3.1 Unlawful Conduct, Criminal Penalties, Fines & the Disciplinary Process
Key Takeaways
Practicing pharmacy without a license, and filling prescriptions for Utah residents without the required license, are third degree felonies (Utah Code § 58-17b-504(1)).
Most other unlawful conduct under § 58-17b-501, such as buying or selling drug samples, is a class A misdemeanor (Utah Code § 58-17b-504(2)).
DOPL may fine up to $10,000 per violation or $2,000 per day of ongoing violation under the pharmacy chapter, using the fine schedule in R156-17b-402.
In a formal hearing the licensing board usually acts as fact finder and issues a recommended order; the DOPL director issues the final order (Utah Code § 58-1-109).
A director's final order may be appealed by filing a request for agency review with the executive director of the Department of Commerce (Utah Code § 58-1-109(8)).
3.1 Unlawful Conduct, Criminal Penalties, Fines & the Disciplinary Process
Area 1 of the blueprint includes "classifications and processes of disciplinary actions." Utah law uses two categories:
- Unlawful conduct: acts defined as unlawful in Title 58. They can be prosecuted as crimes and also disciplined administratively.
- Unprofessional conduct: conduct by a licensee or applicant that violates professional standards, statutes, or rules. It leads to license discipline and fines (see Section 3.2).
Unlawful conduct in the DOPL Act (§ 58-1-501(1))
For every Title 58 profession, unlawful conduct includes:
- practicing, or attempting or claiming to practice, without a license or exemption, or beyond a suspended, revoked, restricted, temporary, probationary, or inactive license;
- impersonating another licensee or practicing under a false name;
- knowingly employing an unlicensed person to do work that requires a license;
- letting someone else use your license;
- using fraud or deception to pass an exam, obtain a license, or deal with DOPL or a board;
- issuing a prescription to a person in Utah without prescriptive authority (or, under an exception or multistate privilege, without first gathering enough information for a diagnosis); and
- aiding or abetting another person to violate a licensing statute, rule, or order.
Unlawful conduct in the Pharmacy Practice Act (§ 58-17b-501)
| # | Unlawful conduct |
|---|---|
| 1 | Knowingly preventing or refusing a DOPL inspection |
| 2 | Failing to return a revoked, suspended, or refused license or certificate when DOPL demands it |
| 3 | Using the title "pharmacist", "druggist", "pharmacy intern", or "pharmacy technician" without the license, or a business name with "pharmacy", "drugstore", "apothecary", "prescriptions", and similar words unless it is a licensed pharmacy (stores may display "packaged drugs", "drug sundries", or "nonprescription drugs") |
| 4 | Buying, selling, or offering for sale a drug or device marked "sample", "not for resale", or "for investigational use only" (except costs incurred in the bona fide acquisition of an investigational drug) |
| 5 | Using or revealing trade secrets or information obtained under the chapter, except to DOPL, the board, or a court |
| 6 | Obtaining a drug, or having someone else obtain it, by fraud, forgery or alteration of a prescription, concealment, false statement, or theft |
| 7 | Filling or advertising the filling of prescriptions for Utah residents without a license under this chapter or in the dispensing state |
| 8 | Requiring an employed pharmacist, intern, technician, or supportive staff member to violate the chapter |
| 9 | Possessing a prescription drug for an unlawful purpose |
| 10 | Dispensing a prescription drug to a person who has no prescription, except as allowed by the Treatment Access statutes (Title 26B, Chapter 4, Part 5) |
| 11 | Dispensing to someone you know or should know is trying to obtain drugs by fraud or misrepresentation |
| 12 | Selling, dispensing, distributing, or trafficking prescription drugs without a license or exemption |
| 13 | Using a prescription drug or controlled substance that was not lawfully prescribed to you |
Criminal penalties (§ 58-17b-504(1)–(2))
| Offense | Penalty |
|---|---|
| Unlicensed practice (§ 58-1-501(1)(a)(i)); filling prescriptions for Utah residents without a license (§ 58-17b-501(7)); dispensing to someone you know or should know is committing fraud (§ 58-17b-501(11)) | Third degree felony |
| Other § 58-1-501(1) violations and the remaining § 58-17b-501 violations | Class A misdemeanor |
A licensee who has already been convicted of a § 58-17b-501 offense may not also be fined administratively for the same offense (§ 58-17b-504(4)).
