Filed 9/23/19; Certified for publication 10/15/19 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SOLOMON ODUYALE, D073755
Plaintiff and Appellant,
v. (Super. Ct. No. ECU09627)
CALIFORNIA STATE BOARD OF PHARMACY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, L. Brooks
Anderholt, Judge. Reversed.
Xavier Becerra, Attorney General, Linda K. Schneider, Assistant Attorney
General, Antoinette Cincotta and Stephen A. Aronis, Deputy Attorneys General, for
Mazur & Mazur and Janice R. Mazur; Ronald S. Marks, for Plaintiff and
Appellant. I.
INTRODUCTION
In July 2013, the Executive Officer of the California State Board of Pharmacy (the
Board) filed an accusation against pharmacist Solomon Oduyale, citing 20 charges for
discipline and seeking revocation of his pharmacist license. By August 2016, Oduyale
had successfully challenged all but nine of the charges for discipline against him. The
Board then ordered Oduyale's pharmacist license revoked.
Oduyale challenged the Board's decision, filing a petition for writ of mandate,
arguing the Board lacked justification for revoking his license, and suggesting it could
have imposed stringent conditions on probation instead. The superior court did not draw
a conclusion about the propriety of the revocation decision, but it concluded that because
the Board's decision did not include an explicit discussion of each possible level of
discipline with an explanation for why each would have been inappropriate in Oduyale's
case, the Board had committed an abuse of discretion. The superior court entered
judgment, ordering the Board to reconsider the disciplinary action, discussing "each and
every form of discipline, short of revocation, . . . explain[ing] why those lesser forms of
discipline are insufficient to protect the public."
The Board appeals to this court, challenging the trial court's requirement that it
discuss every possible form of discipline short of revocation in its written decision and
also asks us to consider whether it acted within its discretion to revoke Oduyale's
pharmacist license based on the nine causes for discipline. Oduyale has cross-appealed,
contending the trial court erred by remanding the matter for further consideration by the
2 Board and arguing the court should have directed the Board to impose a penalty short of
revocation.
As we explain, we agree with the Board; the trial court erred by directing it to
provide in writing its reasoning for not imposing each penalty short of revocation.
Further, we conclude the Board acted within its discretion to revoke Oduyale's
pharmacist license. Accordingly, we reverse the trial court's judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Oduyale's Licensing Probation History
Oduyale received his pharmacy degree in North Dakota in 1979 and his California
pharmacist license August 8, 1989. On April 29, 2005, the Executive Officer of the
Board filed an accusation against Oduyale alleging sixteen causes for discipline and
seeking revocation or suspension of his pharmacist license. Nine of those causes for
discipline related to an incident that occurred in December 2002, and the other seven
related to a 2004 pharmacy inspection.
On December 31, 2002, Oduyale was driving along a freeway when he was
stopped by police. The police officer observed unlabeled prescription bottles, which
Oduyale said contained Xanax, Vicodin, Viagra, Claritin, and an antibiotic. The officer
also found loose in Oduyale's pockets prescription pills, later identified as Viagra, Floxin,
and naproxen, and the officer found medications in the rear floor boards. In the trunk,
police found a prescription bottle containing the antibiotic Levaquin labeled for a person
in Coachella, CA. The officer arrested Oduyale for possession of controlled substances
3 and possession of a dangerous weapon, a wooden billyclub with a silver metal end, which
was on the floor of the vehicle.
Oduyale had explanations for most of the medications, and the Board concluded
there was insufficient evidence to establish Oduyale illegally possessed, furnished, or
transported the Vicodin or the Xanax or acted fraudulently to obtain the medications for
customers.
In March 2004, the Board inspected the pharmacy where Oduyale was the
pharmacist-in-charge from January 2003 to March 2005. Oduyale was cooperative and
made efforts to comply with multiple requests for records, but he was not able to produce
all the requested items, and some of the items contained errors. For the period of January
through March 2004, the records regarding acquisition and disposition of drugs contained
cross-outs, corrections, and omissions, as well as records and inventory that indicated the
pharmacy's perpetual log was not accurate. Oduyale also did not have a quality assurance
program in effect for the pharmacy, there was no program to document medication errors
attributable to the pharmacy and its personnel, and it did not have a Drug Enforcement
Agency (DEA) Inventory, as required. Further, the pharmacy allowed drug deliveries to
be received by non-pharmacists the entire time he was in charge. The Board concluded
Oduyale failed to keep accurate and complete records of the acquisition and disposition
of some of the controlled substances at the pharmacy.
Following charges for discipline and a hearing, the Administrative Law Judge
(2006 ALJ) viewed Oduyale as "a caring individual who tries to reach out and help those
in need," who "gives all his customers a personal touch," and whose "reputation in the
4 medical community [is] as a good pharmacist who is smart, kind-hearted and helpful to
everyone." The 2006 ALJ concluded Oduyale "played fast and loose with some of the
rules when it comes to helping his poor or elderly customers."
The 2006 ALJ found cause existed to discipline Oduyale for engaging in
unprofessional conduct by possessing controlled substances in containers without correct
labeling, in violation of state laws and regulations. (Bus. & Prof. Code, §§ 4301,
subds. (o), (j) & 4060; Health & Saf. Code, §§ 11350, subd. (a) & 11377, subd. (a).) The
2006 ALJ also found cause to discipline Oduyale because the records required were not
readily available, and the record keeping system was poor and records were incomplete.
The 2006 ALJ explained that Oduyale needed to be retrained so he understood he
could not bend the rules to help someone, and it would not be against the public interest
to allow him to continue to work as a pharmacist subject to probation. Accordingly, the
2006 ALJ recommended revocation of Oduyale's license, with a stay of the revocation
coupled with probation for three years. In May 2006, the Board adopted the proposed
decision, with the additional condition that he was not to supervise any ancillary
personnel. Oduyale successfully completed probation December 20, 2009.
