CVS Pharmacy v. Bd. of Pharmacy, No. COA02-1643.
| Docket Nº | No. COA02-1643. |
| Citation | 591 S.E.2d 567, 162 NC App. 495 |
| Case Date | February 03, 2004 |
| Court | Court of Appeal of North Carolina (US) |
591 S.E.2d 567
162 NC App. 495
v.
NORTH CAROLINA BOARD OF PHARMACY, Respondent
No. COA02-1643.
Court of Appeals of North Carolina.
February 3, 2004.
Bailey & Dixon, L.L.P., by Carson Carmichael, III and Anna Baird Choi, Raleigh, for respondent-appellee.
ELMORE, Judge.
CVS Pharmacy, Inc. (petitioner) brought a petition for judicial review in the Wake County Superior Court of three final decisions of the North Carolina Board of Pharmacy (Board of Pharmacy). The final decisions concerned three separate instances of pharmacists who were employed by the petitioner dispensing the wrong medications. Two of the pharmacists involved had been practicing for ten years or more with no prior complaints. Each of the three pharmacists filled more than 150 prescriptions during the respective shifts in which the errors were made.
The second decision involved Permit 6799, held by the CVS in Wake Forest, North Carolina. At that CVS, on 8 November 1999, Linda Barlow tendered a prescription for methotrexate 2.5mg to Pharmacist Randy Ball and was erroneously dispensed amitriptyline 25mg. On 18 October 1999, Pharmacist Ball erroneously dispensed 48 units of prednisone 5mg and 48 units of prednisone 10mg in a 10mg box on a prescription for prednisone 5mg. Pharmacist Ball was the only pharmacist on duty on 18 October, when he filled 347 prescriptions during a twelve hour shift, and was one of two pharmacists on duty on 8 November, when 328 prescriptions were filled (he filled approximately 162). He had been licensed for ten to fifteen years with no prior complaints or disciplinary action. The Board ordered: 1) that CVS be cautioned regarding its "failure to comply with the Board's patient counseling rule;" 2) that CVS's permit be suspended for one day, which order was suspended for three years on condition that:
a) ... [CVS] shall not allow pharmacists to dispense prescription drugs at such a rate per hour or per day as to pose a danger to the public health or safety.
b) [CVS] shall submit to the Board ... a written statement signed by the current pharmacists ... [that they have read and understand the] ... patient counseling rule[.] ...
c) [CVS] shall comply with the laws governing practice of pharmacy....
d) [CVS] shall comply with the regulations of the Board.
The third decision involved Permit 6559 in Burlington, North Carolina. On 30 October 1999, Dee Snow tendered a prescription for penicillin vk 250mg and was erroneously dispensed albuterol sulfate 2mg. Pharmacist A. Broughton Sellers, Jr. was on duty on 30 October from 8:00 a.m. to 3:00 p.m., when he dispensed 215 prescriptions. The Board gave CVS a reprimand in that case.
On 19 March 2001 the Board of Pharmacy entered final decisions in all three cases, as noted above. CVS filed a petition for judicial review in the superior court on 19 April 2001. The superior court, considering all three cases together, heard arguments in open court, reviewed the entire record, and affirmed the Board of Pharmacy. The petitioner now brings this appeal.
I.
We first determine the proper standard of review. The North Carolina Administrative Procedure Act, N.C. Gen.Stat. § 150B-1 et seq., governs both superior court and appellate court review of administrative agency decisions. Eury v. N.C. Employment Security Comm., 115 N.C.App. 590, 446 S.E.2d 383 (1994). N.C. Gen.Stat. 150B-51 governs the scope of the Superior Court's review of final agency decisions. N.C. Gen.Stat. § 150B-51(b), as amended effective 1 January 2001, provides:
(b) Except as provided in subsection (c) of this section, in reviewing a final decision, the court may affirm the decision of the agency or remand the case to the agency or to the administrative law judge for further proceedings. It may also reverse or modify the agency's decision, or adopt the administrative law judge's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:
591 S.E.2d 570(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
N.C. Gen.Stat. § 150B-51 (2003).
According to the language in 150B-51, the standard of review by the superior court seems to...
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...relevant statutory provisions, it cannot be “classified as cruel and unusual in a constitutional sense.” Evans, 162 N.C.App. at 544, 591 S.E.2d at 567. Thus, Defendant is not entitled to relief on the basis of a categorical challenge to his sentence. In addition, Defendant urges this court ......
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...reduced petitioner's suspension to 180 days. 3.See CVS Pharmacy, Inc. v. North Carolina Bd. of Pharmacy, 162 N.C.App. 495, 502, 591 S.E.2d 567, 571 (2004) (“The Board has the discretion to select a lesser punishment in accord with reason when the permitee has so clearly violated the statute......
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State v. Turner, No. COA09-1116 (N.C. App. 5/18/2010), No. COA09-1116.
...charge that the initial instruction on the elements of first-degree rape applied to all 11 counts."); Evans, 162 N.C. App. at 544, 591 S.E.2d at 567 (holding "there [was] no reasonable possibility that, had the trial court specifically instructed the jury on the same offense for e......
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Bd. of Pharmacy v. Rules Review Com'n, No. COA04-929.
...court and appellate court review of administrative agency decisions. CVS Pharm., Inc. v. N.C. Bd. of Pharm., 162 N.C.App. 495, 498-99, 591 S.E.2d 567, 569 (2004). Our Supreme Court has recently reiterated the standard of judicial review of final agency On judicial review of an administrativ......
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State v. Perry, No. COA13–30.
...relevant statutory provisions, it cannot be “classified as cruel and unusual in a constitutional sense.” Evans, 162 N.C.App. at 544, 591 S.E.2d at 567. Thus, Defendant is not entitled to relief on the basis of a categorical challenge to his sentence. In addition, Defendant urges this court ......
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Krueger v. N.C. Criminal Justice Educ., No. COA13–288.
...reduced petitioner's suspension to 180 days. 3.See CVS Pharmacy, Inc. v. North Carolina Bd. of Pharmacy, 162 N.C.App. 495, 502, 591 S.E.2d 567, 571 (2004) (“The Board has the discretion to select a lesser punishment in accord with reason when the permitee has so clearly violated the statute......
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State v. Turner, No. COA09-1116 (N.C. App. 5/18/2010), No. COA09-1116.
...charge that the initial instruction on the elements of first-degree rape applied to all 11 counts."); Evans, 162 N.C. App. at 544, 591 S.E.2d at 567 (holding "there [was] no reasonable possibility that, had the trial court specifically instructed the jury on the same offense for e......
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Bd. of Pharmacy v. Rules Review Com'n, No. COA04-929.
...court and appellate court review of administrative agency decisions. CVS Pharm., Inc. v. N.C. Bd. of Pharm., 162 N.C.App. 495, 498-99, 591 S.E.2d 567, 569 (2004). Our Supreme Court has recently reiterated the standard of judicial review of final agency On judicial review of an administrativ......