Prior Criminal Conduct and Application for Re-Licensure

May a state board of pharmacy base denial of a pharmacy internship application on prior criminal conduct?

Issue of the Case

When a pharmacist relinquishes his license when convicted of theft of controlled substances and subsequently applies to be a pharmacy intern as a step toward regaining licensure, may the state board of pharmacy base denial of his internship application on the prior criminal conduct?

Facts of the Case

The pharmacist in this case stole more than 1500 dosage units of Schedule II medications, along with some other drugs, from pharmacies where he was practicing. Criminal charges were pursued, and he was convicted of 2 felonies and a petty offense. As a result, he relinquished his license to practice pharmacy in the state.

After completing his time of incarceration, the pharmacist submitted a pharmacy intern application to the board. As the court emphasized, “Because a pharmacy internship is a prerequisite to licensure as a pharmacist…his internship application amounted to an application for reinstatement of his pharmacist license.” The board voted to deny that application based on his prior illegal activities related to the practice of the profession and subsequent relinquishment of his license.

The pharmacist appealed that decision and had a hearing before an administrative law judge (ALJ). An ALJ is an official who presides at a non-court hearing, usually a proceeding involving a dispute between an administrative agency and someone affected by a decision rendered by that agency. The outcome was that the ALJ issued an “initial agency decision” ruling that the pharmacist had demonstrated rehabilitation, thereby proving fitness for licensure. The ALJ ordered reinstatement of his license.

The board members disagreed, noting exceptions to the ALJ’s decision, and conducted a hearing on the matter. At the conclusion of that proceeding, the board adopted the findings of the ALJ, including his conclusion that the pharmacist had been rehabilitated, but disagreed with the ALJ’s conclusion that his rehabilitation warranted the granting of his application. The board again denied his application, so the pharmacist appealed to the state court of appeals for review of the agency decision.

The Court’s Ruling

The court ruled that the board could indeed deny the pharmacist re-licensure, concluding that the board was permitted to consider the pertinent circumstances of his crimes, not just the facts of his conviction and rehabilitation, in determining whether to reinstate his license.

The Court’s Reasoning

The pharmacist had advanced several arguments in his attempt to convince the court to overturn the agency’s decision. First, he argued that the board had erred when it permitted its chief inspector to be present during the board’s deliberations because that was the individual who had investigated the case and had advocated that denial was the proper approach. This was essentially arguing that his due process rights had been violated, with the argument being that this tainted the board’s decision and the court should reinstate the decision of the ALJ that the license should be granted. The appellate court declined to do that. The court noted that it was troubled by the presence of the chief inspector during the deliberations, but that would not be basis for reversal of the board’s decision.

Next, the pharmacist argued that if the court did feel that the board had made an erroneous decision, it should not refer the matter back there because the board members had shown “profound” personal bias or prejudice against him. He pointed out that these were the same members of the board who had voted to deny his application earlier. But the court was unpersuaded on that point, stating that the prior negative vote did not mean the board members were incapable of rendering a fair and unbiased decision.

The pharmacist’s next argument was that once he had presented evidence showing his rehabilitation following the earlier crimes, the burden of proof shifted to the board to establish that he was unqualified to be licensed. The court reviewed that argument and concluded that such a shift might exist if the instant action were to revoke his license to practice, but that was not the case here. The focus here was an application for licensure, meaning that the applicant bore the burden of establishing that he met all the qualifications.

The court pointed to a provision in the state’s pharmacy practice act stating that the board may deny an application for licensure when the applicant has engaged in activities that are grounds for disciplinary action. That statute authorized the board to consider circumstances surrounding the pharmacist’s criminal acts. The agency stated its concern that the pharmacist had not merely committed crimes; he had violated laws pertaining to drugs, his violations related directly to professional activities, he used his pharmacy license to perpetrate the crimes, and he now was seeking licensure in the same professional arena (emphasis in original). The court concluded by noting that if the board had another applicant for licensure who had done the same illegal acts, but without being convicted of a felony, the agency would not be prevented from denying licensure.

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.