Opinion
No. 72-298
Decided August 14, 1973. Rehearing denied September 18, 1973. Certiorari denied November 19, 1973.
Following hearing, pharmacist was suspended by State Board of Pharmacy for violations of statute governing the dispensing of prescription drugs, and he sought review.
Reversed
1. ADMINISTRATIVE LAW AND PROCEDURE — Statute Amended — Only — Procedural Aspects — Disciplinary Hearing — Affected — Prior Proceedings — Under Previous Law. Where disciplinary hearing against pharmacist was held in late July of 1969, only the procedural aspects of the hearing itself are affected by statutory amendments that went into effect July 1, 1969; the substantive aspects of the alleged violation committed by the pharmacist and the procedural provisions relating to the initial proceedings are both covered under the law in effect prior to July 1, 1969.
2. Pharmacist — Disciplinary Hearing — Notice — Adequate — Under Either — Administrative Code — Drugs and Druggists Law. Whether the provisions of the Administrative Code or the specific provisions of the statute relative to Drugs and Druggists were controlling as to the required notice procedures to be followed in disciplinary proceedings against a pharmacist, the fact that the pharmacist received a notice of hearing and a copy of the original complaint was sufficient to afford him adequate notice of the proceedings.
3. DRUGS AND DRUGGISTS — High Degree of Care — Had Notice — Drug Status — Deliberately — Continued to Dispense — Reasonable Grounds — Institute — Disciplinary Proceedings. A pharmacist is charged with a high standard of professional care within the area of his professional expertise; and, where there were continually at hand easily accessible means for pharmacist to determine that drug he was dispensing was not an over-the-counter item, but required a prescription, and where he was put on notice of such prescription requirement, but deliberately continued to dispense the drug without prescription, the pharmacy board had reasonable grounds to institute disciplinary proceedings against him.
Appeal from the District Court of the City and County of Denver, Honorable Joseph N. Lilly, Judge.
Inman, Flynn Coffee, P.C., Robert D. Inman, Timothy A. Correll, for plaintiff-appellee.
John P. Moore, Attorney General, William Tucker, Assistant, for defendant-appellant.
Division II.
The State Board of Pharmacy (Board), defendant-appellant, ordered the suspension of the pharmacist's license of Seymour Fink, plaintiff-appellee. That order was subsequently set aside in a judgment entered by the district court, and the Board appeals from that judgment. We reverse.
An original complaint was filed against Fink on April 6, 1967, by the State Board of Social Services (Complainant) and a notice of hearing was issued in July 1968 for a hearing the following month. That hearing was held but was continued for discovery procedures. On May 8, 1969, an amended complaint was filed. The final hearing was held on July 22-23, 1969, and an order of suspension was entered August 29, 1969. The Board found that Fink had violated C.R.S. 1963, 48-7-2, by repeatedly selling a "legend" drug (one requiring a doctor's prescription and a cautionary label so stating) without the prescription of an authorized person, and by willfully and repeatedly representing that there was a prescription of an authorized person when, in fact there was none.
The facts are not significantly in dispute. Prior to the hearing before the Board, it was stipulated that during 1966 Virac was a legend drug, that on three different occasions in September 1966 Fink had supplied Virac to nursing homes for use in the treatment of patients, that Fink had not received authorization to dispense Virac from the patients' doctors themselves, that the doctors of the particular patients had not authorized Virac for those patients, and that Fink had submitted bills to the State Board of Social Services which made it appear that the doctors had authorized Virac. Testimony elicited at the hearing established that during 1966 Fink was the major supplier of pharmaceuticals for seven different nursing homes in the Denver area. Upon learning from literature relating to Virac of its possible beneficial effect on bedsores, Fink contacted the manufacturer of the drug and was subsequently called upon by a representative. The representative left with Fink a sample bottle of Virac. The bottle was of a refillable type which, under federal law, cannot be used for legend drugs. Also, the bottle was not affixed with the federally required label stating: "Caution: Federal Law prohibits dispensing without a prescription."
After receiving the Virac sample and pertinent literature concerning the new drug, Fink ordered Virac from the manufacturer during the last four months of 1966, and he filled orders from the drug which were sent to him by the nursing staffs of the various nursing homes which he supplied. Although standard pharmaceutical reference manuals were available to Fink, he did not consult them to determine Virac's legend status.
The trial court found that:
"Before the institution of the proceedings before the Board to suspend the plaintiff's license the Board failed to give the plaintiff 'notice in writing' of facts or conduct that might warrant such action. It further did not afford the plaintiff an opportunity to submit written data, views and arguments with respect thereto as provided in [C.R.S. 1963, 3-16-3(3)]."
