BEFORE THE BOARD OF PHARMACY DEPARTMENT OF …the Board of Pharmacy, Department of Consumer Affairs, as its Decision in this matter. This Decision shall become effective at 5:00 p.m

BEFORE THE BOARD OF PHARMACY

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation and Petition to Revoke Probation A gainst: AMER LATIF NAIK, Intern Pharmacist Registration No. INT 35312,

Respondent.

Case No. 6348

OAH No. 2018050631

DECISION AND ORDER

The attached Proposed Decision of the Administrative Law Judge is hereby adopted by

the Board of Pharmacy, Department of Consumer Affairs, as its Decision in this matter.

This Decision shall become effective at 5:00 p.m. on November 14, 2018.

It is so ORDERED on October 15, 2018.

BOARD OF PHARMACY DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

By Victor Law, R.Ph. Board President



In the Matter of the Accusation and Petition to Revoke Probation Against:

AMER LATIF NAIK

Intern Pharmacist Registration No. INT 35312

Respondent.

Case No. 6348

OAH No. 2018050631

PROPOSED DECISION ·

This matter was heard before Dena Coggins, Administrative Law Judge, Office of Administrative Hearings (OAH), State of California, on August 15, 2018, in Sacramento, California.

Kristina Jarvis, Deputy Attorney General, represented Virginia Herold ( complainant), Executive Officer of the Board of Pharmacy (Board), Department of Consumer Affairs.

Amer Latif Naik (respondent) was present and represented himself.

Evidence was received, the record was closed, and the matter was submitted for decision on August 15, 2018.

FACTUAL FINDINGS

Procedural Background and License Histo,y

l. On Febrnary 17, 2015, the Board issued Original Intern Pharmacist Registration Number INT 35312 (intern pharmacist license) to respondent, which allowed respondent to work as an intern pharmacist in California. On December 11, 2017, respondent's license was suspended, and will expire on May 31, 2019, unless renewed or revoked.

2. On May 15, 2018, complainant, acting in her ofiicial capacity, filed the Accusation and Petition to Revoke Probation against respondent. The Board seeks to discipline respondent's license based upon his use of controlled substances and his violations of the terms and condition of his Board-ordered probation. 1

3. Respondent timely filed a Notice of Defense, pursuant to Government Code section 11506. The matter was set for an evidentiary hearing before an Administrative Law Judge of the Office of Administrative Hearings, an independent adjudicative agency of the State of California, pursuant to Government Code section 11500 et seq.

Prior Discipline

4. On April 24, 2017, complainant signed an Accusation against respondent, seeking to revoke his intern pharmacist license based on the following September 7, 2016 criminal conviction:

On September 7, 2016, in the.Fresno County Superior Court, Case No. Ml 6919718, respondent was convicted, by a plea of nolo contendere, of violating Vehicle Code section 23152, subdivision (b), driving with a 0.08 percent or higher blood alcohol level, a misdemeanor. He also admitted to the Vehicle Code section 23540 enhancement, based upon the current offense occurring within 10 years of his prior wet/reckless driving conviction on December 12, 2007. Respondent was placed on three years of criminal probation, ordered to serve 10 days in jail and to complete an 18-month alcohol program. The circumstances of the crime are that on November 20, 2015, respondent was driving under the influence of alcohol. The results of a breath test revealed he had a blood alcohol content of .15 percent.

5. The April 24, 2017 Accusation alleged the following matters in aggravation:

a. On or about December 12, 2007,in the Fresno County Superior Court, Case No. M07925348, respondent was convicted, by a plea ofnolo contendere, of violating Vehicle Code section 23103, subdivision (a), pursuant to 23103.5 (wet/reckless driving), a misdemeanor.

b. On or about September 21, 2016, in the Madera County Superior Court, Case No. CCR050923, respondent was convicted by a plea of nolo contendere, of violating Vehicle Code section 23152, subdivision (b), driving while having a 0.08 percent or more, by weight, of alcohol, a misdemeanor.

1 At hearing, the Board's unopposed motion to amend the Accusation and Petition to Revoke Probation to add a request for cost recovery under Business and Professions Code section 125.3 was granted.

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c. On or about October 4, 2016, the Board issued a citation against respondent relating to his December 12, 2007, and September 21, 2016 convictions, for violating Business and Professions Code sections 4301, subdivisions (h) (use of alcoholic beverages to an extent or in a manner dangerous or injurious to oneself, others and the public), (k) (conviction of more than one misdemeanor involving the consumption of alcoholic beverages), and (1) (conviction of crimes substantially related to the practice of pharmacy). Respondent complied with the citation by paying the fine assessed against him.

6. The parties entered into a Stipulated Settlement and Disciplinary Order, signed by respondent on July 28, 2017. The Board adopted the Stipulated Settlement and Disciplinary Order as its Decision, which became effective on September 27, 2017. As part of the settlement, respondent admitted tl1e truth of each and every charge and allegation in the April 24, 2017 Accusation. Respondent's intern pharmacist license was revoked; however, the revocation was stayed and respondent was placed on probation for five years with certain terms and conditions. The relevant terms and conditions are as follows:

(I) Obey All Laws. Respondent shall obey all state and federal laws and regulations ....

[ill ... ml

(14) Violation of Probation. If a respondent has not complied with any term or condition of probation, the board shall have continuing jurisdiction over respondent, and probation shall automatically be extended, until all terms and conditions have been satisfied or the board has taken other action as deemed appropriate to treat the failure to comply as a violation of probation, to terminate probation, and to impose the penalty that was stayed.

If respondent violates probation in any respect, the board, after giving respondent notice and an opportunity to be heard, may revoke probation and carry out the disciplinary order that was stayed. Notice and opportunity to' be heard are not required for those provisions stating tl1at a violation thereof may lead to automatic termination of the stay and/or revocation of the license. If a petition to revoke probation or an accusation is filed against respondent during probation, the board shall have continuing jurisdiction and the period of probation shall be automatically extended until the petition to revoke probation or accusation is heard and decided.

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(16) Pharmacists Recovery Program (PRP). Within thirty (30) days of the effective date of this decision, respondent shall contact the Pharmacists Recovery Program (PRP) for evaluation, and shall immediately thereafter enroll, successfully participate in, and complete the treatment contract and any subsequent addendums as recommended and provided by the PRP and as approved by the board or its designee. The costs for PRP participation shall be borne by the respondent.

If respondent is currently enrolled in the PRP, said participation is now mandatory and as of the effective date of this decision is no longer considered a self-referral under Business and Professions Code section 4362(c)(2). Respondent shall successfolly participate in and complete his current contract and any subsequent addendums with the PRP.

Failure to timely contact or enroll in the PRP, or successfully participate in and complete the treatment contract and/or any addendums, shall be considered a violation of probation.

Probation shall be automatically extended until respondent successfully completes the PRP. Any person terminated from the PRP program shall be automatically suspended by lhe board. Respondent may not resume the practice of pharmacy until notified by the board in writing. Any confirmed positive test for alcohol or for any dmg not lawfully prescribed by a licensed practitioner as part of a documented medical treatment shall result in the automatic suspension of practice by respondent and shall be considered a violation of probation.... Failure to comply with this suspension shall be considered a violation of probation....