B. Cal-Mex Pharmacy Licensing
In late June 2010, Calmex Special Services, Inc., dba Cal-Mex Pharmacy (Cal-
Mex) applied for a pharmacy permit. Oduyale, who was the company's president,
indicated he would be the pharmacist-in-charge. In late November 2010, the Board
denied the application based on Oduyale's previous disciplinary actions. Cal-Mex
5 challenged the decision, and the parties entered a Stipulated Settlement and Disciplinary
Order (Stipulated Settlement) in May 2011.
Under the terms of the Stipulated Settlement, the Board agreed to issue a license to
Cal-Mex and immediately revoke it, then stay the revocation and place the pharmacy on
probation for 35 months. The probation required the pharmacy's officers to follow all
state and federal laws and regulations. Among other things, it also required all owners
and holders of 10 percent or more of the interest in the pharmacy to read and be familiar
with state and federal laws and regulations governing the practice of pharmacy. The
Stipulated Settlement permitted Oduyale to be the pharmacist-in-charge.
C. Pharmacy Board Inspection
On January 28, 2013, Board inspectors performed a routine, unannounced
inspection of Cal-Mex pharmacy, at which Oduyale was present. The inspectors
reviewed hundreds of prescriptions, wholesale invoices, the quality assurance binder, and
additional documentation provided by the pharmacy, and the inspectors interviewed
pharmacy personnel, including Oduyale. The inspection report noted that refill requests
were presented on preprinted forms, faxed prescriptions were accepted without a
handwritten signature, and controlled medications were dispersed from preprinted
prescription blanks, all prohibited practices. Not all the inspectors' questions were
answered, and they were not able to reconcile some information with prior records, so
6 there was a second inspection in March 2013. The second inspection did not resolve the
questions and concerns.1
D. Disciplinary Charges
In early July 2013, the Executive Officer of the Board filed an accusation against
Oduyale's license and a petition to revoke Cal-Mex's probation. The accusation was
amended in July 2014 and included twenty causes for discipline.2 Oduyale filed a notice
of defense with the Board of Pharmacy and requested an administrative hearing.
Hearings were held over nine days before an administrative law judge (the 2015 ALJ) in
December 2014 and March 2015. The second cause for discipline was dismissed at the
Board's request, and the 2015 ALJ dismissed the eighth and eleventh causes for
discipline. That May, the 2015 ALJ issued a proposed decision revoking Oduyale's
pharmacist license. The Board adopted the 2015 ALJ's proposed decision based on the
remaining 17 causes for discipline in late June 2015, with an effective date of July 29,
2015.
Both parties requested reconsideration; Oduyale sought reversal of the revocation
of his license, and the Executive Officer asked the Board to revoke the Cal-Mex permit.
1 In April 2014, the DEA performed a complete inspection of the pharmacy, after which it identified two record-keeping violations. The DEA subsequently renewed Cal- Mex's unrestricted DEA registration, and these violations were not used as a basis for the Board's disciplinary charges against Oduyale. Accordingly, we do not detail them here.
2 Some of the charges for discipline were against Oduyale and others were against Oduyale and Cal-Mex pharmacy. Because this appeal regards only Oduyale, we do not address the charges against the pharmacy. 7 The Board denied Oduyale's request for reconsideration and granted the Executive
Officer's request for reconsideration.
E. First Petition for Peremptory Writ of Mandate
On July 20, 2015, Oduyale filed a petition for peremptory writ of mandate to set
aside the revocation of his license. He also requested a stay of the decision, which the
court denied. In its August 2016 judgment, the superior court set aside the third, fourth,
tenth, twelfth, fifteenth, sixteenth, nineteenth, and twentieth causes for discipline, in most
instances because the court determined they were not supported by the weight of the
evidence. The court remanded the matter to the Board to reconsider the penalty in light
of the remaining nine causes for discipline. Neither party appealed this judgment.
F. Causes for Discipline
Following the judgment by the Superior Court in Imperial County, there were nine
sustained causes for discipline:
1. First Cause: Failure to Maintain Acquisition and Disposition Records
The first cause for discipline was brought for failure to maintain acquisition and
disposition records and failure to keep inventory for hydrocodone/acetaminophen
10mg/325mg (Norco) from May 1, 2012 through January 28, 2013. The court
acknowledged there was no evidence of theft or diversion of pills; however, the poor
record-keeping, a requirement in place to avoid theft or diversion, was cause for concern.
2. Fifth Cause: Deviation of Prescription Instructions
The fifth cause for discipline was brought for deviation from prescription
instructions without documentation or consent of the prescriber of four prescriptions.
8 The court commented that the deviations were significant enough to cause concern about
patient welfare even when considered against the thousands of prescriptions dispensed
during the audit period. These deviations included an order that the prescriber issued to
take Lorazepam3 every 8-12 hours, which the pharmacy changed to take it every 8-12
hours as needed for pain. The pharmacist also changed the order for
hydrocodone/APAP4 to be taken "every 8 hours as needed" to a standing order directing
the patient to take it "every 8 hours." An Ambien5 prescription was changed from an
instruction to take it "every night at bedtime for 7 weeks" to take it "every night at bed as
needed for sleep." Finally, the last deviating prescription for Testim was changed from
"apply 1/2 tube daily to shoulders" to "apply daily as directed."
