Decision and Order, Case No. 5723 and 5767

BEFORE THE BOARD OF PHARMACY

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

ST. MINA PHARMACY, SAMIA HAKIM ABADIER, NADER ERIAN ABADIER, LAWRENCE NADER ABADIER, MARK NADER ABADIER, OWNERS,

Pharmacy Permit License No. PHY 50685,

and

SAMIA HAKIM ABADIER,

Pharmacist License No. RPH 65420,

Respondents.

Case No. 5723

OAH No. 2017120787

In the Matter of the Statement of Issues Against:

ST. MINA, INC. dba ST. MINA PHARMACY #2, SAMIA HAKIM ABADIER, NADER ERIAN ABADIER, LAWRENCE NADER ABADIER, MARK NADER ABADIER, OWNERS,

Community Pharmacy Permit License Applicant,

Respondents.

Case No. 5767

OAH No. 2017120792

DECISION AND ORDER

The attached Proposed Decision of the Administrative Law Judge is hereby adopted by

the Board of Pharmacy, Department of Consumer Affairs, as its Decision in this matter

This Decision shall become effective at 5:00 p.m. on November 28, 2018.

It is so ORDERED on October 29, 2018.

BOARD OF PHARMACY DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

By Victor Law, R.Ph. Board President

Decision and Order, Case No. 5723 and 5767

BEFORE THE BOARD OF PHARMACY

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

ST. MINA PHARMACY, SAMIA HAKIM ABADIER, NADER ERIAN ABADIER, LAWRENCE NADER ABADIER, MARI<. NADER ABADIER, OWNERS,

Pharmacy Permit No. PHY 50685,

and

SAMIA HAKIM ABADIER,

Pharmacist License No. RPH 65420,

Respondents.

In the Matter of the Statement ofissues Against:

ST. MINA, INC. dba ST. MINA PHARMACY #2, SAMIA HAKIM ABADIER, NADER ERIAN ABADIER, LAWRENCE NADER ABADIER, MARK NADER ABADIER, OWNERS,

Community Pharmacy Permit License Applicant,

Respondents.

II

II

II

Case No. 5723

OAHNo. 2017120787

Case No. 5767

OAHNo. 2017120792

PROPOSED DECISION

Eileen Cohn, Administrative Law Judge (ALJ), Office of Administrative Hearings (OAH), State of California, heard this consolidated matter on June 8, 2018, in Los Angeles, California. 1

Elyse M. Davidson, Deputy Attorney General, represented Complainant Virginia Herold, Executive Officer of the Board of Pharmacy (Board), Department of Consumer

' Affairs.

Herb L, Weisberg, Attorney at Law, represented Respondents St. Mina Pharmacy, Samia Hakim Abadier, Nader Erian Abadier, Lawrence Nader Abadier, Mark Nader Abadier ( collectively, Respondents St Mina Pharmacy); Respondents St. Mina Inc., dba St Mina Pharmacy #2, Samia Hakim Abadier, Nader Erian Abadier, Lawrence Nader Abadier, Mark Nader Abadier ( collectively, Respondents St. Mina Pharmacy #2); and Respondent Samia Hakim Abadier (Respondent Samia Abadier). Respondents St. Mina Pharmacy, Respondents St. Mina Pharmacy #2 and Respondent Samia Abadier are collectively refetred to as Respondents.

Oral and documentary evidence was received, The record remained open until July 13, 2018, to provide the parties an opportunity to exchange and file written closing briefs. On August 8, 2018, it was discovered that Respondents had inadvertently not submitted their written closing brief with OAH. Accordingly, the record was reopened and then reclosed upon receipt of Respondents' written closing brief by OAH. Complainant's closing and reply briefs were marked and lodged as Exs. 15 and 16, and Respondents closing brief was marked and lodged as Ex. I.

FACTUAL FINDINGS

Jurisdiction

1. On June 10, 2016, Complainant executed Accusation 5723 against Respondents St. Mina Pharmacy and Respondent Samia Abadier. Respondents timely filed a request for a hearing after Complainant filed the Accusation with OAH.

2. On December 15, 2015, Respondents St. Mina Phatmacy #2 filed an application for a community pharmacy permit. The application was complete (Ex. 4), and the Board raised no concerns about its contents. On January 29, 2016, the Board denied the application based upon the pending investigation against Respondents St. Mina Phmmacy Pharmacy Permit number PHY 50685, (Ex. 5.) Respondents St. Mina Phannacy #2 timely

The Accusation and Statement oflssues filed in case numbers 5723 and 5767, respectively, were consolidated for hearing on March 14, 2018. By agreement of the parties during the hearing, one decision is issued, (CaL Code. Regs., tit. 1, § 1048, subd, (c).)

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requested a hearing, and, as a result, on April 13, 2017, Complainant executed Statement of Issues 5767 against Respondents St. Mina Pharmacy #2. After the Statement oflssues was filed with OAH on December 19, 2017, this matter proceeded to hearing.

Licensees and Corporate Ownership Interest

3. On or about October 3, 2011, the Board issued Pharmacy Permit number PHY 50685 to St. Mina Inc. dba St. Mina Pharmacy. From October 3, 2011, and as of the date of Complainant's license certification dated May 4, 2018, (Ex. 3), Respondents St. Mina Pharmacy designated the following individuals as owners, and officers: Samia Hakim Abadier, Chief Executive Officer (CEO), and owner of 30 percent of the outstanding shares; Nader Erian Abadier, Director and owner of 30 percent of the outstanding shares; Lawrence Nader Abadier, Secretary and owner of20 percent of the outstanding shares; and Mark Nader Abadier, Treasurer/Chief Financial Officer, owner of20 percent of the outstanding shares. The Pharmacy Permit was in foll force and effect at all times relevant to the charges brought herein and will expire on October 1, 2018, unless renewed. (Ex. 3.)

4. On April 25, 2011, the Board issued Pharmacist License number RPH 65420 to Respondent Samia Abadier, which was in full force and effect at all relevant times, and remains in effect until November 30, 2018, if not renewed. (Ex. 3.)

5. Respondents St. Mina Pharmacy #2 identified the following owners and officers in their community pharmacy permit application filed with the Board on December 15, 2015: Samia Abadier, CEO, and owner of30 percent of outstanding shares; Nader E. Abadier, Secretary, and owner of 30 percent of outstanding shares, Mark N. Abadier, Director, and owner of20 percent of outstanding shares, and Lawrence N. Abadier, Director, and owner of 20 percent of outstanding shares. Nader Erian Abadier RPH 56729 was identified as the pharmacist-in-charge (PIC). (Ex. 4.)

Facts Common to the Accusation and Statement ofIssues

6. St. Mina Pharmacy is a family-owned community pharmacy in Fontana, California. It is located in a medical building and dispenses about 250 prescriptions daily. (Ex. 9, p. 98.) Respondent Samia Abadier was the PIC at St. Mina Pharmacy from October 3, 2011 until May 23, 2017. Respondent Nader Erian Abadier, RPH 56729 (Respondent Nader Abadier), has been the PIC since May 22, 2017. During the relevant time period, the pharmacy was staffed by the PIC, and three licensed pharmacy technicians, only one of whom worked directly with the customers, Noemi Acevedo (Acevedo). Acevedo was employed as a pharmacy technician at St. Mina Pharmacy from December 12, 2012 to November 5, 2014. The other two pharmacy technicians performed paperwork.

7. (a) This matter involves the undisputed variance between the acquisition of the controlled substance and pain medication Hydrocodone/ Acetaminophen HC/ AP AP 10/325 mg, known also by its brand name NORCO (HC/APAP or NORCO). According to the Board's audit, between June 1, 2013 and November 5, 2014, Respondents St. Mina Pharmacy possessed 252,500 HC/APAP tablets and disposed of 199,087 tablets, for a total

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variance of inventory of 54,226 tablets. Respondents' internal audit conducted from June 13, 2013 through November 5, 2014, found a loss of 42,743 HC/APAP tablets. (Ex. 6, pp. 78, 80.) The 252,500 HC/ APAP tablets purchased during the Board's audit period is equivalent to 252 containers of 1,000 tablets. (Ex. 6, p. 80.) The 54,226 missing tablets,, represents 54 containers of 1,000 tablet jars ofHC/APAP, or approximately three containers each month, or 21.50% of the inventory of NORCO, during the audit period. The parties dispute the source of the discrepancy. The Board takes the position that at least 14,000 was diverted by Acevedo's theft, and Respondent's take the position that all missing tablets are the result of Acevedo's theft. The weight of the evidence supports Respondent's position. 2

(b) HC/APAP was a Schedule III drug until October 6, 2014, when it was reclassified as a Schedule II controlled substance. 3 As a Schedule III drug, HC/ APAP was not required to be kept in a locked cabinet and was allowed to be kept on the regular pharmacy shelves with other medications, according to the Board's inspector Sejal Desai (Inspector Desai). (Ex. 6, p. 80.) When HC/APAP became a Schedule II drug, Respondents St. Mina Pharmacy stored the drug in an enclosed and locked cabinet with the remaining Schedule II drugs. There is no evidence that Respondents St. Mina Pharmacy failed to count any Schedule II drugs. On the contrary, diversion of the HC/APAP tablets was discovered by Respondents St. Mina Pharmacy in the course of meeting their audit obligations for Schedule II drugs.

(c) HC/APAP is used legally for pain relief. Ho.wever, it is generally known to be a high theft "street" drug because of its narcotic effects and great monetary value when sold illegally. Because of its great potential for abuse, HC/APAP was changed from a Schedule III to a Schedule II controlled substance.

(d) Respondents purchased HC/ AP AP in jars containing 1,000 tablets. The material findings are undisputed concerning: the number of units diverted; the proven theft by one employee of at least one 1,000 unit jar ofHC/APAP on Friday, October 31, 2014, and, most likely, the total amount of tablets diverted; the discovery of Acevedo's theft on November 3, 2014; the discovery of another missing 1,000 unit jar three weeks earlier; the initial internal audit conducted by Respondents St. Mina Pharmacy on November 3, 2014, which confirmed the theft of 2,400 to 3,000 tablets of NORCO from the time the drug

2 The Board's Default Decision and Order in Case No. 5099 revoking Acevedo's license No. TCH 81339 was effective February 19, 2016. The Default Decision and Order was referenced in the Accusation at page six, paragraph 20 and footnote one. The findings of the Board against Acevedo include her theft of 14,000 units of NORCO. The ALJ further takes official notice of the complete Default Decision and Order, located on the Board's public web-site, https://www.pharmacy.ca.gov/enforcement/fyl 314/acl 35099). (Gov. Code § 11515.)

3 As a Schedule III controlled substance, HC/APAP was categorized as a dangerous drug pursuant to Health and Safety Code sections 4022 and 11056, subdivision (e)(4). It was reclassified as a Schedule II controlled substance under federal law pursuant to the Code of Federal Regulations, title 21, section 1308.12, subdivision (b)(l)(vi).

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became Schedule II less than a month prior; the additional results of Respondents' internal audit ofNORCO reported to the Board on November 14 which uncovered 14,000 missing tablets; and the results of Board's audit between June 1, 2013 and November 5, 2014, conducted by Inspector Desai the Board, which confirmed the total diversion ofNORCO in the amount of 54,223 tablets. (Ex. 6, p. 79, Ex. 7, pp. 86-89.)

(e) Respondent Samia Abadier, as the St. Mina Pharmacy PIC, was often in the front of the pharmacy area dealing directly with customers with her back to the shelves containing drugs. She was also at times in the lab area or assisting customers to their cars. (Respondent Samia Abadi er testimony). She was also away from the pharmacy staff area when she went to the restroom during her allowed two 10-minute breaks and possibly during her one 30-minute lunch break.

8. (a) On October 31, 2014, near the end of the workday, Respondent Samia Abadier had placed a 1,000-unit jar ofHC/APAP on the counter outside the locker used for Schedule II drugs and went to the restroom. Acevedo was present in the secured staff area of the pharmacy and was wearing a bumble bee Halloween costume. During the time Respondent Samia Abadier was in the bathroom, video surveillance, which was positioned with a view of the counter and locker, recorded Acevedo taking the jar ofHC/APAP and first placing it under her costume and then in her purse.

(b) After returning from the restroom to the pharmacy area to retrieve her purse, Respondent Samia Abadier left for the day without checking the counter for the HC/APAP in order to place it back inside the locker as required. Although it is unclear from the evidence when Respondent Samia Abadier remembered that she had left the HC/ APAP jar on the counter without returning it to the locker, she did not consider her oversight a problem, or return to the pharmacy to lock it in the cabinet, because the phaimacy was closed and locked for the weekend.

9. Respondent Samia Abadier discovered Acevedo's theft upon returning to the pharmacy Monday morning, November 3, 2014. After she confirmed that the HC/APAP jar was missing, Respondent Samia Abadier reviewed the videotape recording, which showed Acevedo's theft. (Samia Abadier testimony and Ex. 6.) Pharmacy technician Nina Kennedy also reviewed the videotape. (Ex. 7, p. 78.)

