Filed 9/23/19; Certified for publication 10/15/19 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



SOLOMON ODUYALE,                                                 D073755

         Plaintiff and Appellant,

         v.                                                      (Super. Ct. No. ECU09627)

CALIFORNIA STATE BOARD OF
PHARMACY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, L. Brooks

Anderholt, Judge. Reversed.

         Xavier Becerra, Attorney General, Linda K. Schneider, Assistant Attorney

General, Antoinette Cincotta and Stephen A. Aronis, Deputy Attorneys General, for

Defendant and Appellant.

         Mazur & Mazur and Janice R. Mazur; Ronald S. Marks, for Plaintiff and

Appellant.
                                               I.

                                      INTRODUCTION

       In July 2013, the Executive Officer of the California State Board of Pharmacy (the

Board) filed an accusation against pharmacist Solomon Oduyale, citing 20 charges for

discipline and seeking revocation of his pharmacist license. By August 2016, Oduyale

had successfully challenged all but nine of the charges for discipline against him. The

Board then ordered Oduyale's pharmacist license revoked.

       Oduyale challenged the Board's decision, filing a petition for writ of mandate,

arguing the Board lacked justification for revoking his license, and suggesting it could

have imposed stringent conditions on probation instead. The superior court did not draw

a conclusion about the propriety of the revocation decision, but it concluded that because

the Board's decision did not include an explicit discussion of each possible level of

discipline with an explanation for why each would have been inappropriate in Oduyale's

case, the Board had committed an abuse of discretion. The superior court entered

judgment, ordering the Board to reconsider the disciplinary action, discussing "each and

every form of discipline, short of revocation, . . . explain[ing] why those lesser forms of

discipline are insufficient to protect the public."

       The Board appeals to this court, challenging the trial court's requirement that it

discuss every possible form of discipline short of revocation in its written decision and

also asks us to consider whether it acted within its discretion to revoke Oduyale's

pharmacist license based on the nine causes for discipline. Oduyale has cross-appealed,

contending the trial court erred by remanding the matter for further consideration by the

                                               2
Board and arguing the court should have directed the Board to impose a penalty short of

revocation.

       As we explain, we agree with the Board; the trial court erred by directing it to

provide in writing its reasoning for not imposing each penalty short of revocation.

Further, we conclude the Board acted within its discretion to revoke Oduyale's

pharmacist license. Accordingly, we reverse the trial court's judgment.

                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND

                        A. Oduyale's Licensing Probation History

       Oduyale received his pharmacy degree in North Dakota in 1979 and his California

pharmacist license August 8, 1989. On April 29, 2005, the Executive Officer of the

Board filed an accusation against Oduyale alleging sixteen causes for discipline and

seeking revocation or suspension of his pharmacist license. Nine of those causes for

discipline related to an incident that occurred in December 2002, and the other seven

related to a 2004 pharmacy inspection.

       On December 31, 2002, Oduyale was driving along a freeway when he was

stopped by police. The police officer observed unlabeled prescription bottles, which

Oduyale said contained Xanax, Vicodin, Viagra, Claritin, and an antibiotic. The officer

also found loose in Oduyale's pockets prescription pills, later identified as Viagra, Floxin,

and naproxen, and the officer found medications in the rear floor boards. In the trunk,

police found a prescription bottle containing the antibiotic Levaquin labeled for a person

in Coachella, CA. The officer arrested Oduyale for possession of controlled substances

                                              3
and possession of a dangerous weapon, a wooden billyclub with a silver metal end, which

was on the floor of the vehicle.

       Oduyale had explanations for most of the medications, and the Board concluded

there was insufficient evidence to establish Oduyale illegally possessed, furnished, or

transported the Vicodin or the Xanax or acted fraudulently to obtain the medications for

customers.

       In March 2004, the Board inspected the pharmacy where Oduyale was the

pharmacist-in-charge from January 2003 to March 2005. Oduyale was cooperative and

made efforts to comply with multiple requests for records, but he was not able to produce

all the requested items, and some of the items contained errors. For the period of January

through March 2004, the records regarding acquisition and disposition of drugs contained

cross-outs, corrections, and omissions, as well as records and inventory that indicated the

pharmacy's perpetual log was not accurate. Oduyale also did not have a quality assurance

program in effect for the pharmacy, there was no program to document medication errors

attributable to the pharmacy and its personnel, and it did not have a Drug Enforcement

Agency (DEA) Inventory, as required. Further, the pharmacy allowed drug deliveries to

be received by non-pharmacists the entire time he was in charge. The Board concluded

Oduyale failed to keep accurate and complete records of the acquisition and disposition

of some of the controlled substances at the pharmacy.

       Following charges for discipline and a hearing, the Administrative Law Judge

(2006 ALJ) viewed Oduyale as "a caring individual who tries to reach out and help those

in need," who "gives all his customers a personal touch," and whose "reputation in the

                                             4
medical community [is] as a good pharmacist who is smart, kind-hearted and helpful to

everyone." The 2006 ALJ concluded Oduyale "played fast and loose with some of the

rules when it comes to helping his poor or elderly customers."

       The 2006 ALJ found cause existed to discipline Oduyale for engaging in

unprofessional conduct by possessing controlled substances in containers without correct

labeling, in violation of state laws and regulations. (Bus. & Prof. Code, §§ 4301,

subds. (o), (j) & 4060; Health & Saf. Code, §§ 11350, subd. (a) & 11377, subd. (a).) The

2006 ALJ also found cause to discipline Oduyale because the records required were not

readily available, and the record keeping system was poor and records were incomplete.

