Criminal Convictions and Pharmacist Discipline in California California Criminal Defense Lawyers

Pharmacists and pharmacy technicians in California face discipline by the Board of Pharmacy — including license revocation — after receiving certain kinds of criminal convictions.¹

The Board may also withhold licenses from aspiring pharmacists and techs who have been convicted of a criminal offense in the previous seven (7) years that was substantially related to pharmaceuticals (like fraud, for example). And there are some criminal convictions that may bar applicants from getting a pharmaceutical license no matter how old they are, including:

• a serious offense (such as murder, rape, or grand theft), or
• a sex offense, requiring the applicant to register as a Tier II or Tier III offender

Our California Criminal Defense Lawyers represent people accused of crimes and we have experience helping pharmacists avoid losing their licenses in disciplinary actions.²

If you find yourself caught up in a swirl of accusations and want to do everything possible to stay out of jail and protect your livelihood or have further questions after reading this article, we invite you to contact us for a consultation.

This article covers:

• 1. Who regulates pharmacists in California?
• 2. What convictions trigger Board discipline?
• 3. What can I do to fight for my license?
• 4. Can I become a pharmacist if I have a criminal history? 7-year rule

Pharmacists and pharmacy technicians in California face discipline by the Board of Pharmacy — including license revocation — after receiving certain kinds of criminal convictions.

1. Who regulates pharmacists in California?

The Board of Pharmacy, a governmental agency within the California Department of Consumer Affairs, regulates pharmacists, pharmacy technicians and pharmacy interns.

The Board enforces California pharmacy laws and implements regulations in accordance with its mission of public protection.³

As part of its responsibility, the Board can discipline licensees convicted of certain crimes by placing them on probation or suspending or revoking their licenses.

2. What convictions trigger Board discipline?

Criminal convictions that are “substantially related” to the qualifications, functions, or duties of a pharmacist, pharmacy technician or pharmacy intern can trigger Board discipline.⁴

The Board of Pharmacy also can deny a license application in the first place on the basis of a substantially related conviction.⁵

The substantially related requirement is based in statute, but it is also grounded in the Constitution. People have a right to practice their chosen profession and this right can only be denied for a reason that relates to the person’s fitness to practice that profession.⁶

2.1. “substantially related”

A substantially related conviction is one that “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.”⁷

Statutes and Pharmacy Board documents indicate that convictions for the following crimes are substantially related to pharmacy work:

• drug crimes⁸
• murder⁹
• rape (Penal Code 261 PC)¹⁰
• lewd act with a minor (Penal Code 288 PC)¹¹
• reckless driving¹²
• driving under the influence¹³
• prescription forgery¹⁴
• knowing or willing false statement¹⁵
• grand theft¹⁶
• petty theft (484 PC)¹⁷
• identity theft¹⁸

This is by no means an exhaustive list. The Board and/or a court might consider other kinds of convictions to be substantially related to pharmacy work.

Additionally, an administrative law judge may rule differently than the Board in a given case, just as a reviewing court may rule differently than an administrative law judge.

For example, in one case the Board maintained that a conviction for Penal Code 273.5 PC (domestic violence) was substantially related to pharmacy. In a hearing on the matter, however, an administrative law judge disagreed.¹⁹

Criminal convictions are classified in the Board’s Disciplinary Guidelines as either Category II or Category III violations, with a recommended minimum discipline of three to five years probation plus possible license suspension and maximum discipline of license revocation.

2.2. Convictions

Convictions include felony and misdemeanor convictions secured through guilty pleas and verdicts, “no contest” pleas and convictions that may later be expunged under California Penal Code Section 1203.4. The Board can take disciplinary action even if you successfully complete a court-ordered diversion program.²⁰

Generally speaking, the Board can act with respect to a conviction when the time for appeal has passed, the judgment has been affirmed on appeal, or an order granting probation is made. However, the Board will take expedited action when:

• • the licensee is incarcerated for a felony
  • the licensee is convicted of a felony that was committed
    • in the course of business for which his or her license was granted OR a victim of the licensee’s felony crime was a client or patient, AND
    • the offense involved an intent to deceive or defraud OR the illegal sale of a controlled substance²¹

• the licensee is convicted of a felony substantially related crime²²

The Board has ways to find out about concealed convictions, so it is wise to be honest. Court clerks must report to the Board licensee convictions within 10 days of judgment.²³

Additionally, effective December 7, 2010, a new Board regulation will take effect requiring license renewal applicants to submit fingerprint information and disclose convictions.²⁴ A similar requirement likely will be enacted for pharmacy technicians, according to the Board’s Final Statement of Reasons.

2.3. Rehabilitation

A conviction does not always tell the whole story. People can be rehabilitated from their criminal activities and change for the better.

Luckily, the Board is required to consider evidence of such rehabilitation in making discipline decisions.²⁵ The Board will look at the whole picture, including:

• evidence of remorse or restitution
• evidence of participation in counseling and/or group therapy
• evidence of volunteer work and community engagement
• letters of reference from employers and/or probation officials²⁶
• length of time since conviction with a clean record²⁷

In one case the Board sought to revoke the license of a pharmacy technician who sustained two recreational drug convictions in circumstances unrelated to his work.