3. Sixth and Seventh Causes: Lacking Controlled Substance Forms
The sixth and seventh causes for discipline related to the dispensing of 24
prescriptions for controlled substances that were not written on controlled substance
forms. The controlled substance forms are required to ensure a prescription is not
3 Lorazepam is a Schedule IV controlled substance (Health & Saf. Code, § 11057, subd. (d)) and a dangerous drug (Bus. & Prof. Code, § 4022).
4 Hydrocodone/acetaminophen is a narcotic Schedule III controlled substance (Former Health & Saf. Code, § 11056, subd. (e)(4)) and a dangerous drug (Bus. & Prof. Code, § 4022). It is known by brand names Vicodin, Norco, Zydone, Maxidone, Lortab, Lorcet, Hydrocet, Co-Gesic, and Anexsia, and it is used as a narcotic analgesic for pain relief.
5 Ambien is a brand name for Zolpidem, which is a Schedule IV controlled substance (Health & Saf. Code, § 11507, subd. (d)) and a dangerous drug (Bus. & Prof. Code, § 4022) used for short-term treatment of insomnia.
9 counterfeit. Additionally, although Oduyale told the inspector he verified the
prescriptions that were not written on the proper controlled substance form, he did not
provide copies of those verifications during the first inspection on January 28, 2013.
When he later sent them around February 1, the inspector discovered 24 prescriptions
lacked verifications, and despite her subsequent requests for documentation of the
verifications, she did not receive them. Although Oduyale provided documents
purporting to be the verifications at the administrative hearing, they were printed copies
of whatever information had been in the computer system, not true verifications.
4. Ninth Cause: Missing Documentation of Prescriber Names
The ninth cause for discipline was for failing to document or obtain the name of
the agent of the prescriber who transmitted oral prescriptions for 39 controlled substance
prescriptions. The court concluded Oduyale's methods for verifying prescriptions were
haphazard at best, and the individuals his staff claimed verified the prescriptions did not
work for the prescribing doctor. Although no evidence indicated the identified doctor
denied prescribing the medications, the court concluded the records in question were
insufficient to ensure the pharmacy was avoiding potential abuse.
5. Thirteenth Cause: Falsely Edited Verifications of Prescriptions
The thirteenth cause for discipline was for knowingly making a document that
falsely represents the existence of facts, based on written verifications Oduyale supplied
the Board. Several original prescriptions were faxed or written, and they required
verifications. Oduyale provided verifications with edited "backers," which are notes
regarding dispensing the medicine written on the back of the original prescriptions. The
10 verifications had discrepancies when compared to the original documentation. The 2015
ALJ found Oduyale's explanations lacked credibility and determined the verifications
were created at a later time.
6. Fourteenth Cause: Failure to Exercise and Implement Best Professional Judgment
The fourteenth cause for discipline was brought for failure to exercise and
implement the best professional judgment. The court concluded the weight of the
evidence against Oduyale for the fifth cause for discipline, deviating the instructions and
requirements on the medication, supported this charge.
7. Seventeenth Cause: Gross Negligence
In finding the weight of the evidence supported the seventeenth cause for
discipline, the court concluded Oduyale was grossly negligent for relabeling five bags of
intravenous oxytocin6 at Pioneer Memorial Hospital.7 On February 26, 2014, while
working as a pharmacist at the hospital, Oduyale prepared labels for sterile compounded
bags of oxytocin, which were expired. The drug manufacturer had never provided data or
authorized the extension of the drug beyond its assigned 28 days. Oduyale testified he
had looked for compounded oxytocin bags, but they were all expired by one or two days,
and he could not get oxytocin from another hospital or retail pharmacy because they were
6 Oxytocin is a dangerous drug. (Bus. & Prof. Code, § 4022.) It can be used to induce labor or increase its speed.
7 Oduyale notes that there is some ambiguity regarding the court's finding with respect to the seventeenth cause for discipline because the original cause for discipline charged Oduyale with gross negligence for relabeling, verifying, and dispensing oxytocin while the court's finding only explicitly referenced relabeling. 11 closed. He shook the compound bags and inspected them against the light to see if he
could observe any particulates in the fluid, and he squeezed the bags to determine if there
was leakage. Because the bags looked stable, he decided to extend the beyond-use date
on four or five bags. He did not inform anyone he had done this.
John Paul Teague, the pharmacist-in-charge at the hospital, terminated Oduyale's
employment as a result of these actions. He explained if a patient in labor were not
progressing on inefficient medication, a doctor could order a higher dosage, which might
be excessive when full-strength medication was subsequently administered; thus,
extending the expiration dates created a potential for harm.
The court also considered literature, which indicates the compounded oxytocin
could have beyond-use dates of 31 days if the bags were refrigerated and sterility tests
were conducted; however, it noted there was no evidence either of those things occurred.
Additionally, Elvira Martinez Gonzalez, a licensed pharmacy technician employed by the
hospital for 13 years, testified the pharmacy had concentrated vials of oxytocin for
compounding if the bags they had were all expired, and there were multiple unexpired
vials of oxytocin available; thus, there was no need or emergency to justify extending the
expiration date. She also testified it was against hospital policy to use expired drugs.
Oduyale offered testimony from expert Anna K. Brodsky, who initially testified
that "[i]f the literature supported a date extension, there were no precipitates visible, the
bag was stored under good conditions and the hospital policy allowed the pharmacist to
change the date, then the pharmacist could properly exercise his or her professional
judgment to extend the date." Under cross-examination, she admitted she was not aware
12 of any literature supporting a determination that compounded oxytocin bags remained
sterile after 28 days, and she would send the product to a lab to determine if they
remained stable and sterile. She also testified a pharmacist could not see
microprecipitates by looking at a compounded drug product.
