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09/21/93 STATE MISSOURI EX REL. STATE BOARD

September 21, 1993

STATE OF MISSOURI EX REL. STATE BOARD OF PHARMACY, APPELLANT,
v.
THE HONORABLE PAUL R. OTTO COMMISSIONER, ADMINISTRATIVE HEARING COMMISSION, RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY. The Honorable James F. McHenry, Judge

Before Turnage, C.j.; Lowenstein and Hanna, JJ.

The opinion of the court was delivered by: Turnage

The State Board of Pharmacy filed a complaint before the Administrative Hearing Commission seeking to establish cause to discipline the pharmacist license of James E. Drake. Drake filed an interrogatory directed to the Board to which the Board objected. After the AHC overruled the objection, the Board sought and obtained a preliminary order in prohibition from the circuit court prohibiting the AHC from enforcing its discovery order. Thereafter, the court quashed its preliminary order. On appeal, the Board contends that the AHC acted in excess of its jurisdiction in requiring the Board to answer the interrogatory and to produce the personnel and licensure files. Reversed and remanded.

James Drake formerly owned Drake's Medical Center Pharmacy in Rolla. Drake sold the pharmacy and transferred its possession in April 1988. Thereafter the business was operated under the name of Rolla Prescription Shop. During that same month, Carl Garrett, an inspector employed by the Board, went to the pharmacy to perform an inspection upon the change of ownership. Garrett found Bruce Stoelting was the pharmacist in charge and Elwyn Wax was a staff pharmacist.

During his inspection Garrett discovered in Drake's prescription files evidence of numerous record keeping violations and the refilling of prescriptions without authorization. Garrett discovered other violations of Chapter 338, RSMo 1986. *fn1 Garrett made a second visit to the pharmacy to perform a more detailed investigation of the files which Drake had transferred as part of the sale of the pharmacy and discovered more evidence of record keeping and refilling violations. Garrett made a report of his investigation to the Board.

After Garrett had filed his report with the Board, the Board filed a complaint with the AHC. After the complaint had been filed the Board's attorney began trial preparation by conducting witness interviews, reviewing documents and preparing notes and memoranda.

During the course of discovery before the AHC, Drake's attorney served interrogatories on the Board. Interrogatory No. 9 stated:

9. Whether or not you have conducted or have cause to be conducted any investigation or further investigation of Respondent, James E. Drake, after the inspection of April 4, 1988 of Drake's Medical Center Pharmacy, and if so state:

A. Identify each person conducting each such investigation or further investigation on your behalf;

B. Describe in detail each such investigation or further investigation;

C. Identify each person contacted during each such investigation or further investigation the date of each such contract and identify each person acting on your behalf who contacted each such person on each such date;

D. Describe in detail what each person said on each date when he/she was contacted and/or interviewed;

E. Describe in detail what was said to each person when he/she was contacted and/or interviewed on each such date;

F. Identify and describe in detail each document you obtained during each such investigation ...


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