[ill ... [ill

(18) Abstain from Drugs and Alcohol Use. Respondent shall completely abstain from the possession or use of alcohol, controlled substances, dangerous dmgs and their associated paraphernalia except when the drugs are lawfully prescribed by a licensed practitioner as part of a documented medical treatment. Upon request of the board or its designee, respondent shall provide documentation from the licensed practitioner that the prescription for the drug was legitimately issued and is a necessary part of the treahnent of the respondent. Failure to timely provide such documentation shall be considered a violation of probation. Respondent shall ensure that he is not in

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the same physical location as individuals who are using illicit substances even if respondent is not personally ingesting the drugs. Any possession or use of alcohol, controlled substances, or their associated paraphernalia not supported by the documentation timely provided, and/or any physical proximity to persons using illicit substances, shall be considered a violation of probation.

Positive Drug Test Results

7. Anita Mireles is a clinical case manager at Maximus, the company contracted to operate the Board's PRP diversion program. She has a bachelor's degree in nursing and has worked in the area of chemical addiction for the last 15 years. Her duties include managing and monitoring PRP participants' compliance with probation terms and conditions, checking that PRP participants have called or checked in for drug testing, conducting intake meetings, and regularly checking in with participants. She is also responsible for reviewing clinical assessments that are used to develop treatment plans. Ms. Mireles testified at the hearing.

8. Respondent was one of the PRP participants assigned to Ms. Mireles when he enrolled in the program as a probation referral from the Board. Respondent was enrolled in the PRP through an intake interview by Ms. Mireles on July 19, 2017. During the intake interview, respondent told Ms. Mireles that the last time he consumed alcohol was on November 2015, and that his drug of choice was alcohol. Respondent denied illicit drug use. Ms. Mireles explained the requirements of the PRP to respondent, including that he was required to register for random drug testing, participate in a clinical assessment, have weekly check-ins with Ms. Mireles, attend group health support and 12-step group meetings, and find a sponsor.

9. Following the intake meeting, on July 31, 2017, a hair follicle test conducted on respondent was positive for methamphetamine, benzoylecognine, norcocaine, cocaethylene, and cocaine. Respondent's positive test result was disclosed to the Board. On August 7, 2017, Ms. Mireles discussed the positive test result with respondent, who denied using cocaine. He said that he smoked a cigar with a friend that could have been laced with cocaine. Ms. Mireles told respondent that he was required to enter into an in-patient drug treatment program. Several days later, respondent apologized to Ms. Mireles for lying during his initial intake about his illicit drug use. As a result of the positive drug test, respondent was ordered to complete an in-patient drug treatment program. He chose King of Kings Chemical Dependency in-patient drug treatment program, which he completed in November 20 l 7.

l 0. Jane Russell has been a probation monitor for the Board for the last five years. Her duties including monitoring probation compliance, preparing noncompliance letters, and dratling petitions to revoke probation. She was previously a criminal probation officer. Respondent was assigned to Ms. Russell's caseload in September 2017. In September 2017,

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respondent attended an office conference with the Board in which all terms and conditions of his probation were explained to him by Board representatives, including Ms .. Russell.

11. On December 2, and December 8, 2017, respondent submitted to two urinalysis drug screenings, but the samples were dilute, so the lab was unable to test the samples.2 Respondent submitted to a hair follicle test on December 6, 2017, which was positive for amphetamine, metharnphetan1ine, cocaine, benzoylecognine, norcocaine, cocaethylene, and hydrocodone. The positive drug test result was reported to the Board.

12. On December 11, 2017, after receiving notice of the positive test result, Ms. Mireles contacted respondent who initially denied relapsing. Respondent questioned whether the positive test result was due to supplements he was taking. After Ms. Mireles told respondent the positive test result could not have been caused by supplements, respondent admitted to relapsing. He said he used cocaine and "someone else's" Adderall prescription, but denied using methamphetamine. On the same day, Maximus terminated respondent from PRP as a public risk and his case was referred back to the Board for further action for his failure to maintain his sobriety.3

13. On or about December 11, 2017, Ms. Russell prepared a Notice of Suspension letter that was sent to respondent, informing him that he violated the terms of his probation by testing positive for methamphetamine, cocaine, and hydrocodone. The letter further informed respondent that his intern pharmacy license was immediately suspended.

Respondent's Evidence

14. Respondent testified at the hearing. He is 31 years old. He began using cocaine at 20 years old, but stopped using the drug during his seven-year marriage. When his marriage ended, he began using cocaine again. He testified that his convictions for driving while under the influence of alcohol were related to his failed marriage. He admitted to using someone else's Adderall to help with his studies. He also admitted using hydrocodone pursuant to a prescription he received from his doctor, but he acknowledged that he did notinform the Board of the prescription. He has been sober since March 2018.

15. Respondent works part-time as a security guard. He testified that he is behind in paying his auto and credit card payments. Respondent lives with his mother and has no

2 A test sample that is dilut~ can hide the presence of drugs. It indicates there may be an issue with the participant overhydrating or adulterating the urine m1d that drug testing cannot be reliably conducted.

3 Respondent reentered the Maxim us p~ogram on or about April 2018 as a probationm·y referral to the PRP. He was later terminated from the program for failing to comply with the terms of enrollment. The time period alleged in the causes for discipline in the Accusation m1d Petition to Revoke Probation does not encompass his subsequent enrollment in the PRP in April 2018.

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children. He testified that he paid the court fees relating to his convictions and he is enrolled in an 18-month alcohol program.

16. Respondent does not contest the probation violations alleged in the Accusation and Petition to Revoke Probation. He acknowledged not respecting or adhering to the requirements of the PRP program when he was emolled during the time period at issue. He is ashamed about his conduct while enrolled in the PRP. He testified that he is remorseful for lying during his intake interview when he denied using drugs and that he has always been in denial about his drug use. However, according to respondent, he has fully accepted that he has a substance abuse problem and he reentered the King of Kings intensive outpatient program in March 2018. He apologized for his conduct and explained that he wru1ts to earn the trust of the Board. His reason for appearing at the heru·ing was to get a better understanding of what he did wrong. He acknowledged violating the Board probation, but stated that he does not want to be "that kind of person anyn1ore."

17. Respondent submitted character reference letters ru1d the reference letters have been considered to the extent permitted under Government Code section 11513, subdivision (d). Tongia Sullivan, a drug and alcohol counselor, met respondent at the King of Kings progrru11 in September 2017. Ms. Sullivru1 wrote that respondent is diligent in sustaining a drug-free lifestyle and he has gained tools to deal with the issues in his life without the use of alcohol or drugs. She further wrote, "[respondent] has gained the necessru·y treatment ru1d tools to manage his life without the use of alcohol/illicit drugs." Cecilia Kieu, a friend and fellow pharmacy student who has known respondent for five years, wrote that respondent "possesses honesty, courage, and leadership qualities." Ms. Kieu is aware of respondent's convictions and drug use. Donald Walker, Executive Director ru1d treatment counselor, wrote a letter describing the King of Kings progrru11 and requesting favorable consideration for respondent.

Discussion

18. Section 4300 of the Business ru1d Professions Code provides that the Board may suspend or revoke a license issued by the Boru·d. In determining the appropriate discipline to impose on a licensee, the following factors are to be considered:

I. Actual or potential harm to the public; 2. Actual or potential hru·rn to any consumer; 3. Prior disciplinary record, including level of compliance with

disciplinary order(s); 4. Prior warning(s), including but not limited to citation(s) and fine(s),

letter(s) of admonishment, and/or correction notice(s); 5. Number and/or variety of current violations; 6. Nature and severity bf the act(s), offense(s) or crime(s) under

consideration; 7. Aggravating evidence; 8. Mitigating evidence;

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9. Rehabilitation evidence; I0. Compliance with terms of any criminal sentence, parole, or probation; 11. Overall criminal record; 12. If applicable, evidence of proceedings for case being set aside and

dismissed pursuant to Section 1203.4 of the Penal Code; 13. Time passed since the act(s) or offense(s); 14. Wheth~r the conduct was intentional or negligent, demonstrated

incompetence, or, if the respondent is being held to account for conduct committed by another, the respondent had knowledge of or knowingly participated in such conduct;

15. Financial benefit to the respondent from the misconduct; 16. Other licenses held by the respondent and license history of those

licenses; and 17. Uniform Standards Regarding Substance-Abusing Health A11s

Licensees (see Business and Professions Code section 315).

