Jefferson City Apothecary, LLC v. Mo. Bd. of Pharmacy

• Decision Date: 13 September 2016
• Docket Number: WD 79294 (,C/w WD 79295)
• Citation: 499 S.W.3d 321
• Parties: Jefferson City Apothecary, LLC, d/b/a Jefferson City Apothecary and Uldis Pironis, R.Ph., Appellants, v. Missouri Board of Pharmacy, Respondent.
• Court: Missouri Court of Appeals

499 S.W.3d 321

Jefferson City Apothecary, LLC, d/b/a Jefferson City Apothecary and Uldis Pironis, R.Ph., Appellants,
v.
Missouri Board of Pharmacy, Respondent.

WD 79294 (
C/w WD 79295)

Missouri Court of Appeals, Western District.

OPINION FILED: September 13, 2016

Johnny K. Richardson, Jefferson City, MO, Attorneys for Appellants.

Chris Koster, Attorney General, Daryl R. Hylton, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division IV: Mark D. Pfeiffer, Chief Judge, Presiding, and James Edward Welsh and Edward R. Ardini, Jr., Judges

Mark D. Pfeiffer, Chief Judge

Jefferson City Apothecary, LLC (“Apothecary”) and Mr. Uldis Pironis (“Pironis”) appeal the judgments of the Circuit Court of Cole County (“circuit court”) affirming the joint decisions of the Administrative Hearing Commission (“AHC”) and the Missouri Board of Pharmacy (“Board”), which decisions found cause to discipline and imposed discipline on the Apothecary's pharmacy permit and Pironis's pharmacist license. The Apothecary's pharmacy permit and Pironis's pharmacist's license were placed on probation for one year subject to terms and conditions. We affirm the circuit court's judgments.¹

499 S.W.3d 325

Factual and Procedural Background

Pironis is licensed by the Board as a pharmacist. He is the owner, permit holder, and pharmacist-in-charge of the Apothecary. The Apothecary is engaged in compounding drug products, as well as filling and dispensing retail prescriptions to consumers.

On April 29, 2011, Pironis was in Chicago for a continuing education seminar. He had arranged for another pharmacist to work at the Apothecary on that date; however, the other pharmacist did not report for work due to his wife's illness. When pharmacy technician Ginger Stratman informed Pironis that the other pharmacist had not reported for work, Pironis instructed her to close the Apothecary but to leave the doors open so staff could explain to customers that they could not pick up their prescriptions because there was no pharmacist on duty.

Ms. Stratman also notified Pironis that a doctor had called needing chemotherapy medication made that day. Pironis initially instructed Ms. Stratman not to make the medication, but later changed his mind and instructed Ms. Stratman to compound the chemotherapy medication at the Apothecary and deliver it to the doctor's office. Ms. Stratman did as she was instructed by Pironis. Fortunately, there was no evidence that the patient had suffered any adverse effect as a result of administration of the chemotherapy medication.

The Board was informed that someone in the Apothecary was practicing pharmacy without a license when a pharmacist was not on duty, and the Board sent an investigator to the Apothecary. Based upon the investigator's inspection, the Board filed separate complaints with the AHC seeking orders granting authority to discipline Pironis's pharmacy license and the Apothecary's pharmacy permit. A consolidated hearing was conducted. Ultimately, the AHC issued separate decisions on reconsideration, finding cause to discipline Pironis's license and to discipline the Apothecary's permit under three provisions of section 338.055.2:

(6) Violation of, or assisting or enabling any person to violate, any provision of this chapter, or of any lawful rule or regulation adopted pursuant to this chapter;

....

(10) Assisting or enabling any person to practice or offer to practice any profession licensed or regulated by this chapter who is not registered and currently eligible to practice under this chapter;

....

(15) Violation of the drug laws or rules and regulations of this state, any other state or the federal government[.]

