Smith v. California State Board of Pharmacy

Thomas Smith, former pharmacist-in-charge of the Parkway Pharmacy in San Diego (Parkway), appeals a judgment denying his petition for a writ of administrative mandamus. Smith seeks to set aside a decision of the California State Board of Pharmacy (Board) adopting a decision of an administrative law judge (ALJ) revoking his license to practice pharmacy. The ALJ found Smith’s license was subject to discipline for unprofessional conduct due to his (1) clearly excessive furnishing of controlled substances (Bus. & Prof. Code, § 4350.5, subd. (e) ); (2) deceit and dishonesty in removing and keeping pharmacy records (§ 4350.5, subd. (c)); and (3) failing to preserve records of prescriptions filled for three years (§§ 4350.5, 4232, 4331).

Smith contends (1) the failure of the accusation to inform him that the Board was charging or going to rely upon a negligence theory constituted a procedural due process violation; (2) his license could not have been revoked based on the finding of ordinary negligence; and (3) the lower court should have reviewed the penalty imposed and found it was an abuse of discretion as being excessive.

As to the charge of clearly excessive furnishing of…