19. Respondent acknowledges he has a substance abuse problem. He has been sober for six months and has been honest about his battles with substance abuse, which shows he has taken steps to address the problem. He also complied with the Board citation issued against him in October 2016.

20. However, respondent's sobriety is recent when compared to his extensive substance abuse history. He began using cocaine when he was 20 years old, and did not stop using for over a decade. His substance abuse has resulted in three criminal convictions, most recently in 2016 for driving while under the influence of alcohol. He also admitted to using the prescribed medication of another during the relevant period.

21. The Board cited and fined respondent in 2016 for his prior DUI convictions and his use of alcoholic beverages to an extent or in a manner dangerous or injurious to himself and the public. His license was also placed on probation for five years in September 2017, pursuant to the Stipulated Settlement and Disciplinary Order. .However, despite giving respondent an opportunity to continue to retain his license, respondent did not chimge his behavior. He failed to comply with the terms of probation and lied to the Board's probation monitor.

22. The harm that could have resulted from respondent's use of controlled substances during the relevant period was significant. Moreover, as a pharmacist intern, the potential harm to consumers resulting from his behavior. is great. As an intern pharmacist, he is a patient advocate and a vital member of the clinical care team that provides pharmaceutical care and exercises clinical judgment for patients. Also, he is expected to exercise critical vigilance and control over medication stocks, drug inventories, and quality assurance protocols. Therefore, the Board and the public must be assured that he is able to

. exercise good judgment in order to protect the health, safety, and welfare of the people of California. His behavior does not show he is able to fulfill that duty at this time. Additionally, despite acknowledging his substance abuse problem, respondent did not

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appear, at hearing, to understand the gravity of his conduct. His failure to comply with the PRP is further evidence of his failure to take seriously the significance of his conduct.

23. When all of the evidence is weighed and considered, respondent did not present sufficient evidence of rehabilitation to demonstrate it would be consistent with the public health, safety and welfare to impose any disciplinary action other than the immediate revocation of his intern pharmacist license.

Costs

24. Complainant has requested reimbursement for costs incurred by the Board in connection with the prosecution of this matter, in the total amount of $7,540. The costs were certified in the manner provided by Business and Professions Code section 125.3, subdivision (c), as set forth in the Certification ofProsecution Costs and Declaration of Kristina T. Jarvis, dated August 13, 2018.

25. As set forth in Legal Conclusion 14, the Board's request that respondent reimburse $7,540 for its prosecution costs is reasonable.

LEGAL CONCLUSIONS

1. The standard of proof in an administrative disciplinary action seeking the suspension or revocation of a professional license is "clear and convincing evidence." (Ettinger v. Board ofMedical Quality Assurance (1982) 135 Cal.App.3d 853, 856.) "Clear and convincing evidence" requires a high probability of the existence of the disputed fact, greater than proof by a preponderance of the evidence. Evidence of a charge is clear and convincing as long as there is a high probability that the charge is true. (People v. Mabini (2001) 92 Cal.App.4th 654, 662.) Complainant must meet this burden of proof for each cause for discipline alleged in the Accusation.

2. Complainant has the burden of proving each of the grounds for revoking probation alleged in the Petition to Revoke Probation, and must do so by a preponderance of the evidence. (Loan Star Security & Video, Inc. v. Bureau ofSecurity and Investigative Services (2012) 209 Cal.App.4th 445, 454 ['"While the board is required to prove the allegations in an accusation by clear and convincing evidence, it is only required to prove the allegations in a petition to revoke probation by a preponderance of the evidence' [citation]"];

. quoting, Sandarg v. Dental Board ofCalifornia (2010) 184 Cal.App.4th 1434, 1441.) Evidence that is deemed to preponderate must amount to "substantial evidence." (Weiser v. Board ofRetirement (1984) 152 Cal.App.3d 775, 783.) And to be "substantial," evidence must be reasonable in nature, credible, and of solid value. (In re Teed's Estate (1952) 112 Cal.App.2d 638, 644.)

3. Pursuant to Business and Professions Code section 4300, the Board may suspend or revoke a license. Business and Professions Code section 4300.1, provides:

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https://Cal.App.2dhttps://Cal.App.3dhttps://Cal.App.3d

The expiration, cancellation, forfeiture, or suspension of a board-issued license by operation of law or by order or decision of the board or a court of law ... shall not deprive the board of jurisdiction to commence or proceed with any investigation of, or action or disciplinary proceeding against, the licensee or to render a decision suspending or revoking the license.

4. Pursuant to Business and Professions Code section 4301, the Board shall take action against a license holder who is guilty of unprofessional conduct. Unprofessional conduct includes, but is not limited to:

(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) The violation of any of the statutes of this state, of any other state, or of the United States regulating controlled substances and dange1:ous drugs.

5. Cocaine, hydrocodone, and methamphetamine are controlled substances, as provided in Health and Safety Code section 11055, subdivisions (b )(1 )(I), (b )( 6), and ( d)(2). Health and Safety Code section 11550 states, in pertinent part:

A person shall not use, or be under the influence of any controlled substance that is ... specifie,d in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision ( d) ...

6. Business and Professions Code section 4060 states, "a person shall not possess any controlled substance, except that furnished to a person upon the prescription of a physician...."

7. Complainant established by clear and convincing evidence that respondent engaged in unprofessional conduct by using controlled substances to an extent or in a manner as to be dangerous or injurious to himself or others, as set forth in Factual Findings 7 through 12. Therefore, cause for discipline of respondent's interqpharmacist license exists pursuant to Business and Professions Code section 4301, subdivision (h).

8. In addition, complainant established by clear and convincing evidence that respondent engaged in unprofessional conduct by violating Health and Safety Code section 11500 and Business and Professions Code section 4060, as set forth in Factual Findings 7

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through 12, as to the positive test results for cocaine and methamphetamine. Although respondent provided unrefuted testimony that he was prescribed hydrocodone by his doctor, he also tested positive for other controlled substances. Cause for discipline of respondent's intern pharmacist license exists pursuant to Business and Professions Code section 4301, subdivision U).

9. As set forth in Factual Findings 7 through 12, complainant established by a preponderance of the evidence that respondent violated Probation Condition \8, by failing to completely abstain from the possession or use of controlled substance. Therefore, cause exists to set aside the stay order and impose the stayed discipline of revocation of respondent's license pursuant to Condition 14 of the Stipulated Settlement and Disciplinary Order.

10. As set forth in Factual Fin dings 7 through 12, complainant established by a preponderance of the evidence that respondent violated Probation Condition 16, by failing to successfully complete the PRP. Therefore, additional cause exists to set aside the stay order and impose the stayed discipline ofrevocation of respondent's license pursuant to Condition 14 of the Stipulated Settlement and Disciplinary Order.

