1. (a) Scope. When a rule, statute, or order enforced by the Arkansas State Board of Pharmacy or its application will injure or threatens to injure a person in his or her person, business, or property, that person may file a petition for a declaratory order as to the applicability of that rule, statute, or order pursuant to this rule.

2. (b) Petition — Contents. The petition for a declaratory order shall contain the following:

   1. (1) The venue, a heading specifying the subject matter and name of the petitioner, and the name of the pleading;
   2. (2) The name, address, and telephone number of the petitioner and whether the petitioner is licensed by the board under Arkansas Code § 17-92-101 et seq.;
   3. (3) The name, address, and telephone number of the petitioner’s attorney, if any;
   4. (4) A statement of the injury to result from the rule, statute, or order or the application thereof to the petitioner;
   5. (5) The declaratory ruling that the petitioner seeks;
   6. (6) The rule, statute, or order that is the subject of the petition;

   7. (7)

      1. (A) The facts relevant to the order that the petitioner seeks.
      2. (B) Said statement of facts shall be complete, specific, and particularized to the issue presented;
   8. (8) Memorandum of law and legal authorities in support of the order the petitioner seeks;

   9. (9) The name, address, and telephone number of each person:

      1. (A) Known to the petitioner who may have a specific personal interest in the application of the:

3. (i) Rule;

   1. (ii) Statute; or

      1. (iii) Order; or
      2. (B) Who may be adversely affected by the declaratory order sought by the petitioner;
   2. (10) The signature of the petitioner or the petitioner’s attorney, if any; and

   3. (11) All documents pertinent to the petition shall be attached thereto.

      1. (c) Filing of the petition.

   4. (1)

      1. (A) The original and three (3) copies of each petition shall be in writing and shall be delivered in person or by mail to the Executive Director of the Arkansas State Board of Pharmacy during regular business hours at the board's offices.

      2. (B) The executive director shall:

         1. (i) Mark said petition as having been received by the board; and
         2. (ii) Return a file-marked copy to the petitioner.

   5. (2) In order to determine whether to issue a declaratory order, the board will consider any pertinent issues, including without limitation the following:

      1. (A) Whether the petition:

         1. (i) Substantially conforms to subsection (b) of this section; or
         2. (ii) Is not supported by a memorandum of law in support of the petition;
      2. (B) Whether the petition is frivolous;
      3. (C) Whether the matter is within the jurisdiction of the board;
      4. (D) Whether there is a genuine controversy of material fact, the resolution of which is necessary before any declaratory order may issue;
      5. (E) Whether the order will terminate a controversy or remove uncertainties as to the applicability to the petitioner of any rule, statute, or order by the board;

      6. (F) Whether the petition involves any subject, question, or issue that is the subject of a formal or informal matter or investigation currently pending before:

         1. (i) The board;
         2. (ii) A court;
         3. (iii) Another agency of this state; or
         4. (iv) The federal government;

      7. (G) Whether the petition:

         1. (i) Seeks a ruling on a moot or hypothetical question or speculative facts; or
         2. (ii) Will result in an advisory ruling or opinion;
      8. (H) Whether the issue presented is of such complexity that the board has had insufficient opportunity or resources to develop a fully matured opinion;
      9. (I) Whether a declaratory order would provide a broad interpretation of a rule, statute, or order applicable to an entire class of persons;
      10. (J) Whether the promulgation of a rule or an adjudication would be more appropriate to resolve the question; and

      11. (K) Any other pertinent matter.

          1. (d) Parties.
   6. (1) The petitioner, persons identified in subdivision (b)(9) of this section, and the board shall be parties to a proceeding for a declaratory order.
   7. (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.

   8. (3)

      1. (A) A petition to intervene shall be filed in the manner as set forth the same matters as required by subsection (b) of this section.
      2. (B) 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.

4. (e) Disposition of petition. The board may:

   1. (1)

      1. (A) Decide the issue solely upon the facts presented in the petition.
      2. (B) In such case, the decision will apply only to the extent of the facts presented in the petition and amended to the petition;

   2. (2)

      1. (A) Require that additional information be submitted before the petition will be considered.
      2. (B) In such event, the additional facts will be considered as an amendment to the petition;
   3. (3) Require the petitioner to provide notice of the pendency of the proceeding to persons who may be necessary parties as well as other persons;

   4. (4)

      1. (A) 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.
      2. (B) Notice of the hearing and purpose therefor shall be provided to the petitioner;
   5. (5) Schedule a date, time, and place at which the petitioner and other persons may make an oral presentation on the petition; and/or
   6. (6) Consider the petition and any attachments without oral presentation.

5. (f) Order.

   1. (1) The board shall state its decision in writing signed by:

      1. (A) The President of the Arkansas State Board of Pharmacy; or
      2. (B) Other person designated by the board.

   2. (2)

      1. (A) The board's decision deciding the issue presented by the petition shall include findings of fact and conclusions of law supporting the declaratory order.
      2. (B) The decision may be in the form of a letter or pleading.
   3. (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. (4) The order shall be served upon the petitioner and any other parties to the proceeding by certified mail, return receipt requested.

Codification Notes: This section as promulgated prior to codification into the Code of Arkansas Rules provided as follows: “(Adopted 8/19/99 amended 8/1/2020)"