Soah.state.tx.us

SOAH DOCKET NO. 515-09-2498

TEXAS STATE BOARD OF
BEFORE THE STATE BOARD
PHARMACY,
Petitioner
OLUWAFEMI AWE,
LICENSE NUMBER 30310,
Respondent
ADMINISTRATIVE HEARINGS
PROPOSAL FOR DECISION
Staff of the Texas State Board of Pharmacy (Staff/Board) seeks to suspend the pharmacist license of Oluwafemi Awe (Respondent), impose probationary conditions, and assess administrative penalties against him based on allegations that he committed various violations of the Texas Pharmacy Act (Act)1 and the Board’s rules, including being placed on deferred adjudication for a felony offense, submitting a fraudulent application for renewal of his pharmacist license, unlawfully possessing dangerous drugs or controlled substances, and using drugs or alcohol in an intemperate manner that could endanger a patient’s life. Based on the evidence presented, the Administrative Law Judge (ALJ) recommends that Respondent’s license be revoked. I. NOTICE, JURISDICTION AND PROCEDURAL HISTORY
Neither party contested notice or jurisdiction. Therefore, those matters are addressed in the findings of fact and conclusions of law sections below without further discussion here. The hearing convened on April 20, 2009, before ALJ Ami L. Larson in the William P. Clements Building, 300 West 15th Street, Fourth Floor, Austin, Texas. Staff was represented by Julie C. Hildebrand, Litigation Counsel. Respondent was represented by attorney Susan Henricks.2 The record closed on May 19, 2009, following the parties’ submission of written closing arguments. 1 TEX. OCC. CODE ch. 551 et seq. 2 Ms. Henricks previously withdrew as counsel for Respondent, but nonetheless appeared and represented him at the hearing. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 2
II. APPLICABLE LAW
The Board is authorized to take disciplinary action against a licensee who is found to have:3 1) been placed on deferred adjudication for a felony offense;4 2) developed an incapacity that prevents him from practicing pharmacy with reasonable skill, competence, and safety to the public;5 3) used alcohol or drugs in an intemperate manner that, in the Board’s opinion, could endanger a patient’s life;6 4) violated any provision of the Texas Dangerous Drug or Controlled Substances Acts;7 5) engaged in fraud, deceit, or misrepresentation, as defined by Board rule, in practicing pharmacy or in seeking a license to practice pharmacy;8 6) engaged in unprofessional conduct as defined by Board rule;9 or 7) violated a contract under the program to aid impaired pharmacists.10 Authorized disciplinary actions include license suspension or revocation, probated suspension, imposition of license restrictions, assessment of administrative penalties, and reprimand.11 The Board’s rules include guidelines and factors to consider regarding appropriate disciplinary sanctions for criminal offenses.12 However, the Board has determined that the nature and seriousness of certain offenses, including driving while intoxicated (DWI) and the unlawful possession of controlled substances, outweigh the factors set forth in the guidelines and require the imposition of the sanctions set forth in the Board’s rules for those offenses.13 3 This is not an exhaustive list, but relates to the allegations brought against Respondent in this action. 4 Sec. 565.001(a)(6)(B) of the Act. 9 Sec. 565.001(a)(2) of the Act, 22 TEX. ADMIN. CODE (TAC) § 281.7. 10 Sec 565.001(a)(17) of the Act. 11 Sec. 565.051 of the Act. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 3
Pursuant to the Board’s rules, the license of a pharmacist who has feloniously possessed a controlled substance and who remains on probation, should be revoked or suspended.14 Additionally, the applicable rules dictate that a pharmacist who commits two DWI offenses within the previous ten years, and has not had five years elapse since the last date of disposition, must undergo an evaluation by a mental health professional, which indicates that he is safe to engage in pharmacy practice and must be placed on probation for a period of five years.15 The Board considers the commission of certain crimes, including DWI and Possession of a Controlled Substance, to be directly related to the duties and responsibilities of a licensed pharmacist.16 The Board further considers the commission of those offenses to indicate a person’s inability or tendency to be unable to perform the required duties or to be unfit for licensure or registration,17 and also to indicate a lack of integrity, good moral character, and respect for one’s fellow human beings and the community at large.18 The Board’s rules set forth separate aggravating and mitigating factors to be considered in determining the appropriate sanctions for violations other than criminal offenses.19 UNDISPUTED FACTS
The parties agreed to the following facts:20 On or about February 13, 1990, the Board entered Agreed Board Order #G-89-008 in the matter of Respondent. The Order was based on Respondent’s admission that he ingested Hydrocodone syrup in the pharmacy where he worked without a valid prescription, and probable cause of impairment. The Order imposed a two-year probation with conditions. 20 The language in this section is taken verbatim from Staff’s closing argument and includes only those assertions that Respondent specifically indicated he does not dispute. See parties’ written closing arguments. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 4