11. As set forth in Factual Findings 7 through 12, complainant established by a preponderance of the evidence that respondent violated Probation Condition 1, by failing to obey all state and federal laws and regulations. Therefore, additional cause exists to set aside the stay order and impose the stayed discipline of revocation of respondent's license pursuant to Condition 14 of the Stipulated Settlement and Disciplinary Order.

12. When all evidence is considered, including factors in mitigation and rehabilitation, respondent has not provided sufficient evidence of rehabilitation to ensure he does not pose a threat to public health, safety, and welfare at this time.

Costs

13. Business and Professions Code section 125.3 provides, in pertinent part, that the Board may request the administrative law judge direct a licensee fmmd to have committed a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs oftl1e investigation and enforcement of the case.

14. As set forth in Factual Findings 24 and 25, the Board seeks reimbursement for enforcement costs in the total amount of$7,540. In Zuckerman v. Board ofChiropractic Examiners (2002) 29 Cal.4th 32, 45, the Court identifies the factors to be considered in determining the reasonableness of costs pursuant to statutory provisions like Business and Professions Code section 125.3. The factors include whether the licensee has been successfol at hearing in getting charges dismissed or reduced; the licensee's subjective good faith belief in the merits of his or her position; whether the licensee has raised a colorable challenge to the proposed discipline; the financial ability of the licensee to pay; and whether the scope of the investigation was appropriate to the alleged misconduct.

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~OocuSlgned by:

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Taking into account the above factors, the prosecution costs are appropriate. The time spent appears to be reasonable and the activities were necessary to the development and presentation of the case: Respondent is employed and receives housing from his mother. While he testified that he is not current on some of his bills, he did not explain the reason he is unable to pay his bills in a timely manner. Under all of the facts and circumstances, and considering the Board's obligation to protect the public through licensing actions such as this one, assessment of costs in the amount of$7,540 against respondent is reasonable and appropriate.

ORDER

1. Petition to Revoke Probation: The disciplinary order staying revocation and granting a probationary Intern Pharmacist Registration No. INT 35312 to respondent Amer Latif Naik issued in Case Number 6031 is revoked.

2. Accusation: Intern Pharmacist Registration No. INT 35312, issued to Amer Latif Naik, is revoked. Respondent shall relinquish his license, including any indicia of licensure issued by the Board, to the Board within l Odays of the effective date of this decision. Respondent may not reapply or petition the Board for reinstatement of his revoked license for three years from the effective date of this decision.

3. Costs: As a condition precedent to reinstatement of his revoked license, respondent shall reimburse the Board for its costs of prosecution in the amount of$7,540. Said amount shall be paid in full prior to the reinstatement of his license, unless otherwise ordered by the Board.

DATED: September 13, 2018

Df\NA COGGINS Administrative Law Judge Office of Administrative Hearings

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XAVIER BECERRA Attorney General of California JANICE K. LACffivlAN Supervising Deputy Attorney General KRISTINA T. JARVIS Deputy Attorney General State Bar No. 258229

1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-6088 Facsimile: (916) 327-8643

Attorneys for Complainant



In the Matter of the Accusation and Petition to Revoke Probation Against:

AMER LATIF NAIK 2210 N. Schnoor Street, Apt. 207 Madera, CA 93637


Respondent.

Case No. 6348

ACCUSATION AND

PETITION TO REVOKE PROBATION

Complainant alleges:

PARTIES

1. Virginia Herold (Complainant) brings this Accusation and Petition to Revoke

Probation solely in her official capacity as the Executive Officer of the Board of Pharmacy)

Department ofConsumer Affairs.

2. On or about February 17, 2015, the Board of Pharmacy issued Intern Pharmacist

Registration Number INT 35312 to Amer LatifNaik (Respondent). The Intern Pharmacist

Registration was suspended on December 11, 2017, and will expire on May 31, 2019) unless

renewed.

3. In a disciplinary action entitled "In the Matter ofthe Accusation Against: Amer Latif

Naik,'1 Case No. 6031, the Board of Pharmacy issued a decision, effective September 27, 2017, in

which Respondent's Intern Pharmacist Registration was revoked. However, the revocation was

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ACCUSATION AND PETITION TO REVOKE PROBATION

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stayed and Respondent's Intern Pharmacist Registration was placed on probation for a period of

five (5) years with certain terms and conditions. A copy of that decision is attached as Exhibit A

and is incorporated by reference.

JURISDICTION

4. This Accusation and Petition to Revoke Probation is brought before the Board of

Pharmacy (Board), Department ofConsumer Affairs, under the authority ofthe following laws.

All section references are to the Business and Professions Code unless otherwise indicated.

5. Section 4300 of the Code states in pertinent part:

"(a) Every license issued may be suspended or revoked.

"(b) The board shall discipline the holder of any license issued by the board, whose default

has been entered or whose case has been heard by the board and found guilty, by any of the

following methods:

"(l) Suspending judgment.

"(2) Placing him or her upon probation.

"(3) Suspending his or her right to practice for a period not exceeding one year.

"(4) Revoking his or her license.

"(5) Taking any other action in relation to disciplining him or her as the board in its

discretion may deem proper.

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"(e) The proceedings under this article shall be conducted in accordance with Chapter 5

(commencing with Section 11500) ofPart 1 ofDivision 3 of the Government Code, and the board

shall have all the powers granted therein. The action shall be final, except that the propriety of

the action is subject to review by the superior court pursuant to Section 1094.5 of the Code of

Civil Procedure."

6. Section 4300.l of the Code states:

"The expiration, cancellation, forfeiture, or suspension of a board-issued license by

operation of law or by order or decision of the board or a court of law, the placement of a license

on a retired status, or the voluntary surrender of a license by a licensee shall not deprive the board

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ofjurisdiction to commence or proceed with any investigation of, or action or disciplinary

proceeding against, the licensee or to render a decision suspending or revoking the license."

7. Section 4301 ofthe Code states:

"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:

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"(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."

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"(j) The violation of any of the statutes of this state, of any other state, or ofthe United

States regulating controlled substances and dangerous drugs."

8. Section 4060 of the Code states in pertinent part:

"A person shall not possess any controlled substance, except that furnished' to a person

upon the prescription ofa physician..."

9. Health and Safety Code section 11550 states in pertinent part:

"(a) A person shall not use, or be under the influence of any controlled substance that is (1)

specified in subdivision (b), ( c), or (e\ or paragraph (1) of subdivision (f) of Section 11054,

specified in paragraph ( 14), ( 15), (21 ), (22), or (23) of subdivision ( d) of Section 11054, specified

in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or {2) of subdivision (d)

or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in

Schedule III, IV, or V, except when administered by or under the direction ofa person licensed

by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of

the defense to show that it comes within the exception ..."

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DRUGS

10. Cocaine is a Schedule II controlled substance as specified in Health and Safety

Code section 11055, subdivision (b)(6).

11. Hydrocodone is a Schedule II controlled substance as specified in Health and

Safety Code section 11055, subdivision (b)(l)(I).

12. Methamphetamine is a Schedule II controlled substance as specified in Health and

Safety Code section 11055, subdivision (d)(2).

