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2012 Op. W. Va. Att'y Gen. 1 (2012)

handle is hein.sag/sagwv0055 and id is 1 raw text is: STATE OF WEST VIRGINIA 2N OFFICE OF THE ATTORNEY GENERAL 102 DARRELL V McGRAW, JR. CHARLESTON 25305 30 4UZ, )34. 558-2021 ATTORNEY GENERAL Ff 304) 5580140 June 7, 2012 David E. Potters, Esq. Executive Director & General Counsel West Virginia Board of Pharmacy 106 Capitol Street, Suite 100 Charleston, WV 2530 1 Dear Mr. Potters: This is in response to your letter of May 9, 2012, requesting an Attorney General's Opinion with respect to a petition for a declaratory ruling that has been filed with the Board of Pharmacy (hereinafter the Board). In said Petition, a copy of which you have provided to our office, Petitioners Wailgreen Co. and the Kroger Co. seek a declaration from the Board pursuant to W. Va. Code § 29A-4-1, as to the interpretation, validity, and constitutionality of certain aspects of the West Virginia Pharmacy Act, W. Va. Code § 30-5-12b. THE QUESTION The issue presented in your request is whether the Board has the authority to entertain and issue the declaratory ruling sought by the Petitioners as to the proper interpretation, validity, and constitutionality of certain aspects of the Pharmacy Act. ANALYSIS Fundamental principles of constitutional and administrative law dictate the conclusion that the Board does not have the authority to issue the ruling sought by the Petitioners. As is the case with all administrative agencies and boards in West Virginia, which are within the Executive Branch, the power of the Board is limited by the agency's enabling statute and the West Virginia Administrative Procedures Act. Simply stated, the Board cannot act outside the scope of the authority delegated to it by the Legislative Branch, and cannot usurp the constitutional duties of the Judicial Branch. Accordingly, the Board lacks the legal power to issue the declaratory ruling sought by the Petition. In the case under consideration, the Petitioners request that the Board issue a ruling holding that, inter alia, W. Va. Code § 30-5-12b is void for vagueness, preempted by federal law, void under the doctrine of desuetude, and/or prospective only in effect. Any of these rulings would lie outside

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