780 N.E.2d 1075 | Ohio Ct. App. | 2002
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *345
{¶ 2} From 1987 through 2001, Richard A. Petrilla, a registered pharmacist, owned Dick's Pharmacy in Youngstown, Ohio. Petrilla personally operated Dick's Pharmacy and served as the pharmacist in charge of the pharmacy. Pursuant to R.C.
{¶ 3} Based on a complaint lodged by United Health Care ("UHC"), OSBP began an investigation of Dick's Pharmacy in 1998. Many of UHC's Medicaid supplement policies require insureds to purchase all but the first 14-day supply of a prescription drug from a mail order pharmacy. Apparently, UHC had noticed that Dick's Pharmacy was submitting an unusually large number of requests for payment for initial 14-day supplies of prescription drugs. OSBP's investigation revealed that Petrilla had devised a scheme that allowed him to bill UHC for medication that should have been filled by a mail order pharmacy. Specifically, Petrilla was converting properly authorized prescriptions into multiple 14-day prescriptions, each of which he then billed to UHC as an initial 14-day supply. *346
{¶ 4} On October 4, 2000, following the completion of its investigation1, OSBP issued a citation and notice of an opportunity for a hearing to Dick's Pharmacy, as the holder of a terminal distributor's license, charging the pharmacy with five counts of illegal processing of drug documents, in violation of R.C.
{¶ 5} Petrilla appealed OSBP's order directed at him to the Mahoning County Court of Common Pleas, and that matter is not before this court. Dick's Pharmacy appealed OSBP's order directed at it to the Franklin County Court of Common Pleas. Following the submission of briefs, the Franklin County Court of Common Pleas issued a decision affirming OSBP's order regarding Dick's Pharmacy on February 14, 2002. Dick's Pharmacy appeals from that decision assigning the following errors:
{¶ 6} "ASSIGNMENT OF ERROR NO. 1
{¶ 7} "THE TRIAL COURT ERRED IN AFFIRMING THE BOARD'S ORDER BECAUSE THE BOARD LACKED RELIABLE, SUBSTANTIAL AND PROBATIVE EVIDENCE TO SUPPORT ITS FINDINGS THAT DICK'S PHARMACY COMMITTED ANY PHARMACY LAW VIOLATIONS.
{¶ 8} "ASSIGNMENT OF ERROR NO. 2
{¶ 9} "THE TRIAL COURT ERRED IN FINDING THAT THE ORDER WAS SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE.
{¶ 10} "ASSIGNMENT OF ERROR NO. 3
{¶ 11} "THE TRIAL COURT ERRED IN AFFIRMING THE FINE OF $25,000.00 AGAINST DICK'S PHARMACY SINCE THE FINE WAS UNAUTHORIZED BY LAW.
{¶ 12} "ASSIGNMENT OF ERROR NO. 4. *347
{¶ 13} "THE TRIAL COURT ERRED IN AFFIRMING THE FINE OF $25,000.00 UPON DICK'S PHARMACY BECAUSE THE PENALTY WAS DISPROPORTIONATE TO THE OFFENSE AND INCONSISTENT WITH PREVIOUS RULINGS OF THE BOARD.
{¶ 14} "ASSIGNMENT OF ERROR NO. 5
{¶ 15} "THE TRIAL COURT ERRED IN AFFIRMING THE $25,000.00 FINE SINCE SUCH PENALTY CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT, IN VIOLATION OF THE OHIO CONSTITUTION.
{¶ 16} "ASSIGNMENT OF ERROR NO. 6
{¶ 17} "THE TRIAL COURT ABUSED ITS DISCRETION IN AFFIRMING THE PENALTY SINCE THE PENALTY IS CLEARLY ARBITRARY AND EXCESSIVE."
{¶ 18} This matter involves an administrative appeal brought pursuant to R.C. Chapter 119. Pursuant to R.C.
{¶ 19} In its first assignment of error, appellant argues that OSBP's order finding that it committed five counts of illegal processing of drug documents, in violation of R.C.
{¶ 20} R.C.
{¶ 21} "The state board of pharmacy may suspend, revoke, or refuse to renew any license issued to a terminal distributor of dangerous drugs pursuant to section
{¶ 22} "* * *
{¶ 23} "(3) Violating any provision of this chapter;
{¶ 24} "* * *
{¶ 25} "(5) Violating any provision of the federal drug abuse control laws or Chapter 2925. or 3719. of the Revised Code."
