RAYMOND P. DENUIT R.Ph., Appellant-Appellee, v. OHIO STATE BOARD OF PHARMACY, Appellee-Appellant.
Case Nos. 11CA11, 11CA12
IN THE COURT OF APPEALS OF OHIO, FOURTH APPELLATE DISTRICT, JACKSON COUNTY
RELEASED 6/13/13
2013-Ohio-2484
Harsha, J.
DECISION AND JUDGMENT ENTRY
Michael DeWine, Ohio Attorney General, and Sean M. Culley, Ohio Assistant Attorney General, Columbus, Ohio, for appellee-appellant.
Elizabeth Y. Collis, Collis, Smiles & Collis, LLC, Columbus, Ohio, for appellant-appellee.
Harsha, J.
{1} The Ohio State Board of Pharmacy (the “Board“) appeals the Jackson County Court of Common Pleas judgment reversing the Board‘s decision to indefinitely suspend the license of Raymond Denuit and ordering him to pay a monetary penalty. The Board found that Denuit fondled the breast of an unwilling pharmacy employee and committed other misconduct. The Board concluded that collectively, Denuit‘s actions constituted gross immorality and unprofessional conduct in the practice of pharmacy under
{2} Initially, the Board contends that the common pleas court violated the law of the case doctrine. The Board argues that in the 2010 decision, the court found that the fondling incident alone constituted gross immorality and unprofessional conduct in the practice of pharmacy. And the Board claims that it was improper for the court to reach the opposite conclusion in its 2011 decision. However, in the 2010 decision the court actually found it could not determine whether the Board concluded that fondling alone, i.e., when considered without the other findings of misconduct the court rejected, constituted gross immorality or unprofessional conduct in the practice of pharmacy. The court implicitly remanded for the Board to consider that issue, which the Board did. Moreover, even if the court ruled in the manner the Board suggests, the 2010 decision was interlocutory, and the law of the case doctrine does not apply to interlocutory decisions. Therefore, until it issued a final order, the court was free to alter its 2010 decision.
{3} Next, the Board generally argues that when considering an appeal from an agency‘s order under
{4} The Board also complains that the court erred when it rejected the Board‘s finding that the fondling incident constituted gross immorality under
I. Facts
{5} Kevin Kinneer, one of the Board‘s compliance agents, received information that CVS terminated Denuit for improperly touching another employee while Denuit was filling in as a relief pharmacist at a Portsmouth, Ohio location. Kinneer investigated the incident, and the Board conducted an administrative hearing. Rachel Carver, a CVS shift supervisor, testified that on April 20, 2007, she was working and
{6} Kinneer testified that he obtained written statements Denuit and Carver gave to CVS. Denuit wrote that Carver was “stressed” so he gave her a back and neck message. Carver “turned [and] to me seemed to invite breast massage, was contact for moment. I, then left [and] went home. Nothing else happened, I thought she was OK [with] touching of breast.” When Kinneer confronted Denuit with his written statement, Denuit indicated it was not what he meant to say. Denuit denied touching Carver‘s breast and claimed if he did it was only by accident. Denuit gave another written statement in which he again stated that he gave Carver a neck and back massage. Denuit wrote that “[p]ossibly on [Carver‘s] swivel chair when she turned, breast may have been touched.” Kinneer testified about video footage of the incident he received from CVS. He testified that in his opinion the footage was consistent with Carver‘s story and observed that at no time did Carver turn in the swivel chair and place Denuit in a position to accidentally brush her breast.
{7} Denuit testified under subpoena and invoked his Fifth Amendment right in response to questions about the incident with Carver.