       The 2006 ALJ explained that Oduyale needed to be retrained so he understood he

could not bend the rules to help someone, and it would not be against the public interest

to allow him to continue to work as a pharmacist subject to probation. Accordingly, the

2006 ALJ recommended revocation of Oduyale's license, with a stay of the revocation

coupled with probation for three years. In May 2006, the Board adopted the proposed

decision, with the additional condition that he was not to supervise any ancillary

personnel. Oduyale successfully completed probation December 20, 2009.

                            B. Cal-Mex Pharmacy Licensing

       In late June 2010, Calmex Special Services, Inc., dba Cal-Mex Pharmacy (Cal-

Mex) applied for a pharmacy permit. Oduyale, who was the company's president,

indicated he would be the pharmacist-in-charge. In late November 2010, the Board

denied the application based on Oduyale's previous disciplinary actions. Cal-Mex



                                             5
challenged the decision, and the parties entered a Stipulated Settlement and Disciplinary

Order (Stipulated Settlement) in May 2011.

       Under the terms of the Stipulated Settlement, the Board agreed to issue a license to

Cal-Mex and immediately revoke it, then stay the revocation and place the pharmacy on

probation for 35 months. The probation required the pharmacy's officers to follow all

state and federal laws and regulations. Among other things, it also required all owners

and holders of 10 percent or more of the interest in the pharmacy to read and be familiar

with state and federal laws and regulations governing the practice of pharmacy. The

Stipulated Settlement permitted Oduyale to be the pharmacist-in-charge.

                              C. Pharmacy Board Inspection

       On January 28, 2013, Board inspectors performed a routine, unannounced

inspection of Cal-Mex pharmacy, at which Oduyale was present. The inspectors

reviewed hundreds of prescriptions, wholesale invoices, the quality assurance binder, and

additional documentation provided by the pharmacy, and the inspectors interviewed

pharmacy personnel, including Oduyale. The inspection report noted that refill requests

were presented on preprinted forms, faxed prescriptions were accepted without a

handwritten signature, and controlled medications were dispersed from preprinted

prescription blanks, all prohibited practices. Not all the inspectors' questions were

answered, and they were not able to reconcile some information with prior records, so




                                             6
there was a second inspection in March 2013. The second inspection did not resolve the

questions and concerns.1

                                 D. Disciplinary Charges

        In early July 2013, the Executive Officer of the Board filed an accusation against

Oduyale's license and a petition to revoke Cal-Mex's probation. The accusation was

amended in July 2014 and included twenty causes for discipline.2 Oduyale filed a notice

of defense with the Board of Pharmacy and requested an administrative hearing.

Hearings were held over nine days before an administrative law judge (the 2015 ALJ) in

December 2014 and March 2015. The second cause for discipline was dismissed at the

Board's request, and the 2015 ALJ dismissed the eighth and eleventh causes for

discipline. That May, the 2015 ALJ issued a proposed decision revoking Oduyale's

pharmacist license. The Board adopted the 2015 ALJ's proposed decision based on the

remaining 17 causes for discipline in late June 2015, with an effective date of July 29,

2015.

        Both parties requested reconsideration; Oduyale sought reversal of the revocation

of his license, and the Executive Officer asked the Board to revoke the Cal-Mex permit.




1     In April 2014, the DEA performed a complete inspection of the pharmacy, after
which it identified two record-keeping violations. The DEA subsequently renewed Cal-
Mex's unrestricted DEA registration, and these violations were not used as a basis for the
Board's disciplinary charges against Oduyale. Accordingly, we do not detail them here.

2     Some of the charges for discipline were against Oduyale and others were against
Oduyale and Cal-Mex pharmacy. Because this appeal regards only Oduyale, we do not
address the charges against the pharmacy.
                                             7
The Board denied Oduyale's request for reconsideration and granted the Executive

Officer's request for reconsideration.

                     E. First Petition for Peremptory Writ of Mandate

       On July 20, 2015, Oduyale filed a petition for peremptory writ of mandate to set

aside the revocation of his license. He also requested a stay of the decision, which the

court denied. In its August 2016 judgment, the superior court set aside the third, fourth,

tenth, twelfth, fifteenth, sixteenth, nineteenth, and twentieth causes for discipline, in most

instances because the court determined they were not supported by the weight of the

evidence. The court remanded the matter to the Board to reconsider the penalty in light

of the remaining nine causes for discipline. Neither party appealed this judgment.

                                   F. Causes for Discipline

       Following the judgment by the Superior Court in Imperial County, there were nine

sustained causes for discipline:

        1. First Cause: Failure to Maintain Acquisition and Disposition Records

       The first cause for discipline was brought for failure to maintain acquisition and

disposition records and failure to keep inventory for hydrocodone/acetaminophen

10mg/325mg (Norco) from May 1, 2012 through January 28, 2013. The court

acknowledged there was no evidence of theft or diversion of pills; however, the poor

record-keeping, a requirement in place to avoid theft or diversion, was cause for concern.

                  2. Fifth Cause: Deviation of Prescription Instructions

       The fifth cause for discipline was brought for deviation from prescription

instructions without documentation or consent of the prescriber of four prescriptions.

                                              8
The court commented that the deviations were significant enough to cause concern about

patient welfare even when considered against the thousands of prescriptions dispensed

during the audit period. These deviations included an order that the prescriber issued to

take Lorazepam3 every 8-12 hours, which the pharmacy changed to take it every 8-12

hours as needed for pain. The pharmacist also changed the order for

hydrocodone/APAP4 to be taken "every 8 hours as needed" to a standing order directing

the patient to take it "every 8 hours." An Ambien5 prescription was changed from an

instruction to take it "every night at bedtime for 7 weeks" to take it "every night at bed as

needed for sleep." Finally, the last deviating prescription for Testim was changed from

"apply 1/2 tube daily to shoulders" to "apply daily as directed."

