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In Central Drug, Inc. v. State Board of Pharmacy, 511 P.2d 944 (Colo.App., not selected for official publication) (the Central Drug case), this Court reversed in part a 1971 judgment of the district court which had vacated a 1970 decision of the Board suspending for twelve days the pharmacy license of Central Drug, Inc., (Central). Inasmuch as the original suspension in that case had been based on two violations of the drugs and druggists statute, only one of which had been upheld on appeal, the matter was remanded for a reconsideration of the penalty to be imposed.
Summary of this case from Alcott Pharmacy v. St. Bd.Opinion
Rehearing Denied June 5, 1973.
Page 945
Geer, Goodwin & Chesler, Robert E. Goodwin, Denver, for petitioner-appellee.
Duke W. Dunbar, Atty. Gen., William Tucker, Asst. Atty. Gen., Denver, for respondents-appellants.
ENOCH, Judge.
The Colorado State Board of Pharmacy (Board) suspended for twelve days the pharmacy license of Central Drug, Inc., doing business as Sheridan Drug. The Board determined that Sheridan Drug had substituted and mislabeled drugs in violation of 1969 Perm.Supp., C.R.S.1963, 48--1--19(1)(i) and (j). Sheridan Drug filed a petition in the District Court pursuant to C.R.C.P. 106(a)(4) to review the decision of the Board. Following a hearing, the trial court reversed the Board and vacated the suspension order. From that judgment the Board appeals.
A complaint was filed with the Board by a representative of Marion Laboratories on October 9, 1969, charging that Sheridan Drug had substituted a generic drug for 'Pavabid,' a Marion product which had been specifically prescribed by the ordering physicians. The representative discovered the alleged substitution of drugs on September 23, 1969, at the Villa Manor Nursing Home in Denver when he inspected certain prescriptions filled by Sheridan Drug. The notice of the hearing served on the agent for Sheridan Drug stated that a hearing would be held on the charge that 1969 Perm.Supp., C.R.S.1963, 48--1--19(1)(i) had been violated by substituting another brand of drug in place of the drug prescribed.
On September 24, 1969, an inspector for the Board went to Villa Manor and, among other discoveries, found a prescription labeled 'Nembutal' which contained capsules without the pharmaceutical company's identifying markings. A copy of the inspector's report reciting the alleged mislabeling, in violation of 1969 Perm.Supp., C.R.S.1963, 48--1--19(1)(j), was delivered to Sheridan Drug's counsel approximately one week before the hearing. Although the complaint was not amended and a new notice sent to Sheridan Drug, a charge relating to Nembutal mislabeling was informally incorporated into the hearing and pertinent evidence was offered and received.
In reversing the decision of the Board, the district court found that the complaint against Sheridan Drug and the notice of hearing were defective in lacking reference to the alleged Nembutal mislabeling violation. We agree. Colorado's Administrative Code requires that 'timely notice' be given of 'matters of fact and law asserted.' Unless otherwise provided by law, notice is timely only when given at least twenty days prior to the hearing. 1969 Perm.Supp., C.R.S.1963, 31--16--4(2). Therefore, in regard to the Nembutal mislabeling charge and the decision that Sheridan Drug violated 1969 Perm.Supp., C.R.S.1963, 48--1--19(1)(j), the Board was in error and the district court's reversal is upheld. See Spears Free Clinic v. State Board of Health, 122 Colo. 147, 220 P.2d 872.
In regard to the violation alleging drug substitution, (1969 Perm.Supp., C.R.S.1963, 48--1--19(1)(i)) the district court found that the Board reached no conclusion that the prescriptions, including those for Pavabid, did not contain the prescribed drug. We do not agree with the court's ruling. The Board, after making numerous findings concerning both Nembutal and Pavabid, specifically stated in its written decision that 'Sheridan Drug deliberately and willfully violated Section 48--1--19(1)(i), and 48--1--19(1)(j).' This conclusion of the Board is substantiated by the evidence and the findings thereon.
The district court further found that the Board's decision was clearly erroneous and unsupported by the evidence. With this finding we also disagree.
When an administrative agency has the authority to make findings of fact such as the Pharmacy Board has by statute, C.R.S.1963, 48--1--1 et seq., as amended, and where there is competent evidence before the administrative body to support its findings, the district court cannot later act as a trier of fact and substitute its judgment for that of the agency. State Board of Medical Examiners v. Spears, 79 Colo. 588, 247 P. 563. Such was the situation in the case at hand. During the hearing there was considerable testimony and evidence presented concerning the alleged substitution of the generic substance for the trade name drug Pavabid. The crux of the case had to do with the identification of the capsules in question. Although no chemical analysis was made of the capsules alleged to have contained the generic substance, the quantity and quality of the other identifying evidence could reasonably support the unanimous finding of the Board members who have expertise and experience beyond that of a normal lay jury. See Florida Board of Pharmacy v. Levin, 190 So.2d 768 (Fla.).
On December 23, 1971, the district court entered its judgment. The Board subsequently requested additional time in which to file a motion for a new trial under C.R.C.P. 59(b). This requested enlargement was granted. The Board, however, filed on January 31, 1972, a motion to alter or amend the judgment under C.R.C.P. 59(e). This motion was denied the Board and then prosecuted this appeal.
Sheridan Drug claims that the Board did not follow the proper procedure under the rules to preserve its right to appeal. As a condition precedent to this appeal, it was unnecessary for the Board to move for a new trial, or, alternatively, for an altered or amended judgment. A motion under C.R.C.P. 59 is not required where judgment is entered after any hearing not involving controverted issues of fact. C.R.C.P. 59(h). The rule stated in C.R.C.P. 59(h) is applicable in all district court hearings where the court is limited to a review of the record of the proceedings of an administrative board or agency. Colorado Civil Rights Commission v. Colorado, 30 Colo.App. 10, 488 P.2d 83.
We reverse the judgment of the district court pertaining to the charge of substitution of drugs (Pavabid) and direct that the order of the Board be reinstated as to that charge under 1969 Perm.Supp., C.R.S.1963, 48--1--19(1) (i). Inasmuch as the twelve day suspension was imposed upon Sheridan Drug upon the basis of the Board's findings that Sheridan Drug had violated Both subsections (i) and (j) of 1969 Perm. Supp., C.R.S.1963, 48--1--19(1), and in light of our opinion holding that Sheridan Drug is liable under only one of the two subsections, this case is remanded with directions that the district court remand the cause to the Board for reconsideration of the penalty imposed.
PIERCE and SMITH, JJ., concur.