Shell v. Ohio Veterinary Medical Licensing Board

105 Ohio St. 3d 420
CourtOhio Supreme Court
DecidedJune 1, 2005
DocketNo. 2004-0253
StatusPublished
Cited by18 cases

This text of 105 Ohio St. 3d 420 (Shell v. Ohio Veterinary Medical Licensing Board) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shell v. Ohio Veterinary Medical Licensing Board, 105 Ohio St. 3d 420 (Ohio 2005).

Opinions

Alice Robie Resnick, J.

{¶ 1} This appeal requires us to construe R.C. 4741.26(A)’s provision that appellant, Ohio Veterinary Medical Licensing Board, must give five days’ written notice before inspecting a place of business connected with the practice of veterinary medicine. For the reasons that follow, we affirm the judgment of the court of appeals that the notice provision is applicable in this case.

{¶ 2} The board, through letters dated March 16,1999, notified appellees, Scott D. Shell, D.V.M., and Douglas Paroff, D.V.M., that they were charged with violations of Ohio statutes and administrative rules regarding their treatment of race horses with anabolic steroids. The letters stated that, after an investigation, the board had determined that the veterinarians had committed two separate violations: (1) administering anabolic steroids for nontherapeutic purposes and (2) failing to maintain appropriate medical records for the treated horses.

(¶ 3} The letters further informed the veterinarians of the opportunity to request a formal hearing to contest the charges. At their request, a hearing was held on five dates in January and April 2000. After taking testimony from witnesses and reviewing the evidence and arguments, the hearing examiner issued a detailed report and recommendation to the board, with extensive findings of fact and conclusions of law, on May 1, 2001.

{¶ 4} The hearing examiner recommended that the board dismiss the charges regarding administration of anabolic steroids, finding that those charges had not been proven. The hearing examiner concluded, however, that the board had [421]*421proven that the veterinarians violated the record-keeping requirements of the Ohio Administrative Code, finding that the records did not include all of the information required. The hearing examiner recommended that the veterinarians’ licenses be suspended for ten days, with the suspensions stayed, provided the veterinarians complete a one-year probationary period, with additional conditions.

{¶ 5} In an order dated July 20, 2001, the board fully adopted the hearing examiner’s findings of fact, conclusions of law, and recommended sanction. The veterinarians appealed the ruling, and the Geauga County Court of Common Pleas affirmed the board’s order.

{¶ 6} On appeal to the court of appeals, the veterinarians raised two assignments of error — the first, a due-process challenge asserting that it is unfair to apply the record-keeping rule to racetrack-horse veterinarians, and the second, an argument in part urging that the board’s order was void because an inspection had been conducted without prior notice in violation of R.C. 4741.26(A).

{¶ 7} The Eleventh District Court of Appeals unanimously reversed the trial court judgment on the veterinarians’ second assignment of error, concluding that R.C. 4741.26(A) requires that the board “give a licensed veterinarian five days notice before inspecting a place of business, even if the inspection is in conjunction with an investigation.” The court of appeals held that the first assignment of error was moot in light of its ruling on the second and remanded the cause to the trial court, instructing that court “to determine what effect the failure to give [the veterinarians] prior notice of the inspection had on the sustainability of the accusations for which [the veterinarians] were disciplined.”

{¶ 8} The cause is now before this court pursuant to our acceptance of the board’s discretionary appeal.

{¶ 9} The sole issue presented is whether R.C. 4741.26(A) requires the board to give five days’ written notice prior to conducting an inspection of a licensed veterinarian’s place of business when that inspection is part of an investigation. The board readily concedes that it did not give the veterinarians five days’ notice but contends that when, as here, an inspection is part of a surprise investigation, the terms of R.C. 4741.26(A) clearly allow the board to inspect without providing notice.

{¶ 10} R.C. 4741.26(A) provides:

{¶ 11} “The state veterinary medical licensing board shall enforce this chapter and for that purpose shall make investigations relative thereto. Except as provided in this division, in making any inspection pursuant to this chapter, the board may enter and inspect, upon written notice of not less than five days and during normal business hours, any licensee’s, permit holder’s, or registrant’s place of business. If the board has knowledge or notice, pursuant to a written [422]*422complaint or any other written knowledge or notice by any person as verified by the signature of that person, of a violation of section 4741.18, 4741.19, or 4741.23 of the Revised Code, it shall investigate and, upon probable cause appearing, shall direct the executive secretary to file a complaint and institute the prosecution of the offender. In conducting any investigation for a suspected violation of this chapter, the board or its authorized agent does not have to provide any prior written notice to the licensee, permit holder, or registrant as long as the board provides a written authorization for the investigation and the board or its authorized agent provides the licensee, permit holder, or registrant with a copy of the authorization at the time of the investigation.”

{¶ 12} The above statute clearly provides that prior to conducting an inspection, the board must provide five days’ written notice, subject to whatever exceptions appear later in the statute. Furthermore, the statute also clearly provides that when conducting an investigation, the board need not provide notice. The words “inspection” and “investigation” are not defined in R.C. Chapter 4741.

{¶ 13} In concluding that five days’ written notice is required even when an inspection is part of an investigation, the court of appeals stated:

{¶ 14} “R.C. 4741.26(A) clearly provides that ‘[e]xcept as provided in this division, in making any inspection pursuant to this chapter, the board may enter and inspect, upon urritten notice of not less than five days and during normal business hours, any licensee’s, permit holder’s, or registrant’s place of business.’ (Emphasis added.) The section of the statute relied upon by [the board] never mentions inspections; rather, it simply states that ‘[i]n conducting any investigation for a suspected violation of this chapter, the board or its authorized agent does not have to provide any prior written notice to the licensee, permit holder, or registrant as long as the board provides a written authorization for the investigation and the board or its authorized agent provides the licensee, permit holder, or registrant with a copy of the authorization at the time of the investigation.’ (Emphasis added.)

{¶ 15} “If this court were to interpret R.C. 4741.26 in the manner proposed by [the board], we would be adding language to the statute that does not exist. State ex rel. Purdy v. Clermont Cty. Bd. of Elections, 77 Ohio St.3d 338, 340, 1997-Ohio-278 [673 N.E.2d 1351]. This court also would be required to interpret the terms ‘inspection’ and ‘investigation’ as being interchangeable, which, even according to [the board], they clearly are not. Kimble v. Kimble, 97 Ohio St.3d 424, 2002-Ohio-6667 [780 N.E.2d 273] at ¶ 6 (holding that an undefined term in a statute ‘must be afforded its plain and ordinary meaning’).”

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Cite This Page — Counsel Stack

Bluebook (online)
105 Ohio St. 3d 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shell-v-ohio-veterinary-medical-licensing-board-ohio-2005.