Sunday, November 19, 2006, 7:36 PM

A Victory For The Administrative State

On Nov. 17 the SCT ruled that the Board of Pharmacy did not exceed its statutory authority by adopting a rule regulating the working hours of pharmacists. The case is N.C. Board of Pharmacy v. Rules Review Comm'n, on which I wrote an earlier post (see Oct. 15 post below). The SCT reversed the COA and adopted the dissenting opinion by Judge Steelman.

The Board is the agency responsible for licensing pharmacists and enforcing the State's Pharmacy Practice Act. The rule in question regulates the number of hours a pharmacist may work in a day, on the theory that a tired or over-worked pharmacist is more prone to make filling errors (similar to the rule adopted by DOT with respect to commercial truck drivers).

In enacting the rule, the Board relied on its authorization to enforce the Pharmacy Practice Act, the purpose of which is to protect public health and safety in connection with the distribution of drugs, and on its authorization to adopt safety-based rules governing the filling of prescriptions. The COA, in a 2-1 decision, invalidated the rule on the ground that the General Assembly didn't specifically authorize the Board to regulate working hours. The COA majority concluded, for example, that the Board's rule limiting working hours "clearly does not concern the filling ... of prescriptions" (the statute authorizes the Board to regulate filling), even though the undisputed purpose of the rule is to reduce filling errors, and even though the majority didn't question the Board's empirical judgment that a limit on working hours would reduce filling errors.

The COA majority opinion could be read to suggest that an agency lacks authority to regulate an activity absent specific, spot-on authorization in an enabling statute regarding that activity (e.g., a statute specifically authorizing the Board to regulate working hours). Thus, the case raised important questions about the level of specificity required in enabling legislation before an agency lawfully may regulate. Had the SCT affirmed, it might've called into question the legality of a number of agency rules enacted on the basis of more general statutory authority.

But the SCT reversed. The SCT unanimously (6-0) adopted the dissenting opinion below, which concluded that the more general authorization in the enabling statute was sufficient to vest the Board with authority to regulate working hours.

The SCT also determined that it had improvidently granted discretionary review on the Board's constitutional challenge to the Rules Review Commission, which reviews proposed agency rules and blocks those rules it deems unauthorized by statute. (For the constitutional issues raised by that challenge, see my Oct. 15 post below.) Thus, the Rules Review Commission survives, at least for now.

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