10. On November 3, 2014, pharmacy technician Gloria Peralta conducted an inventory ofHC/APAP and discovered 2,400 tablets missing since it was classified as a Schedule II controlled substance. The amount missing is equivalent to two jars of 1,000 tablets plus fmiy percent of the contents of a third jar. (Ex. 6, p. 79.)

11. Before Respondent Samia Abadier reported Acevedo's theft to the police, she contacted Acevedo and requested that she return the NORCO or else she would call the police. Acevedo was apologetic and said she would bring back the pills the next day, November 6, 2014. Acevedo's boyfriend called the pharmacy and offered to pay for the pills instead to avoid the police. Ms. Peralta witnessed the call. (Exs. 6 and 11.)

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12. (a) Respondents St Mina Pharmacy reported the theft and the results of their internal audit to the police, the DEA, and the Board.

(b) Respondent Samia Abadi er reported the theft to the police on November 5, 2014, and the confirmation of the theft on the video. She informed them that she contacted Acevedo by phone that afternoon and reported the contents of her call. She also reported her discussion with Acevedo's boyfriend and that she told him two jars of 1,000 tablets were missing, or a total of2,000 tablets, one jar on October 31, 2014, and one jar three weeks before. (Ex. 11, pp. 104-105)

(c) The police arrested Acevedo for embezzlement and grand theft. She admitted her theft of the 1,000 unit jar on October 31, 2014. Acevedo told the police that she had given the pills to her aunt to take to Mexico. Her aunt was supposed to pay her $300, but did not. She told the police she was going to return the pills to the pharmacy by collecting random pills. She told the police she felt bad and wrote an apology note to Respondent San1ia Abadier in front of the arresting officer; however, it was never delivered. She verbally apologized to Respondent Samia Abadier. (Exs. 6 and 11.)

(d) The police also interviewed Respondent Nader Abadi er, pharmacist, business partner, and spouse of Respondent Samia Abadier. He confirmed the theft of one 1,000-countjar ofHC/APAP on October 31, 2014, but also informed the police that another bottle of the same medication was missing three weeks prior. (Ex. 6.) Although the exact date of discovery was not established by the evidence, 'Respondent Nader Abadier later reported to Inspector Desai that the losses were discovered after NORCO became Schedule II because the pharmacy kept a perpetual log of all Schedule II drugs. (Ex. 9, p. 98.) Respondent Nader Abadier reported to the police that prior to her employment Acevedo signed forms stating the rules of the pharmacy and that she understood she was entrusted with the inventory of pills. (Ex.11, p. 104.) The forms were provided to the police, (Ex. 11 p. 195) but not introduced as evidence; regardless, Acevedo admitted to the police that she knew she was entrusted with the medication of the pharmacy. (Ex. 11, p. 104.) Consistent with her obligations as a licensed pharmacy technician Acevedo was required to safekeep the medications and to respect the law.

(e) On November 10, 2014, Respondent Samia Abadier contacted the police and reported that she found that 14 more bottles ofNORCO, a total of 14,000 tablets, were missing. (Ex. 11, p. 107.) The police amended their report with the updated numbers.

13. (a) On November 6, 2014, Respondent Samia Abadier reported the diversion of NORCO to the DEA by using the appropriate fonn DEA Form 106 and providing summary information on-line to the Office of Diversion Control. (Ex. 7, pp. 89-92.) Respondent Samia Abadier adjusted the estimated amount of missing NORCO to 3,000 tablets, or three jars of 1,000 tablets. (Ex. 7, pp. 89-92.)

(b) On November 12, 2014, Respondent SamiaAbadier filed a supplemental DEA Form 106 with updated inventory establishing that 14,000 tablets, or 14 1,000-countjars ofHC/APAP had been stolen. (Ex. 7, p. 88.)

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(c) In both DEA Form 106 reports, Respondent Samia Abadier attributed the loss of NORCO to Acevedo's theft.

(d) In both DEA Form 106 reports, Respondent Samia Abadier responded to the question "[w]hat security measures have been taken to prevent future theft/loss" as follows by committing to "install extra 2 cameras, put an extra lock to the restroom door." (Ex. 7, pp. 88-89.) In the second submission on November 12, 2014, she added to that list "GETTING A LARGE NARCOTIC CABINETS." (Ex. 7, p. 88.)

14. Respondent Sarnia Abadier rep01ted Acevedo's theft of a total of 14,000 tablets ofNORCO to the Board on November 14, 2014, and attached the DEA Fonn 106. (Ex. 7, pp. 86-87). The Board opened an investigation and on November 20, 2014, requested Respondents St. Mina Pharmacy to provide information related to the reported loss due to employee pilferage. (Ex. 8.) The Board received the additional supporting documents on December 9, 2014. (Ex. 6, p. 77.)

15. Inspector Desai, the Board's designated expert at the hearing, inspected St. Mina's Pharmacy on behalf of the Board on July 13, 2015, requested and reviewed the sales records of HC/AP AP during the audit period, and completed her interviews with Acevedo on August 5, 2015. Shortly thereafter, on August 10, 2015, Inspector Desai issued a written notice of non-compliance to Respondents St. Mina Pharmacy and Respondent Samia Abadier, and a separate notice to Acevedo. Inspector Desai prepared a written report that included her findings and conclusions.

16. Inspector Desai conducted a thorough inspection, which included an audit of inventory of the HC/APAP described above, review of the police report, and interviews with Acevedo, and Respondents Sarnia Abadier and Nader Abadier, as well as pharmacy technicians Kennedy and Peralto, who witnessed the video recording showing of Acevedo concealing the HC/APAP under her skirt. Inspector Desai's recitation of facts is undisputed.

17. (a) During her July 13, 2015 inspection of St. Mina Pharmacy, Inspector Desai spoke to Respondents Sarnia Abadier and Nader Abadier, whose statements are referenced in Inspector Desai's report. Respondent Nader Abadier was on duty during her inspection of July 13, 2015, and Respondent Samia Abadier was reached by phone. (Exs. 6 and 9.)

(b) Although he had limited direct knowledge of the incident, Respondent Nader Abadier reported that on October 31, 2014, Acevedo took the drugs while Respondent Samia Abadier was in the bathroom. He also noted that during her employment Acevedo insisted on taking the trash out. (Ex. 6, p. 79 and Ex. 9.)

(c) Respondent Samia Abadi er repo1ted that Acevedo was scheduled to come in 30 minutes earlier than the other pharmacy technicians because she spoke Spanish. There was no evidence suggesting that Acevedo was ever alone in the pharmacy. With regard to the October 31, 2014 theft, Respondent Samia Abadier repmted that Acevedo took

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the drugs when Respondent Samia Abadier was in the bathroom. With regard to the total diversion of HC/ AP AP discovered, Respondent Samia Abadier surmised that Acevedo stole the tablets either when Respondent Samia Abadi er went to the bathroom or to the lab within the building. The loss was noticed when NORCO became Schedule II because the pharmacy kept a perpetual log of all Schedule II drugs. Respondent Samia Abadi er also reported that she learned from one of her customers that Acevedo was working in another pharmacy, and she contacted the pharmacy immediately to let the pharmacist know of Acevedo's theft. (Ex. 6, p. 79.)4

18. In her report, Inspector Desai found that Respondents St. Mina Pharmacy and Respondent Samia Abadier failed to maintain "operation standards and security" pursuant to California Code of Regulations, section 1714, subdivisions (b) and ( d), which requires each pharmacy to maintain an effective control of the security of the prescription department against theft or loss of controlled substances/dangerous drugs. Inspector Desai based her finding on her audit for the time period between June 13, 2013 and November 5, 2014, which conclusively established that Respondents St. Mina Pharmacy and Respondent Samia Abadier could not account for 54,226 tablets ofHC/APAP. (Ex. 6, p. 83.)

19. (a) Inspector Desai provided credible testimony of the basis of her audit and the factual findings in her report. Inspector Desai is a licensed pharmacist, and has had a total of 17 years in retail pharmacy, six of which was spent as a PIC with Walmart. She has been an investigator with the Board since 2011 and was trained by the Board for her position. The number of missing tablets was notable and concerning. Nevertheless, Inspector Desai's opinion as to what measures should have been implemented to prevent the loss was prone to second-guessing hindsight analysis and not supported by any statistically-valid research about consistent and standardized practices in the pharmaceutical industry during the time NORCO was a Schedule III drug, where the bulk of the diversion of the drugs occurred, most likely from the same employee.

(b) Inspector Desai was aware of the security measures in place at St. Mina Pharmacy at the time of the theft including a motion sensor gate in front of the phaimacy

4 The respective testimony of Respondents Samia Abadier and Nader Abadi er were credible and materially consistent with their previous reports to the police, the DEA, and the Board. They were generally forthright in their testimony, and their testimony was corroborated by documentary evidence. As such, their respective testimonies were afforded great weight. Evidence Code section 780 relates to credibility of a witness and states, in pertinent part, that a court "may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: ... (b) The character of his testimony; ... (f) The existence or nonexistence of a bias, interest, or other motive; ... (h) A statement made by him that is inconsistent with any part of his testimony at the hearing; (i) The existence or nonexistence of any fact testified to by him ...."

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area, most likely one, but less than three security cameras focused on the pharmacy area5,

and requiring the PIC to sign for all orders, although doing so was not required for Schedule III drugs. When it was a Schedule III drug, HC/ AP AP was kept on the counter or in unlocked cabinets. When it became a Schedule II drug, Respondents St. Mina Pharmacy kept it in a locked cabinet with the other Schedule II drugs. Inspector Desai generally agreed that the pharmacy's facilities, space, and fixtures were adequate to secure the pharmacy area from the public, and that the Schedule II controlled substances were under lock and key. Inspector Desai admitted that the Schedule III to V controlled substances were stored in compliance with regulations, but later amended her answer to state that all Schedule III NORCO should have been locked away with the exception of one open container and one additional full container.

(c) Based on the large number of tablets diverted, Inspector Desai, drawing on her experience working in a big pharmacy, opined that Respondents St. Mina Pharmacy and Respondent Sarnia Abadier, as PIC, failed to meet their coextensive obligation to properly secure the drug stock and to account for and safely store every dangerous and controlled substance to avoid theft or diversion. According to Inspector Desai, the pharmacy should have, at a minimum, prohibited purses from being stored in the pharmacy area, and should have been tipped off by Acevedo's insistence that she take out the trash. Inspector Desai' s hindsight analysis of specific measures or warning signs, however, was not persuasive.

20. (a) Respondents relied on the expert testimony of Fred G. Weissman of the University of Southern California (USC) School of Pharmacy to support their position that: ( 1) Respondents St. Mina Pharmacy and Respondent Sarnia Abadi er as its PIC had provided security measures consistent with the pharmacy law and industry standards; and (2) as the PIC, Respondent Samia Abadi er was not responsible under pharmacy law for theft during authorized breaks.

(b) Mr. Weissman, a licensed pharmacist since 1963, received his Pharm.D. degree from, and completed graduate work in pharmaceutical chemistry at, USC School of Pharmacy in 1963 and 1967, respectively. Mr. Weissman also attended Loyola Law School and earned his Juris Doctor in 1989. He has served as an instructor, professor, and an associate dean at USC School of Pharmacy for the bulk of his career, and his current teaching responsibilities includ@ teaching courses in the area of community pharmacy, clinical therapeutics, pharmacy law, pharmacy practice, health care law, and medical controversies and the law. Additionally, Mr. Weissman has served as the Director of Pharmacy Services at St. Mary's Medical Center, and has worked as a staff pharmacist at various hospitals and retail pharmacies in the Los Angeles area. Mr. Weissman has authored 35 publications, including eight editions of Guide to California Community Pharmacy Law and publications addressing the dispensing of opioid prescriptions. Additionally, Mr.

5 The police report referred to the video recording of Acevedo's theft from camera one and camera three, but Nader Abadier represented that there was only one security camera. (Ex. 11, p. 106, and Testimony of Nader Abadier.)

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Weissman has presented more than I 00 lectures at various conferences and continuing education courses.

21. (a) Based upon his experience and credentials, Mr. Weissman's testimony regarding the standards and practices followed by Respondents St. Mina Pharmacy was credited more than the testimony oflnspector Desai. Mr. Weissman generally confirmed that the measures used by the pharmacy were customary as operational security. Other measures, such as keeping purses out of the pharmacy area, were not required by law during the period of time at issue and were not standardized practices. Mr. Weissman confirmed there was nothing in Respondents' practices that was not within the scope of the law at the time or the standard of care. Consistent with Mr. Weissman's testimony, there is no evidence that Respondents failed to follow the law, by, e.g., conducting inventories of the Schedule III and above narcotics every two years as required, and keeping the customer area separate and out of reach of the area reserved for pharmacy staff and dangerous drugs. Mr. Weissman disagreed with the Board inspector's conclusion that the PIC or phannacy had failed in maintaining adequate security measures just because a trusted employee managed to steal. Respondents were entitled to trust Acevedo who was licensed by the Board and did not have any known criminal record.

