State v. Reed

• Decision Date: 01 July 1983
• Parties: , 14 O.B.R. 75 The STATE of Ohio, Appellee, v. REED, Appellant.
• Court: Ohio Court of Appeals

Page 63

14 Ohio App.3d 63

470 N.E.2d 150, 14 O.B.R. 75

The STATE of Ohio, Appellee, v. REED, Appellant.

Court of Appeals of Ohio, Fourth District, Ross County.

July 1, 1983.

Syllabus by the Court

1. R.C. 3719.44 which authorizes the State Board of Pharmacy to add, reschedule and delete amendments to the schedules of controlled substances established in R.C. 3719.41 is not an unconstitutional delegation of legislative power.

2. The notice requirements of R.C. 3719.43 and 3719.44 in adopting a rule of schedule amendments, coupled with the public record requirements, are sufficient to satisfy the due process notice of proscribed conduct requirements of the state and federal Constitutions.

3. The determination whether a substance is a controlled substance under R.C. 3719.41 and Ohio Adm.Code 4729-11-04 is one of law to be decided by the court.

Richard G. Ward, Pros. Atty., and Jack Kellenberger, Kingston, for appellee.

Edward J. Brown, Chillicothe, for appellant.

STEPHENSON, Judge.

This is an appeal from a judgment of conviction and sentence entered by the Ross County Court of Common Pleas upon a jury verdict finding Gregory Reed guilty of a violation of R.C. 2925.23(B)(1), which proscribes, inter alia, the knowing possession of a false or forged prescription. The following errors are assigned:

"I. Valium (diazepam) was not a controlled substance because the legislature unconstitutionally delegated its duty to make criminal law to the State Board of Pharmacy.

"II. The scheduling of Valium (diazepam) as a controlled substance was unconstitutional because the notice required by due process was not given.

"III. The instructions to the jury that Valium (diazepam) was a schedule IV substance was in error because Valium (diazepam) was not a schedule IV substance and the instructions infringed on the jury's province of deciding the facts of the case."

On April 11, 1981, appellant presented to a pharmacist at a drug store in Chillicothe, Ohio, a forged prescription for Valium, which drug contains diazepam and is a controlled substance which has been placed on Schedule IV of R.C. 3719.41 by the State Board of Pharmacy.

Appellant had sought by pretrial motion a dismissal of the indictment upon the basis diazepam was not enumerated by the General Assembly in the enactment of R.C. 3719.41 and the scheduling of the drug by the State Board of Pharmacy was "void as an illegal delegation of legislative power and violates due process." The motion was overruled by the trial court. The refusal to dismiss for the reasons stated form the basis for the first two assignments of error.

Proper disposition of the first two assignments of error requires an overview of the state and federal statutory scheme of drug control. In 1970 the Congress of the United States, in response to the growing problem of drug abuse, enacted a narcotic and dangerous drug act entitled, Comprehensive Drug Abuse Prevention and Control Act of 1970, in P.L. 91-513, which appears at Sections 801 et seq., Title 21, U.S.Code. Effective January 1, 1976, the General Assembly adopted a Controlled Substances Act in Am.Sub.H.B. No. 300 (136 Ohio Laws, Part II, 2311) which appears in R.C. Chapter 3719 and which, essentially, follows the federal act, including adoption in R.C. 3719.41 of the five schedules of drugs appearing in the federal act. Each schedule has its own criteria for placement of a drug in the schedule.

The General Assembly adopted in R.C. 3719.41 the enumerated drugs under the various schedules. That the General Assembly did not intend the drugs listed under the schedule to remain fixed until legislatively changed is reflected both in R.C. 3719.43 and 3719.44. The former section provides, in substance, that when a drug is scheduled, rescheduled, or removed by the United States Attorney General under the criteria under the federal act, the change "is automatically effected in the corresponding schedule or schedules in section 3719.41 of the Revised Code, subject to amendment pursuant to section 3719.44 of the Revised Code." ¹

R.C. 3719.44, in the parts pertinent here, reads as follows:

"(A) Pursuant to this section, and by rule adopted pursuant to Chapter 119 of the Revised Code, the state board of pharmacy may do any of the following with respect to schedules I, II, III, IV, and V established in section 3719.41 of the Revised Code:

"(1) Add a previously unscheduled compound, mixture, preparation, or substance to any such schedule;

"(2) Transfer a compound, mixture, preparation, or substance from one such schedule to another, provided such transfer does not have the effect under Chapter 3719 of the Revised Code of providing less stringent control of such compound, mixture, preparation, or substance than is provided under federal narcotic laws.[;]

"(3) Remove a compound, mixture, preparation, or substance from the schedules where the board had previously added the compound, mixture, preparation, or substance to the schedules, provided that the removal shall not have the effect under Chapter 3719 of the Revised Code of providing less stringent control of such compound, mixture, preparation, or substance than is provided under federal narcotic laws.