8. Eighteenth Cause: False Report of Expiration Date of Oxytocin
The eighteenth charge for discipline, for knowingly making a document that
falsely represents the existence of facts, was based on Oduyale's conduct at Pioneer
Memorial Hospital. The court concluded the weight of the evidence supported this
violation because Oduyale altered the expiration dates.
G. The Board's Revocation Decision
After the Board received the court's decision, it invited written argument from
both parties, which it received. The Board's subsequent decision explained it had
evaluated the criteria provided by the Board of Pharmacy Disciplinary Guidelines and
regulations. There was no evidence of harm occurring to Cal-Mex customers or Pioneer
Hospital patients; however, the Board noted actual harm is not required to establish a
nexus between misconduct and fitness to practice. The Board noted its primary goal is to
protect the public before harm occurs, and it explained: "Even with the causes of action
dismissed pursuant to the Imperial Court's decision, the multiple instances of failure to
comply with laws and regulations applicable to pharmacies and pharmacists are serious
and present[ ] a significant potential of harm to the public."
The Board wrote: "The seriousness of the violations is underscored by the
undeniable evidence that, for all his years of experience, Respondent Oduyale does not
13 appear to understand the basic principles of operating a pharmacy and is incapable of
running an orderly and compliant pharmacy." It commented that the 2006 conclusion
that he " 'played fast and loose' " with some of the rules was equally applicable to the
present charges, and his relabeling of oxytocin shows a "fundamental lack of
understanding of compounding, expiration dates, the requirement to document and notify
others when medications are altered, and hospital policies." It found Oduyale's "cavalier
attitude and lack of understanding of the serious nature of his misconduct in the context
of the practice of pharmacy" to be alarming.
The Board expressed concern about "[r]ecord keeping deficiencies and the
pervasive failure to attend to detail" dating back to 2005, and it commented that Oduyale
did not seem "fundamentally capable or willing" to get the issues under control. It stated
there was no good explanation for how documents obtained at the initial inspection were
reproduced later as different documents.
Separating Oduyale's personal qualities as a kind and generous man who cares
about his customers and community from his competence as a pharmacist, the Board
concluded Oduyale was not competent based on his lack of understanding of the rules,
regulations, and policies and his inability to conform to them. It explained Oduyale's
"failure to maintain complete control and an inability to demonstrate complete control
through clear and organized files, invites abuse and presents a significant potential of
harm to the public[,]" even without evidence of diversion or theft of drugs. It found:
"Even after excluding the causes of action pursuant to the Imperial Court's decision, the
remaining causes and the prior history clearly reflect that public protection can only be
14 accomplished if Respondent Oduyale can no longer practice as a pharmacist." In January
2017, the Board ordered Oduyale's license revoked.
H. Second Petition for Writ of Mandate
Oduyale filed a petition for writ of mandate requesting the court to instruct the
Board to set aside the revocation and to impose a lesser penalty. He argued there was no
justification for revoking his license because the Board could have imposed stringent
conditions on probation instead. He also contended that because there was no harm to the
public, and no Category IV offenses, no reasonable person would conclude placing
conditions of probation on him would be inadequate.
I. Second Writ Petition Hearing
At the hearing on the petition for writ of mandate, the court considered four issues:
(1) whether the Board's written decision after remand violated due process because
Oduyale contended it was written by the Attorney General rather than the Board;
(2) whether the requests for judicial notice had been granted and if not, the grounds for
denial; (3) whether the penalty imposed by the Board was a manifest abuse of discretion;
and (4) whether there was a factual basis for revocation.8
The court explained it was looking at the matter de novo, reviewing the remaining
violations, the prior history, what led to the charges, and whether there was a manifest
8 The first two issues were not raised on appeal. The court concluded there was no evidence the decision was drafted by the Attorney General. The court denied three of Oduyale's requests for judicial notice and granted the rest. It denied the Board's requests for judicial notice because they were all legal citations, of which the court concluded it did not need to take judicial notice to consider. 15 abuse of discretion in how the Board handled the revocation. It also asked where in the
administrative record there was evidence that the Board had considered levels of
discipline less than revocation and explained why those would not be appropriate.
The court commented: "[I]f the board did not discuss something less than
revocation, that is a potential manifest abuse of discretion." Although the court
recognized there was a paragraph stating the Board had considered its discipline options,
the court also noted the Board did not "address the full range of what [it could] do and
why won't it work," and the court explained it was looking for something in the decision
that offered reasoning for why the Board had not imposed discipline less than revocation.
The court entered judgment January 31, 2018, remanding the matter to the Board
and directing it to address in its decision each and every form of discipline, short of
revocation, and explain why those lesser forms of discipline were insufficient to protect
the public. The Board timely filed a notice of appeal, and Oduyale timely filed a notice
of cross-appeal.
III.
DISCUSSION
A. The Board Provided an Adequate Record
First, the trial court committed error when it concluded the Board manifestly
abused discretion by failing to discuss all lesser forms of discipline before reaching its
decision to revoke Oduyale's license. We disagree with its finding that the Board failed
to provide an adequate record to determine whether it fully reconsidered the penalty, as it
previously had been instructed to do.
16 Code of Civil Procedure, section 1094.5, subdivision (b) provides that when there
is a petition for writ of mandamus, the court should inquire as to whether there was any
prejudicial abuse of discretion, including instances in which the administrative order or
decision " 'is not supported by the findings, or the findings are not supported by the
evidence.' " (Topanga Association for a Scenic Community v. County of Los Angeles
(1974) 11 Cal.3d 506, 515 (Topanga).) In Topanga, the Supreme Court explained an
administrative body must render findings sufficient to enable the parties to determine
whether and on what basis they should seek review and, in the event of review, apprise
the reviewing court of the basis for the board's action. (Id. at pp. 513-514.) Thus, the
agency rendering a decision must "set forth findings to bridge the analytic gap between
the raw evidence and ultimate decision or order." (Id. at p. 515.)
