Ohio State Bd. of Pharmacy v. Frantz
| Decision Date | 30 May 1990 |
| Docket Number | No. 89-339,89-339 |
| Citation | 51 Ohio St.3d 143,555 N.E.2d 630 |
| Parties | OHIO STATE BOARD OF PHARMACY, Appellee, v. FRANTZ et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. The mandatory language of R.C. 119.09 pertains to securing attendance of witnesses and production of books, records, or papers at the request of a party for the purpose of conducting an adjudication hearing; it does not provide for prehearing discovery depositions by a party to an adjudication hearing.
2. The government cannot be estopped from its duty to protect public welfare because public officials failed to act as expeditiously as possible.
3. Laches is generally no defense to a suit by the government to enforce a public right or to protect a public interest.
On March 3, 1979, plaintiff-appellee, Ohio State Board of Pharmacy ("board"), initiated an investigation of defendant-appellant, James Michael Frantz, a registered pharmacist in practice in Findlay, Ohio. The investigation was prompted by a complaint from a pharmacist in Findlay, alleging that Frantz had been dispensing "improper" medication to customers. Subsequent to the initiation of its investigation, the board became aware of an FBI investigation of Frantz and his billing practices at the defendant-appellant, The Medicine Shoppe, a pharmacy located in Findlay. Pursuant to an agreement with the FBI, the board halted its investigation pending the outcome of the FBI investigation.
The FBI investigation resulted in a federal grand jury indictment of Frantz in 1983. He pled no contest to ten counts of a fifty-count indictment, and was convicted by the United States District Court of the Northern District of Ohio of Medicaid fraud. He was fined $42,500, spent four months in a halfway house and was placed on probation for five years.
On October 25, 1985, the board sent a letter to Frantz notifying him of allegations brought against him in his capacity as a registered pharmacist. A similar letter was also sent to him in his capacity as the holder of a terminal distributor license issued to The Medicine Shoppe. Both letters advised Frantz of his rights to a hearing before the board on the alleged infractions and the possible penalties therefor. Frantz requested that the board hold a hearing on the matter and also apparently requested that it issue a subpoena for prehearing discovery of certain witnesses scheduled to testify at the hearing. The request for prehearing discovery was denied by the board.
Pursuant to Frantz's request, the board conducted a hearing on the allegations against Frantz and The Medicine Shoppe. Frantz's motions to dismiss for laches, estoppel and lack of discovery were denied by the board. The board's order found that Frantz's conduct as a pharmacist in his operation of The Medicine Shoppe constituted "gross immorality," "dishonesty and unprofessional conduct," and that his actions violated R.C. Chapters 2925, 3715, 3719 and 4729. Pursuant to R.C. 4729.16 and 4729.57, respectively, the board revoked Frantz's license to practice pharmacy and fined him $5,000, and revoked The Medicine Shoppe's terminal distributor license and fined it $10,000.
Defendants appealed to the Court of Common Pleas of Hancock County, raising the laches, estoppel and lack of discovery arguments made at the board's proceedings. The court rejected the arguments and affirmed the board's orders.
The court of appeals held that R.C. 119.09 does not require administrative agencies to issue a subpoena for discovery depositions. The court further held that defendants failed to demonstrate any real prejudice as a result of their inability to take depositions and that defendant Frantz's conduct violated R.C. 4729.16 and was illegal. The court concluded that The court further indicated that laches cannot be imputed to the state.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Anthony J. Celebrezze, Jr., Atty. Gen., Steven P. Dlott and Lauren Ross, Columbus, for appellee.
Emens, Hurd, Kegler & Ritter, William J. Brown, R. Kevin Kerns and Gene W. Holliker, Columbus, for appellants.
Defendants-appellants first contend that R.C. 119.09 requires the State Board of Pharmacy to issue subpoenas for depositions of witnesses when a party to an adjudication hearing requests a deposition.
The relevant portion of R.C. 119.09 provides:
"For the purpose of conducting any adjudication hearing required by sections 119.01 to 119.13 of the Revised Code, the agency may require the attendance of such witnesses and the production of such books, records, and papers as it desires, and it may take the depositions of witnesses residing within or without the state in the same manner as is prescribed by law for the taking of depositions in civil actions in the court of common pleas, and for that purpose the agency may, and upon the request of any party receiving notice of said hearing as required by section 119.07 of the Revised Code, shall, issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records, or papers, directed to the sheriff of the county where such witness resides or is found, which shall be served and returned in the same manner as a subpoena in a criminal case is served and returned. * * * " (Emphasis added.)
Defendants contend that the second use of the word "purpose" in R.C. 119.09 refers to the taking of depositions and not to the conduct of an adjudication hearing.
In construing the above provision of R.C. 119.09, we are required to look to the statute itself to determine the intent of the General Assembly, and if such intent is clearly expressed therein, the statute may not be enlarged or abridged. State, ex rel. City Iron Works, Inc., v. Indus. Comm. (1977), 52 Ohio St.2d 1, 4, 6 O.O.3d 37, 38, 368 N.E.2d 291, 293. R.C. 119.09 is free from ambiguity and is not subject to judicial modification under the guise of interpretation. Ohio Motor Vehicle Dealers Bd. v. Remlinger (1983), 8 Ohio St.3d 26, 8 OBR 337, 457 N.E.2d 309.
The purpose of the portion of R.C. 119.09 in issue as stated therein is to empower an agency in its conduct of an adjudication hearing to require, if it desires, the attendance of witnesses, production of books, records and papers and the deposition of witnesses. And for the same purpose, the agency is required to issue subpoenas for witnesses or subpoenas duces tecum for the production of books, records or papers at the request of any party who is notified of the hearing pursuant to R.C. 119.07.
The General Assembly's use of the word "purpose" twice in the same paragraph is presumed to bear the same meaning. The second use of the word "purpose" in the mandatory portion of R.C. 119.09 refers to the first use, which gives the agency certain powers when an adjudication hearing is held. See Schuholz v. Walker (1924), 111 Ohio St....
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