Match Number: 8 of 70
Score: 23
ENTRY_DATE: 040997
APPELLANT: Senator Jerry T. Pierce
JURISDICTION: Attorney General of Oklahoma - Opinion
HEARING_DATE: March 23, 1983
TEXT_OF_RULE:
The Attorney General has received your request for an official opinion asking, in effect:
Are the provisions of Title 59 O.S. 353.7 and 59 O.S. 353.26 (1982), which authorize the Pharmacy Board to levy fines in certain cases, an unconstitutional delegation of authority?
In 1982, the Legislature amended the Pharmacy Act, thereby authorizing the Pharmacy Board to levy fines in certain cases. Title 59 O.S. 353.7 (1982), provides in pertinent part:
"The State Board of Pharmacy shall have the powers and duties:
"(k) To reprimand, place on probation any holder of a certificate, license or permit or suspend or revoke certificates, licenses or permits, or levy fines not to exceed Five Hundred Dollars ($500.00) for each count of which any holder of a certificate, license or permit has been convicted in hearings before the Board." (Emphasis added). ^ ^59 O.S. 353.26 , provides:
"The Board of Pharmacy is specifically granted the power
to levy fines not to exceed Five Hundred Dollars ($500.00) for each count of which any holder of a certificate, license or permit has been convicted in hearings before the Board; to reprimand or place on probation any holder of a certificate, license or permit or revoke or suspend any certificate, license or permit issued pursuant to Sections 353.1 et seq. of this title to any holder of such certificate, license or permit who:
"(a) violates any provisions of this act,
"(b) violates any of the provisions of 63 O.S. 2-101 et seq. of the Oklahoma Statutes or the Uniform Controlled Dangerous Substances Act,
"(c) has been convicted of a felony,
"(d) now habitually uses intoxicating liquors or habit-forming drugs,
"(e) conducts himself in a manner likely to lower public esteem for the profession of pharmacy,
"(f) has been legally adjudged to be not mentally competent, or
"(g) exercises conduct and habits inconsistent with the rules of professional conduct established by the Board.
"Said Board, upon a sworn complaint filed with its Secretary, and after giving at least ten (10) days' written notice by registered or certified mail of the filing of such complaint to the person accused therein of the date and place of a hearing thereon, to which notice shall be attached a statement of the charges contained in the complaint, is hereby authorized and empowered, if it finds that the allegations of the complaint are supported by the evidence rendered at the hearing to, by written order, revoke permanently or suspend for a designated period, the certificate, license or permit of the person charged in the complaint or reprimand or place on probation said person. The Board may, upon written application therefor and in the exercise of its official discretion, cancel said order. A person whose certificate, license or permit has been revoked or suspended or who has been reprimanded or placed on probation or fined may appeal to the district court of the county of the residence of said person at any time within thirty (30) days from the date of the Board's order, said appeal to be heard by the court. The decision of said court shall be final subject to review by the Supreme Court of Oklahoma; provided, the order of the Board may be stayed during appeal to either court." (Emphasis added).
Initially, it should be noted that all acts of the Legislature are presumed constitutional unless they are clearly in conflict with express constitutional requirements. E.g., Tate v. Logan, 362 P.2d 670 (Okl. 1961).
Prior to the amendment of 59 O.S. 353.7 and 59 O.S. 353.26 , authorizing the Board to levy fines, the only penalty statutorily permitted by the Board against a certificate, license or permit holder was the power to reprimand, suspend, revoke or place same on probation. With respect to those powers, it is well-established that statutory authority granted to administrative agencies to enact regulations and enforce same is not an unconstitutional delegation of legislative authority if the act prescribes policy of the Legislature and establishes standards or guidelines for the agency's guidance in enforcing the act.
The Oklahoma Supreme Court in Harris v. State, 251 P.2d 799, 802-3 (Okl. 1952), stated:
"It is of course true that the Legislature has no authority to delegate power to an administrative board to make laws, but it may delegate to such Board the authority to prescribe and enforce rules and regulations to carry into effect and to aid in the enforcement of existing laws. In Rush v. Brown, 187 Okl. 97, 101 P.2d 262, and other cases, we have held:
"'The power to determine the policy of the law is primarily legislative, and cannot be delegated, whereas the power to make rules of a subordinate character in order to carry out that policy and apply it to varying conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated.' "
See also, Democratic Party of Oklahoma v. Estep, 652 P.2d 271 (Okl. 1982); City of Sand Springs v. Department of Public Welfare, 608 P.2d 1139 (Okl. 1980); Continental Oil Co. v. Oklahoma State Board of Equalization, 570 P.2d 315 (Okl. 1977).
The authority to levy fines, added to the existing authority to reprimand, suspend, revoke or place on probation, is clearly another form of deterrent and/or penalty that the Board of Pharmacy may statutorily employ to protect the health, safety and welfare of the public.