           3. Sixth and Seventh Causes: Lacking Controlled Substance Forms

       The sixth and seventh causes for discipline related to the dispensing of 24

prescriptions for controlled substances that were not written on controlled substance

forms. The controlled substance forms are required to ensure a prescription is not


3      Lorazepam is a Schedule IV controlled substance (Health & Saf. Code, § 11057,
subd. (d)) and a dangerous drug (Bus. & Prof. Code, § 4022).

4       Hydrocodone/acetaminophen is a narcotic Schedule III controlled substance
(Former Health & Saf. Code, § 11056, subd. (e)(4)) and a dangerous drug (Bus. & Prof.
Code, § 4022). It is known by brand names Vicodin, Norco, Zydone, Maxidone, Lortab,
Lorcet, Hydrocet, Co-Gesic, and Anexsia, and it is used as a narcotic analgesic for pain
relief.

5      Ambien is a brand name for Zolpidem, which is a Schedule IV controlled
substance (Health & Saf. Code, § 11507, subd. (d)) and a dangerous drug (Bus. & Prof.
Code, § 4022) used for short-term treatment of insomnia.

                                              9
counterfeit. Additionally, although Oduyale told the inspector he verified the

prescriptions that were not written on the proper controlled substance form, he did not

provide copies of those verifications during the first inspection on January 28, 2013.

When he later sent them around February 1, the inspector discovered 24 prescriptions

lacked verifications, and despite her subsequent requests for documentation of the

verifications, she did not receive them. Although Oduyale provided documents

purporting to be the verifications at the administrative hearing, they were printed copies

of whatever information had been in the computer system, not true verifications.

              4. Ninth Cause: Missing Documentation of Prescriber Names

       The ninth cause for discipline was for failing to document or obtain the name of

the agent of the prescriber who transmitted oral prescriptions for 39 controlled substance

prescriptions. The court concluded Oduyale's methods for verifying prescriptions were

haphazard at best, and the individuals his staff claimed verified the prescriptions did not

work for the prescribing doctor. Although no evidence indicated the identified doctor

denied prescribing the medications, the court concluded the records in question were

insufficient to ensure the pharmacy was avoiding potential abuse.

           5. Thirteenth Cause: Falsely Edited Verifications of Prescriptions

       The thirteenth cause for discipline was for knowingly making a document that

falsely represents the existence of facts, based on written verifications Oduyale supplied

the Board. Several original prescriptions were faxed or written, and they required

verifications. Oduyale provided verifications with edited "backers," which are notes

regarding dispensing the medicine written on the back of the original prescriptions. The

                                             10
verifications had discrepancies when compared to the original documentation. The 2015

ALJ found Oduyale's explanations lacked credibility and determined the verifications

were created at a later time.

 6. Fourteenth Cause: Failure to Exercise and Implement Best Professional Judgment

       The fourteenth cause for discipline was brought for failure to exercise and

implement the best professional judgment. The court concluded the weight of the

evidence against Oduyale for the fifth cause for discipline, deviating the instructions and

requirements on the medication, supported this charge.

                         7. Seventeenth Cause: Gross Negligence

       In finding the weight of the evidence supported the seventeenth cause for

discipline, the court concluded Oduyale was grossly negligent for relabeling five bags of

intravenous oxytocin6 at Pioneer Memorial Hospital.7 On February 26, 2014, while

working as a pharmacist at the hospital, Oduyale prepared labels for sterile compounded

bags of oxytocin, which were expired. The drug manufacturer had never provided data or

authorized the extension of the drug beyond its assigned 28 days. Oduyale testified he

had looked for compounded oxytocin bags, but they were all expired by one or two days,

and he could not get oxytocin from another hospital or retail pharmacy because they were



6     Oxytocin is a dangerous drug. (Bus. & Prof. Code, § 4022.) It can be used to
induce labor or increase its speed.

7      Oduyale notes that there is some ambiguity regarding the court's finding with
respect to the seventeenth cause for discipline because the original cause for discipline
charged Oduyale with gross negligence for relabeling, verifying, and dispensing oxytocin
while the court's finding only explicitly referenced relabeling.
                                            11
closed. He shook the compound bags and inspected them against the light to see if he

could observe any particulates in the fluid, and he squeezed the bags to determine if there

was leakage. Because the bags looked stable, he decided to extend the beyond-use date

on four or five bags. He did not inform anyone he had done this.

       John Paul Teague, the pharmacist-in-charge at the hospital, terminated Oduyale's

employment as a result of these actions. He explained if a patient in labor were not

progressing on inefficient medication, a doctor could order a higher dosage, which might

be excessive when full-strength medication was subsequently administered; thus,

extending the expiration dates created a potential for harm.

       The court also considered literature, which indicates the compounded oxytocin

could have beyond-use dates of 31 days if the bags were refrigerated and sterility tests

were conducted; however, it noted there was no evidence either of those things occurred.

Additionally, Elvira Martinez Gonzalez, a licensed pharmacy technician employed by the

hospital for 13 years, testified the pharmacy had concentrated vials of oxytocin for

compounding if the bags they had were all expired, and there were multiple unexpired

vials of oxytocin available; thus, there was no need or emergency to justify extending the

expiration date. She also testified it was against hospital policy to use expired drugs.

       Oduyale offered testimony from expert Anna K. Brodsky, who initially testified

that "[i]f the literature supported a date extension, there were no precipitates visible, the

bag was stored under good conditions and the hospital policy allowed the pharmacist to

change the date, then the pharmacist could properly exercise his or her professional

judgment to extend the date." Under cross-examination, she admitted she was not aware

                                              12
of any literature supporting a determination that compounded oxytocin bags remained

sterile after 28 days, and she would send the product to a lab to determine if they

remained stable and sterile. She also testified a pharmacist could not see

microprecipitates by looking at a compounded drug product.