Thereafter, the Board conducted disciplinary hearings. At Pironis's disciplinary hearing, he stated that he thought he did the right thing on April 29, 2011, in directing his staff to compound and dispense the chemotherapy drugs, and he would do the same thing again for the benefit of the patient. Pironis admitted that he knew it was a violation of the law for an unlicensed person to practice pharmacy, but if he were presented with the same situation, he would break the law again. He claimed that he used his professional judgment to violate the law when he felt that it was in the patient's best interest. Following the disciplinary hearings, the Board issued orders placing Pironis's license to practice pharmacy and the Apothecary's pharmacy

499 S.W.3d 326

permit on probation for one year, subject to terms and conditions.

The Apothecary and Pironis each petitioned for judicial review of the AHC's decision and the Board's disciplinary order. The circuit court entered judgment in each case, affirming the joint decision of the AHC and the Board.

The Apothecary and Pironis appeal.

Standard of Review

In a permit or license disciplinary proceeding, section 621.145 directs that we treat the AHC's decision as to the existence of cause and the Board's subsequent disciplinary order “as one decision,” and that we review that combined decision, not the circuit court's judgment. Kerwin v. Mo. Dental Bd. , 375 S.W.3d 219, 224 (Mo.App.W.D. 2012). This court will affirm the existence of cause decision and the disciplinary order unless the agency action:

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

§ 536.140.2.² An agency's decision is unsupported by sufficient competent and substantial evidence upon the whole record only “in the rare case when the [decision] is contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 223 (Mo.banc 2003). “We will not substitute our judgment for that of the [agency] on factual matters, but questions of law are matters for the independent judgment of this court.” Kerwin , 375 S.W.3d at 225 (internal quotation omitted). We view the evidence objectively and not in the light most favorable to the agency's decision. Hampton , 121 S.W.3d at 223. “However, we defer to the AHC on issues involving the credibility of witnesses and the weight and value to be given to their testimony.” Kerwin , 375 S.W.3d at 225.

Multifarious Point Relied On

Before addressing the Apothecary and Pironis's claims on appeal, we note that their first point relied on contains multifarious claims of error and, accordingly, violates Rule 84.04. Wennihan v. Wennihan , 452 S.W.3d 723, 728 (Mo.App.W.D.2015). “A point relied on should contain only one issue, and parties should not group multiple contentions about different issues together into one point relied on.” Id. (internal quotation omitted). “Despite this flagrant disregard of the rules, the policy of the appellate courts in this State is to decide a case on the merits rather than technical deficiencies in the brief.” Id. (internal quotation omitted). “Because we are able to discern the claims being made and the defective nature of the point relied on does not impede our disposition of the case on the merits, we will exercise our discretion to attempt to resolve the issues on the merits.” Id. (internal quotation omitted). “We will separate [the Apothecary and Pironis's] contentions, as best we can discern them, and respond to each one individually.” Id. (internal quotation omitted).³

499 S.W.3d 327

Analysis

The Apothecary and Pironis raise three points on appeal. In their first point, they assert three reasons that the AHC erred in determining that the Board established cause to discipline: they did not violate any drug laws; Pironis did not neglect his duties as a pharmacist in violation of 20 CSR 2220–2.090(2) ; and the AHC's decision was issued by a Commissioner who did not hear the case. In their second point, they contend that the Board's imposition of disproportionate discipline was unsupported by competent and substantial evidence on the record; was arbitrary, capricious, and unreasonable; was an abuse of discretion; and violated their constitutional rights to due process and equal protection of the laws. In their third point, they assert that the Board erred in issuing its orders because the orders did not comply with section 536.090.

Point I

First, the Apothecary and Pironis assert that the AHC erred in determining that the Board established cause to discipline because they did not violate any drug laws. It was undisputed that on April 29, 2011, Pironis instructed an unlicensed person to compound and dispense a chemotherapy prescription when he was not physically present in the pharmacy. Based on these undisputed facts, the AHC found cause to discipline the Apothecary's permit and Pironis's license for violation of section 338.010.1, which prohibits an unlicensed person from engaging in the practice of pharmacy.⁴ The Apothecary and Pironis admit in their...