In Rody v. Hollis, 500 P.2d 97 (Wash.1972), a case which challenged the constitutionality of delegation to the hearing tribunal of the power to determine the amount of fines for discrimination in real property transactions, the Supreme Court of Washington stated:
". . . This statute does not constitute an unconstitutional delegation of power to an administrative agency.
"It is the rule in this state that legislative power may not be delegated to an administrative agency without the prescription of reasonable standards. (Citations omitted). The legislature sic must provide standards or guidelines which define in general terms what is to be done and the instrumentality or administrative body which is to accomplish it.
"In the instant case the requisite standards can be gleaned directly and by implication from the legislative provisions themselves. The legislature sic has defined in general terms what is to be done; damages up to $1000 are to be awarded for discrimination in real property transactions. The legislature sic has indicated the ad ministrative body which is to do this -- a hearing tribunal established under RCW49.60.250."
In 1936, the Supreme Court of Utah in Tite v. State Tax Commission, 57 P.2d 734 (Utah 1936), took the position that the Legislature could not delegate to an administrative tribunal the authority to determine, in its discretion, the amount of penalty to be assessed for violating the law or regulations of the Commission. But the Court apparently changed its position in Wycoff Co. v. Public Service Commission. 369 P.2d 283 (Utah 1962), wherein the Court stated;
"There is no question but that in performing its multifarious duties in franchising and regulating public utilities the Commission is required to and does perform some functions of a judicial or quasi-judicial nature; nor that it is within the competence of the legislature sic to confer upon the Commission the power to do so and to enforce the law and its regulations made pursuant thereto by administrative procedures. It is well established that this includes the imposition of a monetary penalty for violation of law or lawful orders or regulations promulgated by the Commission within the scope of its administrative responsibility."
Federal administrative agencies have long had the authority to enact regulations and fix civil monetary penalties for their violations. Rody v. Hollis, supra. See also 1 Delegation and Subdelegation: Administrative Law Treatise, Kenneth Culp Davis (2d Ed. 1971).
Clearly, the nature of pharmaceutical sales and the practices of pharmacy has a direct and serious impact on the health and safety of the public. Because of this impact, the Legislature, pursuant to its police power, may enact such legislation to protect the citizens of Oklahoma as long as such legislation does not run afoul of express constitutional provisions.
It is, therefore, the official opinion of the Attorney General that the authority granted to the State Board of Pharmacy to levy fines, pursuant to Title 59 O.S. 353.7 and 59 O.S. 353.26 (1982), is a constitutional delegation of authority.
( PATRICIA REDD DEMPS ) (ksg)
Score: 23
The Attorney General has received your request for an official opinion asking, in effect:
Are the provisions of Title 59 O.S. 353.7 and 59 O.S. 353.26 (1982), which authorize the Pharmacy Board to levy fines in certain cases, an unconstitutional delegation of authority?
In 1982, the Legislature amended the Pharmacy Act, thereby authorizing the Pharmacy Board to levy fines in certain cases. Title 59 O.S. 353.7 (1982), provides in pertinent part:
"The State Board of Pharmacy shall have the powers and duties:
"(k) To reprimand, place on probation any holder of a certificate, license or permit or suspend or revoke certificates, licenses or permits, or levy fines not to exceed Five Hundred Dollars ($500.00) for each count of which any holder of a certificate, license or permit has been convicted in hearings before the Board." (Emphasis added). ^ ^59 O.S. 353.26 , provides:
"The Board of Pharmacy is specifically granted the power
to levy fines not to exceed Five Hundred Dollars ($500.00) for each count of which any holder of a certificate, license or permit has been convicted in hearings before the Board; to reprimand or place on probation any holder of a certificate, license or permit or revoke or suspend any certificate, license or permit issued pursuant to Sections 353.1 et seq. of this title to any holder of such certificate, license or permit who:"(a) violates any provisions of this act,
"(b) violates any of the provisions of 63 O.S. 2-101 et seq. of the Oklahoma Statutes or the Uniform Controlled Dangerous Substances Act,
"(c) has been convicted of a felony,
"(d) now habitually uses intoxicating liquors or habit-forming drugs,
"(e) conducts himself in a manner likely to lower public esteem for the profession of pharmacy,
"(f) has been legally adjudged to be not mentally competent, or
"(g) exercises conduct and habits inconsistent with the rules of professional conduct established by the Board.
"Said Board, upon a sworn complaint filed with its Secretary, and after giving at least ten (10) days' written notice by registered or certified mail of the filing of such complaint to the person accused therein of the date and place of a hearing thereon, to which notice shall be attached a statement of the charges contained in the complaint, is hereby authorized and empowered, if it finds that the allegations of the complaint are supported by the evidence rendered at the hearing to, by written order, revoke permanently or suspend for a designated period, the certificate, license or permit of the person charged in the complaint or reprimand or place on probation said person. The Board may, upon written application therefor and in the exercise of its official discretion, cancel said order. A person whose certificate, license or permit has been revoked or suspended or who has been reprimanded or placed on probation or fined may appeal to the district court of the county of the residence of said person at any time within thirty (30) days from the date of the Board's order, said appeal to be heard by the court. The decision of said court shall be final subject to review by the Supreme Court of Oklahoma; provided, the order of the Board may be stayed during appeal to either court." (Emphasis added).
