757 N.E.2d 846 | Ohio Ct. App. | 2001
Appellant was a pharmacist at Forum Health's Northside Hospital for eleven years. After investigating appellant in July 1999, the Board suspended his pharmacist license. On November 9, 1999, the Board held a dispositional hearing. On December 16, 1999, the Board issued a decision which revoked appellant's license on various grounds. The Board found that appellant violated multiple laws and is unfit to practice pharmacy due to an addiction. The Board noted that appellant admitted that he regularly injected himself with Morphine while at work, had been stealing Morphine from the pharmacy since March 1999, and had *193 replaced that stolen Morphine with sterile saline. The Board also found that appellant stole Hydrocodone Bitartate from the pharmacy.
The Board's decision was sent to appellant by certified mail on December 16, 1999. As evidenced by appellant's signature on the return receipt, he received the decision on December 17, 1999. On December 30, 1999, appellant filed notice of appeal in the trial court and mailed a copy to the Assistant Attorney General who represented the Board. On January 4, 2000, appellant's counsel personally served the Board with notice of appeal.
Thereafter, the Board filed a motion to dismiss the appeal as untimely filed. The Board argued that, even assuming that the Board closed early on Friday, New Years Eve, appellant's notice of appeal had to be filed with the Board on Monday, January 3, 2000. A magistrate granted the Board's motion to dismiss stating that it lacked jurisdiction due to the untimely filed notice of appeal. Appellant filed timely objections which the trial court overruled on April 18, 2000. Appellant then filed timely notice of appeal to this court.
Appellant's sole assignment of error provides:
"THE COURT ERRED IN DISMISSING THE NOTICE OF APPEAL FILED PURSUANT TO R.C. 119."
Pursuant to R.C.
The failure to file notice of appeal with the Board within fifteen days after the Board mails its order is fatal to the appeal. Sun Refining Marketing Co. v. Brennan (1987),
Initially, appellant alleges that if his notice of appeal was due on January 3, 2000, then it was timely filed because, on December 30, 1999, he mailed a copy of the notice to the Assistant Attorney General who represents the Board. To assist us in arriving at the conclusion that the Assistant Attorney General received the notice in time, he mentions a "presumption of timely delivery" when notice is sent by mail and there is no evidence of the date of receipt. We note that the file contains a copy of appellant's notice of appeal that is time-stamped December 30, 1999 by the Attorney General's Health and Human Services Section. The Board notes that appellant mailed the notice to the main address for the Attorney General's Office which is not where the Assistant Attorney General for the Board is located. However, as will be demonstrated below, we need not address the issue of when the Assistant Attorney General received a copy of the notice of appeal.
The reason appellant engages in the above discussion is to argue that the Assistant Attorney General should have filed the notice of appeal with the Board for him. He also proposes that service on the Assistant Attorney General is service on the Board. Nevertheless, the statute explicitly requires that appellant file the notice of appeal with the Board. R.C.
Moreover, even if the Board's attorney received the notice of appeal by mail within the fifteen day period, case law establishes that service on the attorney representing the agency within the fifteen-day time frame for filing the notices of appeal does not constitute timely filing with the agency under R.C.
Lastly, appellant argues that his notice of appeal should be characterized as timely filed because Civ.R. 6(E) extends the time required to do an act by three days where that person was served by mail. First, we should note that even if three days were added, appellant would still be required to file by January 3, 2000, as that date was only originally arrived at because the actual due date fell on New Years Eve (Friday) and the Board may have left early that day.
Second, the Ohio Supreme Court has held that Civ.R. 6(E) may not be used to extend the time for filing a notice of appeal with the relevant agency because the time limitation is jurisdictional. Proctor,
For the foregoing reasons, the judgment of the trial court dismissing the appeal from the decision of the Ohio State Board of Pharmacy is hereby affirmed.
______________ VUKOVICH, P.J.
Donofrio, J., concurs.
Waite, J., concurs. *196