{8} After the hearing, the Board found that Denuit: (1) was a licensed
{9} Denuit filed an appeal in the Jackson County Court of Common Pleas in case number 09CIV0141. On February 22, 2010, the court issued a Decision and Order finding there was reliable, probative, and substantial evidence to support the Board‘s second finding of fact (related to the fondling incident) but not the third or fourth findings. The court also found that the “maximum monetary penalty which Appell[ee] may impose, pursuant to 4729.16(A) is Five Hundred Dollars ($500.00).” The court concluded it had insufficient information to determine “whether a violation of O.R.C. 2907.06(A)(1) in and of itself constitutes gross immorality as provided in O.R.C. 4729.16(A)(1) and constitutes unprofessional conduct in the practice of pharmacy as provided by O.R.C. 4729.16(A)(2).” And the court remanded the matter to the Board “for reconsideration of its adjudication of penalties pursuant to O.R.C. 4729.16(A).”1
[T]he Board determined previously and now affirms its determination that this conduct constitutes gross immorality and unprofessional conduct. As to gross immorality, the act of fondling an employee‘s breast when uninvited and offensive is clearly violative of not only law but of social sensibilities as well. The Board is incensed that any pharmacist would even ponder the idea of sexually groping a subordinate employee. To behave in such a manner is not only immoral but is grossly immoral. The Board believes that Respondent used his position to exercise physical control over a pharmacy employee in this sexually offensive manner, and such is untenable. As to unprofessional conduct in the practice of pharmacy, the Board is of the same opinion. To force one‘s self on another in such a sexual manner in the confines of a Board-licensed facility, during hours of work or shortly thereafter while closing for the day, is exceptionally unprofessional. This is so, especially considering that Respondent was a superior of the subordinate employee. This Board expects pharmacists to act professionally, and Respondent‘s act in that regard was clearly unprofessional.
{11} The Board imposed a $500 monetary penalty on Denuit and again indefinitely suspended his license.
{12} In case number 10CIV0115, Denuit filed another notice of appeal with the common pleas court for the Board‘s post-remand order. After the parties filed briefs, the court issued an April 26, 2011 Decision and Order. The court noted that the Board did not provide “a standard or guideline which defines ‘gross immorality.‘” And the court stated that “[t]he fact that the Board believes the Appellant‘s act to be ‘grossly immoral’ does not make it so without some standard by which a person can gauge or determine the effects of an action.” In addition, the court concluded that no evidence supported the Board‘s finding that Carver was Denuit‘s subordinate. Therefore, the court held that the gross immorality finding was unsupported by “substantive [sic] and probative
{13} Subsequently, the Board filed two notices of appeal with this Court – one from the February 22, 2010 decision (appellate case number 11CA11) and one from the April 26, 2011 decision (appellate case number 11CA12). Denuit filed a motion to dismiss the appeal in 11CA11, arguing it was not timely filed. We denied his motion. We found that the 2010 decision was not a final, appealable order and thus did not have to be appealed within 30 days of its issuance. Because the 2010 decision was interlocutory, it did not become final until it merged into the final judgment of April 26, 2011. Thus, in reality both of the Board‘s appeals are from the same final order – the April 26, 2011 decision. Subsequently, we granted the Board‘s motion to consolidate the appeals.
II. Assignments of Error
{14} The Board assigns five errors for our review:
First Assignment of Error: The court abused its discretion when it reversed its original decision, finding in its second decision that Denuit‘s conduct did not constitute gross immorality or unprofessional conduct in the practice of pharmacy.
Second Assignment of Error: The court acted unreasonably and arbitrarily when it concluded that the “gross immorality” standard in the pharmacy statutes is impermissibly vague.
Third Assignment of Error: The court acted unreasonably when it
Fourth Assignment of Error: The court acted unreasonably and arbitrarily when it remanded the Board‘s first order for “reconsideration” of the penalty.
Fifth Assignment of Error: The court acted unreasonably when it concluded that the record offered no support for the Board‘s finding that Denuit lied to a Board investigator and failed to cooperate [with] the Board‘s investigation.
III. Standards of Review
{15} ” ’
{16} “In undertaking its review, the common pleas court must give deference to the agency‘s resolution of evidentiary conflicts, but ‘the findings of the agency are by no means conclusive.’ ” Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 470, 613 N.E.2d 591 (1993), quoting Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111, 407 N.E.2d 1265 (1980). The common pleas court must presume the agency‘s findings of fact are correct and defer to them unless the court determines that the findings “are internally inconsistent, impeached by evidence of a prior inconsistent statement, rest upon improper inferences, or are otherwise unsupportable.” Ohio Historical Soc. at 471. ” ‘With respect to purely legal questions, however, the court is to exercise independent judgment.’ ” Shelton v. Gallia Cty. Veterans Serv. Comm., 194 Ohio App.3d 80, 2011-Ohio-1906, 954 N.E.2d 1242, ¶ 11 (4th Dist.), quoting VFW Post 8586 v. Ohio Liquor Control Comm., 83 Ohio St.3d 79, 82, 697 N.E.2d 655 (1998).