            8. Eighteenth Cause: False Report of Expiration Date of Oxytocin

       The eighteenth charge for discipline, for knowingly making a document that

falsely represents the existence of facts, was based on Oduyale's conduct at Pioneer

Memorial Hospital. The court concluded the weight of the evidence supported this

violation because Oduyale altered the expiration dates.

                           G. The Board's Revocation Decision

       After the Board received the court's decision, it invited written argument from

both parties, which it received. The Board's subsequent decision explained it had

evaluated the criteria provided by the Board of Pharmacy Disciplinary Guidelines and

regulations. There was no evidence of harm occurring to Cal-Mex customers or Pioneer

Hospital patients; however, the Board noted actual harm is not required to establish a

nexus between misconduct and fitness to practice. The Board noted its primary goal is to

protect the public before harm occurs, and it explained: "Even with the causes of action

dismissed pursuant to the Imperial Court's decision, the multiple instances of failure to

comply with laws and regulations applicable to pharmacies and pharmacists are serious

and present[ ] a significant potential of harm to the public."

       The Board wrote: "The seriousness of the violations is underscored by the

undeniable evidence that, for all his years of experience, Respondent Oduyale does not

                                             13
appear to understand the basic principles of operating a pharmacy and is incapable of

running an orderly and compliant pharmacy." It commented that the 2006 conclusion

that he " 'played fast and loose' " with some of the rules was equally applicable to the

present charges, and his relabeling of oxytocin shows a "fundamental lack of

understanding of compounding, expiration dates, the requirement to document and notify

others when medications are altered, and hospital policies." It found Oduyale's "cavalier

attitude and lack of understanding of the serious nature of his misconduct in the context

of the practice of pharmacy" to be alarming.

       The Board expressed concern about "[r]ecord keeping deficiencies and the

pervasive failure to attend to detail" dating back to 2005, and it commented that Oduyale

did not seem "fundamentally capable or willing" to get the issues under control. It stated

there was no good explanation for how documents obtained at the initial inspection were

reproduced later as different documents.

       Separating Oduyale's personal qualities as a kind and generous man who cares

about his customers and community from his competence as a pharmacist, the Board

concluded Oduyale was not competent based on his lack of understanding of the rules,

regulations, and policies and his inability to conform to them. It explained Oduyale's

"failure to maintain complete control and an inability to demonstrate complete control

through clear and organized files, invites abuse and presents a significant potential of

harm to the public[,]" even without evidence of diversion or theft of drugs. It found:

"Even after excluding the causes of action pursuant to the Imperial Court's decision, the

remaining causes and the prior history clearly reflect that public protection can only be

                                             14
accomplished if Respondent Oduyale can no longer practice as a pharmacist." In January

2017, the Board ordered Oduyale's license revoked.

                         H. Second Petition for Writ of Mandate

       Oduyale filed a petition for writ of mandate requesting the court to instruct the

Board to set aside the revocation and to impose a lesser penalty. He argued there was no

justification for revoking his license because the Board could have imposed stringent

conditions on probation instead. He also contended that because there was no harm to the

public, and no Category IV offenses, no reasonable person would conclude placing

conditions of probation on him would be inadequate.

                             I. Second Writ Petition Hearing

       At the hearing on the petition for writ of mandate, the court considered four issues:

(1) whether the Board's written decision after remand violated due process because

Oduyale contended it was written by the Attorney General rather than the Board;

(2) whether the requests for judicial notice had been granted and if not, the grounds for

denial; (3) whether the penalty imposed by the Board was a manifest abuse of discretion;

and (4) whether there was a factual basis for revocation.8

       The court explained it was looking at the matter de novo, reviewing the remaining

violations, the prior history, what led to the charges, and whether there was a manifest



8      The first two issues were not raised on appeal. The court concluded there was no
evidence the decision was drafted by the Attorney General. The court denied three of
Oduyale's requests for judicial notice and granted the rest. It denied the Board's requests
for judicial notice because they were all legal citations, of which the court concluded it
did not need to take judicial notice to consider.
                                             15
abuse of discretion in how the Board handled the revocation. It also asked where in the

administrative record there was evidence that the Board had considered levels of

discipline less than revocation and explained why those would not be appropriate.

       The court commented: "[I]f the board did not discuss something less than

revocation, that is a potential manifest abuse of discretion." Although the court

recognized there was a paragraph stating the Board had considered its discipline options,

the court also noted the Board did not "address the full range of what [it could] do and

why won't it work," and the court explained it was looking for something in the decision

that offered reasoning for why the Board had not imposed discipline less than revocation.

       The court entered judgment January 31, 2018, remanding the matter to the Board

and directing it to address in its decision each and every form of discipline, short of

revocation, and explain why those lesser forms of discipline were insufficient to protect

the public. The Board timely filed a notice of appeal, and Oduyale timely filed a notice

of cross-appeal.

                                             III.

                                        DISCUSSION

                       A. The Board Provided an Adequate Record

       First, the trial court committed error when it concluded the Board manifestly

abused discretion by failing to discuss all lesser forms of discipline before reaching its

decision to revoke Oduyale's license. We disagree with its finding that the Board failed

to provide an adequate record to determine whether it fully reconsidered the penalty, as it

previously had been instructed to do.

                                             16
       Code of Civil Procedure, section 1094.5, subdivision (b) provides that when there

is a petition for writ of mandamus, the court should inquire as to whether there was any

prejudicial abuse of discretion, including instances in which the administrative order or

decision " 'is not supported by the findings, or the findings are not supported by the

evidence.' " (Topanga Association for a Scenic Community v. County of Los Angeles

(1974) 11 Cal.3d 506, 515 (Topanga).) In Topanga, the Supreme Court explained an

administrative body must render findings sufficient to enable the parties to determine

whether and on what basis they should seek review and, in the event of review, apprise

the reviewing court of the basis for the board's action. (Id. at pp. 513-514.) Thus, the

agency rendering a decision must "set forth findings to bridge the analytic gap between

the raw evidence and ultimate decision or order." (Id. at p. 515.)

