TABLE OF CONTENTS PAGE I. APPLICATION OF R.C. CHAPTER 119 ............................................................................................. 1 A. Governmental Entities Subject to R.C. Chapter 119 .............................................................. 1 B. Entities that Constitute an “Agency” .......................................................................................1 C. Chapter 119 Applies to Adjudications, Not Ministerial Acts .................................................. 3 II. RIGHT TO HEARING .......................................................................................................................... 5 A. Except as Provided in R.C. 119.06, No Adjudication Order is Valid Unless an Opportunity for Hearing is Afforded in Accordance with R.C. Chapter 119 .......................... 5 B. R.C. 119.06 Specifically Enumerates Certain Cases Where a Hearing Must be Afforded Upon Request ............................................................................................................ 5 C. Orders Effective Without a Hearing .........................................................................................6 D. Suspensions Without A Prior Hearing ("Summary Suspensions") ......................................... 6 III. NOTICE REQUIREMENTS ................................................................................................................. 8 A. Mandatory Requirement .......................................................................................................... 8 B. Content of Notice...................................................................................................................... 8 C. Due Process .............................................................................................................................. 9 D. Annotations ............................................................................................................................ 11 E. Service of Notice.................................................................................................................... 11 F. Failure to Give Proper Notice ................................................................................................ 13 G. Practical Considerations ....................................................................................................... 13 H. Computing Time Pursuant to R.C. 1.14 ................................................................................ 14 IV. HEARING REQUESTS ..................................................................................................................... 14 A. Method of Requesting a Hearing.......................................................................................... 14 B. Timing of Request.................................................................................................................. 14 C. Effect of Failure to Timely Request a Hearing within Thirty (30) Days ............................... 15

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V. SCHEDULING OF THE HEARING.................................................................................................... 16 A. Initial Scheduling ................................................................................................................... 16 B. Continuances ......................................................................................................................... 16 VI. OBTAINING EVIDENCE AND SECURING WITNESSES FOR HEARING ........................................ 18 A. R.C. Chapter 119 does not provide for discovery under Civil or Criminal Rules of Procedure............................................................................................................................... 18 B. Depositions ............................................................................................................................ 18 C. Subpoenas for Purposes of a Hearing. ................................................................................ 19 D. Investigative Subpoenas ....................................................................................................... 22 E. Respondents May Obtain Certain Agency Records through the Ohio Public Records Act ........................................................................................................................................... 23 F. Protected Information ........................................................................................................... 28 VII. THE CONDUCT OF HEARINGS ...................................................................................................... 32 A. Nature of Proceeding ............................................................................................................ 32 B. Legal Representation ............................................................................................................ 33 C. Burden of Proof ..................................................................................................................... 35 D. Standard of Proof Required .................................................................................................. 36 E. Standards for Consideration of Evidence ............................................................................ 36 F. Hearing Procedure................................................................................................................. 38 G. Introduction of Evidence ....................................................................................................... 39 H. Motions in Limine .................................................................................................................. 41 I. J. Examination of Witnesses..................................................................................................... 41 Documentary Evidence; Practical Considerations............................................................... 42

K. Can A Case Be Dismissed Prior to Hearing? ........................................................................ 43 L. Addressing Constitutional Issues ......................................................................................... 44 M. Hearing Examiner .................................................................................................................. 46

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.................................................................. 53 E.................. Other Parties .......... J............................................... 71 I....... 119......................... J....................................................... Suspension (Stay) of Agency’s Order on Appeal. 55 H...........12) ................................ AGENCY ACTION ................................................................................................................... 53 F................................ 61 A......... 75 Exhaustion of Administrative Remedies Doctrine ............................................ 58 Service of the Order ............ Certification of the Record .......................................................................... 59 IX............................................................................................................ Effect of Orders – Claim/Issue Preclusion.. 63 D.......................................... 61 B.................................. Time for Filing the Notice of Appeal .............................................. Agency Review of the Report and Recommendation of the Hearing Examiner .. Content and Issuance of the Order ............... Appeal from the Common Pleas Court to the Court of Appeals .........C.... APPEALS (R..................................... Disciplinary Actions ..................... Record on Appeal/Submission of Additional Evidence .......................... Who May Appeal ..................................... 64 E......... 70 H................................................................. Hearings Held Before the Agency ................................................ 53 C.......................................... 77 K............ 54 G...................................... Where to File .................. 66 F........................ 62 C.. Applicability of Civil Rules to Administrative Appeals ..................... 52 B.................. Notice of Appeal .............. Role of the Common Pleas Court on Administrative Appeal.............................................................................................................VIII.................................................................................................. 84 iii .................................. 53 D................................................................................. Failure to Hold Hearing Prior to Expiration of License/Surrender of License................................ Remand to Hearing Examiner .......................... 58 K.................................................................................................................................. Personal Appearances Before the Agency ................................................................ 56 I............... Consideration of the Record ...................... Taking of Additional Evidence............................................................................................ 66 G.......... 52 A................................................................................................................................... 81 L...........................

.............. Chapter 119 contains two attorney fee provisions ... Recovery of Attorney Fees by Party Prevailing at Hearing ..........................X........................................................ 86 A....... Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order .................. 86 B...... 91 iv ......C............................. ATTORNEY FEES ......... 86 C....................... R...................................................

.... Ohio Liquor Control Comm.................................................. 275............. 111 Ohio App............................ Inc..... v.. Jackson.......... 164 Ohio St..... 85 Adamson v....... 77 Amon v.....................15................ 83 Angerman v........................... No.......... No............. 10th Dist....... (10th Dist.. 03AP-732..... 32 Angerman v.......... 10th Dist......................... of Ins. Perfection Corp....................... Franklin C............... 2006-Ohio-1304 ......... 20 A-1 Nat'l Agency Group LLC No............. 03AP-266.. No...................... 1167).. 1990)............ Bd..... 6th Dist........ LEXIS 9961..................................................... 1987).. Bd............. of Liquor Control........... 2006-Ohio-502 .. 4th Dist.... No................................................. 2004-Ohio-5261 ............. of Psychology.. Bd........................ of Edn... 39 Ohio App................ 10th Dist............................... 11 Arbor Health Care Co................... 1989)....P. 77 Alcover v... 1996)..................... Lucas Cty............ 03AP-926.... 3d 346 ..... 62 Al-Sadeq Islamic Educational Ctr.............. State of Ohio Bd. 2004-Ohio-4041 ......... Inc...... (10th Dist...... 78 Andrews v..O..................... 70 Ohio App.............. Ohio State Med......... v.......... 8th Dist............... 01AP-786........................ 54292......... Ohio Liquor Control Comm.......... 3d 287 ....TABLE OF AUTHORITIES CASES PAGE(S) 1800 Riverhouse.................... 2003-Ohio-7251 ..................... Corp............................................... Bd.............. 11.............. (6th Dist...................... 65 American Legion Post 0046 Bellevue v.................... 15 Anderson v...... Smith Corp............................ 89CV-01-64 and 88CV12-8615 (July 3........... Ctr......... 51 Akron City School Dist.......... 10th Dist.............................. Bd.... 15-04-01.... Rights Comm... 67 Ohio App.............. v......... 14.. 3d 795 .... No..... 85 A... Parents of Students Attending Edge Academy of Akron & Ida B.. No.............. Bd. 1987 Ohio App..... 72 Aircraft Baking Sys...... No. (In re A-1 Nat’l Agency Group LLC No...... No... 04CA16..... Wells Community School........ v...................................... L-03-1089. Ohio State Med...... 03AP-354.. 2003-Ohio-7031 ....... (10th Dist............................. 2002-Ohio-1318 .. State Med... 1990). No..... 80 Altoff v.... Nos......... Bd.......................... 10th Dist........ Interface Elec. 2004-Ohio-3553 ... 45 v ........ Dept. v....................... 3d 183 ... 2004-Ohio-3831 ............... 22841.. Educational Serv............... State Med............ 1167 v....... Ohio State Med....... (1955)......... Ohio Civ................................. No.................... 9th Dist................ 3rd Dist............... v..

. 66 Asad v....... 2000). 72 Ohio Law Abs. of Health............. 3d 153 ................ 2000).. 85 Ohio St.................. Ohio Dept.................. 73 Bd.............. LEXIS 744 . 10th Dist....................................... v......................... 145 Ohio App................. 4 Ohio App... Div.................................... (1986).... Bd..... 1992 Ohio App.................. 3d 156.............. 78 Bailey v. (4th Dist.............. 74 vi ..................... Rossford. Improvement Dist........................... 81 Babcock v... 8......................... 66 Barlow v........ Shupe.................................... Serv............ 3d 155 . of Ohio........ 24 Ohio St....... of Commerce........................................ 2 AT&T Communs...... 43 Avery v.... Scott........... Peth........... (10th Dist......... 72............... 2....... 74...................... No.... (10th Dist............. of Admin. 74 Barnes v..................... 2010-Ohio-3842 ........ 3d 754 ................... 96 Ohio App.......... (10th Dist.. 1955 Ohio App................................ Ohio State Dental Bd... 09AP-1050................ 91AP-1235... 75 Arndt v..... 76AP-423... State Med....of Edn................... (1988).... (6th Dist. 10th Dist................................ No... Bd...... 4.. 24 Bayside Nursing Ctr....... 2012-Ohio-1975 ..... of Edn............................................. 70 Ohio App... State Bd........... 3d 488 .. No.......... 44 Bd.................... Ohio State Dept... 2d 48 ....... of Real Estate Examiners v.... 2d 413 ..... 33 Bd.. 114 Ohio Misc...... (2nd Dist............... 5 Bd........... of Transp... v.....Arlow v.. Ohio Rehab.......... of Admin........................... 63 Barton v...... Ohio Dept................. Dept........ 132 Ohio St.................... 10th Dist... 3d 92................................... 1976 Ohio App....... LEXIS 2533.. 1990)........ Serv........ (2000).............. LEXIS 8150 ............................ 3 Bergdahl v................... Lynch........ (Franklin C............... 3d 184 ............... 83 Asphalt Specialist Inc..... of Trustees of Ohio State Univ................... of Ohio........................ Ohio Dept..... 53 Ohio App................... Inc.... 24 Ohio St........................... 81 Aust v......P............... 1988).......... of Revision................ Ohio State Bd... 46 Ohio App... 68 Ohio St....... 189.................................... of Real Estate and Professional Licensing.. 2d 149 .................................. (1981).......... v....... 2d 34 .. 3d 45 ...... 136 Ohio App.... 1975). Ohio Transp......... 1964)................ 3d 677.................... 2001)................. of South-Western City Schools v................ (10th Dist. (1986).......... v.................... 1999-Ohio-449 ..... Comm... (1955)................ Kinney.. Bureau of Motor Vehicles.......... of Worthington v. Serv.......................................................... of Edn............ 3d 308 .................... of Psychology............................... 1994).................. 37 Ohio St....................

............. 65 Brockmeyer v.............. 74 Ohio St......... 71 Buckeye Bar....................... 2001).. v............... 1996-Ohio-282 ........ 84....................... 3d 150 ....... 56 Brown v........ 3d 113 ......... Ohio Real Estate Comm..... Cuyahoga Cty................................. 1998 Ohio App...................... State Dept.................................. (10th Dist......... 11AP-837... of Emp................. 3d 704 ................. 32 Ohio App......... 426........... 2007) ...... No........ No.............. (1994). of Commerce.................. Ohio Dept.. Serv.......... 1993 Ohio App........ Bd. No..... 72 Brown v.. Ohio Real Estate Comm... Serv....................... of Commerce..... 10................ 5 Buchler v.... (1929).................................... of Scioto Cty..................................... Ohio Dept................. 62 Board of Edn... 35. Ohio Veterinary Med....... 1990 Ohio App........ 56 Blue Cross of Northeast Ohio v.).....................Berning v.. No.............. 83.. 36 Buckeye Quality Care Centers v....... Licensing Bd.......................... 37 Bob Krihwan Pontiac-GMC Truck............ Inc........................... 1996)......... 29 Ohio App.................. 2d 89 ........ 10th Dist....... 85 Brown v......................................................... 110 Ohio App................ (10th Dist... 2009-Ohio-6325 ...... Ohio Bur........... Liquor Control Comm...... 141 Ohio App...................... 1996).......................... of Motor Vehicles..... 2d 161 ....... LEXIS 532 . 3d 96.... 3d 777... 85 Blackburn Sec...................................................... 71 Boyle v.................. Inc.......... 1984)...................... (10th Dist...................................................... (10th Dist....... LEXIS 2665..... 45 Bucyrus v........ Dept.......... No............ for Orange City School Dist........ v............................................... 3d 77 .................... 2012-Ohio-2991 .. 04AP-619 and 04AP-620.... 3d 20 ..... 1988)....... 20......... 87 Ohio App....................... Ohio Bur. Ohio Bur... 89AP-1186..... 70 Ohio St........ 1972)..... LEXIS 3470.............................. (8th Dist................... 3d 415................... v.... 39 vii . (10th Dist. 1993)..... 21 Ohio App.............. Fletcher......... 07CVF07-9225 (Aug.. of Transp................. 80 Blinn v.................................. of Emp. of Commerce........... (10th Dist.......... 13660....... 2005-Ohio-1533 ... Ratchford........ 68 Boggs v.......... 18510.. 120 Ohio St... of Health................ 77 Bingham v. 48 Ohio App..... (10th Dist........... 5 Ohio App... 1985). No. 2nd Dist. 10th Dist............... Inc............................... v......... Cty.............. of Revision...................... 186 Ohio App........................ Bd.. Ohio State Med.............. 10th Dist.................. Commrs... 83..... v.... 3d 1 ...P....... 94 BP Exploration & Oil.. 9th Dist.................. General Motors Corp............. Inc........ Franklin C........... Ohio Dept.... (4th Dist.......

................................. No................................................. O’Connor........... (10th Dist.. (10th Dist... 121 Ohio App........ 252................ 13 City of Toledo v...... 2005-Ohio-5575 ...... Inc.......... Mahoning Cty........ LEXIS 5639 ................. 1998 Ohio App. 3d 45 ................................................ 32 Carratola v.... Ohio State Liquor Control Comm.......... 00 CA 264............. 113 Ohio App................... Inc.................. 2007-Ohio-3210 ................ (Franklin C....... 87 Casey v.................. Baycliffs Corp.... v....... of Registration for Professional Engineers & Surveyors....... No....... 2009-Ohio-1103 . 08AP-794.................................................. 1974)............... LEXIS 2020. (9th Dist....... 54 Checker Realty Co............ of Human Serv...................... Kirresh.............. 1992 Ohio App.......................... No.............. v.... 3d 76............................. Pub... 3d 874 ..... Jena............ Ohio State Chiropractic Bd..... 2002-Ohio-606 ... 82 Ohio St.... Dept.............. (9th Dist....... Ohio State Dental Board....E... LEXIS 4755........... 1997).... 164 Ohio App............... 18 Chapman v...................... (10th Dist................ 79 Clark v.... V..... Universal Disposal.............. Caltrider.................................... State Bd.... 3d 589......... 1998-Ohio-414 ...... 121 Ohio App.................... 10th Dist........................... 62337. Haddix.................D.. 1977).............D.................. 80 Carl Zeiss Stiftung v................... 40 F............. 163 Ohio St... 10th Dist.). Carl Zeiss.. Co.................... 37 Chiero v... 15 Citizens to Protect Environment......... 33 Ohio App...... 1986).. 28.............................. 1966)............. Ohio Real Estate Comm.... 06AP-1055. 9th Dist................... 7th Dist................ 55 Ohio Misc... 9951................ 8th Dist. Ohio State Dental Bd...Burneson v... 3d 39 ....... (10th Dist.... 36 Chirila v...... 3d 324 .................. Jaber...............R........................ 77 Clagg v............... (6th Dist........ 18658..... v.............. 3d 278 ... No..................................................... (1955).. 1988)................C................. Bur...P.............................. 1997)..... 2d 37 ........B. No. 56 Ohio App.. 2nd Dist... 2001)........................................ 3d 277.................. 76 viii .......... Util....... 37 City of Dayton v......................... 19 Café Napoli Partnership v.............. (2nd Dist............. 41 Ohio App... Comm..... No..................... 318.............. 1996).. 69 City of Lakewood v................................................... 84 Camrack v......................... 21 Carruthers v..... Ohio State Racing Comm..... 22 ...................................... 145 Ohio App....................................... 71 Chesapeake & Ohio Ry..................................... of Motor Vehicles............. 1987 Ohio App.................................. (D..............

.......... 79 Cooper v............... 02AP-1019.. No.............. 02-BA-22.. Sliker............... 2010)................... 74 Ohio App.............. of Liquor Control by Stover v.. 3d 229 .... (10th Dist.......................... 55 Crumpler v............ 45 Cleveland v........................... of Workers’ Compensation... 1991)............. Nos................. Lucas Cty............... 1986)........ 1999)..... 36 Clermont Natl....... City of Springfield.... 35....... BMV.............. v...... (10th Dist...... Commrs..... 10CVF-3027 (Aug.. Limbach.. 8 CVS/Pharmacy #3131 v...... Inc......... 2d 97 .... of Job & Family Servs.. 10th Dist.................. 44............ 61 Covell v.............P.............................. S..................................................... 13 Consolidated Land Co......... Ohio Liquor Control Comm. Ohio Real Estate Commission. v.. EBR132753 and EBR132768 (June 10.. Bd... CA99-09-108........D....Clermont Co......... Broadview Developmental Ctr. 71 Ohio App. 8th Dist........ v..................... 10th Dist No... No.. 3. Nos................... No........... (10th Dist.. 2d 91 .... 50 Ohio St.. 7th Dist........... Capstone Holding Co....... of Pharmacy. C-3-96-010.................... 35 Ohio St. No..... 77...................................... LEXIS 22065 (Mar.... 9 ............................... 2nd Dist..... 76 D-1 Liquor Permit Filed with the Ohio Dept. Franklin C............ LEXIS 2268 .............. 2000 Ohio App....................... No.................. (1988)......... 160 Ohio St................ (1953).. State Bd..................... 6th Dist.. of Rev............. 12th Dist.. 27 Ohio App..... 59 Corn v................... LEXIS 8285......................... Edwards................. Bd of Liquor Control.............. 2002-Ohio-7378 . Bank v. (10th Dist........ 1985 Ohio App...... 2003-Ohio-3806 ........................... 1993) ..... 62 Cleveland Gear Co.. 1998 Ohio App............. 3d 526 ....... 3d 99 ........ Dept................................ 1991)........................................... Ohio State Bd........... 66 Columbus v................................................. Ohio Environmental Bd.. of Edn.................. LEXIS 2964............ 2003-Ohio-3121 ....S..... 3d 74 ................................... 16895............. (1977). 70 ix ............. 1999 U..... Dist............................... 47 Collyer v..... 2012-Ohio-3506 .................................. 8........ 83 Cunningham v... 82215........................ Ohio No..... CA99-07-082... 77.. L-11-1177.............. 85 Crow v.. 84AP-1085. No.... Auditor v............. of Cty............ 24........ 78.... Schregardus...... 1970)..... Budget Comm............................. Administrator of Ohio Bur....................... 30 Ohio App.. 79 Crawford-Cole v.......... 62 Colonial.....................

