§ 43-50-41 - Disciplinary action; subpoenas; judicial review; reinstatement; investigatory powers; immunity; failure to appear; voluntary surrender of license or registration - Georgia Statutes

O.C.G.A. 43-50-41 (2010)
43-50-41. Disciplinary action; subpoenas; judicial review; reinstatement; investigatory powers; immunity; failure to appear; voluntary surrender of license or registration

(a) The board is authorized to refuse to grant a license or registration to an applicant, to revoke the license or registration of a person licensed or registered by the board, or to discipline a person licensed or registered under this chapter or any antecedent law, upon a finding by a majority of the entire board that the licensee, registrant, or applicant has:

(1) Failed to demonstrate the qualifications or standards for a license or registration contained in this chapter or in the rules and regulations issued by the board, pursuant to specific statutory authority. It shall be incumbent upon the applicant to demonstrate to the satisfaction of the board that he or she meets all the requirements for the issuance of a license or registration, and, if the board is not satisfied as to the applicant's qualifications, it may deny a license or registration without a prior hearing; provided, however, that the applicant shall be allowed to appear before the board if he or she so desires;

(2) Knowingly made misleading, deceptive, untrue, or fraudulent representations in the practice of veterinary medicine or veterinary technology on any document connected therewith; or practiced fraud or deceit or intentionally made any false statement in obtaining a license or registration to practice veterinary medicine or veterinary technology; or made a false statement or deceptive biennial renewal with the board;

(3) Been convicted of any felony or of any crime involving moral turpitude in the courts of this state or any other state, territory, or country or in the courts of the United States. As used in this paragraph, the term "felony" shall include any offense which, if committed in this state, would be deemed a felony without regard to its designation elsewhere. As used in this paragraph, the term "conviction" shall include a finding or verdict of guilty or a plea of guilty, regardless of whether an appeal of the conviction has been sought;

(4) Been arrested, charged, and sentenced for the commission of any felony, or any crime involving moral turpitude, where:

(A) A plea of nolo contendere was entered to the charge;

(B) First offender treatment without adjudication of guilt pursuant to the charge was granted; or

(C) An adjudication or sentence was otherwise withheld or not entered on the charge.

The plea of nolo contendere or the order entered pursuant to the provisions of Article 3 of Chapter 8 of Title 42 or other first offender treatment shall be conclusive evidence of arrest and sentencing for such crime;

(5) Had his or her license to practice veterinary medicine or registration to practice veterinary technology revoked, suspended, or annulled by any lawful licensing veterinary medical authority other than the board; or had other disciplinary action taken against him or her by any lawful licensing or registering veterinary medical authority other than the board; or was denied a license or registration by any lawful licensing veterinary medical authority other than the board, pursuant to disciplinary proceedings; or was refused the renewal of a license or registration by any lawful licensing veterinary medical authority other than the board, pursuant to disciplinary proceedings;

(6) Engaged in any unprofessional, immoral, unethical, deceptive, or deleterious conduct or practice harmful to the public, which conduct or practice materially affects the fitness of the licensee, registrant, or applicant to practice veterinary medicine or veterinary technology, or of a nature likely to jeopardize the interest of the public, which conduct or practice need not have resulted in actual injury or be directly related to the practice of veterinary medicine or veterinary technology but shows that the licensee, registrant, or applicant has committed any act or omission which is indicative of bad moral character or untrustworthiness. Unprofessional conduct shall also include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing veterinary medical practice or veterinary technology practice. Unprofessional conduct shall also include, but not be limited to, the following: failure to keep veterinary facility premises and equipment in a clean and sanitary condition; dishonesty or gross negligence in the inspection of foodstuffs or the issuance of health or inspection certificates; or cruelty to animals;

(7) Knowingly performed any act which in any way aids, assists, procures, advises, or encourages any unlicensed or unregistered person or any licensee or registrant whose license or registration has been suspended or revoked by the board to practice veterinary medicine or veterinary technology or to practice outside the scope of any disciplinary limitation placed upon the licensee or registrant by the board;

(8) Violated a statute, law, or any rule or regulation of this state, any other state, the board, the United States, or any other lawful authority (without regard to whether the violation is criminally punishable), which statute, law, rule, or regulation relates to or in part regulates the practice of veterinary medicine or veterinary technology, when the licensee, registrant, or applicant knows or should know that such action violates such statute, law, rule, or regulation; or violated the lawful order of the board previously entered by the board in a disciplinary hearing, consent decree, or license reinstatement;

