[Cite as State ex rel. Carlson v. State Bd. of Pharmacy, 2018-Ohio-3102.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

STATE OF OHIO EX REL. 

RAYMOND R. CARLSON, R.PH., 

Relator, 

v. 

THE STATE OF OHIO BOARD 

OF PHARMACY, 

Respondent.

 

OPINION AND JUDGMENT ENTRY 

Case No. 18 MA 0006

 

Petition for Peremptory Writ of Mandamus or 

Alternative Writ of Mandamus 

BEFORE: 

Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges. 

JUDGMENT: 

Petition is Dismissed. 

State of Ohio ex rel. Raymond R. Carlson, R.Ph., pro se, 2375 South High Street. 17th

Floor Columbus, Ohio 43215 for Relator and 

Atty. Yvonne Tertel, Principle Assistant Attorney General, Ohio Attorney General’s 

Office, Health and Human Services Section, 30 East Broad Street, 26th floor, Columbus, 

Ohio 43215., for Respondent and 
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Case No. 18 MA 0006

Brandon Bourgeois R.PH, pro se, 9401Mentor Avenue, PMB 121 Mentor, Ohio 44060, 

for Amicus Curiae 

 

Dated: July 31, 2018 

 

PER CURIAM. 

{¶1} Relator Raymond R. Carlson, R.Ph., has filed a petition for a peremptory 

writ of mandamus, or in the alternative a writ of mandamus, to require Respondent The 

State of Ohio Board of Pharmacy to enforce R.C. 4729.25 which governs Respondent’s 

enforcement and investigation obligations. Respondent has filed a motion to dismiss 

arguing Petitioner lacks standing and mandamus cannot be used to control how it 

exercises its discretionary, administrative authority. 

{¶2} Relator is a licensed pharmacist who owns and operates his own 

pharmacy. He is also the founder of the Eastern Ohio Pharmacists Association 

(EOPA). The organization is comprised of pharmacists from Mahoning, Trumbull, 

Columbiana, Geauga, Lake, and Ashtabula counties. According to Relator, he founded 

the organization after he received an insurance contract from a Prescription Benefit 

Manager at his pharmacy containing a clause which prohibited him to “say anything 

negative” about the patient, physician, insurance company, or anyone associated with 

the care of the patient. He contends he and other pharmacists view this clause as 

impeding the lawful duty to challenge the legitimacy of a prescription. He also argues 

workplace conditions in pharmacies are such that pharmacists are unable to practice 

pharmacy in compliance with R.C. 4729.25 and its administrative regulations. 

{¶3} Respondent “is the single State agency in Ohio responsible for 

administering and enforcing laws governing the practice of pharmacy and the legal 

distribution of drugs.” State of Ohio Board of Pharmacy, About, 

https://pharmacy.ohio.gov/About/General.aspx (accessed May 8, 2018). Its mission 

statement is “The State of Ohio Board of Pharmacy shall act efficiently, consistently, 

and impartially in the public interest to pursue optimal standards of practice through 

communication, education, legislation, licensing, and enforcement.” Id. Respondent 

must enforce all laws relating to pharmacists and dangerous drugs and may adopt rules 
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Case No. 18 MA 0006

and regulations as necessary to enforce the laws as to the practice of pharmacy: R.C. 

4729.25. If it has information that any provisions regarding pharmacists and dangerous 

drugs have been violated, then it will investigate the matter and take such action as it 

considers appropriate. R.C. 4729.25(A). The rules pertinent to the practice of pharmacy 

are found in Ohio Adm.Code 4729-5 et seq. 

 Standing 

{¶4} Before an Ohio court can consider a legal claim for merit, the party 

seeking relief must have standing to sue. Moore v. Middletown, 133 Ohio St. 3d 55, 975 

N.E.2d 977, ¶ 21, citing Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, 964 

N.E.2d 414 (citations omitted). Here, Relator specifically claims that he invokes 

standing pursuant to the public rights exception. The public rights exception states, 

generally, that “when the issues sought to be litigated are of great importance and 

interest to the public, they may be resolved in a form of action that involves no rights or 

obligations peculiar to named parties.” State ex rel. Ohio Academy of Trial Lawyers v. 

Sheward, 86 Ohio St.3d 451, 471, 715 N.E.2d 1062 (1999). A court only entertains the 

public rights exception in rare and extraordinary cases. Sheward, 86 Ohio St. 3d at 504. 

{¶5} Here, Relator fails to purport facts extraordinary enough to warrant use of 

the public rights exception. The public rights exception is to be used with extreme 

caution, because it places the court at risk of issuing advisory opinions. State ex rel. 

Food & Water Watch v. State, 2018-Ohio-555, 2018 WL 915358, ¶ 29. In addition, the 

Ohio Supreme Court recently observed that it has not granted a public rights exception 

in fifteen years. Id. at ¶ 31 (“Sheward essentially allows this court to engage in policymaking by ruling on the legislation of the General Assembly in cases that lack an injured 

party, i.e., a party that can establish traditional standing. Thus, any authority provided 

by Sheward is, at best, questionable.”). Further, Shewerd was already a narrow 

holding, and only granted the exception because the challenged statute operated 

“directly and broadly, to divest the courts of judicial power.” Sheward, 86 Ohio St. 3d at 

504. 

{¶6} While the opioid epidemic as portrayed by Relator is certainly a very 

important issue, and the effects and harms related to it are wide-reaching and 

encumbering, the alleged missteps supposedly made by The State of Ohio Board of 
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Case No. 18 MA 0006

Pharmacy in the use of its discretion do not rise to a level of a public harm that would be 

comparable to Sheward. Therefore, Relator does not have standing to bring the 

present suit. 

