Parks v. Ala. State Bd. of Pharmacy (Ex parte Ala. State Bd. of Pharmacy)

Decision Date27 October 2017
Docket Number2160988
Parties EX PARTE ALABAMA STATE BOARD OF PHARMACY (In re: Demetrius Yvonne Parks et al. v. Alabama State Board of Pharmacy)
CourtAlabama Court of Civil Appeals

James S. Ward of Ward & Cooper, LLC, Birmingham, for petitioner.

Julian McPhillips of McPhilllips Shinbaum, L.L.P., Montgomery; and Tanika L. Finney, Montgomery, for respondent.

THOMPSON, Presiding Judge.

This is the second time that the Alabama State Board of Pharmacy ("the board") has filed a petition for a writ of mandamus in connection with stay orders issued by the Montgomery Circuit Court ("the circuit court") in this matter involving judicial review of the board's decision to suspend Demetrius Yvonne Parks's license to practice pharmacy and to place certain pharmacies that Parks owns on probation. In the previous mandamus proceeding, the board had asked this court to vacate an "order supplementing stay on a temporary basis" ("the first supplemental order"). Ex parte Alabama State Board of Pharmacy, 240 So.3d 594 (Ala. Civ. App. 2017). In that case, we set forth the following relevant procedural history:

"On October 1, 2016, after a hearing on 46 counts alleging various improper practices, the board entered an order suspending Parks's license for 5 years and levying an administrative fine against her in the amount of $27,000. The board also placed the pharmacy permits of two of Parks's pharmacies—Parks Pharmacy # 2 and Parks Pharmacy # 4—on probation for five years. Those two pharmacies, as well as one other pharmacy Parks owned (hereinafter referred to collectively as ‘the pharmacies’), were also ordered to pay administrative fines.
"On November 22, 2016, Parks and the pharmacies filed a complaint in the circuit court seeking judicial review of the board's decision. That same day, they also filed a motion to stay the board's decision pending the outcome of the judicial review. A hearing on the stay motion was scheduled for November 30, 2016. On November 28, 2016, two days before the scheduled hearing, Parks and the pharmacies filed an emergency motion to stay....
"....
"... On December 1, 2016, the circuit court entered an order staying the suspension of Parks's license subject to her compliance with specific enumerated terms, including that Parks ‘shall not be involved in the dispensing of legend or controlled drugs.’ Parks Pharmacy # 4 was also directed to hire a supervising pharmacist, who had to be approved by the board, and to make certain records available to the board upon its request.
"On December 14, 2016, two weeks after the stay order was entered, Parks and the pharmacies filed an emergency supplemental motion to stay in which they sought the removal of language from a Web site of the National Practitioner Data Bank (‘the NPDB’) relating ‘to the original suspension, now stayed.’ ...
"The hearing on the December 14, 2016, motion was originally scheduled for December 27, 2016. On December 27, 2016, the circuit court entered an order resetting the hearing for January 5, 2017. On January 3, 2017, the circuit court entered another order granting the board's motion to continue the scheduled January 5, 2017, hearing. The order stated that the hearing ‘will be reset.’ ...
"Although the circuit court had continued the January 5, 2017, hearing, it also entered an order that day supplementing the stay ‘on a temporary basis.’ In the supplemental order, the circuit court stated that,
" ‘because this matter had to [be] continued for various reasons, and deeming the relief requested to be in order, [the stay order] is hereby modified as follows ...
" ‘1. [Parks], whose suspension was lifted by this court's order of December 1, 2016, is hereby allowed to work as a pharmacist until further order of this court.
" ‘2. [The board] is hereby ORDERED to immediately clear and remove all language in its entirety sent to the [NPDB] concerning [the pharmacies] and [Parks] herself.’ "1

Ex parte Alabama State Bd. of Pharmacy, 240 So.3d at 595–97 (footnote omitted).