(9) Been adjudged mentally incompetent by a court of competent jurisdiction within or without this state. Any such adjudication shall automatically suspend the license or registration of any such person and shall prevent the reissuance or renewal of any license or registration so suspended for as long as the adjudication of incompetence is in effect;

(10) Displayed an inability to practice veterinary medicine or veterinary technology with reasonable skill and safety to patients or has become unable to practice veterinary medicine or veterinary technology with reasonable skill and safety to patients by reason of illness, use of alcohol, drugs, narcotics, chemicals, or any other type of material, or as a result of any mental or physical condition, or by reason of displaying habitual intoxication, addiction to, or recurrent personal misuse of alcohol, drugs, narcotics, chemicals, or any other type of similar substances. In enforcing this paragraph, the board may, upon reasonable grounds, require a licensee, registrant, or applicant to submit to a mental or physical examination by physicians designated by the board. The results of such examination shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute. Every person who shall accept the privilege of practicing veterinary medicine or veterinary technology in this state or who shall file an application for a license or registration to practice veterinary medicine or veterinary technology in this state shall be deemed to have given that person's consent to submit to such mental or physical examination and to have waived all objections to the admissibility of the results in any hearing before the board upon the grounds that the same constitutes a privileged communication. If a licensee, registrant, or applicant fails to submit to such an examination when properly directed to do so by the board, unless such failure is due to circumstances beyond his or her control, the board may enter a final order upon proper notice, hearing, and proof of such refusal. Any licensee, registrant, or applicant who is prohibited from practicing veterinary medicine or veterinary technology under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate to the board that such person can resume or begin the practice of veterinary medicine or veterinary technology with reasonable skill and safety to patients;

(11) Failed to register with the division director as required by law. It shall be the duty of every licensee or registrant to notify the board of any change in his or her address of record with the board; provided, however, that, for a period established by the division director after failure to register, a license or registration may be reinstated by payment of a registration fee to be determined by the board by rule and by filing of a special application therefor. After this period has elapsed, a license or registration may be revoked for failure to register and for failure to pay the fee as provided by law;

(12) Engaged in the excessive prescribing or administering of drugs or treatment or the use of diagnostic procedures which are detrimental to the patient as determined by the customary practice and standards of the local community of licensees; or knowingly prescribed controlled drug substances or any other medication without a legitimate veterinary medical purpose; or knowingly overprescribed controlled drug substances or other medication, in light of the condition of the patient at the time of prescription;

(13) Knowingly made any fraudulent, misleading, or deceptive statement in any form of advertising or made any statement in any advertisement concerning the quality of the veterinary services rendered by that licensed veterinarian or any licensed veterinarian associated with him or her. For purposes of this paragraph, "advertising" shall include any information communicated in a manner designed to attract public attention to the practice of the licensee or registrant;

(14) Used, prescribed, or sold any veterinary prescription drug or prescribed an extralabel use of any drug in the absence of a valid veterinarian-client-patient relationship; or

(15) Has had his or her U.S. Drug Enforcement Administration privileges restricted or revoked.

(b) The provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," with respect to emergency action by the board and summary suspension of a license or registration are adopted and incorporated by reference into this chapter.

(c) For purposes of this Code section, the board may obtain, and is authorized to subpoena, upon reasonable grounds, any and all records relating to the mental or physical condition of a licensee, registrant, or applicant, and such records shall be admissible in any hearing before the board.

(d) When the board finds that any person is unqualified to be granted a license or registration or finds that any person should be disciplined pursuant to subsection (a) of this Code section, the board may take any one or more of the following actions:

(1) Refuse to grant or renew a license or registration to an applicant;

(2) Administer a public or private reprimand, but a private reprimand shall not be disclosed to anyone other than the person reprimanded;

(3) Suspend any license or registration for a definite period or for an indefinite period in connection with any condition which may be attached to the restoration of said license or registration;

(4) Limit or restrict any license or registration as the board deems necessary for the protection of the public;

(5) Revoke any license or registration; or

(6) Condition the penalty upon, or withhold formal disposition pending, the applicant's, registrant's, or licensee's submission to such care, counseling, or treatment as the board may direct.

(e) In addition to and in conjunction with the actions described in subsection (d) of this Code section, the board may make a finding adverse to the licensee, registrant, or applicant but withhold imposition of judgment and penalty; or it may impose the judgment and penalty but suspend enforcement thereof and place the licensee or registrant on probation, which probation may be vacated upon noncompliance with such reasonable terms as the board may impose.