...... Relations Bd...................... 92CVF11-9231 (Mar..... Inc......... 37 Doyle v........................ 651 ... 2007-Ohio-5802 .P.. State Emp...... 2d 263 ....Dayton Supply & Tool Company. of Admin.......... 54 Ohio St.... 7...... Ohio Bureau of Motor Vehicles............. 2001 Ohio App......... 43 Driscoll v.... 2012-Ohio-2218 .................P... 1999CA00055...... Jordan. 45...................... LEXIS 2030 ............................... No... Franklin C...................... Trustees of Etna Twp.................. 58 Ohio St..... 78. Ball................ 3d 495 ................... 111 Ohio St... 389 N....... 43 Douglas v......... 05AP-1079....... 79 Duchon v........ LTD v.................... No............... 2006-Ohio-2171 ..... 10th Dist.... 1995).................... No................... 62 Derakhshan v..........E. of Ohio..................... 5th Dist.......O....... 12 O........... LEXIS 3536 ..................................... 81 Dickson v............. v................... 3d 48 .................................. Div..... 66 Discount Fireworks........ 3d 131 ............ 07AP-261......................... of Twp.................... Bd........ 81 Deaconess Hosp..... 78 Edelman v.................................. v......... City of Euclid.............. of Reclamation............ 76 Dolce v...... 87 Diversified Benefit Plans Agency v... 7 Dressler Coal Co... No.... (1986).................... 64 Dworning v. (1990)... Stetz....... 415 U....................... 3d 46 .................. 2006-Ohio-5852 .......... Montgomery County Board of Revisions................................ Austintown Assoc........... Bd........................... 3d 367.... No............... State Bd...... 10................... of Job & Family Services................ 2008-Ohio-3318 ...................... Miami C..............S....... v.................................... 23 Ohio St.. Ohio Dept......................................Ohio-95 .............. Bd........ 1999 Ohio App................ 10th Dist.............................................v...... Duryee.............. 07-564 (July 30..... 67 Doriott v..................... 80.......... 10th Dist.............. State Med................... Lorain Metropolitan Housing Authority. Ohio State Dental Bd..... 42 Ohio St.................. 64... 119 Ohio St.......................2d 202............................. 04AP-748.......... 33 DBM Enterprises.. (1979)...... 11AP-259...... 101 Ohio App......... Inc......... 11AP-133.. 00-CA-99... 66 Dept...........2d 1113.......... Ohio Liquor Control Comm.................3d 198......... v................ State Med......... 65 Dudukovich v........ 10th Dist............ (1990)....... 51 Ohio St............ 2006-Ohio-3436 .... No........ No................... (1974)................. 5th Dist....................... No.... of Chiropractic Examiners....... 10th Dist...... Serv............. 3d 83...................................................................... (1975)................. of Ohio................. (9th Dist. 46 x ........... 2007)... 2012.......... 1993) .............. No......

............ of Commerce. v................................. Stores........ 60 Fehrman v.................. Inc..... 18........ (1992).. Ohio Board of Nursing............ 9 Felder v................. 67 Fields v.... LEXIS 6530.......... Ohio State Med.... 44 Ohio App.......... 96CVF05-3566 (June 5........ 3d 146 ................ School Employees Retirement Sys........P...D.. (10th Dist.. Bureau of Motor Vehicles......... v........ M.......................... Summit Cty....... 1992)..Erdeljohn v......................................................... Fletcher..........S..... Hosp... No........ (1988)................ 1 Fairview Gen............. 46 Ohio App......... 2d 77.............. of Securities...................... (1981)............ 12 Flair Corp................................ (3rd Dist.P. No......................................... Franklin C............ Ohio State Med........ 1982)..... 38 Erie Care Center... 2d 115 ................ 2010-Ohio-4731. 1996)... 86 Fair v.. 3 Ohio App......... 5 Ohio App....P............................ 3d 503.. (1st Dist..... 13 Foreman v....... v.. Casey....... (10th Dist... 78 Ohio App................... Ohio State Med. 3d 397............................. 1975)......................... Ct......... 1992)........ 63 Froug v..................... Brecksville......... 63 Ohio St................................. Larach........................................................ 2001 Ohio App.............. 3d 68..................... No.. 43 Fink v...... 3d 102... of Pharmacy... 49 Ohio App.. 1975)........ Franklin C........... No...... 84 Fattah v.. 2d 423 ........... v............. 1987)......... (9th Dist..... 131 . Ohio State Bd. Moitie..... Div..... 10th Dist.......... 00AP-523... Inc.... Lucas Cty..... Ohio Dept................ 68 Federated Dept..... Ackerman.................................... (8th Dist..... 2d 1 ....... Bd.......... 67 Estate of Kirby v............................. 1992) ...................... LEXIS 305 .......................................................... 1965)........... 141 Ohio App.... 2001).. 92CVF05-4202 (July 15..................... 189 Ohio App.......................... 1994) ........ 487 U.................................. 98AP-1403....... 46 Fernando C..................................... 1999 Ohio App.......................... 452 U.... (5th Dist...................... of Common Pleas..... No.......... v........ 78 Farrao v... Executive Branch........... 49 Fogt v.............. Franklin C. 3d 678..P...... 51 Essig v........... Bd............ Juvenile Div.................... 38 Ohio Misc............................ 83 Ohio App. Court of Common Pleas... Ohio State Racing Comm..................................................................................................... 1976)................. 394 .........S.............................. 2d 120 ........ 19 xi .............. 94CVF10-7097 (Nov......... 10th Dist...................... Bd......... 2...... Hamilton Cty................... Ohio State Liquor Control Comm.............. (6th Dist......... (Hamilton C......................

...................... 3d 392 .... of Edn......... 98AP-238............. 66 Ohio App...... 10th Dist.. (7th Dist.......................................Ft.................... Bd.. 3d 465............. 15 Goldman v. 71 Gibney v............................................................................ No......... Ohio Dept.......... 69 Gipe v................................... Bd.. 365..................... Bd... 161 Ohio App.... 2007-Ohio-3328 ... (10th Dist............ 45..... (8th Dist. 40 Ohio St.... 94 Giovanetti v....................... 2003-Ohio-4061 ............ 103 ...........P....................... of Job & Family Servs... 3d 139 ............... 78 Genoa Banking Co....... 493 U................... Frye Teachers Assn......... 46...................... Ohio St. 2005-Ohio-2856 ........ Toledo Bd..................................... 172 Ohio App................ (1998)... 03AP-871............ State Med... 3d 381 ..... City of Sandusky........... Ohio Veterinary Med...... 81 Ohio St.... 2004-Ohio-2168 .... No......... 3-02-04...... 3d 152 ................ 3d 262 ......... 63 Ohio App.............. 2d 106 ........ 10th Dist..... 133 Ohio App......................... No........ Bd.......... 90 Glassco v......................... 1998 Ohio App..... 68 Ohio St............... (1988).............................. 71 Giovanetti v.............. 59100.................... No................................. Ohio State Dental Bd....... (11th Dist.... (1st Dist. v..... (1994)..... Ohio State Dental Board............................................................................ 1990).. 9........................................ 46 Goldman v.. Ohio State Med............................. v........ 2 Geroc v.. 3d 124..... State Med....... 2007) ...... LEXIS 5350........ State Med... 70....... 1991)............................................S... 60 G & D...................... 1991 Ohio App.................. 75 Geroc v....... 18 Gladieux v.. 14....... (1989)...........................).. Ohio Veterinary Med........... (10th Dist............. 110 Ohio App............................................................ No...... 79 Gill v..... 10th Dist............. v. Bd............. Ohio State Liquor Control Comm.. 3d 551........... 8th Dist..... Relations Bd...................)...... 07-CVF-09-11839 (Sept....... (1981)... 3rd Dist....... Franklin C................. 67 Gilmore v............................ State Med............ 1987)........... Bd.......................... OEA/NEA v.............. of Ohio....... of Ohio.... 41 Gelesh v......... 37 Ohio App....... State Emp................ (10th Dist........ Bd...... 15 xii ... No.. 1996)......... Ohio State Dental Board. 02AP-1315..................... 1999)........... Inc....... Med.. 67 Ohio St... 85 Golden State Transit Corp........................................... 61 Garrett v.............. LEXIS 4918 ........................... 66.................... Mills... 3d 192 ............. Bd........... 2002-Ohio-4407 .................. City of Los Angeles.........

.............. Western Reserve Psychiatric Habilitation Center.... 3d 289 . 32 Ohio St........ Bd...................................... No.................................. 2003-Ohio-3816 . 3d 507 .. 17... 2 Ohio St.. 11AP-174.................. 38 Halleen Chevrolet v........ 2003-Ohio-2203 ..... 66...................... 79 Grybosky v...................................................................... 3d 218...................... Ohio State Dental Bd... 3d 147 .................................... Invacare Corp........................... 6th Dist......... 1995)............... LEXIS 1622 .................. No........... McDonough Power Equip.... L-00-1098............. (2nd Dist...... 14............... 9th Dist..... 01AP-1217... Ohio Civ....... Ohio State Racing Commission...... 3d 193 .......... Ohio State Bd....... 38 Green v........................... Amherst Village Bd........... No................... Professionals Guild of Ohio........ No.............. Ohio State Med.......... 02AP-955.............. of Mental Retardation & Developmental Disabilities v..2d 833 (10th Dist. 62 Ohio St.................... of Edn........... 60 Gourmet Bev.. 74 Graziano v.......... College of Ohio... 62 Harrison v... 92CA5451..... No............................................................... Moody... 82... 1993 Ohio App........................... 46 Ohio St.......... Ohio Veterinary Med... Bd....... (1987).... Rights Comm'n.............. 2012-Ohio-3637 .......... 152 Ohio App. 56 Green v..... (1983).. 2002-Ohio-3338 .......... 46 Haehn v... LEXIS 2687 ................. 50 Hamilton Cty................... 53 Haghighi v.......................................... LEXIS 2862. 2010-A-0047..... 62 Haley v................. 1982)............... 81................. 1992)............ (1989)........................... 7 Ohio App... No.. 3 Ohio App........E..................... 46 Grybosky v.... 2000 Ohio App........... 86 Haig v........................ Rights Comm'n............................. No... State Med... Licensing Bd.................... Inc................................ 3d 600......)................. 614 N..... v............... 3d 1 .. (9th Dist............ 103 Ohio App... (1st Dist... Cntr...... 2011-Ohio-6089 ........... 2011-Ohio-6843 .. 2010-A-0047................ 83 Ohio App......... Gen Motors Corp...................... 9.............. 53 Griffin v........................ 2001 Ohio App...................... 21...... 10th Dist. 00AP-1454........ Bd................ Med........... 1981)..................... (10th Dist......................... 11th Dist............ No............................ of Edn. 10th Dist....... of Ohio.Goodson v....... (1992).. Ohio Liquor Control Comm..... 84 Grudzinski v....... 3d 208........ 80 Harrison v............................ 91 xiii ...... 10th Dist.................. Ohio Civ......... 10th Dist............ 11th Dist.............. 3d 317............

............ 9th Dist............................ City of Toledo...... 3d 47.............. 58............................. Garada........................... 1998) ..................... 35 Ohio St.......................................... (1975)... 64 Ohio St.................... Supp...... No. & L....................... 11740........ (1975)....... Ohio Dept............................... 29 Henry's Cafe............. Bd.... Franklin C............. 2007-Ohio-3025 ...... v............... 95 Holmes v.............. (S..... 346........................ (1959).... 96CVF09-7055 (Oct............................... Board of Liquor Control............... 2d 187 ................................. OBES............ 9...................... Ohio State Medical Bd.... Austinburg Dev............................. 3d 531 ... v....................... of Nursing. Bd...... 45 Higgason v..... (1938).... 05CVF06-6560 (June 15............................................ M... (3rd Dist............. 2d 115 ...... 1996) ............... 114 Ohio St.......... 1990)........... Franklin C... Hamilton Mun........................... Inst..... LEXIS 3977 . Ohio State Med........P.................... of Commerce........ Marion Corr............ 88AP-276............. 41 Ohio St........... of Motor Vehicles ................................. 134 Ohio St.......P...........D.. No................................ 233........... 45 Hoffman v........ 67 Ohio App............................... No....... 349 F............ 62 Ohio App.... 2007-Ohio-2877 .. 11th Dist................ Ohio 1972)........................................................... Administrator.........................................P................. Kosydar. Boesch.... Franklin C. 44..... 170 Ohio St. Ct.. 85 Hazem S............................ 33 Haw-Chyr Wu v.............. 59.... Stogsdill.. Ohio State Bd......... Ohio State Med.........D.............. Public Utilities Comm............ 2d 128 ...................... 44 Ohio St............................ 63 xiv . No.. Franklin C........ 3d 863 .... Union Gospel Press..................... 83 Herrick v.......... 46 Hodgson v........ 67 Henneman v...................... (1988).............. 15 Hughes v. 29.......2d 486 ...................... Assn. 1993)................ 3d 241 ..... 76..... 62 Harvey v.................P.....E...... v..................... 67 Hawkins v...... 98CVF06-4873 (July 10... 818 N... 66 Hunnewell v..... 84 Herbert v........... (2004).................................................. 1984 Ohio App........ 1989 Ohio App............. Ohio Bur........................ 93CVF09-6881 (Dec..... No. No.......................... 67 Holden v.. (9th Dist............................... 1125 ....... 2006) .. No............. (1980). 1990)........................ State Medical Board of Ohio. 94.................................................. 10th Dist.......... Corp........ 2 Hsueh v....Harrison v............. Inc............. 61 Home S. 2006-A-0044.......... LEXIS 12259 .................

............. 16............................... Bank Securities Litigation...... 17 In the Matter of: Hal Artz Lincoln-Mercury....................................... 56 In re Christian Care Home of Cincinnati........... No... No......... (10th Dist......Y. (10th Dist.............N... 28........ 1991).......... 10th Dist.... D. 1981 Ohio App........ City of Cincinnati Civil Service Comm.................................... 22 In re Franklin Natl........................... 80 Ohio App.. 68 Hyde Park Neighborhood Council............................ 72 Immke Circle Leasing........... (1948)........... 22 In re Investigation of Laplow.............. (9th Dist......... 35 In re Application of Milton Hardware Co........... 12th Dist..... 3d 305.............. 39 Ohio Op......... 1970)......... 74 Ohio App.............................. 1986)........P... (Montgomery C..... Inc..... LEXIS 13852 ............... 37.... 175 ....... CA2011-05-039.......... 55... 108 Ohio App.. 1990)..... 2012-Ohio-3331 ................. (10th Dist......... Supp. 16 In re Certificate of Need Application of Providence Hosp................. 477 .............. 3d 59........... 478 F........... 19 Ohio App................ (10th Dist.................... 1st Dist... (10th Dist...................................................... 2012-Ohio-996 ....... Ford Motor Co... (10th Dist.......... 1979)......... No.................. Polen................ 385 ............................Hunter v.... (10th Dist..... Cincinnati...................... 2d 157 ............... v........ 67 Ohio App........ v. 577........................................................................ 61 In re Application of Gram.... (10th Dist................................. 1993)....................... 44 In re Annexation in Mad River Twp............ 30 In re Heath......... 2006-Ohio-4227 ...... 1969)... 1994).... 05AP-1179. 1963)............... 43 In re Barnes..................................................... 87 Ohio App........... 1st Dist................. No..... 1992 Ohio App........................D............. 62 xv .. 31 Ohio App.......... 77 In re Investigation of Laplow................................. 3d 391 ..... 50 In re David E........................... (E................................ 96 Ohio App........................... 10th Dist........................... Inc......................... 120 Ohio App....... 3d 386 .......................... 3d 201 ............................. of Motor Vehicles.......................... Inc........................................ 3d 605 ... 1992)..... 91AP-1493.............C... 40........... LEXIS 4883.. 22 In re Job Abolishment of Jenkins...... v........ 25 Ohio Misc.. Ohio Bur...................................... 19 In re Henneke. C-110579.. 39....... No............. C-800651.............. 1996)....................................... 3d 453) ...

......... No................. 3d 509 ............... 1990). 21 Ohio App............................. 78................. 3d 18.................... of Chiropractic Examiners........ 79 xvi .............................. 32 In re Petition for Annexation of 5.......... (1993)...... 3d 225........ 46 Jonathan R............. 10th Dist.E................................. (10th Dist..... 39 Ohio St.......... LEXIS 5391 ............... 3d 585 .. 1986).......... 2006-Ohio-4968 ........................... 10th Dist............................................ 3d 8... (1st Dist. 09CVF-12-18865 (Mar............... 1988). 02 JE 22............................. 1985)............ 94 In re Williams....................... (1988)....................................... No...................... 10th Dist....... No....... 30 Jacobs v.............. 106 Ohio App.................................D.......................... No................... 61 Jefferson County Child Support Enforcement Agency v... Bd..... 1995) ....................... (10th Dist....... 80 In re Van Arsdal.................................. 2003-Ohio-496 .. 29... 74.... (9th Dist................ 84 Ohio App. (C.................. 1991 Ohio App..................... 75 Johnson v.......... 13 Jennemen v........................A................ Franklin C.................. Wilkinson (4th Dist.......... 3d 729 .... No........ 91.......................................................... 1997)............................ 78 Ohio App.......................... 9 In re Multi-Fund of Columbus.......... LEXIS 2753......... 35 In re Sealed Case........... Inc. 49 In re Scott..............2d 625 (9th Dist.. 94 Jackson v. 53 Jones v. 91AP-1018.................. 32 In re Seltzer... 3d 456 ................. 666 N.............................................. 110 Ohio St................ Teledyne..................... 67 Ohio St........... 3d 556 ..... 2005) ........................... Ohio St. Ferguson-Ramos............... Harris........................................................... 63 Johnson v....... Ohio Motor Vehicle Dealers Board.................... 52 Ohio App...................... 121 F.......................C........ 3d 168 ........................ 2011) ... 86AP-767.. LEXIS 5729 ............ 91AP-190........... 3d 488...... 3d 562.......... 4 In re Turner Nursing Home................. 77 Ohio St............................. 1987 Ohio App........ Chagrin Falls (1997)............................. 71 In re Petition for Annexation. (1992)......... 05AP-511 (Dec.. 1992 Ohio App............... 34 Ohio App........11 Acres in Northampton Township.................................... 1992)..................In re Morgenstern.......................................... Wise v................................................... 69 Ohio App............ 3d 220 ... No............ 10th Dist....... 6..................P...... 7th Dist.... Gregor....................

............... 81 Ohio App...................... 10th Dist... No............. 01CA2780... No..... Ohio Dept......... (10th Dist.......... 10 K & Y Corp...... 1981)...................... 42 Keaton v........................................ 1991)................. New York Cent.. (3rd Dist............ Sheriff............... Bd. 95APE09-1247................................. Dept...................... 72 Kremer v.............................................................. No..... 10th Dist............ (1990).......... 3d 40 .... Sandusky..... Newburgh Heights.... 10AP-419.... Franklin Cty................C..... Liquor Control Comm.... 38. 01AP-344............. 72....... 3 Kaufman v........ 33 Karrick v..................... 1991)................................................... 532....................... 1987 Ohio App.. v................... 32 Jordan v.. of Ohio... 2001 Ohio App.......................................... 2 Ohio App................. of Commerce......... 71 Ohio App.............................. of Justice... 15. 71............ Ohio Motor Vehicle Salvage Dealers Licensing Bd................................... (1960)...................... 10th Dist..... of Edn......... 79 Kaufman v......................................... 3d 79 ..... 11........ of Natural Res.......... 3d 480 .............. 84 Kizer v... No............. and Nurse Registration............A........ LEXIS 6173 ..... 26 Ohio St.. 69 Ohio App.................................... 3d 186 . of Nursing Edn... 5th Dist............ LEXIS 6439 . State Med..................... 50..........................D................. U... 52 Ohio St.. (10th Dist.. 29 Journey v...................................... 4 Korn v. 1990)...Jones v............................... (9th Dist......................... 1991 Ohio App.................... 2001-Ohio-8766 ......... Board of Edn.. State Bd.. (6th Dist................. 467........... 4th Dist.... 01AP-219. 92 Kramp v.... Bd.......... CA2867..................... 1990).. Co........... No..................... 51 Ladd v.................. 70 Ohio App.................... 491........ Ohio Dept... No. (1963)......... LEXIS 949 ..... Ohio State Bd......... 56 Jones v..... State Medical Bd........ Of Findlay School Dist....................................................... No...... Ohio Veterinary Med........................................ 3d 30 ..S................... 591 F. Ohio State Liquor Control Comm........................ 2d 753 ......................... 174 Ohio St............. 78 xvii .R................... 2d 217 ................. 9 Kellough v.............. 16 Koch v.... 2002-Ohio-413 .... 3d 612 ............... (C...... 12 Ohio St.......................................................... 59 Kisil v...... 4th Dist................. 2011-Ohio-431 ...... 74....................... 3d 483 ...................... LEXIS 3591 .... 1978)......... McCullion..... Ohio State Racing Comm........... (1984)......... 10th Dist........................ R... 1996 Ohio App......... (1971)...... 170 Ohio St.... 75 Jordan v.....