     B. The Board Was Not Obligated to Detail Every Possible Disciplinary Action

       While Topanga requires findings to bridge the gap between the evidence and an

agency's decision (Topanga, supra, 11 Cal.3d at p. 515), it does not require the Board to

outline all the reasons it opted not to impose a lesser form of discipline. It is only

required to justify the penalty imposed, including "a statement of the factual and legal

basis for the decision." (Gov. Code, §§ 11425.10, subd. (a)(6) & 11425.50, subd. (a).)

Here, our independent review confirms the Board has done this.

       In its statement of decision, the trial court looked for abuse of discretion, which it

described as occurring if the findings were not supported by the weight of the evidence,

citing Code of Civil Procedure section 1094.5, subdivision (c) and Bixby v. Pierno (1971)

4 Cal.3d 130, 143. It explained that "abuse of discretion is established if the court

                                              17
determines that the findings are not supported by the weight of the evidence." It then

explained it was the trial court's responsibility to resolve questions of credibility based on

the record and opined that the record did not reflect "any sort of actual deliberation and

consideration by the Board of measures short of full revocation as a means of protecting

the public."

       This was the incorrect standard of review at this point in the proceeding. Code of

Civil Procedure section 1094.5, subdivision (c) applies when a party claims the findings

are not supported by the evidence. In those cases, the court evaluates whether there is an

abuse of discretion by considering the weight of the evidence. (Code Civ. Proc.,

§ 1094.5, subd. (c); Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see Hoang v.

California State Bd. of Pharmacy (2014) 230 Cal.App.4th 448, 454-455.) Here, the

findings had already been established by the court following the first writ proceeding, and

those conclusions were not challenged in an appeal.9 Accordingly, those findings govern

the outcome here.

       Instead, Oduyale challenged whether the Board had proceeded in the manner

required by law, which is reviewed for abuse of discretion as defined in subdivision (b) of




9       The parties agree that the Board could consider the allegations sustained by the
trial court's decision following Oduyale's first petition for writ of mandamus.

                                             18
Code of Civil Procedure section 1094.5.10 Because the previous writ judgment had

already determined which findings were supported by the evidence, here the court's

evaluation of whether there was a prejudicial abuse of discretion by the Board was

limited to whether the Board's revocation decision was supported by those findings.

(Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435; see also Topanga, supra,

11 Cal.3d at pp. 514-515.)

       The trial court concluded the Board's Decision after Reconsideration and Remand

(Board Decision) "does not reflect any sort of actual deliberation and consideration by the

Board of measures short of full revocation as a means of protecting the public." It also

concluded the invitation to submit additional briefing, standing alone, was not sufficient

to demonstrate the Board fulfilled its duty in light of the first writ of mandate. Although

it recognized the Board Decision identified its rationale for revocation in one paragraph,

it also noted the Board Decision "offer[ed] no articulation whatsoever of any effort to

fairly analyze whether any measure or restriction short of outright revocation of

Respondent Oduyale's license would protect the public, while enabling him to earn a

living at his chosen profession." Still, the court did not directly conclude the findings

failed to support a decision to revoke Oduyale's pharmacist license. Instead, it explained



10     Oduyale's supplemental request for statement of decision indicated he was
challenging the fairness of proceedings based on his allegation that the deputy attorney
general drafted the remanded Board decision; Oduyale did not contend directly that the
Board's failure to describe lesser penalties in its written decision violated his due process
rights. Oduyale separately argued there was a manifest abuse of discretion in imposing
revocation of his license because, he alleged, there were lesser penalties that would be
effective.
                                             19
it could not assess whether revocation was the appropriate remedy based on the nine

causes for discipline because the record did not detail the rationale for declining to

impose discipline short of revocation.11

       However, there is no legal requirement to explicitly discuss, consider, and explain

the rejection of all forms of discipline short of the one selected, and the trial court's writ

directing the Board to "discuss each and every form of discipline, short of revocation, and

explain why those lesser forms of discipline are insufficient to protect the public" was

erroneous. So long as the findings "enable the reviewing court to trace and examine the

agency's mode of analysis" (Topanga, supra, 11 Cal.3d at p. 516), there is no abuse of

discretion under Code of Civil Procedure section 1094.5, subdivision (b).

       After reviewing the record for its sufficiency in enabling us to determine whether

the factual determinations support the Board's decision, we reach a different conclusion

about the Board's compliance with its responsibility to determine an appropriate

disciplinary action. To determine whether a decision is supported, we require the

findings to "bridge the analytic gap between the raw evidence and ultimate decision or

order" so that we need not "speculate as to the administrative agency's basis for decision."

(Topanga, supra, 11 Cal.3d at p. 515.) Moreover, we "must resolve reasonable doubts in

favor of the administrative findings and decision." (Id. at p. 514.)




11    At the hearing, the court commented, "Revocation may be the appropriate
conclusion in this case, but failure to fully consider the case may or may not have been
abuse of discretion."
                                              20
       The Board Decision stated that the Board reviewed and considered the entire

record, including the transcript, exhibits, and written arguments for reconsideration and

on remand before issuing its decision. It detailed the allegations and findings related to

the disciplinary action against Oduyale in the 2005 action, the terms of Oduyale's

probation, and its completion. It laid out each cause for discipline, the facts offered by

the Executive Officer, Oduyale's response, and an evaluation of each of the causes.

