Being unable to concur in the majority's disposition of the first assignment of error and in its interpretation of R.C.4734.07, I must respectfully dissent.
By a somewhat strained interpretation of the pertinent statutory language, the majority has created a nonexistent ambiguity in the language of the section and has resolved it in part by inaccurately construing the rules adopted by the State Board of Chiropractic Examiners implementing the statutory educational requirement.
The pertinent provision of former R.C. 4734.07 read as follows:
"* * * Before a renewal of license is issued by the board, each licensee shall furnish the board with satisfactory evidence that he has attended not less than one two-day educational program conducted in Ohio by the Ohio state chiropractic association or the *Page 80 equivalent of such educational program held in the state as approved by the * * * board. * * *"
By its strained interpretation, the majority has concluded that the words "held in the state" modify the word "equivalent," rather than utilizing the plain meaning of the statutory provision and applying the grammatical rule of the last antecedent, making it clear that the words "held in the state" modify the word "program."
The effect of the majority decision is to give no effect whatsoever to the words "of such," and in effect to remove them from the statute so that it would read "the equivalent educational program held in the state." The legislature, however, for whatever reason, determined to include the words "of such" in the statute, and the inclusion of such words modifies the meaning of the provision so as not to require that an equivalent program be conducted in the state of Ohio but, instead, to require only that an educational program be "the equivalent of such educational program held in the state." Clearly, the word "such" refers back to the statutorily required "two-day educational program conducted in Ohio by the Ohio state chiropractic association." Thus, the plain meaning of the statute is that an educational program to be approved must be the equivalent of the two-day educational program conducted in Ohio by the Ohio State Chiropractic Association.
In reaching its strained interpretation, the majority states that, by Ohio Adm. Code 4734-1-14(A), the board has interpreted the equivalency language to refer only to educational programs conducted in Ohio. Not only is this an incorrect interpretation of Ohio Adm. Code 4734-1-14(A), but the board, by Ohio Adm. Code4734-1-14(B) and (I), has recognized that the educational program need not necessarily be conducted in Ohio to meet the equivalency requirement. Ohio Adm. Code 4734-1-14(A) provides that:
"Educational seminars conducted in Ohio for the purposes of meeting the annual license renewal educational requirements must have prior approval of the Ohio state board of chiropractic examiners (`board'). * * *"
There is nothing in this section indicating that equivalent seminars must be conducted in Ohio. Instead, that provision of the rule refers only to seminars which are conducted in Ohio without limitation or reference to those not conducted in Ohio. The next provision of the section, however, does recognize the conducting of educational programs outside Ohio by the provisions of Ohio Adm. Code 4734-1-14(B) that:
"Chiropractic license renewal seminars shall be conducted by, or under the auspices of, a school or college of chiropractic whose graduates are approved by the board for examination for licensure in this state. Seminar instructors shall be faculty members of the sponsoring college or diplomates approved by said college qualified to teach in the subject in which they are instructing. * * *"
Presumably, the board approval of graduates is not limited to a school or college of chiropractic located in Ohio, and graduates of schools or colleges outside Ohio are approved by the board for examination for licensure in this state. Thus, by this rule, the board has recognized that seminars may be conducted outside Ohio, so long as they are conducted by or under the auspices of a school or college of chiropractic, whose graduates are approved by the board for examination for licensure in this state. Such provision cannot apply to the statutorily mandated seminar in Ohio since the statute expressly provides that that seminar will be "conducted in Ohio by the Ohio state chiropractic association," not by a school or college of chiropractic whose graduates are *Page 81 approved by the board for examination for licensure in this state.
Ohio Adm. Code 4734-1-14(C) and (D) pertain to the content of a seminar and the application for approval. However, Ohio Adm. Code4734-1-14(E) provides that:
"The approval of a seminar by the `Council on Chiropractic Education' shall be considered prima facie evidence that the seminar satisfies the standards for seminar approval set forth in this rule but shall not be considered conclusive."
Ohio Adm. Code 4734-1-14(F) permits approval of seminars in other health science fields but, again, makes no limitation to the place where the seminar is conducted and specifically does not require that the seminar be conducted in Ohio.