(b) Mr. Weissman confirmed that PI Cs are not responsible for what occurs during their breaks. Breaks consist of two IO-minute breaks during the day, and one 30 minute lunch break. However, aside from the theft on October 31, 2014, it was not established when the other thefts occurred.

(c) Mr. Weissman's testimony regarding his interpretation of the law was not credited as expert testimony. Overall, the analysis of Respondents' culpability for violating the pharmacy law by failing to maintain adequate security measures, and Respondent Samia Abadier's responsibilities as a PIC, notwithstanding her entitlement to breaks, was less dependent on the expert testimony of either Inspector Desai or Mr. Weissman, than the analysis of the governing law and the application of decisional law to that law, as more fully set forth in the Legal Conclusions.

Mitigation, Rehabilitation and Character Evidence

22. Neither Respondents St. Mina Pharmacy or Respondent Samia Abadier have been been subject to discipline by the Board prior to Acevedo's theft. No losses of any dangerous or controlled substance have been identified since Acevedo's theft was discovered and she was fired on November 5, 2014, either during Respondent Samia Abadier's tenure as a PIC or Respondent Nader Abadier's more recent tenure as a PIC.

23. To her credit, Respondent Samia Abadier conceded, albeit reluctantly, her limited responsibility as the PIC for her lax handling of the one 1,000-unit bottle ofNORCO Acevedo stole on October 31, 2014. Respondent Samia Abadier admitted during her testimony that she had placed the NORCO bottle on the counter outside of the storage locker and went to the restroom before leaving the pharmacy. It was her usual practice to remove the NORCO from the counter and place it back in the locker before leaving. Respondent

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Samia Abadier did not consider the possibility that Acevedo was watching her go to the restroom, and respondent Samia Abadi er did not check the counter when she came back from the restroom to gather her purse before leaving the pharmacy. She assumed the NORCO was secure because the pharmacy was locked after closing.

24. (a) Both Respondent Samer Abadier and Respondent Nader Abadier provided credible testimony about the measures in place at Respondents St. Mina Pharmacy to retain competent and trustworthy employees at the time of the discovery of the theft of NORCO in early November 2014.

(b) Prior to the theft, the evidence established that Respondents St. Mina Pharmacy and Respondent Samia Abadier secured background checks on their employees. Respondent Nader Abadier reviewed Acevedo's resume and interviewed her. He also conducted a background check on Acevedo with the Department of Homeland Security and checked her license history with the Board. He did not receive a response from the Department of Homeland Security, which meant that Acevedo did not have a criminal record. The Board website established that Acevedo's license was clear, meaning there was no record ofpast or pending discipline (Nader Abadier testimony and Ex. H.)

(c) In mitigation, Respondents' trust in Acevedo was understandable. As noted above her background check was clear; her conduct before the theft was discovered did not raise any suspicions. Others were also easily fooled. For example, after the theft was discovered and Acevedo fired, Acevedo secured employment in January 2015 with another neighborhood pharmacy that predominately dispensed prescriptions for clinic patients and had very limited "formulary" drugs in stock. (Ex. 6, p. 81.) Acevedo's new employer thought highly of her and found the allegations against her difficult to believe. (Ex. 6, p. 82). As a result, Acevedo remained with her new employer until Complainant sought discipline against her license, which was subsequently revoked. 6

25. (a) Concurrent with the reclassification of NORCO from a schedule III to a schedule II drug and as a result of Acevedo's theft and its audit, Respondents St. Mina updated its security procedures.

6 The findings of the Board's Decision and Order establish that Acevedo was convicted, on a plea of nolo contendere, on or about May 6, 2015 of one misdemeanor count of violating Penal Code section 487, subdivision (a) (grand theft of personal property for her grand theft of the controlled substance), relating to her theft of the NORCO at St. Mina Pharmacy. (Super. Ct. San Bernardino County, 2015, No. FWY 1404871.) Respondent was sentenced to serve 15 days in County Jail and placed on three years' probation with terms and conditions. The Board considered the circumstances of her conviction to be the theft of approximately 14,000 Norco tablets. The findings also established that Acevedo was arrested on or about August 22, 2013, for purchasing Methamphetamine.

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(b) Prior to the discovery of Acevedo's theft, the pharmacy area was secured from customers with a motion sensor gate, and limited the order and receipt of Schedule III to V controlled substances to the phannacist, kept the Schedule II drugs under lock and key, with only the pharmacists being able to access them. The PIC was the only one to receive and initial invoices for NORCO even though it was not required at the time. (Ex. B.) The PIC was also the only one permitted to unpack dangerous or controlled substances at the time of the theft, even though such conduct was not required as well. (Samia Abadier testimony.)

(c) Since discovery of Acevedo's theft in 2014, Respondents St. Mina have strengthened their existing, as well as implemented new, security measures to guard against internal thefts, including the following: (1) ordering Schedule II controlled substances in containers of less than 500 units, if available; (2) maintaining perpetual inventory of HC/APAP as required by it reclassification as a Schedule II drug; (3) in addition to the required perpetual inventory, taking physical inventories of Schedule II controlled substances "each Monday, prior to opening of business, the results of which shall be compared with the most recent prior inventories, and any unexplained loss shall be reported to the DEA and the Board of Pharmacy," and conducting inventories twice weekly for fast-moving items; (4)

· storing Schedule II·controlled substances in locked cabinets and drawers as required even for "will call" prescriptions that are ready for pick up; (5) installing eight security cameras to be reviewed by the owner or PIC "when deemed appropriate" with a wireless security system that operates even if the telephone line is cut; (6) installing an additional motion sensor; and (7) storing large purses or backpacks outside of the secured pharmacy area. (Ex. C and Nader Abadier testimony.) Respondents St. Mina Pharmacy also now update their employees' background checks monthly,.and keep a comprehensive file for each employee, which includes their initial background check with the Depaiiment of Homeland Security and the Board, in addition to documentation of necessary medical protocol, drug abuse, and privacy training. (Nader Abadier testimony.)

26. Respondent Samia Abadier has extensive experience in the field of pharmacy. Respondent Samia Abadier began her career in her birth country of Egypt where she practiced as a pharmacist for 20 years, including as the equivalent of a PIC for 10 years. Before her ownership of St. Mina Pharmacy and her work as a PIC at that pharmacy, she worked as an intern and a pharmacist at two other pharmacies without incident. St. Mina Pharmacy opened in 2011 and its first inventory was conducted in June 2013, as required.

27. Prior to the theft, Respondent Samia Abadi er had an exemplary record as a pharmacist and never experienced a loss of inventory or theft. There was no evidence or allegation that either Respondent Samia Abadier or St. Mina Pharmacy failed to conduct the biennial inventory required at that time. During the 17-month period of the Board's inventory of Respondent St. Mina Pharmacy, from June 1, 2013 through just prior to November 5, 2014, the laws did not require a routine inventory of Schedule III to V drugs, which NORCO was until October 6, 2014. At St. Mina Pharmacy, Respondent Samia Abadier was dealing with what she referred to as "fast moving medication." She was dispensing a lot of medication from the shelf and was ordering medication every two weeks. It was hard to know if something was missing on the shelf because there was always some

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Schedule III to V drugs on the shelf. Respondents Samia Abadier and St. Mina Pharmacy discovered the extent of the missing NORCO as a result of the theft shortly after it became a Schedule II drug and was subjected to a more rigorous inventory.

28. On her own behalf, Respondent Samia Abadier testified to her long-term marriage of 30 years to Respondent Nader Abadi er, and their two children, aged 30 and 28. She no longer is the PIC of St. Mina Pharmacy, but remains an owner.

29. (a) Respondent Samia Abadier submitted six character letters from clergy, colleagues, and former employees, who describe her as an ethical, committed, generous, lmowledgeable, and well-respected member of the community and profession, and who do not believe she should be disciplined for Acevedo's illegal actions. Six letters are described below.

(b) Ikechi 0. Obioch, M.D., of the Pinnacle Medical Group in Fontana, California, in a letter dated July 6, 2016, wrote of her familiarity with Respondent Samia Abadier beginning with her work in the same facility, over a period of six years. She was aware of the missing NORCO "incident that took place several months ago," and can "assure" the Board that Respondent Samia Abadi er "had nothing to do with it. The incident took place before norco was changed to a Schedule 2 medication ( at the time, norco was not required to be under the secure lock as it is now and my understanding is that the missing medication was probably an inside job by a temporary pharmacy technician who worked there at the time). Since it is too late to track down the missing medication with I00% precision and accuracy, I humbly request that you kindly have some clemency regarding the unfortunate situation and please allow Samia Abadier to continue her phannacy job as usual." (Ex. E, p.4.) Dr. Obioch supports her reference by her statement: "I refer a large percentage of my patients to her pharmacy due to her high ethical standards, magnanimity and conscientiousness. I can vouch that she provides top quality services to her clients as I go to the pharmacy personally to see how the place is operating." (Ibid.)

(c) Father Mina Girgis, Priest of Saint Maurice Coptic Orthodox Church in a letter dated July 5, 2016, states that he has known Respondent Samia Abadier for 10 years as a "nice, kind, generous, polite and respectful lady" who had served in the church community with "dedication and commitment in her service. She is loved and respected by everyone around her." (Ex. E, p. l.)

(d) John Kolta, RPH, PIC and CEO of Trinity Pharmacy in Glendora, California, wrote on June 30, 2016, that he has known Respondent Samier Abadier for 25 years as a friend and colleague. He "can vouch personally for her character as a highly ethical and responsible person," with ethics that are "always about doing what is right, what is correct and what is ethical." He writes: "She is a pharmacist to whom I would blindly tr·ust my pharmacy to run, fully knowing that she will do all that is in her power for the good of the pharmacy." (Ex. E, p. 2.)

(e) Licensed pharmacy technician and St. Mina Pharmacy employee, Ms. Kennedy, in an undated letter, wrote that she worked with Respondent Samia Abadier since

13

2009 in two different pharmacies and there was "never a question about her professionalism, work ethic, or managerial techniques or honesty." She observed her to be a "fair and conscientious supervisor," and found it "objectionable that she is now under scrutiny regarding her managerial skills for something that was an oversight," specifically because, " [ e ]mployers are supposed to be able to trust their employees completely, and not have to worry about deceitful acts." (Ex. E, p. 3.)

(f) Ms. Peralta, a licensed pharmacy technician and employee of St. Mina Pharmacy, who was interviewed by Investigator Desai, and was aware of the Accusation, wrote in a letter dated July 7, 2016, of her positive experience with Respondent Samia Abadier, whom she has known as an employee beginning in March 2013 and as an extern. She considered her a "wonderful teacher," and a caring, honest and "magnificent" boss. (Ex. E, p.5.) Ms. Peralta maintained that Respondent Sarni Abadier was one of the "best boss/supervisor to work with" and that her management skills should not be judged by her former employee's mistakes; "she should be able to trust her employees." (Ibid.)

(g) A sixth letter from Inas M. Awad, who was aware of the Accusation against Respondent Samia Abadier, is highly favorable, but the letter is not dated and does not identify the individual's position or relationship, and as such was given less weight. Like other references this one wrote of Respondent Samia Abadier's integrity, honesty, and commitment to the field of pharmacy. (Ex. E, p.6.)

30. Respondents Samia Abadier and Nader Abadier earned continuing education credit by completing a six-hour course on September 8, 2015, before the Accusation was issued, entitled "Joint Training by the Board of Pharmacy and DEA." (Ex. D.)

Costs ofProsecution

31. The Board incurred investigation costs in the amount of $11,101.75, and prosecution costs as of June 6, 2018, in amount of $6,962.50, for total costs of $18,064.25. These costs are reasonable pursuant to Business and Professions Code section 125.3. Respondents did not contest the reasonableness of these costs.

LEGAL CONCLUSIONS

Parties' Contentions

1. As a result of the theft of, or failure to account for, 54,226 tablets of NORCO between June 1, 2013 and November 5, 2014, Complainant contends that Respondents St Mina Phannacy and Respondent Samia Abadier, as the PIC, failed to maintain effective control of the security of the prescription department against theft or loss of controlled substances and dangerous drugs. As to Respondents St. Mina Pharmacy, Complainant states a first Cause for Discipline for lack of operational standards and security under Business and Professions Code (Code) section 4301, subdivision (o), in conjunction with California Code of Regulations, title 16, (Regulations), section 1714, subdivision (b). As to Respondent

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Samia Abadier, Complainant states a Second Cause for Discipline for lack of operational standards and security under Code section 4301, subdivision (o), in conjunction with Code section 4113, subdivision (c), and Regulations, section 1714, subdivision (d). If discipline is imposed on Respondent Samia Abadier or Respondents' St. Mina Pharmacy's permit pursuant to Code section 4307, Complainant requests that Respondents St. Mina Pharmacy and Respondent Samia Abadier be prohibited from serving as owners, managers, officers and directors, administrators, etc., of a licensee for five years.

