The Commonwealth of Massachusetts Executive Office of Health and Human Services Department of Public Health
Division of Health Professions Licensure
239 Causeway Street, 4th Floor, Boston, MA 02114

DEVAL L. PATRICK
GOVERNOR

TIMOTHY P. MURRAY

LIEUTENANT GOVERNOR	Office of the General Counsel
               JUDYANN BIGBY, MD                                                                               (617) 973-0865
                         SECRETARY                                                                                          (617) 973-0895 TTY
                              
                     JOHN AUERBACH
                           COMMISSIONER                                                                         

                                                                                                                       June 7, 2013

VIA FIRST CLASS AND CERTIFIED MAIL RETURN RECEIPT 
REQUESTED NO. 7010 2780 0001 8675 9951
Nel Sothy
[redacted]	

RE:	In the Matter of Nel Sothy, PT License No. PT7638
            Board of Registration in Pharmacy Docket No. PHA 2012 0165

Dear Ms. Sothy:

Enclosed is the Revised Final Decision and Order ("Final Order) issued by the Board of Registration in Pharmacy (Board) in connection with the above­ referenced matter.  The effective date of the Board's Order is ten (10) days from the date appearing on page 4 of the Final Order ("Date Issued"). Your appeal rights are noted on page 4 of the Final Order.

Sincerely,

Heather Engman 
Board Counsel
Board of Registration in Pharmacy

Enc.

cc: James Lavery, Prosecuting Counsel

COMMONWEALTH OF MASSACHUSETTS

 SUFFOLK COUNTY	                                                BOARD OF REGISTRATION
 ___________________________                                         IN PHARMACY
                                                       )
 IN THE MATTER OF                  )
 NEL SOTHY                                )                                      DOCKET NO. PHA-2012-0165
 PT REGISTRATION NO. 7638  )
 REG. EXPIRES 06/02/2014         )
__________________________   )

REVISED FINAL DECISION AND ORDER BY DEFAULT

PROCEDURAL HISTORY

On August 14, 2012, the Board of Registration in Pharmacy ("Board") sent Nel Sothy ("Respondent") correspondence to his address of record, requesting a response to a Complaint against his registration to practice as a pharmacy technician alleging that he was arrested and arraigned on a charge of trafficking in cocaine.
On September 11, 2012, having received no response from the Respondent, the Board determined that the health, safety and welfare of the public necessitated the summary suspension of the Respondent's registration.  The Board issued a Temporary Order of Summary Suspension on September 11, 2012, which advised the Respondent of his right to a hearing on the necessity of the summary action.
On September 14, 2012, having received no request from the Respondent for a hearing on the necessity of continuing the summary suspension, the Board issued a Final Order of Summary Suspension.
On September 25, 2012, the Board issued to Respondent an Order to Show Cause ("Show Cause Order")1 based on the same allegations as the Temporary and Final Orders of Summary Suspension. In addition to stating the allegations against Respondent, the Show Cause Order notified Respondent that an Answer to the Show Cause Order

_________________________

1 Pursuant to 801 CMR 1.01(6)(a).
Sothy, Nel
PHA-2012-0165 
PT7638

1 of 4

("Answer") was to be submitted within 21 days of receipt of the Show Cause Order.2 The Show Cause Order also notified Respondent of the right to request a hearing on the allegations,3 and that any hearing request ("Request for Hearing") was to be submitted
within 21 days of receipt of the Show Cause Order.4  Respondent was further notified that
failure to submit an Answer within 21 days "shall result in the entry of default in the captioned matter" and, if defaulted, "the Board may enter a Final Decision and Order that assumes the truth of the allegations in the Show Cause Order and may revoke, suspend,
or take other disciplinary action against [Respondent's] license...including any right to renew [Respondent's] license." A copy of the Show Cause Order is attached to this Revised Final Decision and Order by Default and is incorporated herein by reference.
As of May 7, 2013, Respondent had failed to file either an Answer or a Request for Hearing. On that date, the Board voted to issue a Final Decision and Order by Default, in which it accepted as true the allegations in the Order to Show Cause and revoked the Respondent's registration. The Final Decision and Order was issued on May 13, 2013.
On or about May 16, 2013, the Respondent appeared at the offices of the Board requesting reinstatement of his registration. He presented information indicating that the criminal proceeding relating to the charge of trafficking in cocaine had been closed as of March 22, 2013 following the entry of Nolle Prosequi by the prosecution.
On June 4, 2013, the Board reconsidered its prior Final Decision and Order by Default on this basis of this new information.