..................... 1993 Ohio App........ 10th Dist................ 10th Dist.......................... 3d 257 ...... 2008) . Ohio Liquor Control Comm...... Util... (1988)........ 11th Dist..... Supp..........................R......... 3d 607 ............ 74 Little Forest Medical Ctr...... S-32-92...................................... v.............. 61 Marion Ob/Gyn v......... 7 Mahoning-Youngstown Community Action Partnership v. 41 Lorain City Bd..... Ohio Veterinary Med.............. 18 Leo D’Souza............. 61 Libis v....... No......... 2d 153 ........ 84 F. (6th Dist......................................... Hiddens............ Franklin C.......................................... Sullivan. 443 U... No..... 40 Ohio St............. 29 xviii .......... 6 Ohio St......... 05AP-1137.................................. 6th Dist... of Edn................. 3d 323 ............................. 85 Lorms v................D..................... LEXIS 1704 ........... USDA.............D........ Nos...... Bd............ Ohio State Bd...................................................................................... 2d 94....... American Isuzu Motors................... 2011-Ohio-394 ............ 1991).................. 3d 204 ................. Comm. of Psychology.. (S... 54 Landefeld v.......S.... 74 Mackey v............ 1972).................. No..........N........................ LEXIS 2556 ..Ladd v.................. 1981)............ (9th Dist....................................... (1976).. 21487........... Bd....... No.... 11AP-582 and 11AP-83........ 2nd Dist.... 68 Lexington Supermarket. 2000)................... 1996 Ohio App........................... Montrym... 71......................... of Zoning Appeals of Akron...........................D. 76 Ohio App.................................. Bd............................... 29 Liebold v... State Med.... 2007-Ohio-2972 ............ 95-T-5323............. (1st Dist................................................................................ (10th Dist. 1991)............................ Ohio Dept. Ohio 1999)..................... v.......... No....... (1979)............... Ohio Counselor and Social Worker Bd................. Relations Bd... 47 Laughlin v. v............... 54 Mary Imogene Bassett Hosp...................... State Emp.................. 67... Bd......................... 72.. 99AP-612...... v.... M. 48 Ohio St........ 2d 886 ........................ 10th Dist........ 136 F..... 54........ 84 Lally v.... 08CVF-05-7342 (June 12...... 3d 522.......... 2d 110 ............. No...... State Med.. 137 Ohio App............ 2 Ohio App... 42 .. v. 2000 Ohio App...................... 66 Lies v. 1 .... 50 Leake v.......... (N...... Ohio Civil Rights Comm........... (1991)............. 61 Ohio St.......... The State Medical Board of Ohio.. of Akron v.. LEXIS 3290................... Pub................ of Edn...... Inc...................... 55 Linbaugh Corp..........P.....Y.. 51. Ohio Dept......... 2006-Ohio-3315 ... of Commerce............... 33 Ohio App..................................... (1966)............D.......... Inc.

.. 38 Mathews v..... Ohio Bur.................. 118 Ohio App.......... 1987 Ohio App....... 96APE03-360................................................. Ohio Rehabilitation Services Comm..................................... Limbach.......... No............................. 71 ...... 2d 283 .. C-860124................ 234.......... of Review.... 18.... No.................... 11AP-544.................... 2004-Ohio-3726 . No.............. (10th Dist........ No...................... (10th Dist.. of Pharmacy........... of State Personnel....................... Ohio State Bd........ Ohio State Racing Comm.......... Franklin C... 1995)..S... U..................... (1969).......................... (1994)........................ 1995)...... 77... 3d 350 ...... 1993 Ohio App.................. 49 MCI Telecommunications Corp........... No..... 1995) . 10th Dist.... 68 Ohio St.. LEXIS 1524 ... 10th Dist. of Emp................................................. LEXIS 465 .... 104 Ohio App........... Ohio State Liquor Control Comm..... 71 Ohio Misc........ Ohio Bd....... 73 McKenzie v........................ 75 McHenry v.................................................................. (Wadsworth Mun........... No..... 2d 3 ........................ (1966)................ 84 Miller v... 04AP-46... 73 xix .... 2000 Ohio App.... 1st Dist.................. of Psychology........... Co. LEXIS 3889 .......... LEXIS 5492 ................... Bd... 395 U.. Ohio State Bd.............. 82........ 10th Dist......... Ohio Expositions Comm............... Servs........................................ Servs.................... 3d 301 .. (8th Dist....... General Accident Ins...... 82 Ohio App.......... 73 Meadows v.. 1 Ohio App.............. No.................... 72.. 44 McKart v............S...... 95 CVF06-4466 (Aug..... of Motor Vehicles. Bur.......... of Emp................... 85 Ohio App... 38 Minarik v............ 1965).................... 1st Dist.................Mason v... 1962)....... C-990573....... 74 McEldowney v................P............... 2 McGee v........................................................................ 7 Miami-Jacobs Career College v....................... No........................ 2012-Ohio-1416 ...... 5 Ohio St....... 74 McConnell v.... Dept............................................................................ 3d 195 ...... of Nursing.... 55 Miller v... 83................ 11-CA-9....... Noble County..... LEXIS 6035 ...................... 78 McKenzie v....................... 1993)..... 2012-Ohio-1002 ........... (10th Dist........ 85 McCall v..... Ohio State Racing Comm..... Hamilton County Welfare Dept......... 93APE09-1216.......... 1996 Ohio App.... 5th Dist..... 7th Dist.. 71 McDonald v.................. v......................... No............. 10th Dist.............. 3d 701 .................. (10th Dist................ Ct............ 10.... Ohio Bur........................... 1999 Ohio App.. 54 McCauley v. 2d 229 ............. 1993). 52.. Ohio State Racing Comm.. 185 .......

................................... State Medical Board of Ohio...... 5 Nibert v..... v. (1975)...... of Commerce v................. Bainbridge Twp......... Nos........ of Rehabilitation & Correction. Herman Dreskin..................................... Public Util.................Mitchell v.................... No........... (1998)............ M.... 2003 CO 7................ 2003-G-2505 and 2003-G-2513........................................................... Sears..... State Dept.......................................... Brown...........D...................... 3d 244 ..... 32 Natl..... 390 ............ No......... 78 Oak Grove Manor. 18 Morrison v................................... 1980 Ohio App..... of Ed. Unauth... (1994)... Central Cadillac Co...... 5 Office of Consumer's Counsel v.... 2d 39 .. 01CA13......... v...... 1997) ............. 7th Dist.... 70 Ohio St................... Labor Relations Bd....... (10th Dist............................. Sinai Medical Center.............. 4...................... 66 Mowery v........................ No..................... 57 Ohio Misc..... 14 Ohio St......... 4th Dist. Gen.............. 8th Dist.. No.... 132 . 29 Nemazee v................. 96 F........... 10th Dist... 16 Ohio Motor Vehicle Dealers Bd....... LEXIS 12569 ......D........ 421 U....... City of Brook Park...................... 1990)............... Franklin C........ 2003-Ohio-7007........ No.... of Human Servs............ 88 Ohio App.......... Mt................ No...... 10th Dist. 3d 82 . Inc............................. 1993)............. LEXIS 2713............................. 1997 Ohio App.. 3d 64 ............. 33 O........... 77........ Molnar.................. 83 Moffett v.................... Salem City Sch.................................... 3d 100 . 80AP-208.. 81 xx ........... (1982). Prac...S............................................................. Ohio State Bd..... v... 45 Office of Disciplinary Counsel v.........R............. 97CVF-09-8830 (October 27........ of Ins.......... 2002-Ohio-5986 ... Ohio Dept........................... 80 Odita v. Bd....P. Comm............ 84 Ohio St.................... 10 Natl.......N....................... v..........Y.....D......... 4................... 11th Dist.......................... Creasy. 79 New London Hosp.......... LEXIS 4414 ............ Lawyers Guild v....... Roebuck & Co............. 11th Dist........ 3d 109 .......... v........... 2004-Ohio-3687 . 66 Noernberg v.................... (S.......................................... 63 Ohio St....... 2d 1 ................................................................ Ohio Dept.. (1984).. Ohio Dept.............................................. of Human Services..................... of Pharmacy.......... 2001-Ohio-4113 .................... 47.... Inc.. v......... (Ohio Bd......... 69 Ohio St.......... 1991 Ohio App..... Vild................ of Ohio Non-Profit Corp.. Atty.......... Dist..... 56 Ohio St................ 4 Ohio Dept....... (1980)................. 2d 26 ...... No.......... 60858..... 67 Ohio Boys Town..... (1990)....... 1982). 01AP-71 and 01AP-72. 96-G-2005...................

................. 51 Ohio St............................ 19 Ohio State Bd.................................. 13 xxi ....... v.................................................. State Med...................... LEXIS 10933 ..S.............. 19 Ohio State Bd............... 10th Dist.... 3d 26 ...... 10-CA-19............................ 2d 25 ..... 3d 239 ............................................. 10................ 84AP-225 & 84AP-362............... 66 Ohio St.... 3d 256 ....... 37 Our Place......................... Minch.................... Frantz................ No.... Bd.............. Co............ 3d 143 ....................... No............. (1992)........................... 45 Price v........ Franklin C............................... Pla................. C-990200........................ 16. 2000 Ohio App.............................. 3d 619 .......... 48 Ohio App..... (1982)............................... Ohio Real Estate Appraiser Bd........ Ohio State Fire Marshal... (Hamilton C............ 12CVF-7204 (October 17.......... Worker Bd.................... 465 U.. Inc............. 1984 Ohio App.... LEXIS 3041 ......... 61 Ohio App............................ No.. 3d 186 ................................. 94 Ohio State Medical Bd.......... 2011-Ohio-191 ........ 3d 570 ..................................... State Med...... 36 Pappas & Assoc.... No............................ (1990). 10th Dist........................... Ins........ 1998 Ohio App............... Poppe... of Pharmacy v... 63 Ohio St... 53 Ohio St............... of Industrial Relations........ 46 Peter Garg v........ 5th Dist...... 1st Dist........ Weinstein........... Bd....................... LEXIS 22 .......... 79 Penix v... v..P......... 8 Ohio St..................... 02AP-1223.... 74AP-231.... 2012)..................... Ohio Dept.... No....... v.................. (8th Dist......... 2003-Ohio-3432 ....................................... Mut. (8th Dist............ 2d 131 . No. 33 Ohio Misc....... v......... 42 Ohio App..... 36...... of Commerce....................... Inc................. (12th Dist.......... 10th Dist. Haldeman...... 1988)......................... Remlinger.. (1984)..................... v........... 3d 222 .....Ohio Motor Vehicle Dealers Bd.. Ohio Dept..................................... 71 Ohio State Racing Comm........................P................ of Pharmacy v.. 1987)...................... (1993)... 89 ........................ State Auto................ 18458............................... 21 Ohio State Bd................... of Ohio.... Kash............... 1988)......... LEXIS 116. of Pharmacy v. (1983)... Nos..... 62 Plotnick v......... State Counselor & Soc... 65 Pinkney v.. 70 Ohio St................. 94 Pennhurst State School & Hosp............... Ohio Liquor Control Comm............................... Westinghouse......................... 9th Dist. 70 Prinz v..... Agency.......... 82 Pacella v....... v............................. of Ohio........ 1974 Ohio App........... 85 Pang v. 69 Pons v................... 1988).. (1990)................

..... Abs............ 10th Dist.. No................... 2005-Ohio-2995..... 92AP-1430....................... 1989 Ohio App................. 3d 606..... 2002-Ohio-7077 ............. Bowers......... 3rd Dist....... Limbach............... Comm.... 62 xxii .......................... 2nd Dist.................... v.............. of Mental Retardation & Developmental Disabilities v.......... 25 Ohio St......... 4th Dist...................................... Franklin C........................... 57 Riverside Methodist Hospital Assn...................... 36 Schupp v......................P..............). Inc..................... 1993 Ohio App........ City of Cincinnati Civ.................. 44 . Siesel.....).............................................C. 41 Roland v............................. (1986)............... 1982)....... 44 Sahely v........ Fleckner.... Ohio State Racing Comm......... Bd....... of Ohio...... Liquor Control Comm........ J.................. 10............. 2002-Ohio-4235 ....... 61.................... 94CVF05-3308 (June 6............ v.............. Florida.. Ohio Counselor & Soc.. 2004-Ohio-1613 ........ Serv........ Ohio State Racing Comm..................................... 405.. (1950).......P... 88-CA-5............... 1st Dist...... (10th Dist... 2002-Ohio-6838.............. 161 Ohio App............ LEXIS 2034. 3d 38 ... (10th Dist.................. 2012) ....... No...S.... 16 Sanders v. No..... 46 Seneca County Bd.......... v...... No......... 13-02-15.................................................... Fairhill Mental Health Center... 1994)........ (10th Dist. 59 Ohio L.. 3d 308 .................................. 12-CVF-1835 (Apr.... Franklin C.. 80 Remy v........ 93CVF05-3734 (Aug............ Bd...................... 64 S & P Lebos... No...................................................... Worker Bd..... Penney.. (1990)...................................... No............................ 10 Seminole Tribe of Florida v... 34 S...................... 3 Ohio App. Guthrie.... 170 Ohio St......Raceway Park.................. Inc... 67 Roy v...... of Ohio. (1986)...............S............ No.. Franklin C......... State Med.... 56 Ohio St...................... No................................................ 71 Sekerak v................................................. State Med..... 70 Reichart-Spaeth v... Ohio State Dental Bd.............. 03AP-447.......................... 3d 24 ..... LEXIS 1194... 135 ...................... of Ohio v.. (1996)................... No........... 1993) ....................... C-020176...P..... 10th Dist.......... Civil Rights Comm..................... 67 Royal Indemnity Co.. v.......... 150 Ohio App.. 34 Russell v............... 517 U............................ Ohio Dept.... LEXIS 3363 ......... 18521.......... 27 Ohio St.. 39 Richter v........................................... Kresge Co... of Job and Family Services. 9... 35.............................................. 4 Ramsdell v...... (1960)...................................... 3d 31 ............ 2001 Ohio App......... 3d 702........................

... v... Relations Bd..... 3d 89..... 3d 260 .. 2011-Ohio-2485 .. 130 Ohio App... 96 Ohio St....................... 3d 723 ...... of Agriculture......................................................................... 1991 Ohio App........... 9.......................................................... Davey... No..... No................... A... 3 St.................. Ford Motor Co... Inc. City of Akron......... Bainbridge Twp............. 2d 391 ......... (1st Dist.......................................... 10th Dist............ 3d 203 ... No................ Williams........................ of Commerce..... 1992)......................... 88.................................... No......... 98CA03................................ Liquor Control Comm.......... 14 State ex rel............. 03AP-330..................................... Beacon Journal v............ 2 Springfield Fireworks.............. v.............................. 1998)......... v.............. 1996 Ohio App.. 1998 Ohio App.......... Ohio Dept............. 44 Slagle v.................. 38 Ohio St.... 54 State ex rel.. 10th Dist No........... 35 Standard Oil Co....... 160........ 33 Siegler v...... (1935)......... 2004-Ohio-4354 ............... 2d 133 ..... 1991 Ohio App... 10th Dist........................ v....................................Set Products.. Pierce......... 59 Shady Acres Nursing Home.... No.... 5 State ex rel.. 103 Ohio St. Bd.. 63 Sinha v. 1979 Ohio App.... 91AP-354.. 78AP-860........ State Emp.............. LEXIS 863 ... (1994)...... 10th Dist........................... (1917).......... 82 Sohi v..... 130 Ohio St............. v............. (1988).. LEXIS 11662 ............ 3d 414 ... Rogers............. 7th Dist................... Hairston........................... v........... Inc...... 71 Sheridan Mobile Village...... 27 Slain Ford.................. 25 xxiii ...... Ohio State Univ......... 31 Ohio St......... 95APE09-1239................ 88 State ex rel..... 70 Ohio St.............. 2003-Ohio-6940 ........................ Armstrong v.... 10th Dist.............. v........... 3d 224 ..... 67 Ohio St............. LEXIS 6331 ....... Attorney General.......................................... 4th Dist... (1995). 90 South Community.... 78 Ohio App............. 3d 605 ............... 50 Ohio App.......... No....................... (4th Dist. Augustine Catholic Church v............................ 54 Smith v..... LEXIS 4932 ........................ Ohio Dept.................. (2004).............................. v........... (1987)........... 90-B-20................... Larson.............. Inc... 10AP-421.............................................. 44 .... LEXIS 3665 ........................... State Dental Bd.................................................... Inc... Inc................... 87....... (11th Dist.................... 75 Skalsky v...................... Ohio Civil Rights Comm...... of Zoning Appeals.............................. 1976)..... v........... (1981).......... Inc... Auglaize Mercer Community Action Comm. 73 Ohio St....... of Building Appeals........................ Bd.......... Bentley & Sons Co......

. (1988)....................... Finley v............... Dusty Drilling Co.... Bd............................... Hunt v. 2d 392 ...................................... Heath v...... 29 State ex rel................................... (1995)......... Dawson v............ (1915).. 154 Ohio St.......... (1992).. 65 Ohio St.................... 3d 15 ................... 1995)....................... 109 Ohio St.......... University of Akron.. 3d 545 ............ 3d 186 .... 25 State ex rel........... v.... Bd................................. 78 State ex rel... 64 Ohio St.. 2006-Ohio-1825 .................................... Hanson v.......... 37 State ex rel...................... 75 Ohio St..................................................................... Faust........ SEIU....................................... Dist.... of Commrs.... Union. Boggs v. Foreman v........ 65 Ohio St........ 1........... 3d 170 .............. 107 Ohio App.... State Med. 2d 363 ................................................................................................................................ 77................................. 43 State ex rel............. 75 State ex rel........ Morris................................................. Taft... Schweikert. 2011-Ohio-6009 ........................ 38 Ohio St.................... 79 xxiv ................. 1199 Health Care & Social Serv... Guernsey Cty................... 50 State ex rel.... 39 Ohio App. 131 Ohio St... 32 State ex rel................ 8................ Hildebrant................................................... (1965)..... 1 Ohio St............. 3d 729...... Chrysler Plastic Products Corp........ Beacon Journal v..... 24 State ex rel............................. Westlake..................... 51...3d 10.................. SERB.................. 1 Ohio St........ 31 State ex rel................ 3d 516............ Springfield Local School Dist. 3d 498 ............................ 9 State ex rel. Freeman v................. 45.................................... (1992)........ 24 State ex rel. Robinson............... 64 Ohio St.......... Crockett v..................................... 2d 132 ........................................ 1996-Ohio-204 ........................................... White.................................. Dann v.......... Gulyassy.. 3d 364...... Leonard v.... 3d 94 .... 1981)..................................................... DeWeaver v.............. (1981)........ (10th Dist..... 79 State ex rel..... AFL-CIO v........... Bloom-Carroll Local School Dist............................ 67 Ohio St......................... (10th Dist. Cincinnati Post v.. (1992).......... City Council............. (1965)...................................... 3d 458 ............... (10th Dist......................... 72 Ohio St............ 23 State ex rel....... 95 State ex rel........... 1987)............................ 78........State ex rel............... Franklin County Sheriff’s Dept.. (1951)... Bd............................................ 2 Ohio App......... (1992)......... 412....................................................... 63 Ohio St....... (1980).................. 93 Ohio St............... Lieux v............................... 44 State ex rel. 3d 323 .... of Edn....... 2d 100 ........... 24 State ex rel............