2. Respondents maintain that Complainant has failed to meet her burden of proof and that the weight of the evidence establishes their compliance with the pharmacy law in their maintenance and security of the prescription department. Respondents maintailjl that that the loss of controlled substances alone does not constitute a violation of the pharmacy law. They maintain that Inspector Sejai's conclusion of such violation is erroneous because, among other things, she has not identified any specific security measures that were lacking. With regard to Respondent Samia Abadier, Respondents maintain that Code section 4115, in conjunction with Labor Code section 512 and Regulations, section 1714, subdivision ( d), allows for the temporary absence of the pharmacist, during which she has no liability for theft. According to Respondents, it was established that one theft occurred when Respondent Samia Abadier was in the bathroom, and it was not established that the other thefts occurred when she was not on legitimate breaks. As such, Respondents argue that it is Complainant's burden to prove that the NORCO was stolen while Respondent Samia Abadier was on duty by clear and convincing evidence, and Complainant was unable to do so.

(c) In reply, Complainant argued that the defense Respondent offers is contrary to the very responsibilities of the PIC under the pharmacy law, and that Respondent Samia Abadier is not entitled to escape responsibility for the actions of her employees by merely alleging that the thefts occurred during authorized breaks. Complainant, citing to Vt. & I00 Med. Arts Pharmacy v. Bd. ofPharmacy (1981) 125 Cal.App.3d 19, 25·16, further asserts that to allow Respondent Samia Abadier to abdicate her responsibility as a PIC would be contrary to the trust imposed in her as a professional.

Applicable Law

3. Respondent Samia Abadier pharmacist's license is a professional license. In this proceeding based on an Accusation, the burden ofproof is on Complainant to establish alleged violations by "clear and convincing proof to a reasonable certainty." (Ettinger v. Board ofMedical Quality Assurance (1982) 135 Cal.App.3d 853, 856; Sternberg v. California State Board ofPharmacy (2015) 239 Cal.App.4th 1159, 1171 (Sternberg). This means the burden rests on Complainant to establish the charging allegations by proof that is clear, explicit and unequivocal • so clear as to leave no substantial doubt, and sufficiently strong to command the unhesitating assent of every reasonable mind. (In re Marriage of Weaver (1990) 224 Cal.App.3d 478.)

4. In contrast, St Mina's Pharmacy's permit is a nonprofessional license, because it does not have extensive educational, training, or testing requirements similar to a professional license. (See Mann v. Dept. ofMotor Vehicles (1999) 76 Cal.App.4th 312,319;

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San Benito Foods v. Veneman (1996) 50 Cal.App.4th 1889, 1894.) An applicant for a pharmacy permit need not be a pharmacist, even though Respondents Samia and Nadar Abadier are in this case; instead, the applicant must designate a PIC with the requisite education, training, and licensure. (Code§§ 4110, subd. (a), 4113, subd. (a).) To impose discipline on St. Mina Pharmacy's nonprofessional phannacy permit, Complainant must prove cause for discipline by a preponderance of the evidence, which is a lower standard of proof than clear and convincing evidence. (Imports Performance v. Dept. ofConsumer Affairs, Bureau ofAutomotive Repair (2011) 201 Cal.App.4th 911, 916-917 (Imports Performance); Evid. Code, §115.) A preponderance of the evidence means "'evidence that has more convincing force than that opposed to it.' [Citation.]" (People ex rel. Brown v. Tri­Union Secifoods, LLC (2009) 171 Cal.App.4th 1549, 1567.)

5. Under Code section 4300, subdivision (a), the Board may suspend or revoke a license or registration.

6. Code section 4301 states, in pertinent part, that the Board shall take action against any holder of a license who is guilty of unprofessional conduct, which includes, but is not limited to:

(o) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provision or term of this chapter or of the applicable federal and state laws and regulations governing pharmacy, including regulations established by the board or by any other state or federal regulatory agency.

7. Code section 4113, subdivision (c), provides as follows:

(c) The pharmacist-in-charge shall be responsible for a pharmacy's compliance with all state and federal laws and regulations pertaining to the practice of pharmacy.

8. Code section 4115, subdivision (b) provides,

(a) A pharmacy technician may perform packaging, manipulative, repetitive, or other nondiscretionary tasks only while assisting, and while under the direct supervision and control of, a pharmacist. The pharmacist shall be responsible for the duties performed under his or her supervision by a technician.

(b) This section does not authorize the performance of any tasks specified in subdivision (a) by a pharmacy technician without a pharmacist on duty.

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(g) Notwithstanding subdivisions (a) and (b), the board shall by regulation establish conditions to permit the temporary absence of a pharmacist for breaks and lunch periods pursuant to Section 512 of the Labor Code and the orders of the Industrial Welfare Commission without closing the phannacy. During these temporary absences, a pharmacy technician may, at the discretion of the pharmacist, remain. The pharmacist shall be responsible for a pharmacy technician and shall review any task perfonned by a phannacy technician during the pharmacist's temporary absence.

9. Code section 4307, subdivision (a), provides as follows:

(a) Any person who has been denied a license or whose license has been revoked or is under suspension, or who has failed to renew his or her license while it was under suspension, or who has been a manager, administrator, owner, member, officer, director, associate, partner, or any other person with management or control of any partnership, corporation, trust, firm, or association whose application for a license has been denied or revoked, is under suspension or has been placed on probation, and while acting as the manager, administrator, owner, member, officer, director, associate, partner, or any other person with management or control had knowledge of or knowingly participated in any conduct for which the license was denied, revoked, suspended, or placed on probation, shall be prohibited from serving as a manager, administrator, owner, member, officer, director, associate, partner, or in any other position with management or control of a licensee as follows:

(1) Where a probationary license is issued or where an existing License is placed on probation, this prohibition shall remain in effect for a period not to exceed five years.

(2) Where the license is denied or revoked, the prohibition shall continue until the license is issued or reinstated.

10. Regulations, section 1714, provides, in pertinent part:

[,r ... ,n (b) Each pharmacy licensed by the board shall maintain its facilities, space, fixtures, and equipment so that drugs are safely and properly prepared, maintained, secured and distributed. The pharmacy shall be of sufficient size and unobstructed area to accommodate the safe practice of pharmacy.

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(d) Each pharmacist while on duty shall be responsible for the security of the prescription department, including provisions for effective control against theft or diversion of dangerous drugs and devices, and records for such drugs and devices. Possession of a key to the pharmacy where dangerous drugs and controlled substances are stored shall be restricted to a pharmacist.

Analysis ofCharges in Accusation

11. In support of their respective positions both Complainant and Respondents cited Sternberg, supra,, in which the Court of Appeal affirmed a decision by tj1e Board disciplining the license of Andrew Sternberg, a PIC, following his discovery of the widespread theft of dangerous drugs committed by a pharmacy technician that Mr. Sternberg supervised. In that matter, Mr. Sternberg served as a PIC at a Target store pharmacy from September I, 2006 to August 31, 2008. During that time, a pharmacy technician stole at least 216,630 tablets of NORCO from the pharmacy. The pharmacy technician accomplished the theft by placing orders ofNORCO for up to 3,000 tablets (six bottles with 500 tablets per bottle), which was a drug Target pharmacy did not sell, and arranged for the orders to be delivered to the pharmacy on days she was scheduled to work. During the two year period, the pharmacy technician, on approximately 85 occasions, placed orders of3,000 pills ofNorco. When the orders arrived, the phannacy technician would remove the six bottles, hide them in the storeroom, and destroy the packing invoice. During the pharmacist on-duty's breaks, the pharmacy technician would remove the bottles of NORCO from the storeroom and take them out to her car. Mr. Sternberg discovered the theft when he found a bottle of NORCO in the storeroom and notified Target management. Target initiated a loss prevention investigation and eventually caught the pharmacy technician on surveillance. Target had the pharmacy technician arrested.

12. The Accusation against Mr. Sternberg alleged, among other things, that he violated Regulations, section 1714, subdivision (b), by failing to secure the pharmacy from theft. After a hearing, the ALJ issued a proposed decision finding Mr. Sternberg culpable and proposed to publicly reprove him. The Board rejected that decision and instead revoked Mr. Sternberg's pharmacist's license, stayed the revocation, and placed his license on probation for three years with specific conditions. In determining the appropriate discipline for Sternberg, the Board considered the Disciplinary Guidelines pertinent to his additional referenced violations of Code 4081, 4059.5 and Regulation 1718, which fell under Category III of the Board's Disciplinary Guidelines. ·

13. The Sternberg court stated generally that the PIC's responsibility pursuant to Code section 4113, subdivision (c), to ensure compliance with the pharmacy laws was inclusive of specific Code violations. In that case, Code section 4081, pertaining to recordkeeping and inspection, was at issue, but the Sternberg court's analysis is equally applicable to the violations in this case.

The Board's interpretation [that the pharmacist in charge need not have knowledge of the pharmacy technician's thefts in order to impose licensing discipline] ... supports the purpose of protecting the

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public by encouraging pharmacists-in-charge to take necessary precautions to adequately supervise and maintain the inventory of dangerous drugs. (§ 4001.1 ['Protection of the public shall be the highest priority for the California State Board of Pharmacy in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.']; see Khan, supra, 12 Cal.App.4th at p. 1845, 16 Cal.Rptr.2d 385 [refusing to imply knowledge requirement in medical licensing statute, which served the purpose of protecting the public].) And imposing strict liability is consistent with other cases imposing strict liability under other licensing statutes. (See Margarito v. State Athletic Com. (2010) 189 Cal.App.4th 159, 168-169, l 16_Cal.Rptr.3d 888 [collecting cases]; see also Brodsky v. Cal. State Ed. of Pharmacy (1959) 173 Cal.App.2d 680, 682, 691, 344 P.2d 68 (Brodsky) [refusing to imply knowledge requirement in now­repealed pharmacy statute that provided that 'any person who permits the compotmding of prescriptions or the selling of drugs in his pharmacy except by a registered pharmacist is guilty of a misdemeanor... '].)" (Emphasis added.)

(Sternberg, supra, 239 Cal.App.4th at 1166-1168.)

14. (a) In discussing Regulations, section 1714, subdivision (b), the Sternberg court agreed with the Board's conclusion that Mr. Sternberg "was responsible for ensuring that the pharmacy maintained and secured its drugs from diversion and theft," and that the pharmacy's facility, space, fixtures, or equipment were not "maintained in any way to preventthe [internal] thefts." (Sternberg, supra, 239 Cal.App.4th at 1170.) The court noted that the pharmacy technician committed the thefts when she was unsupervised, demonstrating the lack of control Mr. Sternberg maintained over his inventory, specifically deliveries and invoices as required under Code section 4081.

(b) The court acknowledged the Board failed to prove that Sternberg failed to maintain the facilities' space and fixtures for the safe practice of the pharmacy by having an unobstructed area or by using locked cabinets or drawers for Schedule II or III drugs. Given the elaborate scheme used by the pharmacy technician the drugs never entered the pharmacy area to be stored and locked. Interpreting "licensing statutes broadly," the court interpreted Regulations section 1714, subdivision (b), to include the pharmacy's telephone ordering system, and found that Sternberg violated this Regulation by sharing the password to access the telephone ordering system offsite and after hours, "which Sternberg failed to audit." (Id., p. 1171.) The court concluded that the theft could have been averted if Sternberg had "restTicted access to the passcode or put in place measures to ensure employees placed orders only through the pharmacy's phone system". (Id.)

(c) In discussing Regulations section 1714, subdivision ( d), consistent with the PI C's duty to provide effective controls against theft, the court found that Sternberg

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"implemented no controls to prevent theft," including "the lack of supervision when the pharmacist was on break, and the failure to conduct random checks of deliveries and invoices." (Sternberg, supra, 239 Cal.App.4th at 1171.) The cotni also found that the pharmacy technician's "extensive and prolonged theft was'itselfsubstantial evidence that Sternberg failed to properly oversee the operations of the pharmacy, and the Board could have concluded that theft would have been averted if he supervised and randomly audited drug deliveries, conducted checks of his staffs work, and actively participated in the inventory and delivery process." (Id. at p. 1172.) The court was not persuaded by Sternberg's expert because the Board was entitled to reject "community custom" as mere evidence of the standard of care," and rely on its expert's confirmation that the PIC is responsible for overseeing the operations of the pharmacy and complying with the pharmacy law. (Id.)

15 (a). Based upon the authority of Sternberg, Complainant proved by clear and convincing evidence that Respondent Samia Abadier failed to meet her responsibilities as a PIC. The factual circumstances presented here regarding Respondent Samia Abadier and Acevedo's theft are markedly different than those presented in Sternberg, but the principles remain applicable. Acevedo was a trusted employee, like the employee in Sternberg. Acevedo's scheme, however, unlike the pharmacy technician's scheme in Sternberg, was simple and did not evade the usual inventory supply system of the pharmacy. Acevedo simply stole when the opportunity presented itself. Although neither Complainant nor Respondents were able to pinpoint the source for all of the missing 54,226 tablets of NORCO, Acevedo is most likely responsible for the entire loss. Nevertheless, as with Sternberg, the sheer number of missing tablets, is evidence that Respondent Samia Abadier's oversight was not effective prior to NORCO becoming a Schedule II controlled substance and that random audits would have uncovered the diverted or missing NORCO tablets earlier.