B. The Board Was Not Obligated to Detail Every Possible Disciplinary Action
While Topanga requires findings to bridge the gap between the evidence and an
agency's decision (Topanga, supra, 11 Cal.3d at p. 515), it does not require the Board to
outline all the reasons it opted not to impose a lesser form of discipline. It is only
required to justify the penalty imposed, including "a statement of the factual and legal
basis for the decision." (Gov. Code, §§ 11425.10, subd. (a)(6) & 11425.50, subd. (a).)
Here, our independent review confirms the Board has done this.
In its statement of decision, the trial court looked for abuse of discretion, which it
described as occurring if the findings were not supported by the weight of the evidence,
citing Code of Civil Procedure section 1094.5, subdivision (c) and Bixby v. Pierno (1971)
4 Cal.3d 130, 143. It explained that "abuse of discretion is established if the court
17 determines that the findings are not supported by the weight of the evidence." It then
explained it was the trial court's responsibility to resolve questions of credibility based on
the record and opined that the record did not reflect "any sort of actual deliberation and
consideration by the Board of measures short of full revocation as a means of protecting
the public."
This was the incorrect standard of review at this point in the proceeding. Code of
Civil Procedure section 1094.5, subdivision (c) applies when a party claims the findings
are not supported by the evidence. In those cases, the court evaluates whether there is an
abuse of discretion by considering the weight of the evidence. (Code Civ. Proc.,
§ 1094.5, subd. (c); Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see Hoang v.
California State Bd. of Pharmacy (2014) 230 Cal.App.4th 448, 454-455.) Here, the
findings had already been established by the court following the first writ proceeding, and
those conclusions were not challenged in an appeal.9 Accordingly, those findings govern
the outcome here.
Instead, Oduyale challenged whether the Board had proceeded in the manner
required by law, which is reviewed for abuse of discretion as defined in subdivision (b) of
9 The parties agree that the Board could consider the allegations sustained by the trial court's decision following Oduyale's first petition for writ of mandamus.
18 Code of Civil Procedure section 1094.5.10 Because the previous writ judgment had
already determined which findings were supported by the evidence, here the court's
evaluation of whether there was a prejudicial abuse of discretion by the Board was
limited to whether the Board's revocation decision was supported by those findings.
(Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435; see also Topanga, supra,
11 Cal.3d at pp. 514-515.)
The trial court concluded the Board's Decision after Reconsideration and Remand
(Board Decision) "does not reflect any sort of actual deliberation and consideration by the
Board of measures short of full revocation as a means of protecting the public." It also
concluded the invitation to submit additional briefing, standing alone, was not sufficient
to demonstrate the Board fulfilled its duty in light of the first writ of mandate. Although
it recognized the Board Decision identified its rationale for revocation in one paragraph,
it also noted the Board Decision "offer[ed] no articulation whatsoever of any effort to
fairly analyze whether any measure or restriction short of outright revocation of
Respondent Oduyale's license would protect the public, while enabling him to earn a
living at his chosen profession." Still, the court did not directly conclude the findings
failed to support a decision to revoke Oduyale's pharmacist license. Instead, it explained
10 Oduyale's supplemental request for statement of decision indicated he was challenging the fairness of proceedings based on his allegation that the deputy attorney general drafted the remanded Board decision; Oduyale did not contend directly that the Board's failure to describe lesser penalties in its written decision violated his due process rights. Oduyale separately argued there was a manifest abuse of discretion in imposing revocation of his license because, he alleged, there were lesser penalties that would be effective. 19 it could not assess whether revocation was the appropriate remedy based on the nine
causes for discipline because the record did not detail the rationale for declining to
impose discipline short of revocation.11
However, there is no legal requirement to explicitly discuss, consider, and explain
the rejection of all forms of discipline short of the one selected, and the trial court's writ
directing the Board to "discuss each and every form of discipline, short of revocation, and
explain why those lesser forms of discipline are insufficient to protect the public" was
erroneous. So long as the findings "enable the reviewing court to trace and examine the
agency's mode of analysis" (Topanga, supra, 11 Cal.3d at p. 516), there is no abuse of
discretion under Code of Civil Procedure section 1094.5, subdivision (b).
After reviewing the record for its sufficiency in enabling us to determine whether
the factual determinations support the Board's decision, we reach a different conclusion
about the Board's compliance with its responsibility to determine an appropriate
disciplinary action. To determine whether a decision is supported, we require the
findings to "bridge the analytic gap between the raw evidence and ultimate decision or
order" so that we need not "speculate as to the administrative agency's basis for decision."
(Topanga, supra, 11 Cal.3d at p. 515.) Moreover, we "must resolve reasonable doubts in
favor of the administrative findings and decision." (Id. at p. 514.)
11 At the hearing, the court commented, "Revocation may be the appropriate conclusion in this case, but failure to fully consider the case may or may not have been abuse of discretion." 20 The Board Decision stated that the Board reviewed and considered the entire
record, including the transcript, exhibits, and written arguments for reconsideration and
on remand before issuing its decision. It detailed the allegations and findings related to
the disciplinary action against Oduyale in the 2005 action, the terms of Oduyale's
probation, and its completion. It laid out each cause for discipline, the facts offered by
the Executive Officer, Oduyale's response, and an evaluation of each of the causes.