       It stated the purpose of discipline was not punishment, but instead "to protect the

public from dishonest, immoral, disreputable, or incompetent practitioners." The Board

explained Oduyale had been given correction notices and warnings, and although the

pharmacy would remedy one problem, a new violation would exist during the next visit,

or a previous violation would recur. Considering only the nine causes for discipline, it

concluded their seriousness evidenced Oduyale's lack of understanding of the basic

principles of operating a pharmacy, inability of running an orderly and compliant

pharmacy. The Board determined that Oduyale continued to "play[ ] fast and loose" with

the rules, and his re-labeling of oxytocin showed a "fundamental lack of understanding of

compounding, expiration dates, the requirement to document and notify others when

medications are altered, and hospital policies." Moreover, it found his "cavalier attitude

and lack of understanding of the serious nature of his misconduct in the context of the

practice of pharmacy . . . alarming."

       This explanation bridges the findings and the Board's ultimate decision to revoke

Oduyale's license because it explains the violations were serious, and they demonstrated a

repeated inability or unwillingness to follow rules and a basic lack of understanding of

                                             21
how to handle expired medications. The Board was concerned about "[r]ecord keeping

deficiencies and the pervasive failure to attend to detail" dating back to 2005, and it

commented Oduyale did not seem "fundamentally capable or willing" to get the issues

under control. Thus, its explanation further connected Oduyale's actions and attitudes

with the Board's decision to revoke the license because it determined an attempt at

rehabilitation would not serve the public interest.

       Oduyale argues that because the Board Decision is nearly identical to its previous

decision, other than minor editing changes to reflect the court's reversal of eight of the

original charges for discipline during the first writ proceeding, the Board did not

reconsider the penalty in light of the court's actions. However, the Board's decision

expressly states it focused only on the remaining causes for discipline and prior history,

concluding that "public protection can only be accomplished if Respondent Oduyale can

no longer practice as a pharmacist."12 Moreover, as we explain infra, the Board's

disciplinary decision is not a manifest abuse of discretion; its determination is supported

by substantial evidence. (See Landau v. Superior Court (1998) 81 Cal.App.4th 191, 217-

218, 221 (Landau).)




12     Oduyale's reference to Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438 is
unhelpful. Pirouzian held that the highest priority is protection of the public, and
discipline should when possible "aid in the rehabilitation of the licensee" because
punishment is not the goal. (Id. at p. 446.) However, the Board considered the
possibility of rehabilitation here and concluded, in light of Oduyale's history, his repeated
violations, and his incapability or unwillingness to get the issues under control,
rehabilitation was not possible.

                                             22
          We are satisfied that the Board has "bridged the analytic gap" between raw

evidence and its ultimate decision.13 Accordingly, we vacate the trial court's order

instructing the Board to reconsider the penalty and to discuss each and every form of

discipline short of license revocation, explaining why they are insufficient to protect the

public.

      C. The Board's Disciplinary Action Was Not a Manifest Abuse of Discretion

          In its appeal, the Board asks us to exercise independent judgment and determine

that the nine causes for discipline sustained during the first writ proceeding are sufficient

to support the Board's revocation decision. In his cross-appeal, Oduyale contends the

revocation of his pharmacist license constitutes an abuse of discretion, and he asks us to

direct the Board to impose a lesser penalty. Having concluded there was no violation in

the process the Board used to reach its decision, we next conclude there was no manifest

abuse of discretion in the Board's determination that revocation was the appropriate

penalty in this case, and we reverse the court's judgment.

                                    1. Standard of Review

          "[W]e review de novo whether the agency's imposition of a particular penalty on

the petitioner constituted an abuse of discretion by the agency." (Cassidy v. California

Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627 (Cassidy), citing Antelope Valley


13       In its statement of decision, the trial court commented: "[T]he record provided by
the parties does not reflect any sort of actual deliberation and consideration by the Board
of measures short of full revocation as a means of protecting the public." (Italics added.)
However, the Board was not obligated to do so, and the court did not conclude the Board
failed to contemplate facts and deliberate as to whether revocation was appropriate, only
that it failed to directly address why discipline short of revocation was not appropriate.
                                              23
Press v. Poizner (2008) 162 Cal.App.4th 839, 851 and Szmaciarz v. State Personnel Bd.

(1978) 79 Cal.App.3d 904, 921.) "In reviewing the severity of the discipline imposed, we

look to the correctness of the agency's decision rather than that of the trial court. We

review the actions of the [Pharmacy Board] to determine whether the discipline imposed

constituted a manifest abuse of discretion." (Landau, supra, 81 Cal.App.4th at p. 217;

Intercommunity Medical Center v. Belshe (1995) 32 Cal.App.4th 1708, 1711 [when facts

not challenged, appellate court only determines if board's ruling was so arbitrary and

capricious that it was an abuse of discretion].)

       " 'The penalty imposed by an administrative body will not be disturbed in

mandamus proceedings unless an abuse of discretion is demonstrated. [Citations.]

Neither an appellate court nor a trial court is free to substitute its discretion for that of the

administrative agency concerning the degree of punishment imposed.' [Citation.]"

(Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652, quoting Barber v.

State Personnel Bd. (1976) 18 Cal.3d 395, 404.) " ' "In reviewing the exercise of this

discretion we bear in mind the principle 'courts should let administrative boards and

officers work out their problems with as little judicial interference as possible . . . . Such

boards are vested with a high discretion and its abuse must appear very clearly before the

courts will interfere.' " ' [Citation.] 'The policy consideration underlying such allocation

of authority is the expertise of the administrative agency in determining penalty

questions.' [Citation.]" (Cassidy, supra, 220 Cal.App.4th at p. 633.)

       A manifest abuse of discretion exists if the penalty was arbitrary, capricious, or

patently abusive. (Cassidy, supra, 220 Cal.App.4th at pp. 627-628.) If reasonable minds

                                               24
could differ over the appropriateness of a penalty imposed, there is no manifest abuse of

discretion. (Landau, supra, 81 Cal.App.4th at pp. 218, 221; Dresser v. Board of Medical

Quality Assurance (1982) 130 Cal.App.3d 506, 519 ["The facts that reasonable minds

might differ as to the propriety of the penalty imposed fortifies the conclusion that the

administrative body acted within its discretion [citations]."]) " 'Even if a penalty were to

appear to be too harsh according to the court's evaluation, the court is not free to

substitute its own discretion for that exercised by the administrative agency.' " (Landau,

at p. 221.)