DISCUSSION

The Board afforded Respondent an opportunity for a full and fair hearing on both the Necessity of Continuation of the Summary Suspension and the allegations in the Show Cause Order as required by M.G.L. c. 30A, s. 10. The Board afforded sufficient notice of the issues involved to afford Respondent reasonable opportunity to prepare and present evidence and argument as required by M.G.L. c. 30A, s. 11(1). The Board has also notified

____________________________________
2 In accordance with 801 CMR 1.01(6)(d)(2).
3 Pursuant to M.G.L. c. 112, s. 61.
4 Respondent was also notified that failure to timely submit a Request for Hearing would constitute a waiver of the right to a hearing.

Sothy, Nel
PHA-2012-0165	
PT7638
2 of 4

Respondent of the obligation under 801 CMR l.01(6)(d) to file an Answer to the Show Cause Order within 21 days of its receipt and of the consequences of failing to file an Answer or otherwise respond.  Nevertheless, the Respondent failed to respond and thus waived his right to a hearing.
As authorized by M.G.L. c. 30A, s. 10(2), the Board may make informal disposition of any adjudicatory proceeding by default. Upon default, the Board may accept the allegations of the complaint against Respondent as true. Danca Corp. v. Raytheon Co., 28 Mass. App. Ct. 942, 943 (1990).  Based on the procedural history of this matter, the Board declines to vacate the entry of default. However, given the receipt of new information, the Board, sua sponte, reconsiders the sanction of revocation.  In its reconsideration, the Board weighs the fact that the Respondent's registration had already been suspended for a period of eight months, and has now been revoked for one month. The Board also considers the Respondent's failure to respond to the Board's prior inquiries and orders.

REVISED ORDER

On June 4, 2013, based on the foregoing and in accordance with the Board's authority and statutory mandate, the Board voted to rescind its prior Final Decision and Order by Default which ordered that the Respondent's registration be revoked, and in its place, issue this Revised Final Decision and Order by Default for a REPRIMAND of the Respondent's Massachusetts Pharmacy Technician Registration No. 11173 (expiration
.

 06/02/2014) by the following vote: in favor: J. DeVita, R.Ph; J. Franke, RN, MHA, K. Ryle, RPh, MS, E. Taglieri, RPh, MSM, NHA, J. Trifone, R.Ph, A. Young, R.Ph, EdD; opposed: none; abstained: none.

Sothy, Nel
PHA-2012-0165
PT7638
3 of 4

EFFECTIVE DATE OF ORDER

The Order of the Board shall be effective on date issued, specified below.

Respondent is hereby notified of the right to appeal this Final Decision and Order by Default to the Supreme Judicial Court, pursuant to G. L. c. 112, § 64 and G. L. c. 30A,
§§ 14 and 15, within thirty days of receipt of notice of this Revised Final Decision and
Order by Default.

