IN THE MATTER OF THE APPLICATION OF HANNA

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3210-21
IN THE MATTER OF
THE APPLICATION OF
ASHRAF T. HANNA,
PHARMACY TECHNICIAN,
REGISTRATION NO.
28RWO1436300, PHARMACY
INTERN REGISTRATION
NO. 28RHOOO25000 FOR
REINSTATEMENT OF
REGISTRATIONS AND
RESUMPTION OF THE
PHARMACIST LICENSE
APPLICATION PROCESS IN
THE STATE OF NEW JERSEY.
____________________________
Submitted June 6, 2023 – Decided August 8, 2023
Before Judges Sumners and Susswein.
On appeal from the New Jersey State Board of
Pharmacy.
Ashraf T. Hanna, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Jodi C. Krugman, Deputy Attorney
General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-3210-21
PER CURIAM
Petitioner Ashraf T. Hanna appeals from a final agency decision by the
New Jersey Board of Pharmacy (the Board) denying his requests to (1) reinstate
his registrations as a pharmacy technician and pharmacy intern and (2) resume
his pharmacist license application process. After carefully reviewing the record
in light of the applicable legal principles and arguments of the parties, we affirm
substantially for the reasons explained in the Board's seventeen-page
administrative decision.
I.
We need only briefly summarize the pertinent procedural history and
facts. In 2013, Hanna admitted to stealing medications from the pharmacy
where he worked. He was charged with possession of a prescription legend drug
with intent to distribute. The criminal charges were dismissed in 2015 after he
completed a pretrial intervention (PTI) program. In 2018, the related criminal
records were expunged, although a 2019 Superior Court order made clear the
expungement did not apply to the Board.
In 2016, a Provisional Order of Discipline and Denial of Licensure was
filed with the Board based on Hanna's misconduct. He did not contest the
allegations and instead entered into a consent order with the Board. That order
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denied Hanna's then-pending application to practice as a pharmacist in New
Jersey, revoked his registrations to work as a pharmacy technician or intern,
prohibited him from seeking to reinstate the registrations or pursue licensure as
a pharmacist for at least three years, required him to pass an ethics course,
imposed monetary penalties, and required him to demonstrate fitness to practice
pharmacy in a hearing before the Board prior to seeking reinstatement of his
registrations.
After initially seeking reinstatement before he was eligible, Hanna waited
the requisite period, completed the ethics course, paid the monetary penalties,
and then renewed his request to reinstate his registrations and resume his
licensure application. The hearing before the Board to demonstrate he was fit
to practice pharmacy was held on March 3, 2022. Hanna testified that the thefts
of pharmaceuticals never occurred and that his past admissions had been
coerced.
In its final decision, the Board noted, "[g]ood moral character is a
requirement for initial and ongoing licensure as a pharmacist and registration as
a pharmacy intern and pharmacy technician," citing N.J.S.A. 45:14-50(c);
N.J.A.C. 13:39-2.3; N.J.A.C. 13:39-2.7(b)(3); and N.J.A.C. 13:39-6.6(a)(6).
The Board found Hanna's March 3, 2022 testimony was not credible. It
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emphasized that he had, on multiple occasions, admitted to stealing prescription
drugs and highlighted the specificity of those previous confessions. The Board
found Hanna's "current testimony evinces a failure on his part not only to take
responsibility for his former actions, but also to currently appreciate the reasons
why that conduct is inimical to public health, safety and welfare."
In explaining its credibility finding, the Board noted that the consent
order, which reaffirmed his confessions, was entered into five years after the
thefts. The Board reasoned that if the theft charges were untrue and his initial
admission had been coerced and false, Hanna could have challenged those
charges instead of entering the consent order.
The Board also rejected Hanna's argument that the oath he took on March
3, 2022 added legitimacy to his testimony that day, noting Hanna was also under
oath when he previously admitted to the crimes. Indeed, in disputing the
previous admissions, Hanna's counsel told the Board that Hanna "did lie under
oath. There's no doubt about that."
Nor did the Board accredit Hanna's completion of an ethics course as proof
of his good character because the essay he wrote as part of that course was
inconsistent with his new testimony. The Board quoted language from the essay
that appeared to acknowledge culpability. The Board concluded, "[n]o one
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reading [Hanna's] essay would conclude anything other than that the misconduct
detailed in [Hanna]'s written statement, guilty plea and in the consent order, had
in fact occurred."
