Carl S. Mowery v. Ohio State Board of Pharmacy

• Decision Date: 30 September 1997
• Docket Number: 97-LW-4630,96-G-2005
• Parties: CARL S. MOWERY, Appellant, v. OHIO STATE BOARD OF PHARMACY, Appellee. CASE
• Court: Ohio Court of Appeals

CARL S. MOWERY, Appellant, v. OHIO STATE BOARD OF PHARMACY, Appellee.

No. 96-G-2005

97-LW-4630 (11th)

Court of Appeals of Ohio, Eleventh District, Geauga County.

September 30, 1997

Administrative Appeal from Court of Common Pleas Case No. 96 A 000248

HON DONALD R. FORD, P.J., HON. JUDITH A. CHRISTLEY, J., HON ROBERT A. NADER, J.

ATTY EDWARD T. BRICE, NEWMAN, LEARY & BRICE, 214 East Park Street Chardom, OH 44024, For Appellant

BETTY D. MONTGOMERY, ATTORNEY GENERAL, MARY HOLLERN, ASSISTANT ATTORNEY GENERAL, State Office Tower, 26th Floor, 30 East Broad Street, Columbus, OH 43215, Appellee

OPINION

FORD P.J.

This is an accelerated appeal from the Geauga County Court of Common Pleas. Appellant, Carl S. Mowery, appeals from the trial court's affirmance of an order of the Ohio State Board of Pharmacy, appellee, indefinitely suspending appellant's pharmaceutical identification card.

On October 2, 1990, and February 5, 1991, appellee's agents conducted inspections at Burton Drug, Inc., where appellant was an owner and the responsible pharmacist. Appellee's agents notified appellant of numerous violations under state and federal laws during the first inspection. On the follow-up visit, the agent indicated that appellant's drugstore was much improved, and cited only one violation.

On September 24, 1991, appellant entered a guilty plea to eighteen counts of attempt to violate R.C. 4729.37 and 2923.02, and Ohio Adm.Code 4729-5-30. The prosecutor advised the court that the state was not seeking or recommending that appellee impose any further sanctions, and that appellee would be so advised. The Geauga County probation officer stated in her presentence report that she did not believe that appellant had any criminal intent. Appellant was sentenced on November 7, 1991, to a term of incarceration of six months for each count, with the sentences to be served concurrently. Appellant was also ordered to make restitution in the amount of $1,000. The court suspended the sentence of imprisonment and placed appellant on inactive probation until December 31, 1992.

In a letter to appellee, dated November 12, 1991, appellant's counsel forwarded a check and a request for renewal of appellant's license, along with certified copies of the indictment, change of plea order, and judgment of conviction and sentence, and also the change of plea hearing transcript and a copy of the probation officer's statement. In accordance with R.C. 2929.17 and R.C. 3719.12, appellee was advised of appellant's convictions by letters from appellant's attorney dated November 13, 1991, and December 3, 1991, along with the required forms. Appellant's probation was terminated in an order filed on January 4, 1993, as appellant was determined to be no longer in need of probation supervision.

Geauga County Detective McNabb forwarded a memorandum dated March 23, 1994, to an agent of the Federal Drug Enforcement Agency ("DEA") in Cleveland stating that pursuant to his monthly inspections, appellant's prescription records had been found to be in order and that appellant had been of great assistance to his unit. In a letter dated April 1, 1994, Geauga County Sheriff George Simmons advised the DEA that appellant had been abiding by the regulations, and that suspending or revoking his federal registration would be a detriment to his community.

Appellant's conviction and records were sealed pursuant to R.C. 2953.32(F), with the court finding that appellant had been rehabilitated to the satisfaction of the court. In a letter dated July 24, 1995, appellee notified appellant that it might revoke, suspend, place on probation, or refuse to grant or renew his identification card or impose a monetary penalty or forfeiture for alleged violations as a pharmacist occurring between 1987 and 1991, pursuant to R.C. Chapters 119 and 4729. The letter further advised appellant of his right to a hearing. During the period between September 15, 1991, and September 15, 1996, appellee renewed appellant's pharmacy license.

