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
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.
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
- 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.
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.
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
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
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.
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:
- commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;
- continuous sexual abuse of a child, in violation of Section 288.5;
- 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;
- 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;
- lewd or lascivious act on a child under 14 years of age;
- any burglary of the first degree;
- robbery or bank robbery;
- grand theft involving a firearm;
- assault with a deadly weapon by an inmate;
- assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220;
- 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;
- 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;
- assault with intent to commit rape or robbery;
- assault with a deadly weapon or instrument on a peace officer;
- assault by a life prisoner on a noninmate;
- murder or voluntary manslaughter;
- attempted murder;
- any felony punishable by death or imprisonment in the state prison for life;
- 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;
- holding of a hostage by a person confined in a state prison;
- attempt to commit a felony punishable by death or imprisonment in the state prison for life;
- any felony in which the defendant personally used a dangerous or deadly weapon;
- 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;
- 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;
- carjacking; (28) any felony offense, which would also constitute a felony violation of Section 186.22;
- shooting from a vehicle, in violation of subdivision (c) or (d) of Section 12034;
- throwing acid or flammable substances, in violation of Section 244;
- discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;
- intimidation of victims or witnesses, in violation of Section 136.1;
- criminal threats, in violation of Section 422;
- any attempt to commit a crime listed in this subdivision other than an assault;
- exploding a destructive device or any explosive with intent to injure;
- exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;
- exploding a destructive device or any explosive with intent to murder;
- any violation of Section 12022.53;
- a violation of subdivision (b) or (c) of Section 11418; and
- 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.
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.
California Office of Administrative hearings
- In the Matter of the Accusation Against Nolan Wong, infra; In the Matter of the Accusation Against George Chiu, infra.
- Our California Criminal Defense Lawyers have local offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, San Diego, San Francisco, Torrance, Van Nuys, West Covina, and Whittier.
- See California Business and Professions Code Section 4000 et seq. See also California Code of Regulations Title 16, Division 17 (California State Board of Pharmacy).
- See California Business and Professions Code Section 4301: “The board shall take action against any holder of a license who is guilty of unprofessional conduct or whose license has been issued by mistake. Unprofessional conduct shall include, but is not limited to, any of the following: (a) Procurement of a license by fraud or misrepresentation. (b) Incompetence. (c) Gross negligence. (d) The clearly excessive furnishing of controlled substances in violation of subdivision (a) of Section 11153 of the Health and Safety Code. (e) The clearly excessive furnishing of controlled substances in violation of subdivision (a) of Section 11153.5 of the Health and Safety Code. Factors to be considered in determining whether the furnishing of controlled substances is clearly excessive shall include, but not be limited to, the amount of controlled substances furnished, the previous ordering pattern of the customer (including size and frequency of orders), the type and size of the customer, and where and to whom the customer distributes its product. (f) The commission of any act involving moral turpitude, dishonesty, fraud, deceit, or corruption, whether the act is committed in the course of relations as a licensee or otherwise, and whether the act is a felony or misdemeanor or not. (g) Knowingly making or signing any certificate or other document that falsely represents the existence or nonexistence of a state of facts. (h) The administering to oneself, of any controlled substance, or the use of any dangerous drug or of alcoholic beverages to the extent or in a manner as to be dangerous or injurious to oneself, to a person holding a license under this chapter, or to any other person or to the public, or to the extent that the use impairs the ability of the person to conduct with safety to the public the practice authorized by the license. (i) Except as otherwise authorized by law, knowingly selling, furnishing, giving away, or administering, or offering to sell, furnish, give away, or administer, any controlled substance to an addict. (j) The violation of any of the statutes of this state, of any other state, or of the United States regulating controlled substances and dangerous drugs. (k) The conviction of more than one misdemeanor or any felony involving the use, consumption, or