BOARD OF REGISTRATION IN
PHARMACY

						Heather Engman, Board Counsel

Date issued: June 7, 2013	

Notice to:

BY FIRST CLASS MAIL AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED 7010 2780 0001 8675 9951

Nel Sothy
[redacted]

BY HAND

James Lavery, Esq. 
Office of Prosecutions

                    Sothy, Nel
                    PHA-2012-0165
                    PT7638 
4 of 4

The Commonwealth of Massachusetts Executive Office of Health and Human Services Department of Public Health
Division of Health Professions Licensure
239 Causeway Street, 4th Floor, Boston, MA 02114

DEVAL L. PATRICK
GOVERNOR

TIMOTHY P. MURRAY

LIEUTENANT GOVERNOR	Office of the General Counsel
               JUDYANN BIGBY, MD                                                                              (617) 973-0865
                     SECRETARY                                                                                           (617) 973-0895 TTY
                              
                JOHN AUERBACH
                       COMMISSIONER                                                                         

                                                                                           May 13, 2013

VIA FIRST CLASS AND CERTIFIED MAIL RETURN 
RECEIPT REQUESTED NO. 7010 2780 0001 8675 9845
Nel Sothy
[redacted]

RE:	In the Matter of Nel Sothy, PT License No. PT7638
            Board of Registration in Pharmacy Docket No. PHA-2012-0165 

Dear Mr. Sothy:

Enclosed is the Final Decision and Order by Default ('Final Order") issued
by the Board of Registration in Pharmacy (Board) in connection with the above­ referenced matter. 
The effective date of the Board's Order is ten (10) days from the date appearing on page 3 of the 
Final Order ("Date Issued"). Your appeal rights are noted on page 3 of the Final Order.

Sincerely,

Margaret Cittadino 
                                                                                                Associate Director
                                                                                                Board of Registration in Pharmacy

Enc.

cc: James Lavery, Prosecuting Counsel

                                COMMONWEALTH OF MASSACHUSETTS

SUFFOLK COUNTY	                                                               BOARD OF REGISTRATION
                                                                                                   IN PHARMACY

       ___________________________ 
       IN THE MATTER OF                )
       NEL SOTHY                               )
       PT REGISTRATION NO. 7638 )                                             DOCKET NO.  PHA-2012-0165
       REG. EXPIRES 06/02/2014____)

               

FINAL DECISION AND ORDER BY DEFAULT

On September 25, 2012, the Board of Registration in Phan11acy ("Board'') issued and duly served on Nel Sothy (''Respondent"), an Order to Show Cause (“Show Cause Order")1 related to a complaint filed regarding Respondent's registration. In addition to stating the allegations against Respondent, the Show Cause Order notified Respondent that an Answer to the Show Cause Order ("Answer") was to be submitted within 21 days of receipt of the Show Cause Order.2 The Show Cause Order also notified Respondent or the right to request a hearing on the allegations,3 and that any hearing request ("Request for Hearing") was to be submitted within 21 days of receipt of the Show Cause Order.4 Respondent was further notified that failure to submit an Answer within 21 clays "shall result in the entry of default in the captioned matter" and, if defaulted, "the Board may enter a Final Decision and Order that assumes the truth of the allegations in the Show Cause Order and may revoke, suspend, or take other disciplinary action against [Respondent's] license ...including any right to renew [Respondent's] license." A copy of the Show Cause Order is attached to this Final Decision and Order by Default and is incorporated herein by reference.

As of the date of this Final Decision and Order by Default, Respondent has failed to file either an Answer or a Request for Hearing.
____________________________
1  Pursuant to 801 CMR 1.01(6)(a).
2  In accordance with 80l CMR 1.01(6)(d)(2).
3 Pursuant to M.G.L. c. 112, s. 61.
4  Respondent was also notified that failure to timely submit a Request for Hearing would constitute a waiver of the right to a hearing. 

Sothy, Nel
PHA-2012-0165	
PT7638
1 of 4

                     

The Board has afforded Respondent an opportunity for a full and fair hearing on the allegations in the Show Cause Order as required by M.G.L. c. 30A, s. 10, and sufficient notice of the issues involved to afford Respondent reasonable opportunity to prepare and present evidence and argument as required by M.G.L. c. 30A, s. 11(1). The Board has also notified Respondent of the obligation under 801 CMR 1.01(6)(d) to file an Answer to the Show Cause Order within 21 days of its receipt and of the consequences of failing to file an Answer or otherwise respond.

