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Court cannot issue supplemental order without allowing board to participate

A state court of appeals in Alabama overturned a supplemental district court order that had issued a stay on the request of a disciplined licensee, without allowing the board to challenge that order.

(Ex parte Alabama State Board of Pharmacy)

The June 9 decision by the Court of Civil Appeals of Alabama held that a court hearing an appeal by a disciplined licensee cannot issue a stay order without giving the licensing board a chance to present evidence challenging that order.

In October 2016, the Alabama Board of Pharmacy suspended pharmacist Demetrius Yvonne Parks’ license for five years, placed the licenses of two of her pharmacies on probation for that same amount of time, and fined her $27,000, based on a finding that she had engaged in 46 counts of improper practice.

Parks appealed, requesting that the circuit court hearing the case issue a stay of the discipline, pending the outcome of the appeal, and complaining that medical suppliers were refusing to sell to her pharmacies because of the stigma of her suspended status. The court issued the stay, with qualification that Parks was not to dispense controlled substances in the interim.

Parks then filed for a second stay, this time seeking the removal of the record of her discipline from the federally-run National Practitioners Data Bank, which compiles information on licensee discipline from around the U.S. Although a continuance of the case had otherwise halted proceedings, the circuit court granted the request in a supplemental order to the first stay, ordering the language regarding Parks’ discipline in the Databank to be removed.

Additionally, the court removed the language from its original stay order that prohibited Parks from dispensing controlled substances. The board was not provided an opportunity to contest this supplemental order, and Parks had offered no additional evidence regarding her entitlement to the stay.

In response to that second order, the board filed a petition with Alabama’s Court of Civil Appeals, seeking to force the circuit court to rescind it. The board claimed that the lower court had issued the supplemental order without giving the board an opportunity to be heard and had ordered a violation of federal law directing the board to report its disciplinary decisions to the Databank.

The appellate court agreed with the board. “When the circuit court made those substantive changes to the stay order, it did so without allowing the board to present evidence to support its position,” wrote Judge William Thompson. “Moreover,” he added, “at the time the circuit court entered the supplemental order, Parks had presented no evidence to support her claim that she was entitled to additional protections other than those put in place by the stay order.”

Alabama statute “provides that the board have an opportunity to present evidence to challenge the presumption that a stay, or the conditions placed on a stay, is proper,” wrote Judge Thompson. In entering a supplemental order allowing Parks to dispense controlled substances and ordering the board to remove language from the Databank without allowing the board to presentĀ evidence, the circuit court failed in its obligation to allow the board to present its case against Parks’ requests.

The appellate court granted the board’s petition, ordering the lower court to vacate its supplemental order and to hold a hearing on Parks’ request.