{17} Our review is more limited than that of the common pleas court. We are ” ‘to determine only [whether] the trial court has abused its discretion * * *.’ ” Shelton at ¶ 9, quoting Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). The phrase “abuse of discretion” implies “that the court‘s attitude is arbitrary, unreasonable, or unconscionable.” Shelton, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). ” ‘Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for those of the [agency] or a trial court. Instead, the appellate court must affirm the trial court‘s judgment.’ ” Shelton, quoting Pons at 621. ” ‘An appellate court does, however, have plenary review of purely legal questions.’ ” Shelton, quoting Nye v. Ohio Bd. of Examiners of Architects, 165 Ohio App.3d 502, 2006-Ohio-948, 847 N.E.2d 46, ¶ 11 (10th Dist.).
IV. Law of the Case Doctrine and the 2010 Decision
{18} In its first assignment of error, the Board contends that the trial court
{19} Whether the law of the case doctrine applies in a particular situation presents a legal question we review de novo. See Frazier v. Rodgers Builders, 8th Dist. No. 91987, 2010-Ohio-3058, ¶ 60. The Supreme Court of Ohio explained the doctrine in Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984): “[T]he doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” “The doctrine is considered to be a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results.” Id. Moreover, “[t]he law of the case applies only to final orders and not to interlocutory orders that are subject to the trial court‘s reconsideration.” Frazier at ¶ 64.
{21} In its findings of fact, the Board found three instances of misconduct by Denuit. Then the Board determined that the three instances of misconduct “constitute being guilty of gross immorality” and “constitute being guilty of unprofessional conduct in the practice of pharmacy * * *.” The Board did not state that each instance of misconduct by itself constituted gross immorality and unprofessional conduct. Instead, from the language used, it appears the Board concluded the three findings of misconduct collectively violated those standards. However, the court found that only one of the three findings of misconduct was supported by the evidence, i.e., the fondling incident was supported and the findings related to Denuit‘s statements were not. The court did not know whether the Board concluded that fondling alone, i.e., “a violation of O.R.C. 2907.06(A)(1) in and of itself,” constituted gross immorality and unprofessional conduct under the Revised Code.
{22} In its remand instructions, the court simply stated it was remanding the
{23} Moreover, even if the court had found in its 2010 decision that the fondling incident constituted gross immorality and unprofessional conduct, the law of the case doctrine does not bar the court from changing its mind in the 2011 decision. The doctrine applies only to final orders, not interlocutory orders. Frazier, 8th Dist. No. 91987, 2010-Ohio-3058, at ¶ 64. In a Februrary 22, 2012 Decision and Judgment Entry filed in 11CA11, we previously determined that the 2010 remand entry was not a final, appealable order. Thus, the 2010 decision was interlocutory and the trial court was free to reconsider it and change its position in the 2011 decision. Accordingly, we overrule the first assignment of error.
V. Propriety of the 2010 Remand Order
{24} In its fourth assignment of error, the Board contends that the court “acted unreasonably and arbitrarily when it remanded the Board‘s first order for ‘reconsideration’ of the penalty.” (Appellant‘s Br. i). The Board generally argues that nothing in the Administrative Procedure Act,
{25} More specifically, the Board complains that it has discretion to select the penalty for a violation so long as the penalty is in accordance with law. The Board admits that the original $6,500 penalty it imposed on Denuit was “legally defective” because it was “too high.” (Appellant‘s Br. 12). However, the Board complains that instead of ordering it to cure the problem, the court only ordered it to “reconsider” the penalty. The Board contends that this instruction “intrudes on the Board‘s own discretion, and must not be allowed.” (Appellant‘s Br. 12). The Board further argues: “Without identifying a problem with the penalty, the remand was nothing more than a suggestion to the Board that the court found something distasteful about the penalty. In doing so, the Court of Common Pleas intruded on the Board‘s authority to impose the penalty it saw fit. By remanding the case for reconsideration of the penalty – without identifying any issues with the penalty itself – the court acted arbitrarily and unreasonably to the Board‘s prejudice.”
{26} The Board again misinterprets the 2010 decision. As we acknowledged in Section IV. above, the remand order simply instructs the Board to reconsider “its adjudication of penalties pursuant to O.R.C. 4729.16(A).” However, as we also explained in Section IV., implicit in the 2010 decision is an instruction for the Board to first determine whether a violation occurred at all, i.e., whether fondling alone constitutes gross immorality or unprofessional conduct in the practice of pharmacy.
