Author: Joseph L. Fink III, BSPharm, JD
A pharmacist is told that a board of pharmacy hearing may result in the revocation of his license to practice. May he challenge the decision in court by alleging that he was not alerted to the possibility of permanent revocation?
Issue of the Case
When a long-time pharmacist is notified of a board of pharmacy hearing regarding serious matters and told that the “board may revoke” his license to practice, and that outcome occurs, may he challenge that decision in court by alleging that the notification did not alert him to the possibility of permanent
revocation of authority to practice?
Facts of the Case
A pharmacist in a Midwestern state who had been in active practice for nearly 4 decades received a communication designated a “Notice of Opportunity for Hearing" from the state board of pharmacy. It stated that the agency was determining whether to take action against the pharmacist’s license to practice. The notice alleged, among other things, that the pharmacist had knowingly sold controlled substances without a prescription from an authorized prescriber, knowingly possessed false or forged prescriptions, held misbranded drugs, and failed to maintain accurate records of transactions.
The 16-page document cited specific instances in which the alleged transgressions had occurred. It also included this wording about what the board might do: “After notice and hearing in accordance with (relevant state statutes) the Board may revoke, suspend, limit, place on probation, or refuse to grant or renew an identification card, or may impose a monetary penalty or forfeiture...” The pharmacist retained an attorney and requested a hearing. He attended the hearing to testify, introducing evidence to support his position. Following the hearing, the board concluded that he had committed gross immorality, dishonesty, and/or unprofessional conduct in the practice of pharmacy, and willfully violated the drug offenses provisions in the state statutes, all on numerous occasions. The board concluded that he had permitted someone other than a pharmacist or a pharmacy intern to practice pharmacy. The decision of the board was to revoke his license as a pharmacist. The official wording of the decision was that the board “hereby revokes permanently” his pharmacy license.
The pharmacist appealed the decision of the administrative agency to the local state trial court, arguing that he was not notified in the Notice of Opportunity for Hearing that permanent revocation of his license was a possible outcome. He further argued that his right to due process had been violated. The trial court judge concluded that the notification he had received was in compliance with the statutory expectations for such notices and that the notice also complied with due process expectations.
The pharmacist disagreed with the ruling of the trial court, filing an appeal with the state court of appeals. He advanced 1 argument on appeal, arguing that the trial court had erred when it affirmed the decision of the board because the board violated his due process rights by failing to notify him in advance of the adjudications process that it might permanently revoke his license to practice.
The Court's Ruling
The appellate court affirmed the decision and ruling of the trial court, agreeing that the pharmacist’s due process rights had not been violated merely because he did not understand that “revoke” meant “permanently revoke.”
The Court's Reasoning
The court began by recounting its role when reviewing a decision of a trial court. The proper question generally is whether the trial court abused its discretion in finding that the administrative agency decision was supported by reliable, probative, and substantial evidence. But when a due process argument is advanced, that is a question of law, not a question of fact. In such an instance, the appellate court must review the matter de novo
The court of appeals pointed to a state supreme court case in which “revoke” was found to mean “permanently revoke.” The judges went on to state that “It is clear that ‘revoke’ means ‘permanently revoke’ in the context of proceedings before the Pharmacy Board.”
Looking further at that earlier state supreme court case, the court of appeals emphasized that the highest court had ruled that the use of both the terms “suspend” and “revoke” in the same sentence implies that these terms are not synonymous. The state’s high court had “stated that the common, everyday meaning of ‘revocation’ is ‘a permanent taking without the expectation of reinstatement.’”
In fact, the board of pharmacy had adopted a regulation stating that “revoke” means permanent revocation. The definition in the regulation was “to take action against a license rendering such license void and such license may not be reissued.” The provision continues on to indicate that “‘revoke’ is an action that is permanent against the license and licensee.”
Turning to due process, the court emphasized that compliance with due process expectations occurs when one is given notice and an opportunity for a hearing. The pharmacist had received a 16-page notice informing him of the allegations against him and the relevant statutes and regulations he was alleged to have violated. The possible outcomes were specified. His “ignorance of the precise definition of ‘revoke’ in this context does not mean he was not notified of the possibility of permanent revocation, especially given its use in conjunction with ‘suspend.’”
Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.