{¶ 26} In contrast, R.C.
{¶ 27} "The state board of pharmacy * * * may revoke, suspend, limit, place on probation, or refuse to grant or renew an identification card,2 or may impose a monetary penalty or forfeiture not to exceed in severity any fine designated under the Revised Code for a similar offense * * * if the board finds a pharmacist * * *:
{¶ 28} "* * *
{¶ 29} "(2) Guilty of dishonesty or unprofessional3 conduct in the practice of pharmacy;
{¶ 30} "* * *
{¶ 31} "(5) Guilty of willfully violating, conspiring to violate, attempting to violate, or aiding and abetting the violation of any of the provisions of this chapter, sections
{¶ 32} The penalties authorized by R.C.
{¶ 33} However, where the holder of the terminal distributor's license is a sole proprietorship, as the record suggests in this case, the question of whether the same legal entity can be administratively sanctioned twice for the same conduct arises. If appellant is a sole proprietorship, Petrilla is the actual legal holder of the terminal distributor's license; see Patterson v. V M Auto Body (1992),
{¶ 34} OSBP's possible imposition of two penalties upon Petrilla for the same conduct does not violate the Double Jeopardy Clause. It is well established that the Double Jeopardy Clause does not protect against the imposition of multiple civil or administrative penalties. Hudson v. United States (1997),
{¶ 35} Appellant's first assignment of error is overruled.
{¶ 36} In its second assignment of error, appellant asserts that the record contains no evidence to support OSBP's finding that it illegally processed drug documents or illegally distributed dangerous drugs. Specifically, appellant contends that even if it dispensed drugs pursuant to false 14-day prescriptions, the state failed to establish that it dispensed any drugs that were not actually authorized by valid written or telephone prescription. Appellant's argument evidences a fundamental misunder-standing of the nature of the violations that it has been found to have committed. *350
{¶ 37} As noted, OSBP found that appellant committed five counts each of illegal possession of drug documents and illegal distribution of dangerous drugs. R.C.
{¶ 38} R.C.
{¶ 39} "(C)(1) Except as provided in division (C)(4) of this section, no person shall sell, at retail, dangerous drugs.
{¶ 40} "* * *
{¶ 41} "(4) [Division] (C)(1) * * * of this section do[es] not apply to * * * a licensed terminal distributor of dangerous drugs [that] * * * sells, at retail, a dangerous drug in accordance with Chapters 3719., 4715., 4723., 4725., 4729., 4731., and 4741. of the Revised Code."
{¶ 42} R.C.
{¶ 43} Appellant's second assignment of error is overruled.
{¶ 44} Appellant's third, fourth, fifth and sixth assignments of error each challenge the fine imposed upon appellant and will be addressed together. *351
{¶ 45} Appellant first challenges the $25,000 fine on the grounds that Petrilla's unlawful conduct cannot serve as the basis for the imposition of a second penalty upon the holder of the terminal distributor's license. Appellant raised this same contention under its first assignment of error, and we reject it for the reasons set forth above.
{¶ 46} Appellant next contends that that the total fine imposed upon Petrilla as both a pharmacist and the holder of a terminal distributor's license exceeds the fine permitted by law. Because OSBP's order imposing a $42,500 fine upon Petrilla is not before this court, our discussion will be limited to the $25,000 fine imposed upon the holder of the terminal distributor's license.
{¶ 47} R.C.
{¶ 48} Appellant next argues that the fine imposed by OSBP is disproportionate, arbitrary and violative of the Eighth Amendment's prohibition of excessive fines. These claims are without merit. The $25,000 fine is neither excessive nor arbitrary as it is well within the statutory guidelines for fines for the violations that appellant has been found to have committed. Other than the general requirement that its fines be within the permissible statutory range, there is no requirement that OSBP impose equivalent fines for similar conduct in different cases. Finally, appellant's claim that the $25,000 fine is violative of the Eighth Amendment fails because it cannot be said that the fine is grossly disproportionate to appellant's misconduct. United States v. Bajakajian (1998),
{¶ 49} Appellant's third, fourth, fifth and sixth assignments of error are overruled. *352
{¶ 50} Appellant's six assignments of error having been overruled, the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
PETREE and BROWN, JJ., concur.