Hemry v. State Bd. of Pharmacy, 53759

• Decision Date: 22 October 1982
• Docket Number: No. 53759,53759
• Citation: 232 Kan. 83,652 P.2d 670
• Parties: Vaughn James HEMRY, Appellant, v. The STATE BOARD OF PHARMACY of the State of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 670

652 P.2d 670

232 Kan. 83

Vaughn James HEMRY, Appellant, v. The STATE BOARD OF PHARMACY of the State of Kansas, Appellee.

No. 53759.

Supreme Court of Kansas.

Oct. 22, 1982.

Syllabus by the Court

1. While the courts of this state need not always accept an administrative agency's interpretation of its own regulations, it has long been recognized that in order to insure effectiveness and uniformity an agency's interpretation of its regulations will be given great weight and, in some cases, controlling weight.

2. A district court and this court cannot substitute its judgment for that of an administrative board and on appeal the court is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal's action was within the scope of its authority.

3. The record in an appeal from a judgment of the district court affirming an order of the Kansas State Board of Pharmacy revoking a pharmacist's registration is examined and no error is shown.

David R. Gilman, of David R. Gilman & Associates, Overland Park, argued the cause, and J. Steven Schweiker, Overland Park, of the same firm, was with him on brief, for appellant.

Robert E. Davis, of Davis, Davis, McGuire & Thompson, Chartered, Leavenworth, argued the cause and was on brief, for appellee.

HOLMES, Justice:

This is an appeal by Vaughn James Hemry from an order of the district court affirming a decision of the Kansas State Board of Pharmacy (the Board) revoking his pharmacy registration for alleged violations of two administrative regulations promulgated by the Board. Appellant contends that the decision of the Board was arbitrary, capricious, unlawful and unreasonable, and in addition that the punishment ordered was too severe.

During the course of an unrelated investigation, detectives from the Federal Drug Enforcement Agency and the City-County Investigative Squad (C-CIS) of Johnson County, Kansas, discovered certain suspicious entries in the records of Mr. Hemry at the Shawnee Mission Pharmacy, Inc., located in Mission, Kansas.

On the 23rd of January, 1981, pursuant to provisions of the Uniform Controlled Substances Act, K.S.A. 65-4101 et seq., the Board issued an order for Hemry to appear and show cause why his registration should not be revoked. The basis for the show cause order was the alleged violation of K.A.R. 68-20-22(b) and K.A.R. 68-20-15.

K.A.R. 68-20-22(b) establishes the dosage limitations for the sale of certain nonprescription controlled substances designated as Schedule V items. It provides that:

"Not more than 240 cc. (8 ounces) of any such controlled substance containing opium, nor more than 120 cc. (4 ounces) of any other such controlled substance nor more than forty-eight (48) dosage units of any such controlled substance containing opium, nor more than twenty-four (24) dosage units of any other such controlled substance may be dispensed at retail to the same purchaser in any given forty-eight (48) hour period."

K.A.R. 68-20-15 requires certain security measures to be taken regarding controlled substances. Section (1) provides:

"All applicants and registrants shall provide effective controls and procedures to guard against theft and diversion of controlled substances."

Cheracol, a cough syrup containing codeine, is a Schedule V controlled substance within the meaning of the act and the regulations and falls within the category of substances of which no more than 4 ounces may be dispensed to any one purchaser in any 48 hour period.

At the hearing before the Board, Detective Richard Darnell, of the C-CIS testified that Hemry's own records revealed that 256 four-ounce (twenty-four dosage unit) bottles of Cheracol were purchased by one Marilyn Layman during the period from January 5, 1979, to August 22, 1980. From January 1, 1980, to August 21, 1980, Layman purchased 117 bottles of the preparation. According to the detective's testimony, the records from Mr. Hemry's pharmacy indicated that 30 of those purchases had been made by Layman within twenty-four hours of prior purchases and three of her purchases were on the same day.

The evidence further revealed that on a number of occasions Layman had signed other person's names in order to receive the drug. Cheracol is a nonprescription over-the-counter drug which, under K.A.R. 68-20-22(d) and (e), can only be purchased when the buyer produces suitable identification and then signs his name and provides his address in the pharmacist's narcotics register. The pharmacist making the individual sale then marks his name or initials in the register also. Detective Darnell testified that he checked on the other names and addresses furnished by Layman and found some of the people to be fictitious or deceased and the addresses non-existent. The records indicated it was Mr. Hemry who made the sales to Layman.

Ms. Layman testified...