The administrative law judge (often referred to as the “ALJ”) acknowledged that such convictions can form the basis for license revocation. But the ALJ recommended a less severe punishment of probation because of mitigating factors indicating rehabilitation:

[Licensee’s] use of illegal drugs did not result in any actual harm to the public, although there was a potential for harm. [Licensee] has no other criminal record, as would be expected if he were addicted to illegal drugs and needed to steal or engage in other unlawful activities to support a drug habit. [Licensee] briefly failed in his first effort at sustained sobriety, but he has succeeded since. [Licensee] accepted full responsibility for his misconduct, he cooperated with law enforcement, he cooperated with the Board’s investigator, he expressed sincere remorse, and he is well into the process of rehabilitating himself.²⁸

Regulatory proceedings are not designed to “punish” a licensee like criminal proceedings. Instead, they are designed to help the Board assess whether a licensee poses a danger to the public.

The Board is not thinking: “We want to get that licensee and make him feel bad and punish him for getting that conviction”. Rather, the Board is thinking: “Our job is to protect pharmacy customers in California and we must look very carefully at this conviction to see whether it indicates the licensee presents a danger to the public.”

You want the Board to see that you are sincere in your remorse and have taken the steps necessary to overcome the past. You want the Board to feel confident that you pose no danger to the public if you keep working.”²⁹

2.4. Reinstatement

Even if you end up losing your license, do not give up. Eventually, you can apply to have your license reinstated and at that time the Board will again look at rehabilitation evidence.³⁰

In one case a pharmacy technician had her license revoked after pleading guilty to identity theft. Even though her license was revoked, the ALJ gave her hope for the future, noting that she was on the right track by expressing remorse, complying with her probation terms, taking intermittent work and participating in worthy church activities:

It is understood that respondent strived very hard to become a pharmacy technician and wants very much to keep her registration. Due, however, to the seriousness of her offenses and the access that a pharmacy technician can have to patients’ private and confidential information at a pharmacy, public safety and welfare require that respondent’s registration be revoked. Respondent is encouraged to apply for reinstatement of her registration after she completes her criminal probation, obtains reduction or expungement of her offenses, and has rehabilitated herself.³¹

3. What can I do to fight for my license?

If you receive an Accusation from the Board notifying you that the Board seeks to discipline you by suspending or revoking your license, all is not lost.³²

You (or your attorney) may be able to negotiate a settlement with the Board to limit the extent of discipline.

You can also opt for a hearing in front of an administrative law judge, where you will have the right to introduce evidence and cross-examine witnesses.³³

In preparing your case, you will have the right to “discovery of relevant evidence.³⁴

The hearing will generally take place in a building located near you in Sacramento, Oakland, Los Angeles or San Diego.³⁵ The Board will be represented by a lawyer from the California Attorney General’s Office and we highly recommend that you have an attorney by your side, as well.

If you want a hearing before an ALJ, it is very important that you act quickly. If you do not respond within 15 days, you will be presumed to have given up your chance for a hearing.³⁶

We discuss the hearing process in more detail in our related article Administrative Hearings.

4. Can I become a pharmacist if I have a criminal history? (The 7-year rule)

The general rule is that the Board of Pharmacy may not disqualify social work applicants with no criminal convictions within the past seven (7) years. And if applicants do have criminal convictions within the previous seven (7) years, the Board may disqualify them only if the cases were substantially related to the qualifications, functions, or duties of being a pharmacist. (Scroll up to question 2 for a more in-depth explanation of substantially related crimes.)

But there are exceptions: The Board may deny pharmacy licenses to applicants who have been convicted of any of the following offenses at any time:

• a crime for which the applicant has to register as a Tier II or Tier III sex offender; or
• a serious felony, as defined in Section 1192.7 of the Penal Code, which includes:

1. rape;
2. commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;
3. continuous sexual abuse of a child, in violation of Section 288.5;
4. sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
5. oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
6. lewd or lascivious act on a child under 14 years of age;
7. any burglary of the first degree;
8. robbery or bank robbery;
9. grand theft involving a firearm;
10. assault with a deadly weapon by an inmate;
11. assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220;
12. assault with a deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245;
13. assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Sections 245.2, 245.3, or 245.5;
14. assault with intent to commit rape or robbery;
15. assault with a deadly weapon or instrument on a peace officer;
16. assault by a life prisoner on a noninmate;
17. murder or voluntary manslaughter;
18. attempted murder;
19. kidnapping;
20. mayhem;
21. any felony punishable by death or imprisonment in the state prison for life;
22. any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm;
23. arson;
24. holding of a hostage by a person confined in a state prison;
25. attempt to commit a felony punishable by death or imprisonment in the state prison for life;
26. any felony in which the defendant personally used a dangerous or deadly weapon;
27. selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code;
28. any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
29. carjacking; (28) any felony offense, which would also constitute a felony violation of Section 186.22;
30. shooting from a vehicle, in violation of subdivision (c) or (d) of Section 12034;
31. throwing acid or flammable substances, in violation of Section 244;
32. discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;
33. intimidation of victims or witnesses, in violation of Section 136.1;
34. criminal threats, in violation of Section 422;
35. any attempt to commit a crime listed in this subdivision other than an assault;
36. exploding a destructive device or any explosive with intent to injure;
37. exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;
38. exploding a destructive device or any explosive with intent to murder;
39. any violation of Section 12022.53;
40. a violation of subdivision (b) or (c) of Section 11418; and
41. any conspiracy to commit an offense described in this subdivision.

However, pharmacist applicants who get denied licenses on the basis of their criminal history have the right to appeal.³⁷

Our California Criminal Defense Lawyers Can Help.

Call us for help at (855) LAW-FIRM

If you or a loved one is charged with a crime and are a pharmacist and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Helpful links:

Board of Pharmacy

California Office of Administrative hearings

References: