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STATE OF MICHIGAN 

COURT OF APPEALS 

In re COLLEGE PHARMACY. 

BUREAU OF PROFESSIONAL LICENSING, 

 Petitioner-Appellee, 

UNPUBLISHED 

February 7, 2017 

v No. 328828 

Department of Licensing and 

Regulatory Affairs 

COLLEGE PHARMACY, LC No. 14-028072 

 Respondent-Appellant. 

Before: BOONSTRA, P.J., and SHAPIRO and GADOLA, JJ. 

SHAPIRO, J. (dissenting). 

 I respectfully dissent. 

 Respondent appeals from a decision of the Board of Pharmacy Disciplinary 

Subcommittee of the Bureau of Professional Licensing revoking respondent’s license to practice 

in Michigan. I would conclude, given the record before us, that the Board’s imposition of the 

sanction of license revocation was not supported by competent, material, and substantial 

evidence. Accordingly, I would vacate the Board’s order and remand for further proceedings 

pursuant to MCL 333.16226. 

 Petitioner issued an administrative complaint against respondent pharmacy on the 

grounds that it had been subject to administrative penalties in another state, Colorado. MCL 

333.17768(2)(d) provides: 

[I]n a manner consistent with part 161 [MCL333.16101 et seq], the board may 

fine, reprimand, or place on probation, a person licensed under this part, or deny, 

limit, suspend, or revoke a license issued under this part or may order restitution 

or community service if the board finds that . . . [t]he applicant . . . has had its 

license or federal registration limited, suspended, or revoked or been subject to 

any other criminal, civil, or has been subject to any other criminal, civil or 

administrative penalty. 
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 A hearing was conducted by a hearing examiner (ALJ) who issued a Proposal for 

Decision on April 10, 2015. The Proposal for Decision, as will be set forth below, contained 

extensive findings of fact and law none of which are challenged by either party. The hearing 

examiner did not recommend a specific penalty as such an action is beyond her authority. MCL 

333.16231a provides: 

 (2) The hearing examiner shall determine if there are grounds for 

disciplinary action . . . . The hearings examiner shall prepare recommended 

findings of fact and conclusions of law for transmittal to the appropriate 

disciplinary subcommittee. The hearings examiner shall not recommend or 

impose penalties. [Emphasis added.] 

 The ALJ’s conclusions of law read: 

The above Findings of Fact establish that Respondent College Pharmacy had 

administrative penalties imposed against it through Final Orders of the Colorado 

Board of Pharmacy. Pursuant to the Public Health Code Section 17768(2)(d), this 

constitutes grounds for action by the Michigan Board of Pharmacy. The 

Michigan Board of Pharmacy may consider, as mitigation, the above Findings of 

Fact establishing that the current pharmacy manager of Respondent was 

specifically approved by the Colorado Board to take over from a previous 

owner/manager who was in charge when the acts leading to sanctions occurred. 

Further, the new pharmacy manager has instituted policies and procedures to 

prevent reoccurrence of problems. 

 Respondent filed an exception to the ALJ’s proposal for decision arguing that no 

sanctions of any kind were warranted in this case in light of the mitigating factors noted by the 

ALJ. 

 The Board of Pharmacy Disciplinary Subcommittee considered the matter at its June 10, 

2015 meeting, and its resulting order stated that it “accepted the administrative law judge’s 

Findings of Fact and Conclusions of Law in the Proposal for Decision.”1

 The substantive portion 

of the subcommittee’s July 24, 2015 order reads in full: 

 The Disciplinary Subcommittee of the Michigan Board of Pharmacy 

(Disciplinary Subcommittee), having reviewed the administrative record, 

considered this matter at a regularly scheduled meeting held in Lansing, Michigan 

on June 10, 2015 and accepted the administrative law judge’s Findings of Fact 

and Conclusions of Law in the Proposal for Decision. Therefore, 

 IT IS ORDERED that for violating section 17768(2)(d) of the 

Public Health Code, supra, Respondent Pharmacy’s license to practice as a 

 

1

 The subcommittee’s proceedings are not recorded. Minutes are maintained but as to the instant 

matter state only that a motion to revoke respondent’s license was made and adopted. 
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pharmacy in the state of Michigan is REVOKED, commencing on the 

effective date of this Order. 