ACCUSATION

FIRST CAUSE FOR DISCIPLINE

(Dangerous Use of Controlled Substances)

13. Respondent is subject to disciplinary action for unprofessional conduct pursuant to

section 4301, subdivision (h), in that Respondent used controlled substances to an extent or in a

manner as to be dangerous or injurious to himself or others. The circumstances are as follows:

a. On or about July 19, 2017, Respondent contacted the Pharmacist Recovery Program

(PRP) and conduct~d an intake interview. On or about July 31, 2017, a hair follicle test was

conducted on Respondent which was positive for Methamphetamine, Benzoylecognine 1,

Norcocaine2, Cocaethylene3, and Cocaine. Due to this positive drug test, Respondent was ordered

to complete an inpatient drug treatment program. Respondent completed the program on or about

November 7, 2017. On or about December 2 and December 8, 2017, Respondent submitted urine

for a drug and alcohol test. However, Respondent's samples were dilute and unable to be

appropriately tested. On or about December 6, 2017, a hair follicle test was conducted on

Respondent and was positive for Amphetamine, Methamphetamine, Cocaine, Benzoylecogonine,

Norcocaine, Cocaethylene, and Hydrocodone. On or about December 11, 2017, Respondent was

interviewed by PRP and admitted he had consumed Cocaine and Adderall while on probation.

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1 A metabolite of cocaine. 2 A metabolite of cocaine 3 Formed by the liver when cocaine and ethanol coexist in the blood.

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SECOND CAUSE FOR DISCIPLINE

(Violation of Statutes Regulating Controlled Substances)

14, Respondent is subject to disciplinary action for unprofessional conduct pursuant to

section 4301, subdivision U), as follows:

a. Respondent violated Health and Safety Code section 11550, in that he

unlawfully used or was under the influence of controlled substances, to wit, Cocaine,

Hydrocodone, and Methamphetamine, as set forth in paragraph 13, above.

b. Respondent violated Code section 4060, in that Respondent possessed

controlled substances without a prescription as set forth_in paragraph 13, aboye,

PETITION TO REVOKE PROBATION

15. Condition 14 ofRespondent's probation states in pertinent pait:

"If respondent violates probation in any respect, the board, after giving respondent notice

and an opportunity to be heard, may revoke probation and carry out the disciplinary order that

was stayed. Notice and opportunity to be heard are not required for those provisions stating that a

violation thereof may lead to automatic termination of the stay and/or revocation of the license. If

a petition to revoke probation or an accusation is filed against respondent during probation, the

board shall have continuing jurisdiction and the period of probation shall be automatically

extended until the petition to revoke probation or accusation is heard and decided,"

FIRST CAUSE TO REVOKE PROBATION

(Abstain from Drugs and Alcohol)

16. At all times after the effective date of Respondent's probation, Condition 18 stated in

pertinent part:

"Respondent shall completely abstain from the possession or use of alcohol, controlled

substances, dangerous drugs and their associated paraphernalia ..."

17. Respondent's probation is subject to revocation because he failed to comply with

Probation Condition 18, referenced above. The facts and circumstances regarding this violation

are as set forth in paragraph 13, above, and as follows:

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a. On or about December 6, 2017, a hair follicle test was conducted on Respondent and

was positive for Amphetamine, Methamphetamine, Cocaine, Benzoylecogonine, Norcocaine,

Cocaethylene, and Hydrocodone. On or about December 11, 2017, Respondent admitted he had

consumed Cocaine and Adderall while on probation.

SECOND CAUSE TO REVOKE PROBATION

(Pharmacists Recovery Program)

18. At all times after the effective date ofRespondent's probation, Condition 16 stated in

pertinent part:

"Within thirty (30) days of the effective date of this decision, respondent shall contact the

Pharmacists Recovery Program (PRP) for evaluation, and shall immediately thereafter enroll,

successfully participate in, and complete the treatment contract and any subsequent addendums as

recommended and provided by the PRP and as approved by the board or its designee. The costs

for PRP participation shall be borne by the respondent.

"lfrespondent is currently enrolled in the PRP, said participation is now mandatory and as

of the effective date of this decision is no longer considered a self-referral under Business and

Professions Code section 4362(c)(2). Respondent shall successfully participate in and complete

his current contract and any subsequent addend urns with the PRP."



are as set forth in paragraph 13, above, and in that on or about December 11, 2017, Respondent

. was unsuccessfully terminated from the PRP as a public risk.

TIDRD CAUSE TO REVOKE PROBATION

(Obey All Laws)

20. At all times after the effective date of Respondent's probation, Condition 1stated in

pertinent part:

"Respondent shall obey all state and federal laws and regulations."

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are as follows:

a. In and between November 7, 2017, and December 6, 2017, Respondent violated Code

section 4301, subdivisions G) and (h), Code section 4060, and Health and Safety Code section

11550, by using and possessing without a prescription, in a manner or to an extent to be

dangerous to himself or others, the controlled substances Cocaine and Adderall as set forth in

paragraph 13, above.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

and that following the hearing, the Board ofPharmacy issue a decision:

1. Revoking the probation that was granted by the Board ofPharmacy in Case No. 6031

and imposing the disciplinary order that was stayed thereby revoking Intern Pharmacist

Registration No. INT 35312 issued to Amer LatifNaik;

2. Revoking or suspending Intern Pharmacist Registration No. INT 35312, issued to

Amer LatifNaik; and

3. Taking such other and further action as deemed necessary and proper.

DATED: -~_p_._g~/2_/8__ VIRGINIA HEROLD Executive Officer Board ofPharmacy Department of Consumer Affairs State of California Complainant

SA2018100025 12941376.docx

7


Exhibit A

Decision and Order

Board of Pharmacy Case No. 6031



In the Matter of the Accusation Against:



Respondent.

Case No. 6031

STIPULATED SETTLEMENT AND DISCIPLINARY ORDER

DECISION AND ORDER

The attached Stipulated Settlement of License and Order is hereby adopted by the Board

of Pharmacy, Department of Consumer Affairs, as its Decision in this matter.

This Decision shall become effectiw at 5:00 p.m. on September 27, 2017.

It is so ORDERED on August 28, 2017.

BOARD OF PHARMACY DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

Aft By

Amy Gutierrez, Pharm.D. Board President

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·

XAVIER BECERRA Attorney General ofCalifornia JANICE K. LACHMAN Supervising Deputy Attorney General KRISTINA T. JARVIS

. Deputy Attorney General State Bar No, 258229

1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-5403 Facsimile: (916) 327-8643

Attorneys/or Complainant



In the Matter of the Accusation Against:



Respondent.

Case No. 6031

STIPULATED SETTLEMENT AND DISCIPLINARY ORDER

IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above

entitled proceedings that the following matters are true:

PARTIES

1. Virginia Herold (Complainant) is the Executive Officer of the Board of Pharmacy

(Board). She brought this action solely in her official capacity and is represented in this matter by

Xavier Becerra, Attorney General of the State ofCalifornia, by Kristina T. Jarvis, Deputy

Attorney General.

2. On or about February 17, 2015, the Board issued Intern Pharmacist Registration No.

INT 35312 to Amer LatifNaik (Respondent). The Intern Pharmacist Registration was in full

force and effect at all times relevant to the charges brought in Accusation No. 6031, and will

expire on May 31, 2019, unless renewed.

///

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STIPULATED SETTLEMENT (6031

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3. Respondent is representing himself in this proceeding and has chosen not to exercise

his right to be represented by counsel.

JURISDICTION

4. Accusation No. 6031 was filed before the Board, and is currently pending against

Respondent. The Accusation and all other statutorily required documents were properly served

on Respondent on May 4, 2017. Respondent timely filed his Notice of Defense contesting the

Accusation.

5. A copy ofAccusation No. 6031 is attached as exhibit A and incorporated herein by

reference.

ADVISEMENT AND WAIVERS

6. Respondent has carefully read, and understands the charges and allegations in

Accusation No. 6031. Respondent has also carefully read, and understands the effects of this

_ Stipulated Settlement and Disciplinary Order.