It stated the purpose of discipline was not punishment, but instead "to protect the
public from dishonest, immoral, disreputable, or incompetent practitioners." The Board
explained Oduyale had been given correction notices and warnings, and although the
pharmacy would remedy one problem, a new violation would exist during the next visit,
or a previous violation would recur. Considering only the nine causes for discipline, it
concluded their seriousness evidenced Oduyale's lack of understanding of the basic
principles of operating a pharmacy, inability of running an orderly and compliant
pharmacy. The Board determined that Oduyale continued to "play[ ] fast and loose" with
the rules, and his re-labeling of oxytocin showed a "fundamental lack of understanding of
compounding, expiration dates, the requirement to document and notify others when
medications are altered, and hospital policies." Moreover, it found his "cavalier attitude
and lack of understanding of the serious nature of his misconduct in the context of the
practice of pharmacy . . . alarming."
This explanation bridges the findings and the Board's ultimate decision to revoke
Oduyale's license because it explains the violations were serious, and they demonstrated a
repeated inability or unwillingness to follow rules and a basic lack of understanding of
21 how to handle expired medications. The Board was concerned about "[r]ecord keeping
deficiencies and the pervasive failure to attend to detail" dating back to 2005, and it
commented Oduyale did not seem "fundamentally capable or willing" to get the issues
under control. Thus, its explanation further connected Oduyale's actions and attitudes
with the Board's decision to revoke the license because it determined an attempt at
rehabilitation would not serve the public interest.
Oduyale argues that because the Board Decision is nearly identical to its previous
decision, other than minor editing changes to reflect the court's reversal of eight of the
original charges for discipline during the first writ proceeding, the Board did not
reconsider the penalty in light of the court's actions. However, the Board's decision
expressly states it focused only on the remaining causes for discipline and prior history,
concluding that "public protection can only be accomplished if Respondent Oduyale can
no longer practice as a pharmacist."12 Moreover, as we explain infra, the Board's
disciplinary decision is not a manifest abuse of discretion; its determination is supported
by substantial evidence. (See Landau v. Superior Court (1998) 81 Cal.App.4th 191, 217-
218, 221 (Landau).)
12 Oduyale's reference to Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438 is unhelpful. Pirouzian held that the highest priority is protection of the public, and discipline should when possible "aid in the rehabilitation of the licensee" because punishment is not the goal. (Id. at p. 446.) However, the Board considered the possibility of rehabilitation here and concluded, in light of Oduyale's history, his repeated violations, and his incapability or unwillingness to get the issues under control, rehabilitation was not possible.
22 We are satisfied that the Board has "bridged the analytic gap" between raw
evidence and its ultimate decision.13 Accordingly, we vacate the trial court's order
instructing the Board to reconsider the penalty and to discuss each and every form of
discipline short of license revocation, explaining why they are insufficient to protect the
public.
C. The Board's Disciplinary Action Was Not a Manifest Abuse of Discretion
In its appeal, the Board asks us to exercise independent judgment and determine
that the nine causes for discipline sustained during the first writ proceeding are sufficient
to support the Board's revocation decision. In his cross-appeal, Oduyale contends the
revocation of his pharmacist license constitutes an abuse of discretion, and he asks us to
direct the Board to impose a lesser penalty. Having concluded there was no violation in
the process the Board used to reach its decision, we next conclude there was no manifest
abuse of discretion in the Board's determination that revocation was the appropriate
penalty in this case, and we reverse the court's judgment.
1. Standard of Review
"[W]e review de novo whether the agency's imposition of a particular penalty on
the petitioner constituted an abuse of discretion by the agency." (Cassidy v. California
Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627 (Cassidy), citing Antelope Valley
13 In its statement of decision, the trial court commented: "[T]he record provided by the parties does not reflect any sort of actual deliberation and consideration by the Board of measures short of full revocation as a means of protecting the public." (Italics added.) However, the Board was not obligated to do so, and the court did not conclude the Board failed to contemplate facts and deliberate as to whether revocation was appropriate, only that it failed to directly address why discipline short of revocation was not appropriate. 23 Press v. Poizner (2008) 162 Cal.App.4th 839, 851 and Szmaciarz v. State Personnel Bd.
(1978) 79 Cal.App.3d 904, 921.) "In reviewing the severity of the discipline imposed, we
look to the correctness of the agency's decision rather than that of the trial court. We
review the actions of the [Pharmacy Board] to determine whether the discipline imposed
constituted a manifest abuse of discretion." (Landau, supra, 81 Cal.App.4th at p. 217;
Intercommunity Medical Center v. Belshe (1995) 32 Cal.App.4th 1708, 1711 [when facts
not challenged, appellate court only determines if board's ruling was so arbitrary and
capricious that it was an abuse of discretion].)
" 'The penalty imposed by an administrative body will not be disturbed in
mandamus proceedings unless an abuse of discretion is demonstrated. [Citations.]
Neither an appellate court nor a trial court is free to substitute its discretion for that of the
administrative agency concerning the degree of punishment imposed.' [Citation.]"
(Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652, quoting Barber v.
State Personnel Bd. (1976) 18 Cal.3d 395, 404.) " ' "In reviewing the exercise of this
discretion we bear in mind the principle 'courts should let administrative boards and
officers work out their problems with as little judicial interference as possible . . . . Such
boards are vested with a high discretion and its abuse must appear very clearly before the
courts will interfere.' " ' [Citation.] 'The policy consideration underlying such allocation
of authority is the expertise of the administrative agency in determining penalty
questions.' [Citation.]" (Cassidy, supra, 220 Cal.App.4th at p. 633.)