Finally, the Board explained, "[a] license or registration is a privilege, not
a right" and summarized the reasons why it did not believe Hanna had
demonstrated fitness to be a pharmacist. It stated, "[e]ven were the Board to
accept [Hanna's] version of the facts, his testimony reflects a shocking lack of
understanding and insight into the seriousness of a situation that led to the
revocation of two registrations and the denial of his application to become a
pharmacist." The decision concluded, "[t]he Board finds that [Hanna] has not
demonstrated the requisite fitness, competence and good moral character to
warrant reinstatement of his registrations or to permit him to pursue licensure as
a pharmacist in New Jersey at this time." Accordingly, the Board denied
Hanna's requests.
Hanna raises the following contentions for our consideration:
POINT I
[HANNA] SHOULD BE GRANTED HIS
PHARMACY INTERN AND PHARMACY
TECHNICIAN REGISTRATIONS AND RESUME
HIS PHARMACIST APPLICATION PROCESS IN
THE STATE OF NEW JERSEY BECAUSE [HE]
SHOULD EARN BACK HIS RIGHT TO PRACTICE
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HIS PROFESSION ACCORDING TO THE US
CONSTITUTION; THE RIGHT TO PRACTICE AND
EARN.
POINT II
[HANNA] SHOULD BE GRANTED HIS
PHARMACY INTERN AND PHARMACY
TECHNICIAN REGISTRATIONS AND RESUME
HIS PHARMACIST APPLICATION PROCESS IN
THE STATE OF NEW JERSEY BECAUSE THE
[BOARD] INTENTIONALLY VIOLATES THE NEW
JERSEY SUPERIOR COURT ORDER OF
DISMISSAL AND AN EXPUNGEMENT ORDER
GRANTED BY THE SAME COURT.
POINT III
[HANNA] SHOULD BE GRANTED HIS
PHARMACY INTERN AND PHARMACY
TECHNICIAN REGISTRATIONS AND RESUME
HIS PHARMACIST APPLICATION PROCESS IN
THE STATE OF NEW JERSEY ACCORDING TO A
CONSENT ORDER SIGNED BY [HANNA] AND
THE [BOARD].
POINT IV
[HANNA] SHOULD BE GRANTED HIS
PHARMACY INTERN AND PHARMACY
TECHNICIAN REGISTRATIONS AND RESUME
HIS PHARMACIST APPLICATION PROCESS IN
THE STATE OF NEW JERSEY BECAUSE THE
[BOARD] ABUSED NON-RELATED MATTERS TO
DEPRIVE [HANNA] OF HIS RIGHTS TO
REINSTATE HIS REGISTRATIONS AND RESUME
HIS PHARMACIST APPLICATION PROCESS.
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POINT V
[HANNA] SHOULD BE GRANTED HIS
PHARMACY INTERN AND PHARMACY
TECHNICIAN REGISTRATIONS AND RESUME
HIS PHARMACIST APPLICATION PROCESS IN
THE STATE OF NEW JERSEY AND [HE] SHOULD
BE CIVILLY COMPENSATED BECAUSE HE IS A
VICTIM OF DISCRIMINATION BY THE [BOARD].
POINT VI
[HANNA] SHOULD BE CIVILLY COMPENSATED
BECAUSE HE IS A VICTIM OF DEFAMATION OF
CHARACTER BY THE [BOARD] AND ITS
COUNSEL.
POINT VII
[HANNA] SHOULD BE CIVILLY COMPENSATED
BECAUSE HE IS A VICTIM OF A SEVERE
MENTAL ANGUISH THAT HE SUFFERED FROM
BECAUSE OF THE [BOARD] FOR ALMOST TEN
YEARS.
II.
The scope of our review is narrow. Appellate courts review decisions
"made by an administrative agency entrusted to apply and enforce a statutory
scheme under an enhanced deferential standard." East Bay Drywall, LLC v.
Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493 (2022) (citing Hargrove v.
Sleepy's, LLC, 220 N.J. 289, 301–02 (2015)). That enhanced deference stems,
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in part, from "the executive function of administrative agencies." Mazza v. Bd.
of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995).