The court also found that:
". . . such confusion existed concerning whether or not a prescription was necessary for [Virac] that the Board did not have reasonable grounds to institute proceedings without the required notice."
The court further found that the Board erroneously admitted certain depositions into evidence without proper foundation therefor, that the Board compelled Fink to face certain charges even though both parties had agreed to stipulate to their dismissal, and that the evidence was not sufficiently substantial to sustain the findings, conclusions, and decision of the Board.
The Board first contends that contrary to the district court's determination, Fink was afforded adequate notice. We agree.
[1] From a review of the record and the briefs it cannot be conclusively determined which law was urged by counsel and considered by the district court in review of the procedure followed by the Board. It is noted that both C.R.S. 1963, Chapter 48, Drugs and Druggists, and C.R.S. 1963, Chapter 3, Administrative Code, underwent substantial changes which became effective July 1, 1969. Only the procedural aspects of the hearing itself held in July of 1969 are affected by the amended law. The substantive aspects of the alleged violation and the procedural provisions relating to the initial proceedings are both covered under the law prior to amendment in 1969.
At the time of the filing of the complaint and the amended complaint, the Board derived its power from the statute governing Drugs and Druggists, C.R.S. 1963, 48-1-3. That statute contains no reference to the Administrative Code, and it provides, in pertinent part, as follows:
"(1)(a) The board has the power to deny, revoke, or suspend any license to practice as a pharmacist, assistant pharmacist, or apprentice in pharmacy upon proof that the licensee:
. . . . .
(f) Has willfully or repeatedly violated any of the provisions of articles 1, 3, or 7 of this chapter, or the lawful rules and regulations of the board.
(2) Disciplinary proceedings may be instituted by any person and shall be by sworn complaint. The board shall give notice to the person complained against and shall hold a hearing within a reasonable time after notice is given."
[2] We do not agree that, as found by the trial court, "notice in writing" was required to have been given Fink before "institution of proceedings." It is true that this language can be found in the Administrative Code at C.R.S. 1963, 3-16-3(3), but it does not apply to this case for two reasons. First, assuming arguendo that before July 1, 1969, the notice procedures set out in the Administrative Code were applicable to the Pharmacy Board, the Board could, nevertheless, institute proceedings without complying with the provisions of C.R.S. 1963, 3-16-3(3), where the Board had reasonable grounds to believe that the licensee had deliberately and willfully violated the law, and where such finding was made and incorporated in the resulting order. C.R.S. 1963, 3-16-3(4). The Board, on substantial evidence, made such a finding in this case. Second, by the terms of the Administrative Code, "where a specific statutory provision applies to a specific agency, such specific statutory provision shall control . . . ." C.R.S. 1963, 3-16-6. The legislature provided specific guidelines in C.R.S. 1963, 48-1-3(2) for the Board to follow in regard to notice; therefore, those guidelines control over the general provisions of the Administrative Code. Having received a notice of hearing and a copy of the original complaint, Fink was afforded adequate notice.
Under the amended law it is specifically provided that the Administrative Code, C.R.S. 1963, 3-16-1 et seq., as amended, is applicable to State Board of Pharmacy proceedings. 1969 Perm. Supp., C.R.S. 1963, 48-1-3(3)(a).
[3] It was also determined by the court that the Board lacked reasonable grounds to institute proceedings without the required notice because "confusion" existed as to Virac's legend status. As determined above, the required notice was, in fact, given. Although there were reasons why Fink may have thought that Virac was possibly an over-the-counter item, there were continually at hand easily accessible means of discovering the legend requirement. Further, Fink testified that in late November or early December of 1966 he was put on notice that Virac was other than an over-the-counter product; however, the evidence reveals that he deliberately continued to dispense Virac without undertaking a reasonable investigation that would have revealed his error. In protecting the welfare of the public, a pharmacist is charged with a high standard of professional care within the area of his licensed expertise. C.R.S. 1963, 48-1-25. Fink should have made more than a cursory attempt to determine whether or not Virac was a legend drug.
In regard to the depositions that were admitted into evidence by the
Board, all were related to certain charges against Fink that the Board refused to dismiss at the outset of the hearing. The Board did, however, dismiss those charges in its final order, and findings of fact relating to the remaining charges were made without reference to any testimony contained in the depositions. Therefore, any error in regard to the charges not initially dismissed or the admission of depositions was harmless. See Lloyd A. Fry Roofing Co. v. State of Colorado Department of Health, 179 Colo. 223, 499 P.2d 1176.
We find that there was sufficient substantial evidence to sustain the findings of fact, conclusions of law, and decision of the Board. The judgment of the district court is reversed and the cause remanded with directions that the Board's order be reinstated.
CHIEF JUDGE SILVERSTEIN and JUDGE SMITH concur.