# State v. Penn > Ohio Supreme Court · September 11, 1991 · 61 Ohio St. 3d 720 URL: https://www.frixlaw.com/law-library/cases/6763652 ## Case - **Full name:** The State of Ohio v. Penn - **Court:** Ohio Supreme Court - **Decided:** September 11, 1991 - **Citations:** 61 Ohio St. 3d 720; 576 N.E.2d 790; 1991 Ohio LEXIS 2126 - **Precedential status:** Published - **Opinion:** Concurrence by Resnick - **Judges:** Brown, Douglas, Holmes, Moyer, Resnick, Sweeney, Wright - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6763652 ## How later opinions describe it (automated extraction) - discussing a terminated employee's versus a current employee's authority to provide consent to search his place of employment ## Opinion text Alice Robie Resnick, J., concurring. I concur with the majority, but on very narrow grounds. Specifically, I concur because the initial entry into the building which housed the pharmacy was unlawful. The pharmacist, Carl *728 Longociu, had terminated his employment with the defendant before the entry. As such, Longociu lacked the authority to provide the consent required to permit a warrantless entry into the building. Had the Town Pharmacy been open for business, it would have been subject to inspection pursuant to the laws of Ohio. Likewise, had the Town Pharmacy employed a new pharmacist at the time of the search, that pharmacist would have been under a duty to make the records and stock available for inspection by agents of the State Board of Pharmacy and other specified officers. But these are not the facts before this court. The Town Pharmacy was closed for business, and the building housing the defendant’s pharmacy was locked. The registered pharmacist, Longociu, had terminated his employment on April 6th. The state asserts that three sections of the Revised Code provide for the warrantless inspection of defendant’s pharmacy: R.C. 3719.13, 3719.27, and 4729.37. On the facts of this case, none of these statutes permitted the entry by the agent of the State Board of Pharmacy or police into the pharmacy in question solely on the authority or consent of its former pharmacist Longociu. Initially, it should be noted that under R.C. 3719.09, Penn could lawfully possess the stock of drugs contained in his pharmacy. R.C. 3719.09 provides in part: “Possession or control of controlled substances is authorized in the following instances: “(A) Possession of controlled substances in the course of business by a manufacturer, wholesaler, practitioner, pharmacist, owner of a pharmacy, or other person authorized to administer, dispense, or possess controlled substances under Chapter 3719. or 4729. of the Revised Code[.]” (Emphasis added.) The state contends that R.C. 3719.13 provides a right of inspection both by agents of the State Board of Pharmacy and by police officers. This section provides as follows: “Prescriptions, orders, and records, required by Chapter 3719. of the Revised Code, and stocks of dangerous drugs and controlled substances, shall be open for inspection only to federal, state, county, and municipal officers, and employees of the state board of pharmacy whose duty it is to enforce the laws of this state or of the United States relating to controlled substances. * * * ” (Emphasis added.) The statute is aimed at protecting the confidentiality of persons who are taking prescription drugs or controlled substances. The last sentence of R.C. 3719.13 solidifies this conclusion by stating that “[n]o person having knowl *729 edge of any such prescription, order, or record shall divulge such knowledge,” except in certain specified situations not applicable here. Thus, R.C. 3719.13 is actually a limitation on access to records of prescription drugs, and specifies who may otherwise lawfully gain such access. The agents of the State Board of Pharmacy and other officers may gain access but the procedures of other statutes must be followed. The state next contends that R.C. 3719.27 grants the State Board of Pharmacy the authority to conduct regulatory inspections, and therefore the entry and search of defendant’s stock and records were lawful. R.C. 3719.27 reads as follows: “Persons required, by Chapter 3719. of the Revised Code, to keep files or records shall, upon the written request of an officer or employee designated by the state board of pharmacy, make such files and records available to such officer or employee, at all reasonable hours, for inspection and copying, and accord to such officer or employee full opportunity to check the correctness of such files or records, including opportunity to make inventory of all stocks of controlled substances on hand. No person shall fail to make such files or records available or to accord such opportunity to check their correctness.” Longociu, as the pharmacist, was a person required by R.C. Chapter 3719 to keep the files and records of the Town Pharmacy. A question is raised as to whether his voluntary termination relieved him of that duty to keep such records, and thus whether he was required to make such files and records available for inspection. Moreover, R.C. 3719.27 requires the availability of records for inspection only upon a written request to inspect, and only at “all reasonable hours.” Two additional issues are thus raised: (1) whether the written request was served upon the proper person, and (2) whether the request was for inspection at a reasonable hour. In this case, the request was made of a former employee who had terminated his position as pharmacist, and the inspection was conducted while the store was closed and no longer open for business. On these facts, and being cognizant that under R.C. 3719.09 Penn was authorized to lawfully possess the stock of controlled substances and records located at his store, it would appear that the conditions of R.C. 3719.27 were not met. Even assuming Longociu remained the responsible person for keeping such records, the State Board of Pharmacy could not require him to unlock the building housing the pharmacy and gain entry to the pharmacy in this manner. Pursuant to R.C. 3719.27, it would appear that the proper person to grant entry would be only the owner of the store or one authorized to permit entry. *730 The state also contends that R.C. 4729.37 permitted the State Board of Pharmacy to inspect defendant’s pharmacy. In relevant part this statute requires that “ * * * [a]ll prescriptions shall be preserved on file at the pharmacy for a period of three years, subject to inspection by the proper officers of the law.” While R.C. 4729.37 does allude to an inspection of prescription records by proper authorities, it is not applicable to the present case. This reference to inspections is merely to preserve the right of authorized persons to inspect such records, and cannot be read to be a grant of authority to enter a building which housed a business outside the regulatory scope of the State Board of Pharmacy. The drug industry, because of its very nature and the ease with which abuses may occur, must be highly regulated. Inspection is a necessary and important part of the regulation. However, the case before us is a unique situation. Longociu, after terminating his employment and in view of the fact that the Town Pharmacy was closed, no longer had any authority to consent to the entry into the store. Appellee had authority to possess these controlled substances. After Longociu terminated his employment, and because the pharmacy was no longer open for business, appellee was the proper person upon whom to serve a written request for inspection. For these reasons I concur in the affirmance of the appellate decision. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6763652. Public record. Not legal advice.