 Respondent argues that the decision to impose license revocation as opposed to any of the 

other available sanctions2

 should be reversed. We review final orders of disciplinary 

subcommittees to determine whether they are authorized by law and are supported by competent, 

material, and substantial evidence on the whole record. Dep’t of Community Health v Risch, 274 

Mich App 365, 370-371; 733 NW2d 403 (2007), and Const 1963, art 6 § 28. Respondent 

suggests that the subcommittee’s decision should be reviewed under an abuse of discretion 

standard. However, in Risch, we considered this issue and concluded that “judicial review of the 

disciplinary subcommittee’s orders is limited to that set forth in Const. 1963, Art. 6 Sec 28, 

which provides in relevant part: 

“All final decisions, findings, rulings and orders of any administrative officer or 

agency existing under the constitution or by law, which are judicial or quasijudicial and affect private rights or licenses, shall be subject to direct review by 

the courts as provided by law. This review shall include, as a minimum, the 

determination whether such final decisions, findings, rulings and orders are 

authorized by law; and, in cases in which a hearing is required, whether the same 

are supported by competent, material and substantial evidence on the whole 

record.” [274 Mich App at 371, quoting Const. 1963, Art. 6 Sec 28.] 

 The relevant standard of review thus consists of two different determinations. First, was 

the decision authorized by law and second was it “supported by competent, material, and 

substantial evidence on the whole record.” The first of these is straightforward; the decision is 

authorized by law. As to the second, it is necessary to review the ALJ’s findings of fact, which 

as noted above, neither party takes exception to: 

FINDINGS OF FACT

1. Jerry Gillick R.Ph., has been licensed as a pharmacist in the United States 

since 1997. In 2005 he moved to Colorado and began working for College 

Pharmacy. College Pharmacy is licensed in 47 states. In 2009, Mr. 

Gillick became President and CEO of College Pharmacy[.] 

2. On December 18, 2007, Colorado’s Board of Pharmacy issued a 

Stipulation and Final Order. The charges leading to the Final Order 

involved Board allegations that College Pharmacy had introduced or 

delivered into interstate commerce a human growth hormone (i.e.

“somatropin”) that was not approved by the FDA, and offered it for sale 

through interstate commerce for uses and conditions other than those 

approved by the FDA for authorized human growth hormones. The 

 

2

 These include: probation, fine, reprimand, limitation or suspension of license, restitution or 

community service. MCL 333.17768(2)(d). 
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Colorado Board also alleged inaccurate or inappropriate reprocessing and 

repackaging of the somatropin. At the time Thomas Bader was owner of 

College Pharmacy. The Colorado charging document asserts that Mr. 

Bader, as the pharmacist manager, was responsible for all operations 

violations charged against College Pharmacy. As a result of the Final 

Order, Mr. Bader was directed to transfer all of his shares to an employee 

stock ownership plan. College Pharmacy was required to submit quarterly 

reports assuring that any dispensing of human growth hormone was only 

for FDA approved uses and that dispensing was based on patient-specific 

orders. The Order also required that the Board approve any pharmacy 

manager appointed to run College Pharmacy for seven years from the date 

of the Final Order. (Exhibit 1) 

3. Mr. Gillick became the pharmacist in charge (i.e. pharmacy manager) after 

Mr. Bader relinquished ownership of College Pharmacy. Mr. Gillick has 

assured compliance with all reporting requirements imposed on College 

Pharmacy as a result of the 2007 Final Order. 

4. Prior to Mr. Gillick taking over as pharmacy manager, a routine audit in 

May 2008 found that College Pharmacy had purchased and received

human growth hormone from a wholesaler that was not registered in 

Colorado. Further the audit found that an Illinois veterinarian had ordered 

the human growth hormone listing herself as both the prescribing 

practitioner and the patient. These two acts were found to be violations of 

Colorado pharmacy regulations and a violation of the 2007 Stipulation and 

Final Order that prohibited any further violations of state or federal 

regulations. (Exhibit 2) 

5. When Mr. Gillick took over pharmacy manager responsibilities in 2009, 

he was not aware that Mr. Bader had entered an agreement to purchase 

human growth hormone from an unlicensed wholesaler and filled a

prescription indicating that a veterinarian was self- prescribing [sic] 

human growth hormone, because prior to Mr. Gillick assuming managerial 

responsibilities, there was no system in place to track whether wholesalers 

were registered in Colorado. Although Mr. Gillick was not involved in the 

violations found in the May 2008 audit, he assumed responsibility for 

correcting the College Pharmacy violations, and complying with all 

conditions of the Colorado Board’s disciplinary Orders, when he took over 

as manager. 