On or about May 20, 2005, Respondent was arrested for the offenses of DWI, Possession of Dangerous Drugs, and Possession of Controlled Substances. Respondent stated that he took the drugs he possessed on May 20, 2005, without authorization from the pharmacy where he worked, and intended to send the drugs to Nigeria for his mother’s diabetic condition, including pain. Respondent stated that the drugs included diabetic medications, pain medications, a cholesterol lowering medication, and erectile dysfunction medications. On or about June 17, 2005, Respondent was arrested for the offenses of DWI and Possession of Dangerous Drugs. At the time of the arrest, Respondent was found to be in possession of various dangerous drugs and controlled substances. Subsequently, on May 16, 2006, Respondent admitted to a Board investigator that he possessed prescription medications, including a controlled substance, at the time of his arrest. On or about August 25, 2005, Respondent was convicted of the misdemeanor offense of DWI based upon the arrest on May 20, 2005. Respondent pled guilty to and the trial court found that Respondent was guilty of driving while intoxicated by reason of the introduction of a controlled substance or dangerous drug into his body. On or about January 9, 2006, Respondent received a deferred adjudication based on a plea of guilty to the felony offense of Possession of a Controlled Substance based upon the arrest on May 20, 2005. Respondent pled guilty to possessing between one and four grams of Codeine, a controlled substance. The trial court placed Respondent on probation for a period of four years. As part of his probation, Respondent has been drug screened and has paid court costs. On or about January 11, 2007, Respondent was convicted of the misdemeanor offense of DWI based upon the arrest on June 17, 2005. The trial court found that Respondent drove while intoxicated by introduction of a controlled substance or dangerous drug into his body. Respondent has paid court costs. On or about January 11, 2008, Respondent was arrested for the misdemeanor offense of DWI – 2nd offense. Subsequently, that offense was dismissed and re-filed as the felony offense of DWI – 3rd offense. Respondent stated that this arrest occurred while he was on felony probation for the above-described Possession of Codeine. From on or about February 12, 2008, through on or about June 12, 2008, Respondent attended an Intensive Outpatient Treatment Program at the Center for Therapeutic Change and currently attends group therapy. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 5
Respondent’s current employer, who is the non-pharmacist owner of the pharmacy, stated that Respondent has been employed with the pharmacy for about four years. He states that Respondent is an excellent pharmacist and is well loved by his patients. He also states that there has been no incidence of missing, lost, or stolen prescription medications. On or about July 7, 2008, Respondent was evaluated by a mental health professional who found that he had an alcohol dependence, in remission. She recommended that, with current checks in place and with Respondent’s agreement to sign a contract with the program to aid impaired pharmacists, Respondent was safe to practice without posing a risk to himself or the public. IV. SUMMARY OF EVIDENCE PRESENTED
Staff’s Evidence
Staff’s evidence consists of 16 exhibits, which include Respondent’s license summary, prior agreed board order, court documents regarding Respondent’s criminal history, Respondent’s license renewal application, a substance abuse assessment report, and a letter from the Professional Recovery Network (PRN). Additionally, Staff called Carol Fisher as a witness to Ms. Fisher obtained a Bachelor of Science degree in pharmacy in 1966 and a Masters degree in public administration in 1986. She worked as a pharmacist from 1966 to 1978, when she took a position with the Board. She is currently the Director of Enforcement for the Board. Ms. Fisher stated that she is familiar with the statutes and rules related to the pharmacy profession and the standards of practice for licensed pharmacists. She is also familiar with Respondent’s case based on her review of Staff’s exhibits and the amended complaint. Ms. Fisher indicated that Respondent’s criminal history is directly related to the duties and responsibilities of a licensed pharmacist, according to the Board’s rules. She noted that Respondent was subject to prior disciplinary action by the Board in 1990 for stealing and ingesting a controlled substance from the pharmacy where he worked at that time. She further noted that he has been arrested three times since 2005, and his most recent arrest was in 2008, while he was on felony probation. Ms. Fisher pointed out that, although Respondent has engaged in treatment and SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 6
rehabilitation, he has not complied with the requirements of the PRN program as recommended by the evaluator who completed his substance abuse assessment. Ms. Fisher acknowledged that Respondent was able to secure a new job as a pharmacist after having stolen unauthorized drugs from the Walmart pharmacy where he was previously employed.21 But she opined that Respondent is not being sufficiently monitored or supervised in his current position since he works alone. When asked about what sanctions would be appropriate in this matter, Ms. Fisher stated that the Board’s rules dictate that Respondent’s license be revoked or suspended since he remains on deferred adjudication probation for a felony offense. Additionally, she noted that more severe action may be considered in light of the fact that he has more than one criminal offense on his Ms. Fisher also discussed the aggravating and mitigating factors set forth by the Board’s rules as they relate to Respondent’s non-criminal violations. Ultimately she stated that, because Respondent has completed intensive outpatient treatment and is in compliance with all of the conditions of his probation, she believed that his license should be suspended concurrent with the term of his felony probation. Additionally, Ms. Fisher advised that the suspension should be followed by a five-year period of probation with conditions, including that Respondent be required to submit to random drug screens, engage in ongoing mental health care through PRN, and submit quarterly progress and compliance reports to the Board from his supervising pharmacist and mental health treatment provider. She also advocated the imposition of administrative penalties 21 Respondent had stolen the drugs found in his possession during his May and June 2005 arrests from the Walmart pharmacy where he was employed at that time as a pharmacist. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 7
