Arkansas Administrative Code › Agency 070 - Board of Pharmacy › Rule 070.00.99-003 - 01-00-0008 - Declaratory Order

Current through Register Vol. 49, No. 6, June, 2024
01-00-0008 -DECLARATORY ORDER
A. Scope-When a regulation, statute or order
		  enforced by the bored of Pharmacy or its application will injure or threatens
		  to injure a person in his person, business, or property, that person may file a
		  petition for a declaratory order as to the applicability of that regulation,
		  statute or order pursuant to this regulation.
B. Petition-Contents-The Petition for a
		  declaratory order shall contain the following:
1. The venue, a heading specifying the
		  subject matter and name of the petitioner and the name of the
		  pleading;
2. The name, address and
		  telephone number of the petitioner and whether petitioner is licensed by the
		  Board under A.C.A. §
									17-92-101
etseq.;
3. The
		  name, address, and telephone number of petitioner's attorney, if any;
4. A statement of the injury to result from
		  the regulation, statute or order or the application thereof to the
		  petitioner;
5. The declaratory
		  ruling that Petitioner seeks;
6.
		  The regulation, statute or order which is the subject of the
		  petition;
7. The facts relevant to
		  the order which Petitioner seeks; said statement of facts shall be complete,
		  specific and particularized to the issue presented;
8. Memorandum of law and legal authorities in
		  support of he order Petitioner seeks;
9. The name, address and telephone number of
		  each person known to petitioner who may have a specific personal interest in
		  the application of the regulation, statute or order or who may be adversely
		  affected by the declaratory order sought by petitioner;
10. The signature of Petitioner or
		  Petitioner's attorney, if any; and
11. All documents pertinent to the petition
		  shall be attached thereto.
C. Filing of the Petition.
1. The original and three copies of each
		  petition shall be in writing and shall be delivered in person or by mail to the
		  Executive Director of the Board during regular business hours at the Board's
		  offices. The Executive Director shall mark said petition as having been
		  received by the Board and return a file-marked copy to petitioner.
2. Petitioner shall serve a copy of the
		  petition, by certified mail- return receipt requested, upon each person
		  identified in said petition-pursuant to paragraph B (9) above; any person
		  served with such notice may file with the Board, within 20 days after service
		  thereof, a memorandum of law and legal authorities supporting such person's
		  interest in such proceeding;
D. Consideration of Petition.
1. The Board will determine whether to issue
		  a declaratory order. Should the Board determine not to issue a declaratory
		  order, the Board will promptly notify petitioner and state the reasons
		  therefore.
2. In order to determine
		  whether to issue a declaratory order, the Board will consider any pertinent
		  issues including, without limitation, the following:
a. whether the Petition substantially
		  conforms to paragraph b above or is not supported by a memorandum of law in
		  support of the petition;
b. whether
		  the Petition is frivolous;
c.
		  whether the matter is within the jurisdiction of the Board;
d. whether there is a genuine controversy of
		  material fact, the resolution of which is necessary before any declaratory
		  order may issue;
e. whether the
		  order will terminate a controversy or remove uncertainties as to the
		  applicability to petitioner of any regulation, statute or order by the
		  Board;
f. whether the petition
		  involves any subject, question or issue which the subject of a formal or
		  informal matter or investigation currently pending before the Board, a court or
		  other agency of this state or the federal government;
g. whether the petition seeks a ruling on a
		  moot or hypothetical question, speculative facts or will result in an advisory
		  ruling or opinion;
h. whether the
		  issue presented is of such complexity that the Board has had insufficient
		  opportunity or resources to develop a fully matured opinion;
i. whether a declaratory order would provide
		  a broad interpretation of a regulation, statute or order applicable to an
		  entire class of persons;
j. whether
		  the promulgation of a regulation or an adjudication would be more appropriate
		  to resolved the question; and
k.
		  any other pertinent matter.
E. Parties
1. Petitioner, persons identified in
		  paragraph B (9) and the Board shall be parties to a proceeding for a
		  declaratory order.
2. Any other
		  person may seek leave of the Board to intervene in such proceeding and leave to
		  intervene will be granted at the sole discretion of the Board.
3. A petition to intervene shall be filed in
		  the manner as set forth the same matters as required by paragraph b herein. Any
		  reference to "Petitioner" herein also refers to any person who has been granted
		  leave to intervene, unless the context clearly indicates to the
		  contrary.
F. Disposition
		  of Petition.
The Board may:
1.
		  Decide the issue solely upon the facts presented in the petition; in such case
		  the decision will apply only to the extent of the facts presented in the
		  petition and amended tot he petition;
2. Require that additional information be
		  submitted before the petition will be considered; in such event the additional
		  facts will be considered as an amendment to the petition;
3. Require Petitioner to provide notice of
		  the pendency of the proceeding to persons who may be necessary parties and as
		  well as other persons;
4. Schedule
		  a time, date and place at which the Board will conduct a hearing on the
		  Petition for the purpose of obtaining additional facts or inquiring into any
		  facts set forth in the petition; notice of the hearing and purpose therefore
		  shall be provided to Petitioner.
5.
		  Schedule a date, time and place at which Petitioner and other persons may make
		  an oral presentation on the petition;
6. Consider the petition and any attachments
		  without oral presentation; and/or
G. Order
1.
		  The Board shall state its decision in writing signed by the President of or
		  other person designated by the Board.
2. The Board's decision deciding the issue
		  presented by the petition shall include findings of fact and conclusions of law
		  supporting the declaratory order; the decision may be in the form of a letter
		  or pleading.
3. The Board's
		  decision shall be rendered and entered as promptly as reasonably practicable
		  considering the facts, circumstances, complexity and other factors pertinent to
		  the proceeding.
4. The order shall
		  be served upon Petitioner and any other parties to he proceeding by certified
		  mail, return receipt requested. (Adopted 8/19/99)