       Section 4300 of the Business and Professions Code authorizes the Board to

discipline a pharmacist by suspending or revoking a license. Additionally, Business and

Professions Code section 4001.1 places protection of the public as the highest priority for

the State Board of Pharmacy in exercising its licensing, regulatory, and disciplinary

functions; when that goal is inconsistent with other interests, the public's protection is

paramount. (See Sternberg v. California State Bd. of Pharmacy (2015) 239 Cal.App.4th

1159, 1168-1169.)




                                              25
              2. California State Board of Pharmacy Disciplinary Guidelines

       The California State Board of Pharmacy Disciplinary Guidelines identify 15

factors for the Board to consider in issuing a disciplinary decision.14 (Cal. Dept. of

Consumer Affairs, California State Board of Pharmacy, Disciplinary Guidelines (2007)

p. 3 [hereafter Pharmacy Disciplinary Guidelines].) The Pharmacy Disciplinary

Guidelines state "[n]o single one or combination of the . . . factors is required to justify

the minimum and/or maximum penalty in a given case," and the recommended range of

discipline within each category "assume[s] a single violation of each listed statute or

regulation." (Id. at pp. 3, 5) When there are "multiple violations, the appropriate penalty

shall increase accordingly." (Id. at p. 5.) Additionally, "if an individual has committed

violations in more than one category, the minimum and maximum penalties shall be those

recommended in the highest category." (Ibid.)

                                  3. Oduyale's Violations




14      The factors the Board considers in determining penalties are: "1. actual or
potential harm to the public[;] 2. actual or potential harm to any consumer[;] 3. prior
disciplinary record, including level of compliance with disciplinary order(s)[;] 4. prior
warning(s), including but not limited to citation(s) and fine(s), letter(s) of admonishment,
and/or correction notices(s)[;] 5. number and/or variety of current violations[;] 6. nature
and severity of the act(s), offense(s) or crime(s) under consideration[;] 7. aggravating
evidence[;] 8. mitigating evidence[;] 9. rehabilitation evidence[;] 10. compliance with
terms of any criminal sentence, parole, or probation[;] 11. overall criminal record[;] 12. if
applicable, evidence of proceedings for case being set aside and dismissed pursuant to
Section 1203.4 of the Penal Code[;] 13. time passed since the act(s) or offense(s)[;]
14. whether the conduct was intentional or negligent, demonstrated incompetence, or, if
the respondent is being held to account for conduct committed by another, the respondent
had knowledge of or knowingly participated in such conduct[; and] 15. financial benefit
to the respondent from the misconduct." (Pharmacy Disciplinary Guidelines, at p. 3.)
                                              26
       Category I violations are those that are relatively minor but potentially harmful

and for repeated violations of a relatively minor nature. (Pharmacy Disciplinary

Guidelines, at p. 6.) The minimum penalty is one-year probation, revocation stayed, or

revocation, and the maximum penalty is revocation. (Ibid.) Oduyale's fifth cause for

discipline, for changing the instructions on four prescriptions, establishes four Category I

violations. (Ibid.; Cal. Code of Regs., tit. 16, § 1716.)

       Category II violations are those that create a serious potential for harm, involve a

greater disregard for pharmacy law and public safety, and violations that reflect on ethics,

care exercised, or competence. (Pharmacy Disciplinary Guidelines, at p. 11.) The

minimum penalty for a single Category II violation is revocation, revocation stayed, or

three years of probation, and the maximum penalty is revocation. (Ibid.) Oduyale was

found to have committed Category II violations repeatedly. This includes the sixth and

seventh causes for discipline because he dispensed 24 prescriptions for controlled

substances that were not on the proper form. (Bus. & Prof. Code, § 4301, subd. (o);

Health & Saf. Code, § 11164, subd. (a); & Cal. Code of Regs., tit. 16, § 1717.3, subd. (a);

Pharmacy Disciplinary Guidelines, at pp. 13-14.) It also includes the ninth cause for

discipline, for failure to document the name of the prescriber transmitting transcriptions

for 39 prescriptions, a requirement to avoid potential abuse. (See Bus. & Prof. Code, §

4301, subd. (o); Health & Saf. Code, § 11164, subd. (b)(3).) Plus, it includes the

thirteenth and eighteenth causes for discipline for knowingly making false statements.

Oduyale was found to have provided prescription verifications with false "backers,"

which had discrepancies when compared to their originals and led the court to conclude

                                              27
they were falsified, and he changed the label on oxytocin, improperly extending the

expiration date. The Board believed that Oduyale's willingness to falsify documents was

an indication he could not be rehabilitated.

       Finally, the fourteenth and seventeenth causes for discipline are Category II

violations. (Bus. & Prof. Code, §§ 4301, subd. (c) & 4306.5, subd. (b); Pharmacy

Disciplinary Guidelines, at p. 13.) The finding of unprofessional conduct for failing to

exercise best judgment in dispensing a drug was not about record-keeping; it was for

changing instructions on prescriptions without consent from the prescriber to do so. The

gross negligence finding was also specific to relabeling five bags of oxytocin to extend

their expiration date for dispensing to pregnant patients.

       Category III violations are recommended for, among other things, knowing or

willful violations of laws or regulations pertaining to dispensing or distributing controlled

substances, fraudulent acts committed in connection with a licensee's practice.