A manifest abuse of discretion exists if the penalty was arbitrary, capricious, or
patently abusive. (Cassidy, supra, 220 Cal.App.4th at pp. 627-628.) If reasonable minds
24 could differ over the appropriateness of a penalty imposed, there is no manifest abuse of
discretion. (Landau, supra, 81 Cal.App.4th at pp. 218, 221; Dresser v. Board of Medical
Quality Assurance (1982) 130 Cal.App.3d 506, 519 ["The facts that reasonable minds
might differ as to the propriety of the penalty imposed fortifies the conclusion that the
administrative body acted within its discretion [citations]."]) " 'Even if a penalty were to
appear to be too harsh according to the court's evaluation, the court is not free to
substitute its own discretion for that exercised by the administrative agency.' " (Landau,
at p. 221.)
Section 4300 of the Business and Professions Code authorizes the Board to
discipline a pharmacist by suspending or revoking a license. Additionally, Business and
Professions Code section 4001.1 places protection of the public as the highest priority for
the State Board of Pharmacy in exercising its licensing, regulatory, and disciplinary
functions; when that goal is inconsistent with other interests, the public's protection is
paramount. (See Sternberg v. California State Bd. of Pharmacy (2015) 239 Cal.App.4th
1159, 1168-1169.)
25 2. California State Board of Pharmacy Disciplinary Guidelines
The California State Board of Pharmacy Disciplinary Guidelines identify 15
factors for the Board to consider in issuing a disciplinary decision.14 (Cal. Dept. of
Consumer Affairs, California State Board of Pharmacy, Disciplinary Guidelines (2007)
p. 3 [hereafter Pharmacy Disciplinary Guidelines].) The Pharmacy Disciplinary
Guidelines state "[n]o single one or combination of the . . . factors is required to justify
the minimum and/or maximum penalty in a given case," and the recommended range of
discipline within each category "assume[s] a single violation of each listed statute or
regulation." (Id. at pp. 3, 5) When there are "multiple violations, the appropriate penalty
shall increase accordingly." (Id. at p. 5.) Additionally, "if an individual has committed
violations in more than one category, the minimum and maximum penalties shall be those
recommended in the highest category." (Ibid.)
3. Oduyale's Violations
14 The factors the Board considers in determining penalties are: "1. actual or potential harm to the public[;] 2. actual or potential harm to any consumer[;] 3. prior disciplinary record, including level of compliance with disciplinary order(s)[;] 4. prior warning(s), including but not limited to citation(s) and fine(s), letter(s) of admonishment, and/or correction notices(s)[;] 5. number and/or variety of current violations[;] 6. nature and severity of the act(s), offense(s) or crime(s) under consideration[;] 7. aggravating evidence[;] 8. mitigating evidence[;] 9. rehabilitation evidence[;] 10. compliance with terms of any criminal sentence, parole, or probation[;] 11. overall criminal record[;] 12. if applicable, evidence of proceedings for case being set aside and dismissed pursuant to Section 1203.4 of the Penal Code[;] 13. time passed since the act(s) or offense(s)[;] 14. whether the conduct was intentional or negligent, demonstrated incompetence, or, if the respondent is being held to account for conduct committed by another, the respondent had knowledge of or knowingly participated in such conduct[; and] 15. financial benefit to the respondent from the misconduct." (Pharmacy Disciplinary Guidelines, at p. 3.) 26 Category I violations are those that are relatively minor but potentially harmful
and for repeated violations of a relatively minor nature. (Pharmacy Disciplinary
Guidelines, at p. 6.) The minimum penalty is one-year probation, revocation stayed, or
revocation, and the maximum penalty is revocation. (Ibid.) Oduyale's fifth cause for
discipline, for changing the instructions on four prescriptions, establishes four Category I
violations. (Ibid.; Cal. Code of Regs., tit. 16, § 1716.)
Category II violations are those that create a serious potential for harm, involve a
greater disregard for pharmacy law and public safety, and violations that reflect on ethics,
care exercised, or competence. (Pharmacy Disciplinary Guidelines, at p. 11.) The
minimum penalty for a single Category II violation is revocation, revocation stayed, or
three years of probation, and the maximum penalty is revocation. (Ibid.) Oduyale was
found to have committed Category II violations repeatedly. This includes the sixth and
seventh causes for discipline because he dispensed 24 prescriptions for controlled
substances that were not on the proper form. (Bus. & Prof. Code, § 4301, subd. (o);
Health & Saf. Code, § 11164, subd. (a); & Cal. Code of Regs., tit. 16, § 1717.3, subd. (a);
Pharmacy Disciplinary Guidelines, at pp. 13-14.) It also includes the ninth cause for
discipline, for failure to document the name of the prescriber transmitting transcriptions
for 39 prescriptions, a requirement to avoid potential abuse. (See Bus. & Prof. Code, §
4301, subd. (o); Health & Saf. Code, § 11164, subd. (b)(3).) Plus, it includes the
thirteenth and eighteenth causes for discipline for knowingly making false statements.
Oduyale was found to have provided prescription verifications with false "backers,"
which had discrepancies when compared to their originals and led the court to conclude
27 they were falsified, and he changed the label on oxytocin, improperly extending the
expiration date. The Board believed that Oduyale's willingness to falsify documents was
an indication he could not be rehabilitated.
Finally, the fourteenth and seventeenth causes for discipline are Category II
violations. (Bus. & Prof. Code, §§ 4301, subd. (c) & 4306.5, subd. (b); Pharmacy
Disciplinary Guidelines, at p. 13.) The finding of unprofessional conduct for failing to
exercise best judgment in dispensing a drug was not about record-keeping; it was for
changing instructions on prescriptions without consent from the prescriber to do so. The
gross negligence finding was also specific to relabeling five bags of oxytocin to extend
their expiration date for dispensing to pregnant patients.
