338.055. Denial, revocation or suspension of license, grounds for--expedited procedure--additional discipline authorized, when.
Denial, revocation or suspension of license, grounds for--expeditedprocedure--additional discipline authorized, when.
338.055. 1. The board may refuse to issue any certificate ofregistration or authority, permit or license required pursuant to thischapter for one or any combination of causes stated in subsection 2 of thissection. The board shall notify the applicant in writing of the reasonsfor the refusal and shall advise the applicant of his or her right to filea complaint with the administrative hearing commission as provided bychapter 621, RSMo.
2. The board may cause a complaint to be filed with theadministrative hearing commission as provided by chapter 621, RSMo, againstany holder of any certificate of registration or authority, permit orlicense required by this chapter or any person who has failed to renew orhas surrendered his or her certificate of registration or authority, permitor license for any one or any combination of the following causes:
(1) Use of any controlled substance, as defined in chapter 195, RSMo,or alcoholic beverage to an extent that such use impairs a person's abilityto perform the work of any profession licensed or regulated by thischapter;
(2) The person has been finally adjudicated and found guilty, orentered a plea of guilty or nolo contendere, in a criminal prosecutionunder the laws of any state or of the United States, for any offensereasonably related to the qualifications, functions or duties of anyprofession licensed or regulated under this chapter, for any offense anessential element of which is fraud, dishonesty or an act of violence, orfor any offense involving moral turpitude, whether or not sentence isimposed;
(3) Use of fraud, deception, misrepresentation or bribery in securingany certificate of registration or authority, permit or license issuedpursuant to this chapter or in obtaining permission to take any examinationgiven or required pursuant to this chapter;
(4) Obtaining or attempting to obtain any fee, charge, tuition orother compensation by fraud, deception or misrepresentation;
(5) Incompetence, misconduct, gross negligence, fraud,misrepresentation or dishonesty in the performance of the functions orduties of any profession licensed or regulated by this chapter;
(6) Violation of, or assisting or enabling any person to violate, anyprovision of this chapter, or of any lawful rule or regulation adoptedpursuant to this chapter;
(7) Impersonation of any person holding a certificate of registrationor authority, permit or license or allowing any person to use his or hercertificate of registration or authority, permit, license, or diploma fromany school;
(8) Denial of licensure to an applicant or disciplinary actionagainst an applicant or the holder of a license or other right to practiceany profession regulated by this chapter granted by another state,territory, federal agency, or country whether or not voluntarily agreed toby the licensee or applicant, including, but not limited to, surrender ofthe license upon grounds for which denial or discipline is authorized inthis state;
(9) A person is finally adjudged incapacitated by a court ofcompetent jurisdiction;
(10) Assisting or enabling any person to practice or offer topractice any profession licensed or regulated by this chapter who is notregistered and currently eligible to practice under this chapter;
(11) Issuance of a certificate of registration or authority, permitor license based upon a material mistake of fact;
(12) Failure to display a valid certificate or license if so requiredby this chapter or any rule promulgated hereunder;
(13) Violation of any professional trust or confidence;
(14) Use of any advertisement or solicitation which is false,misleading or deceptive to the general public or persons to whom theadvertisement or solicitation is primarily directed;
(15) Violation of the drug laws or rules and regulations of thisstate, any other state or the federal government;
(16) The intentional act of substituting or otherwise changing thecontent, formula or brand of any drug prescribed by written or oralprescription without prior written or oral approval from the prescriber forthe respective change in each prescription; provided, however, that nothingcontained herein shall prohibit a pharmacist from substituting or changingthe brand of any drug as provided under section 338.056, and any suchsubstituting or changing of the brand of any drug as provided for insection 338.056 shall not be deemed unprofessional or dishonorable conductunless a violation of section 338.056 occurs;
(17) Personal use or consumption of any controlled substance unlessit is prescribed, dispensed, or administered by a health care provider whois authorized by law to do so.
3. After the filing of such complaint, the proceedings shall beconducted in accordance with the provisions of chapter 621, RSMo. Upon afinding by the administrative hearing commission that the grounds, providedin subsection 2, for disciplinary action are met, the board may, singly orin combination, censure or place the person named in the complaint onprobation on such terms and conditions as the board deems appropriate for aperiod not to exceed five years, or may suspend, for a period not to exceedthree years, or revoke the license, certificate, or permit. The board mayimpose additional discipline on a licensee, registrant, or permittee foundto have violated any disciplinary terms previously imposed under thissection or by agreement. The additional discipline may include, singly orin combination, censure, placing the licensee, registrant, or permitteenamed in the complaint on additional probation on such terms and conditionsas the board deems appropriate, which additional probation shall not exceedfive years, or suspension for a period not to exceed three years, orrevocation of the license, certificate, or permit.
4. If the board concludes that a licensee or registrant has committedan act or is engaging in a course of conduct which would be grounds fordisciplinary action which constitutes a clear and present danger to thepublic health and safety, the board may file a complaint before theadministrative hearing commission requesting an expedited hearing andspecifying the activities which give rise to the danger and the nature ofthe proposed restriction or suspension of the licensee's or registrant'slicense. Within fifteen days after service of the complaint on thelicensee or registrant, the administrative hearing commission shall conducta preliminary hearing to determine whether the alleged activities of thelicensee or registrant appear to constitute a clear and present danger tothe public health and safety which justify that the licensee's orregistrant's license or registration be immediately restricted orsuspended. The burden of proving that the actions of a licensee orregistrant constitute a clear and present danger to the public health andsafety shall be upon the state board of pharmacy. The administrativehearing commission shall issue its decision immediately after the hearingand shall either grant to the board the authority to suspend or restrictthe license or dismiss the action.
5. If the administrative hearing commission grants temporaryauthority to the board to restrict or suspend the licensee's orregistrant's license, such temporary authority of the board shall becomefinal authority if there is no request by the licensee or registrant for afull hearing within thirty days of the preliminary hearing. Theadministrative hearing commission shall, if requested by the licensee orregistrant named in the complaint, set a date to hold a full hearing underthe provisions of chapter 621, RSMo, regarding the activities alleged inthe initial complaint filed by the board.
6. If the administrative hearing commission dismisses the actionfiled by the board pursuant to subsection 4 of this section, such dismissalshall not bar the board from initiating a subsequent action on the samegrounds.
(L. 1971 S.B. 145, A.L. 1978 H.B. 933, A.L. 1981 S.B. 16, A.L. 1986 H.B. 999, A.L. 1998 H.B. 1601, et al., A.L. 2001 H.B. 567, A.L. 2004 S.B. 1122)