"(B) In making a determination to add, remove or transfer pursuant to division (A) of this section, the board shall consider the following:

"(1) The actual or relative potential for abuse;

"(2) The scientific evidence of its pharmacological effect of the substance, if known;

"(3) The state of current scientific knowledge regarding the substance;

"(4) The history and current pattern of abuse "(5) The scope, duration, and significance of abuse;

"(6) The risk to the public health;

"(7) The potential of the substance to produce psychic or physiological dependence liability;

"(8) Whether the substance is an immediate precursor.

" * * *

"(F) The board may add or transfer a compound, mixture, preparation, or substance to schedule IV when it appears that it has a low potential for abuse relative to substances included in schedule III, and that it has a currently accepted medical use in treatment in this state, and that its abuse may lead to limited physical or psychological dependence relative to the substances included in schedule III.

" * * *

"(H) Even though a compound, mixture, preparation, or substance does not otherwise meet the criteria in this section for adding or transferring it to a schedule, the board may nevertheless add or transfer it to a schedule as an immediate precursor when all of the following apply:

"(1) It is the principal compound used, or produced primarily for use, in the manufacture of a controlled substance;

"(2) It is an immediate chemical intermediary used or likely to be used in the manufacture of such a controlled substance;

"(3) Its control is necessary to prevent, curtail, or limit the manufacture of the scheduled compound, mixture, preparation, or substance of which it is the immediate precursor."

Appellant's first assignment of error asserts the above statutory scheme which authorizes the State Board of Pharmacy to add, reschedule and delete amendments to the schedules constitutes an unconstitutional delegation of legislative power in that it permits the board to, in effect, legislate a crime and determine criminal penalties.

This court considered and rejected an identical constitutional attack in 1981 in State v. Davis (Aug. 21, 1981), Scioto App. No. 1289, unreported. Inasmuch as an unreported opinion is, under Rule 2(G)(2) of the Supreme Court Rules for Reporting of Opinions, effective March 1, 1983, persuasive authority only and not controlling authority, we will reexamine our holding in the Davis decision.

In Belden v. Union Central Life Ins. Co. (1944), 143 Ohio St. 329, 342, 55 N.E.2d 629 , the following is stated:

"Section 1, Article II of the state Constitution provides in part:

" 'The legislative power of the state shall be vested in a general assembly * * *.'

"It is firmly established that the General Assembly cannot delegate its legislative power and that any attempt so to do is unconstitutional. See Cincinnati, W. & Z. Rd. Co. v. Commrs. of Clinton County, 1 Ohio St., 77; State, ex rel. Allison, v. Garver, 66 Ohio St., 555, 64 N.E., 573; State, ex rel. Godfrey, v. O'Brien, Treas., 95 Ohio St., 166, 115 N.E., 25.

"On the other hand legislative acts granting to a board or an administrative agency quasi-legislative or quasi-judicial power, have been uniformly sustained where the General Assembly has laid down the policy and established the standards while leaving to an administrative agency the making of subordinate rules within prescribed limits and the determination of facts to which the legislative policy is to apply. See Village of Fairview v. Giffee, 73 Ohio St., 183, 76 N.E., 865; Miami County v. City of Dayton, 92 Ohio St., 215, 110 N.E., 726; Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St., 232, 116 N.E., 104; Green v. State Civil Service Commission, 90 Ohio St., 252, 107 N.E., 531." (Emphasis added.)

Similarly, in State v. Switzer (1970), 22 Ohio St.2d 47, 257 N.E.2d 908 wherein a statute granting authority to the Chief of the Division of Wildlife to vary by regulation the length of fish which may be possessed different from that in the statute was held not to be an invalid delegation of legislative power, the court stated, 22 Ohio St.2d at 49-50, 257 N.E.2d 908, the following:

"It is fundamental that a legislative body may delegate authority to an administrative agency to promulgate rules and regulations and to ascertain facts upon which provisions of the law may operate so long as sufficient standards are set up in the statute authorizing the delegation.

"Whether a grant of authority by a legislative body to an administrative agency constitutes an unlawful delegation depends in large part upon the adequacy of standards outlined by the legislative body in its grant of authority."

Additionally, in S...