Burton Police Department Sergeant Mark Lombardi sent a letter to appellee dated January 17, 1996, regarding appellant's professionalism, helpfulness, and his being a wonderful asset to the Burton Community. A similar letter was forwarded by Burton Police Chief Dennis Nichols to appellee on January 18, 1996. Another letter dated January 26, 1996, from Geauga County Sheriff Simmons to appellee stated that pursuant to regular inspections since January 3, 1993, no irregularities had been found, appellant had been in compliance with the regulations, and no further action against appellant would be taken.

The hearing was held on January 23, 1996. Appellee issued an order on March 15, 1996, finding appellant guilty of the counts set forth in the hearing notice and suspending appellant's pharmaceutical identification card indefinitely. Appellee's order further provided that appellant's license to practice pharmacy would be reinstated upon his successful completion of the required law examination, Ohio Adm. Code 4729-5-31.

Appellant appealed appellee's order to the Geauga County Court of Common Pleas pursuant to R.C. 119.12. In a judgment entry dated August 2, 1996, the trial court found in favor of appellee, stating:

"The administrative order is callous, dilatory, and utterly unsupportable on the basis of community impact in Burton Village. It also complies with Ohio law (see R.C. 4729.16) and with the applicable standard for judicial review of administrative orders of the State Board of Pharmacy."

Appellant filed a timely appeal, and raises the following single assignment of error:

"The trial court erred to the prejudice of [appellant] in affirming the order of the Ohio State Board of Pharmacy's indefinite suspension of his pharmacist I.D. Card No. 03-1-04861, per R.C. 4729.16 and R.C. 119.12, especially after the trial court had found the Board's suspension order to be callous, dilatory and utterly unsupportable in [a]ppellant's Burton Village." (Emphasis sic.)

As a preliminary matter, we note that a suggestion of the death of the appellant has been brought to the attention of this court. Although we normally would dismiss the appeal under such circumstances, the case sub judice involves issues that extend beyond the facts of this particular case and affect a broader interest. Therefore, we will review the assigned error.

The standard of review in an administrative appeal taken pursuant to R.C. 119.12 is extremely limited, as stated below:

"In an appeal from [an adminstrative agency's] order, a reviewing trial court is bound to uphold the order if it is supported by reliable, probative, and substantial evidence, and is in accordance with law. R.C. 119.12; In re Williams (1991), 60 Ohio St.3d 85, 86 ***. The appellate court's review is even more limited than that of the trial court. While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for those of the [administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment. Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260-261 ***. See, also, Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn. (1992), 63 Ohio St.3d 705, 707 ***." (Parallel citations omitted.) Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621.

Appellant challenges appellee's decision on several grounds. Initially, we address those arguments that are not well-taken. Appellant's argument claiming double jeopardy is unfounded on the authority of France v. State (1897), 57 Ohio St. 1, 20. His assertion that appellee's action is precluded under the doctrine of estoppel also fails in light of the Supreme Court of Ohio's holding in Ohio State Bd. of Pharmacy v. Frantz (1990), 51 Ohio St.3d 143. Further, the statute of limitations cited by appellant, R.C. 2305.11, is inapplicable to adminstrative actions. That statutory section provides time limitations for bringing certain actions, including libel, slander, and medical malpractice.

Appellant also argues that appellee violated R.C. 2953.33 by considering his criminal convictions when they had already been expunged. Appellant failed to object to the admission of the judgment entries at the time of the hearing and, in fact, stipulated to them. Thus, any possible error was waived. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43. Substantively, the board was authorized to consider the previously expunged convictions in determining appellant's eligibility for continued and/or renewed licensing. In re Niehaus (1989), 62 Ohio App.3d 89.

We determine that appellee's order is reversible on due process grounds. Section 16, Article I, Ohio Constitution states that "[a]ll courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay." (Emphasis added.)

The due process analysis is applicable to administrative hearings. Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 52. The due process determination concerns three factors that must be weighed:

"'First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or

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