(b). Nor under Sternberg is Respondent Samia Abadier relieved her responsibility for oversight because she is entitled to breaks. Respondent Samia Abadier is required as a PI C to take appropriate measures to secure the pharmacy from theft during her absences. In addition, Respondent Samia Abadier was not only absent from the phannacy area during legal breaks. She spent time with her back to the pharmacy area serving customers, away from the pharmacy area at the lab, or assisting customers by accompanying them to their cars. There is nothing in the record demonstrating that Respondent Samia Abadier had any specific measures in place to prevent the theft of NORCO when she was not in the pharmacy area or not on duty.

Causes for Discipline

Respondents St. Mina Pharmacy

16. (a) Cause does not exist to discipline Respondents St. Mina Pharmacy, as owner, for deficient operational security. Complainant did not meet her burden ofproof that the pharmacy facility was inadequate under Regulations, section 1714, subdivision (b), for the safe practice of pharmacy. The pharmacy area was separated from the public, and the

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Schedule II drugs were maintained in locked cabinets. The pharmacy area was equipped with a camera and a motion sensor during the theft. Respondent Samia Abadier was the only person who signed for deliveries of NORCO and stocked the shelves. All NORCO delivered was stacked on the shelves, or when required by law, locked in closed cabinets. Complainant provided no evidence that the keys to those cabinets were shared with any pharmacy technician. The evidence also established that in addition to providing an appropriate and secure pharmacy facility, Respondent Nader Abadi er as co-owner did institute measures to investigate potential employees, including vetting their names with the Department of Homeland Security and the Board. Based upon the persuasive testimony of Nader Abadier and the expert testimony ofl\11.r. Weissman, the pharmacy met the protocols for safe operation. Notwithstanding Respondents Mina Pharmacy's maintenance and safe operation of the pharmacy, Respondents St. Mina Pharmacy is vicariously responsible for the conduct of its PIC SamiaAbadier. (Findings 19(b), 21(a), 24 and 25.)

(b) Cause exists to discipline Respondents St. Mina Pharmacy, as owner, based on Respondent Samia Abadier's violation of Regulations section 1714, subdivision (d). Respondents St. Mina Pharmacy, as Respondent Samia Abadier's employer, is also subject to discipline for her violation of the regulation. 7 (Arenstein v. California State Ed. ofPharmacy (1968) 265 Cal.App.2d 179, 192-93, overrnled on another point as stated in Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652,658 [corporation's license subject to discipline for the violations of its agents or employees]; see also California Assn. ofHealth Facilities v. Dept. ofHealth Services (1997) 16 Cal.4th 284,296 ["[A] licensee will be held liable for the acts of its agents ...."].)

Respondent Samia Abadi er

17. (a) Cause exists to discipline the license of Respondent Samia Abadier as PIC based on her violation of Regulation section 1714, subdivision (d). The evidence established that Respondent Samia Abadier took certain precautions, by signing all deliveries for the NORCO and stocking them on the shelves. As PIC, Respondent Samia Abadier failed to appropriately supervise the pharmacy technicians and to randomly audit the drugs delivered and stacked on the shelf. Despite the differences in the factual circumstances, the principles established in Sternberg compel a detennination that as PIC, Respondent Samia Abadier is responsible for the theft, diversion or missing 54,226 tablets of NORCO. While Respondent Samia Abadier's trnst in Acevedo is understandable, under the authority of Sternberg that trust does not excuse her from safeguarding the drugs in the pharmacy.

7 The Accusation does not specifically name Respondents St. Mina Pharmacy as a liable party in the Second Cause ofDiscipline. However, as Respondents St. Mina Pharmacy was informed pf the substance of the charge and afforded basic, appropriate elements of procedural due process, the variance between the Accusation and the proof is immaterial. (See Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 212-213, citing Cal. Code Civ. Proc. § 469 [respondent not entitled to complain of variance between administrative pleadings and proof if procedural due process requirements are satisfied].)

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(b) Respondents' argument that the PIC is not responsible during her breaks ignores the overall responsibilities of the PIC. As the PIC, Respondent Samia Abadier does not abandon her oversight responsibilities because she is entitled to take two 10 minute breaks, and one 30 minute break. According to Sternberg, supra, as the PIC she is required to anticipate her absences from the prescription area for any reason, by, among other things, conducting random audits of controlled substances like NORCO, or planning for supervision while she was on break. (Legal Conclusion, 14( c ). ) Respondent Samia Abadier's failure to store the NORCO before taking her restroom break, and her failure to correct her mistake prior to the open of business on Monday is evidence of her lax oversight. Notwithstanding her scheduled breaks, a clear reading of Code section 4113, subdivision (c), in concert with Regulations, section 1714, subdivision (d), requires the PIC to take precautions such that theft does not occur during her absence from the prescription pharmacy area for any reason, including scheduled breaks.

Appropriate Level ofDiscipline

18. A determination that cause exists to suspend or revoke Respondents' licenses does not end the inquiry. Such cause may be overcome with substantial, persuasive evidence of rehabilitation and good character. The Board has compiled a list of 15 factors to evaluate whether a licensee has been rehabilitated from prior misconduct. That list, found in A Manual ofDisciplinary Guidelines and Model Disciplinary Orders (Revised 2/2017) (Disciplinary Guidelines), and which is incorporated by reference into the Board's regulations, 8 applies as follows:

(1) Actual or potential harm to the public. Here, the theft of dangerous drugs from Respondents St Mina Pharmacy was extensive, involving over 52,000 tablets and approximately 52 bottles of NORCO, primarily during the period when it was a Schedule III dangerous drug. When NORCO became a Schedule II drug at least 2,000 tablets were diverted. The ingestion of NORCO could have potentially harmed members of the public who consumed them without the express guidance and instruction of a physician.

(2) Actual or potential harm to any consumer. There was no evidence of actual harm to any specific consumer. However, NORCO is a highly valued street drug, potentially harmful to any consumer and it was stolen for distribution to consumers.

(3) Prior disciplinary record, including level ofcompliance with disciplinary order(s). Respondents St. Mina Pharmacy and Respondent Samia Abadier have no prior disciplinary records.

(4) Prior warning(s), including citation(s) andfine(s), letter(s) of admonishment, and/or correction notice(s). Respondents St. Mina Pharmacy and Respondent Samia Abadier did not receive any prior warnings from the Board or the DEA of any inadequacy in their policies or practices.

8 Cal. Code Regs., tit. 16, § 1760. 22

(5) Number and/or variety ofcurrent violations. Complainant set forth one cau~e for discipline for Respondents St. Mina Pharmacy and one cause for discipline for Respondent Samia Abadier in the Accusation, for the failure to provide operational security designed to prevent drug theft or losses over a 17-month period.

(6) Nature and severity ofthe act(s), offense(s) or crime(s) under consideration. Although Respondent Samia Abadier' s lapses led to the theft of a large amount of NORCO, the amount was not staggering compared to the losses in Sternberg, and the specific offenses, i.e., the failure of Respondent Samia Abadi er as PIC to exercise oversight of Acevedo and take appropriate measures to secure the pharmacy to prevent the loss of dangerous and controlled substances , constitute a mix of Category I and Category II violations, especially considering that NORCO was classified as a Schedule III drug during most of the audit period.

(7) Aggravating Evidence. None

(8) Mitigating Evidence. The theft was the result of a deliberate and calculated act by Respondents' employee, Acevedo, who earned and then exploited their trust. Respondents fully cooperated with the police, the DEA and the Board to report the theft, and to audit the pharmacy. Respondents St. Mina Pharmacy had adequate security for the facility, but as a result of Acevedo's theft, additional security measures were implemented to ensure against theft or diversion of dangerous drugs or controlled substances in the pharmacy. After the discovery of Acevedo's theft there has been no evidence of losses of dangerous drugs or controlled substances. Respondent Samia Abadier has stepped aside as PIC of St. Mina Pharmacy and Respondent Nader Abadier is now PIC. (Findings 12-17, 2l(a), 22, 24 and 25.)

(9) Rehabilitation Evidence. Respondents St. Mina Pharmacy have instituted a variety oflaudable and extensive security measures to prevent such losses in the future. They conduct ongoing background checks of their employees. Respondents Samia Abadi er and Nader Abadier have taken a six unit course with the Board and DEA. Respondent Abadier has also demonstrated rehabilitation through the character letters of individuals who endorse her dedication, and professionalism. (Findings 22-30.)

(10) Compliance with terms ofany criminal sentence, parole, or probation. This factor is not applicable.

(11) Overall criminal record This factor is not applicable.

(12) ifapplicable, evidence ofproceedings for case being set aside and dismissed pursuant to section 1203.4 ofthe Penal Code. This factor is not applicable.

(13) Time passed since the act(s) or offense(s). The violations and drug losses were discovered in November 2014. Respondents have not committed any disciplinary violations since that time.

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(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 ofor knowingly participated in such conduct. Respondents' conduct was negligent in that Respondent Samia Abadier as PIC placed too much trust in Acevedo and failed to institute adequate controls to ensure against internal theft. Respondents' failure to detect the theft earlier did not demonstrate incompetence. Respondents appear to have been blind-sided by their inordinate trust in their employee. However, once Respondents were alerted to Acevedo's theft, they took action to report it to the police, the DEA, and the Board, determine its scope and prevent its recurrence.

(15) Financial benefit to the respondent from the misconduct. No evidence suggests Respondents financially benefitted from the misconduct. To the contrary, respondent Pharmacy suffered financial loss because it paid for over 54,226 tablets of NORCO it did not sell.

19. ( a) According to the Disciplinary Guidelines, Respondents' Samia Abadier' s violation of Regulations, section 1714, subdivision ( d), is a Category I to II violation. A Category I violation warrants discipline ranging from one year of probation with conditions to revocation. A Category II violation warrants discipline ranging from three years ofprobation with conditions, or five years of probation with conditions where self­administration or diversion of controlled substances occurred at the licensed premises, to revocation.

(b) The task in disciplinary cases is preventative, protective, and remedial, not punitive. (In re Kelley (1990) 52 Cal.3d 487.) Indeed, the level of discipline imposed by the Board in Sternberg, which involved the theft or diversion of216,630 tablets of dangerous drugs, was three years of probation, evidencing a departure from the Disciplinary Guidelines, which required a minimum of five years of probation. In the instant matter, which involved the theft or diversion of far fewer drugs, 54,226 tablets, a departure from the Disciplinary Guidelines is also warranted. Specifically, a lower level of discipline is sufficient to protect the public for the following reasons: the violations committed by Respondent Samia Abadier and also attributed to Respondents St. Mina Pharmacy through their agency, in comparison to the violations outlined in Sternberg, are limited; Respondents' lack of prior record of discipline; their reporting of the theft to the police, the Board, and the DEA and their cooperation with the Board; the extensive internal security measures Respondents St. Mina Pharmacy have instituted and followed over the last several years to prevent employee theft; the high regard for Respondent Samia Abadier from her staff and members of her community; and the importance ofRespondent Samia Abadier and Respondents St. Mina Pharmacy as a trusted community pharmacy.

(c) With regard to Respondent Samia Abadier who was directly responsible for implementing security measures as the PIC, a probationary period of three years of discipline is sufficient to protect the public. This three-year period will ensure that Respondent Samia Abadier will learn to use the corrective measures Respondents' St. Mina Pharmacy have implemented after discovery of the thefts.

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(d) With regard to Respondents' St. Mina Pharmacy, their violation of the pharmacy law is limited to their role as Respondent Samia Abadier's employer. After Acevedo's theft was discovered, Respondents St. Mina Pharmacy implemented more stringent security measures and employee background checks, and it is unlikely that internal thefts will occur again. For these reasons, the public will be adequately protected by a public reprimand of Respondents' St. Mina Pharmacy's permit. (Findings 22-30.)

20. For the same reasons, and given the unlikelihood internal thefts will occur again in light of the stringent security measures in place, the public will be adequately protected if Respondent Samia Abadier chooses to work as the PIC of Respondents St. Mina Pharmacy during the period ofprobation, particularly given the Board's substantial overall probationary oversight of her. As such, Probation Condition No. 7 as to Respondent Samia Abadier as set forth in the Order below, shall not apply to her work at Respondents St. Mina Pharmacy.

21. Further, Complainant seeks to prohibit Respondent Samia Abadi er from serving as a manager, administrator, members, officer, director, trustee, associate, or partner of any additional business, firm, partnership, or corporation licensed by the Board for five years pursuant to Code section 4307 (Legal Conclusion 9), because her license has been disciplined. However, Code section 4307 is limited to those situations where the respondent "had knowledge of or knowingly participated in any conduct for which the license was denied, revoked, suspended." This is not the situation here. There is no evidence that Respondent Samia Abadier had knowledge of Acevedo's theft. Accordingly, Code section 4307 will not be enforced against Respondent Samia Abadier, and Probation Condition entitled "No Ownership of Licensed Premises" shall not be included in the Order below.

