The opinion
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Hendrickson, J.,
concurring in part and dissenting in part. Appellant’s second assignment of error should be sustained as Smith, when engaged in his illegal venture outside the scope of his employment, was not a “wholesale distributor of dangerous drugs” as defined in R.C. 4729.02(0). Furthermore, Poppe, who acknowledged that Smith offered substantial discounts and demanded payment in cash when dressed in warehouse clothing, was, or should have been on notice, that Smith was not working for Tri-State Pharmaceuticals at that time. After all, Smith was not a stranger to Poppe and the difference in appearance together with the difference in terms when on an unauthorized venture should have been obvious. Thus, when Poppe took advantage of these good deals, he was in violation of R.C. 4729.51(D). A reading of the record indicates that Poppe had reason to be suspicious of Smith, but that he did nothing until a customer received the wrong drug.
8
Consequently, I would reverse that portion of the decision of the court of common pleas which is the subject of the second assignment of error as there is reliable, probative and substantial evidence to support the decision of the appellant-board.
Furthermore, appellant’s first assignment of error should be sustained in part since appellant’s third finding is supported by reliable, probative and substantial evidence. However, I agree with the majority that appellant’s third assignment must be overruled and that there is no merit to the remainder of the first assignment of error. Also, I agree with the majority as to the disposition of the cross-appeal.
8
This statement was made at p. 89 of the transcript in response to cross-examination. Later, on direct examination following a ten-minute recess, Poppe indicated that after purchasing items for cash he called the employer, asked for Smith and was informed that Smith was on the road selling. However, Poppe never expressed any concern to the wholesaler. He said instead that after learning that Smith was out selling, he “tried to find every reason not to believe my suspicions.” Nevertheless, a reading of the record convinces me that Poppe’s response on cross-examination is true,
i.e.,
that he did nothing until notified of an injury to a customer.