................... (1989)............ (1976)..... No............ Renfro v...... Ohio Bd........... 82 Ohio St........................... 114 Ohio St........................ Multimedia v.... 28 State ex rel....................... 79 State ex rel......................................................... (1990)................................. 46 Ohio St............. Public Emp......................... Pennington v... 2004-Ohio-2709 ........... Retirement Bd...... 50 Ohio St.............................. of Psychology........ 54 State ex rel. 1995-Ohio-19 ....................... 3d 141 ............ 1998-Ohio-380 ............ v. City of Cleveland.......... 07AP-67................................... 3d 185........... 3d 155. Ohio Patrolmen’s Benevolent Assn.... v.................... 3d 51 ................................ Inc..... 3d 171 ... 89 Ohio St.................... 49 Ohio St............. 3d 59 .............................. 3d 420 ........ 85 State ex rel.................................. Gundler (1996).............. 3d 191 ............... Lancaster....... Polovishack v.... Rennell v. 03AP-178........................... (10th Dist........ 1993-Ohio-192 .................................. 75 Ohio St................... Inc...... 25 State ex rel....................................... 57 State ex rel..... Mayfield......... 72 Ohio St......... 22 Ohio St....................... (1926).............................................................. 3d 338.......................... 25 State ex rel....................... 8. 3d 235........ of Ohio............................... 24 State ex rel............... Cuyahoga County Dept.................... 10th Dist................ 2d 41 .... 95 State ex rel... Thompson Newspapers.......... 270......................... 25 State ex rel.. Lovelace Motor Freight................................................. v................... 65 Ohio St................... 2007-Ohio-4597 .. 39 State ex rel......... Industrial Comm.......... 25 State ex rel.. Poignon v.................. Gray.. of Ohio..... 9 State ex rel................ 2000-Ohio-214 ....................... 89. Sowald............... 102 Ohio App.... 24 State ex rel............... (1995)....... 23 State ex rel.................. 94............... 25 State ex rel.. 1995).................................... (1988)...... Ohio State Bd.................. 24 xxv .............. Steckman v........ 72 Ohio St............... 3d 28 .............................. 3d 25 ..... Mayers v................................ Police Officers for Equal Rights v... Industrial Comm............... McGee v................................... 3d 440.... 47 Ohio St............. 24.............................. Mallory v..... Mentor... (1994)... No... Jackson........ v.... 53................ Jackson.... 1992-Ohio-1 ..................State ex rel............................................. of Pharmacy.................. (1990)..................................... Martin v........ Lashutka............................... (1986)........... 54 Ohio St............................ of Human Serv................ 67 Ohio St..... of Health v. 3d 100........ Ohio Dept....... Snowden............ 70 Ohio St.................... Martin...................... 62 State ex rel.... LTV Steel Co...... Osborn v............................ 10th Dist............

.... (1986).... (6th Dist......... v. 27 State ex rel....... 43.. 75 State ex rel.... 52 State v........... 172 Ohio App..... 3d 332 ..............O.................. 22 State of Ohio Bd. 874 N. Williams v. of Ohio v..... 3d 199 ................ 2000) ....................... 1996-Ohio-234 ......E................................. (2nd Dist............. D............................................. 1997-Ohio-273 .. Gary Charles Gelesh..... Yant v..................... (1995).........P...................... Trauger v.......... 88AP-516.......... 3d 425 .................................. 11 State v..................... 3d 357.... Thompson. Gustafson................. 74 Ohio St..... 2011-Ohio-3172 ..... Conrad........... 45.... Bd......................... 24............................ The State Medical Board of Ohio......... 50.....).......... 79................. v......... No....................... Franklin C.................. 76 Ohio St................... 25 State Med.................... 3d 732 .......... No...... Inc................ 54 Ohio App... 96 Ohio App..... OOMS OOOO41 (July 24................... 48 State v... 41 State v. 41 State v. Nash.. Bd................... 80 State Med....... Murray..... 19 State Med............................ No................... Connor............................ 5 State ex rel............................ 43 State ex rel............... 64 State of Ohio ex rel.. 08AP-158.......... (1993)............ 1994-Ohio-5 ......................... Bd................................... 25 State ex rel.................. (1902)......... (1993)...... 3d 365. 66 Ohio St...................................... (1996)......................... 67 Ohio St.......... D’Ambrosio..... 2009-Ohio-5852 ................... 3d 185 ............ 10th Dist........... 3d 446 ........ 20 State v.......... 70 Ohio St................... Leis......................................... 3d 527 ............ 92 Ohio App............. 10th Dist..... Gilbo...... LEXIS 4367 ................................. of Pharmacy v..... 3d 619............ 612 .... (10th Dist.... 1994)............. 77 Ohio St................ 3d 681.................. 72 Ohio St......... 1977). Grubb.................................... v...... Castle.................... 28 Ohio St..................................... (1995)..................... 72 Ohio St........... 10 MA 153....... v.. 4................... 57 xxvi ..... WLWT-TV5 v......... French..... 2007-Ohio-3328....... Carroll... (9th Dist....... Hutson................................................... Evankovich......... 66 Ohio St..... No.......................... 3d 111 ....... 1988 Ohio App...... 7th Dist........... 78 State v......................................................2d 1256 ¶ 25-27 ..................................... 2d 160 ......................... Williams Ford Sales.............. Bessey...... Warren Newspapers v... Fiorica.............. 1994).....................State ex rel..................

.......3d 416............................ Inc........... 3d 39 ..... 66 Steckler v............ 29 xxvii ................................... v.State v................................................................ 2004-Ohio-5260 ...................................... Liquor Control Comm............. 59 Superior's Brand Meats.................... Lindley................ 85 State v....... 3d 25 .......... 83 Ohio App.... 76 Ohio St........................... 3d 455 .. (1992)... Liquor Control Commission....................................................... (1988)....................... 31 State v.......................... Marzetti Co............. White..... 38 Ohio St................. 76 Steelton Village Market............... Ulis......................................................................... Niesen-Pennycuff.. 3d 306 ....... Ohio State Bd...................................................... Bd.. Brennan............................... 60 Sweetbriar Co............. LEXIS 3871..................... Williams...... 1987). 3d 137 ............ 57 State v............................. 3d 33............................................. 37 Ohio App........ 3d 164 ................................................................. 23 Stephan v........................................... 2012-Ohio-2730 ....... 3d 83 ........ App..... 8th Dist.................. State Veterinary Med.......... (1980)............. 10th Dist...... 03AP-920...................... v................ 31 Ohio St.................. v.................................... (1987)....... 29 Ohio St.................... 24................................ 3d 570. 67 Ohio St........ 33089................... 65 Ohio St................... 71 T......................................... 26 State v................................. of Psychology. 41 State v............................... (1987)................. 1992).. v......................... 538. Sullivan...... No......................................................... 3d 439 .................................................... 62 Ohio St. 31 State v........... v.................. (10th Dist. 34 Steffan v................................ Post..... 76 Ohio St..... (1984)...... 2d 133 ............. (1960)............ 1974 Ohio App........................................................................................ 8th Dist........................ 3d 380 ....... 1993 Ohio App.......... Jenkins.... (1996)................. LEXIS 5647 (Nov.......................................... 57 State v........ 70.............. 57 State v.... 72 Ohio St...... 32 Ohio St. 1995-Ohio-80 .. 1993) ...... McDermott........... Inc................. Doyle....................... 132 Ohio St........ (1993).............. Williams............ 10 State v......................... 3d 290 ....... (8th Dist..... (1996)............................. 73 Sun Refining Marketing Co.. 113 Ohio App... 15 Ohio St....................... No...... Kraft..... Hochhausler...

............................. of Edn.... Morgan........ 6th Dist.......... v........................... Conrad...................................... (1974). 56 Union Camp Corp...............S...... of Job & Family Serv.. Bd...... 1999)......... Ohio Dept........................... 24... Warner.... 25 Travelers Indemnity Co......... Hosp........................... 2004-Ohio-2185..... Nixon........... 3d 297 ............. State Med.................................................... 305... of Liquor Control.................. (10th Dist..................... (1978).... (8th Dist............ 409 .. 29 U.......... 02AP-783................................................ 1998-Ohio-445 ................................................................. 29.............. 313 U. 3d 339 .............. Relations Bd.......... Whitman. 43 Taylor v............. v.. 10th Dist.................... (1984)... (1941)................................................................................................ 118 Ohio App............ 95 Thompson v....................... 3d 555.. Univ..... 156 Ohio App.. 1 Ohio App......... 32 Thermal-Tron....................... 63 Ohio St..... (10th Dist..... No. 09AP-78........ 2004)....................... of Ohio..... Schregardus.... 31 Tripodi v........ v........... of Review........ v............................. 1994) . LEXIS 875........... 1970)..................................... (10th Dist.................... 1984)....... 4th Dist.......... 418 U.... 93AP-331........... 10th Dist..... 1994 Ohio App.............................. 99 Ohio Misc....... Cochrane.. Local 10 v............................... v...... 80 Tisone v. Ohio Dept............S....... 10th Dist................. 70 Talwar v....... 2d 159 . 1964). 2010-Ohio-416 ............................. 2d 108 ....... No....................... Bd........ of Revision. 54 Ohio St............ 54 U............... 3d 58. 2000 Ohio App.............. (1951)....... 2d 126 . 03CA2894.... 2d 110 .... 30 xxviii .... 38 Toledo Police Patrolman’s Assn.... Inc...... 11 Trout v.................. 85 University of Cincinnati v...... 20 Ohio App........... Ct..............................Talley v................... No............. v.......... L-99-1143................................. 3d 485.......... Liquor Control Comm.................. 155 Ohio St......... 49 Univ.............S....... (Cleveland Mun.S.......... 38 TBC Westlake........................... 73 Todd v.... of Rehabilitation and Correction............... Hamilton County Bd............................ LEXIS 6174 (Feb. 2d 42 ..... of Cincinnati College of Med................... 63 Ohio St.. 2003-Ohio-987 ............................. Ohio Dept.......................... 81 Ohio St...... 21 Ohio App.... Bd................... State of Ohio Med.. 83 Urella v..... State Emp...................................... Bd.......... v................................. (1992)........... 683 ...... Inc.............. No................................. No.................. (7th Dist... Toledo....... 1997)...........................

............... Comm............................................ Safety.... No................................... LEXIS 5887 .......... of Jobs and Family Services...... 1980)................ No....... Ohio Liquor Control Comm.. of Pharmacy. 83 Ohio St.... 15-2000-13........... 3d 79...... Ohio Dept.......................... Ohio Veterinary Licensing Bd...................... 2000-Ohio-1812 . 71 ....................... Ohio State Bd.. 312 ......... Util. 2011-Ohio-1604 ............ No.. 84 Wheeling Steel Corp.. 1992 Ohio App........................................... 38 VFW Post 1238 Bellevue v...... 2006-Ohio-4443 ...................................... 53 Wells v................................. 3d 7 ......... 47 White Consolidated Industries v........... 87 xxix ..... 6th Dist..... 3d 591 ..... 18 Wightman v........ 54.. LEXIS 2301 ...... 84 Vogelsong v........ 123 Ohio App.......... 1 Ohio B........................... of Pub............... 11th Dist.......... 1997)............... LEXIS 556 ..... Rep......................................................... 8.......................... 64 Wesco Ohio Ltd........................................ Ohio Liquor Control Comm....... State of Ohio............... (1984)...... 1998-Ohio-181 .. Ohio Dept............. Warren County Regional Planning Comm.. No................... Board of County Commrs................................ (1986). 10th Dist.... Evatt...... Spud’s Auto Parts................... Nichols................................ 3d 83 .. 36.................. 72 Vonderwell v...Valdez v...................................... 1998)...... 3rd Dist. 2002-T-0098......................................... 5th Dist. 83 Welsh Development Co..................................... of Pharm............ 10 Wilde v............. 128 Ohio St...... (10th Dist...................... v... (1918).......... No................................. No........ 10AP-699... Ohio State Racing Comm.............. Ohio Real Estate Comm...................................................................... 98CA00025...................... 94 Washington v................................ 1995 Ohio App.......... Ohio Veterinary Med............ 2011-Ohio-1816 . Ohio Hazardous Waste. 55 Ohio App.............. 131 Ohio App................. (10th Dist............ Wayne S............ 55 Wagers v... Pub.......... 44 VFW Post 8586 v... No................. Nos........................... (1944)................ 1988).... Licensing Bd.. (6th Dist...... LEXIS 4813 ................... Inc................ 7 Warren v....... 70 ......... 3d 260 ... 1999 Ohio App... 3d 94 ....................................................... 94-P-0056... Ohio State Bd.......... 2005-CA-86.......... 11th Dist................. 5th Dist...... 28 Ohio St.................... Civil Rights Comm....... 71 Warren’s Eastside Auto Sales v.......................... 98CA00138................ 2003-Ohio-5702 ....... CA-2885...... 5th Dist........ (4th Dist..... 1998 Ohio App...................... v.. 47 Westerville City Schools v.................... 57 West Virginia v............... 15 Ohio St.......... L-98-1105. 99 Ohio St............. 143 Ohio St. v... 3d 471........

................. 47 Wolf v........... 498 ..........S... 85 Ohio Misc.............................. No.. of Edn............... 2004-Ohio-2981 ........................ Bar’s Sahara.......................................P........ Virginia Hosp................................ 132 Ohio St.. 46 Williams v... 35 ........................................3d 167...... 496 U.... 74 Wymsylo v...... Assn....... of Ins............ Ohio St................................................. 2012-Ohio-2187 ... 3d 10 ................ Mansfield................... 42 xxx ....P.... 61 Zidian v Dept. 77 Yeager v...............................S....... Bd......... 2011 CA 0085........... 93CVF08-5808 (Jan..... Troy City Council....... Ackerman........... 2012-Ohio-1499 .... Bartec... 64........... (1992).................. 82135.............. 44. (8th Dist.............. (9th Dist......... 64 Ohio St.. Cleveland...... (Miami C. 2d 14.......................................Wilder v.. 7th Dist.......... Inc....... (1975).......... 1994) ............... 8th Dist............. C...... No............ 12... 81 Zieverink v............................................................ Franklin C........... 1988)............... 1997).................... City of Cleveland....... 77 Zurow v.... 61 Ohio App................ 5th Dist............. State of Ohio Dept.... 54 Zelnick v................... 82692. Inc................... 3d 24 ...................... (1st Dist............. (1990)......... 1 Ohio App........ 1978)........................................................... 421 U..... 67 Willoughby Hills v................................................................ (2012)...................... 11 MA 39......... 8th Dist............... No........ 1981)... 61 Withrow v...................... 3d 111 ........... No............................. 66 Yoder v...................... No... 40 Ohio App..... of Commerce.................... 2003-Ohio-3261 . 16 Zak v Ohio State Dental Bd.................................... Larkin................ 2d 67 .......................... 2012-Ohio-2908 ...................................C.............

board or commission may be required to follow the Ohio Administrative Procedure Act. 2d 115. or commission that has the authority to promulgate rules or make adjudications in: (1) (2) (3) (4) (5) the Civil Service Commission. Entities that Constitute an “Agency” 1. department. suspending. revoking or cancelling licenses. Chapter 119. R. 119.C.C. the Industrial Commission. board. bureau.C.01(A)(1): (1) Public Utilities Commission.13 of the Revised Code. 1 . 119. the Division of Liquor Control. board or commission of the state government specifically made subject to sections 119. APPLICATION OF R. (3) The agency. (1) Certain agencies. board or commission to R. amendment or rescission of rules mandated by R. b.C. R.01(A)(1). there are three ways in which a state agency. board or commission of the state government having the authority of responsibility of issuing. d. 119. division. suspension. R. and/or the Bureau of Workers’ Compensation.C. department. e. 119. revocation or cancellation of licenses.01(A)(1): Any official. (10th Dist. Governmental Entities Subject to R. R. 119. boards and commissions are specifically named in R.09.C.01(A)(2)(b).C. remove or cancel licenses. School Employees Retirement Sys.C. B. suspend. division. bureau. (2) A statute specifically subjects the agency.01(A) a.01(A)(2): Any official or work unit having authority to promulgate rules or make adjudications in the Department of Jobs and Family Services specifically pertaining to: (1) Adoption. Agencies Specifically Named in R. CHAPTER 119 A. c.C.01 to 119. R. 1975). 117. 5101. the Department of Taxation. R.01(A). board or commission has authority to issue. 119. (2) Issuance.C. 119.01(A)(1). Exclusions from Definition of “Agency”. Fair v.I.C. The licensing functions of any administrative or executive officer. Chapter 119. 44 Ohio App. Any administrative or executive officer. 119.C. Chapter 119 Pursuant to R.C.

119. 3d 754. [but not] any arrangement whereby a person. 1994). commission.C. a. Assn. of Health (10th Dist. 3. 47. 119.C. South Community.(2) Utility Radiological Safety Board. certificate. institution. 10. 2. as amended. b. Entity’s own law specifically makes it subject to R. Relations Bd. 4123. Entity has authority for issuing. v. 95CVF064466 (Aug. 96 Ohio App. The courts define an agency’s licensing authority based on the involvement an entity has with the processing of licenses. (5) Actions of the Industrial Commission or Bureau of Worker’s Compensation brought under R.01(A). 119. Mills (1981). Home S. 1995). institution. 67 Ohio St. There must be a clear legislative intent to make an entity’s functions subject to R. § 119.S. Ohio Expositions Comm. Franklin C. 2 . 3d 45. 3d 224. a. (2) The action of a superintendent of banks in approving branch applications was such an elaborate procedure that the action was considered a licensing function. Chapter 119. There is a clear legislative intent to qualify a board as an agency when there is a statutory provision that subjects the board to R. or entity furnishes Medicaid services under a provider agreement with the department of job and family services pursuant to Title XIX of the “Social Security Act. The Revised Code defines “license” as: [a]ny license. suspending. (3) In Bayside Nursing Ctr. & L. v. Inc.12. (1988).P. 111. Chapter 119 without restriction to rulemaking. Ohio Dept. or charter issued by any agency…. No. permit. State Emp. Code Ann. Genoa Banking Co.C. 2d 115.94. 41 Ohio St. Examples: (1) Decision to hold contractor in default of contract is not a licensing function. 2d 106.01(B).. 620 (1935).C. (4) Actions of the superintendent of financial institutions and the superintendent of insurance regarding the taking possession. 759. § 301. v. 1988). revoking or canceling licenses. The mere approval of a savings and loan branch location application was not a licensing function.C. McEldowney v. v.C. (10th Dist. (3) Controlling Board. 53 Ohio App. as well as other activities specifically mentioned in R. 42 U. or entity furnishes Medicaid services under a provider agreement with Ohio Department of Human Services. Chapter 119. Ohio Dept.” 49 Stat. Boesch (1975). rehabilitating or liquidating businesses. R. it is not an arrangement whereby a person. the Tenth District Court of Appeals held that certification of a health care provider by the Ohio Department of Health for compliance with federal Medicaid requirements constitutes a license for purposes of Ohio Rev. Asphalt Specialist Inc. 38 Ohio St. b.C.01-4123. of Transp. v.

was not appealable pursuant to R. 1 (emphasis added). Entities exercising derivative power a. which then authorized state universities to exercise the powers.C. a. entity exercising derivative power must be a state agency.13.C. Inc. 03AP-330. C. 2d at 152 n. the university was also bound by Chapter 119 in the exercise of those powers. may appeal from the order of the agency to the court of common pleas. 119. The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services.C.C." R.12. Chapter 119. (1981). 119. b. of Trustees of Ohio State Univ.” R. and functions of the Department of Administrative Services with respect to civil service employees. Since the act was not a licensing function. v. 119. The conduct at issue was authorized by R. which was an agency subject to Chapter 119.3 (citing Karrick v. Right to an appeal: Pursuant to R.C. of Commerce. Ohio Dept.01 to 119. or denying the issuance or renewal of a license or registration of a licensee. 2d 149. 2003-Ohio-6940. the act is a licensing function because it does not fall under the exemption included in R. duties. 174 Ohio St. Dept. 467. Serv.Therefore.C. of Admin. of Findlay School Dist.14(G). Right to opportunity for hearing: Chapter 119 provides that “No adjudication order shall be valid unless an opportunity for hearing is afforded in accordance with section 119.12. revoking. 3 . Not Ministerial Acts 1. 68 Ohio St. Bd. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119. 10th Dist No. Where an entity exercises power derived from another agency that is covered by Chapter 119. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119. or canceling of a license. para. at ¶ 24. 119. 1 (emphasis added). Board of Edn. suspending. that an act of the State Fire Marshal refusing to transfer a fireworks license was not classified as a licensing function because it did not involve the issuing.01(B). paragraph two of the syllabus).06. "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination. (1) In Bd. the entity is also subject to Chapter 119. (1963). v. or revoking or suspending a license . 151-52.. (4) The Tenth District Court of Appeals held in Springfield Fireworks. the refusal was not an agency decision and therefore.. 4. para. of Trustees. Chapter 119 Applies to Adjudications. Chapter 119 provides certain rights in relation to adjudications. 68 Ohio St. 124.