Initially, it should be noted that all acts of the Legislature are presumed constitutional unless they are clearly in conflict with express constitutional requirements. E.g., Tate v. Logan, 362 P.2d 670 (Okl. 1961).
Prior to the amendment of 59 O.S. 353.7 and 59 O.S. 353.26 , authorizing the Board to levy fines, the only penalty statutorily permitted by the Board against a certificate, license or permit holder was the power
to reprimand, suspend, revoke or place same on probation. With respect to those powers, it is well-established that statutory authority granted to administrative agencies to enact regulations and enforce same is not an unconstitutional delegation of legislative authority if the act prescribes policy of the Legislature and establishes standards or guidelines for the agency's guidance in enforcing the act.The Oklahoma Supreme Court in Harris v. State, 251 P.2d 799, 802-3 (Okl. 1952), stated:
"It is of course true that the Legislature has no authority to delegate power
to an administrative board to make laws, but it may delegate to such Board the authority to prescribe and enforce rules and regulations to carry into effect and to aid in the enforcement of existing laws. In Rush v. Brown, 187 Okl. 97, 101 P.2d 262, and other cases, we have held:"'The power
to determine the policy of the law is primarily legislative, and cannot be delegated, whereas the power to make rules of a subordinate character in order to carry out that policy and apply it to varying conditions, although partaking of a legislative character, is in its dominant aspect administrative and can be delegated.' "See also, Democratic Party of Oklahoma v. Estep, 652 P.2d 271 (Okl. 1982); City of Sand Springs v. Department of Public Welfare, 608 P.2d 1139 (Okl. 1980); Continental Oil Co. v. Oklahoma State Board of Equalization, 570 P.2d 315 (Okl. 1977).
The authority to levy fines, added to the existing authority to reprimand, suspend, revoke or place on probation, is clearly another form of deterrent and/or penalty that the Board of Pharmacy may statutorily employ to protect the health, safety and welfare of the public.
In Rody v. Hollis, 500 P.2d 97 (Wash.1972), a case which challenged the constitutionality of delegation to the hearing tribunal of the power
to determine the amount of fines for discrimination in real property transactions, the Supreme Court of Washington stated:". . . This statute does not constitute an unconstitutional delegation of power
to an administrative agency."It is the rule in this state that legislative power
may not be delegated to an administrative agency without the prescription of reasonable standards. (Citations omitted). The legislature sic must provide standards or guidelines which define in general terms what is to be done and the instrumentality or administrative body which is to accomplish it."In the instant case the requisite standards can be gleaned directly and by implication from the legislative provisions themselves. The legislature sic has defined in general terms what is to be done; damages up to $1000 are to be awarded for discrimination in real property transactions. The legislature sic has indicated the ad ministrative body which is to do this -- a hearing tribunal established under RCW49.60.250."
In 1936, the Supreme Court of Utah in Tite v. State Tax Commission, 57 P.2d 734 (Utah 1936), took the position that the Legislature could not delegate to an administrative tribunal the authority to determine, in its discretion, the amount of penalty to be assessed for violating the law or regulations of the Commission. But the Court apparently changed its position in Wycoff Co. v. Public Service Commission. 369 P.2d 283 (Utah 1962), wherein the Court stated;
"There is no question but that in performing its multifarious duties in franchising and regulating public utilities the Commission is required to and does perform some functions of a judicial or quasi-judicial nature; nor that it is within the competence of the legislature sic to confer upon the Commission the power to do so and to enforce the law and its regulations made pursuant thereto by administrative procedures. It is well established that this includes the imposition of a monetary penalty for violation of law or lawful orders or regulations promulgated by the Commission within the scope of its administrative responsibility."
Federal administrative agencies
have long had the authority to enact regulations and fix civil monetary penalties for their violations. Rody v. Hollis, supra. See also 1 Delegation and Subdelegation: Administrative Law Treatise, Kenneth Culp Davis (2d Ed. 1971).Clearly, the nature of pharmaceutical sales
and the practices of pharmacy has a direct and serious impact on the health and safety of the public. Because of this impact, the Legislature, pursuant to its police power, may enact such legislation to protect the citizens of Oklahoma as long as such legislation does not run afoul of express constitutional provisions.It is, therefore, the official opinion of the Attorney General that the authority granted to the State Board of Pharmacy to levy fines, pursuant to Title 59 O.S. 353.7 and 59 O.S. 353.26 (1982), is a constitutional delegation of authority.
( PATRICIA REDD DEMPS ) (ksg)
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