7. Respondent is fully aware ofhis legal rights in this matter, including the right to a

hearing on the charges and alJegations in the Accusation; the right to be represented by counsel at

his own expense; the right to confront and cross-examine the witnesses against him; the right to

present evidence and to testify on his own behalf; the right to the issuance of subpoenas to compel

the attendance of witnesses and the production of documents; the right to reconsideration and

court review ofan adverse decision; and all other rights accorded by the California

Administrative Procedure Act and other applicable laws.

8. Respondent voluntarily, knowingly, and intelligently waives and gives up each and

every right set forth above.

CULP ABILITY

9. Respondent admits the truth of each and every charge and allegation in Accusation

No. 6031.

10. Respondent agrees that his Intern Pharmacist is subject to discipline and he agrees to

be bound by the Board's probationary terms as set fotih in the Disciplinary Order below.

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STIPULA1ED SETTLEMENT (6031

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CONTINGENCY

11. This stipulation shall be subject to approval by the Board of Pharmacy. Respondent

understands and agrees that counsel for Complainant and the staff of the Board ofPharmacy may

· communicate directly with the Board regarding this stipulation and settlement, without notice to

or participation by Respondent. By signing the stipulation, Respondent understands and agrees

that he may not withdraw his agreement or seek to rescind the stipulation prior to the time the

Board considers and acts upon it. If the Board fails to adopt this stipulation as its Decision and

Order, the Stipulated Settlement and Disciplinary Order shall be of no force or effect, except for

this paragraph, it shall be inadmissible in any legal action between the parties, and the Board shall

not be disqualified from further action by having considered this matter.

12. The parties understand and agree that Portable Document Format (PDF) and facsimile

copies of this Stipulated Settlement and Disciplinary Order, including PDF and facsimile

signatures thereto, shall have the same force and effect as the originals.

13. This Stipulated Settlement and Disciplinary Order is intended by the parties to be an

integrated writing representing the complete, final, and exclusive embodiment oftheir agreement.

It supersedes any and all prior or contemporaneous agreements, understandings, discussions,

negotiations, and commitments (written or oral). This Stipulated Settlement and Disciplinary

Order may not be altered, amended, modified, supplemented, or otherwise changed except by a

writing executed by an authorized representative of each ofthe parties.

14. In consideration of the foregoing admissions and stipulations, the parties agree that

the Board may, without further notice or formal proceeding, issue and enter the following

Disciplinary Order:

DISCIPLINARY ORDER

IT IS HEREBY ORDERED that Intern Pharmacist Registration No. INT 35312 issued to

Respondent Amer Latif Naik is revoked. However, the revocation is stayed and Respondent is

placed on probation for five (5) years on the following terms and conditions. Should Respondent

apply for and be granted a pharmacist license during the period ofprobation, the terms and

conditions herein will be applied to the pharmacist license.

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1. Obey All Laws

Respondent shall obey all state and federal laws and regulations.

Respondent shall report any ofthe following occurrences to the board, in writing, within

seventy-two (72) hours of such occurrence:

• an arrest or issuance of a criminal complaint for violation of any provision of the

Pharmacy Law, state and federal food and drug laws, or state and federal controlled

substances laws

• a plea of guilty or nolo contendre in any state or federal criminal proceeding to any

criminal complaint, information or indictment

• a conviction of any crime

• discipline, citation, or other administrative action filed by any state or federal agency

which involves respondent's intern pharmacist registration or which is related to the

practice ofphaimacy or the manufacturing, obtaining, handling, distributing, billing,

or charging for any drug, device or controlled substance.

Failure to timely report such occurrence shall be considered a violation ofprobation.

2. Report to the Board

Respondent shall report to the board quarterly, on a schedule as directed by the board or its

designee. The report shall be made either in person or in writing, as directed. Among other

requirements, respondent shall state in each report under penalty of pe1jury whether there has

been compliance with all the terms and conditions of probation. Failure to submit timely reports

in a form as directed shall be considered a violation ofprobation. Any period(s) of delinquency

in submission of reports as directed may be added to the total period ofprobation. Moreover, if

the final probation report is not made as directed, probation shall be automatically extended until

such time as the final report is made and accepted by the board.

3, Interview with the Board

Upon receipt of reasonable prior notice, respondent shall appear in person for interviews

with the board or its designee, at such intervals and locations as are determined by the board or its

designee. Failure to appear for any scheduled interview without prior notification to board staff,

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or failure to appear for two (2) or more scheduled interviews with the board or its designee during

the period ofprobation, shall be considered a violation ofprobation.

4. Cooperate with Board Staff

Respondent shall cooperate with the board's inspection program and with the board's

monitoring and investigation ofrespondent's compliance with the terms and conditions of his

probation. Failure to cooperate shall be considered a violation ofprobation.

5. Continuing Education

Respondent shall provide evidence of efforts to maintain skill and knowledge as a

pharmacist as directed by the board or its designee.

6. Notice to Employers

During the period ofprobation, respondent shall notify all present and prospective

employers ofthe decision in case number 6031 and the terms, conditions and restrictions imposed

on respondent by the decision, as follows:

.Within thirty (30) days of the effective date of this decision, and within fifteen (15) days of

respondent undertaking any new employment, respondent shall cause his direct supervisor,

pharmacist-in-charge (including each new pharmacist-in-charge employed during respondenes

· tenure of employment) and owner to report to the board in writing acknowledging that the listed

individual( s) has/have read the decision in case number 6031, and terms and conditions imposed

thereby. It shall be respondent's responsibility to ensure that his employer(s) and/or supervisor(s)

submit timely acknowledgment(s) to the board.

If respondent works for or is employed by or through a pharmacy employment service,

respondent must notify his direct supervisor, pharmacist-in-charge, and owner at every entity

licensed by the board ofthe terms and conditions ofthe decision in case number 6031 in advance

of the respondent commencing work at each licensed entity. A record ofthis notification must be

provided to the board upon request.

Furthermore, within thirty (30) days ofthe effective date ofthis decision, and within fifteen

(15) days of respondent undertaking any new employment by or through a pharmacy employment

service, respondent shall cause his direct supervisor with the pharmacy employment service to

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report to the board in writing acknowledging that he has read the decision in case number 6031

and the terms and conditions imposed thereby. It shall be respondent's responsibility to ensure

that his employer(s) and/or supervisor(s) submit timely acknowledgment(s) to the board.

Failure to timely notify present or prospective employer(s) or to cause that/those

employer(s) to submit timely acknowledgments to the board shall be considered a violation of

probation.

"Employment" within the meaning of this provision shall include any full-time,

part-time, temporary, relief or pharmacy management service as a pharmacist or any

position for which a pharmacist license is a requirement or criterion for employment,

whether the respondent is an employee, independent contractor or volunteer.

7. No Supervision of Interns, Serving as Pharmacist-in-Charge (PIC), Serving as Designated Representative-in-Charge, or Serving as a Consultant

During the period ofprobation, respondent shall not supervise any intern pharmacist, be the

pharmacist-in-charge or designated representative-in-charge of any entity licensed by the board

nor serve as a consultant unless otherwise specified in this order. Assumption of any such

unauthorized supervision responsibilities shall be considered a violation of probation.