Respondent’s Evidence
Respondent
Respondent’s ten exhibits include letters from his employer and outpatient treatment counselor, his substance abuse assessment report, receipts and invoices reflecting various payments made by Respondent, urine analysis submission records, Alcoholics Anonymous attendance logs, and a certificate reflecting his completion of the Supportive Outpatient Treatment program. Additionally, Respondent testified on his own behalf and presented the testimony of two witnesses - Respondent testified that he just turned 57 years old. He stated that he was born in Nigeria but has lived in the United States since 1976. He attained U.S. citizenship seven years ago. Respondent is married and resides with his wife, although they are currently estranged. He and his wife have three children, ages 19, 17, and 14. Respondent pays for his immediate family’s household expenses and, from time to time, sends money to his mother and four siblings in Respondent was working as a pharmacist for Walmart when he was arrested in 2005, for Driving While Intoxicated (DWI) and Possession of Controlled Substances or Dangerous Drugs. At the time of that arrest, Respondent had various medications in his car, including hydrocodone, Lipitor, Viagra, and Levitra. He admitted that he had taken the drugs from the Walmart pharmacy without a prescription and without paying for them. He testified that he was going to send the drugs to his mother in Nigeria, who suffers from various ailments, including pain and diabetes. He also testified that he refilled prescriptions for those drugs without authorization. He explained that medications had been prescribed to him following hemorrhoid surgery and that he became addicted to them. He further testified that he knew what he did was wrong and pled guilty to the SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 8
Based on his guilty plea, Respondent received a deferred adjudication for the felony offense of Possession of a Controlled Substance - Codeine. He was placed on probation for four years22 and ordered to pay a $400 fine. Respondent testified that he remains on probation and has complied with all of the court’s requirements of him, including reporting to his probation agent once per week, submitting to weekly urine analyses, and attending Alcoholics Anonymous meetings. Respondent also continues to see his counselor, Stanley Williams, once per week, and has taken his lawyer’s advice to voluntarily install an ignition interlock device on his car. Respondent further acknowledged that he was also arrested on June 17, 2005, and on January 11, 2008, for DWI. He testified that in June 2005, he was pulled over because one of his vehicle lights was off. He denied being intoxicated at that time. He asserted that he received a letter to rescind the DWI charge because his alcohol level was not above the legal limit. Nonetheless, he pled guilty to DWI pursuant to his lawyer’s advice, for reasons that he was unable to recall during the hearing. Respondent gave conflicting testimony about whether he was in unlawful possession of drugs at the time of that arrest. According to Respondent, a felony DWI charge for the January 2008 arrest remains pending. Respondent acknowledged that, at the time of that arrest, he had been consuming alcohol In 2005, Respondent began working for Meridian Pharmacy Group, Inc., where he remains employed as a staff pharmacist. His job responsibilities there include counseling clients, filling prescriptions, taking inventory, and discussing medications with patients and physicians. He testified that his employer is aware of his criminal history, including his pending felony charge and the fact that he previously stole controlled substances from the Walmart pharmacy where he 22 The ALJ notes that his alcohol abuse assessment states that he was placed on probation for five years. Board’s Exhibit 15. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 9
Regarding Staff’s allegation that Respondent submitted a fraudulent renewal application, Respondent acknowledged that he did not include all the requested information about his criminal history on the application submitted. He asserted that he believed the main issue was to explain the felony conviction. He also stated that he “may have been in a hurry” when he filled out the online renewal form. He asserted that he believed, since his criminal history was contained in public records, everything would “fall into place” since he disclosed that fact that he had been convicted of a misdemeanor and a felony and was placed on probation in the preceding 36 months. He claimed to have “overlooked” the inclusion of the specific offense information as required by With respect to the allegations that he failed to comply with the PRN program contract as recommended by his substance abuse assessment, Respondent testified that he wasn’t aware that he was supposed to begin working with that program. He acknowledged that the evaluator discussed PRN with him, but asserted that she also discussed other programs during the assessment. He initially testified that he did not believe he had spoken to PRN staff about signing a contract with that program. But later, he testified that he did speak to PRN about a contract, but could not recall ever having signed a PRN contract. He further testified that he may have sent something to PRN, but claimed that if he did, he did not know what he was signing. Respondent also denied receiving a letter sent to him by PRN, dated December 16, 2008, notifying him that his quarterly report was past due, and that he had not been in contact with the program as required.23 The letter requested that he immediately submit the missing report and contact PRN staff. Respondent explained that, although the letter was sent to his correct address, his wife was intercepting some of his mail at that time and preventing him from receiving it. Respondent asserted that he is now willing to sign a PRN contract and comply with any requirements SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 10
