Court of Appeals of Missouri, Western District, Second Division
JOHN H. PEER, JR., R.Ph., Respondent,
MISSOURI BOARD OF PHARMACY, Appellant
Appeal from the Circuit Court of Cole County, Missouri. The Honorable Daniel R. Green, Judge.
James B. Deutsch, Thomas W. Rynard, and Stephanie S. Bell Jefferson City, MO, Attorneys for Respondent.
Chris Koster, Attorney General Daryl R. Hylton, Assistant Attorney General Jefferson City, MO, Attorneys for Appellant.
Before Division Two: Victor C. Howard, Presiding Judge, and Mark D. Pfeiffer and Gary D. Witt, Judges. Victor C. Howard, Presiding Judge, and Gary D. Witt, Judge, concur.
Mark D. Pfeiffer, Judge.
This is an appeal from an administrative decision. The Missouri Board of Pharmacy (.Board.) entered an order of additional discipline revoking the pharmacist license of John H. Peer, Jr. (" Peer" ). Peer petitioned the Circuit Court of Cole County, Missouri (" circuit court" ), to review the Board's decision. The circuit court set aside the Board's order of discipline. The Board appeals. We reverse the circuit court's judgment.
Factual and Procedural Background
Peer was licensed by the Board as a pharmacist in 1972 and became owner of Center Pharmacy in Kansas City, Missouri, in 1978. From 2002 to 2012, Peer also worked as a pharmacist on the evening shift of the outpatient pharmacy of Children's Mercy Hospital in Kansas City, Missouri.
On July 24, 2006, Peer entered into a Settlement Agreement (.2006 Settlement Agreement.) with the Board for the purpose of resolving the question of whether his license as a pharmacist would be subject to discipline. Peer waived his right to a hearing by the Administrative Hearing Commission (" AHC" ) regarding cause to discipline his pharmacist license and his right to a disciplinary hearing before the Board. The 2006 Settlement Agreement enumerated Peer's pharmacy violations:
1. Failure to maintain the original prescription in the appropriate prescription file;
2. Failure to maintain the pharmacy in a clean and sanitary condition;
3. Failure to maintain proper files of prescriptions;
4. Failure to keep pharmacy inventory separate from outdated supplies;
5. Failure to keep the daily pharmacist signature log signed;
6. Failure to keep the compounding area in a sanitary condition;
7. Failure to properly dispose of controlled substances;
8. Failure to properly maintain records of controlled substances;
9. Failure to maintain a Schedule II controlled substance in a secured area;
10. Failure to maintain separate records of controlled substances;
11. Failure to properly maintain records when dispensing controlled substances.
Peer's pharmacist license was placed on five years' probation beginning August 26, 2006. Among the terms of discipline in the disciplinary order section of the 2006 Settlement Agreement that Peer agreed to follow during the term of his probation was that he " shall comply with all provisions of Chapter 338, Chapter 195, and all
applicable federal and state drug laws, rules and regulations and with all federal and state criminal laws." The disciplinary order also provided that:
Upon the expiration of said discipline, [Peer's] license as a pharmacist in Missouri shall be fully restored if all other requirements of law have been satisfied; provided, however, that in the event the Board determines that [Peer] has violated any term or condition of this Agreement, the Board may, in its discretion, after an evidentiary hearing, vacate and set aside the discipline imposed herein and may suspend, revoke or otherwise lawfully discipline [Peer].
On March 10, 2011, the Board was notified by the Missouri Bureau of Narcotics and Dangerous Drugs (" BNDD" ) that Center Pharmacy had operated with an expired BNDD license. On June 3, 2011, the Board filed a complaint for violation of the 2006 Settlement Agreement's disciplinary order. After a hearing, the Board found that Peer:
1. Held and distributed controlled substances without a valid BNDD license;
2. Failed to use Drug Enforcement Agency Form 222 when he distributed controlled substances;
3. Failed to maintain his pharmacy in a clean and sanitary condition;
4. Improperly labeled prescriptions;
5. Violated the disciplinary terms contained in the Settlement Agreement.
On August 4, 2011, the Board issued its order of discipline (" 2011 Order" ), which replaced the 2006 Settlement Agreement. The 2011 Order placed Peer on probation for two years effective August 4, 2011. Among the terms and conditions governing Peer's probation were the following requirements:
39. [Peer] shall comply with all provisions of Chapter 338, Chapter 195, and all applicable federal and state drug laws, rules and regulations and with all federal and state criminal laws. . . .
. . . .
49. [Peer] shall establish a continuous quality improvement program to assess dispensing errors related to his pharmacy practice and shall take appropriate action(s) to prevent recurrence. [Peer] shall document all dispensing errors for which he was responsible regardless of practice location. On a quarterly basis [Peer] shall review all errors documented since the last quarterly review and establish steps taken or to be taken to prevent recurrence of such errors. [Peer] shall document for each quarterly review which errors were reviewed and the steps taken or to be taken to prevent recurrence. All documentation required by this section shall be made immediately available to the Board of Pharmacy or its staff upon request.
The 2011 Order provided that:
52. Should Peer violate any term or condition of this Order or any provision of Chapter 338, RSMo, the Board of Pharmacy may vacate the order of discipline imposed herein and order such further or additional discipline as the Board deems appropriate, including, but not limited to, revocation, suspension, and/or probation against the pharmacist license of Peer. No additional order shall be entered by the Board pursuant to this paragraph of this Order without notice and an opportunity for hearing before the Board of Pharmacy as a contested case in accordance with the provisions of Chapter 536, RSMo.
After the 2011 Order became effective, Peer employed Wilson Winch, R.Ph., as a consultant at Center Pharmacy. On or about October 13, 2011, March 5, 2012, and
September 5, 2012, Winch conducted Pharmacy Consultant Reviews, which were provided to the Board. Board Inspector Andi Miller inspected Center Pharmacy on several occasions and visited the Children's Mercy Hospital Outpatient Pharmacy. Based on errors identified by Winch and Inspector Miller, on January 31, 2013, the Board filed a complaint, alleging that Peer violated the terms of the 2011 Order. Regarding paragraph 39 of the 2011 Order, the Board alleged that Peer violated section 338.059.1(4) by dispensing improperly labeled prescriptions and 20 CSR 2220-2.010(1)(F) by failing to maintain his pharmacy in a clean and sanitary manner. Pertaining to paragraph 49 of the 2011 Order, the Board alleged that Peer failed to immediately produce quarterly review of errors reports, and in the reports he did produce, he did not include the steps taken to prevent recurrence of errors.
After two continuances requested by Peer, a violation of disciplinary order hearing was held on July 17, 2013. At the hearing, Peer stipulated to a briefing schedule in which the Board would file its brief by August 2, 2013, and Peer would file a response by August 12, 2013. On September 30, 2013, the Board issued its findings of fact, conclusions of law, and order of discipline (" 2013 Order" ). The Board found that Peer violated the terms of probation as alleged. The Board revoked Peer's pharmacist license and prohibited him from reapplying for seven years.
Peer petitioned the circuit court for judicial review of the Board's 2013 Order. The circuit court entered its judgment on March 11, 2014. The circuit court found that, " [P]ursuant to the Order of Discipline of August , 2011, Peer's probationary period expired on August , 2013, and the Board lost jurisdiction and authority to impose additional discipline as of that date." The circuit court thus concluded that the Board's 2013 Order was null and void.
The Board appeals.
Standard of Review