By Ohio Adm. Code 4734-1-14(I), the board expressly recognizes that approved educational seminars may be conducted outside Ohio by providing that:
"Ohio licensees residing out of the state of Ohio may satisfy license renewal requirements in the above manner or by attendingout-of-state educational seminars approved by this board, or by presenting to the board a certificate from the board of examiners of the state wherein they reside that they have met the twelve-hour educational requirements." (Emphasis added.)
By this rule, the board has expressly recognized that it will approve out-of-state educational seminars. The majority apparently construes the words "out-of-state educational seminars approved by this board" as referring only to seminars attended by licensees residing outside the state of Ohio, stating: "Out-of-state residents are given what is in essence a group hardship exemption from attending an Ohio program." However, the provision does not limit the out-of-state seminars attended by out-of-state licensees to seminars conducted in their home state, rather than Ohio, but permits them to attend out-of-state seminars anywhere if they be approved by the board. Thus, a licensee residing in Indiana could attend a board-approved educational seminar in California, rather than one in Ohio, but, under the majority's interpretation, an Ohio resident could not. This would hardly constitute a hardship exemption for the licensee residing outside this state.
Instead, the majority's construction of the reference to the rule language "out-of-state educational seminars approved by this board" would give credence to the fourth assignment of error that Ohio licensees are being denied equal protection rights, as opposed to licensees residing out of Ohio. Under such interpretation, a licensee residing in Ohio would be required to attend an educational seminar conducted in Ohio, while a licensee residing in another state would be permitted to attend an educational seminar held anywhere so long as the seminar was approved by the board.
Additionally, even assuming that the majority interpretation be correct, the board should not have disapproved the seminar but, instead, should have considered approval thereof only with respect to attendance by licensees residing outside Ohio.
Furthermore, the record reflects that the State Board of Chiropractic Examiners in its adjudication order, which is the subject of his appeal, did not even consider the equivalency provision of R.C. 4734.07 or the effect of its own rules. Rather, the conclusion of law portion of the adjudication order states in its entirety:
"The request for approval of a license renewal seminar to be conducted in South America for meeting the educational requirements for those licensees practicing in Ohio is not in compliance with the provisions of Section 4734.07 of the Revised Code. Section 4734.07 of the Revised Code states in part: `* * * *Page 82 Before a renewal of license is issued by the Board, each licensee shall furnish the Board with satisfactory evidence that he has attended not less than one two-day educational program conducted in Ohio * * *.'"
Thus, the board neither considered nor administratively construed the meaning of the additional words "or the equivalent of such educational program held in the state as approved by the board." Instead, the board relied solely upon the first portion of the statutory requirement referring to a "two-day educational program conducted in Ohio," without even recognizing the additional qualifying language "by the Ohio state chiropractic association," much less considering or administratively construing the provision for approving equivalent programs. In short, the board has made no administrative determination that an equivalent educational program must be held in this state either by the adjudication order or by its rules. Rather, the board completely ignored the statutory provision for approval of equivalent programs.
Accordingly, I conclude that the statutory language "the equivalent of such educational program held in the state" does not limit the board's approval to educational programs held in this state but, rather, permits an educational program to be held anywhere, so long as it is the equivalent of the two-day educational program conducted in Ohio by the Ohio State Chiropractic Association and is approved by the State Chiropractic Examining Board. The rules adopted by the board recognize this to be the case but do indicate that such an educational program must be conducted by or under the auspices of a school or college of chiropractic whose graduates are accepted for licensure in Ohio. Since the board failed to consider the language of R.C. 4734.07 pertaining to equivalent educational programs and since the plain meaning of R.C. 4734.07 does not require such equivalent educational programs to be conducted in Ohio, the trial court erred in so construing R.C. 4734.07.
Additionally, as noted above, such construction would be unfair to licensees residing in Ohio since, by express provision of the board rules, as interpreted by the majority, licensees residing outside Ohio are permitted to attend educational seminars approved by the board regardless of where the seminar is conducted.
Accordingly, I would sustain the first assignment of error but would overrule the second, third and fourth assignments of error since the proper interpretation of R.C. 4734.07 does not result in any violation of constitutional rights as contended.
Accordingly, I would sustain the first assignment of error, overrule the remaining assignments of error, reverse the judgment of the court of common pleas and remand this cause to the court with instructions to reverse the adjudication order of the State Board of Chiropractic Examiners and remand the matter to that board for determination of whether the educational seminar otherwise meets the statutory and rule requirements.