{ "id": 8550557, "name": "DELMAR F. WHITE v. NORTH CAROLINA BOARD OF PHARMACY", "name_abbreviation": "White v. North Carolina Board of Pharmacy", "decision_date": "1978-03-07", "docket_number": "No. 7710SC372", "first_page": "554", "last_page": "558", "citations": [ { "type": "official", "cite": "35 N.C. App. 554" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [], "analysis": { "cardinality": 401, "char_count": 7458, "ocr_confidence": 0.8, "sha256": "c7164078c130c8b1d58c137741d4af0eefb483c8a85ad017bf79e85b0b5cb291", "simhash": "1:fcf7f0e4270795cf", "word_count": 1153 }, "last_updated": "2023-07-14T19:24:32.681632+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Martin concur." ], "parties": [ "DELMAR F. WHITE v. NORTH CAROLINA BOARD OF PHARMACY" ], "opinions": [ { "text": "ARNOLD, Judge.\nG.S. 90-65(a)(7) provides, inter alia, that the Board of Pharmacy may, after due notice and a hearing, revoke any license issued by it to any pharmacist for his \u201c[w]illful failure to comply with the laws governing the practice of pharmacy and the distribution of drugs.\u201d Pursuant to this provision a hearing was held and petitioner\u2019s license was revoked. Petitioner, however, contends that the Board of Pharmacy is governed by the rules of evidence contained in G.S. 143-318, that his hearing was tainted with evidence which should not have been admitted, and that the order revoking his license was prejudiced thereby.\nWe agree with the petitioner that G.S. 143-318 applies to the hearing at which his license was revoked. Our statutes concerning the practice of pharmacy, G.S. 90-53 et seq., do not specifically deal with what rules of evidence are applicable to hearings under G.S. 90-65. The Uniform Revocation of Licenses, G.S. 150-9 et seq., which was effectively repealed after the hearing in question, defined \u201cboard\u201d to exclude the North Carolina Board of Pharmacy (G.S. 150-9). Hence, we look to G.S. 143-318 for the rules of evidence to apply in administrative proceedings before the Board of Pharmacy.\nG.S. 143-318(1) reads:\n\u201cIncompetent, irrelevant, immaterial, unduly repetitious, and hearsay evidence shall be excluded. The rules of evidence as applied in the superior and district court divisions of the General Court of Justice shall be followed.\u201d\nBefore the introduction of any evidence petitioner moved for and was granted a blanket objection to all the evidence and its competency. He now complains that evidence containing hearsay and opinion was repeatedly allowed. An obvious disadvantage of such blanket objections is presented in the instant case. It was after the fact that petitioner went through the record and noted evidence which he now claims to have been erroneously admitted. He failed to call the Board\u2019s attention to such testimony by objecting when the evidence was presented. Hence the Board was not called upon to disregard evidence that may have been prejudicial.\nIn any event, the findings of fact made by the Board do not rely upon that evidence to which petitioner excepts. Findings of fact were made concerning the audits of petitioner\u2019s stock of morphine sulfate and petitioner\u2019s guilty plea in the United States District Court for the Middle District of North Carolina. Evidence of the audits came in without objection. The guilty plea was stipulated to by counsel. Assuming that incompetent evidence was admitted by the Board we can find no prejudice to petitioner. The Board\u2019s conclusions were based upon facts supported by competent evidence.\nWe next address petitioner\u2019s argument that the Board\u2019s conclusion that petitioner \u201cwilfully\u201d failed to comply with both state and federal laws governing the practice of pharmacy is not supported by competent evidence. This argument fails. Evidence of petitioner\u2019s guilty plea in federal court is competent evidence which supports the Board\u2019s conclusion that petitioner \u201cwilfully\u201d failed to comply with the law. The federal indictment to which petitioner pled guilty reads, in part, that petitioner\n\u201cdid knowingly and unlawfully refuse and fail to keep a complete and accurate record of morphine sulfate, one-quarter (1/4) grain, and atropine one one-fiftieth (l/150th) grain tablets, the principal ingredient of which is morphine, a Schedule II Controlled Substance, which tablets were received, sold, delivered, dispensed, distributed, possessed and otherwise disposed of at and by Mebane Drug Company during the period aforesaid, as required by Title 21, United States Code, Section 827(a)(3), and 21 CFR 1304.21 and 1304.24 in that the available records of Mebane Drug Company showed a shortage of approximately 3,254 tablets representing an unaccounted-for shortage of approximately nineteen percent (19%) of the total accountability; in violation of Title 21, United States Code, Section 842(a)(5).