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Are you being investigated as a pharmacist for failing to perform a legal or statutory obligation?

November 13, 2015
Est read time: 5 minutes

Have you received an administrative complaint against your pharmacy license for failing to perform a legal or statutory obligation placed upon you? If you have, it is very important that you contact an experienced health care attorney to go over the charges. These charges are serious and can have a negative impact on your license and your ability to practice as a pharmacist in Florida.

The Law

The law states that disciplinary action can be taken against your license for failing to perform a legal or statutory obligation placed upon you. This can extend to repayment of student loans. Florida law on point here is Florida Statute 456.072(1)(k). That statute says the following in particular:

(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

(k) Failing to perform any statutory or legal obligation placed upon a licensee. For purposes of this section, failing to repay a student loan issued or guaranteed by the state or the Federal Government in accordance with the terms of the loan or failing to comply with service scholarship obligations shall be considered a failure to perform a statutory or legal obligation.

Important to note here is that failing to repay a student loan or complying with scholarship obligations is considered a failure to perform a statutory or legal obligation and can subject you to discipline. The basic premise of this statute is that discipline can be levied against you for failing to perform any obligation the law places on you. A common statutory obligation that the board has charged pharmacists with violating, and thus triggering this statute, is 465.022(11)(a) which has requirements for drug records to be maintained by a prescription department manager. It is also possible that the board charges you with violating this statute for failing to perform any other statutory or legal obligation as well. If you have had complaints made against your license for violation of this statute, you should contact an experienced health care attorney immediately to go over your options. There can be severe repercussions for you if you wait.

Penalties

There are a range of actions that can be taken against you should the Board of Pharmacy decide to take disciplinary action against you. The penalties you could face are found in the Disciplinary Guidelines for the Board of Pharmacy, particularly in Rule 64B16-30.001 in the Florida Administrative Code. The rule states the following for disciplinary guidelines for violation of the statute:

 MINIMUM, including first time and single count violations:MAXIMUM, including multiple or repeated violations of the same provision:
Generally:$2,000 fine$2,500 to $10,000 fine and one (1) year suspension followed by two (2) years of probation, up to revocation of license.

 

Student Loans or Scholarship Service: Suspension of the license until new payment terms are agreed upon or the scholarship obligation is resumed, followed by probation for the duration of the student loan or remaining scholarship obligation period, and a fine equal to 10 percent of the defaulted loan amount.Suspension of the license until new payment terms are agreed upon or the scholarship obligation is resumed, followed by probation for the duration of the student loan or remaining scholarship obligation period, and a fine equal to 10 percent of the defaulted loan amount, to Revocation with a minimum total fine of $10,000.

The minimum penalty assessed against you for violating the statute in general is a $2,000 fine. However, be aware that multiple violations of this statute can lead to a bigger fine of up to $10,000 with a one year suspension and two years of probation. At worst, multiple violations can lead to your license being revoked. If you are found to have violated the student loans or scholarship services provision of the statute, your license can be suspended until you agree to new payment terms or you resume obligations. You can be put on probation for the duration of the student loan or obligation period and be charged a fine equal to 10% of the defaulted loan amount. Be aware that multiple violations of this particular provision could also result in your license being revoked and minimum fine of $10,000. This is very serious. You should also be aware that these are guidelines that the board should follow in handing out discipline, but are not set in stone, and can be accompanied by other penalties or deviated from. These penalties can be found in Florida Statute 456.072(2), which you should review with your health care attorney.

Aggravating/Mitigating Circumstances

The board hearing your case can take into account various factors that could affect the discipline you receive. These factors are called aggravating and mitigating circumstances. Aggravating circumstances are factors that can hurt your case. If aggravating circumstances are proven you could face harsher penalties. Mitigating circumstances are factors that can help your case. If mitigating circumstances are proven you could face lesser penalties. These factors can also be found in rule 64B16-30.001 in the Florida Administrative Code. If either side can prove with clear and convincing evidence the aggravating or mitigating circumstances, the discipline you face could be altered by the board. Here are the factors:

(a) Aggravating circumstances; circumstances which may justify deviating from the above set forth disciplinary guidelines and cause the enhancement of a penalty beyond the maximum level of discipline in the guidelines shall include but not be limited to the following:

  1. History of previous violations of the practice act and the rules promulgated thereto.
  2. In the case of negligent acts, the magnitude and scope of the damage or potential damage inflicted upon the patient or the general public by the licensee’s misfeasance.
  3. Evidence of violation of professional practice acts in other jurisdictions wherein the licensee has been disciplined by the appropriate regulatory authority.
  4. Harm occurred.

(b) Mitigating circumstances; circumstances which may justify deviating from the above set forth disciplinary guidelines and cause the lessening of a penalty beyond the minimum level of discipline in the guidelines shall include but not be limited to the following:

  1. In cases of negligent acts, the minor nature of the damage or potential damage to the patient’s or the public’s health, safety, and welfare resulting from the licensee’s misfeasance.
  2. Lack of previous disciplinary history in this or any other jurisdiction wherein the licensee practices his profession.
  3. Restitution of any monetary damage suffered by the patient.
  4. The licensee’s professional standing among his peers.
  5. Steps already taken by the licensee to insure the non-occurrence of similar violations in the future, including continuing education.
  6. The degree of financial hardship incurred by a licensee as a result of the imposition of fines or the suspension of his practice.

The board can take into account any of these factors, or other factors, in your hearing. The board can deviate from the standard disciplinary guidelines if they find that any of these aggravating or mitigating circumstances exist. These are very important factors that you should discuss with your health care attorney.

Conclusion

If you are a licensed health care professional in Florida and have received an administrative complaint for violation of the statutes, you are probably concerned about how this may affect your license.  To set up a FREE no obligation consultation with Jeff Howell contact the law firm of Howell, Buchan & Strong, Attorneys at Law at 850-877-7776.  We represent licensed health care professionals and facilities statewide, including out of state clients who are concerned about the status of their Florida license.

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