As authorized by M.G.L. c. 30A, s. 10(2), the Board may make informal disposition of any adjudicatory proceeding by default. Upon default, the allegations of the complaint against Respondent are accepted as true. Danca Corp. v. Raytheon Co., 18 Mass. App. Ct.  942, 943 (1990).

Based on the foregoing, the Board enters a default in the above-captioned matter and, consequently, the allegations in the Order to Show Cause are deemed to be true and Respondent has waived the right to be heard.  In accordance with the Board's authority and statutory mandate, the Board orders as follows:

On May 7, 2013, in accordance with the Board's authority and statutory mandate, the Board voted to issue this Final Decision and Order by Default and REVOKE Massachusetts Pharmacy Technician Registration No. 7638 (expires 6/2/14; summarily suspended by the Board effective 9/14/12) by the following vote: in favor: J. DeVita: Rph; J. Franke, RN, MHA, K. Ryle, RPh, MS, E. Taglieri, RPh, MSM, NHA, J. Trifone,. RPh, A. Young, RPh, EdD, P. Gannon, RPh, MS; opposed: none; abstained: none.

The Board will not review any petition for pharmacy technician registration in the Commonwealth filed sooner than five (5) years from the Effective Date of this Final
2	

Sothy, Nel
PHA-2012-0165	
PT7638
                                                                    2 of 4

Decision and Order by Default. While Respondent's pharmacy technician registration is REVOKED, Respondent may not: (1) be employed in any capacity to provide any services in any pharmacy setting in the Commonwealth; or (2) have any ownership, management or other interest or involvement in any pharmacy related business in any setting. If at any time in the future Respondent seeks licensure or registration by the Board, Respondent  will be required to meet all current requirements for licensure or registration at the time of any such application, including but not limited to, re­application, re-examination and  re-training. The Respondent must also show proof of sobriety and closure of all criminal matters for at least one (1) year and any other reinstatement terms and conditions the Board may deem to be necessary and appropriate. The Board does not envision any terms or conditions pursuant to which Respondent would be considered to be appropriate for licensure or registration in the future.

EFFECTIVE DATE OF ORDER

The Order of the Board shall be effective ten days from the date issued, specified below.

Respondent is hereby notified of the right to appeal this Final Decision and Order by Default to the Supreme Judicial Court, pursuant to G. L. c. 112, § 64 and G. L. c. 30A,
§§ 14 and 15, within thirty days of receipt of notice of this Final Decision and Order by Default.

BOARD OF REGISTRATION IN
PHARMACY

						Margaret Cittadino, Associate Director

Date issued: May 13, 2013	

Notice to:

BY FIRST CLASS MAIL AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED 7010 2780 0001 8675 9845

Nel Sothy
[redacted]

Sothy, Nel
PHA-2012-0165
PT7638
                                                                        3 of 4

BY HAND

James Lavery, Esq.
Office of Prosecutions

Sothy, Nel
PHA-2012-0165
PT7638
                                                                        4 of 4

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss.	                                                                      BOARD OF REGISTRATION
                                                                                              IN PHARMACY
_____________________________

In. the Matter of	                     )
NEL SOTHY	                                 )                                    DOCKET NO. PHA-2012-0165
Pharmacy Technician No.7638        )
Expires 06/02/2014		         )
 ____________________________)                                                        

FINAL ORDER OF SUMMARY SUSPENSION

In accordance with its broad grant of authority, pursuant to Massachusetts General Laws Chapter 112, Section 42A and 247 CMR 10.07, to decide when professional standards have been violated and to discipline any violations in order to promote the public health, safety and welfare (Strasnick v. Board of Registration in Pharmacy, 408 Mass. 654; 562
N.E. 2d 1333 (1990); Rosen v. Board of Registration in Medicine, Supreme Judicial
Court, June 3, 1987), and having not received a request for the hearing on the necessity of the summary suspension from NEL SOTHY (Respondent), Pharmacy Technician Registration No. 7368), the Board of Registration in Pharmacy (Board) ORDERS that:

The suspension of Respondent's Pharmacy Technician Registration No. 7368, pursuant to the Board's Temporary Order of Summary Suspension issued and effective September 11, 2012, be continued pending a final decision by the Board or other disposition of the matter of Docket No. PHA-2012-0165.