Respondent claimed to have learned his lesson and to have changed since his last incident. He testified that he is now a born-again Christian who has given his life to the Lord. According to Respondent, he regularly attends church and is actively involved in his church’s choir. Respondent begged to be given another chance to retain his license and continue to practice pharmacy. Fidelis Bisong
Mr. Bisong testified that he is not a licensed pharmacist, but is the President of Meridian Pharmacy Group, which owns and operates six different pharmacy locations. Respondent works as the Pharmacist in Charge for one of those locations. Mr. Bison further stated that, as the Pharmacist in Charge, Respondent is responsible for security of the controlled substances at the pharmacy location where he works. He explained that Respondent is the sole pharmacist at this location. But another pharmacist, who works at a different location, helps Respondent to take periodic inventory of the pharmacy’s drugs. Mr. Bisong confirmed that he is aware of Respondent’s current probation and stated that he knows Respondent “had some issues with controlled substances a while back.” Mr. Bisong asserted that his company has a drug free policy for its employees. He stated that he monitors Respondent’s compliance with that policy by examining his behaviors and actions during the one-on-one discussions he has with Respondent when he stops by Respondent’s pharmacy location every two weeks. He claimed that he would be able to tell if Respondent were “on something.” According to Mr. Bisong, Respondent is a well-behaved employee, who is well-loved by his patients, fellow employees, and doctors with whom he works. Mr. Bisong stated that, if the Board were to allow Respondent to retain his license, he would continue to employ Respondent. William Stanley’s
Mr. Stanley testified that he is a licensed chemical dependency counselor and he works for the Center for Therapeutic Change (CTC) in Arlington, Texas. He stated that he is familiar with Respondent, who has been involved with CTC on and off since 2006. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 11
According to Mr. Stanley, Respondent completed CTC’s Intensive Outpatient Program (IOP) on June 11, 2008. That program entails one-on-one meetings with a counselor three times per week for the first month or until the counselor feels that the client’s progress warrants less frequent meetings. Mr. Stanley testified that, following his completion of IOP, Respondent has been complying with Mr. Stanley’s request that he continue to participate in Alcoholics Anonymous (AA) at least twice per week and attend CTC aftercare groups twice per month. He acknowledged, however, that he does not check to verify Respondent’s participation in AA. ANALYSIS AND RECOMMENDATIONS
Alleged Violations24
Felony Deferred Adjudication
Respondent stipulated that, on January 9, 2006, he was placed on deferred adjudication probation for four years based on his guilty plea to felony possession of between one and four grams of Codeine. Respondent remains on probation for that felony offense. Accordingly, this basis for discipline is clearly established by the evidence.25 Intemperate Use of Alcohol or Drugs and Incapacity to Practice26
The evidence is undisputed that Respondent has been arrested thrice and convicted twice for DWI within a three-year period, and that two of those arrests also involved Respondent’s unlawful possession of and intoxication by dangerous drugs or controlled 24 The violations listed and discussed in this section track the “grounds for relief” as pled by Staff. The ALJ notes that, although Staff’s pleadings included factual allegations regarding Respondent’s DWI convictions, only the felony possession of controlled substance offense was included in the Amended Complaint as a criminal offense under “grounds for relief.” Curiously, although the two DWI convictions appear to constitute an independent basis for disciplinary action, Staff cited those convictions merely as a justification to impose more severe discipline for the felony offense and as evidence of Respondent’s having developed an “incapacity to practice” and having engaged in “intemperate use.” 25 Sec. 565(a)(6)(B) of the Act. 26 These allegations are pled separately but discussed together here since they are based on largely the same evidence and are closely related. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 12
substances.27 Additionally, Respondent was diagnosed with alcohol dependence in remission. His evaluator opined that Respondent is safe to practice pharmacy, but only with current checks and a PRN contract in place. The evidence demonstrates that, notwithstanding his evaluator’s recommendation and the pendency of this disciplinary action by the Board, Respondent did not comply with the PRN program when given repeated opportunities to do so. Moreover, during his substance assessment and in his testimony, Respondent admitted that he refilled medications that had been prescribed to him following hemorrhoid surgery. He testified that he did not have a valid refill prescription at the time he obtained those refills. He further noted that he became “hooked” on those medications, including pain, sleep, and muscle relaxant medications.28 The evidence also demonstrates that Respondent entered an agreed order with the Board in 1990 based on allegations that he ingested Hydrocodone syrup without a valid prescription in the pharmacy where he worked.29 There is no evidence that Respondent has received treatment The preponderance of the evidence establishes that Respondent has used alcohol or drugs in an intemperate manner that could endanger a patient’s life30 and has developed an incapacity that prevents him from practicing pharmacy with reasonable skill, competence, and safety to the public.31 Possession of a Controlled Substance or Dangerous Drug