{27} Admittedly, the remand instructions could have been more precise. However, the Board never objected to them, and the Board‘s actions below demonstrate that it understood those instructions as we have just explained them. The Board never sought clarification of the instructions before it acted on the remand order. Instead, the Board proceeded to consider and find that fondling alone constituted gross immorality and unprofessional conduct in the practice of the pharmacy. Then the Board “reconsidered” the penalty. It imposed the same penalties as before with the exception of modifying the original $6,500 monetary penalty to $500. The Board implicitly concedes that the court correctly found this was the maximum allowable monetary penalty, so we fail to see how the Board suffered any prejudice from the 2010 remand order. Accordingly, we overrule the fourth assignment of error.
VI. Gross Immorality
{28} In its second assignment of error, the Board contends that the common pleas court “acted unreasonably and arbitrarily when it concluded that the ‘gross immorality’ standard in the pharmacy statutes is impermissibly vague.” In its 2011
{29} The Board does not appeal the court‘s decision on the issue of whether Denuit supervised Carver, thus we must consider them as only co-workers. The Board focuses its appeal on the court‘s findings about the Board‘s failure to provide a standard or guideline to define “gross immorality.” The court‘s judgment suggests, but does not explicitly find, that
{30} Statutory interpretation presents a legal issue we review de novo. See In re O.H., 4th Dist. No. 09CA38, 2010-Ohio-1244, ¶ 8. “The primary goal in construing a statute is to ascertain and give effect to the intent of the legislature.” In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538, 978 N.E.2d 164, ¶ 17. “When analyzing a statute, we first examine its plain language and apply the statute as written when the meaning is clear and unambiguous.” Id. We must “read words and phrases in context and construe them according to the rules of grammar and common usage.” Id., citing
{31}
The state board of pharmacy, after notice and hearing in accordance with Chapter 119. of the Revised Code, may revoke, suspend, limit, place on probation, or refuse to grant or renew an identification card, or may impose a monetary penalty or forfeiture not to exceed in severity any fine designated under the Revised Code for a similar offense, or in the case of a violation of a section of the Revised Code that does not bear a penalty, a monetary penalty or forfeiture of not more than five hundred dollars, if the board finds a pharmacist or pharmacy intern:
(1) Guilty of a felony or gross immorality;
* * *
{32} In
{33} According to the same source, immorality means “1. The quality or state of being immoral. 2. An immoral act or practice.” Id. at 553. Immoral is defined as that which is “[c]ontrary to accepted moral principles.” Id. The word “moral,” when used as an adjective, has several definitions which include: “In accord with standards of what is
{34} Therefore, a person is guilty of gross immorality for purposes of
{35} We are unaware of any precedent that states a statute is unconstitutional, i.e., not in accordance with law, if it does not explicitly define a relevant statutory phrase, particularly when the phrase‘s meaning is clear and can be ascertained from a dictionary. Moreover, the Board‘s failure to define gross immorality in its decision does not render its gross immorality finding unsupported by reliable, probative, and substantial evidence. Therefore, the common pleas court erred to the extent it found that based on the Board‘s failure to define “gross immorality,” the Board‘s finding of gross immorality was unsupported by the evidence and not in accordance with law.
{36} Ordinarily we would remand this matter to the common pleas court to evaluate the Board‘s finding of gross immorality under the proper definition. However, in this case, a remand for this purpose is not necessary because we find that Denuit‘s conduct satisfies the definition as a matter of law. Undoubtedly, unbuttoning the shirt of a co-worker, reaching insider her garment, and fondling her under her bra without permission for approximately one minute2 during work hours goes flagrantly beyond accepted standards of what is right or just in behavior. Moreover, Denuit‘s conduct was unmitigated in any way, i.e., it was not explicitly or implicitly invited.
{37} The Board‘s finding that Denuit‘s fondling of Carver constitutes gross immorality is supported by reliable, probative, and substantial evidence and is in
{38} However, at the common pleas level in his July 29, 2010 “APPELLANT‘S BRIEF ON THE MERITS,” Denuit argued that certain terms of his suspension and requirements for reinstatement of his license were not in accordance with law. The court did not reach these arguments because it found that Denuit committed no misconduct, so no punishment was warranted. Accordingly, we remand for the court to consider these arguments.
VII. Summary
{39} We overrule the Board‘s first and fourth assignments of error. We sustain the second assignment of error and remand for further proceedings consistent with this opinion. The Board‘s third and fifth assignments of error are moot, and we need not address them.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: __________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.