The Supreme Court held that the rejection of the application for renewal was an adjudication by the highest or ultimate authority of an agency. at 12. cited in Ohio Boys Town v. (10th Dist. 69 Ohio St. New London Hosp. but does not include the issuance of a license in response to an application with respect to which no question is raised. 3. in obedience to the mandate of legal authority. 2d 1 that. benefits. State Dept. 150 Ohio App. at ¶ 16.). Brown (1982).. pursuant to R. Inc. Odita v. privileges. 618. therefore. a person performs in a prescribed manner. Inc. Ohio State Racing Comm. one must determine whether the act of the agency constituted an adjudication. 224. 69 Ohio St. v. 3d 612.C. at *8. Ministerial acts involve no discretion (1) In Koch v. or was merely a ministerial act. or legal relationships of a specific person. of Ohio Non-Profit Corp. 67 Ohio St. Id. of Human Servs. without regard to or the exercise of that person’s own judgment upon the propriety of the act being done. Koch v. 1994). b. Creasy. 4 . “Adjudication” defined a.01(D) as: “* * * the determination by the highest or ultimate authority of an agency of the rights. of Health (10 Dist. Brown (1982). A ministerial act has been defined as an act that. 66 Ohio St. Raceway Park. 10th Dist. No. 3d 702. in order to determine whether Chapter 119 applies.” b. 2d 1. 616. LEXIS 12569. 88 Ohio App. Ohio Dept. of Natural Res. 1980 Ohio App.2. 70 Ohio App. Thus. Id. 3d 612. 3d 220. duties.C. the act of denying his transfer application was a ministerial act to which no right to appeal attached. 3d 82. An “adjudication” is defined by R. Nash (1902). 3d 754. 1993). State ex rel. Bayside Nursing Ctr. Ohio Dept. c. Trauger v. 612. given a certain state of facts. 88. v. The Ohio Supreme Court ruled in Ohio Boys Town. 1990). the Sixth District Court of Appeals held that because the Division of Wildlife has no discretionary authority in reviewing Koch's request to transfer his commercial fishing license. 2002-Ohio-6838. (6th Dist. “Ministerial Act” defined a. the licensee was entitled to a hearing prior to being forced to cease bingo operations. Chapter 119. 119. (10th Dist. v. v. Ohio Dept. In re Seltzer (1993). nor other acts of a ministerial nature. 96 Ohio App. 614. 70 Ohio App. 80AP-208. 762. the state is under a statutory duty to provide licensees an opportunity for a hearing prior to rejection of their applications for renewal of their charitable bingo licenses. of Natural Res.

RIGHT TO HEARING A. Exceptions (1) If a hearing was held prior to such refusal. When an agency refuses to issue new license. v. New London Hosp. 612. 618). 96 Ohio App.C. the Tenth District Court of Appeals held that “mandamus will lie to compel the performance of duties that are ministerial in nature and do not require the exercise of official judgment and discretion. When an individual is refused admittance to an examination. Trauger v. State Dept. When a statute permits suspension of a license without a prior hearing. 3. of Health (10th Dist. Nash. 2. State Dept. 1. 88 (quoting State ex rel. along with back pay and retroactive benefits was not an executive act dependent upon the judgment or discretion of the Director of ODHS. 2007). 130 Ohio St. at *9. 20. 5 . See also. R. B. 88 Ohio App. a.C.” II. LEXIS 12569..C. c. 119. of Human Servs. Chapter 119. (1) In Odita v. the Tenth District Court of Appeals held that the Ohio Department of Human Services’ (ODHS) compliance with the coordinator’s order to award the claimant a position at the division chief level. 3d 82. Creasy. Davey (1935). 762-63.P. Franklin C. of Ohio Non-Profit Corp.'" See also. without regard to or the exercise of [his/her] judgment upon the propriety of the act being done. No. such termination amounts to a ministerial act to which no appeal right attaches. When an agency asserts that an individual must obtain a license and the individual claims the law does not impose such a requirement. held in part that where the termination of a provider agreement in a given situation is mandated by the Revised Code. Except as provided in R. Armstrong v.. 88 Ohio App. Ohio Dept. 1994).06 specifically enumerates certain cases where a hearing must be afforded upon request. Ohio Bur. 3d 754. 1980 Ohio App. (3) In Odita v. 160). 4. Brown v. the Tenth District Court of Appeals in Bayside Nursing Ctr. no adjudication order is valid unless an opportunity for hearing is afforded in accordance with R. Instead. v. of Human Servs.06. Mandamus may be used to compel performance of purely ministerial acts. 119. 07CVF07-9225 (Aug. of Motor Vehicles. 3d 82 (citing State ex rel. which is a pre-requisite to the issuance of a license. 66 Ohio St. the Director must act “in obedience to the mandate of legal authority.(2) Citing Koch.

physical therapy. R. 10th Dist.06. R. Doriott v. Chiropractic board. Decisions of an authority within an agency if the statute or rules of the agency specifically give a right to appeal to a higher authority within the agency. and athletic trainers board. 9. Orders suspending a license where a statute specifically permits the suspension of a license without a hearing.C. Exception: When a statute permits the suspension of a license without a prior hearing.(2) No hearing is required for the following boards if the applicant failed a licensing examination: (a) (b) (c) (d) (e) Medical board. another agency. 2006Ohio-2171. 4. Bd. The Action of the agency rejecting the application shall not be effective prior to 15 days after the notice of rejection was mailed to the licensee. Orders revoking a license where an agency is required by statute to revoke a license pursuant to a judgment of a court. at ¶ 14. R.06.C. 5. R. If a licensee timely files for renewal or registration. Board of examiners of architects. or to the board of tax appeals.06(A). 3. Certain orders canceling or suspending a driver’s license. A hearing must be held following suspension. This is often called a “summary suspension. b. c. Board of landscape architect examiners. 6 . 05AP-1079. D. (1) Failure to provide an opportunity for a hearing following the suspension violates due process. General rule: Agency must provide an opportunity for a hearing BEFORE issuing an adjudication order. 119. 119. Orders Effective Without a Hearing 1. The agency must provide a hearing unless a hearing was held prior to the denial.C.062.C. of Ohio. No. 119. provides: a. When an agency denies a renewal or registration. 2. the licensee shall not be required to discontinue the licensed business or profession merely because the agency fails to act on the application. R. and give the appellant a right to hearing on appeal. 119. para.” a. Suspensions Without A Prior Hearing (“Summary Suspensions”) 1. 2. 119. State Med. Ohio occupational therapy.06(C). C.C.C. 119.06(B). R.

b. Bd. 71 Ohio Misc. 17. Notice of suspension must state: (1) Reasons for the agency’s action. LEXIS 556. (Massachusetts DUI case). 1992 Ohio App. the Wadsworth Municipal Court found that the state did not 7 . Service of the Notice (1) Notice must be sent to the party by registered mail. (2) Risk of erroneous deprivation of the private interest through the procedures used. 5th Dist. Mackey v. Ct. Supreme Court has ruled that summary suspensions are generally constitutionally permitted to protect the public. 4. (3) Fiscal or administrative burden that additional or substitute procedures would require. Ohio State Racing Comm. 2006-Ohio-2171. then the due process rights of the individual are not violated. Ohio Bur. return receipt requested. 2d 3. (2) However.S. 119. Notice requirements for pre-hearing suspensions pursuant to R. in which the court found that strict adherence to the judicial model of due process was not mandated for administrative hearings. to require the board to provide notice of opportunity for hearing subsequent to the suspension. at ¶ 12. 10th Dist. (1) Wagers v. c. 52. State Med. 05AP-1079.. 3d 46. b. of Ohio. and (3) Opportunity for hearing if requested within thirty days of the mailing of the notice. in Meadows v. Rather. 3.C. The Ohio Supreme Court adopted the Mackey test in Doyle v. Due process concerns a. No.(2) Medical Board statute permitting board to suspend license without a hearing when a licensee fails to submit to a medical examination must be read together with R. Ohio Bureau of Motor Vehicles (1990). at *7. of Motor Vehicles (Wadsworth Mun. a. The court ruled that the state may impose a summary suspension of a horse racing license pending a prompt hearing afterward to determine any unresolved issues. 443 U. 1. 5. 119. The U. Three-Step Analysis (Mackey) (1) Nature and importance of the private interest affected by the official state action. 51 Ohio St.07. Montrym (1979). No. CA-2885.07. if the Mackey test is met. (2) Law or rule directly involved.C. Doriott v. (2) Copy of the notice must be mailed to the attorney or other representative of record.S. not later than the business day next succeeding such order. 1995).

v. Pursuant to R. III. 325. Mandatory Requirement 1. of Commerce. 3. an appellant must demonstrate prejudice from any failure to meet the timeframes. 103-04. The Tenth District Court of Appeals held that timeframes are directory. 10th Dist. Failure to give proper notice invalidates any order entered pursuant to the hearing. 1995). in all cases in which an agency must afford an opportunity for a hearing prior to issuing an order. 2011-Ohio-1816. at ¶ 31. a. the agency must give proper notice of the opportunity for hearing. Although proper notice of the opportunity for hearing is mandatory. 2012-Ohio-3506. the notice of hearing must include: a. No. 10th Dist. and that. Barlow v. 1981).C. (10th Dist. Lucas Cty. 2 Ohio App. 3d 323.C.follow the statutory scheme for an administrative license suspension when it did not afford the defendant a post-suspension hearing within five days. Finley v. Cunningham v. The charges or other reasons for the proposed action. If a party has a right to a hearing.C. ¶ 16 and 17.P. The agency is subject to a reasonable standard. 24.. 119. Ohio Real Estate Comm. as a result. of Real Estate and Professional Licensing. 2010-Ohio-3842. Franklin C. The Meadows court ruled that the state’s failure to follow the statute deprived the defendant of his rights to due process. Ohio Real Estate Commission. time frame for filing the notice is discretionary. Crawford-Cole v. 10AP-699. the party has a right to a reasonable notice of hearing and a reasonable opportunity to be heard. R. Wightman v. para. Notice of the party’s right to a hearing. NOTICE REQUIREMENTS A. Statement that the party is entitled to a hearing if the request is received within thirty days from the time that the notice was mailed. 119. d. Div. 3d 100. B. No. Industrial Comm. L-11-1177. of Job & Family Servs. State ex rel. Dusty Drilling Co. 10CVF-3027 (Aug.07. not mandatory. absence of instructions of how to appeal and the deadlines involved violated due process requirements. Id. No. 119. The law or rule directly involved. R. of Ohio (10th Dist. 1. No. c. b. Even though there is no specific statutory requirement. Content of Notice 1. 5.07. State ex rel. b. 09AP-1050. Dept.. 6th Dist. LTV Steel Co. 4. 2. 102 Ohio App. 2010).07. 8 . para. Ohio State Dept.

C. Sohi. at *7. No. 2. 3d 480. may present evidence and examine witnesses appearing for and against him or her. b. Ohio Dept. of Ohio. present his or her position. 141 Ohio App. ¶ 26. 2011-Ohio6089. 3d 503. Limits the scope of the charges. of Securities (10th Dist. 3d 100. 3d 414. Dusty Drilling Co. licensee was deprived of ability to prepare a defense with regard to other patients. 2. Div. Statement that the party. (1) The purpose of the notice required by R. and contentions in writing. Ohio Veterinary Med. State ex rel. See Fehrman v. Sohi v. and g. 3d 192. 3d 323. (8th Dist. In re Morgenstern. (2) Where dental board provided names of only two patients to the licensee. 1987). 130 Ohio App. in lieu of personally appearing. 1981). 198. (1) An appellate court may not uphold an agency's order based upon findings which. Bd. 130 Ohio App. 2 Ohio App.. f. 103-04. Geroc v. Statement that the party may appear in person. 1992 Ohio App. 102 Ohio App. Procedural due process in administrative hearings constitutes the right to a reasonable notice of hearing and a reasonable opportunity to be heard. 1998). 1995). Delays in Issuing Notice a. Industrial Comm. State Dental Bd.07 is to enable the respondent to prepare a defense to the charges. 37 Ohio App. The notice of opportunity for hearing sufficiently apprises the respondent of the precise nature of the charges against him. Id. 325. Keaton v. 2001). (1st Dist. or by such other representative who is permitted to practice before the agency. Most administrative agencies have no time limits for bringing charges. 119. C. Finley v. 10th Dist. if anything. 3d at 423. State Med. LEXIS 2753. he or she would have done differently in preparation of his or her defense. while supported by the record. 482-83. 509-11. 2 Ohio App. of Ohio (10th Dist. 91AP1018. In order to show a violation of due process. if personally appearing. No. Due Process 1. Ohio Dept. of Commerce (10th Dist. 11AP-174. are broader than the charges set forth in the notice of hearing. LTV Steel Co. argument. even if the notice contains some deficiencies. v. Purpose of the notice requirement a.e. State ex rel. Must be clear enough to allow the party to prepare a defense. 10th Dist. Griffin v. by his or her attorney. including reasonable notice of the subject matter of the hearing. 9 . Statement that the party may. of Commerce. Bd. the respondent must demonstrate prejudice by indicating what. 423.

fraud or injustice. (2) Failure to meet time period is not reversible error if the appellant cannot show prejudice resulting from the delay. d. the interest of all citizens in obedience to the rule of law is undermined. c. No. No. 2002-Ohio-413. Frantz. 38 Ohio St. The Supreme Court of Ohio has held that the state. Frantz. and after the agency had continuously renewed the licensee’s license in spite of knowledge of his convictions. Sullivan (1988). (1) The government cannot be estopped from its duty to protect public welfare. 140. 3 ½ years after the agency was notified of the licensee’s convictions. 51 Ohio St. 2009-Ohio-6325. 3d 96. No. Sekerak v. Ohio State Bd. Fairhill Mental Health Center (1986). of Pharmacy. Mowery v. 96-G2005. If a government agency is not permitted to enforce the law because the conduct of its agents has given rise to estoppel. at ¶ 27.. Ohio Real Estate Comm. is exempt from the operation of a generally worded statute of limitation. Ohio State Bd. 25 Ohio St. (2) The purpose of equitable estoppel is to prevent actual or constructive fraud and to promote the ends of justice. 4th Dist. e. 2 ½ years after his criminal discharge. of Pharmacy v. Journey v. 11th Dist. Wightman v. 10AP-699. f. To hold otherwise would be to grant defendants the right to violate the law. 3d at 146. 10 . As a general rule. 3d 143. Ohio Motor Vehicle Salvage Dealers Licensing Bd. Excessive delays may violate due process (1) A respondent was deprived of due process when a board issued a suspension based on a citation that was issued 5 years after the agency’s investigations. Failure to meet statutory time frames (1) An agency does not lose jurisdiction to take action when it fails to comply with time period set by statute. Estoppel does not apply against the state in the exercise of a government function.b. 3d 137. paragraph 3 of the syllabus. laches is generally not a defense to a suit by the government to enforce a public right or to protect a public interest. (3) A board cannot be estopped from its duty to protect the public welfare because it did not bring a disciplinary action as expeditiously as possible. 39. 3d at 146. 51 Ohio St. 2011-Ohio-1816. 1 year after the expungement of his convictions. (10th Dist. at *8-10.).. 1997 Ohio App. 186 Ohio App. at ¶ 28. 10th Dist. It is available only in defense of a legal or equitable right or claim made in good faith and should not be used to uphold crime. Ohio Real Estate Comm. 51 Ohio St. 01CA2780. 3d 38. Boggs v. Frantz (1990). absent an express statutory provision to the contrary. State v. LEXIS 4414.

R. Kellough v. Bd. To party by certified mail: Notice of opportunity for hearing must be sent to the party by registered mail. (1) Note: registered mail and certified mail are interchangeable. 1989). (7th Dist. 2d 110. 119. 10 A.07. 96 Ohio App. E. State Med. 1970).07.L. a. Ohio State Bd. Nos.R. b. 89CV-01-64 and 88CV12-8615 (July 3. Gilbo (2nd Dist. Bd. 10th Dist.L. Ohio State Med. 1990). R.3d 277. To attorney by regular mail: “A copy of the notice shall be mailed to attorneys or other representatives of record representing the party. 1994). 10AP-419. a rebuttable presumption of delivery to the addressee is established. 290. 3. State v. Necessity of notice and hearing before revocation or suspension of motor vehicle driver’s license. Annotations 1. 67 Ohio App. Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine..C. ¶ 35 (1) No requirement that the notice to counsel be sent by registered /certified mail. Franklin C. R.” R.5th 1. 119. Initial service of notice a.02(G). registered mail is not required. (2) No requirement that the agency search anything other than its own files to find out if the party is represented by counsel. 2011-Ohio-431. 1. 21 Ohio App.R.3d 361. 119. 2. (2) Service at a place of business. 111-12. Amon v. 11 .062. 47 A. D. Angerman v.C. Tripodi v. 60 A. (10th Dist. 3d 287.L.. 3d 332. No. (3) Driver’s license: In a case involving revocation or suspension of a driver’s license. return receipt requested. When an item is sent by certified mail. Sufficiency of notice or hearing required prior to termination of welfare benefits. return receipt requested. Liquor Control Comm.C. and thereafter a signed receipt is returned to the sender.P. 339. Service of Notice 1.(2) A board’s issuance of a summary suspension one year after it had knowledge of the licensee’s practice violations was unconstitutional.C.R. of Edn.

Agency shall obtain a certificate of mailing from the U. Ohio State Liquor Control Comm. 1999 Ohio App. Failure to claim occurs when party refuses to accept delivery of certified mail. b. Agency shall send notice by ordinary mail at party’s last known address.07 makes a distinction between failure to claim and failure of delivery.S. 98AP-1403. (c) Must be published once a week for three weeks.2. (b) Refusal of delivery by personal service is not failure of delivery. Postal Service. b. after certified mail service was refused. (3) Publication (a) Must publish a summary of the substantive provisions of the notice. a. Failure of delivery (1) If notice is returned because of failure of delivery. unless the notice is returned showing failure of delivery..C. (2) Personal Service (a) Performed by an employee or agent of the agency. c. 10th Dist. Failure of delivery occurs when a notice is returned by postal authorities marked undeliverable. R. Personal service on employee of business. at *5. satisfied due process requirement to give notice reasonably calculated to apprise the business owner of proposed action. (c) Personal delivery may be made at any time. (b) Notice must be published in a newspaper of general circulation in the county of last known address of the party. the agency must serve the notice by personal service or publication. Last known address is the mailing address of the party contained in the records of the agency. 12 . (i) Last known address is the mailing address of the party contained in the records of the agency. LEXIS 6530. Service is complete when the certificate of mailing is obtained. or forwarding address unknown or expired. d. address or addressee unknown. Fink v. Failure to Claim (1) If party fails to claim the notice: a. No. 119.

1986). Does the agency have sufficient evidence to support every charge stated in the notice? 4. LEXIS 116. Ohio State Racing Comm. Does the notice indicate the agency’s address and telephone number and. if necessary. 30 Ohio App. at *12-13. or any feature of it. (e) Notice deemed received as of the date of last publication. 02 JE 22. City of Lakewood v. 2. Practical Considerations 1. 2d 423. Sliker (10th Dist. a. 62337. Does the notice cite all applicable statutes and administrative rules? Were the cited statutes and rules in effect on the dates of the stated charges? (Note: Unless the statute at issue is retroactive. LEXIS 4755. such as patient names. so as to be precluded from afterward challenging the proceeding for want of notice. C-990200. Is the agency authorized by statute or administrative rule to take the proposed action? 5. by his conduct. Does the notice include confidential information. No.(d) A proof of publication affidavit. or may. 8th Dist. “A person entitled to statutory notice may waive it. An agency cannot enforce an order resulting from an improper notice of charges.C. (3rd Dist. the name of a contact person? 13 .) 7.C. 1st Dist. No. See also. R.. must be mailed by ordinary mail to the party at the last known address. para. Columbus v. G. with the first publication of the notice set forth in the affidavit. Prinz v. State Counselor & Soc. No. Does the notice state all of the respondent’s hearing and representation rights as specified in R. at *3. Waiver a. acknowledge the giving of notice to him. 3 Ohio App. Does the notice comply with all procedural requirements set forth in statute and administrative rule that are unique to the agency? 6. 7th Dist. Harris. Kirresh. F. 2003-Ohio496. 119. 3d 74. Failure to Give Proper Notice 1.” Fogt v. Does the notice clearly and accurately state the factual charges or reasons for the proposed action? Can the respondent prepare a defense using only this statement? 2. 2000 Ohio App. 424-25.07. which should be stated in a separate document attached to the notice? 3. Jefferson County Child Support Enforcement Agency v. Worker Bd. 76. 1965). 7. 1992 Ohio App. Failure of an agency to give notice as prescribed results in the invalidation of any order entered into pursuant to the hearing.07? 8. 119.