Respondent acknowledged that, when he was arrested for DWI in both May and June of 2005, he was in possession of various dangerous drugs and controlled substances. Although the 27 Respondent’s testimony is conflicting as to whether he was in possession of dangerous drugs or controlled substances at the time of his June 17, 2005 arrest. But in his closing argument, he did not dispute the fact that he was. 28 The record is not entirely clear about when those events occurred, but they appear to correspond to the time of his May 2005 arrest. 29 Although the current disciplinary action is not based on the facts underlying Respondent’s 1990 Board Order, those facts suggest that Respondent has a history of abusing controlled substances and misappropriating drugs from the pharmacies for which he has worked. 30 Sec. 565.001(a)(7) of the Act. 31 Sec. 565.001(a)(4) of the Act. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 13
circumstances surrounding his arrest on June 17, 2005, are not entirely clear from the record,32 the evidence clearly establishes that he unlawfully possessed both dangerous drugs and controlled substances at the time of his May 20, 2005 arrest. In addition to having possessed Codeine at the time of the May arrest, to which he pled guilty, Respondent admitted that he was also in possession of various other dangerous drugs and controlled substances at that time, including medications for diabetes, pain, cholesterol, and erectile dysfunction. Respondent further admitted that he had stolen those drugs from the Walmart pharmacy where he was employed as a pharmacist at that time. He further admitted that he did not have a valid prescription at the time he took the drugs. Not only is Respondent’s unlawful possession of those drugs a basis for disciplinary action by itself, but also it constitutes unprofessional conduct under the Board’s rules and is sanctionable on that basis as well.33 Accordingly, the preponderance of the evidence establishes that disciplinary action is authorized Fraudulent Application
On April 10, 2007, Respondent submitted to the Board an online application for renewal of his pharmacist license. On that application, he failed to disclose relevant information about his criminal history that was clearly requested by the language on the form. Specifically, Respondent answered “no” to the question asking whether he had pled guilty or nolo contendere to any criminal offense in the preceding 36 months. In fact, the evidence establishes that Respondent pled guilty or no contest to two charges of DWI and one charge of felony possession of a controlled substance 32 Respondent gave conflicting testimony regarding whether he possessed drugs or controlled substances during his June 17, 2005 arrest, but in his closing argument, he did not dispute that he was in possession of dangerous drugs and at least one controlled substance at that time. 33 Staff pled “Possession of a Controlled Substance and/or Dangerous Drug” as a ground for discipline, but also cited to the rule which defines that behavior as unprofessional conduct - an independent basis for discipline. 34 Secs. 565.001(a)(2) and (9)(a) of the Act. 22 TAC § 281.7(a)(4). SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 14
Additionally, when asked to list all criminal offenses to which he had pled guilty or nolo contendere, or for which he was arrested, convicted, or placed on deferred adjudication within the preceding 36 months, Respondent included only a statement reading: “DWI. Possession of Controlled Substances which was Dismissed.” He also failed to provide the name and location of the court, offense charged, explanation of the offense, and date of action for either the May 2005 or January 2008 arrests, as required by the application form. At the hearing, Respondent admitted that he should have disclosed the additional arrests and dispositions on his application form but explained that he “may have been in a hurry” when he completed the form, and believed that his disclosure of convictions would be sufficient. The Board’s definition of fraud includes an “intentional perversion of truth for the purpose of inducing another, in reliance upon it, to issue a license.”35 “A false representation of a matter of fact, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives or is intended to deceive another” is also considered to be fraud according to the applicable rules.36 Misrepresentation is defined by the Board’s rules as “a manifestation by words or other conduct which is a false representation of a matter of fact.”37 Although Respondent claimed to have overlooked the requirement to include more information than he did on his application form, the ALJ finds his assertions to be unpersuasive. Respondent did not omit all requested information, but rather included only that information which created the false impression that his criminal history was less significant than it really was and that his most serious charge had been dismissed. Accordingly, the ALJ finds that the preponderance of the evidence establishes that Respondent engaged in misrepresentation or fraud by omitting necessary information and including misleading information in his license renewal application.38 35 22 TAC § 281.7(c)(1). 36 22 TAC § 281.7(c)(1). 37 22 TAC § 281.7(c)(2). 38 Secs. 565.001(a)(2) and (5) of the Act. 22 TAC § 281.7(a)(21). SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 15