Standard of Review 

{¶7} Even assuming Relator had standing, he could not sustain his claim. In 

the case of a petition for an emergency/peremptory writ of mandamus, an appellate 

court’s review of such a petition is very narrowly prescribed by law. An appellate court 

can issue a peremptory writ of mandamus only “if the pertinent facts are uncontroverted 

and it appears beyond doubt that [the relator] is entitled to the requested writ.” State ex 

rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952, 816 N.E.2d 213, ¶ 8. 

In addition, it is the duty of every court to enter judgements which can be carried into 

effect. State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 824 N.E.2d 

990, ¶ 27, quoting Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). 

{¶8} Regarding a petition for a writ of mandamus generally, such a writ is an 

extraordinary remedy which should be exercised by this court with caution and issued 

only when the right is clear. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 142 

Ohio St.3d 370, 2014-Ohio-4022, 31 N.E.3d 596, ¶ 11. In order to be entitled to a writ 

of mandamus a relator must establish (1) a clear legal right to the requested relief, (2) a 

clear legal duty on the part of the respondent to provide such relief, and (3) the lack of 

an adequate remedy in the ordinary course of law. State ex rel. Zimmerman v. 

Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996). The burden is on the relator 

to establish the elements to obtain the writ. State ex rel. Dehler v. Sutula, 74 Ohio St.3d 

33, 34, 656 N.E.2d 332 (1995). 

 State Board’s Discretionary, Administrative Authority 

{¶9} Relator alleges that work conditions at pharmacies are such that 

pharmacists are unable to comply with the rules established by Respondent in Ohio 

Adm.Code 4729-5 et seq. In particular, Relator cites to Ohio Adm.Code 4729-5-18 

(Patient profiles), Ohio Adm.Code 4729-5-20 (Prospective drug utilization review), Ohio 

Adm.Code 4729-5-21 (Manner of processing prescription), and Ohio Adm.Code 4729-5-

22 (Patient counseling). 
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Case No. 18 MA 0006

{¶10} “The responsibility for the proper prescribing is upon the prescriber, but a 

corresponding responsibility rests with the pharmacist who dispenses the prescription.” 

Ohio Adm.Code 4729-5-21(A). A pharmacist is required to ensure patient information is 

profiled, perform a prospective drug utilization review, and ensure the patient is given an 

offer to counsel. Ohio Adm.Code 4729-5-21(B)(1),(2),(4). Information a pharmacist 

should make reasonable efforts to include in a patient’s profile includes: “The 

pharmacist’s comments relevant to the individual patient’s drug therapy, including any 

other necessary information unique to the specific patient or drug[.]” Ohio Adm.Code 

4729-5-18(A)(1)(f). 

{¶11} A pharmacist is required to review a patient’s profile for over-utilization, 

therapeutic duplication, drug-disease state contraindications; abuse/misuse; and 

inappropriate duration of drug treatment. Ohio Adm.Code 4729-5-20(A)(1),(2),(3),(7),(8). 

“The responsibility for the proper prescribing is upon the prescriber, but a corresponding 

responsibility rests with the pharmacist who dispenses the prescription. Based upon 

information obtained during a prospective drug utilization review, a pharmacist shall use 

professional judgment when making a determination about the legitimacy of a 

prescription.” Ohio Adm.Code 4729-5-20(G). 

{¶12} On its face, Relator’s petition does not present a sustainable claim in 

mandamus. Relator alleges generally that Respondent is failing to investigate and 

enforce its rules; he does not cite to any specific instance. The Ohio Supreme Court 

has instructed that mandamus cannot be used to compel the observance of laws 

generally. State ex rel. Tillimon v. Weiher, 65 Ohio St.3d 468, 1992-Ohio-83, 605 

N.E.2d 35 (1992). Rather, it is “confined to commanding the performance of specific 

acts specially enjoined by law to be performed.” State ex rel. Stanley v. Cook, 146 Ohio 

St. 348, 375-376, 66 N.E.2d 207 (1946). 

{¶13} Furthermore, mandamus cannot compel a public entity to act in a certain 

way on a discretionary matter. State ex rel. Husted v. Brunner, 123 Ohio St.3d 119, 

2009-Ohio-4805, 914 N.E.2d 397, ¶ 20 (2009). In other words, while the extraordinary 

remedy of mandamus may be available to compel a public entity to perform a duty 

specifically enjoined by law (i.e., exercise their discretion concerning a mandated duty), 
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it does not permit the courts to control that public entity’s discretion. City of Cleveland ex 

rel. Neelon v. Locher, 25 Ohio St.2d 49, 51, 266 N.E.2d 831 (1971). 

{¶14} Additionally, Relator wants this court to impose duties upon The State of 

Ohio Board of Pharmacy to control the behavior of private entities. There is no 

indication that the relief Relator seeks against the board would result in the change of 

behavior by unnamed private entities. As previously stated, this court can only enter 

writs which are capable of going into effect. 

{¶15} Accordingly, a review of Relator’s petition reflects that he seeks to compel 

Respondent’s observance of laws generally, which is not available in mandamus. To 

the extent Relator takes issue with how Respondent exercises its discretion, as 

indicated above, mandamus does not permit courts to control how a public entity 

exercises its discretion. Upon a thorough review and careful consideration of Relator’s 

petition, we can only conclude the pertinent facts are not uncontroverted and it does not 

appear beyond doubt that Relator is entitled to the requested writ. 

{¶16} Brandon P. Bourgeois, proceeding on his own behalf, has filed a motion to 

file a brief of amicus curiae instanter urging a grant of the writ. The motion is denied for 

the same reasons set forth above. 

{¶17} Accordingly, the petition is dismissed. Final order. Costs taxed against 

Relator. 

 

Robb, P.J., concurs. 

Donofrio, J., concurs. 

Waite, J., concurs.