2. 119. If multiple violations. 1995). at *9 (telephone request to assistant attorney general insufficient. Agency erred by failing to timely set a hearing date and time as mandated by R. No.C.14. showing intent to request hearing. Computing Time Pursuant to R. 78AP860. LEXIS 11662. 1. the act may be done on the next succeeding day that is not Sunday or a legal holiday”. No. B. except that. 119. 1. Method of Requesting a Hearing 1..C.C. The time computations set forth in R. 1979 Ohio App. Chapter 119. Does the notice indicate the method of service to be utilized? 10. where attorney advised the licensee that request must be made in writing to the board). Chapter 119.C. at *9. 1. The time within which an act is required by law to be done shall be computed by “excluding the first and including the last day.07 begins to run on the date the agency or board mails the notice by certified mail. 54292.14 apply to proceedings conducted pursuant to R. Harrison v. Timing of Request (R. 10th Dist. HEARING REQUESTS A. 1987 Ohio App.C. The court found this was sufficient notification because licensee had expressly reserved the right to adjudication. 8th Dist. R. LEXIS 9961. which letter also stated that licensee was not waiving his right to a hearing.14 states that when a public office is closed to the public and it is the last day to do a required act. Licensee sent a letter proposing an informal settlement. v.C. Ohio State Med. “the act may be performed on the next succeeding day that is not a Sunday or a legal holiday.9.14. a. 14 .” IV. Bd. 318.C. In writing a. Bd. Williams. 1. a. 1. But see Alcover v. The thirty days provided by R. A party must request a hearing within thirty days of the date of mailing the notice. (10th Dist. R. 3d 317. is it clear which alleged facts violate each statute or rule stated in the notice? H.07) 1. 103 Ohio App. Reserving right to hearing shows intent to request. when the last day falls on Sunday or a legal holiday.C. Ohio State Med. Chapter 119 does not specifically provide that a request for hearing must be in writing. Standard Oil Co. 2.

1987 Ohio App. 2. 3d 287. Medical Board. d. 110 Ohio App. C. 3d 589. 88AP-276. 10th Dist. Cannot testify. at *8-9 (appeal following remand).. No. Bd. at *7. No. Ohio State Med. .. the Tenth District Court of Appeals held that the agency must review some evidence in support of the notice even if the licensee fails to request a hearing: “[T]he procedural safeguards which would make any hearing meaningful may not require a full adversarial and evidentiary proceeding. or present other evidence. agencies generally perform an evidentiary review prior to taking action..C. 1990).may or may not be implicated when prisoners request a hearing. May attend hearing. If respondent fails to timely request a hearing. 2011-Ohio-431.. in the interest of due process. the agency need not hold full-blown R. would be needed to fulfill the requirement for a hearing . Bd.28(D)) amended their statutes in response to the Goldman decision. State Med.” Goldman v. R. Chapter 119 hearing.C. See Amon v. 67 Ohio App.. 1998 Ohio App. call witnesses. LEXIS 9961. Ohio State Bd. to provide that no hearing must be held if one is not requested. including the sworn testimony of the investigator. The “prison-mail rule” – which states that the date of filing for inmates is the date of delivery to prison authorities . Note: Many agencies (e. c. R. 98AP-238. the Board lacked any statutory authority to permit [plaintiff’s] participation. Ohio State Chiropractic Bd. 2001). LEXIS 4918. No. at *5-6.” Kellough v. A party’s mere act of placing a request for hearing in the mail within the thirty-day period does not constitute compliance with the requirements of R. Alcover v. (10th Dist.C. Chirila v. Effect of Failure to Timely Request a Hearing within Thirty (30) Days 1. Ohio State Medical Bd. Bd. 15 . LEXIS 3977. but some sort of reliable evidentiary review.C. The notice must be received by the agency within the thirty day time period. 129.07. . (10th Dist. b. 145 Ohio App. No. Hsueh v. Bd. 596-97. b. because of public nature. 10th Dist.C. of Edn. 1996). of Ohio (10th Dist. Nursing Board. . 10th Dist. 4731. however. “…nothing in the Board’s enabling statutes or R.g. 1989 Ohio App. 291 (court declined to decide issue). Loss of party’s right to participate. No right to make argument. 3d 124. 10AP-419. Goldman v. 54292. a.b. 4123. . Ohio State Med. Evidentiary review in lieu of hearing a.22(J). however. 8th Dist. Chapter 119 sanctions [plaintiff’s] participation in the hearing . . as well as a more considered review of the circumstances of the case. in 1996. 2. 119. State Med.

1988). para. Ohio St. date and place for the hearing. Id. The date set must be seven to fifteen days from the time the party requested a hearing. see Section IX APPEALS. Initial scheduling is mandatory (1) The agency was not permitted to continue the hearing on its own motion after first scheduling the hearing 19 days after the request for hearing. R. 119. Ohio State Racing Comm. 2. 119. 1993 Ohio App.07.. 40 Ohio App. and then. LEXIS 2713. but may then continue the hearing to a later date. Ohio State Racing Comm.C. Id. 19 Ohio App. unless otherwise agreed upon by both the agency and the party. No. No. Kizer v. not mandatory. 1988).C. In re Barnes (10th Dist. v. the agency shall immediately schedule the time. CA2867. 113. in the same notice. 3d 201. at *7. 119. 3d 256. at *7-8. (9th Dist. 61 Ohio App.09. Effect on appeal rights (split in decisions). Initial Scheduling 1.07. (10th Dist. Continuances 1. 5th Dist. inform the party of the continuance. 262. and forthwith notify the party. 1991 Ohio App. Requirement to hold hearing within fifteen days is directory. V. a. No. 60858. Ohio Dept. 3d 111. 1969). The agency may postpone or continue a scheduled hearing upon its own motion or the motion of any party.C. b. The agency will often set the initial hearing date. of Commerce v.. LEXIS 2034. infra. the court said that two (2) years was an unreasonable delay. para. (1) In In re Application of Milton Hardware Co. B. the agency must initially schedule the hearing for seven to fifteen days from the date of the request. a. McCullion. 166. 8th Dist. 2d 157. (2) Thus. LEXIS 6173. 1991 Ohio App. See In re Application of Milton Hardware Co. Kash (8th Dist. b. Practical Note. 10th Dist. because the agency has the authority to continue a hearing upon its own motion. 3. Once a party requests a hearing.3. Yoder v. 92AP-1430. at *4-5. 31 Ohio App. SCHEDULING OF THE HEARING A. Vild. Sahely v. of Edn. R. 3. R. A hearing cannot be continued for an unreasonable amount of time. A fair hearing by an administrative agency requires that such hearing and determination be had in as expeditious and timely manner as possible under the circumstances. Bd. 16 . 3. 1986).

If no hearing examiner has been appointed. (3) Disputes over preliminary procedural/jurisdictional issues that delay a hearing on the merits are not unreasonable delays. Inc. a party can request a continuance upon motion to the hearing examiner. Requests should not be made ex parte. and resulting delay in agency action. Merits of request for continuance a. 17 .. (2) Whether the delay of the hearing. 3. Gourmet Bev. No. Inc. v. at ¶ 14. (4) A delay in holding hearing is not reversible error unless the party can show prejudice from the delay. presents a risk of danger to the public. Immke Circle Leasing. Ohio Bur. c. Chapter 119 does not set forth guidelines for continuances. 2006-Ohio-4227.. Cntr. No. 2006-Ohio-4227. b. Ohio Bur. but agencies often consider the following reasons for requesting a continuance: (1) Conflict of counsel due to priority matter. 2002-Ohio-3338. of Motor Vehicles. Other considerations (1) Whether the licensee retains an active license. v. (5) The need for additional time for active settlement negotiations. (2) Health or medical issues preventing counsel or licensee from attending hearing. including prior scheduling of trial or other court date. at ¶ 20. Agency law and rules may further delineate the process for requesting a continuance. v. the party should request the continuance directly from the agency or board. (3) Availability of key witnesses. b. 10th Dist. 2. of Motor Vehicles. Immke Circle Leasing. Inc. (4) Complexity of case and adequacy of time for counsel to prepare a defense. R.C.(2) The Tenth District held that a 283-day continuance of hearing was permissible when the party did not object and delay was at least partially explained. If a hearing examiner has been appointed. 05AP-1179. 10th Dist. Ohio Liquor Control Comm. Requesting a continuance a. 01AP-1217. (3) Whether previous requests for continuances have been granted.

.C. Ohio State Bd. are not applicable to the administrative hearing procedure.C. 2001 Ohio App. LEXIS 3290. . including discovery rules. 5th Dist.01 to 119. Similar to the civil rules.c. R. The Ohio Rules of Civil Procedure. The taking of the deposition shall be in the same manner as is prescribed by law for the taking of depositions in civil actions. No. at *10. R. Wayne S. 2012-Ohio-1002.C. para. 7th Dist. of Ohio. 2. b. discovery rules do not apply. Bd. R. Bd.” White Consolidated Industries v. at *9. ¶ 43. Finally. . Dept.. Nichols (1984).09: “For the purpose of conducting any adjudication hearing required by sections 119. LEXIS 305. Depositions 1. Froug v. Casey v. No. See Moffett v. 11-CA-9. 00 CA 264. the Criminal Rules of Procedure do not apply to proceedings conducted pursuant to R. the deposition may be used at 18 . 7th Dist. 02AP-1315. Mahoning Cty. 2003-Ohio-7007. ¶ 40. 6th Dist. of Human Serv.” b. . Ohio State Bd.C.13 of the Revised Code. 2003 CO 7. a. B.09. 3. For the purpose of conducting an adjudication hearing. 10th Dist. No. 2003-Ohio-4061.” R. Ohio Board of Nursing. 00AP-523. No. 1(A) limits the Civil Rules to “all courts of this state in the exercise of civil jurisdiction at law or in equity . The agency's own law and rules may provide protection to certain records. “The formulation of procedural rules of administrative agencies is basically left to the discretion of the agencies. VI. Leake v. ¶ 24 and 32. Gipe v. Chapter 119 provides for depositions in lieu of hearing. 119. Dist. 10th Dist. Chapter 119. 2002-Ohio-606 at * 10. Salem City Sch. an administrative agency may allow testimony by deposition for witnesses who will not be available at the time of the hearing.. 1993 Ohio App. 2 (emphasis added). Agency law or rules may set guidelines for consideration of motions for continuance of hearing. . S-32-92. of Pharmacy. 9. OBTAINING EVIDENCE AND SECURING WITNESSES FOR HEARING A. . State Med. . Miller v. .C. The courts have held that because the Civil Rules are not applicable to administrative hearings. Civ. a. of Psychology. may take the depositions of witnesses residing within or without the state in the same manner as is prescribed by law for the taking of depositions in civil actions in the court of common pleas . No. No. 15 Ohio St. 119. of Ed. 4. According to R. The agency’s own law and rules may provide for a discovery-like exchange of information. Chapter 119 Does Not Provide for Discovery Under Civil or Criminal Rules of Procedure 1. the agency . 3d 7.

of Ohio v. at *9-12. R. (2) The court further indicated that Froug could have requested a continuance if more time was necessary to review the records.C. 28-29. 119. 1992). at *11. 119. The agency violates R. 611-12. Burneson v. Chapter 119 provides that a party may request the issuance of a subpoena duces tecum for the purpose of conducting a hearing. of Pharmacy v. Because R. a.C. Method of delivery 19 . R. 00AP-523. and upon request of any party shall. Ohio State Bd. b. 2001 Ohio App. Id. C. Ohio Board of Nursing.C. b. 2. issue a subpoena for any witness or subpoena duces tecum to compel the production of records.” State Med.C. a. 3d 605. 80 Ohio App. Bd.hearing against a party who was present or represented at the taking of the deposition. 66 Ohio St. For the purpose of conducting an adjudication hearing. R.C. 119. Frantz (1990). 2009-Ohio-1103. Parties cannot obtain prehearing discovery depositions regardless of whether the depositions are described as “depositions” or “prehearing discovery depositions. Proper service and fees a. Poppe (12th Dist. b.09 by not issuing a subpoena when requested by the respondent. 3d 527.09 does not provide for prehearing discovery depositions by a party to an adjudication hearing. 10th Dist. Subpoenas for Purposes of a Hearing 1. at ¶ 24. 535. 10th Dist. reversal of the agency’s final order is not necessary where the respondent fails to show prejudice. Murray (1993). (1) The Froug court held that the respondent was not denied due process when she failed to attend the hearing and avail herself of the opportunity to review the records. The mandatory language in R. 48 Ohio App. 2.09 is satisfied when the agency subpoenas records to be delivered at the commencement of the hearing. The subpoena shall be directed to the sheriff of the county where the witness resides or is found. 3d 222. 1988). No. Ohio State Bd. 08AP-794. 119. 51 Ohio St.09 (emphasis added). See Froug v.09 pertains to securing the attendance of witnesses and the production of records and documents for the purpose of conducting an adjudication hearing. R. the agency may. 119. No.. Chapter 119 does not provide for discovery depositions. of Pharmacy v. however.C.C. In re Heath (10th Dist. LEXIS 305. Id. 145. and served and returned in the same manner as a subpoena in a criminal case is served and returned. Ohio State Racing Comm. 3d 143.

734. No. (2) Witness outside the county: Crim. 86-066.C. 92 Ohio App. OAG Opinion. error could be cured by subsequently tendering the fees. (3) Fees and mileage of the sheriff and witness shall be the same as that allowed in the court of common pleas in criminal matters. 86-066. 17(D) provides that the return may be forwarded through the postal service. valid service is completed.. (4) Fees and mileage shall be paid from the fund in the state treasury for the use of the agency in the same manner as other expenses of the agency are paid. Perfection Corp. witness fees and mileage fees must be attached to the subpoena and tendered without demand or the witness is not obligated to appear. 2. (b) When the fees were not tendered with subpoena.O. Fees (1) Witness residing within county: Crim. 1994). (a) Where a witness lives outside the county where the agency is located.(1) Criminal Rule 17(D) provides that service of a subpoena upon a person shall be made by delivering a copy to such person or by reading the subpoena to him in person. R. (a) A witness living in the same county as the agency waives the right to fees if not demanded upon services. See R.08 for current amount. c.C. 10th Dist. 20 . State v. A. Return of subpoena a. 17(D) provides that if the witness resides outside the county where the agency is located.09. 119. the fees for one day’s attendance and the mileage fees allowed by law. R. (2) When a subpoena was sent via regular mail to the witness’s usual place of residence and the witness has actual knowledge of the subpoena and of the consequences for failing to comply with the subpoena. 2335. R. Must be returned in the same manner as a subpoena in a criminal case. at ¶ 26. 17(D) provides that proper service is effected by tendering to the witness. R. 3. Crim. Castle (9th Dist. v. fees shall be tendered without demand. b. para. or by leaving it at his usual place of residence. 2004-Ohio-4041. R. if tendered prior to the time appearance is compelled. or otherwise. and the witness may not later refuse to appear solely because the fees were not tendered upon service. upon demand. OAG Opinion. 119. 3d 732. 03AP-266.09. Smith Corp.C.

(2) Attachment proceedings for contempt are set forth in R. 3 Ohio App. (3) Requirement to Enforce if Requested.21. 1998 Ohio App.C. 3d 218. v. LEXIS 2020. (b) Court issues a “writ of attachment” to the sheriff or constable to bring the witness before the Court “to give his testimony and answer for the contempt. 119. 18658.09. (c) A court of common pleas has a mandatory duty to compel attendance by attachment proceedings when a witness refuses to testify in an administrative hearing. Western Reserve Psychiatric Habilitation Center (9th Dist. 8 Ohio St. 21 . (b) The application is filed in the court of common pleas where the disobedience occurred. (1) Upon failure to comply: (a) Agency must file an application to enforce the subpoena if requested. the court shall compel obedience by attachment proceedings for contempt. 2317. (b) Although the agency is required to seek enforcement of subpoena. Ohio Motor Vehicle Dealers Bd. But the court "by a rule.4. Remlinger (1983).C. (c) If the matter is one in which the witness may be subject to lawful questioning. 3d 26. Ohio State Dental Bd. at *13. 27. (4) An agency is limited to the statutory attachment procedures to sanction contempt of its subpoenas. Green v. may order. LEXIS 2020. No. Carratola. (a) This statute is inapplicable if proper fees are not paid to the witness.. subject only to proper privilege assertion by the witness. 1981). such as limiting testimony of other witnesses. 9th Dist. 220. Failure to obey subpoena/sanctions a.C. him to show cause why such writ should not issue against him" if the witness was served with the subpoena in some other fashion. at *13.” R. 2317. 2317. (c) The writ will only issue for disobedience of a subpoena “personally served” on the witness. (a) The agency is required to seek enforcement if asked by the party who requested the subpoena. Carratola v. Contempt proceedings.C.21. R. failure to do so does not require reversal of the agency’s decision unless the appellant shows prejudice resulting from the failure. and may not resort to other forms of punishment. R. 1998 Ohio App. (d) Court shall compel compliance as in cases of disobedience of court subpoena.21.

45(E) may be granted. Bd. 173. of Securities. Chiropractic Board. Medical records a. (1) Absent specific statutory authority or a pending case or appeal.29).C. Other agencies. because R. Medical Bd. In re Investigation of Laplow (9th Dist.C. 1. Enforcement a. 87 Ohio App. The Medical Board’s statutory authority to subpoena patient records is not dependent upon patient consent. 3d 386. since the legislature has empowered them to issue subpoenas. State Med. R. (2) If the statute grants enforcement according to the Civil Rules. Chapter 119 does not provide statutory authority for a motion to quash. D. Franklin C. 4723.20(H).22(F)(3). Bd. See discussion re: Health Insurance Portability and Accountability Act (“HIPAA”). Dept. 4723. Chapter 119.C.C. do not have specific statutory procedures for enforcement of investigative subpoenas. 3d 59. Hildebrant (1915). R.g. 22 . Ombudsman. b. Some agencies have statutory authority to issue investigative subpoenas. 2.C. 390-91. for purposes of investigation. In re David E. R. 96 Ohio App. 1707.24. Dept. D.C. R.29). State Med. for general principle of implied power to perform duty. (E. In re Investigation of Laplow (10th Dist. of Aging. 4731. 4734.P. Thompson. Board of Nursing. there is an implied power to enforce them through the court..22(F)(3). Div. the only avenue available to a witness is to defend an action to compel. R. Motions to Quash not authorized by R. 3d 305.C. e. 93 Ohio St.g. Ombudsman. Investigative Subpoenas 1.C. of Securities. Investigatory subpoenas are those to compel testimony or the production of records. 1994). b. 2000). the court of common pleas has no jurisdiction to entertain a motion to quash an administrative subpoena. See State ex rel. 4. R. Board of Nursing.C. 108 Ohio App. prior to hearing. 307. below. 4731. of Aging.20(H). Chiropractic Bd. 1993). (2) Thus.. However. v.C.g. Polen. R. R... 1707. 173. 3.24.48(A)(2).C. Hunt v. (e. 61. Div. R.. 00MS000041 (July 24. paragraph 4 of the syllabus. (10th Dist.b. R. No.C.. it is reasonable to argue that the sanctions permitted by Civ. Implied power. Specified authority (1) Some agencies have specific statutory procedures for enforcement of these subpoenas. 1996).

or sent under the jurisdiction of a public office. Multimedia v. etc. (2) Is created.43(A)(1)(g) and (4). R. and (3) Documents the organization. 67 Ohio St. Cincinnati Post v. 3d 141. 3d 439. prognosis or medical condition of a patient. 149. Schweikert (1988). see the most recent version of the Ohio Sunshine Law Update published by the Ohio Attorney General.C. c. diagnosis. 440. State ex rel.C.C. 72 Ohio St. 72 Ohio St. R. Kraft (1993). a.C. d. 149. A “record” is any item that: (1) Contains information stored on a fixed medium (such as paper. 173. 149. 142.E. 149. The Public Records Act applies to any record. 3d 141. 3d 170.011(G). State ex rel. The requested records must be released unless they fall within an exemption or exception to the Public Records Act. 149. Medical records. Any doubts are to be resolved in favor of disclosure. computer. (1) The information must pertain to the medical history. decisions. procedures. Multimedia. Respondents May Obtain Certain Agency Records through the Ohio Public Records Act. 149. State ex rel. (2) The record must have been generated in the course of medical treatment. 142. c.). Snowden (1995).) 1. not exempt by law. received. of a public office. Uncirculated personal notes. The provisions of the Act that provide access are to be liberally interpreted and exemptions are to be strictly construed. Trial preparation records. b. as defined under R. For more detail. Exemptions/Exceptions: a. but not generated in the process of medical treatment is not covered by the medical records exception. R. b. see R.C.43(A)(1).C.011.43. functions. (a) A report of a medical professional generated as part of the decision making process regarding employment. 38 Ohio St. film.43(A)(1) and (3). For a complete list of exemptions. operations or other activities of the office. R. see Steffan v. 23 . (The following is a brief outline of Public Records Law. 2. policies.