"An agency's determination on the merits 'will be sustained unless there
is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks
fair support in the record.'" Saccone v. Bd. of Trs., Police & Firemen's Ret.
Sys., 219 N.J. 369, 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's
Ret. Sys., 206 N.J. 14, 27 (2011)). The party challenging the administrative
action bears the burden of making that showing. Lavezzi v. State, 219 N.J. 163,
171 (2014).
On appeal, the judicial role in reviewing an administrative action is
generally limited to three inquires:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law;
(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of the relevant factors.
[Allstars Auto Grp., Inc. v. N.J. Motor Vehicle
Comm'n, 234 N.J. 150, 157 (quoting In re Stallworth,
208 N.J. 182, 194 (2011)).]
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"When an agency's decision meets those criteria, then a court owes substantial
deference to the agency's expertise and superior knowledge of a particular field."
In re Herrmann, 192 N.J. 19, 28 (2007).
We next apply these principles to the matter before us.1 The critical issue
raised in this appeal is whether the Board's denial of Hanna's requests was
arbitrary, capricious, or unreasonable. See Russo, 206 N.J. at 27. We conclude
Hanna has failed to establish a basis for appellate intervention.
For one thing, we strongly agree with the Board that "good moral
character" is a perquisite to obtaining a license to engage in the practice of
pharmacy. N.J.S.A. 45:14-50(c). The Board had ample support for its
conclusion that Hanna does not possess the requisite moral character to be
entrusted with the responsibilities of a licensed pharmacist. It properly
considered the theft of pharmaceuticals that Hanna confessed to, as well as the
related disciplinary actions Hanna consented to. Further, the fundamental
inconsistency between the essay Hanna wrote to complete his Board-imposed
1 We note that Hanna's amended notice of appeal only references the June 20,
2022 administrative decision denying his requests to reinstate his registrations
and resume his application process. Accordingly, his arguments to overturn the
October 11, 2019 order that clearly and explicitly denied his motion to apply the
2018 expungement order to the Board are not before us. Relatedly, his novel
claim for damages based on alleged torts by the Board are not properly before
us. We decline to address those issues.
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ethics course and his March 3, 2022 testimony demonstrates his lack of candor
is not limited to the past.
The crux of Hanna's argument is that the dismissal of the charges against
him after his completion of a PTI program constitutes proof that he did not steal
pharmaceutical drugs. That argument misconstrues the meaning of a PTI
dismissal. Hanna also suggests that his admission to PTI was predicated on the
State's acknowledgement of his innocence; but if that were true, the charges
would have been dismissed without requiring completion of the PTI program.
We recognize that the eventual dismissal of the criminal charges was with
prejudice, meaning Hanna is no longer in jeopardy of criminal prosecution for
the pharmaceutical thefts. But that does not mean the Board cannot consider all
aspects of his moral character, especially given that an order expressly made
clear the expungement of criminal records did not apply to the Board. Jud ge
Robert Jones, who issued the original expungement order and subsequently
denied Hanna's motion to add the Board to that order, plainly stated, "while
Hanna believes he is entitled to have the [Board] honor his expungement order,
. . . he is not."
The Board acted within its discretion in finding that Hanna's present
denial of the thefts is belied by the 2013 handwritten statement he provided to
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his employer. He acknowledged in that signed statement that it was being made
"of [his] own free will." In the statement, he unambiguously and unequivocally
admitted to stealing drugs from his employer to give to his uncle on at least five
separate occasions. According to that detailed statement, the uncle owned a
pharmacy in New York but was in a "bad financial situation" and wanted to sell
the stolen medicine. In addition to giving specific details of the thefts, Hanna's
written statement offered to return the stolen medicine or its cash value—an
offer markedly inconsistent with his claim of innocence. On this record, the
Board acted well within its discretion in finding that that his March 2022
testimony before them was not credible.
In sum, there is substantial, credible evidence in the record to support the
Board's determination that Hanna presently lacks the moral character required
to work in the pharmaceutical industry. Hanna has thus failed to show the
Board's decision was arbitrary, capricious, or unreasonable. See Russo, 206 N.J.
at 27.
To the extent we have not specifically addressed them, any remaining
arguments raised by Hanna lack sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E).
Affirmed.