Szep v. Ohio State Bd. of Pharmacy, 95-L-073

• Decision Date: 16 October 1995
• Docket Number: No. 95-L-073,95-L-073
• Citation: 666 N.E.2d 662,106 Ohio App.3d 621
• Parties: SZEP, Appellant, v. OHIO STATE BOARD OF PHARMACY, Appellee. *
• Court: Ohio Court of Appeals

Page 621

106 Ohio App.3d 621

666 N.E.2d 662

SZEP, Appellant, v. OHIO STATE BOARD OF PHARMACY, Appellee. ^*

No. 95-L-073.

Court of Appeals of Ohio,

Eleventh District, Lake County.

Decided Oct. 16, 1995.

Theodore R. Klammer, Mentor, for appellant.

Betty D. Montgomery, Attorney General, and Robert J. McClaren, Assistant Attorney General, Columbus, for appellee.

CHRISTLEY, Presiding Judge.

This is an accelerated calendar appeal, predicated upon a final judgment of the Lake County Court of Common Pleas. Appellant, Frank Szep, seeks the reversal of the court's decision to affirm a prior order of appellee, the Ohio State Board of Pharmacy, in which appellant's application for registration as an intern was denied.

Appellant's application was initially filed with appellee on June 14, 1993. As part of this application, appellant averred that he had never been convicted of any felony or misdemeanor charges under the criminal laws of this state.

On October 22, 1993, appellee sent appellant a certified letter, informing him that it was appellee's intention to deny his application unless he requested a hearing within thirty days. As the basis for this proposed action, the letter stated that certain records had shown that appellant had been convicted of a felony in April 1988.

Within fifteen days of receiving the certified letter, appellant moved appellee to reconsider his application. As part of this motion, appellant specifically requested an evidentiary hearing on the matter. Appellant also attached to the motion a copy of a judgment entry of the Lake County Court of Common Pleas, in which the sentencing court in the prior criminal proceeding had ordered the expungement of appellant's felony conviction from the official records of all state agencies, including appellee.

A hearing on appellant's application was held before appellee on June 28, 1994. As part of this proceeding, appellant voluntarily agreed to submit to questioning under oath concerning the facts underlying the felony conviction. However, when an assistant attorney general sought to introduce the testimony of a police officer who had been involved in the investigation which led to the conviction, appellant objected on the basis that the testimony was inadmissible because the conviction had been expunged. This objection was overruled, and appellee heard the testimony of the officer.

On August 15, 1994, appellee issued its final order denying appellant's application for registration as a pharmacy intern. As part of its findings of fact, appellee again found that appellant had a prior felony conviction. Based upon this, appellee concluded that appellant was not a person of good moral character and habits.

Pursuant to R.C. 119.12, appellant appealed appellee's final order to the common pleas court. Once the record of the proceedings before appellee had been filed with the court, appellant filed his brief on the matter. Under his sole assignment of error, he again asserted that appellee had erred in considering the testimony of the police officer because the relevant statutory provision on expunged convictions allowed appellee only to question appellant as to the circumstances underlying the conviction.

After appellee had filed its brief in response, the common pleas court issued its judgment affirming the denial of the application. As the basis for this holding, the court concluded that appellee could consider the testimony of other individuals if the expunged conviction has a direct and substantial relationship to the license for which appellant had applied.

In appealing from this judgment, appellant has raised the following assignment of error:

"The Lake County Court of Common Pleas erred to the prejudice of the appellant by affirming the decision of the Ohio State Pharmacy Board which denied appellant's application for intern registration."

In asserting that the denial of his application should have been reversed, appellant has raised the same argument which formed the basis of his brief before the common pleas court. Appellant contends that since the sentencing court in the prior criminal proceeding had ordered the expungement of his felony conviction, appellee was not permitted to hear and consider the police officer's testimony; instead, according to appellant, appellee could only question him personally as to the facts underlying the conviction. This argument lacks merit.

R.C. 2953.32 sets forth the basic procedure by which the records of a criminal conviction can be sealed. Division (C)(2) of this statute provides that if the sentencing court in a criminal action grants an application to seal the records, the effect of the order is that "[t]he proceedings in the case shall be considered not to have occurred."

However, the granting of an application to seal does not mean that the records of the conviction cannot be reopened for certain purposes. Pepper Pike v. Doe (1981), 66 Ohio St.2d 374, 378, 20 O.O.3d 334, 336-337, 421 N.E.2d 1303, 1306-1307. For example, R.C. 2953.33(B) provides that an individual can be questioned about a sealed conviction under certain circumstances:

"In any application for employment, license, or other right or privilege, any appearance as a witness, or any other inquiry, * * * a person may be questioned only with respect to convictions not sealed, * * * unless the question bears a direct and substantial relationship to the position for which the person is being considered."

In interpreting the foregoing provision, the common pleas court expressly held that not only was appellee allowed under the statute to question appellant directly about the prior conviction, but that appellee was also allowed to consider the testimony of other witnesses on the matter. In support of this holding, the court cited In re Niehaus (1989), 62 Ohio App.3d 89, 574 N.E.2d 1104.

Niehaus involved a disciplinary proceeding against a physician. Before the State Medical Board, the physician stipulated to the fact that he had a prior conviction for a misdemeanor offense, and that this conviction had subsequently been expunged from state records. Despite the expungement, the State Medical Board suspended him from the practice of medicine, based solely upon the fact that he had committed the offense in the course of his practice.

Before the Tenth Appellate District, the physician asserted that an expunged prior conviction could not be a basis for suspending his license to practice. In rejecting this argument, the Niehaus court began its analysis by emphasizing that the sealing of a record does not act as an absolute bar to the consideration of a prior conviction. The court then made the following statement in relation to R.C. 2953.33(B):

"R.C. 2953.33(B) is not limited to consideration of sealed records only with respect to the questioning of an applicant for professional licensure, but also encompasses any other inquiry which bears a direct and substantial relationship to other rights and privileges associated with such license, as in the case herein. In that respect, we adopt...