R. information in a prosecutor’s files is deemed to be trial preparation material. 47 Ohio St. witnesses or information sources. 63 Ohio St.(1) In the criminal context. 156. 70 Ohio St. (v) Specific investigatory work product. the work product exemption appears to be more comprehensive in the context of a criminal 24 . 64 Ohio St. Inc. State ex rel. 431-32. 149. (1) As with the trial preparation exemption. 682. Barton v. 3d 308.C. 37 Ohio St. Conrad. McGee v. the administrative agency’s investigative file may be trial preparation if criminal prosecution was anticipated by the AAG. 502. 3d 59. 1993-Ohio-192. (ii) Identity of an information source or witness to whom confidentiality has been reasonably promised. 1996-Ohio-234. 309. Confidential Law Enforcement Investigatory Records (“CLEIR” Exception). City of Cleveland. Martin (1988). 3d 28. 3d 420. Franklin County Sheriff’s Dept. Beacon Journal v. State ex rel.e. 3d 498. Ohio State Bd. (3) Dicta contained in State ex rel. 3d 681. Thompson Newspapers. 74 Ohio St. Steckman. Yant v. State ex rel. (a) Step 1: Does the record pertain to a law enforcement matter of a criminal. (1) Two-step analysis for determining applicability of this exemption. 70 Ohio St. 2d 392 (routine techniques not protected). (2) The application of this exemption appears to be more limited in the civil and administrative context. suggests that when an assistant attorney general is consulted in regard to an administrative licensing investigation to determine if there may also be evidence for a Medicaid Fraud prosecution. University of Akron (1980). 49 Ohio St. civil or administrative matter? (b) Step 2: Would release of the record create a high probability of disclosing any of the following: (i) Identity of an uncharged suspect. SERB (1992). requiring a showing that the information was not gathered for some purpose other than litigation.. 60-61. (iii) Information creating a serious danger to law enforcement personnel. 29-30. Shupe (1988). of Psychology (1989). probable cause determination or investigation into wrongdoing. State ex rel. Steckman v. e. v. 67 Ohio St. State ex rel. State ex rel. (iv) Specific investigatory techniques and procedures. i. Jackson (1994). 3d 420. reversed on other grounds. State ex rel. v. 3d 155. Martin v.43(A)(1)(h) and (2). crime victims. quasi-criminal.

1333. State ex rel.C. This is far from an exhaustive list. White. (b) Student Education Records. discusses the applicability of this exception to administrative investigation files. (2) The following line of cases illustrates the volatility of this area of the law. for example the Trade Secrets Act.C. 3d 681. Toledo. (1990). The Family Education Rights and Privacy Act 25 . the confidential law enforcement investigatory record exemption remains applicable until all proceedings are complete. LEXIS 875. One particularly noteworthy exemption premised on federal law is the exemption of social security numbers.C. City of Akron (1994). 75 Ohio St. State ex rel. 3d 605. Jackson (1994). 3d 185. State ex rel. (a) Social Security Numbers. 5153.43(A)(1)(v). 2000 Ohio App. See State ex rel. 1996-Ohio234. Beacon Journal v. R. R.17 (Director of Commerce Investigations).C. 1996-Ohio-204. R.421 (Child abuse and neglect investigation records). based on a federal privacy interest. So long as the statute can be read to prohibit general release. (5) State ex rel. (a) Many state administrative clients have statutes making specific information confidential. Records the release of which is prohibited by state or federal law. Police Officers for Equal Rights v. 3d 420. Renfro v. Ohio Patrolmen’s Benevolent Assn. Toledo Police Patrolman’s Assn. 173. 54 Ohio St. of Human Serv. 360. (2) General confidentiality provisions. (3) Federally protected information. Leonard v. e. L-99-1143.22 (Long term care ombudsman investigative files). not related to any one specific agency. 6th Dist. See. 3d 516. Lashutka. 149. that create confidentiality. Mayfield (1990). f. Mentor. 77 Ohio St. R. There are also general state statutes. (4) Once applicable. v. 3d 51. The following are a few examples: R.g. (1) Agency confidentiality provisions. Yant v.27 (PERS member information). 72 Ohio St. 2151.20 and 3309. R. 3d 25. Leis. Local 10 v.proceeding than in the context of a civil or administrative proceeding. 145. State ex rel. WLWT-TV5 v.65. 1995-Ohio-19. 1997-Ohio-273. 612. Conrad. 3307. 70 Ohio St. 89 Ohio St. Be sure to check the agency’s own statutes. 50 Ohio St. R. 3d 440.22 (STRS and SERS member information). 27 (child abuse investigation reports). 70 Ohio St. State ex rel. 3d 357. the statute likely qualifies as an exemption under this statute. 74 Ohio St.C. Polovishack v. Cuyahoga County Dept. No.C. State ex rel.21 (Client records of rehabilitation services).C. 3304. (b) The legislative language used to create confidentiality may be phrased in different ways. 2000-Ohio-214. Steckman v. R.C. State ex rel.

5 U.C. 2953. or to impose a waiting period before the record is sealed pursuant to R. 3. all responsive records must be promptly prepared and available for inspection at all reasonable times during regular business hours. § 552.C. R. (c) When determining whether a federal exemption applies. the agency may deny the request. Access to court record sealed or expunged under R.52(A)(1).C. R.3d 416. Mechanics of making and responding to a public records request.C.S. (4) Privileged information (a) See discussion below. 149. the agency shall make copies available at cost and within reasonable time.C. do not generally act to exempt records in the hands of a state agency. Section F. the trial court has discretion either to grant the motion immediately under R. 2953. g.C. Niesen-Pennycuff.52(A)(1).43(B)(1). Consult FERPA for requirements and exceptions. The agency may ask that the request be put in writing to assist it in responding to the request. § 1232g(b)(1). b. A pending administrative proceeding involving a conviction or intervention in lieu of conviction may be affected. 149. 149. remember. R. 2012Ohio-2730. protects the release of educational records without written consent of the student or the student’s parents.C. 132 Ohio St.041(E).C.32(A)(1). records made confidential in the hands of an agency of the federal government are usually not exempt when in the hands of the state agency.C. The Supreme Court of Ohio in State v. Protected Information regarding privileged information. but the Public Records Act does not require that the request be put in writing. 20 U. (a) Redaction must be plainly visible.S.(“FERPA”).43 provides: (1) Upon request.43(B)(1). (4) If information within a public record is exempt.C. a. held that when a criminal defendant who has successfully completed a program of intervention in lieu of conviction moves for an order sealing his or her record under R. 2951. but must provide the requestor with an opportunity to revise the request. unless the state agency is acting for the federal agency in some substantial respect. R. 149. 26 . the agency must provide a redacted copy. 2953. Exemptions under the Federal Freedom of Information Act.43(B)(2). in most instances. (2) Upon request. (3) If the requestor makes an overly broad or an ambiguous request.

(b) Maximum $1000.C. b. The specific statute trumps 149. that party cannot obtain the documents at cost under the Public Records Act. Rogers (2004). the party must pay the court reporter to get a copy of the court transcripts in common pleas court. R. (5) If the request is denied. the party is entitled to the copy at cost. (2) The public office cannot charge for inspection. 27 . if a party only seeks a copy of an audiotape of court proceedings. provides insight into how the operative terms in R. 149. R. 149. 103 Ohio St. (1) At cost does not include employee labor time. the agency must provide an explanation for denial. Warren Newspapers v. 9-4).C. 149. (3) Regular business hours for a police department which is open 24 hours a day are normal administrative hours (i. However. Slagle v. 4. d.e. If a specific statute requires a party to an action to pay a designated fee to the court reporter for transcripts or copies of transcripts. (2) Attorneys Fees: (a) The aggrieved party may obtain attorneys fees where: (i) The party made a proper request for public records pursuant to R.(b) Redaction is considered a denial.43(C).43.C.43(B)(3). 621-26. 2004-Ohio-4354. State ex rel. 3d 619. 70 Ohio St. Liabilities (1) Civil penalties: (a) Statutory damages: $100/day after filing of mandamus action. at ¶ 15-17.C. rather than a transcript of the audiotape. 1994-Ohio-5. 3d 89. Hutson. 149. Enforcing Public Records Act a. indicating legal authority for denial. in whole or in part. R.C. 149. c. (ii) The custodian of the public records failed to comply with the party’s request.43(B) are to be interpreted.43. therefore. Anyone aggrieved by an agency’s failure to release a public record may bring a mandamus action to compel release. (c) Only awarded if the requestor transmits a written request via hand delivery or certified mail.43.

Protects the privacy of Protected Health Information (“PHI”). and in most cases requires the consent of the patient for release. a. 3.N. (b) the rationale for the privileges are similar. Health Insurance Portability and Accountability Act (“HIPAA”).512(f): Disclosure for Law Enforcement Purposes. Supp. F.512(e): Disclosures for Judicial and Administrative Proceedings. (c) both of the privileges are limited in application. [and] the contributing influences” of an administrative decision. 577. Pennington v. 45 CFR § 164. (1) The general deliberative process privilege is routinely grouped and usually interchangeable with the executive privilege. Protected Information 1. Relation between the executive privilege and the deliberative process privilege. 174. above. b. 75 Ohio St. Gundler (1996). 2. Note: regulations state specific parameters and conditions for application of each type of exception. In re Franklin Natl.D. Confidential records: See Public Records Act Section E(2). 3d 171. opinions. 478 F. Bank Securities Litigation (E. 45 CFR § 164.C. (2) The reasons for this are that: (a) the actors are the same. (2) The judiciary is barred from probing into “the methods by which a decision is reached .(iii) The requesting party filed a mandamus action pursuant to R.512(d): Disclosures for Health Oversight Activities.512(a): Disclosures Required by Law. b. 45 CFR § 164. (iv) The party received the requested public records only after the mandamus action was filed. Deliberative process privilege/executive privilege. What is protected? (1) Protects advice. Id. 582. recommendations. State ex rel. 149. exemptions/exceptions.43 to obtain copies of the records. Exceptions that may permit agencies to subpoena PHI without patient consent: (1) (2) (3) (4) 45 CFR § 164. a. at 28 . 1979). and other communicative means used by a government decision-maker in the process of reaching a decision. . .Y.

N. Jordan v.D.R. (a) Someone with sufficient authority as determined by role or hierarchical status. 1985. Jena (D. 935. (2) However. 2d 94. 136 F. B. 1966). 1991). The deliberative process privilege and the executive privilege are qualified privileges. Common law recognition of the privilege (1) The deliberative process privilege has been recognized and sanctioned by Ohio courts. 1978). 390. e.N. 3d 729. 29 . 736-37. 37 Ohio App. Henneman v. which holds that there is no deliberative process exemption to the public records law. Requirements for application of the privilege. SEIU.Y. Morgan (1941). Marzetti Co.g. 591 F. f. 42. Gulyassy (10th Dist.N. Bd. Mary Imogene Bassett Hosp.C. 33 Ohio App.581 (quoting Carl Zeiss Stiftung v. Atty. 1972). 3d 25. Rev. v.A. 44. Gen. 332-26) (executive privilege case). v. v. Libis v.L. Raveson. 396. AFLCIO v. Mary Imogene Bassett Hosp.D. 1998-Ohio-445. 409. Inc. 136 F. 40 F. Natl. 107 Ohio App. 313 U. of Zoning Appeals of Akron (9th Dist. (3) The Supreme Court has held that in an administrative proceeding in which R. the “judicial mental process” privilege prohibits the release of the attorney-examiner’s report to the parties. c.S.Y. T.S. (2) The primary rationale for the privilege is that forced disclosure of the decisionmaking process would discourage future communications and diminish the efficiency and validity of executive decision-making.D. 96 F.D. of Justice (C. v. 772. Louis S. d. and that the privilege is an exception to the Public Records Law. Dist. June.R. Chapter 119 does not apply. thereby harming the public interest.S.D. 96. Dept. 879. (1) Asserted by high-level government official. Union.R. Sullivan (N. 1987). 1991).D. TBC Westlake.D. head of the agency.R. 3d 58. 44.D. Carl Zeiss.E. see State ex rel. U. 243 (executive privilege). 1982). U. 2d 753.C. 28-29. of Revision.Y. 81 Ohio St. 3d 241. e. or by a high-level subordinate/delegate. (S. 1995). V. 35 Ohio St. 42.D. v. City of Toledo (1988).C. Lawyers Guild v. (2) Information sought to be protected must be pre-decisional and the communications must be part of the deliberative process. See also. Unmasking The Motives Of Government Decisionmakers: A Subpoena For Your Thoughts?. 63 N. Sullivan (N. Doyle (10th Dist. Purpose (1) To protect the decision-making process of government officials. 1199 Health Care & Social Serv. 318.C. 64. Hamilton County Bd.

Attorney-client privilege a. (d) Note: R. Gregor. 30 . 1979). (b) Deceased client's executor/administrator expressly consents.02(A) provides the exclusive means by which privileged communications directly between an attorney and a client can be waived.(1) Courts review evidence in camera. 683. 478 F. b. Nixon (1974). In re Franklin Natl. U. (c) Client voluntarily testifies or is deemed by R.02(A) limits an attorney testifying “concerning a communication made to him by his client in that relation or his advice to his client.421 to have waived the privilege.D. 2006-Ohio-4968. Statutory privilege (1) R. attorney-client privilege has basis both in statute and common law. 2317. In re Franklin Natl.D. paragraph one of the syllabus. 577 at 582-87. (2) Courts use a balancing test.N. 1979).C.Y.N. privilege is not waived by mere disclosure of communications to a third party. 3d 488. Supp. (ii) The availability of other evidence.Y. (iii) The importance of the litigation. Jackson v. (iv) The role of the government in the litigation. Supp. 4. 418 U. In Ohio.C.S. Bank Securities Litigation (E.S. v. 577 at 583. 478 F.C. 2151. (v) The possibility of future apprehension by government employees who will realize that their secrets could be breached. 2317. 707. (a) Court weighs the government’s interest in non-disclosure versus the court’s fact-finding needs. (b) Factors (i) The relevance of evidence sought to be protected.” (2) Exceptions (a) Client expressly consents. Bank Securities Litigation (E. 110 Ohio St.

however.021 defines “client” in the privilege statute to include the client’s “agent. Last. v. 131 Ohio St. Common law privilege (1) The common law attorney-client privilege applies to communications between a client and an agent of the attorney. and leaving privileged documents in a public hallway. 305. McDermott. leaving documents in a place where third parties have access to them and no measures are taken to maintain confidentiality. See Treatises. The statutory privilege does not define “attorney” as including an agent. Also. they are protected by the attorneyclient privilege.” (4) Applies to attorney only. 32 Ohio St. below. R. (b) Practical Note. or representative of the attorney. a partial. Bloom-Carroll. State ex rel. The privilege can be waived unintentionally by conduct which implies a waiver. Travelers Indemnity Co. 573-74. Bloom-Carroll Local School Dist. voluntary disclosure of privileged communications can result in the loss of privilege for all other communications that deal with the same subject matter. 3d 380 at 385. because no intention of confidentiality exists. (4) To the extent that narrative portions of attorney-fee statements are descriptions of legal services performed by counsel for a client. (5) Waiver (a) The common-law privilege is destroyed by voluntary disclosure to others of the content of the statement. Dawson v. is a preliminary communication with that attorney about the case). 2011Ohio-6009. 131 Ohio St. 3d 380. 1995-Ohio-80. 2011-Ohio-6009. 385 (defendant's discussion with polygraph examiner hired by attorney for defendant was privileged. 2317. ¶ 28. Such conduct might include not screening files released in a discovery production of records. The statute’s language prohibits testimony by an attorney. 31 .3d 10. careless or inadequate document screening procedures. keeping privileged documents in files that are routinely reviewed by third parties.3d 10. 32 Ohio St. Cochrane (1951). (3) Communications must be made in confidence and not in the presence of strangers. c. Post (1987). Post. State v. copied to the retained attorney. State v. 72 Ohio St.. State v. State ex rel. or other representative. it is not privileged and must be produced. employee. 3d 570.(3) Definition of client. not agents. employee. 155 Ohio St. privilege was waived when witness discussed his statements to polygraph examiner with third party who was not agent of attorney. 316. if the communication was not intended to be confidential. Dawson v. whereas the common-law privilege could be viewed more broadly.C. ¶30 (Insurance company stands in the shoes of its insured and the insurance company’s letter.) (2) Not necessarily limited to precluding attorney’s testimony.

318.D.E. 324. 1990).. 3d 8. Dann v.C. v. of Revision. 11-12. 6. (1975). In re Petition for Annexation (10th Dist. Evidence and Witnesses. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. at 383-384. 1966). Attorney-Client Privilege in the United States. Evidence (4th Ed. 1997). c. all administrative hearings are open to the public. at P. 3d 58. 3d 729. 81 Ohio St. No. 61. 3d 364. 737. VII. 352 (hearing public pursuant to Chapter 119. The privilege allows the government to withhold documents and other materials that would reveal advisory opinions. Sections 824-847. Carl Zeiss.R. Standard to be met in order to establish the privilege and the reason for the privilege: (1) the material must be pre-decisional. v. citing Natl.D. 81 Ohio St. 1988). TBC Westlake.D.C. State Med. Treatises a. However. 01AP-344. V. 3d 346. Bd. 421 U. 70 Ohio App.S. 132 at 151. b.C. 44 Ohio Jurisprudence 3d. Both requirements stem from the privilege’s ultimate purpose [which is] to prevent injury to the quality of agency decisions’ by allowing government officials freedom to debate alternative approaches in private. Id. 1983). TBC Westlake. quasi-judicial hearings are not “meetings. Hamilton County Bd. 2001-Ohio-8766. 121 F. R. 3d 58. of Revision. Paul R. Open to the public a. 87-91. Jones v.01(E). Rice (1993). b. 2006Ohio-1825. Jena (D. (10th Dist. quoting In re Sealed Case (C. Inc. Nature of Proceeding 1. Angerman v. Liquor Control Comm. Sears.5.” and are not subject to the Open Meetings Act. quoting Carl Zeiss Stiftung v. 119. 10th Dist. and (2) it must be deliberative. at 383. 1998-Ohio-445 (“sunshine law” does not apply to adjudication proceedings at the Board of Tax Appeals because its adjudication is quasi-judicial. 32 . See also. b. Taft. and therefore should be held in “executive session”). THE CONDUCT OF HEARINGS A. c. Hamilton County Bd. See State ex rel. 109 Ohio St.383-385. Labor Relations Bd. 52 Ohio App. Unless an agency has a specific law to the contrary.A. v. 40 F. Roebuck & Co.B. Id. 8 Wigmore. Deliberative Process Privilege a. 1998-Ohio-445. The Ohio Supreme Court has recognized the common law tenets of the deliberative process privilege. but deliberations need not be in open meeting). 61. Inc.