Respondent is directed to immediately return (mail or deliver) his wallet registration to the Board office at 239 Cause ay St., 5th Fl., Boston, Massachusetts 02114.

BOARD OF REGISTRATION
IN PHARMACY

Karen M. Ryle
Secretary
Date: September 14, 2012

Decision No.  2979
First Class Mail and Certified Mail 7012 0470 0001 3526 9210
                                                                    [redacted]

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK COUNTY	                                                                           BOARD OF REGISTRATION 
                                                                                                               IN PHARMACY

_____________________________
                                                          )
In the Matter of	                      )
NEL SOTHY	                                  )                                                    Docket No. PHA-2012-0165
PH-PT Registration No. 7638          )
(Reg. Expires 6/2/2014)	          )
Docket No. PHA-2012-0165            )
_____________________________)

ORDER TO SHOWCAUSE

Nel Sothy (hereinafter "you" or ''Respondent"), you are hereby ordered to appear and show cause why the Massachusetts Board of Registration in Pharmacy ("Board") should not suspend, revoke or otherwise take action against your pharmacy technician registration, Registration No. 7638 or your right to renew such registration,  pursuant to Massachusetts General Laws (G. L.) Chapter 112, §§ 42A and 61 and Board regulations 247 CMR 2.00 et seq. based upon the following facts and allegations:

l.	On or about October 25, 2006, the Board issued you a pharmacy technician
registration, Registration No. 7638.

2.	On or about September 11, 2012, the Board issued a Temporary Order of Summary Suspension of your Registration. You failed to timely request a hearing on the necessity of a continuance of the Temporary Order of Summary Suspension and a Final Order of Summary Suspension was issued on or about September 14, 2012.  Your Registration remains suspended.

3.	On or about August 2, 2012, while registered as a pharmacy technician in
Massachusetts: you were arrested and arraigned in the Lowell District Court
[redacted] on a charge of trafficking in cocaine.

4.	Your conduct as alleged above warrants disciplinary action by the Board  against your pharmacy technician registration pursuant to G. L. c. 112, §§ 42A and 61, and 247 CMR 2.00 et seq., for deceit, malpractice, gross misconduct in the practice of the profession, and offenses against the laws of the Commonwealth relating thereto.

5.	Your conduct as described above constitutes failure to conduct professional activities in conformity with federal, state and municipal laws, ordinances and/or regulations, of the Board and therefore warrant disciplinary action by the Board pursuant to M.G.L. c. 112 §§ 27 28, and 42A, M.G .L. c. 94C and 247 CMR 2.00 et seq.; and 10.03 (l)(a), (b), (e), (h), (1), (k), (n), (r), (u), (v), and (x).

						1

2	
6.	Your conduct as described above constitutes unprofessional conduct and conduct which undermines public confidence in the integrity of the pharmacy profession. Sugarman 
v. Board of Registration in Medicine, 422 Mass. 338, 342 (1996); see also, Kvitka v.
Board of Registration in Medicine, 407 Mass. 140, cert. denied, 498 U.S. 823 (1990); 
Raymond v. Board of Registration in Medicine, 387 Mass. 708, 713 (1982).

You have a right to an adjudicatory hearing ("hearing") on the allegations contained in 
the Order to Show Cause before the Board acts to suspend, revoke, or impose other 
discipline against your registration. G.L. c. 112, §§ 42A and 61. Your right to a hearing
may be claimed by submitting a written request for a hearing within twenty­one (21) 
days of receipt of this Order to Show Cause. You must also submit an Answer to this
Order to Show Cause in accordance with 801 CMR 1.01(6)(d) within twenty-one (21) 
days of receipt of this Order to Show Cause. The Board will give you prior written
notice of the time and place of the hearing following receipt of a written request for a 
hearing.

Hearings shall be conducted in accordance with the State Administrative Procedure Act,
G.L. c. 30A, §§ 10 and 11, and the Standard Adjudicatory Rules of Practice and Procedure, 801 
CMR 1.01 and 1.03, under which you are granted certain rights including, but not limited to, 
the rights: to a hearing, to secure legal counsel or another representative to represent your
interests, to call and examine witnesses, to cross­examine witnesses who testify against you, to 
testify on your own behalf, to introduce evidence, and to make arguments in support of your 
position.

The Board will make an audio recording of any hearing conducted in the captioned 
matter. In the event that you wish to appeal a final decision of the Board, it is incumbent on you 
to supply a reviewing court with a “proper record” of the proceeding, which may include a 
written transcript. New Bedford Gas and Light Co. v. Board of Assessors of Dartmouth, 368 
Mass. 745, 749-750 (1975). Upon request; the Board will make available a copy of the audio 
recording of the proceeding at your own expense. Pursuant to 801 CMR 1.01 (10) (i)(1), upon 
motion, you "maybe allowed to provide a public stenographer to transcribe the proceedings at 
[your] own expense upon  terms ordered by the Presiding Officer.'' Those terms may include a requirement that any copy of the transcript produced must be sent promptly upon completion and
on an ongoing basis directly to the Presiding Officer by the stenographer or transcription service.   
The transcript will be made available to the Prosecutor representing the Board. Please note that 
the administrative record of the proceedings, including but not limited to, the written transcript
of the hearing is a public record and subject to the provisions of G.L. c. 4 § 7 and G. L. c. 66, § 
10.

Your failure to submit a written request for a hearing within twenty-one (21) days of 
receipt of this Order to Show Cause shall constitute a waiver of the right to a hearing on the 
allegations herein and on any Board disciplinary action. Your failure to submit an Answer to
the Order to Show Cause within twenty-one (21) days of receipt of the Order to Show Cause
shall result in the ent1y of default in the captioned matter.

Notwithstanding the earlier filing of an Answer and/or request for a hearing, your 
failure to appear for any scheduled status conference, pre-hearing conference or hearing 
dates, or failure to otherwise defend this action shall result in the entry of default.

					2
If you are defaulted, the Board may enter a Final Decision and Order that assumes the 
truth of the allegations in this Order to Show Cause, and may revoke, suspend or take other 
disciplinary action against your registration to practice as pharmacy technician in the 
Commonwealth of Massachusetts, including any right to renew your registration.

Your Answer to the Order to Show Cause and your written request for a hearing must be 
filed with James G. Lavery, Chief Board Prosecutor at the following address:

James G. Lavery
Chief Board Prosecutor 
Department of Public Health
Office of the General Counsel
239 Causeway Street, Fourth Floor
Boston, MA  02114 

You or your representative may examine Board records relative to this case prior to the 
date of the hearing during regular business hours at the office of the Chief Board Prosecutor.  
If you elect to undertake such an examination, then please contact Prosecuting Counsel in 
advance at (617) 973-0822 to schedule a time that is mutually convenient.

Board of Registration in Pharmacy, 
Karen M. Ryle, R.Ph, Secy.

By:   James G. Lavery, Esq.
         Chief Prosecutor
         Department of Public Health

Dated: September 25, 2012

CERTIFICATE OF SERVICE

I, James G. Lavery, hereby certify that a copy of the foregoing Cover Letter, Order to 
Show Cause, and Certificate of Service were served upon the Respondent:

Nel Sothy
[redacted]

by first class mail, postage prepaid, and Certified Mail No. 7011 1570 0000 8180 2803,

This 25th day of September, 2012.

					James G. Lavery
Chief Board Prosecutor