Statement ofIssues

22. In a proceeding involving the issuance of a license, the burden of proof is on the applicant to show that he or she is qualified to hold the license. The standard ofproof is a preponderance of the evidence. (See California Administrative Hearing Practice (Cont.Ed.Bar 2d ed. 1997) The Hearing Process, §§ 7.51-7.53, pp. 365-367 and the cases cited therein.) Respondents St. Mina Pharmacy #2's application for a community pharmacy was filed close to three years ago. The Board rejected their application based upon the Board's investigation of Respondents St. Mina Pharmacy and the filing of the Accusation. According to Respondents St. Mina Pharmacy #2's application, Respondent Nader Abadier will be the PIC. There is a common ownership of both Respondents St. Mina Pharmacy and St. Mina Pharmacy #2. Complainant did not meet her burden of proof that Respondents' St. Mina Pharmacy failed to maintain operational standards for the secure operation of the pharmacy. However, as owners they were responsible for the conduct of Respondent Samia Abadier who failed to meet her obligations to secure the prescription area. Given the imposition of discipline for Respondent Samia Abadier's violation ofphannacy law, it is premature to authorize these same owners to expand their operation and open an additional pharmacy with the same ownership structure and designated PIC, Respondent Nader Abadie1-. For this reason, Respondents St. Mina Pharmacy#2 failed to meet their burden of proof, and the application is denied.

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Costs

23. Under Code section 125.3, the Board may request the ALJ to direct a licentiate found to have committed violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case. These reasonable costs are $18,064.25, as set forth in Finding 32.

24. Under Zuckerman v. State Board ofChiropractic Examiners (2002) 29 Cal.App.4th 32, 45, the Board must exercise its discretion to reduce or eliminate cost awards so as to prevent cost award statutes from deterring licensees with potentially meritorious claims or defenses from exercising their right to a hearing. "Thus the [Board] may not assess the full costs of investigation and prosecution when to do so will unfairly penalize a [licensee] who has committed some misconduct, but who has used the hearing process to obtain dismissal of other charges or a reduction in the severity of the discipline imposed." (Id.) The Board, in imposing costs in such situations, must consider the licensee's subjective good faith belief in the merits of his or her position and the Board must consider whether or not the licensee has raised a colorable defense. The Board must also consider the licensee's ability to make payment.

25. Respondents did not challenge the costs, and presented no evidence indicating they were unable to pay them. As such, Respondents St. Mina Pharmacy and Respondent Samia Abadier shall pay the Board its reasonable costs in the amount of $18,064.25, and shall be jointly and severally liable, accordingly.

ORDER

Respondent Samia Abadier

Pharmacist License Number RPH 65420 issued to Respondent Samia Haldm Abadier is revoked; however, the. order ofrevocation is stayed and Respondent Samia Hakim Abadier is placed on probation for three (3) years upon the following terms and conditions:

1. Obey All.Laws: Respondent shall obey all state and federal laws and regulations. Respondent shall report any of the following occurrences to the Board, in writing, within 72 hours of such occurrence:

• an arrest or issuance of a criminal complaint for violation of any provision of the Pharmacy Law, state and federal food and drug laws, or state and federal controlled substances laws

• a plea of guilty or nolo contendere in any state or federal criminal proceeding to any criminal complaint, information or indictment

• a conviction of any crime

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• discipline, citation, or other administrative action filed by any state or federal agency which involves Respondent's pharmacist license or which is related to the practice of pharmacy or the manufacturing, obtaining, handling, distributing, billing, or charging for any drug, device or controlled substance.

Failure to timely report such occmTence shall be considered a violation of probation.

2. Report to the Board: Respondent shall report to the Board quarterly, on a schedule as directed by the Board or its designee. The report shall be made either in person or in writing, as directed. Among other requirements, Respondent shall state in each report under penalty of perjury whether there has been compliance with all the terms and conditions of probation. Failure to submit timely reports in a form as directed shall be considered a violation of probation. Any period(s) of delinquency in submission of reports as directed may be added to the total period of probation. Moreover, if the final probation report is not made as directed, probation shall be automatically extended until such time as the final report is made and accepted by the Board.

3. Interview with the Board. Upon receipt ofreasonable prior notice, Respondent shall appear in person for interviews with the Board or its designee, at such intervals and locations as are determined by the Board or its designee. Failure to appear for any scheduled interview without prior notification to Board staff, or failure to appear for two or more scheduled interviews with the Board or its designee during the period ofprobation, shall be considered a violation of probation.

4. Cooperate with Board Staff. Respondent shall cooperate with the Board's inspection program and with the Board's monitoring and investigation of Respondent's compliance with the terms and conditions of her probation. Failure to cooperate shall be considered a violation ofprobation.

5. Continuing Education. Respondent shall provide evidence of efforts to maintain skill and knowledge as a pharmacist as directed by the Board or its designee.

6. Notice to Employers. During the period of probation, Respondent shall notify all present and prospective employers of the decision in OAH case number 2017120787 and the terms, conditions and restrictions imposed on Respondent by the decision, as follows:

Within 30 days of the effective date of this decision, and within 15 days of Respondent undertaking any new employment, Respondent shall cause her direct supervisor, pharmacist­in-charge (including each new pharmacist-in-charge employed during Respondent's tenure of employment) and owner to report to the Board in writing acknowledging that the listed individual(s) has/have read the decision in OAH case number 2017120787, and terms and conditions imposed thereby. It shall be Respondent's responsibility to ensure that her employer(s) and/or supervisor(s) submit timely acknowledgment(s) to the Board.

If Respondent works for or is employed by or through a pharmacy employment service, Respondent must notify her direct supervisor, pharmacist-in-charge, and owner at every entity licensed by the Board of the terms and conditions of the decision in case number

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2017120787 in advance of the Respondent commencing work at each licensed entity. A record of this notification must be provided to the Board upon request.

Furthermore, within 30 days of the effective date of this decision, and within 15 days of Respondent undertaking any new employment by or through a pharmacy employment service, Respondent shall cause her direct supervisor with the pharmacy employment service to report to the Board in writing acknowledging that he or she has read the decision in OAH case number 2017120787 and the terms and conditions imposed thereby. It shall be Respondent's responsibility to ensure that her employer(s) and/or supervisor(s) submit timely aclmowledgment(s) to the Board.

Failure to timely notify present or prospective employer(s) or to cause that/those employer(s) to submit timely aclmowledgments to the Board shall be considered a violation of probation.

"Employment" within the meaning of this provision shall include any full-time, part-time, temporary, relief or pharmacy management service as a pharmacist or any position for which a phannacist license is a requirement or criterion for employment, whether the Respondent is an employee, independent contractor or volunteer.

7. No Supervision of Interns, Serving as Pharmacist-in-Charge (PIC), Serving as Designated Representative-in-Charge, or Serving as a Consultant. During the period of probation, Respondent shall not supervise any intern pharmacist, be the pharmacist-in-charge or designated representative-in-charge of any entity licensed by the Board nor serve as a consultant unless otherwise specified in this order. Assumption of any such unauthorized supervision responsibilities shall be considered a violation of probation.

This probationary provision shall not apply to Respondent Samia Abadier as pharmacist in charge at Respondents St. Mina Pharmacy (i.e., St. Mina Pharmacy), her duties thereto, or her employment therein.

8. Reimbursement of Board Costs. As a condition precedent to successful completion ofprobation, Respondent shall pay to the Board its costs of investigation and prosecution in the amount of $18,064.25. Respondent shall make said payments on a schedule to be determined by the Board. Respondent Samia Abadier shall be jointly and severally liable with Respondents St. Mina Pharmacy for the total amount of $18,064.25.

There shall be no deviation from this schedule absent prior written approval by the Board or its designee. Failure to pay costs by the deadline(s) as directed shall be considered a violation of probation.

9. Probation Monitoring Costs. Respondent shall pay any costs associated with probation monitoring as determined by the Board each and every year of probation. Such costs shall be payable to the Board on a schedule as directed by the Board or its designee. Failure to pay such costs by the deadline(s) as directed shall be considered a violation of probation.

10. Status of License. Respondent shall, at all times while on probation, maintain an active, current license with the Board, including any period during which suspension or

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probation is tolled. Failure to maintain an active, current license shall be considered a violation ofprobation.

If Respondent's license expires or is cancelled by operation of law or otherwise at any time during the period of probation, including any extensions thereof due to tolling or otherwise, upon renewal or reapplication Respondent's license shall be subject to all terms and conditions of this probation not previously satisfied.

11. License Surrender While on Probation/Suspension. Following the effective date of this decision, should Respondent cease practice due to retirement or health, or be otherwise unable to satisfy the terms and conditions of probation, Respondent may tender her license to the Board for surrender. The Board or its designee shall have the discretion whether to grant the request for surrender or take any other action it deems appropriate and reasonable. Upon formal acceptance of the surrender of the license, Respondent will no longer be subject to the terms and conditions of probation. This surrender constitutes a record of discipline and shall become a part of the Respondent's license history with the Board.

Upon acceptance of the surrender, Respondent shall relinquish her pocket and wall license to the Board within 10 days of notification by the Board that the surrender is accepted. Respondent may not reapply for any license from the Board for three years from the effective date of the surrender. Respondent shall meet all requirements applicable to the license sought as of the date the application for that license is submitted to the Board, including any outstanding costs.

12. Notification of a Change in Name, Residence Address, Mailing Address or Employment. Respondent shall notify the Board in writing within 10 days of any change of employment. Said notification shall include the reasons for leaving, the address of the new employer, the name of the supervisor and owner, and the work schedule if known. Respondent shall further notify the Board in writing within IO days of a change in name, residence address, mailing address, or phone number.

Failure to timely notify the Board of any change in employer(s), name(s), address(es), or phone number(s) shall be considered a violation of probation.

13. Tolling of Probation. Respondent is required to practice as a pharmacist in a licensed pharmacy setting that dispenses medication for a minimum of one year prior to the completion of probation. After the first year of probation, the Board or its designee may consider a modification of this requirement. If Respondent fails to comply with this requirement or a subsequent modification thereto, such failure shall be considered a violation of probation.

14. Violation of Probation. If Respondent has not complied with any term or condition of probation, the Board shall have continuing jurisdiction over Respondent, and probation shall automatically be extended, until all terms and conditions have been satisfied or the Board has taken other action as deemed appropriate to treat the failure to comply as a violation ofprobation, to terminate probation, and to impose the penalty that was stayed.

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If Respondent violates probation in any respect, the Board, after giving Respondent notice and an opportunity to be heard, may revoke probation and carry out the disciplinary order that was stayed. Notice and opportunity to be heard are not required for those provisions stating that a violation thereof may lead to automatic termination of the stay and/or revocation of the license. If a petition to revoke probation or an accusation is filed against Respondent during probation, the Board shall have continuing jurisdiction and the period of probation shall be automatically extended until the petition to revoke probation or accusation is heard and decided.

15. Completion of Probation. Upon written notice by the Board or its designee indicating successful completion of probation, Respondent's license will be fully restored.

Respondent Pharmacy

Pharmacy Permit number PHY 50685 issued to St. Mina Inc. dba St. Mina Pharmacy, owners Samia Hakim Abadier, Nader Erian Abadier, Lawrence Nader Abadier and Mark Nader Abadi er ( collectively, Respondents St. Mina Pharmacy), is hereby publicly reproved pursuant to Business and Professions Code section 495. Respondents Nader Erian Abadier, Lawrence Nader Abadier and Mark Nader Abadier, as owners are required to report this reproval as a disciplinary action on pharmacy PHY 50685.

Application ofSt. Mina, Inc. dba St. Mina Pharmacy #2

The application for a community pharmacy license by Respondent St. Mina, Inc. dba St. Mina Pharmacy #2, owners Samia Hakim Abadier, Nader Erian Abadier, Lawrence Nader Abadier and Mark Nader Abadier, is denied.

DATED: September 7, 2018

t~N'OOMN Administrative Law Judge t, Office of Administrative Hearings

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KAMALA D. HARRIS Attorney General of California ARMANDO ZAMBRANO Supervising Deputy Attorney General ELYSE M. DAVIDSON Deputy Attorney General State Bar No. 285842

300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2533 Facsimile: (213) 897-2804

Attorneys for Complainant

BEFORE THE BOARD OF PHARMACY

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

11----------------, In the Matter of the Accusation Against: ST. MINA PHARMACY, SAMIA HAKIM ABADIER, NADER ERIAN ABADIER, LAWRENCE NADER ABADIER, MARK NADER ABADIER, OWNERS 8110 Mango Ave., #105 Fontana, CA 92335

Pharmacy Permit No. PHY 50685,

and

SAMIA HAKIM ABADIER 8132 Natoma St. Corona, CA 92880

Pharmacist License No. RPH 65420,

Respondents.