(Pharmacy Disciplinary Guidelines, at p. 15.) The minimum penalty is revocation,

revocation stayed, 90 days actual suspension, or three years of probation. (Ibid.) The

maximum penalty is revocation. (Ibid.) Oduyale was found to have committed Category

III violations over a nine-month period, from May 1, 2012 through January 28, 2013, by

failing to properly maintain records of a controlled substance. The discrepancy was an

overage of pills, and the Board noted that there was no evidence of theft or diversion of

pills. However, it concluded that the inaccuracy, coupled with similar violations in 2006,

indicated a problem.

                  4. Substantial Evidence Supports the Board's Decision

                                               28
       In his cross-appeal, Oduyale contends the evidence does not establish he is

dishonest, immoral, disreputable, or incompetent, and thus revocation of his license is

unnecessary to protect the public. To support his position, Oduyale cites findings that he

was kind, generous, and caring, as well as letters of support and customer evaluations.

He also contends that all but one of the sustained findings involved record-keeping

violations and challenges the Board's conclusion that these findings demonstrate Oduyale

was unable to properly run a pharmacy because, he argues, the violations only occurred

during a three-month period and were not representative of his lengthy time in practice,

and because the violations were corrected. Oduyale further contends that because a

majority of the violations related to record-keeping, and because he previously

successfully completed probation, there was not sufficient evidence that he is unfit to

practice pharmacy. Finally, he suggests that because there had been no harm to the

public, and he did not commit any Category IV offenses, revocation was not necessary to

protect the public.

       While the audit reviewed a three-month period of time during which there were

prescription violations, nothing in the record suggests that these violations were outliers

or not representative of Oduyale's practice on the whole, particularly in light of Oduyale's

previous discipline, also based on prescription and inventory violations approximately a

decade earlier. Moreover, while Oduyale was found to have committed Category II

violations over the three-month period the audit reviewed, he was also found to have

committed Category III violations over a nine-month period, from May 1, 2012 through

January 28, 2013. Indeed, the repeated nature of Oduyale's violations influenced the

                                             29
Board's decision; Oduyale would remedy one problem, but prior violations would

reappear.

       Additionally, although Oduyale downplays the seriousness of the findings, arguing

that record-keeping violations do not demonstrate a lack of competence or implicate

public safety, poor recording-keeping is cause for concern because absent appropriate

documentation, there is opportunity for theft, diversion, and abuse. Additionally, some of

the charges created serious potential for harm. For example, Oduyale did not dispute the

inaccuracies of the four variances in prescription instructions that were the basis of the

fifth cause for discipline, attributing the discrepancies to mistakes and oversights as a

result of the high volume of prescriptions. However, the Board explained that a high

volume of prescriptions does not mitigate or excuse the errors because accurate directions

are essential to consumer safety. Additionally, when Oduyale relabeled the oxytocin

bags at the hospital without directly informing anyone he had done so, he created

potential for consumer harm because doctors could have increased the dosage to account

for the inefficiency of expired medication, resulting in excessively medicating pregnant

patients.15

       The Board's conclusion that Oduyale's responses to these causes for discipline

were cavalier and lacked an understanding of the serious nature of the misconduct



15     Although Oduyale argues in his reply brief that this action was not serious in
nature because his expert opined that use of the expired oxytocin that evening was not
contraindicated, the record indicates Brodsky ultimately reconsidered her opinion once
she was aware of the specific facts and withdrew her conclusion that Oduyale had
properly exercised professional judgment when he extended the date of the oxytocin.
                                             30
support its determination that these violations are evidence that Oduyale is unfit to

practice. Moreover, the Board expressed concern that Oduyale was not honest because of

his willingness to knowingly provide false information, as demonstrated by the thirteenth

and eighteenth causes for discipline.

       Although there is evidence of Oduyale's kindness and generosity, this evidence

does not eliminate the potential harm he created or allay concerns about his repeated

violations, which occurred even after a previous opportunity for rehabilitation. Given the

Board's directive to make public safety paramount (see Griffiths v. Superior Court (2002)

96 Cal.App.4th 757, 768), the Pharmacy Disciplinary Guidelines' direction to increase the

penalty for multiple violations using the penalties in the highest category (Pharmacy

Disciplinary Guidelines, at p. 5), and the Board's discretion in determining the

appropriate disciplinary action (Cassidy, supra, 220 Cal.App.4th at p. 633), the nine

sustained causes for discipline, coupled with Oduyale's disciplinary history, demonstrate

a reasonable mind could reach the conclusion that revocation was the appropriate

disciplinary action here. (See Landau, supra, 81 Cal.App.4th at pp. 218, 221 [no manifest

abuse of discretion if reasonable minds could differ]; Gubser v. Department of

Employment (1969) 271 Cal.App.2d 240, 245-246 [substantial evidence is relevant

evidence a reasonable mind might accept as adequate to support a conclusion].) Thus, we

cannot conclude the Board's action was a manifest abuse of discretion.

                                        DISPOSITION

       We reverse the trial court's judgment and vacate the order directing the Board to

explicitly discuss all lesser forms of discipline and to explain why they are insufficient

                                             31
for public protection. We remand the matter to the trial court with instructions to enter

judgment in the Board's favor and to dismiss the petition with prejudice.

       The Board is entitled to costs on appeal.



                                                                  HUFFMAN, Acting P. J.

WE CONCUR:




HALLER, J.




GUERRERO, J.




                                            32
Filed 10/15/19

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



SOLOMON ODUYALE,                                   D073755

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. ECU09627)

CALIFORNIA STATE BOARD OF
PHARMACY,                                          ORDER CERTIFYING OPINION
                                                   FOR PUBLICATION
        Defendant and Appellant.



THE COURT:

        The opinion in this case filed September 23, 2019, was not certified for

publication. It appearing the opinion meets the standards for publication specified in

California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for

publication is GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and
      ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.



                                                                 HUFFMAN, Acting P. J.

Copies to: All parties




                                            2
