recommendation
MS. Kelly: No, no, no
Mr. Galloway: -l agree with it.
Ms. Kelly: You can ’t - No, you can ’t vouch for -
27 Id. at 12-14 (emphasis added).
28 J ay Galloway is a public member of the Pharmacy Board.
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Mr. Galloway: No, l - l -
Ms. Kelly: No, no, no, n0.29
Ms. Robbins: l agree that - l - l tell you, because it’s - uh, l’m from the
area, where this pharmacy is close to
And, when this appeared - uh, in this, when l started - when l started to
read it, l was absolutely shocked. l did not even think anything like that
was - um, was apparent in this - in this pharmacy.
And, um, l tell you, l was - l was - um, really, kind of distraught, on the
whole thing, that this - this pharmacy -l don’t know if you guys realize
that, but they came into effect about the time with the Happy Harry’s
Walgreens buyout.
And a lot of people left, in that area, and went to this independent. And
it’s taking care of a lot of people in the Milford area,
And l _l don’t doubt his - um, his, um, caring and - and taking care of
the patients, l don’t doubt that. l think things were extremely sloppy, in
how things were handled.
Um, but what l would - what l would be interested in knowing, because
l know that this pharmacy was very close to Dr. Titus, who had some
problems down in Milford.
Ms. Kelly: No, we can ’t get into Dr. Titus.
29 Id. at 15 (emphasis added).
13
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Ms. Robbins: Well, l’m just - l - l realize that, l’m just asking, how
many Oxycodone’s were filled, out of this pharmacy -
Ms. Kelly: No, no, no, no, no, no.
Ms. Robbins: We don’t - we can’t -
Ms Kelly: No.
Ms. Robbins: - find that out -
Ms Kelly: No.
Ms Robbins: - to - to see -
MS. Kelly: Dr. Titus has nothing to do with this.
Ms. Robbins: Okay.
MS. Kelly: It’S not part of the case. You can ’t kind of bring in outsider
stujf because will prejudice Mr. Sekyi.
Ms. Robbins: Oh, l - I’m just wondering how many prescriptions, if it
was a high-volume Oxycodone store or not, where 1500 might be one
percent versus ten percent -
Ms. Kelly: Oh, okay.
Ms. Robbins: - of what’s coming out of the store.
Ms. Kelly: Mr. ~
Ms Robbins: That’s what l was trying to determine.
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MS. Kelly: [The Hearing Officer] made factual findings and you ’re
stuck with that.
Ms. Robbins: Okay
Ms. Kelly: You can ’tjt`nd anything else out.30
Ms. Esposito: - um, and it’s a precedent. lf - if we impose fines on
people for not doing continuing education credits, which is -
Ms. Kelly: We have.
Ms Esposito: - is their licensing, and it’s a personal thing, to not get
your license renewed - um, and that’s doing no harm to anyone but
themselves
l just feel that as - as protectors of the public - um, we have to ensure
that - um, people realize that these are regulations that are here for a
reason to protect patients
And, l mean, we’re not saying anything to you , as a person. But, l just
- after 46 years in the profession, it just upsets me to think of all the
things that could have happened because those records weren ’t there.
Um, maybe patients were getting prescriptions that they shouldn ’t have
been getting and -
Mr. Shanehsaz: That’s - that’s it.
Ms Esposito: - physicians were not notified. And l just - um, l just feel
30 Id. at 18-20 (emphasis added).
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that you did the public a disservice. You may not have intentionally
done it.
But I just feel that this has to be something that we address as seriously
as - uh, as the facts
Mr. Shanehsaz: I’m - l’m not questioning the lack of _
Ms. Kelly: Wait. Y ou can ’t - you shouldn ’t be addressing the -
Mr. Shanehsaz: l’m - l’m not questioning Mr. Sekyi’ s, uh, like you Said,
uh, personal intent. Because that’s not what we’re here for.
l don’t have facts of, you know - uh, as to what kind of person, that he
is, or anything. l’m just looking at the case.
As you were saying, if the record keeping was that, for lack of a better
word, sloppy for - from the beginning - we’re not even talking about,
you know _ from the beginning, how many mistakes - 95 percent of
mistakes are happening because of the pharmacist is distracted, the
pharmacist has other things going on.
So, if they’re that distracted, that they can’t do a basic thing, PlC Report
every year, never done nothing.
So, how many times, mistakes that have happened, that we can ’t even
follow, because there ’s no records?31
Mr. Shanehsaz: . . .