(f) Initial judicial review of a final decision of the board shall be had solely in the superior court of the county of domicile of the board.

(g) In its discretion, the board may reinstate a license or registration which has been revoked or issue a license or registration which has been denied or refused, following such procedures as the board may prescribe by rule; and, as a condition thereof, it may impose any disciplinary or corrective method provided in this chapter.
(h)(1) The division director is authorized to make, or cause to be made through employees or contract agents of the board, such investigations as he or she or the board may deem necessary or proper for the enforcement of the provisions of this chapter. Any person properly conducting an investigation on behalf of the board shall have access to and may examine any writing, document, or other material relating to the fitness of any licensee, registrant, or applicant. The division director or his or her appointed representative may issue subpoenas to compel such access upon a determination that reasonable grounds exist for the belief that a violation of this chapter or any other law relating to the practice of veterinary medicine or veterinary technology may have taken place.

(2) The results of all investigations initiated by the board shall be reported solely to the board, and the records of such investigations shall be kept for the board by the division director, with the board retaining the right to have access at any time to such records. No part of any such records shall be released, except to the board, for any purpose other than a hearing before the board, nor shall such records be subject to subpoena; provided, however, that the board shall be authorized to release such records to another enforcement agency or lawful licensing authority.

(3) The board shall have the authority to exclude all persons during its deliberations on disciplinary proceedings and to discuss any disciplinary matter in private with a licensee, registrant, or applicant and the legal counsel of that licensee, registrant, or applicant.

(i) A person, firm, corporation, association, authority, or other entity shall be immune from civil and criminal liability for reporting or investigating the acts or omissions of a licensee, registrant, or applicant which violate the provisions of subsection (a) of this Code section or any other provision of law relating to a licensee's, registrant's, or applicant's fitness to practice as a licensed veterinarian or registered veterinary technician or for initiating or conducting proceedings against such licensee, registrant, or applicant, if such report is made or action is taken in good faith, without fraud or malice. Any person who testifies or who makes a recommendation to the board in the nature of peer review, in good faith, without fraud or malice, before the board in any proceeding involving the provisions of subsection (a) of this Code section or any other law relating to a licensee's, registrant's, or applicant's fitness to practice as a licensed veterinarian or registered veterinary technician shall be immune from civil and criminal liability for so testifying.

(j) Neither a denial of a license or registration on grounds other than those enumerated in subsection (a) of this Code section nor the issuance of a private reprimand nor the denial of a license or registration by endorsement nor the denial of a request for reinstatement of a revoked license or registration nor the refusal to issue a previously denied license or registration shall be considered to be a contested case within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Notice and hearing within the meaning of Chapter 13 of Title 50 shall not be required, but the applicant, registrant, or licensee shall be allowed to appear before the board if he or she so requests.

(k) If any licensee, registrant, or applicant fails to appear at any hearing after reasonable notice, the board may proceed to hear the evidence against such licensee, registrant, or applicant and take action as if such licensee, registrant, or applicant had been present. A notice of hearing, initial or recommended decision, or final decision of the board in a disciplinary proceeding shall be served upon the licensee, registrant, or applicant by certified mail or statutory overnight delivery, return receipt requested, to the last known address of record with the board. If such material is returned marked "unclaimed" or "refused" or is otherwise undeliverable and if the licensee, registrant, or applicant cannot, after diligent effort, be located, the division director shall be deemed to be the agent for service for such licensee, registrant, or applicant for purposes of this Code section, and service upon the division director shall be deemed to be service upon the licensee, registrant, or applicant.

(l) The voluntary surrender of a license or registration shall have the same effect as a revocation of the license or registration, subject to reinstatement in the discretion of the board.

(m) This Code section shall apply equally to all licensees, registrants, or applicants whether individuals, partners, or members of any other incorporated or unincorporated associations, corporations, or other associations of any kind whatsoever.

(n) All subpoenas issued pursuant to the authority granted in this chapter shall be subject to the general rules of law with respect to distance, tender of fees and expenses, and protective orders; and any motion made with respect thereto shall be made to and passed on by a judge of the superior court of the county of residence of the person to whom the subpoena is directed.

(o) Any proceeding or administrative action instituted under this Code section shall be governed by the provisions of this Code section as they existed in full force and effect on the date of the commission of the act or acts constituting a violation of this Code section, except as otherwise specifically declared by the General Assembly.