This constitutes a basis for discipline on its own and also constitutes sanctionable unprofessional conduct pursuant to the Board’s rules.39 Violation of Impaired Pharmacist Program Contract40
The Pharmacy Act authorizes disciplinary action against a pharmacist who “violates a disciplinary order, including . . . a contract under the program to aid impaired pharmacists under Chapter 564” of the Act.41 The language of the Act does not make clear whether the contract alleged to have been violated must have been imposed under a formal disciplinary order issued by the Board, or whether such a contract itself is considered to constitute a disciplinary order. Additionally, it is not clear what defines a program to aid impaired pharmacists under Chapter 564 of the Act and Respondent testified that he discussed the PRN program with a PRN social worker, but did not recall having signed a program contract. The evidence, however, contains a letter from the PRN social worker with whom Respondent spoke, detailing Respondent’s history with the program.42 According to the letter, PRN received Respondent’s program contract on September 2, 2008. Pursuant to the contract, Respondent agreed to comply with multiple program requirements, including having monthly contact with PRN and submitting quarterly reports. Between August 28, 2008, and February 19, 2009, Respondent had no contact with PRN and failed to submit his quarterly report as he was required to do during the first week of December under the contract. Although the contract itself is not in evidence, the letter by PRN is persuasive evidence of Respondent’s having signed and failed to comply with the program contract. The letter is very 39 Staff pled “Fraudulent Application” as a ground for discipline, but also cited to the rule which defines that behavior as unprofessional conduct - an independent basis for discipline. 40 Respondent’s closing argument states that this violation was not alleged in Staff’s complaint and should be excluded from consideration because of insufficient notice. Page 4 of Staff’s Amended Complaint, however, clearly includes this allegation and facts to support it. 41 TEX. OCC. CODE ANN. § 565.001(a)(17). 42 Board’s Exhibit 16. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 16
detailed and specifically outlines the dates and substance of all contact between Respondent and PRN, including the date his contract was received. Respondent’s testimony, on the other hand, is vague and ambiguous. He states that he did not know he was required to participate in the program even though his substance assessment evaluator specifically stated that Respondent “understands that he will have to enter the PRN monitoring program, in addition to his probation requirements.”43 Respondent further testified that he did not recall signing the contract, but if he did, he was not aware of what he was signing. Respondent’s version of events is simply not credible, particularly when contrasted with PRN’s objective and detailed account of Respondent’s history of interaction and noncompliance with the Accordingly, the ALJ finds that Respondent violated the contract he signed with PRN. But because of the above-noted ambiguities in the applicable statutes, and the absence of any evidence of a disciplinary order requiring Respondent to comply with a PRN contract, or that PRN is a program contemplated by Chapter 564 of the Act, the ALJ finds that Staff has not met its burden to establish that disciplinary action is authorized under these circumstances. Recommended Sanctions
The Board’s rules set forth various factors to be considered in determining the appropriate disciplinary sanctions to be imposed for criminal offenses. However, the rules make clear that the nature and seriousness of certain offenses, including criminal possession of drugs, outweigh the factors that would normally be considered. According to the Board’s rules, commission of those offenses necessitates specific sanctions as prescribed by the Board. Accordingly, pursuant to the Board’s rules, Respondent’s license should be revoked or suspended based on his current probation for felony possession of a controlled substance. For the reasons stated below, the ALJ recommends that Respondent’s pharmacist license be revoked rather than suspended. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 17
The ALJ finds Respondent’s testimony and many aspects of the record to be confusing and contradictory. Nonetheless, the evidence clearly establishes that Respondent has engaged in a longstanding pattern of noncompliant and criminal behavior that is wholly inconsistent with the The evidence establishes that Respondent either has a serious drug abuse problem or he is illegally delivering stolen drugs, or both. Under either scenario, he should not be allowed to practice pharmacy until he has been able to demonstrate appropriate rehabilitative progress, insight into his behaviors, and a significant period of a drug, alcohol, and crime-free lifestyle. The undisputed evidence establishes that Respondent was convicted of two separate charges of DWI by reason of the introduction of a controlled substance or dangerous drug into his body.44 He also admitted that in 2005, he was addicted to pain medications prescribed to him following surgery for hemorrhoids. He further admitted that he ingested Hydrocodone syrup without a prescription at the pharmacy where he worked in 1989, for which he was sanctioned by the Board. Although Respondent appears to have received treatment for alcohol dependence, there is no evidence that Respondent has ever been diagnosed with or treated for drug dependence, despite compelling evidence that he may have a longstanding addiction to drugs.45 Respondent also testified that, after already having been sanctioned by the Board for stealing controlled substances from the pharmacy where he worked in 1989, he again stole drugs without a prescription from the pharmacy where he worked in 2005. He claimed he did so in order to send the medications to his mother in Nigeria, who suffers from various ailments including diabetes and leg pain. Yet among the drugs he admitted to having stolen at that time was medication for erectile dysfunction. This suggests that Respondent’s story is not truthful. 