Drug Act Convictions and Automatic Suspensions

Pennsylvania’s licensing boards have become very proactive in learning of professional’s criminal convictions for violating Pennsylvania Drug and Cosmetic Act – 35 P.S. § 780–113 (a). Once learned, licensing board prosecutors aggressively file petitions for automatic suspensions of professionals’ licenses. At issue is whether the Boards impose, per Drug Act offense, the one year maximum suspension or a suspension for a lesser amount of time and concurrent versus consecutive for each violation.

If the proper attorney handles both the criminal case involving Drug Act allegations and the consequential administrative licensing disciplinary action, the probability of a better total result is clear. In September 2015 I wrote a blog on this exact legal issue. September 2015 Blog

In that blog, I set forth that the Drug Act, § 113(a) lists thirty six illegal actions involving drugs, prescriptions, record keeping, and other pharmaceutical issues. Section 780- 113(b) identifies which of those thirty six offenses are either felonies or misdemeanors and their respective jail penalties. Drug Act sections 780-123(b)&(c) identify a separate penalty solely targeting the licensed practitioner who is convicted of, or pleads guilty to, either a misdemeanor or felony offense set forth in 35 P.S. § 780-113(a).

When representing the licensed practitioner, 35 P.S. § 780-123(b) & (c) dictates the priority of negotiating a guilty plea to a non-Drug Act offense. An initial goal is to avoid any Drug Act criminal charge and/or conviction. A secondary goal on cases involving drugs is to secure misdemeanor graded Drug Act violations over felonies.

How these cases are defended criminally – with an eye towards the license context — is hugely important. Non-drug use or contraband related Drug Act violations need to be clearly discussed in any guilty plea. The guilty plea hearing should include a recitation of facts explicitly eliminating any question that the plea is for personal consumption conduct. The guilty plea colloquy must clearly spell out the absence of evidence regarding drug diversion, positive drug tests, or inferences of personal consumption.

In many Drug Act cases, specious criminal charges are filed for tenuous record keeping violations, charting errors, or untimely prescription dispensing errors. In these cases, the guilty plea must identify the charting errors, dispensing mistakes, or the nature and manner of typical prescription dispensing negligence that forms the foundation of the criminal charges. Emphasizing the non-diversion facts here is important as the Board will consider such when the professional suspension is decided.

Once convicted, how and what is included in the professional’s mandatory notification to the professional board is important. Attach the guilty plea transcript that sets forth the non-diversion factual predicate of the plea. The professional, through counsel, should request the Board to exercise its discretion in not instituting the automatic one year suspension, but some lesser amount. If necessary, file an application to stay the automatic suspension and an answer to the prosecutor’s motion, contesting the Board’s discretionary implementation of a one year suspension.

The perception that automatic one year suspensions are mandatory rather than discretionary stops many licensees from contesting these petitions. Applications for a stay of any license suspension in conjunction with an application answering the petition for an automatic suspension should be filed. Appropriate legal averments and complex legal strategy is necessary to stop any automatic license suspension from going into effect.

A case I recently handled, for which the proposed adjudication has yet to be handled down, is on point. It is an abuse of discretion to impose a one-year suspension of a professional’s license for old convictions that are not related to the use or diversion of any narcotics. Please call me to discuss these issues to properly insure either your license is not suspended for the one year maximum for each Drug Act conviction.

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