8. Reimbursement of Board Costs

As a condition precedent to successful completion ofprobation, respondent shall pay to the

board its costs of investigation and prosecution in the amount of$1,827.50. Respondent shall

make 'said payment no later than sixty (60) days after the effective date of this Order, or in a

payment plan as approved in writing by the Board or its designee. If a payment plan is approved,

all costs must be paid in full no later than twelve (12) months prior to the scheduled date for the

termination ofprobation.

There shall be no deviation from this schedule absent prior written approval by the board or

its designee. Failure to pay costs by the deadline(s) as directed shall be considered a violation of

probation.

The filing ofbankruptcy by respondent shall not relieve respondent of his responsibility to

reimburse the board its costs of investigation and prosecution.

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9. Probation Monitoring Costs

Respondent shall pay any costs associated with probation monitoring as determined by the

board each and every year ofprobation. Such costs shall be payable to the board on a schedule as

directed by the board or its designee. Failure to pay such costs by the deadline(s) as directed shall

be considered a violation ofprobation.

10. Status of License

Respondent shall, at all times while on probation, maintain an active, current license with

the board, including any period during which suspension or probation is tolled. Failure to

maintain an active, current license shall be considered a violation ofprobation.

If respondent's license expires or is cancelled by operation of law or otherwise at any time

during the period ofprobation, including any extensions thereof due to tolling or othe1wise, upon

renewal or reapplic1,1tion respondent1s license shall be subject to all terms and conditions of this

probation not previously satisfied.

11. License Surrender Whi]e on Probation/Suspension

Following the effective date ofthis decision, should respondent cease practice due to

retirement or health, or be otherwise unable to satisfy the terms and conditions of probation,

respondent may tender his license to the board for surrender. The board or its designee shall have

the discretion whether to grant the request for surrender or take any other action it deems

appropriate and reasonable. Upon formal acceptance of the surrender of the license, respondent

will no longer be subject to the terms and conditions ofprobation. This surrender constitutes a

record of discipline and shall become a part of the respondent's license history with the board.

Upon acceptance of the surrender, respondent shall relinquish his pocket and wall license to

the board within ten (10) days of notification by the board that the surrender is accepted.

Respondent may not reapply for any license from the board for three (3) years from the effective

date ofthe surrender. Respondent shall meet all requirements applicable to the license sought as

of the date the application for that license is submitted to the board, including any outstanding

costs.

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12. Notification of a Change in Name, Residence Address, Mailing Address or Employment

Respondent shall notify the board in writing within ten ( l 0) days of any change of

employment. Said notification shall include the reasons for leaving, the address of the new

employer, the name of the supervisor arid owner, and the work schedule if kriown. Respondent

shall further notify the board in writing within ten (10) days of a change in name, residence

address, mailing address, or phone number.

Failure to timely notify the board of any change in employet(s), name(s), address(es), or

phone number(s) shall be considered a violation ofprobation.

13. Tolling of Probation

While an intern pharmacist, respondent shall, at all times while on probation, be fully

compliant with the intern pharmacist program in which he is enrolled and work as an intem

pharmacist as directed by the program. Should respondent fail to remain enrolled in the intern

pharmacist program, his probation shall be tolled.

If respondent becomes licensed as a pharmacist, except during periods of suspension,

respondent shall, at all times while on probation, be employed as a pharmacist in California for a

minimum of forty (40) hours per calendar month. Any month during which this minimum is not

met shall toll the period ofprobation, i.e., the period ofprobation shall be extended by one month

for each month during which this minimum is not met. During any such period oftolling of

probation, respondent must nonetheless comply with all terms and conditions ofprobation.

Should respondent, regardless of residency, for any reason (including vacation) cease

practicing as a pharmacist for a minimum of forty ( 40) hours per calendar month in California,

respondent must notify the board in writing within ten (10) days of the cessation of practice, and

must further notify the board in writing within ten (10) days ofthe resumption ofpractice. Any

failure to provide such notification(s) shall be considered a violation ofprobation.

It is a violation ofprobation for respondent's probation to remain tolled pursuant to the

provisions of this condition for a total period, counting consecutive and non-consecutive months,

exceeding thirty-six (36) months.

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"Cessation ofpractice11 means any calendar month during which respondent is not

practicing as a pharmacist for at least forty ( 40) hours, as defined by Business and

Professions Code section 4000 et seq . "Resumption ofpractice" means any calendar

month during which respondent is practicing as a pharmacist for at least forty (40)

hours as a pharmacist as defined by Business and Professions Code section 4000 et seq.

14. Violation of Probation

Ifa respondent has not complied with any term or condition of probation, the board shall

have continuing jurisdiction over respondent, and probation shall automatically be extended, until

all terms and conditions have been satisfied or the board has taken other action as deemed

appropriate to treat the failure to comply as a violation ofprobation, to terminate probation, and

to impose the penalty that was stayed.

If respondent violates probation in any respect, the board, after giving respondent notice

and an opportunity to be heard, may revoke probation and carry out the disciplinary order that

was stayed. Notice and opportunity to be heard are not required for those provisions stating that a

violation thereof may lead to automatic termination ofthe stay and/or revocation of the license. If

a petition to revoke probation or an accusation is filed against respondent during probation, the

board shall have continuing jurisdiction and the period ofprobation shall be automatically

extended until the petition to revoke probation or accusation is heard and decided.

15. Completion of Probation

Upon written notice by the board or its designee indicating successful completion of

probation, respondent1s license will be fully restored.

16. Pharmacists Recovery Program (PRP)

Within thirty (30) days of the effective date of this decision, respondent shall contact the

Pharmacists Recovery Program (PRP)for evaluation, and shall immediately thereafter enroll,

successfully participate in, and complete the treatment contract and any subsequent addendums as

recommended and provided by the PRP and as approved by the board or its designee. The costs

for PRP participation shall be borne by the respondent.

Ifrespondent is currently enrolled in the PRP, said participation is now mandatory and as of

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the effective date of this decision is no longer considered a self-referral under Business and

Professions Code section 4362(c)(2). Respondent shall successfully participate in and complete

his current contract and any subsequent addendums with the PRP.

Failure to timely contact or enroll in the PRP, or successfully participate in and complete

the treatment contract and/or any addendums, shall be considered a violation ofprobation.

Probation shall be automatically extended until respondent successfully completes the PRP.

Any person terminated from the PRP program shall be automatically suspended by the board.

Respondent may not resume the practice ofpharmacy until notified by the board in writing.

Any confirmed positive test for alcohol or for any drug not lawfully prescribed by a

licensed practitioner as part ofa documented medical treatment shall result in the automatic

suspension ofpractice by respondent and shall be considered a violation ofprobation.

Respondent may not resume the practice ofpharmacy until notified by the board in writing.

During suspension, respondent shall not enter any pharmacy area or any portion of the

licensed premises ofa wholesaler, veterinary food-animal drug retailer or any other distributor of

drugs which is licensed by the board, or any manufacturer, or where dangerous drugs and devices

or controlled substances are maintained. Respondent shall not practice pharmacy nor do any act

involving drug selection, selection of stock, manufacturing, compounding, dispensing or patient

consultation; nor shall respondent manage, administer, or be a consultant to any licensee of the

. board, or have access to or control the ordering, manufacturing or dispensing of dangerous drugs

and controlled substances. Respondent shall not resume practice until notified by the board.

During suspension, respondent shall not engage in any activity that requires the

professional judgment ofa pharmacist. Respondent shall not direct or control any aspect of the

practice ofpharmacy. Respondent shall not perform the duties of a pharmacy technician or a

designated representative for any entity licensed by the board.