Category III violations are recommended for, among other things, knowing or
willful violations of laws or regulations pertaining to dispensing or distributing controlled
substances, fraudulent acts committed in connection with a licensee's practice.
(Pharmacy Disciplinary Guidelines, at p. 15.) The minimum penalty is revocation,
revocation stayed, 90 days actual suspension, or three years of probation. (Ibid.) The
maximum penalty is revocation. (Ibid.) Oduyale was found to have committed Category
III violations over a nine-month period, from May 1, 2012 through January 28, 2013, by
failing to properly maintain records of a controlled substance. The discrepancy was an
overage of pills, and the Board noted that there was no evidence of theft or diversion of
pills. However, it concluded that the inaccuracy, coupled with similar violations in 2006,
indicated a problem.
4. Substantial Evidence Supports the Board's Decision
28 In his cross-appeal, Oduyale contends the evidence does not establish he is
dishonest, immoral, disreputable, or incompetent, and thus revocation of his license is
unnecessary to protect the public. To support his position, Oduyale cites findings that he
was kind, generous, and caring, as well as letters of support and customer evaluations.
He also contends that all but one of the sustained findings involved record-keeping
violations and challenges the Board's conclusion that these findings demonstrate Oduyale
was unable to properly run a pharmacy because, he argues, the violations only occurred
during a three-month period and were not representative of his lengthy time in practice,
and because the violations were corrected. Oduyale further contends that because a
majority of the violations related to record-keeping, and because he previously
successfully completed probation, there was not sufficient evidence that he is unfit to
practice pharmacy. Finally, he suggests that because there had been no harm to the
public, and he did not commit any Category IV offenses, revocation was not necessary to
protect the public.
While the audit reviewed a three-month period of time during which there were
prescription violations, nothing in the record suggests that these violations were outliers
or not representative of Oduyale's practice on the whole, particularly in light of Oduyale's
previous discipline, also based on prescription and inventory violations approximately a
decade earlier. Moreover, while Oduyale was found to have committed Category II
violations over the three-month period the audit reviewed, he was also found to have
committed Category III violations over a nine-month period, from May 1, 2012 through
January 28, 2013. Indeed, the repeated nature of Oduyale's violations influenced the
29 Board's decision; Oduyale would remedy one problem, but prior violations would
reappear.
Additionally, although Oduyale downplays the seriousness of the findings, arguing
that record-keeping violations do not demonstrate a lack of competence or implicate
public safety, poor recording-keeping is cause for concern because absent appropriate
documentation, there is opportunity for theft, diversion, and abuse. Additionally, some of
the charges created serious potential for harm. For example, Oduyale did not dispute the
inaccuracies of the four variances in prescription instructions that were the basis of the
fifth cause for discipline, attributing the discrepancies to mistakes and oversights as a
result of the high volume of prescriptions. However, the Board explained that a high
volume of prescriptions does not mitigate or excuse the errors because accurate directions
are essential to consumer safety. Additionally, when Oduyale relabeled the oxytocin
bags at the hospital without directly informing anyone he had done so, he created
potential for consumer harm because doctors could have increased the dosage to account
for the inefficiency of expired medication, resulting in excessively medicating pregnant
patients.15
The Board's conclusion that Oduyale's responses to these causes for discipline
were cavalier and lacked an understanding of the serious nature of the misconduct
15 Although Oduyale argues in his reply brief that this action was not serious in nature because his expert opined that use of the expired oxytocin that evening was not contraindicated, the record indicates Brodsky ultimately reconsidered her opinion once she was aware of the specific facts and withdrew her conclusion that Oduyale had properly exercised professional judgment when he extended the date of the oxytocin. 30 support its determination that these violations are evidence that Oduyale is unfit to
practice. Moreover, the Board expressed concern that Oduyale was not honest because of
his willingness to knowingly provide false information, as demonstrated by the thirteenth
and eighteenth causes for discipline.
Although there is evidence of Oduyale's kindness and generosity, this evidence
does not eliminate the potential harm he created or allay concerns about his repeated
violations, which occurred even after a previous opportunity for rehabilitation. Given the
Board's directive to make public safety paramount (see Griffiths v. Superior Court (2002)
96 Cal.App.4th 757, 768), the Pharmacy Disciplinary Guidelines' direction to increase the
penalty for multiple violations using the penalties in the highest category (Pharmacy
Disciplinary Guidelines, at p. 5), and the Board's discretion in determining the
appropriate disciplinary action (Cassidy, supra, 220 Cal.App.4th at p. 633), the nine
sustained causes for discipline, coupled with Oduyale's disciplinary history, demonstrate
a reasonable mind could reach the conclusion that revocation was the appropriate
disciplinary action here. (See Landau, supra, 81 Cal.App.4th at pp. 218, 221 [no manifest
abuse of discretion if reasonable minds could differ]; Gubser v. Department of
Employment (1969) 271 Cal.App.2d 240, 245-246 [substantial evidence is relevant
evidence a reasonable mind might accept as adequate to support a conclusion].) Thus, we
cannot conclude the Board's action was a manifest abuse of discretion.
DISPOSITION
We reverse the trial court's judgment and vacate the order directing the Board to
explicitly discuss all lesser forms of discipline and to explain why they are insufficient
31 for public protection. We remand the matter to the trial court with instructions to enter
judgment in the Board's favor and to dismiss the petition with prejudice.
The Board is entitled to costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
32 Filed 10/15/19
CALIFORNIA STATE BOARD OF PHARMACY, ORDER CERTIFYING OPINION FOR PUBLICATION Defendant and Appellant.
THE COURT:
The opinion in this case filed September 23, 2019, was not certified for
publication. It appearing the opinion meets the standards for publication specified in
California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for
publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
Copies to: All parties