self-administration of any dangerous drug or alcoholic beverage, or any combination of those substances. (l) The conviction of a crime substantially related to the qualifications, functions, and duties of a licensee under this chapter. The record of conviction of a violation of Chapter 13 (commencing with Section 801) of Title 21 of the United States Code regulating controlled substances or of a violation of the statutes of this state regulating controlled substances or dangerous drugs shall be conclusive evidence of unprofessional conduct. In all other cases, the record of conviction shall be conclusive evidence only of the fact that the conviction occurred. The board may inquire into the circumstances surrounding the commission of the crime, in order to fix the degree of discipline or, in the case of a conviction not involving controlled substances or dangerous drugs, to determine if the conviction is of an offense substantially related to the qualifications, functions, and duties of a licensee under this chapter. A plea or verdict of guilty or a conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of this provision. The board may take action when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under Section 1203.4 of the Penal Code allowing the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. (m) The cash compromise of a charge of violation of Chapter 13 (commencing with Section 801) of Title 21 of the United States Code regulating controlled substances or of Chapter 7 (commencing with Section 14000) of Part 3 of Division 9 of the Welfare and Institutions Code relating to the Medi-Cal program. (n) The revocation, suspension, or other discipline by another state of a license to practice pharmacy, operate a pharmacy, or do any other act for which a license is required by this chapter that would be grounds for revocation, suspension, or other discipline under this chapter. Any disciplinary action taken by the board pursuant to this section shall be coterminous with action taken by another state, except that the term of any discipline taken by the board may exceed that of another state, consistent with the board’s enforcement guidelines. The evidence of discipline by another state is conclusive proof of unprofessional conduct. (o) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provision or term of this chapter or of the applicable federal and state laws and regulations governing pharmacy, including regulations established by the board or by any other state or federal regulatory agency. (p) Actions or conduct that would have warranted denial of a license. (q) Engaging in any conduct that subverts or attempts to subvert an investigation of the board. (r) The selling, trading, transferring, or furnishing of drugs obtained pursuant to Section 256b of Title 42 of the United States Code to any person a licensee knows or reasonably should have known, not to be a patient of a covered entity, as defined in paragraph (4) of subsection (a) of Section 256b of Title 42 of the United States Code. (s) The clearly excessive furnishing of dangerous drugs by a wholesaler to a pharmacy that primarily or solely dispenses prescription drugs to patients of long-term care facilities. Factors to be considered in determining whether the furnishing of dangerous drugs is clearly excessive shall include, but not be limited to, the amount of dangerous drugs furnished to a pharmacy that primarily or solely dispenses prescription drugs to patients of long-term care facilities, the previous ordering pattern of the pharmacy, and the general patient population to whom the pharmacy distributes the dangerous drugs. That a wholesaler has established, and employs, a tracking system that complies with the requirements of subdivision (b) of Section 4164 shall be considered in determining whether there has been a violation of this subdivision. This provision shall not be interpreted to require a wholesaler to obtain personal medical information or be authorized to permit a wholesaler to have access to personal medical information except as otherwise authorized by Section 56 and following of the Civil Code. For purposes of this section, “long-term care facility” shall have the same meaning given the term in Section 1418 of the Health and Safety Code. (t) The acquisition of a nonprescription diabetes test device from a person that the licensee knew or should have known was not the nonprescription diabetes test device’s manufacturer or the manufacturer’s authorized distributors as identified in Section 4160.5. (u) The submission of a reimbursement claim for a nonprescription diabetes test device to a pharmaceutical benefit manager, health insurer, government agency, or other third-party payor when the licensee knew or reasonably should have known that the diabetes test device was not purchased either directly from the manufacturer or from the nonprescription diabetes test device manufacturer’s authorized distributors as identified in Section 4160.5.” SEE ALSO California Business and Professions Code Section 490, which provides: “(a) In addition to any other action that a board is permitted to take against a licensee, a board may suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued. (b) Notwithstanding any other provision of law, a board may exercise any authority to discipline a licensee for conviction of a crime that is independent of the authority granted under subdivision (a) only if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the licensee’s license was issued. (c) A conviction within the meaning of this