Complainant alleges:

Case No. 5723

ACCUSATION

PARTIES

I. Virginia Herold ("Complainant") brings this Accusation solely in her official capacity

as the Executive Officer of the Board of Phannacy, Department of Consumer Affairs.

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2. On or about October 3, 2011, the Board of Pharmacy issued Pharmacy Permit

Number PHY 50685 to St. Mina Pharmacy, with Samia Hakim Abadier designated as the

Pharmacist-in-Charge, Chief Executive Officer, and owner of30 percent of the outstanding

shares; Nader Erian Abadier as the Director and owner of30 percent of the outstanding shares;

Lawrence Nader Abadier as the Secretary and owner of20 percent of the outstanding shares; and

Mark Mader Abadier as the Treasurer/Chief Financial Officer ("Respondent St. Mina

Pharmacy"). The Pharmacy Permit was in full force and effect at all times relevant to the charges

brought herein and will expire on October I, 2016, unless renewed.

3. On or about April 25, 2011, the Board of Pharmacy issued Pharmacist License

Number RPH 65420 to Samia Hakim Abadier ("Respondent Samia Abadier"). The Pharmacist

License was in full force and effect at all times relevant to the charges brought herein and will

expire on November 30, 2016, unless renewed.

JURISDICTION

4. This Accusation is brought before the Board of Pharmacy ("Board"), Department of

Consumer Affairs, under the authority of the following laws. All section references are to the

Business and Professions Code ("Code") unless otherwise indicated.

5. Section 4011 of the Code provides that the Board shall administer and enforce both

the Pharmacy Law [Bus. & Prof. Code,§ 4000 et seq.] and the Uniform Controlled Substa11ces

Act [Health and Safety Code, § 11000 et seq.].

6. Section 4300 states, in pertinent part, that "[e ]very license issued may be suspended

or revoked."

7. Section 4300.1 of the Code states:

The expiration, cancellation, forfeiture, or suspension of a board-issued license by operation oflaw or by order or decision of the board or a court oflaw, the placement of a license on a retired status, or the voluntary surrender of a license by a licensee shall not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee or to render a decision suspending or revoking the license.

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STATUTORY PROVISIONS

8. Section 477 states, in part: "As used in this division: ... (b) 'License' includes

certificate, registration or other means to engage in a business or profession regulated by this

code."

\ 9. Section 4113 subdivision (c) of the Code states:

The pharmacist-in-charge shall be responsible for a pharmacy's compliance with all state and

federal laws and regulations pertaining to the practice of pharmacy.

10. Section 4301 of the Code states:

The board shall take action against any holder of a license who is guilty of unprofessional conduct or whose license has been procured by fraud or misrepresentation or issued by mistake. Unprofessional conduct shall include, but is not limited to, any of the following:

(o) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provision or term ofthis chapter or of the applicable federal and state laws and regulations governing pharmacy, including regulations established by the board or by any other state or federal regulatory agency.

1I. Section 4307 of the Code states:

(a) Any person who has been denied a license or whose license has been revoked or is under suspension, or who has failed to renew his or her license while it was under suspension, or who has been a manager, administrator, owner, member, officer, director, associate, or partner of any partnership, corporation, firm, or association whose application for a license has been denied or revoked, is under suspension or has been placed on probation, and while acting as the manager, administrator, owner, member, officer, director, associate, or partner had knowledge of or knowingly participated in any conduct for which the license was denied, revoked, suspended, or placed on probation, shall be prohibited from serving as a manager, administrato;, owner, member, officer, director, associate, or partner of a licensee as follows:

(I) Where a probationary license is issued or where an existing license is placed on probation, this prohibition shall remain in effect for a period not to exceed five years.

(2) Where the license is denied or revoked, the prohibition shall continue until the license is issued or reinstated.

(b) "Manager, administrator, owner, member, officer, director, associate, or partner," as used in this section and Section 4308, may refer to a pharmacist or to any other person who serves in that capacity in or for a licensee.

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(c) The provisions of subdivision (a) may be alleged in any pleading filed pursuant to Chapter 5 ( commencing with Section 11500) of Part 1 of Division 3 of the Government Code. However, no order may be issued in that case except as to a person who is named in the caption, as to whom the pleading alleges the applicability of this section, and where the person has been given notice of the proceeding as required by Chapter 5 (commencing with Section 11500) of Part l of Division 3 of the Government Code. The authority to proceed as provided by this subdivision shall be in addition to the board's authority to proceed under Section 4339 or any other provision of law.

REGULATORY PROVISIONS

12. California Code of Regulations, title 16, section 1714 subdivisions (b) and ( d), state:

(b) Each pharmacy licensed by the board shall maintain its facilities, space, fixtures, and equipment so that drugs are safely and properly prepared, maintained, secured and distributed. The pharmacy shall be of sufficient size and unobstructed area to accommodate the safe practice of phannacy.

(d) Each pharmacist while on duty shall be responsible for the security of the prescription department, including provisions for effective control against theft or diversion of dangerous drugs and devices, and records for such drugs and devices. Possession of a key to the phannacy where dangerous drugs and controlled substances are stored shall be restricted to a pharmacist.

CONTROLLEDSUBSTANCEIDANGEROUSDRUG

13. Section 4021 of the Code states, in pertinent part:

"Controlled substances: means any substance listed in Chapter 2 ( commencing with Section

11053) of Division 10 of the Health and Safety Code."

14. Section 4022 of the Code states:

'Dangerous drug' or 'dangerous device' means any drug or device unsafe for self-use in humans or animals, and includes the following:

(a) Any drug that bears the legend: 'Caution: federal law prohibits dispensing without prescription,' 'Rx only,' or words of similar import.

(b) Any device that bears the statement: 'Caution: federal law restricts this device to sale by or on the order of a _____,' 'Rx only,' or words of similar import, the blank to be filled in with the designation ofthe practitioner licensed to use ororder use of the device.

(c) Any other drug or device that by federal or state law can be lawfolly dispensed only on prescription or furnished pursuant to Section 4006.

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15. Code of Federal Regulations, title 21, section 1308.12, states:

(a) Schedule II shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section. Each drug or substance has been assigned the Controlled Substances Code Number set forth opposite it.

(b) Substances, vegetable origin or chemical synthesis. Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(I) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate excluding apomorphine, thebaine-derived butorphanol, dextrorphan, nalbuphine, nalmefene, naloxegol, naloxone, and naltrexone, and their respective salts, but including the following:

(vi) Hydrocodone

16. "Hydrocodone/Acetaminophen" or "HC/APAP", with trade names of Norco, Lortab,

and Vicodin, are Schedule III controlled substances pursuant to Health and Safety Code section

11056(e)( 4), and are categorized as dangerous drugs pursuant to section 4022. Effective October

6, 2014, federal law rescheduled hydrocodone/acetaminophen to a schedule II controlled

substance, Code of Federal Regulations, title 21, section 1308.12, subdivision, (b)(l)(vi).

COST RECOVERY

17. Section 125.3 provides that the Board may request the administrative law judge to

direct a licentiate found to have committed a violation or violations of the licensing act to pay a

sum not to exceed the reasonable costs of the investigation and enforcement of the case, with

failure of the licentiate to comply subjecting the license to not being renewed or reinstated. If a

case settles, recovery of investigation and enforcement costs may be included in a stipulated

settlement.

FACTUAL ALLEGATIONS

18. Beginning on or about October 3, 2011, Respondent Samia Abadi er became the

pharmacist-in-charge ("PIC") of Respondent St. Mina Pharmacy, located in Fontana, CA.

Respondent Samia Abadier is also the Chief Executive Officer and owner of30 percent of the

outstanding shares; Nader Erian Abadi er is the Director and owner of 30 percent of the

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outstanding shares; Lawrence Nader Abadi er is the Secretary and owner of 20 percent of the

outstanding shares; and Mark Mader Abadier is the Treasurer/Chief Financial Officer of

Respondent St. Mina Pharmacy.

19. From June 13, 2013, until November 5, 2014, Respondent St. Mina Pharmacy did not

maintain adequate security for controlled substances, and as a result, there was a loss of 54,226

tablets of controlled substance HC/APAP 10/325 mg, aka Norco, in Respondent St. Mina

Pharmacy's inventory.

20. Noemi Acevedo ("Acevedo") was employed as a pharmacy technician1 with St. Mina

Pharmacy from December 12, 2012 to November 5, 2014.

21. On or about October 31, 2014, while the pharmacist on duty left to use the restroom,

video surveillance recorded Acevedo taking a 1,000-tablet-count bottle ofNorco, and placing it

under the bumble bee costume she was wearing.

22. On or about November 5, 2014, Respondent Samia Abadier discovered a loss of two

1,000-tablet-count bottles ofNorco, and reported the theft to the Fontana Police Department.

23. On or about November 5, 2014, a Fontana police officer contacted Acevedo at her

residence. Acevedo admitted to taking the bottle ofNorco on October 31, 2014. She further

admitted that she gave the bottle ofNorco to her aunt to take to Mexico and that her aunt was

supposed to give her $300 for the bottle.

24. On or about November 14, 2014, the Board received notification from Respondent

Samia Abadierthat Acevedo stole 14,000 tablets of Norco from Respondent St. Mina Pharmacy.

25. On or about December 7, 2014, Respondent Samia Abadier contacted the Fontana

Police department to correct her previous statement in that foutieen 1000-tablet-count bottles of

Norco was taken from Respondent St. Mina Pharmacy and was worth approximately $25,000.

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1 Acevedo's Pharmacy Technician Registration No. TCH 81339 was revoked pursuant to a Default Decision and Order which became effective on February 19, 2016, in Board of Phannacy Case No. 5099, In the Matter ofthe First Amended Accusation Against Noemi Acevedo.

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26. On May 9, 2015, Acevedo was convicted of one misdemeanor for violating Penal

Code section 487, subdivision (a), grand theft of personal property, in the criminal proceeding

entitled the People of the State ofCalifornia v. Noemi Acevedo Guerra aka Noemi Acevedo

(Super. Ct. San Bernardino County, 2015, No. FWV1404971), for the crime committed on

October31,2014.

FIRST CAUSE FOR DISCIPLINE

-(Lack of Operational Standards and-Security)- --

27. Respondent St. Mina Pharmacy is subject to disciplinary action under Code section

4301, subdivision ( o ), in conjunction with California Code of Regulations, title 16, section 1714,

subdivision (b), in that it failed to maintain effective control on the security of the prescription

depa1iment against theft or loss of controlled substances and dangerous drugs. Specifically, they

did not provide adequate security and could not account for 54,226 tablets of

hydrocodone/acetaminophen I0/325 mg. Complainant refers to and by this reference

incorporates allegations of paragraphs 16 through 24, above as though fully set forth.

SECOND CAUSE FOR DISCIPLINE

(Lack of Operational Standards and Security)

28. Respondent Samia Abadi er is subject to disciplinary action under Code sections

4301, subdivision (o), in conjunction with Code section 4113, subdivision (c) and California

Code of Regulations, title 16, section 1714, subdivision ( d), in that she failed to maintain

effective control on the security of the prescription department against theft or loss of controlled

substances and dangerous drugs. Specifically, she did not provide adequate security and could

not account for 54,226 tablets of hydrocodone/acetaminophen I0/325 mg. Complainant refers to

and by this reference incorporates allegations of paragraphs 16 through 24, above as though fully

set fo1ih.

OTHER MATTERS

29. Pursuant to Code section 4307, if discipline is imposed on Pharmacy Permit Number

PHY 50685 issued to Respondent St. Mina Pharmacy, then St. Mina Pharmacy shall be

prohibited from serving as a manager, administrator, owner, member, officer, director, associate,

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(ST. MINA PHARMACY and SAMIA HAKIM ABADIER) ACCUSATJON

or partner of a licensee for five years if Pharmacy Permit Number PHY 50685 is placed on

probation or until Pharmacy Permit Number PHY 50685 is reinstated if it is revoked.

30. Pursuant to Code section 4307, if discipline is imposed on Pharmacy Permit Number

PHY 50685 issued to Respondent St. Mina Phannacy while Respondents Samia Hakim Abadi er,

Nader Erian Abadi er, Lawrence Naded Abadier, and Mark Nader Abadier served as officers and

owners, and had knowledge of or knowingly participated in any conduct for which the licensee

was disciplined, Samia Hakim Abadier, Nader Erian Abadier, Lawrence Naded Abadier, and

Mark Nader Abadier shall be prohibited from serving as a manager, administrator, owner,

member, officer, director, associate, or partner of a licensee for five years if Pharmacy Permit

Number PHY 50685 is placed on probation or until Pha1111acy Permit Number PHY 50685 is

reinstated if it is revoked.