Subject to the above restrictions, respondent may continue to own or hold an interest in any

licensed premises in which he holds an interest at the time this decision becomes effective unless

otherwise specified in this o~der.

Failure to comply with this suspension shall be considered a violation ofprobation.

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Respondent shall pay administrative fees as invoiced by the PRP or its designee, Fees not

timely paid to the PRP shall constitute a violation for probation. The board will collect unpaid

administrative fees as part of the annual probation monitoring costs if not submitted to the PRP.

17. Random Drug Screening

Respondent, at his own expense, shall participate in random testing, including but not

limited to biological fluid testing (urine, blood), breathalyzer, hair follicle testing, or other drug

screening program as directed by the board or its designee. Respondent may be required to

participate in testing for the entire probation period and the frequency of testing will be

determined by the board or its designee. At all times, respondent shall fully cooperate with the

board or its designee, and shall, when directed, submit to such tests and samples for the detection

of alcohol, narcotics, hypnotics, dangerous drugs or other controlled substances as the board or its

designee may direct. Failure to timely submit to testing as directed shall be considered a violation

ofprobation. Upon request of the board or its designee, respondent shall provide documentation

from a licensed practitioner that the prescription for a detected drug was legitimately issued and is

a necessary part of the treatment of the respondent. Failure to timely provide such documentation

shall be considered a violation ofprobation. Any confirmed positive test for alcohol or for any

drug not lawfully prescribed by a licensed practitioner as part of a documented medical treatment

shall be considered a violation ofprobation and shall result in the automatic suspension of

practice ofpharmacy by respondent. Respondent may not resume the practice ofpharmacy until

notified by the board in writing.


licensed premises of a wholesaler, veterinary foodNanimal drug retailer or any other distributor of





board, or have access to or control the ordering, manufacturing or dispensing ofdangerous drugs


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During suspension. respondent shall not engage in any activity that requil'es the






otherwise specified in this order.


18. Abstain from Drugs and Alcohol Use

Respondent shall completely abstain from the possession or use of alcohol, controlled

substances, dangerous drugs and their associated paraphernalia except when the drugs are

lawfully prescribed by a licensed practitioner as part ofa documented medical treatment. Upon

request of the board or its designee, respondent shall provide documentation from the licensed

practitioner that the prescription for the drug was legitimately issued and is a necessary part of the

treatment of the respondent. Failure to timely provide such documentation shall be considered a

violation ofprobation. Respondent shall ensure that he is not in the same physical location as

individuals who are using illicit substances even if respondent is not personally ingesting the

drugs. Any possession or use of alcoho1, controlled substances, or their associated paraphernalia

not supported by the documentation timely provided, and/or any physical proximity to persons

using illicit substances, shall be considered a violation ofprobation.

19. Prescription Coordination and Monitoring of Prescription Use

Within thirty (30) days of the effective date of this decision, respondent shall submit to the

board, for its prior approval, the name and qualifications of a single physician, nurse practitioner,

physician assistant, or psychiatrist of respondent's choice, who shall be aware of the respondenfs

history with the use of alcohol and who will coordinate and monitor any prescriptions for

respondent for dangerous drugs, controlled substances or mood-altering drugs. The approved

practitioner shall be provided with a copy of the board's Accusation and decision. A record of

this notification must be provided to the board upon request. Respondent shall sign a release

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authorizing the practitioner to communicate with the board about respondent's treatment(s). The

coordinating physician, nurse practitioner, physician assistant, or psychiatrist shall report to the

board on a quarterly basis for the duration ofprobation regarding respondent1s compliance with

this condition. Ifany substances considered addictive have been prescribed, the report shall·

identify a program for the time limited use of any such substances. The board may require that

the single coordinating physician, nurse practitioner, physician assistant or psychiatrist be a

specialist in addictive medicine, or consult a specialist in addictive medicine. Should respondent,

for any reason, cease supervision by the approved practitioner, respondent shall notify the board

immediately and, within thirty (30) days ofceasing treatment, submit the name of a replacement

physician, nurse practitioner, physician assistant, or psychiatrist ofrespondent's choice to the

board or its designee for its prior approval. Failure to timely submit the selected practitioner or

replacement practitioner to the board for approval, or to ensure the required reporting thereby on

the quarterly reports, shall be considered a violation ofprobation.

Ifat any time an approved practitioner determines that respondent is unable to practic_e

safely or independently as a pharmacist, the practitioner shall notify the board immediately by

telephone and follow up by written letter within three (3) working days. Upon notification from

the board or its designee ofthis determination, respondent shall be automatically suspended and

_ shall not resume practice until notified by the board that practice may be resumed.







board, or have access to or control the ordering, manufacturing or dispensing of dangerous drugs




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practice ofpharmacy. Respondent shall not pei-form the duties of a pharmacy technician or a



licensed pi-emises in which he holds an interest at the tin1e this decision becomes effective unless



20. Supervised Practice

During the period ofprobation, respondent shall practice only under the supervision of a

licensed pharmacist not on probation with the board. Upon and after the effective date of this

decision, respondent shall not practice pharmacy and his license shall be automatically suspended

until a supervisor is approved by the board or its designee. The supervision shall be, as required

by the board or its designee, either:

Continuous - At least 75% of a work week

Substantial - At least 50% of a work week

Partial - At least 25% of a work week

Daily Review - Supervisor's review ofprobationer1s daily activities within 24 hours

Within thirty (30) days of the effective date of this decision, respondent shall have his

supervisor submit notification to the board in writing stating that the supervisor has read the

decision in case number 6031 and is familiar with the required level of supervision as determined

by the board or its designee. It shall be the respondent's responsibility to ensure that his

employer(s), pharmacist-in-charge and/or supervisor(s) submit timely acknowledgement(s) to the

board, Failure to cause the direct supervisor and the pharmacist-in-charge to submit timely

acknowledgements to the board shall be considered a violation ofprobation.

If respondent changes employment, it shall be the respondent's responsibility to ensure that

his employer(s), pharmacist-in-charge and/or supervisor(s) submit timely acknowledgement(s) to

the board. Respondent shall have his new supervisor, within fifteen (15) days after employment

commences, submit notification to the board in writing stating the direct supervisor and

pharmacist-in-charge have read the decision in case number 6031 and is familiar with the level of

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supervision as determined by the board. Respondent shall not practice pharmacy and his license

shall be automatically suspended until the board or its designee approves anew supervisor.

Failure to cause the direct supervisor and the pharmacist-in-charge to submit timely

acknowledgements to the board shall be considered a violation ofprobation.

Within ten (10) days of leaving employment, respondent shall notify the board in writing.

During suspension, respondent shall not enter any pharmacy area or any po1iion of the






board, or have access to or control the ordering, manufacturing or dispensing of dangerous drugs



professional judgment ofa pharmacist. Respondent shall not direct or control any aspect ofthe






Failure to comply with this suspension shall be considered a violation of probation.

21. No Ownership of Licensed Premises

Respondent shall not own, have any legal or beneficial interest in, or serve as a manager,

administrator, member, officer) director, trustee, associate, or partner of any business, firm,

partnership, or corporation currently or hereinafter licensed by the board. Respondent shall sell

or transfer any legal or beneficial interest in any entity licensed by the board within ninety (90)

days following the effective date ofthis decision and shall immediately thereafter provide written

proof thereof to the board. Failure to timely divest any legal or

Documents

BEFORE THE BOARD OF PHARMACY DEPARTMENT OF …the Board of Pharmacy, Department of Consumer Affairs, as its Decision in this matter. This Decision shall become effective at 5:00 p.m