44 Respondent denied this in his testimony but, in his closing argument, agreed to these facts, which are corroborated by the court documents in evidence. 45 The record does not establish the nature of Respondent’s treatment at the CTC programs with which he has been involved. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 18
And even if Respondent’s claim is truthful that he intended to send the stolen medications to his mother, his license should nonetheless be revoked. In light of his duties as a pharmacist, Respondent’s admitted theft of and intent to deliver those drugs are of equal or greater concern than the fact that he unlawfully possessed them.46 It is difficult to make sense of Respondent’s conduct in light of the conflicting evidence about his motives and treatment needs. What is clear is that Respondent has demonstrated a willingness to repeatedly steal dangerous drugs and controlled substances from the pharmacies that employ him and he has repeatedly engaged in behavior which is not only criminal but also constitutes unprofessional conduct pursuant to the Board’s rules. Moreover, Respondent has not demonstrated any sustained ability to learn from his mistakes despite being subject to sanctions by both the Board and the criminal justice system. It is also clear that Respondent’s conduct sharply and irreconcilably conflicts with the duties and responsibilities of a licensed pharmacist, whose job is to responsibly and lawfully safeguard and dispense drugs. Accordingly, based on the entirety of the record and for the reasons stated above, the ALJ recommends that Respondent’s pharmacist license be revoked. Although the Board is authorized to impose administrative penalties in addition to other disciplinary action, for both criminal and non-criminal offenses,47 the ALJ believes that the recommended revocation of Respondent’s pharmacist license will be adequate to accomplish the Pharmacy Act’s stated purpose of promoting, preserving, and protecting the public health, safety, and welfare.48 Accordingly, the ALJ does not believe that additional sanctions are warranted for either the felony offense or other established violations. 46 Respondent pled to and received deferred adjudication for simple possession of a single controlled substance rather than for more serious offenses involving theft of or intent to deliver the controlled substance and other dangerous drugs found in his car at the time of his arrest. He admitted, however, that he not only stole those drugs, but also that his intent was to deliver them to his mother in Nigeria. It should be noted that the Board’s rules require license revocation in cases concerning pharmacists who remain on probation for felony offenses involving theft of or possession with intent to deliver drugs. 22 TAC § 281.64(c)(2)(A)(i)(I). 47 22 TAC § 281.65. 48 TEX. OCC. CODE ANN. § 551.002 SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 19
VI. FINDINGS OF FACT
Oluwafemi Awe (Respondent) holds Pharmacist License No. 27853 issued by the Texas State Board of Pharmacy (Board) on August 1, 1984. On March 5, 2009, Board Staff (Staff) mailed its amended complaint and notice of hearing to Respondent by United States Postal Service certified mail, return receipt requested. The notice of hearing and complaint contained a statement of the time, place, and nature of the hearing; a statement of the legal authority under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted. The hearing was convened before Administrative Law Judge Ami L. Larson on April 20, 2009. Respondent was represented at the hearing by counsel Susan Henricks and Board Staff was represented by attorney Julie Hildebrand. The record closed on May 18, 2009, following the submission of writing closing arguments by the parties. On February 13, 1990, the Board entered an agreed order with Respondent based on Respondent’s taking and ingesting Hydrocodone syrup without a prescription from the pharmacy where he worked. On May 20, 2005, Respondent was arrested for Driving While Intoxicated (DWI), Possession of Dangerous Drugs, and Possession of Controlled Substances. In 2005, Respondent took various drugs from the Walmart pharmacy where he was employed without paying for them or having a valid prescription, including medications for diabetes, pain, cholesterol, and erectile dysfunction. Respondent intended to unlawfully use and/or deliver the dangerous drugs and controlled substances he stole from the Walmart pharmacy. Respondent was arrested on June 17, 2005, for DWI and Possession of Dangerous Drugs. On August 25, 2005, Respondent pled guilty to and was convicted of misdemeanor DWI by reason of the introduction of a controlled substance or dangerous drug into his body, based on his May 20, 2005 arrest. On January 9, 2006, Respondent pled guilty to felony Possession of a Controlled Substance – between one and four grams of Codeine, based on his May 20, 2005 arrest. For his plea to the felony possession of a controlled substance, Respondent was placed on deferred adjudication probation for a period of four years with various conditions. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 20