Administrative sanctions and fines
Under § 58-17b-401 and § 58-1-401, DOPL may refuse to issue or renew a license, or revoke, suspend, restrict, place on probation, reprimand (publicly or privately), issue cease and desist orders, and impose fines or citations. A license revoked or suspended under § 58-1-401 generally cannot be reinstated for at least 90 days unless DOPL and the board impose other conditions (§ 58-1-403).
For pharmacy violations, § 58-17b-504(5) lets DOPL issue a citation, negotiate a stipulated settlement, or start an adjudicative proceeding. The fine may be up to $10,000 per single violation or $2,000 per day of ongoing violation, whichever is greater, following the fine schedule in R156-17b-402. Examples from that schedule:
| Violation | First offense | Subsequent offense |
|---|---|---|
| Unlicensed practice (§ 58-1-501(1)(a)) | $500–$2,000 | $2,000–$10,000 |
| Buying or selling samples (§ 58-17b-501(4)) | $1,000–$5,000 | $10,000 |
| Accepting back and redistributing dispensed drugs (§ 58-17b-502(1)(e)) | $1,000–$5,000 | $10,000 |
| Pharmacist failing to offer counseling (R156-17b-502(14)(a)) | $500–$2,500 | $5,000–$10,000 |
A citation must be contested in writing within 20 calendar days, or it becomes the final order (§ 58-17b-504(5)). Fines go into a dedicated fund for pharmacy licensee education and enforcement (§ 58-17b-505).
The adjudicative process
- Complaint and investigation. DOPL investigates. A board member designated under § 58-17b-201(3) may help review the complaint. That member may then be disqualified from hearing the case.
- Notice of agency action. DOPL starts an adjudicative proceeding under the Utah Administrative Procedures Act (Title 63G, Chapter 4) and the Department of Commerce rules (§ 58-1-108). Before taking emergency action under § 63G-4-502, DOPL must review it with a committee of at least three licensees appointed by the board chair.
- Hearing. The director is the default presiding officer, but an administrative law judge usually conducts formal proceedings, and the licensing board is the fact finder at the evidentiary hearing unless the director specifies otherwise (§ 58-1-109). The fact finder issues a recommended order.
- Final order. The director issues a final order that affirms, modifies, or rejects the recommended order, after consulting the presiding officer before modifying or rejecting it. If the director does nothing within 20 calendar days, the recommended order becomes the final order. If the director modifies or rejects the recommendation, the board may, by a two-thirds vote, petition the executive director to review the final order.
- Appeal. A party may appeal the director's final order by filing a request for agency review with the executive director of the Department of Commerce (§ 58-1-109(8)), and then seek judicial review.
Time limits
DOPL must start discipline within four years after the conduct is reported, and never more than 10 years after it occurred, unless the proceeding responds to a civil or criminal judgment or settlement and starts within one year of it (§ 58-1-401(6)).
Under Utah Code § 58-17b-501 and § 58-17b-504, which conduct is a third degree felony?
Failing to return a suspended license certificate when DOPL demands it
Dispensing a prescription drug to a person the pharmacist knows or should know is trying to obtain drugs by fraud or misrepresentation
Buying or selling prescription drug samples marked "not for resale"
Using the word "apothecary" in the name of an unlicensed gift shop
What is the maximum administrative fine DOPL may assess through a citation for a pharmacy practice violation under Utah Code § 58-17b-504(5)?
A flat $500 per citation regardless of how long the violation lasted
Up to $1,000 for a first offense and $2,000 for a second offense
Unlimited fines set by the Board of Pharmacy at its discretion
Up to $10,000 per single violation or up to $2,000 per day of ongoing violation, whichever is greater
After a formal disciplinary hearing, the Board of Pharmacy, acting as fact finder, issues findings and a proposed sanction. Who issues the final agency order?
The Utah Court of Appeals, which must approve every license sanction
The Utah Attorney General
The DOPL director, who may affirm, modify, or reject the recommended order after consulting the presiding officer
The Board of Pharmacy, whose order cannot be changed
A pharmacist wants to challenge the DOPL director's final order suspending her license. What is the next administrative step?
File a request for agency review with the executive director of the Department of Commerce or the executive director's designee
File directly with the Utah Supreme Court within 10 days
Petition the NABP to overturn the order
Ask the Board of Pharmacy to reconsider its recommendation
Sections you finish are checked off in the contents.