Submitted: June 7, 2018
Appeal from the Decision of the Delaware Board of Pharmacy.
Gregory A. Morris, Esquire of Liguori & Morris, Dover,
Delaware; attorney for Appellant/Defendant-Below.
Kelly, Esquire of the Delaware Department of Justice, Dover,
Delaware; attorney for appellee/Plaintiff-Below.
OPINION AND ORDER
William L. Witham. Jr. Resident Judge.
the Court is Kodwo Bedu Sekyi's (hereinafter, 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 Title 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.
AND PROCEDURAL BACKGROUND
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.
and August of 2015, the Drug Enforcement Administration
(hereinafter, the "DEA") and Delaware's
Division of Professional Regulation inspected the Pill 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 Officer and the Pharmacy Board.
23, 2017, the Hearing Officer held a hearing pursuant to the
authority granted by 29 Del. C. § 8735(v)(1).
The Hearing Officer recommended, based on his factual
findings, the following conclusions of law:
Appellant violated 24 Del. C. § 2515(a)(6) and
Pharmacy Board Regulation 2.1.1 in that he violated sections
of both the Practice Act and Board regulations.
Appellant violated Pharmacy Board Regulation 188.8.131.52 in his
failure to maintain records required by the Uniform
Controlled Substance Act and other relevant State and federal
Appellant violated Pharmacy Board Regulation 184.108.40.206 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.
Appellant violated Pharmacy Board Regulation 220.127.116.11 in that,
as the PIC, he failed to conduct an annual pharmacy
inspection and prepare a PIC report.
Appellant violated Pharmacy Board Regulation 3.4.4 with
respect to the required parameters for refrigeration of
drugs. Testimony at the hearing established that there was no
evidence of a temperature monitor in the refrigerator nor
were any records routinely kept logging refrigerator
Appellant violated Pharmacy Board Regulation 2.1.11 which, in
part, precludes the dispensing of "legend" 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.
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.
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 Officer 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
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.
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. Instead, 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
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 appealed the Pharmacy Board's final decision to
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.
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.
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." Substantial evidence means
"such relevant evidence as a reasonable mind might
accept as adequate to support a
conclusion." The "substantial evidence"
standard requires "more than a scintilla but less than a
preponderance of the evidence."
Court "does not weigh the evidence, determine questions
of credibility, or make its own factual
findings." These functions are reserved exclusively
for the Pharmacy Board. 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." In reviewing the
evidence, the Court must consider the record "in the
light most favorable to the prevailing party
below." The Court reviews questions of law de
novo "to determine whether the [Pharmacy] Board
erred in formulating or applying legal
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 conclusions. Where the
evidence is sufficient to support the Pharmacy Board's
conclusions, its decision will not be disturbed absent an
error of law.
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; Board of Accountancy
proceedings; Delaware Alcoholic Beverage Control
Commission proceedings; and Delaware State Board of Examiners
in Optometry proceedings.It is with these guidelines in
mind that the Court conducts its review of the appeal of the
Pharmacy Board's sanctions against the Appellant.
the Appellant and the Pharmacy Board's failure to address
29 Del. C. § 8735(v)(1), the Court finds that
the claims on appeal require interpretation of it. The
General assembly enacted 29 Del. C. §
8735(v)(1) to give the Division of Public Regulation
"the power to retain hearing officers to handle
evidentiary hearings and other matters." By its terms,
§ 8735(v)(1) creates the full-time position of Hearing
Officer' "[w]ith respect to case decisions arising
under Title 29, Chapter 101, subchapter
III." 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." Title 24 creates regulatory boards for a
number of professions, including pharmacists; accordingly,
§ 8735(v)(1) applies to the Pharmacy
Hearing Officer's powers under § 8735(v)(1) include
the "power to conduct hearings, including any
evidentiary hearings." Specifically, §
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 officer on a complaint are binding upon the board or
commission. The board or commission may not consider
additional 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
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: Um, that if I had to produce them - but
I would -and the other concern I have is that I did not see
anywhere, where he tried to contact the [Pharmacy] Board to
ask for assistance in what was needed of recordkeeping or -1
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, I mean - um, as [Pharmacy] Board Members, we get calls
from people all the time, asking questions. And we're
here to help people, from getting into these types of
So, you know, I'm - I'm a little concerned that -
that you didn't reach out for that kind of assistance.
[Eileen] Kelly: Well, I don't know whether he
did or not. That's just not on the
[Kimberly] Robbins: One of my biggest concerns, in all this,
is the 280 prescriptions -
[Hooshang] Shanehsaz: Yes.
Ms. Robbins: - that had not been reversed.
Mr. Shanehsaz: For five years.
Ms. Robbins: That, to me, it's probably any pharmacist,
who is working any type of retail claims, should know that