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Olsen v. Iowa Board of Pharmacy

Court of Appeals of Iowa

August 2, 2017

CARL OLSEN, Plaintiff-Appellant,
v.
IOWA BOARD OF PHARMACY, Defendant-Appellee.

         Appeal from the Iowa District Court for Polk County, Bradley McCall, Judge.

         Carl Olsen appeals from the district court's order on judicial review affirming the Iowa Board of Pharmacy's ruling denying his request to recommend the legislature reclassify marijuana from a Schedule I controlled substance to another scheduled substance. AFFIRMED.

          Carl Olsen, Des Moines, pro se appellant.

          Thomas J. Miller, Attorney General, and Meghan L. Gavin (until withdrawal), and Laura A. Steffensmeier, Assistant Attorneys General, for appellee.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          VAITHESWARAN, PRESIDING JUDGE.

         In 2014, Carl Olsen filed one of several petitions with the Iowa Board of Pharmacy, seeking a recommendation to have the legislature reclassify marijuana from a Schedule I controlled substance to another scheduled substance. See Iowa Code §§ 124.204 (2014) (Schedule I substances), .206 (Schedule II substances), .208 (Schedule III substances), .210 (Schedule IV substances), .212 (Schedule V substances); State v. Bonjour, 694 N.W.2d 511, 512 (Iowa 2005) (stating Iowa Code chapter 124 "restricts the use of controlled substances and divides them into five schedules"). The Board denied the petition. Olsen sought reconsideration, which the Board also denied.

         Olsen petitioned for judicial review. The district court denied the petition, and this appeal followed.

         Chapter 124 gives the Board authority to "administer the regulatory provisions of this chapter." Iowa Code § 124.201(1). "Annually, . . . the board shall recommend to the general assembly any deletions from, or revisions in the schedules of substances, enumerated in section 124.204, . . . which it deems necessary or advisable." Id. (emphasis added). This provision vests the Board with discretion to interpret the schedules. Accordingly, we will reverse the Board's legal interpretation only if it is "irrational, illogical, or wholly unjustifiable." Id. § 17A.19(10)(l); Olsen v. Iowa Bd. of Pharmacy, No. 14-2164, 2016 WL 2745845, at *2 (Iowa Ct. App. May 11, 2016).

         The criteria for listing substances in Schedule I are as follows:

1. The board shall recommend to the general assembly that the general assembly place a substance in schedule I if the substance is not already included therein and the board finds that the substance:
a. Has high potential for abuse; and
b. Has no accepted medical use in treatment in the United States; or lacks accepted safety for use in treatment under medical supervision.
2. If the board finds that any substance included in schedule I does not meet these criteria, the board shall recommend that the general assembly place the substance in a different schedule or remove the substance from ...

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