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Tucker v. Delaware Board of Pharmacy

Superior Court of Delaware

November 27, 2019

SHEILA P. TUCKER, Appellant,
v.
DELAWARE BOARD OF PHARMACY, Appellee.

          Submitted: September 4, 2019

          In and for Kent County

         Upon Appeal from the Delaware Board of Pharmacy AFFIRMED

          Ciro Poppiti, III, Esquire, Poppiti Law, LLC, Attorney for Appellant Sheila P. Tucker.

          Eileen Kelly, Esquire, Department of Justice, Attorney for Appellee Delaware Board of Pharmacy.

          ORDER

          NOEL EASON PRIMOS JUDGE.

         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 provisions cited in the State's complaint."[1]

          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]."[2]

         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)[3] 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).
(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. ยง 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 ...

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