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Stormans Inc. et al v. Selecky et al Findings

Stormans Inc. et al v. Selecky et al Findings

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Published by Doug Mataconis
Findings of Fact and Conclsusions of Law in Stormans Inc et al v. Selecky et al
Findings of Fact and Conclsusions of Law in Stormans Inc et al v. Selecky et al

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Published by: Doug Mataconis on Feb 23, 2012
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02/23/2012

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FINDINGS OF FACT AND CONCLUSIONS OFLAW - 1
HONORABLE RONALD B. LEIGHTONUNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT TACOMASTORMANS, INCORPORATED, et al,Plaintiff,v.MARY SELECKY,,Defendant.CASE NO. C07-5374RBLFINDINGS OF FACT ANDCONCLUSIONS OF LAWAfter considering the evidence and the argument and authorities presented by the parties’counsel, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACTI.
 
The Parties
 1.
 
Plaintiff Stormans, Inc. is a closed corporation, owned by Ken Stormans whoserves as President, and his three children, Kevin Stormans, Greg Stormans, and Charelle Foege,who serve as Vice Presidents of the corporation.2.
 
Stormans, Inc. owns Bayview Thriftway and Ralph’s Thriftway in Olympia,Washington. Ralph’s is a fourth-generation, family-operated grocery store that includes a generalretail pharmacy. Ralph’s has had a pharmacy located in the building since it began its operationsin 1944.
Case 3:07-cv-05374-RBL Document 562 Filed 02/22/12 Page 1 of 97
 
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FINDINGS OF FACT AND CONCLUSIONS OFLAW - 2
3.
 
Plaintiff Margo Thelen is a pharmacist licensed by the State of Washington. Ms.Thelen currently works as a staff pharmacist at a hospital pharmacy within Washington. Prior tothe Regulations becoming effective, she worked as a staff pharmacist at Safeway. She has spentnearly all of her 40-year career in retail pharmacy, both independent community and chainpharmacies. She has never been employed by Ralph’s.4.
 
Plaintiff Rhonda Mesler is a pharmacist licensed by the State of Washington. Ms.Mesler works as a pharmacy manager at a pharmacy within Washington. She has been employedby her chain pharmacy for nearly eight years. She has spent over 20 years working mainly atchain pharmacies in Washington. She has never been employed by Ralph’s.5.
 
Defendant Mary Selecky is the Secretary of the Washington State Department of Health (“DOH”). Defendant Laurie Jinkins was an Assistant Secretary responsible for theWashington Health Systems Quality Assurance, which includes the Board of Pharmacy. Theremaining defendants, George Roe, Susan Teil Boyer, Dan Connolly, Gary Harris, VandanaSlatter, Rebecca Hille, and Rosemarie Duffy, or their successors are members of the WashingtonBoard of Pharmacy (“Board”).6.
 
All Board members, like the Secretary and Assistant Secretary of the Departmentof Health, are appointed by the Governor. Five of the seven Board members are licensedpharmacists and the two remaining members are public members, not affiliated with any aspectof pharmacy. The term of appointment is four years. A member can be appointed to a secondterm, but can serve no more than two consecutive terms.7.
 
The Department of Health provides all staff to the Board of Pharmacy. Staff assigned to the Board are employees of the Department of Health.8.
 
The Board of Pharmacy is responsible for the practice of pharmacy in the state of Washington and to enforce all laws placed under its jurisdiction. The Board also determines thequalifications for licensure and administers discipline against the licenses held by licensees underprocedures required in Wash. Rev. Code §§ 18.64. 18.130, 34.05. Discipline for pharmacies andpharmacists may include suspension and revocation of one’s license.
Case 3:07-cv-05374-RBL Document 562 Filed 02/22/12 Page 2 of 97
 
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FINDINGS OF FACT AND CONCLUSIONS OFLAW - 3
9.
 
The Mission Statement of the Board, which appears on its website and is centralto its decision making process, is “to promote public health and safety by establishing the higheststandards in the practice of pharmacy and to advocate for patient safety through effectivecommunication with the public, profession, Department of Health, Governor, and theLegislature.”
See
 http://www.doh.wa.gov/hsqa/professions/Pharmacy/default.htm.10.
 
Defendant-Intervenors Judith Billings, Rhiannon Andreini, Jeffrey Schouten,Molly Harmon, Catherine Rosman, Emily Schmidt, and Tami Garrard (together “Defendant-Intervenors”) each claim to have an interest in this lawsuit. Two of the intervenors are HIV-positive and the remaining intervenors are women of child-bearing age who seek to ensureaccess to emergency contraception.11.
 
Plaintiffs’ religious beliefs prevent them from taking part in the destruction of innocent human life, and Plaintiffs believe that human life begins at the moment of fertilization.Plaintiffs have reviewed the labeling, FDA directives and other literature regarding themechanism of action of Plan B and
ella
(“emergency contraceptives”) and believe thatemergency contraceptives can prevent implantation of a fertilized ovum. Accordingly, Plaintiffs’religious beliefs forbid them from dispensing these drugs.12.
 
When Plaintiffs receive requests for these drugs, they provide the customer with a“facilitated referral.” By stipulation, Plaintiffs and the State-Defendants have defined afacilitated referral as “referr[ing] the customer to a nearby provider and, upon the patient’srequest, call[ing] the provider to ensure the product is in stock.”
1
None of Plaintiffs’ customershas ever been denied timely access to emergency contraception.13.
 
In 2007, the Board enacted a new regulation (WAC 246-869-010) and revised anexisting regulation (WAC 246-863-095). Together with WAC 246-869-150(1) (collectively, the“Regulations”), these Regulations prohibit pharmacies from providing facilitated referrals if apharmacy or pharmacist has a conscientious objection to delivering or dispensing that drug
.
 
1
Plaintiffs’ Exhibit (“PX”) 348 (Stipulation, Dkt. 441), ¶ 1.2.
Case 3:07-cv-05374-RBL Document 562 Filed 02/22/12 Page 3 of 97

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