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12 PRAYER

J3 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

and that following the hearing, the Board of Pharmacy issue a decision:

I. Revoking or suspending Pha1111acy Pe1111it Number PHY 50685, issued to St. Mina

Pharmacy,

2. Revoking or suspending Pharmacist License Number RPH 65420, issued to Samia

Hakim Abadier;

3. Prohibiting St. Mina Pharmacy from serving as a manager, administer, owner,

member, officer, director, associate, or partner of a licensee for five years if Pha1111acy Permit

Number PHY 50685 is placed on probation or until Pharmacy Permit Number PHY 50685 is

reinstated if Pharmacy Permit Number PHY 50685 issued to St. Mina Pharmacy is revoked;

4. Prohibiting Samia Hakim Abadier from serving as a manager, administer, owner,

member, officer, director, associate, or partner of a licensee for five years if Pharmacy Permit

Number PHY 50685 is placed on probation or until Pharmacy Pennit Number PHY 50685 is

reinstated if Pharmacy Permit Number PHY 50685 issued to St. Mina Pharmacy is revoked;

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(ST. MINA PHARMACY and SAMIA HAKIM ABADIER) ACCUSATION

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5. Prohibiting Nader Erian Abadier from serving as a manager, administer, owner,

member, officer, director, associate, or partner of a licensee for five years if Phannacy Permit

Number PHY 50685 is placed on probation or until Pharmacy Permit Number PHY 50685 is

reinstated if Phannacy Permit Number PHY 50685 issued to St. Mina Pharmacy is revoked;

6, Prohibiting Lawrence Naded Abadier from serving as a manager, administer, owner,

member, officer, director, associate, or partner of a licensee for five years if Pharmacy Permit

Number PHY 50685 is placed on probation or until Pharmacy Permit Number PHY 50685 is

reinstated if Phannacy Permit Number PHY 50685 issued to St. Mina Pharmacy is revoked;

7. Prohibiting Mark Nader Abadier from serving as a manager, administer, owner,

member, officer, director, associate, or partner of a licensee for five years if Pharmacy Permit

Number PHY 50685 is placed on probation or until Pharmacy Permit Number PHY 50685 is

reinstated if Pharmacy Permit Number PHY 50685 issued to St. Mina Pharmacy is revoked;

8. Ordering St. Mina Pharmacy and Samia Hakim Abadi er to pay the Board of

Pharmacy the reasonable costs of the investigation and enforcement of this case, pursuant to

Business and Professions Code section 125.3; and,

9. Taking such other and fmiher action as deemed necessary and proper.

/

DATED: _b_/4_o_}_1/6_·___ -';';;;;';:;;'---,-~=,=-=·~--'----'--./4_~4--'--------jA HEROLD

Executive Officer Board of Pharmacy Depaitment of Consumer Affairs State of California Complainant

LAZO I 6500204 52013762.doc 06062016

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(ST. MINA PHARMACY and SAMlA HAKIM ABADIER) ACCUSATION

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XAVIER BECERRA Attorney General of California ARMANDO ZAMBRANO Supervising Deputy Attorney General ELYSEM. DAVIDSON Deputy Attorney General State Bar No. 285842

300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 · Telephone: (213) 897-2533 Facsimile: (213) 897-2804

Attorneys for Complainant

BEFORE THE BOARD OF PHARMACY

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Statement oflssues Against:

ST. MINA, INC. DBA ST. MINA PHARMACY #2, SAMIA HAKIM ABADIER, NADER ERIAN ABADIER, LA WREN CE NADER ABADIER, MARK NADER ABADIER, OWNERS

Community Pharmacy Permit License Applicant

Respondents.

Case No. 5767

STATEMENT OF ISSUES

Complainant alleges:

PARTIES

1. Virginia Herold ("Complainant") brings this Statement oflssues solely in her official

capacity as the Executive Officer of the Board ofPharmacy, Department of Consumer Affairs.

2. On or about December 7, 2015, the Board of Pharmacy, Department of Consumer

Affairs received an application for a Community Pharmacy Permit License from St. Mina, Inc.

dba St. Mina Pharmacy #2, Samia Hakim Abadier, Nader Erian Abadier, Mark Nader Abadier,

Lawrence Naded Abadier ("Respondents"). On or about December 5, 2015, Respondents

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STATEMENT OF ISSUES

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certified under penalty of perjury to the truthfulness of all statements, answers, and

representations in the application. The Board denied the application on January 29, 2016.

JURISDICTION

3. · This Statement oflssues is brought before the Board of Pharmacy ("Board"),

Department of Consumer Affairs, under the authority of the following laws. All section

references are to the Business and Professions Code ("Code") unless otherwise indicated.

4. Section 4011 of the Code provides that the Board shall administer and enforce both

the Pharmacy Law [Bus. & Prof. Code, § 4000 et seq.] and the Uniform Controlled Substances

Act [Health and Safety Code, § 11000 et seq.].

STATUTORY AND REGULATORY PROVISIONS

5. Section 480 of the Code states:

(a) A board may deny a license regulated by this code on the grounds that the applicant has one of the following:

(I) Been convicted of a crime. A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action that a board is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4, 1203.4a, or 1203.41 of the Penal Code.

(2) Done any act involving dishonesty, fraud, or deceit with the intent to substantially benefit himself or herself or another, or substantially injure another.

(3) (A) Done any act that if done by a licentiate of the business or profession in question, would be grounds for suspension or revocation of license. ·

(B) The board may deny a license pursuant to this subdivision only if the crime or act is substantially related to the qualifications, functions, or duties of the business or profession for which application is made.

(b) Notwithstanding any other provision of this code, a person shall not be denied a license solely on the basis that he or she has been convicted of a felony ifhe or she has obtained a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code or that he or she has been convicted of a misdemeanor if he or she has met all applicable requirements of the criteria of rehabilitation developed by the board to evaluate the rehabilitation of a person when considering the denial of a license under subdivision (a) of Section 482.

(c) Notwithstanding any other provisions of this code, a person shall not be denied a license solely on the basis of a conviction that has been dismissed pursuant to

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STATEMENT OF ISSUES

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Section 1203.4, 1203.4a, or 1203.41 of the Penal Code. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, or 1203.41 of the Penal Code shall provide proof of the dismissal.

(d) A board may deny a license regulated by this code on the ground that the applicant knowingly made a false statement of fact that is required to be revealed in the application for the license.

6. Section 41 13 subdivision ( c) of the Code states:

The pharmacist-in-charge shall be responsible for a pharmacy's compliance with all state

and federal laws and regulations pertaining to the practice ofpharmacy.

7. California Code ofRegulations, title 16, section 1714 subdivisions (b) and (d), state:

(b) Each pharmacy licensed by the board shall maintain its facilities, space, fixtures, and equipment so that drugs are safely and properly prepared, maintained, secured and distributed. The pharmacy shall be of sufficient size and unobstructed' area to accommodate the safe practice ofpharmacy.

(d) Each pharmacist while on duty shall be responsible for the security of the prescription department, including provisions for effective control against theft or diversion of dangerous drugs and devices, and records for such drugs and devices. Possession of a key to the pharmacy where dangerous drugs. and controlled substances are stored shall be restricted to a pharmacist.

CONTROLLED SUBSTANCE/DANGEROUS DRUG

8. Section 4021 of the Code states, in pertinent part:

"Controlled substances: means any substance listed in Chapter 2 (commencing with Section

11053) of Division 10 of the Health and Safety Code."

9. Section 4022 of the Code states:

'Dangerous drug' or 'dangerous device' means any drug or device unsafe for self-use in humans or animals, and includes the following:

(a) Any drug that bears the legend: 'Caution: federal law prohibits dispensing without prescription,' 'Rx only,' or words of similar import.

(b) Any device that bears the statement: 'Caution: federal law restricts this device to sale by or on the order of a-~--,~·'' 'Rx only,' or words of similar import, the blank to be filled in with the designation of the practitioner licensed to use or order use of the device.

(c) Any other drug or device that by federal or state law can be lawfully dispensed only on prescription or furnished pursuant to Section 4006.

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ST A TEMENT OF ISSUES

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10. Code of Federal Regulations, title 21, section 1308.12, states:

(a) Schedule II shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section. Each drug or substance has been assigned the Controlled Substances Code Number set forth opposite it.

(b) Substances, vegetable origin or chemical synthesis. Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(I) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate excluding apomorphine, thebaine-derived butorphanol, dextrorphan, nalbuphine, nalmefene, naloxegol, naloxone, and naltrexone, and their respective salts, but including the following:

(vi) Hydrocodone

11. "Hydrocodone/Acetaminophen" or"HC/APAP", with trade names ofNorco, Lortab,

and Vicodin, are Schedule III controlled substances pursuant to Health and Safety Code section

11056( e )(4), and are categorized as dangerous drugs pursuant to section 4022. Effective October

6, 2014, federal law rescheduled hydrocodone/acetaminophen to a schedule II controlled

substance, Code ofFederal Regulations, title 21, section 1308.12, subdivision, (b)(l)(vi).

FACTUAL ALLEGATIONS

12. Beginning on or about October 3, 2011, Respondent Samia Abadier became the

pharmacist-in-charge ("PIC") of St. Mina Pharmacy located in Fontana, CA ("St. Mina

Pharmacy-Fontana"). Respondent Samia Abadier is also the Chief Executive Officer and owner

of 30 percent of the outstanding shares; Nader Erian Abadier is the Director and owner of30

percent of the outstanding shares; Lawrence Nader Abadier is the Secretary and owner of20

percent of the outstanding shares; and Mark Mader Abadier is the Treasurer/Chief Financial

Officer of St. Mina Pharmacy-Fontana.

13. From June 13, 2013, until November 5, 2014, St. Mina Pharmacy-Fontana did not

maintain adequate security for controlled substances, and as a result, there was a loss of 54,226

tablets of controlled substance HC/APAP 10/325 mg, aka Norco, in St. Mina Pharmacy-Fontana's

inventory.

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STATEMENT OF ISSUES

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14. Noemi Acevedo ("Acevedo") was employed as a pharmacy technician1 with St. Mina

Pharmacy-Fontana from December 12, 2012 to November 5, 2014.

15. On or about October 31, 2014, while the pharmacist on duty left to use the restroom,

video surveillance recorded Acevedo taking a 1,000-tablet-count bottle ofNorco, and placing it

under the bumble bee costume she was wearing.

16. On or about November 5, 2014, Respondent Samia Abadier discovered a loss of two

1,000-tablet-count bottles ofNorco, and reported the theft to the Fontana Police Department.

I7. On or about November 5, 2014, a Fontana police officer contacted Acevedo at her

residence. Acevedo admitted to taking the bottle ofNorco on October 31, 2014. She further

admitted that she gave the bottle of Norco to her aunt to take to Mexico and that her aunt was

supposed to give her $300 for the bottle.

18. On or about November 14, 2014, the Board received notification from Respondent

Samia Abadier that Acevedo stole 14,000 tablets ofNorco from St. Mina Pharmacy-Fontana.

19. On or about December 7, 2014, Respondent Samia Abadier contacted the Fontana

Police department to correct her previous statement in that fourteen 1000-tablet-count bottles of

Norco was taken from St. Mina Pharmacy-Fontana and was worth approximately $25,000.

FIRST CAUSE FOR DISCIPLINE

(Lack of Operational Standards and Security)

20. Respondent St. Mina Pharmacy is subject to disciplinary action under Code section

4301, subdivision (o), in conjunction with California Code of Regulations, title 16, section 1714,

subdivision (b), in that it failed to maintain effective control on the security of the prescription

department against theft or loss of controlled substances and d~ngerous drugs. Specifically, they

did not provide adequate security and failed to account for 54,226 tablets of

hydrocodone/acetaminophen 10/325 mg. Complainant refers to and by this reference

incorporates allegations ofparagraphs 12 through 19, above as though fully set forth.

1 Acevedo's Pharmacy Technician Registration No. TCH 81339 was revoked pursuant to a Default Decision and Order which became effective on February 19, 2016, in Board of Pharmacy Case No. 5099, In the Matter ofthe First Amended Accusation Against Noemi Acevedo.

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STATEMENT OF ISSUES

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SECOND CAUSE FOR DISCIPLINE

(Unprofessional Conduct)

21. Respondent's application is subject to denial under Code sections 480, subdivision

(a)(3) and 4301, subdivision (o), in conjunction with California Code ofRegulations, title 16,

section 1714, subdivision (b) and ( d), in that, Respondent has done an act that if done by a

licentiate, would be grounds for suspension or revocation. Complainant refers to and by this

reference incorporates allegations ofparagraphs 12 through 20, above as though fully set forth.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

and that following the hearing, the Board ofPharmacy issue a decision:

I. Denying the application of St. Mina, Inc. dba St. Mina Pharmacy #2, Samia Hakim

Abadier, Nader Erian Abadier, Mark Nader Abadier, Lawrence Naded Abadier for a Community

Pharmacy Permit License; and,

2. Taking such other and further action as deemed necessary and proper.

DATED: .i.J/13/21 1), ~,~y_/,_J_/VIRUINIA HEROLD Executive Officer Board of Pharmacy Department of Consumer Affairs State of California Complainant

LA201660086! 52045052_2.doc 03282017

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STATEMENT OF ISSUES