\u201d\nMoreover, contrary to petitioner\u2019s assertion, evidence of the guilty plea supports the Board\u2019s finding that petitioner violated state law as set forth in Chapter 90, Article 5 of the General Statutes. G.S. 90-104, at the time of petitioner\u2019s hearing, read as follows:\n\u201cEach registrant or practitioner manufacturing, distributing, or dispensing controlled substances under this Article shall keep records and maintain inventories in conformance with the record-keeping and the inventory requirements of the federal law and shall conform to such rules and regulations as may be promulgated by the North Carolina Drug Authority.\u201d\nJudgment of Superior Court affirming the 26 November 1975 order of the North Carolina Board of Pharmacy is accordingly\nAffirmed.\nJudges Parker and Martin concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Murdock,, Jarvis & LaBarre, by David Q. LaBarre, for petitioner appellant.", "Bailey, Dixon, Wooten, McDonald & Fountain, by Kenneth Wooten, Jr., for respondent appellee." ], "corrections": "", "head_matter": "DELMAR F. WHITE v. NORTH CAROLINA BOARD OF PHARMACY\nNo. 7710SC372\n(Filed 7 March 1978)\n1. Physicians, Surgeons and Allied Professions \u00a7 6.2\u2014 pharmacist \u2014 license revocation hearing \u2014 competency of evidence\nPetitioner\u2019s contention that G.S. 143-318 applied to the hearing at which his license to practice pharmacy was revoked is correct, but his contention that his hearing was tainted with evidence which should not have been admitted is without merit, since the findings of fact made by the Board did not rely upon that evidence to which petitioner excepted, and the Board\u2019s conclusions were based upon facts supported by competent evidence.\n2. Physicians, Surgeons and Allied Professions \u00a7 6.2\u2014 pharmacist \u2014 license revocation hearing \u2014 failure to keep records \u2014 sufficiency of evidence\nEvidence of petitioner\u2019s guilty plea in federal court to a charge of knowingly and unlawfully refusing to keep an accurate record of controlled substances in his possession was competent evidence which supported the Board\u2019s conclusion that petitioner wilfully failed to comply with the law governing the practice of pharmacy.\nAPPEAL by petitioner from Bailey, Judge. Judgment entered 17 December 1976, in Superior Court, WAKE County. Heard in the Court of Appeals 10 February 1978.\nOn 26 November 1975 the North Carolina Board of Pharmacy (hereinafter Board) entered an order revoking petitioner\u2019s license to practice pharmacy. The Board had held an administrative hearing on 18 November 1975 and, at the conclusion of the hearing, found that on two separate occasions in 1974 petitioner was audited by agents of the Federal Drug Enforcement Administration; that, on the first occasion petitioner was unable to account for 3,178 tablets of morphine sulfate with atropine, and on the second occasion he was unable to account for 76 tablets of morphine; that petitioner entered a plea in federal court of guilty for \u201cknowingly and unlawfully\u201d refusing to keep an accurate record of morphine sulfate; that petitioner was sentenced to one year imprisonment, but that the sentence was suspended and petitioner was placed on probation for five years. The Board concluded that petitioner had wilfully failed to comply with both state and federal law governing the practice of pharmacy, and ordered that his license to practice be revoked.\nPetitioner sought judicial review and the Superior Court of Wake County made findings of fact and conclusions of law upholding the Board\u2019s actions. Petitioner appealed.\nMurdock,, Jarvis & LaBarre, by David Q. LaBarre, for petitioner appellant.\nBailey, Dixon, Wooten, McDonald & Fountain, by Kenneth Wooten, Jr., for respondent appellee." }, "file_name": "0554-01", "first_page_order": 582, "last_page_order": 586 }