31 Id. at 24-6.
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My concern is what else happened out there that we don ’t know.
T here ’s a lot- there ’s a lot of residents that might very well have gotten
wrong medication, somebody else ’s medication.32
The preceding discussions are not acknowledged in the Pharmacy Board’s
Final Order. The Court, however, is not precluded from reviewing the transcript
simply because a final order exists Rather, the Court may, as previously set forth,
review the entire record on appeal to determine whether, on the basis of all the
testimony and exhibits, the Pharmacy Board could fairly and reasonably reach its
conclusions33 Therefore, the Pharmacy Board’s contention, that the Court must rely
exclusively on the final order, is simply wrong. This holds true even if the Court
considers the mo st persuasive precedent cited by the Pharmacy Board in its answering
brief. For example, although the Court in Bethany Beach VolunteerFire Co. v. Board
of Adjustment of T own of Bethany Beach,34 stated that “authority suggests that courts
should look only to the Board’s written decision in its exercise of their review
function,”35 the Court still required that the “entire record be included as the record
of the ‘proceedings below.”36 This encompassed the transcript of the board’s oral
32 Id. at 28.
33 National Cash Register v. Riner, 424 A.2d at 674-75.
34 Bethany Beach Volunteer Fire Co. v. Bd. of Adjustment of T own of Bethany Beach, 1998
WL 110057 (Del. Super. Jan. 23, 1998).
35 Id. at *3.
36 Id. at *4.
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deliberations regarding the merits of the petitioner’s application for a special
exception to construct and to operate a fire house as a public service building in the
area of Bethany Beach, Delaware that was classified as R-2.37 The Court’s decision
was based upon a finding that “the public would expect a review of the entire
proceeding and [the Court’s] decision that some public comments might form the
basis to attack [the Board’s] written decision.”38 Furthermore, although the Court of
Chancery in Delaware Correctional Officers Ass ’n v. State,39 Stated that, “[a]
subsequent written decision would, of course, serve no useful purpose if it merely
parroted the words spoken by Board members at the public meeting,”40 this Court
notes the statement is merely dicta. Morever, this Court is not bound by Chancery
decisions
Having determined that it was permissible to review the Pharmacy Board
Hearing transcript, the Court turns back to the quoted excerpts The Court included
the excerpts and italicized certain portions of them, as the Court believes the quoted
and italicized portions of the transcript constitute the crux of the Pharmacy Board’s
violation of § 873 5(v)(l). The board members may not consider additional evidence
37 Id. at *1, 4.
38 Id. at *4.
39 Delaware Correctional O]j'icers Ass’n v. State, 2003 WL 23021927 (Del. Ch. Dec. 18,
2003).
40 Id. at *8.
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t.41 Yet, the Pharmacy Board members
outside of the Hearing Officer’s finding of fac
clearly did. And, there is no indication that Ms Kelly’s frequent admonishments had
any actual effect, especially since the board members continued to raise matters
outside the record.42 Consequently, the Court finds that the Pharmacy Board violated
the prohibitions set forth in § 8735(v)(1)d.43
CONCLUSION
ln sum, the Pharmacy Board’s decision to modify the Hearing Officer’s
recommended sanctions is hereby REVERSED and REMANDED, for the board
considered additional evidence in violation of 29 Del. C. § 873 5(v)(1). On remand,
the Pharmacy Board must be careful to base its decision only upon the written record.
IT IS SO ORDERED.
/s/ William L. Witham Jr.
Resident Judge
WLW/dmh
4129 Del. C. § 8735(v)(1)d.
42 The Court commends Ms. Kelly for her attempt to reign in the Pharmacy Board members
The focus of this decision is not on her conduct but that of the Pharmacy Board.
43 Even if § 873 5(v)(1) did not exist, the Pharmacy Board’ s consideration of outside evidence
still requires reversal according to Delaware precedent. See Turbitt v. Blue Hen Lines, Inc. , 7 1 1 A.2d
1214, 1216 (Del. 1998) (where the Delaware Supreme Court emphasized that “it is improper for an
administrative agency to base a decision on information outside of the record without notice to the
parties”); T rader v. Caulk, 1992 WL 148094, at *2 (Del. Super. Jun. 10, 1992) (where this Court
emphasized that “[i]t is a general rule of law that it is improper for an administrative agency to base
a decision, or findings in support thereof, on evidence or information outside the record,” because
“[g]enerally, the use of such information or evidence constitutes a due process violation”).
19