SUNSCRIPT PHARMACY v. Board of Pharmacy, No. COA00-1089.

Docket NºNo. COA00-1089.
Citation555 S.E.2d 629, 147 NC App. 446
Case DateDecember 04, 2001
CourtCourt of Appeal of North Carolina (US)

555 S.E.2d 629
147 NC App.
446

SUNSCRIPT PHARMACY CORPORATION, Petitioner,
v.
NORTH CAROLINA BOARD OF PHARMACY, Respondent

No. COA00-1089.

Court of Appeals of North Carolina.

December 4, 2001.


555 S.E.2d 630
Yates, McLamb & Weyher, L.L.P., by Michael C. Hurley, Raleigh, for petitioner-appellee

Bailey & Dixon, L.L.P., by Carson Carmichael, III, Raleigh, for respondent-appellant.

CAMPBELL, Judge.

Respondent North Carolina Board of Pharmacy ("the Board") appeals from the trial court's order reversing the Board's final agency decision suspending the pharmacy permit of Sunscript Pharmacy Corporation ("petitioner") pursuant to N.C. Gen.Stat. § 90-85.38(b). We disagree with the trial court's interpretation of the applicable statutes and reverse the order under review.

The Board is the occupational licensing agency responsible for licensing pharmacists and issuing pharmacy permits throughout North Carolina. N.C. Gen.Stat. §§ 90-85.15, -85.21 (1999). The Board is also responsible for enforcing the laws pertaining to the distribution and use of drugs. N.C. Gen. Stat. § 90-85.6(a) (1999). Petitioner is a foreign corporation authorized to do business in North Carolina and is engaged in operating pharmacies in this State that are not open to the general public, but rather provide pharmaceutical services to long-term care facilities owned and operated by Sun Healthcare. The pharmacy at issue in these proceedings is petitioner's pharmacy located in Pink Hill, North Carolina. At all times relevant hereto, petitioner's pharmacy in Pink Hill was being operated pursuant to a pharmacy permit (Permit No. 6467) duly issued by the Board, and was subject to the full regulatory authority of the Board.

On 28 August 1998, the Board received information indicating that an error had been committed in the dispensing of a prescription for the drug Dilantin at petitioner's Pink Hill pharmacy. The Board's investigation revealed that on 27 July 1998 petitioner received a doctor's prescription for a long-term care facility patient which called for "Dilantin 100 mg capsules BID and Dilantin 50 mg BID." Petitioner did not have the Dilantin 50 mg, so John Conrad Hunt ("Hunt"), a licensed pharmacist and employee of petitioner, dispensed liquid Dilantin with instructions on the label that read "10 cc = 50 mg." However, for the patient to receive the correct dosage, the label should have read "2 cc = 50 mg." Although the patient was administered the Dilantin between 29 July 1998 and 1 August 1998, and the patient died on 11 August 1998, it could not be determined whether the incorrect dosage of Dilantin caused or contributed to the patient's death. The Board's investigation further revealed that Hunt had committed four other dispensing errors between 21 July 1998 and 4 August 1998, including dispensing the wrong drug, dispensing the wrong strength of drug, and using the wrong patient name on a prepared drug order.

On 8 October 1998, the Board issued a "Notice of Hearing" to petitioner and Hunt regarding the five dispensing errors uncovered by the Board's investigation. The purpose of the hearing was to determine whether the alleged dispensing errors committed by petitioner and Hunt violated the laws governing the practice of pharmacy and the distribution of drugs, thereby subjecting petitioner and Hunt to the Board's disciplinary authority under N.C.G.S. § 90-85.38. Specifically, the Board alleged that the dispensing errors committed by petitioner and Hunt violated N.C. Gen.Stat. §§ 90-85.30, 90-85.38(a)(6),

555 S.E.2d 631
90-85.38(a)(9), 90-85.38(b) and 106-134.1

The hearing was held on 27 October 1998, at the commencement of which petitioner and Hunt stipulated to the allegations concerning the five dispensing errors. The evidence presented at the hearing indicated that all of the errors had been initially committed by pharmacy technicians who worked under the supervision of Hunt. The evidence also indicated that Hunt was terminated from employment by petitioner on 28 August 1998. On 25 January 1999, the Board issued a final agency decision making findings of fact consistent with the parties' stipulations and the evidence presented at the hearing and concluding that the dispensing errors committed by petitioner and Hunt constituted violations of N.C.G.S. §§ 90-85.30, 90-85.38(a)(6), 90-85.38(a)(9) and 106-134.1.

As a result, the Board suspended Hunt's pharmacist license (License No. 14427) for seven days, with the suspension stayed for two years upon Hunt complying with several conditions. Likewise, the Board suspended petitioner's pharmacy permit (Permit No. 6467) for seven days, with the suspension also stayed for two years upon petitioner complying with restrictions on the number of prescriptions it could fill, more stringent requirements for reporting future dispensing errors to the Board, and other conditions.