6. As a result of the 2008 audit findings, the Colorado Board issued a second 

Stipulation and Final Order dated April 10, 2009, placing College 

Pharmacy’s registration as a prescription drug outlet in Colorado on 

probation for seven years, prohibiting the purchase, sale and dispensing of 

any human growth hormone during probation and requiring more 

quarterly reports to the Board. (Exhibit 2) 
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7. In or around December 2012, College Pharmacy entered into an 

agreement to compound an injectable used in cosmetic procedures called 

“Tozzi Solution”. [sic] The inventor of the solution filed a complaint 

against College Pharmacy with the Colorado Board. The Board’s 

investigation found that a trial batch of the solution compounded by 

College Pharmacy was dispensed with a “7-months beyond use” 

expiration date instead of “365 days beyond-use date” the manufacturer’s 

formula called for. Stability testing by College Pharmacy indicated that 

the solution had a minimum 2 year stability. The mistaken expiration date 

assigned to the trial batch did not affect the safety of the batch, rather the 

expiration period was shorter than it needed to be. Although the Board did 

not find that College Pharmacy had violated a specific statutory provision 

or rule, it issued a “letter of admonition” on July 22, 2013, and noted it as 

a “disciplinary action” in College Pharmacy’s permanent record. (Exhibit 

3) The July 2013 Colorado letter of admonishment was reported to each 

of the 47 states where College Pharmacy is licensed, and there has been no 

disciplinary action in states other than Michigan as a result of the 

admonishment. 

8. After taking over College Pharmacy, and with knowledge of the 2007 and 

2009 Colorado Board actions, Mr. Gillick instituted a system to document 

whether a wholesaler involved in a purchase is licensed in a specific state. 

In addition there is now a system to track the type of practitioner ordering 

or prescribing controlled substances. College Pharmacy only fills patient 

specific prescriptions and no bulk distribution occurs. There have been no 

product safety allegations filed against College Pharmacy. 

 Given the statutory limitations on its authority, the ALJ did not make a recommendation 

as to the proper sanction other than to note that given the violation the Board had “grounds for 

action” against respondent and that in imposing any sanction, the Board “may consider as 

mitigation, the above Findings of Fact establishing that the current pharmacy manager of 

Respondent was specifically approved by the Colorado Board to take over from the previous 

owner/manager who was in charge when the acts leading to sanctions occurred. Further, the new 

pharmacy manager has instituted policies and procedures to prevent reoccurrence of problems.” 

 In light of these Conclusions of Law, I find no grounds in the ALJ’s report to impose the 

ultimate penalty of license revocation. Given that the Board adopted and relied upon that report, 

the Board did not have “substantial evidence” to support the sanction imposed. The serious 

violations of 2006 and 2008 occurred while respondent was under different ownership and 

management. The new management was specifically approved by the Colorado Board of 

Pharmacy, and respondent was placed on probation for a period of seven years. The only 

violation that occurred thereafter was the 2012 error, which, as found by the ALJ, “did not affect 

the safety of the [medicine], rather the expiration period was shorter than it needed to be.” The 

Colorado Board of Pharmacy admonished respondent for this violation but took no other action. 

Respondent reported this discipline to the other 47 states in which it is licensed, and none, other 

than Michigan, took disciplinary action. 
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 When asked at oral argument why substantial evidence supported the sanction, counsel 

for the Board took the position that the Board is not required to offer any justification for 

selecting one sanction over any other and that its sanction decisions are unreviewable except for 

whether the sanction may be imposed at all. I recognize that the Board has broad discretion and 

it is not our role to second-guess its choice of sanction where any of several are supported by the 

evidence. Nevertheless, while the standard of review is very deferential, the Board’s actions are, 

and to comply with due process must be, reviewable by this Court, and, I would not conclude 

that because the sanction is authorized by law that it is necessarily supported by substantial 

evidence. Given the Board’s position that its choice of sanctions is unreviewable, it has not 

made an argument why the facts of this case, as found by the ALJ and accepted by the Board, 

justify the most severe sanction available. Moreover, having accepted the ALJ’s findings, it 

must consider the mitigating factors set forth therein. See Marrs v Board of Medicine, 422 Mich 

688, 694; 375 NW2d 321 (1985). 

 Given the record before us I would conclude that the Board did not consider the 

mitigating circumstances in determining the appropriate sanction. I would vacate the 

disciplinary subcommittee’s final order and remand to that body for further consideration 

pursuant to MCL 333.16226(2).3

/s/ Douglas B. Shapiro 

 

3

 Respondent’s counsel filed an affidavit with this Court attesting that at the Disciplinary 

Subcommittee meeting there was no discussion regarding the specific facts of this case and that 

one of the subcommittee’s members “commented that Michigan does not need any additional 

out-of-state compounding pharmacies.” This affidavit is not part of the administrative record, 

and I do not rely upon it. I reference it however, to suggest that where the most severe sanction 

is being imposed despite significant mitigating evidence, it would facilitate our review if the 

Board provided some of its reasoning in its order.