On January 11, 2007, Respondent was convicted of misdemeanor DWI by introduction of a controlled substance or dangerous drug into his body, based on his June 17, 2005 arrest. On January 11, 2008, while on felony deferred adjudication probation, Respondent was arrested for DWI and charged with felony DWI – third offense. That charge remained pending at the time of the hearing. Respondent admitted that he was intoxicated at the time of his January 11, 2008 arrest. On June 11, 2008, Respondent completed the Intensive Outpatient Program offered by the Center for Therapeutic Change. On July 7, 2008, Respondent underwent a substance assessment, which diagnosed him with alcohol dependence in remission and concluded that he was safe to practice pharmacy with his current probation conditions if a Professional Recovery Network (PRN) monitoring contract was in place. Respondent entered into a PRN contract on September 2, 2008, but failed to have any contact with the program or comply with the contract requirements as of the date of the hearing. There is no evidence that Respondent has ever been diagnosed with or treated for chemical dependency other than alcohol. Respondent has been employed by Meridian Pharmacy since 2005, and currently works as the Pharmacist in Charge and sole pharmacist at one of Meridian’s six pharmacy locations. Respondent’s current job responsibilities include counseling clients, filling prescriptions, taking inventory, and discussing medications with patients and physicians. On April 10, 2007, Respondent submitted an online application to the Board for renewal of his pharmacist license. On his renewal application, Respondent failed to disclose relevant information about his criminal history that was clearly requested by the language on the form. On his renewal application, Respondent included only a portion of the required information, which created the false impression that his criminal history was less significant than it was and that his most serious criminal charge had been dismissed. The public’s health and safety will be at risk if Respondent is allowed to continue to work as a pharmacist at this time. SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 21
Respondent has demonstrated a willingness to repeatedly engage in criminal behavior by stealing dangerous drugs and controlled substances without valid prescriptions from the pharmacies that employ him and by driving while intoxicated. Respondent has not demonstrated any sustained ability to learn from his mistakes or control his behavior despite being subject to sanctions by both the Board and the criminal justice Respondent’s conduct sharply and irreconcilably conflicts with the duties and responsibilities of a licensed pharmacist, which include lawfully safeguarding and dispensing dangerous drugs and controlled substances. VII. CONCLUSIONS OF LAW
The Texas State Board of Pharmacy (Board) has jurisdiction over this matter pursuant to the Texas Pharmacy Act (Act), TEX. OCC. CODE ANN. ch. 551 et seq. The State Office of Administrative Hearings has jurisdiction over all matters related to conducting a contested case in this matter, including the preparation of a Proposal for Decision with Findings of Fact and Conclusions of Law, under TEX. GOV’T CODE ANN. ch. 2003. Timely and proper notice of the hearing was sent to Respondent as required by TEX. GOV’T CODE ANN. ch. 2001. Staff had the burden to prove that grounds to discipline Respondent exist. 1 TEX. ADMIN CODE (TAC) § 155.427. Under the Act, the Board may take disciplinary action if a licensee has been placed on deferred adjudication community supervision for a felony. TEX. OCC. CODE ANN.§ 565.001(a)(6)(B). Required discipline for a pharmacist who is currently subject to deferred adjudication probation for felony possession of a controlled substance is either license suspension or revocation. 22 TAC § 281.64(c)(2)(a)(ii)(I). Driving while intoxicated and possession of controlled substances are directly related to the duties and responsibilities of a licensed pharmacist. 22 TEX. ADMIN. CODE § 281.63(i)(4)(E). The Board may take disciplinary action against a pharmacist who has developed an incapacity that prevents him from practicing pharmacy with reasonable skill, competence, and safety to the public. TEX. OCC. CODE ANN.§ 565.001(a)(4). SOAH Docket No. 515-09-2498 PROPOSAL FOR DECISION PAGE 22
The Board may take disciplinary action against a pharmacist who uses alcohol or drugs in an intemperate manner that, in the Board’s opinion, could endanger a patient’s life. TEX. OCC. CODE ANN.§ 565.001(a)(7). The Board may take disciplinary action against a pharmacist who possesses controlled substances or dangerous drugs in violation of Chapters 481 or 483 of the Texas Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970, or rules relating to those laws. TEX. OCC. CODE ANN.§ 565.001(a)(9)(A). The Board is authorized to take disciplinary action against a pharmacist who engages in unprofessional conduct as defined by Board rule. TEX. OCC. CODE ANN.§ 565.001(a)(2), 22 TAC § 281.7. The Board is authorized to take disciplinary action against a pharmacist who engages in fraud, deceit, or misrepresentation, as defined by Board rule, in seeking a license to practice pharmacy. TEX. OCC. CODE ANN.§ 565.001(a)(5), 22 TAC § 281.7(c). Based on the above Findings of Fact and Conclusions of Law, the Board should revoke Pharmacist License No. 27853 held by Respondent. Based on the above Findings of Fact and Conclusions of Law, revocation of Respondent’s
pharmacy license will be adequate, without imposition of additional administrative
penalties, to promote, preserve, and protect the public health, safety, and welfare.

SIGNED July 16, 2009.
_______________________________________________
AMI L. LARSON
ADMINISTRATIVE LAW JUDGE
STATE OFFICE OF ADMINISTRATIVE HEARINGS

Source: http://www.soah.state.tx.us/pfdsearch/pfds/515/09/515-09-2498-pfd1.pdf