Court: Ohio Court of Appeals; September 30, 1997; Ohio; State Appellate Court
James D. Vogelsong appeals the Scioto County Court of Common Pleas' judgment affirming his suspension by the Ohio State Board of Pharmacy. He contends that the board's submission of an exhibit copy instead of the original constituted a failure to certify a complete record under R.C. 119.12, but the court disagrees. Vogelsong claims his suspension lacked evidentiary support and that the board lost jurisdiction due to an untimely postdeprivation hearing, both of which the court finds moot or unpersuasive. He also argues the board improperly modified the hearing officer’s report and that the common pleas court abused its discretion in affirming the board’s findings regarding violations of R.C. Chapter 2925, to which the court again disagrees, affirming the trial court's judgment.
The case originated on September 8, 1995, when the Southern Ohio Drug Task Force arrested Vogelsong after reviewing his pharmacy records, which revealed postdated prescriptions and excessive cough syrup dispensation to multiple individuals. The board summarily suspended his pharmacy license without a hearing on that date. Vogelsong requested a hearing on October 4, 1995, but the board postponed it twice, ultimately holding it on January 4, 1996. During the hearing, Vogelsong argued that the board failed to conduct a timely postdeprivation hearing as mandated by R.C. 119.07 and 3917.121, but this was rejected. Testimony presented included accounts from individuals who purchased cough syrup from Vogelsong, indicating no legitimate medical purpose, corroborated by a board pharmacist's expert testimony. Vogelsong did not provide any evidence in his defense. While awaiting the hearing officer's report, he filed a complaint for declaratory and injunctive relief, which was denied. The hearing officer issued a report on February 26, 1996, to which Vogelsong filed objections.
On March 7, 1996, the board determined that pharmacist James Vogelsong sold a total of 1,760 exempt narcotics to multiple individuals over two time periods and improperly wrote refill dates for thirty prescriptions. The board noted that evidence in State’s Exhibits 12.1 through 12.7 understated sales; however, State’s Exhibit 38 provided clearer figures. The board's findings were consistent with the hearing officer's conclusions, with slight wording differences. Vogelsong was found guilty of knowingly selling a controlled substance beyond legal limits and of possessing false prescriptions, constituting dishonest conduct under R.C. 4729.16(A)(2) and violations of R.C. Chapter 2925 under R.C. 4729.16(A)(5). His pharmacy license was indefinitely suspended but could be reinstated in three years under specific conditions. Following the board's decision, Vogelsong appealed to the Scioto County Court of Common Pleas, which upheld the board's order, finding it supported by sufficient evidence. Vogelsong's appeal to a higher court includes five issues resembling assignments of error, questioning the board's compliance with legal provisions, the sufficiency of evidence for the suspension, the timing of hearings, potential modifications to the hearing officer's report, and the court's conclusions regarding the violation of R.C. Chapter 2925. Vogelsong claims the board failed to provide a complete record to the common pleas court, which he argues entitles him to a judgment in his favor. The appellate review will assess whether there was an abuse of discretion in the common pleas court's affirmation of the board's order.
R.C. 119.12 mandates that if an agency fails to comply within a specified timeframe, the court must rule in favor of the adversely affected party upon motion. In this case, Vogelsong filed a notice of appeal on April 2, 1996, and the board certified the record to the court on April 30, 1996, but provided a copy of Exhibit 38 (log books) instead of the originals. Vogelsong sought a ruling in his favor, claiming the omission hindered his ability to refute allegations of altering log book dates. The state defended its decision to withhold the originals, citing the need to preserve the chain of custody for an ongoing investigation, and argued that the issue of log book alterations was irrelevant to the board’s decision to suspend Vogelsong.
The common pleas court denied Vogelsong’s motion, and this decision was upheld based on precedent stating that certified copies are sufficient to complete the record as long as no party is prejudiced. It was determined that Vogelsong was not prejudiced by the use of copies, as the alteration issue was not under consideration on appeal, and he did not contest the accuracy of the copies provided.
In his second assignment of error, Vogelsong contended that the board erred in summarily suspending him on September 25, 1995, under R.C. 3719.121(B), which allows the board to suspend a pharmacist's license without a pre-deprivation hearing if there is clear and convincing evidence of immediate danger. The statute allows for a post-deprivation hearing, and the suspension remains until the board’s final adjudication becomes effective. The board's final adjudication suspended Vogelsong indefinitely but noted that the summary suspension ended on March 7, 1996. Since Vogelsong did not seek a stay from the common pleas court, he is no longer under summary suspension, rendering his challenge moot.
The board is advised to expedite future summary suspensions, referencing Fed. Deposit Ins. Corp. v. Mallen, which established that a ninety-day period between summary suspension and the post-suspension decision does not violate due process. Vogelsong's second assignment of error is overruled. In his third assignment, Vogelsong asserts the board lost jurisdiction due to a failure to conduct a post-deprivation hearing within one hundred five days after his request. He cites R.C. 3719.121, 119.07, and his procedural due process rights as creating a mandatory timeframe for this hearing. The state counters that no such mandatory period exists and the board was permitted to postpone hearings under R.C. 119.09.
R.C. 119.07 allows a suspended party to request a hearing, requiring the hearing to be set within fifteen days of the request, while R.C. 119.09 allows for continuances. The board set the hearing within the required fifteen days but held it ninety-two days after Vogelsong’s request due to two continuances. The final adjudication was issued sixty-two days post-hearing. Vogelsong references State ex rel. Hannan v. DeCourcy, arguing the fifteen-day timeline is mandatory and combining it with the ninety-day limit to assert a one-hundred-five-day total. However, the court distinguishes DeCourcy, stating R.C. 119.07 mandates only the setting of a hearing date and not the hearing's conclusion.
It concludes that the fifteen-day limit is directory, not mandatory, and the board maintained jurisdiction despite the continuances. Vogelsong's claim of a violation of procedural due process due to the delay is deemed moot, focusing on the constitutionality of the suspended order which has since been lifted, leading to the overruling of his third assignment of error.
Vogelsong claims the board improperly altered the hearing officer’s report in violation of R.C. 119.09, arguing that the board failed to provide specific reasons for its modifications. The board's change from "proved to be inaccurate" to "proved to understate the sales" was deemed self-explanatory, clarifying the nature of the inaccuracy, leading to the overruling of this assignment of error.
In his final assignment, Vogelsong contends the trial court abused its discretion regarding the board’s finding that he violated R.C. 2925.03(A)(7) by knowingly selling a controlled substance in excessive amounts. He maintains he believed he was compliant with R.C. Chapter 3719 and does not dispute the findings of false prescriptions. The state argues his actions were not compliant with the relevant statutes, particularly R.C. 3719.15, which outlines the conditions under which medicinal preparations may be dispensed. Vogelsong argues that dispensing over 1,600 bottles of cough syrup with codeine does not constitute a violation; however, the court disagreed, stating that such excessive dispensing cannot be considered good faith practice. The board's interpretation of these statutes is afforded deference, and the court found no abuse of discretion in the board's conclusions regarding Vogelsong's intent to evade regulations. Thus, all of Vogelsong's assignments of error are overruled, affirming the trial court's judgment.
