499 N.E.2d 361 | Ohio Ct. App. | 1985
Persons who wish to be licensed as distributors of dangerous drugs must file appropriate applications with the Ohio State Board of Pharmacy ("board"). R.C.
"8. Has the applicant, or any agent or employee of the applicant, ever been charged or convicted of a violation of Section
"(If yes, explain in detail, listing names and addresses of the court dates such charges were filed, on a separate sheet.)"
Question 8 was promulgated in compliance with R.C.
"No license shall be issued to an applicant for licensure as a terminal distributor of dangerous drugs unless the applicant has furnished satisfactory proof to the board of pharmacy that:
"* * *
"(D) If the applicant, or any agent or employee of the applicant, has been found guilty of violating section
The board is charged with enforcement of R.C.
All of the Friendly Drugs pharmacists involved in the case at bar answered "no" to Question 8. In fact, however, two of those pharmacists — Ronald Greenbaum and Harvey Boardman — had pleaded guilty in 1967 to charges of violating R.C. Chapter 3719 ("controlled substances"). After a hearing on the matter, the board determined that the Friendly Drugs pharmacists had violated R.C.
The board's order was appealed to the court of common pleas pursuant to R.C.
The board was informed that Greenbaum's record of conviction had been sealed. Nevertheless, in reliance on R.C.
"In any application for employment, license, or other right or privilege, any appearance as a witness, or any other inquiry, except as provided in division (E) of section
The board's position was rejected by the court below, and the ruling of the board was reversed. The trial court based its decision on the following language from R.C.
"In any application for employment, license, or any other right or privilege, any appearance as a witness, or any other inquiry, a person may not be questioned with respect to any record that has been expunged * * *. If an inquiry is made in violation of this section, the person whose record was expunged may respond asif the expunged arrest did not occur and the person * * * shall not be subject to any adverse action because of the arrest or his response." (Emphasis added by the trial court.)
From that decision, the Ohio State Board of Pharmacy appeals the decision of the court of common pleas, and presents two assignments of error for review by this court.
The trial court based its decision on R.C.
"In any application for employment, license, or any other right or privilege, any appearance as a witness, or any other inquiry, a person may not be questioned with respect to any record that has been expunged pursuant to section *34
R.C.
The controlling law in the instant case is R.C.
Second, the trial court ruled that "the doctrine of laches is applicable here and prevents the Board from nonrenewal of a pharmacy license based upon a known, 15-year-old criminal conviction."
The issue in the case at bar is not whether the board can or should deny a pharmacy license based on a fifteen-year-old conviction; it is, rather, whether the board may make a statutorily authorized inquiry into the existence and specifics of that conviction, for legitimate and important reasons. The equitable doctrine of laches does not bar that inquiry.
In Smith v. Smith (1959),
"`(1) Conduct on the part of the defendant * * * giving rise to the situation of which complaint is made and for which the complainant seeks a remedy * * *; (2) delay in asserting the complainant's rights, the complainant having had knowledge or notice of defendant's conduct and having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant.'"
It is readily apparent that these elements are not present in the instant case. Furthermore, laches generally does not apply to bar a claim made by a governmental unit. State, ex rel. ChesterTwp. Bd. of Trustees, v. Makowski (1984),
Consequently, this court is persuaded that the doctrine of laches is not applicable in the case at bar.
Therefore, we find merit in appellant's first assignment of error. In reaching this conclusion, it is not the intent of this court to minimize the value or importance of the 1977 court order *35 sealing Ronald Greenbaum's record of conviction. Instead, we merely recognize that the privilege of "expungement" is not absolute. The records are not destroyed, nor is the fact of prior conviction itself eradicated. The statutory scheme provides that inquiry can be made into the prior expunged convictions for legitimate purposes as provided by statute. Such a legitimate purpose exists in the case at bar.
Since Boardman, unlike Greenbaum, had not yet had his record of conviction sealed at the time he completed his license renewal application, there is no question about the fact that Boardman violated R.C.
Accordingly, the judgment of the court of common pleas is reversed. The order of the State Board of Pharmacy, insofar as it is consistent with the above holdings, is approved and reinstated.
Judgment reversed.
PARRINO, C.J., and NAHRA, J., concur.
"(A) The board of pharmacy may suspend, revoke, or refuse to renew any license issued to a terminal distributor of dangerous drugs pursuant to section
"(1) Making any false material statements in an application for a license as a terminal distributor of dangerous drugs; * * *"