On 23 February 1999, petitioner filed a petition in Wake County Superior Court seeking judicial review of the Board's final agency decision pursuant to N.C. Gen.Stat. § 150B-45.1 Petitioner alleged that the Board's decision prejudiced the substantial rights of petitioner, in that the decision was "void for want of jurisdiction, violate[d] provisions of the constitution of this State and the United States, exceed[ed] the statutory authority and jurisdiction of the Board, [was] unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted, [was] arbitrary and capricious, and [was] otherwise affected by errors of law." Included among petitioner's listed exceptions to the Board's final agency decision was the following:

(h) In excess of Respondent's statutory authority and jurisdiction and in violation of the guarantees of due process in the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the North Carolina Constitution, Respondent has improperly imputed to Petitioner the findings of negligence made against another subject of its investigation.
....

On 26 May 2000, the trial court entered a Memorandum of Decision reversing the Board's decision to suspend petitioner's pharmacy permit, reasoning:

[The] Board does not have the authority to discipline permittee pharmacy for the negligence of a pharmacist employee who is also licensed by the
...

To continue reading

Request your trial
6 practice notes
  • Clark Stone Co., Inc. v. NC DENR, No. COA03-526.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 4, 2004
    ...to construe a statute when the meaning of a statute is in doubt. Sunscript Pharmacy Corp. v. N.C. Bd. of Pharmacy, 147 N.C.App. 446, 452, 555 S.E.2d 629, 633 (2001), disc. review denied, 355 N.C. 292, 561 S.E.2d 506 In construing the laws creating and empowering administrative agencies, as ......
  • Bd. of Pharmacy v. Rules Review Com'n, No. COA04-929.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 1, 2005
    ...an effort to "assure the safe and secure distribution of drugs." See e.g. Sunscript Pharm. Corp. v. N.C. Bd. of Pharm., 147 N.C.App. 446, 555 S.E.2d 629 (2001) (finding Act gave authority for Board of Pharmacy to discipline a permit holder for conduct of pharmacist in the filling of a presc......
  • CVS Pharmacy v. Bd. of Pharmacy, No. COA02-1643.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • February 3, 2004
    ...which can act only through its officers, agents, and employees. Sunscript Pharmacy Corp. v. N.C. Bd. of Pharmacy, 147 N.C.App. 446, 454, 555 S.E.2d 629, 634 (2001), disc. review denied, 355 N.C. 292, 561 S.E.2d 506 Section 90-85.2 et seq. of the General Statutes comprises the North Carolina......
  • Cornelius v. Department of Banking, No. 26706.
    • United States
    • Appellate Court of Connecticut
    • March 28, 2006
    ...16 Cal.4th 284, 295, 940 P.2d 323, 65 Cal.Rptr.2d 872 (1997); Sunscript Pharmacy Corp. v. Board of Pharmacy, 147 N.C.App. 446, 454, 555 S.E.2d 629 (2001), cert. denied, 355 N.C. 292, 561 S.E.2d 506 5. General Statutes § 36a-489(a) provides in relevant part: "If the commissioner finds, upon ......
  • Request a trial to view additional results
6 cases
  • Clark Stone Co., Inc. v. NC DENR, No. COA03-526.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 4, 2004
    ...to construe a statute when the meaning of a statute is in doubt. Sunscript Pharmacy Corp. v. N.C. Bd. of Pharmacy, 147 N.C.App. 446, 452, 555 S.E.2d 629, 633 (2001), disc. review denied, 355 N.C. 292, 561 S.E.2d 506 In construing the laws creating and empowering administrative agencies, as ......
  • Bd. of Pharmacy v. Rules Review Com'n, No. COA04-929.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 1, 2005
    ...an effort to "assure the safe and secure distribution of drugs." See e.g. Sunscript Pharm. Corp. v. N.C. Bd. of Pharm., 147 N.C.App. 446, 555 S.E.2d 629 (2001) (finding Act gave authority for Board of Pharmacy to discipline a permit holder for conduct of pharmacist in the filling of a presc......
  • CVS Pharmacy v. Bd. of Pharmacy, No. COA02-1643.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • February 3, 2004
    ...which can act only through its officers, agents, and employees. Sunscript Pharmacy Corp. v. N.C. Bd. of Pharmacy, 147 N.C.App. 446, 454, 555 S.E.2d 629, 634 (2001), disc. review denied, 355 N.C. 292, 561 S.E.2d 506 Section 90-85.2 et seq. of the General Statutes comprises the North Carolina......
  • Cornelius v. Department of Banking, No. 26706.
    • United States
    • Appellate Court of Connecticut
    • March 28, 2006
    ...16 Cal.4th 284, 295, 940 P.2d 323, 65 Cal.Rptr.2d 872 (1997); Sunscript Pharmacy Corp. v. Board of Pharmacy, 147 N.C.App. 446, 454, 555 S.E.2d 629 (2001), cert. denied, 355 N.C. 292, 561 S.E.2d 506 5. General Statutes § 36a-489(a) provides in relevant part: "If the commissioner finds, upon ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT