Board of Pharmacy Disciplinary Actions

As a professional licensed by the California State Board of Pharmacy (“Board”), whether as a pharmacist, advanced practice pharmacist, intern, pharmacy technician or a designated representative, you are subject to laws and regulations set forth in the California legal code and the Code of Regulations, which are enforced by the Board.

Investigations are typically initiated by a consumer complaint or complaint from a co-worker or other professional or when the Board is notified of a criminal proceeding against the licensee. An investigation may also commence as part of a DEA action. Not all investigations proceed to a formal investigation. For example, if the Board receives a consumer complaint, the Board’s own internal investigation may find the complaint is unfounded and close the matter without the licensee ever knowing the investigation took place.

Any suspected violation will be investigated by investigators employed by the Board, by the Department of Consumer Affairs, or by the DEA. Often, but not always, the licensee will be made aware of the investigation when an investigator contacts the licensee to ask questions or request an interview, or by letter from the Board requesting information. If you are licensed by the Board and you have been informed, or suspect, that an investigation has initiated, your instinct may be to cooperate. Don’t. You have the right to -- and you should -- politely decline to answer any questions or requests from an investigator or the Board. And then you should contact an Orange County professional license defense attorney immediately. Your attorney will contact the investigator and ensure that the investigation proceeds in a manner that protects your rights and your license.

If the Board proceeds with an investigation and finds cause, the Board will file what is called an Accusation against the licensee. At this stage, if you haven’t already hired counsel, it is imperative that you contact a professional license defense attorney immediately. You have a limited time to respond to the accusation and request a hearing. If you fail to request a hearing, a default decision will be issued, which confirms the allegations in the accusation. The Board will then impose the discipline requested in the accusation and quite often, this discipline will be quite severe, up to revocation of the license.

You have the right to dispute the allegations and a right to a hearing before the Board. An experienced attorney can defend your license in several ways:

1. Putting together a strong mitigation package,
2. Negotiating with the Board for a stipulated settlement where you admit to some or all of the allegations in return for a probationary license period or other terms that are less detrimental to your license,
3. Preparing and representing you in an administrative hearing, and/or
4. Filing a writ in the superior court if there was a legal error in the administrative hearing.

When the Board or the licensee cannot agree on a stipulated settlement, an administrative hearing will take place. This is takes place before an administrative law judge. The licensee is represented by his or her attorney and the Board is represented by an attorney from the Attorney General’s office. The administrative law judge takes the evidence presented at the hearing under submission and renders a decision within 30 days. If the judge finds the licensee is subject to discipline, the Board will issue a disciplinary order.

When a licensee is disciplined, the Board follows the Manual of Disciplinary Guidelines and Model Disciplinary Orders, which is published by the Board. There are 17 factors that are considered in determination of a penalty. Chief among these is the actual or potential harm to the public caused by the licensee’s violation. Other factors include whether the licensee has been disciplined in the past by the Board and the licensee’s criminal record. The Board is also instructed to consider aggravating and mitigating evidence. After considering these factors, the disciplinary guidelines provide recommended penalties for various categories of violations. The most severe discipline is revocation, the most lenient usually includes a probationary period on the licensee with terms specifically related to the violation. For example, a licensee who is disciplined for drug abuse may be ordered to participate in drug rehabilitation or therapy and submit to periodic drug testing. Except in the most egregious of violations, most disciplinary measures allow the licensee to continue in their practice under terms of probation.

There are four violation categories, increasing in seriousness with corresponding discipline commensurate to the seriousness of the violation. A licensee may be, for example, accused of dispensing without a valid prescription. This is a serious Category III violation. A skilled professional license defense attorney can often negotiate a serious violation to a lower category. In this example, your attorney may be able to arrange a negotiated settlement reducing the Category III violation to the Category I violation of “smaller or isolated failure” to “enforce prescription or refill requirements.”

Many professional licensees are surprised to learn that even one driving under the influence (DUI) of alcohol or drugs conviction can seriously affect the status of their professional license. The Pharmacy Board will take action against a licensee who is convicted of DUI pursuant to Business and Professions Code section 4301. Section 4301 imposes professional license discipline not only for DUIs, but for other criminal conduct as well. The statute requires that a professional licensee who is convicted of a crime “substantially related to the qualifications, functions, and duties of [the] licensee” be subject to professional license discipline. A “substantially related” crime is one that “if to a substantial degree it evidences present or potential unfitness of a licensee or registrant to perform the functions authorized by his license or registration in a manner consistent with the public health, safety, or welfare.” (California Code of Regulation, title 16, section 1770.) A simple drug possession conviction (for example, if you are convicted of possessing a prescription drug without a prescription), even a drunk in public conviction, can result in disciplinary action against your license.

A licensee may petition for relief from the discipline imposed by the Board. There are specific requirements for such petitions, but a licensee may be able to get an early termination of the probationary period or modification of the probationary terms. Even a revoked license can be reinstated upon petition. Your professional license defense attorney will assist you in putting forth a convincing petition for relief or reinstatement.

CONTACT ORANGE COUNTY PROFESSIONAL LICENSE DEFENSE ATTORNEY WILLIAM WEINBERG FOR IMMEDIATE HELP.

Whether you have just learned that you are being investigated, or the Board has already filed an accusation against your license, or you need assistance post-discipline, Mr. Weinberg will defend your license with a goal of achieving the best outcome possible. He offers a complimentary consultation to review your license matter and advise you of your options. Contact Mr. Weinberg by calling (949) 474-8008 or email him at bill@williamweinberg.com.