Pharmacist Challenges Revocation of License to Practice

Pharmacy TimesJune 2023
Volume 89
Issue 6

Guilty plea relates to shortcomings in recordkeeping of controlled substances 10 years earlier.

Issue of the Case

A board of pharmacy revoked the license of a pharmacist who pleaded guilty to shortcomings in controlled substance recordkeeping. Would his challenge to that revocation, based on an intervening 10-year delay before the board acted, support a court challenge to the decision?

Facts of the Case

A long-serving pharmacy owner and pharmacist allegedly committed breaches of controlled substance recordkeeping with regard to more than 400,000 dosage forms of alprazolam, a Schedule IV medication. He sold the pharmacy and moved to a Central American country where he had dual citizenship with the United States. While he was there, the pharmacist did not engage in the practice of pharmacy.

Five years after moving abroad, he returned to the United States because of a family health challenge. Upon his arrival, the pharmacist was detained in the Miami, Florida, airport on an outstanding federal arrest warrant alleging violation of the federal Comprehensive Drug Abuse Prevention and Control Act of 1970.

He was indicted on 4 counts of violating the federal Controlled Substances Act. The pharmacist eventually entered a guilty plea in federal court to 1 of the 4 counts, a misdemeanor.

Specifically, his guilty plea was to omitting material information from required records.

The pharmacist’s sentence was limited to the time he had served in custody before being released on bond. Additionally, he was assessed the maximum fine of $30,000.

After the pharmacist’s arrest, and while awaiting sentencing and for several years after learning his fate, he fully cooperated with federal law enforcement authorities in several jurisdictions, assisting with their investigations into illegal gambling and related activities. While he was abroad, the focus of the pharmacist’s activities were international sports betting and projection of outcomes of sporting events.

Fourteen years after his return to the United States and arrest in Miami, the board of pharmacy in the state where he had been licensed started proceedings against his licensure status, because of his conviction for his violation of the federal drug control statutes. The pharmacist requested a hearing to present what he viewed as mitigating evidence that should offset the severity of any sanctions. The hearing was held, and the board revoked his pharmacy license. The pharmacist filed an appeal with the relevant state court of appeals.

The Ruling

The court of appeals affirmed the decision of the board of pharmacy that revocation of the pharmacist’s license to practice pharmacy was appropriate.

The Court's Reasoning

The appellate court first reviewed the undergirding reasons cited by the board for its decision. The board had reached the conclusion that the pharmacist’s conviction for violation of the Controlled Substances Act was directly connected to the practice of pharmacy. That connection was what had led to the board’s jurisdiction to impose sanctions. However, turning to the assistance rendered by the pharmacist to federal law enforcement officials working on illicit gambling investigations, the board had concluded that such aid to law enforcement was not relevant to his culpability for violation of the Pharmacy Practice Act.

The pharmacist’s attorney had argued that the relatively lenient criminal sentence imposed for the recordkeeping shortcomings reflected the fact that the justice system did not view those deviations from expectations as very serious. Nonetheless, the board concluded that the pharmacist had received a more lenient sentence based on his assistance of the federal government’s enforcement efforts directed at international gambling, not because the justice system viewed his crime as not being serious.

The court also reviewed the assertion by the pharmacist’s attorney that a less severe, licensure-related sanction was appropriate because of the passage of substantial time between the federal criminal conviction and the board’s action. The board reported that it had not learned of the conviction until 9 years after it had occurred, and it was an additional year before the information reached the state’s legal department that served the licensure board.

In further support of its decision, the board emphasized that it viewed licensure revocation as appropriate in this instance, because the purpose of board-imposed discipline is to protect the public health and safety, not to exact retribution. According to the board, the fact that more than 400,000 tablets had slipped through the pharmacy’s recordkeeping system and were unaccounted for while this pharmacist was in charge established clearly that he was not sufficiently responsible to be entrusted to engage in the practice of pharmacy.

The board identified its role in the process of professional regulation as being a duty to protect the integrity of the profession of pharmacy and the public. It viewed itself as being called on to send a clear message about the severity of the pharmacist’s violations both to the citizens of the state and to the licensee.

The central argument of the pharmacist on appeal was that the board had manifestly abused its discretion when effecting the revocation based on his conviction of the federal statute’s recordkeeping demands. The court of appeals rejected that argument and upheld the revocation of licensure.

About the Author

Joseph L. Fink III, JD, DSc (Hon), BSPharm, FAPHA, is professor emeritus of pharmacy law and policy at the University of Kentucky College of Pharmacy in Lexington.

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