In its first mandamus petition ("the first petition"), the board argued that § 41–22–20(c), Ala. Code 1975, part of the Alabama Administrative Procedure Act, § 41–22–1 et seq., Ala. Code 1975, required the circuit court to allow the board to present evidence in connection with Parks's request for a change in conditions related to the stay entered in the December 1, 2016, order. This court agreed, and, citing § 41–22–20(c), concluded that the circuit court had erred in entering the first supplemental order, which essentially removed the conditions of the stay that had been included in the December 1, 2016, stay order, without first giving the board the opportunity to challenge the relief Parks sought in her supplemental motion for a stay. Among other things, this court concluded that the circuit court had erred in not allowing "the board to present evidence or arguments regarding the propriety of its decision to direct the board to delete language from the federal NPDB Web site." Ex parte Alabama State Bd. of Pharmacy, 240 So.3d at 599. We issued a writ of mandamus directing the circuit court to vacate the first supplemental order and "to hold a hearing so that the parties can present their evidence and arguments regarding the relief Parks has requested in her emergency supplemental motion for a stay." 240 So.3d at 599.

On August 8, 2017, the circuit court held the hearing as directed. On August 22, 2017, the circuit court entered an order again staying the suspension of Parks's license ("the second supplemental order") pending a final hearing of her petition for judicial review. However, in the second supplemental order, the conditions that had been imposed on Parks in the December 1, 2016, stay order were modified. In entering the second supplemental order, the circuit court determined, among other things, that Parks "shall be allowed to work during the duration of the stay as a supervising pharmacist" and that the board "shall submit a Void Report per the NPDB Guidebook, to remove all negative information on the NPDB website about Parks Pharmacies being on probation and about Ms. Parks ever being suspended." According to the NPDB Guidebook, a "void report" is "the withdrawal of a report in its entirety. NPDB Guidebook at E–8 (April 2015). Void reports are discussed in more depth later in this opinion. The second supplemental order also required the board to remove the same information from its own Web site. On September 12, 2017, the board filed its second petition for a writ of mandamus ("the second petition") in connection with this matter. In the second petition, the board asks this court to direct the circuit court to "rescind" the second supplemental order entered on August 22, 2017, and to order the parties to abide by the original stay order, to which their counsel had agreed, entered on December 1, 2016.

We first address Parks's contention in her motion to dismiss that the second petition is "exceedingly repetitious" of the first and is, therefore, due to be dismissed. Parks contends that the second petition "reflects a flagrant disregard of the p[r]erogatives and rights" of the circuit court and, she says, "amounts to an improper collateral attack" on the second supplemental order. In her motion and amended motion to dismiss, Parks cites no relevant authority to support those contentions.

As we wrote in Ex parte Alabama State Board of Pharmacy, 240 So.3d at 597, a petition for a writ of mandamus is the proper vehicle for seeking a review of an order staying the suspension of a professional license during the judicial review of the licensing agency's decision. See Ex parte Alabama Dep't of Mental Health, 207 So.3d 743, 753 (Ala. Civ. App. 2016) ; Ex parte Medical Licensure Comm'n of Alabama, 13 So.3d 397, 401 (Ala. Civ. App. 2008). In addressing the board's first petition, this court did not reach the substantive merits of the first supplemental order because we concluded that the board had not had an opportunity to challenge the grounds Parks had asserted in requesting additional relief. In other words, the first petition was decided solely on procedural grounds. See generally Ex parte Alabama State Bd. of Pharmacy

. The circuit court held a hearing as directed by this court in Ex parte Alabama State Board of Pharmacy and then entered the second supplemental order, which substantially modified the conditions that were placed on the stay entered on December 1, 2016.

The board now seeks a substantive review of the merits of that order. Specifically, the board challenges the provision in that order directing it to "void" the report made to the NPDB—an issue this court could not address in the first petition because no hearing had been held and no record developed as to that issue. Now, for the first time, the court can conduct a meaningful review of the issue presented in the second petition. Therefore, we conclude that there is nothing improper in the board's decision to seek review of the merits of the second supplemental order, and Parks's motions to dismiss are denied. We note that, after Parks filed the motion to dismiss in response to the second petition, this court called for her to answer the petition. Instead of providing this court with an answer responding to the issues presented in the second petition, Parks chose to file an amended motion to dismiss. Parks has not addressed the substantive issues raised in the board's petition.

Turning to the merits of the board's second petition, our standard is well settled.

" [Our appellate courts have] consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly
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