2. Held before the agency, or an appointed referee or examiner, R.C. 119.09. 3. Recorded a. A stenographic record should be made of any hearing for which there is a right to appeal to court. R.C. 119.09, para. 5. b. “Stenographic record” means a record provided by stenographic means or by the use of audio electronic recording devices. R.C. 119.09, para. 1. B. Legal Representation 1. Representation of the agency: The agency must be represented by the attorney general or special counsel who has been designated by the attorney general. R.C. 119.10. 2. Representation of the respondent a. Respondent may be represented by an attorney at law licensed to practice in Ohio or other person lawfully permitted to practice before the agency in question. R.C. 119.13. b. Most cases, must be an attorney at law licensed to practice in Ohio. (1) Only attorney at law may represent a party at a hearing at which a record is taken that may be the basis of an appeal to court. R.C. 119.13. See Office of Disciplinary Counsel v. Molnar (Ohio Bd. Unauth. Prac. 1990), 57 Ohio Misc. 2d 39. (2) Exception: hearings before the state personnel board of review under R.C. 124.03. R.C. 119.13. c. Representation of corporate licensee (1) Only an attorney licensed to practice law may represent a corporation. A corporation cannot be represented by officers, directors, or shareholders. Bd.of Edn. of Worthington v. Bd. of Revision, 85 Ohio St. 3d 156, 160, 1999-Ohio-449; Harvey v. Austinburg Dev. Corp., 11th Dist. No. 2006-A-0044, 2007-Ohio-3025, at ¶ 4-5; K & Y Corp. v. Ohio State Liquor Control Comm., 10th Dist. No. 01AP-219, 2001 Ohio App. LEXIS 3591, at *4; Sheridan Mobile Village, Inc. v. Larson (4th Dist. 1992), 78 Ohio App. 3d 203, 205; But see Dayton Supply & Tool Company, Inc. v. Montgomery County Board of Revisions, 111 Ohio St. 3d 367, 2006-Ohio5852, at ¶ 29 (limits holding of Bd. of Edn. of Worthington v. Bd. of Revision, 85 Ohio St. 3d 156, 160, 1999-Ohio-449 to hold that it is not necessary for a corporation to hire an attorney to file a complaint with the board of revision unless legal issues exist or arise in the case). (2) In Dayton Supply & Tool Company, Inc. v. Montgomery County Board of Revisions, the court held that a corporate officer does not engage in the unauthorized practice of law by preparing or filing a complaint with a board of revision and by presenting the claimed value as long as the corporate officer does not make legal arguments,

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examine witnesses, or undertake any other tasks that can only be performed by an attorney. Dayton, 111 Ohio St. 3d 367, 2006-Ohio-5852, syllabus. (3) In Steelton Village Market, Inc. v. Liquor Control Commission, 10th Dist. No. 03AP920, 2004-Ohio-5260, at ¶ 13, the appellate court stated that an admission of fact does not necessarily constitute the practice of law. Admissions by a corporation are only admissible if made by an authorized agent of the corporation, i.e., admissions by the president of a corporation or an agent authorized by the board of directors may be admissible against a corporation. (4) The Tenth District Court of Appeals has held that it is not the practice of law or legal representation of a corporation when a permit holder makes admissions of violations and requests that his/her permit be revoked in front of the commission. The court further held that nothing prohibits the commission from considering these statements before the commission. S & P Lebos, Inc. v. Liquor Control Comm., 10th Dist. No. 03AP-447, 2004-Ohio-1613, at ¶ 18. Please note that the appellate court did not consider whether the permit holder had authority to bind the corporation. d. Attorneys not licensed in Ohio (1) May not represent a respondent in an administrative hearing unless admitted pro hoc vice. (a) Some agencies have a statute or rule addressing who may represent an individual before a particular state agency. See, e.g., Ohio Admin. Code 473113-01(B). (State Medical Board of Ohio administrative rule stating that only Ohio licensed attorneys may represent an individual appearing before the Board); Ohio Admin. Code 4715-15-02(B) (Dental Board); Ohio Admin. Code 4723-16-02(A) (Board of Nursing). (2) Supreme Court regulation of the practice of law. (a) The body responsible for regulating the practice of law in Ohio is the Supreme Court of Ohio. The Supreme Court has exclusive original jurisdiction of admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law. See Section 2(B)(1)(g), Article IV, Ohio Constitution; Gov. Bar R. I, § 9; Royal Indemnity Co. v. J.C. Penney (1986), 27 Ohio St. 3d 31, 34. (3) Beginning Jan. 1, 2011, out-of-state attorneys seeking permission to appear pro hoc vice in an Ohio proceeding must first register with the Supreme Court Office of Attorney Services. Online pro hoc vice registration is now available. After an out-ofstate attorney completes the registration requirements and receives a Certificate of Pro Hoc Vice Registration, the attorney must file a Motion for Permission to Appear Pro Hoc Vice with the tribunal. If the out-of-state attorney receives permission to appear pro hoc vice in an Ohio proceeding, the attorney must notify the Office of Attorney Services. The Notice of Permission to Appear Pro Hoc Vice may be filed through the online registration system.” Gov. Bar R. XII.

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(a) Pursuant to the rules of the Supreme Court, the pro hoc vice registration requirements apply in proceedings involving any adjudicative matter pending before a tribunal. Gov. Bar. R. XII, Section 2. (b) A tribunal is defined to include an administrative agency, or other body acting in an adjudicative capacity. An administrative agency acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interest in a particular matter. Gov Bar R. XII Section 1. (c) Requirements for permission to appear pro hoc vice are set forth in Section 2 of Gov. Bar R. XII: http://www.supremecourt.ohio.gov/LegalResources/Rules/govbar/govbar.pdf #Rule12 . C. Burden of Proof 1. Generally, the agency has the burden of proof. a. The agency has the burden of proof when it suspends or revokes an existing license. In re Scott (10th Dist. 1990), 69 Ohio App. 3d 585, 590; Sanders v. Fleckner (1950), 59 Ohio L. Abs. 135; Buckeye Bar, Inc. v. Liquor Control Comm. (10th Dist. 1972), 32 Ohio App. 2d 89, 89-91. 2. Burden in cases involving applications for licensure. a. An applicant for a license has the initial burden of producing facts sufficient to demonstrate satisfaction of the minimum requirements for issuance of the license. See St. Augustine Catholic Church v. Attorney General (1981), 67 Ohio St. 2d 133, 138. See also, In re Application of Gram (1948), 39 Ohio Op. 477 (person who claims he passed a licensing examination that the agency maintains he failed, has the burden of proving he passed the examination). b. The agency then has the burden of proving the basis for denying a license to an applicant. See R.C. 1707.163(D) (agency “shall” issue a license if the applicant has met specific qualifications. The inference is that the agency must articulate the qualification the applicant has failed.) c. The agency’s enabling statute may assign the burden of proof with regard to specific issues. See Clermont Co. Auditor v. Schregardus, Ohio Environmental Bd. of Rev. No. EBR 132753, EBR 132761 (June 10, 1993). d. For example, the Financial Responsibility Act provides that drivers have the burden to establish defenses to the act by clear and convincing evidence. R.C. 4509.101(L). 3. Burden of production

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Ohio State Bd.09 does not incorporate the Ohio Rules of Evidence. Buckeye Bar. 53 Ohio St. Weinstein (Hamilton C. 3d 79. 55 Ohio Misc. Minch (1990). and may therefore present such evidence first. 91. E. Preponderance of evidence means that agency has burden to show that it is more likely than not that the events charged occurred. EBR 132761 (June 10. v. of Rev. this will be the agency. all agency orders should be based upon reliable. 197. Sanders v. Ohio Environmental Bd. a court may reverse the agency’s order if it finds that the order was not supported by “reliable. Abs. See Pang v. (10th Dist. Sanders v. R. In application cases. Chiero v. 24. Chapter 119 does not explicitly define the burden of proof required. if contested. 135. 1993). Abs. 135.C. Reliable. Preponderance of the evidence standard a. of Motor Vehicles (Franklin C. See Clermont Co. Statutes or rules 36 . 83 Ohio St. EBR 132753. probative and substantial evidence. of Pharmacy v. c.a. 1998-Ohio-181. so the agency will usually present its case-in-chief first. para. 32 Ohio App. 22. Fleckner (1950). 59 Ohio L. 59 Ohio L. Standards for Consideration of Evidence 1. 27.P. The standard of “clear and convincing” evidence has been rejected as inappropriate. Fleckner (1950). No.” R. 1972). 119.09 states agencies “shall pass on the admissibility of evidence” presented at the hearing. Typically. Auditor v. Ohio Liquor Control Comm.C. Bur. D. 119. 33 Ohio Misc. probative and substantial evidence a.. 81. On appeal of an agency’s order. 1977).C. The party attempting to establish that the averments in the notice of hearing are correct has the burden of going forward with the evidence. Inc. 2. 119. 3d 186. Note – An agency’s enabling act may specify which party maintains the burden of production with respect to specific issues. Accordingly.12. the applicant may have the burden to produce evidence of qualification for licensure.C. c. but R. b. for definitions of reliable. b. Schregardus.P. but the Supreme Court of Ohio has held that the standard for administrative cases is a preponderance of the evidence. probative and substantial evidence. c. b. 2d 25. Liquor Control Comm. below. 1987). See discussion. d. Standard of Proof Required 1. 2d 89. probative and substantial evidence. See also. VFW Post 8586 v. Section IX APPEALS. 13. R.

39 Ohio App. (10th Dist. Ohio Liquor Control Comm. Douglas v. 2012-Ohio-2218 37 . An administrative body should not be inhibited by strict rules of evidence.g. Evidence Rule 101(A) does not mention administrative agencies as forums to which the rules of evidence apply. However. Util... (10th Dist. Board of Edn. 2. Ohio State Dental Bd. Agency standards must be fair and reasonable. An administrative agency may not sanction as evidence something which is clearly not evidence. (2nd Dist. rules may be taken into consideration. 4123. c. a.” b.28 (Unemployment Compensation). v. See. 3d 15. 1987). Board of Edn. 2d 157. Evidence Rule 101(A) specifically states: “These rules govern proceedings in the courts of this state. 3d 415. 11AP-133. v. 7 Ohio App. 74 Ohio St. 1969). Administrative agencies have a duty to base their conclusions on competent evidence. 1988). Chrysler Plastic Products Corp. an administrative agency should not act on evidence that is clearly not admissible. Comm. and therefore are not applicable in administrative proceedings. 19 Ohio App. 263. 49. 163. OAC 4723-16-01(E) (in Board of Nursing hearings. 3d 1. 19 Ohio App. c. In re Application of Milton Hardware Co. 1988). Health department reports identified by a police officer were admissible. e. for Orange City School Dist. 61 Ohio App.C. Universal Disposal.specific to an agency may provide standards for that agency. OAC 4723-16-01(E) (Nursing). v. 56 Ohio App. 3d 256. 16.. When an administrative agency enacts rules as to the standards of admissibility of evidence to be followed in its hearings. (10th Dist. Furthermore. 1982). 3. e. Kash (8th Dist. 252. Haley v.g. Cuyahoga Cty. Some agency statutes or rules expressly provide that the agency is not bound by the rules of evidence. a. Inc. 162. v. These standards may range from mandating adhering to the rules of judicial hearings to that of an express release from the common-law or statutory rules of evidence. but “freedom from such inhibition may not be distorted into a complete disregard for the essential rules of evidence by which rights are asserted or defended. d. 6. 1996-Ohio-282. Pub. 263. In re Application of Milton Hardware Co. of Revision. the rules of evidence may be considered in an advisory capacity in an administrative hearing. R. Inc. See. 163 Ohio St. 10th Dist. Ohio State Racing Comm. 3d 45. Ohio Rules of Evidence not strictly applicable. (10th Dist.. 74 Ohio St. Citizens to Protect Environment. R. (1955). 2d 157. State ex rel. competent or probative of facts that the agency is to determine. for Orange City School Dist.C. 417. Bd. The evidence must be probative and relevant. 3d at 417. No. b. 1969). d. such rules must be consistent with the guaranty that such hearings shall be fair in all their procedural respects.” Chesapeake & Ohio Ry. e. Co.10 (Worker’s Compensation). but are not controlling). 4141.

4th Dist. No. Kellough v. of Review (8th Dist. of Edn. Relatively little statutory guidance. of Job & Family Serv. in Todd v.09. L-98-1105. LEXIS 1524. Spud’s Auto Parts. 1993 Ohio App. 6th Dist. . Bd. 11CA-9. Mason v. Ohio State Bd. Haley v. 1987). b. Limits on use of hearsay evidence. (2) the agency or hearing examiner may administer oaths or affirmations.07 and 119. but the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner. 119.4. 10th Dist. 6. 1998 Ohio App. No. 10AP-419.. Chapter 119 says very little about the procedure to be followed during an administrative hearing. “and it would be inappropriate to disregard his findings simply because they are partially based on admissible hearsay testimony.. 5th Dist. . but by sworn testimony of several live witnesses who testified on behalf of appellee.” i. 3d 1. 119. the Fourth Appellate District concluded that it is “required to give great deference to the hearing officer’s findings of fact. present evidence and examine witnesses appearing for and against him.09 sets forth the basic parameters of a hearing: (1) a stenographic record may be made of the hearing. (5) a party may make evidentiary objections to the evidentiary rulings of the agency. and appellant’s testimony was contradicted not only by appellee’s hearsay evidence. It is not always unreasonable.P. Erdeljohn v. stating that Taylor is not applicable where both parties were permitted to present hearsay evidence at the hearing.” F. b. a. 2011-Ohio-431. Taylor v. Servs. Miller v. 2d 1. 119. Ohio State Dental Bd. 2012-Ohio-1002. 38 Ohio Misc. witness credibility. Hearing Procedure 1. 1984).07 provides that “at the hearing. LEXIS 2687. 38 . a. 9th Dist. 20 Ohio App. R. 3d 297. 7 Ohio App.C. at ¶26. at *17. No. 03CA2894.e.C. (2) In addition. 1982). LEXIS 5887. (3) the agency may ask any party to testify under oath as upon cross-examination. (1) See Valdez v. Some courts have held that it is unreasonable for the agency to rely solely on hearsay to contradict the sworn testimony of a claimant personally appearing before the agency. Ohio Dept. The hearsay rule is relaxed in administrative proceedings. at *5. to consider hearsay evidence that is in conflict with sworn testimony. (2nd Dist. however. The only references to hearing procedures appear in R. and (6) upon the agency’s refusal to admit evidence offered by a party. C-990573.. [the party] may . Ohio State Bd. (4) the agency shall pass upon the admissibility of evidence. of Pharmacy. 299.. Green v. 9. 2004-Ohio-2185. Ohio State Bd. No. of Pharmacy (Hamilton C. c. No.C. 2000 Ohio App. No.” This section is silent regarding the manner in which evidence is to be presented. 1st Dist. of Emp. Bur. the party must proffer the evidence into the record. Invacare Corp. R. General procedure. 92CA5451. at *12.

” c. Courts have consistently held that a proper hearing bears a substantial adherence to courtroom procedures. Introduction of Evidence 1. should be introduced. 1989 Ohio App. and strict rules of a judicial hearing do not govern in administrative hearings. Gray (1926). Closing arguments may be oral or written. of Health (1929). In re Application of Milton Hardware Co. R. procedures to be followed before administrative agencies are not those that are required in ordinary civil actions. 165: “It is our feeling that basic evidentiary procedures should be followed in administrative hearings. 2d 157. Accordingly. and in this regard. 426. exhibits should be offered for identification purposes and should be introduced and the admission of such made a part of the record. Remy v. 19 Ohio App. In some cases it may also be advisable to file post-hearing briefs. LEXIS 3363. 4th Dist. State Dept. In re Application of Milton Hardware Co. G. 270. State ex rel. and 39 . 1969). it is the duty of such bodies to permit a full hearing upon all subjects pertinent to the issue. at *6 (quoting Bucyrus (1929). 2d 157. 2. and to base their conclusion upon competent evidence. 114 Ohio St. e. 88-CA-5. 702. 19 Ohio App. Mayers v. “The doctrine of substantial adherence to judicial rules of evidence by administrative agencies in conducting their hearings requires that basic evidentiary procedures should be followed: exhibits should be offered for identification purposes. Bucyrus v. Practical notes: The following is an overview of the suggested procedure for the typical administrative hearing. 3. when complicated factual and legal questions are at issue in the case. 161. No.” b. (10th Dist. 275.  Hearing convenes with opening statements. an administrative agency may adopt and follow procedures for hearings and fact finding that are not strictly according to the rules of practice in civil court trials.  The respondent presents its/his/her case-in-chief and submits evidence into the record. 120 Ohio St. holding that when determining the qualifications necessary for a person to testify as an expert. the administrative agency properly adhered to the language of Evid. 430: “While the technical rules of a hearing by a court are not required to be strictly observed in hearings before administrative bodies. Limbach. and such result can better be accomplished by a substantial adherence to the rules observed in hearings in court. and then the respondent.  The agency.  The agency presents its case-in-chief and submits evidence into the record. present closing arguments. (10th Dist. Generally speaking.g. see: a. 1969). The respondent may choose to present an opening argument after the agency concludes presentation of its case-in-chief.2. at 430). 120 Ohio St.  The agency presents any rebuttal case and submits evidence into the record.

however. and the proffer shall be made a part of the hearing record. the authorities are less clear. 40 . (10th Dist. In situations where a hearing is held before a full board. 119. a proffer is necessary so the court can determine if the evidentiary exclusion was proper or if said exclusion constitutes reversible error. Proffer of evidence a. the board may choose to have the board president or other designee rule on objections or have the board members vote on objections. the party shall make proffer of the evidence.C. R. Opposing counsel can make any appropriate objections during the offer of proof.09. (2) In case before entire board.09. 119. It is important. (2) The proffering attorney or party examines witness(s) concerning matters deemed objectionable by the hearing officer. 119. Methods of making a proffer (1) The proffering attorney or party. examiner rules on objections.the admission of such be made part of the record. If evidence is offered but not admitted. From the reviewing court's perspective.C.C. 19 Ohio App. agencies are free to designate an individual(s) to perform this function.C. that the board/agency be consistent and follow the same procedure in each hearing. d. 4. 6. The proffer may also convince the hearing examiner to change his/her mind as to the evidentiary value of the evidence.” In re Application of Milton Hardware Co. paragraph two of the syllabus. para. (a) There is no R. A party may object to evidence offered at a hearing. in narrative fashion. 2d 157. 3. b. b. 6. describes the proposed testimony or document(s). R.09. Who rules on objections? (1) In case before a hearing examiner. c. para. Objections a. (b) In light of the dearth of any authority dealing with whom within an agency or board may make rulings on objections during a hearing pursuant to R. 1969). Reasons for making a proffer: It will create a record to ensure that the reviewing court will know the nature of the excluded evidence. Chapter 119 statutory guidance regarding which individual within an agency or board should make rulings on objections.

H. 65 Ohio St. Riverside Methodist Hospital Assn. 2. Ohio Civil Rights Comm. appealable order. 3d 83. Motions in Limine 1. 3d 199. a ruling on a motion in limine is “committed to the sound discretion of the administrative tribunal. two-step process. 3d 139. which is determined by the circumstances and evidence adduced in the trial and the issues raised by the evidence. City of Sandusky (1994). b. Guthrie (10th Dist. French (1995). 28 Ohio St. 201-02). A motion in limine requires a two-step procedure: a pretrial consideration as to whether any reference to the area in question should be precluded until admissibility can be ascertained during trial. it is recommended that all witnesses be placed under oath or affirmance. Failure to do so is a waiver of the party’s right to argue the evidentiary issue on appeal. 449 (quotations and citations omitted). Interlocutory nature. an appellate court cannot affirm the agency’s decision. In the administrative context. 1982). 3d 607. A ruling on a motion in limine is “a tentative. State v. 61 Ohio St. 4. (1991). 28 Ohio St. a.” State v. See also. paragraph two of the syllabus.” State v. A party against whom a motion in limine has been granted is required to seek introduction of the evidence at the proper part of the trial or hearing. Witness oath or affirmance a. Unlike a motion to suppress. c. of Akron v. Ulis (1992). 68 Ohio St. “A motion in limine is defined as a pretrial motion requesting the court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to the moving party that curative instructions cannot prevent a predispositional effect on the jury. and second. (2) If the entire record consists of witnesses who are not placed under oath. interlocutory. 85 n. of Ohio v. 3 Ohio App. All witnesses placed under oath. during the trial when the party desires to introduce the evidence which is the subject of the motion in limine. 72 Ohio St. 3d 199 at 202. Grubb. because 41 .” Little Forest Medical Ctr. 140. Grubb (1986). and the other side objects. and not mandatory. 3d 446. 28 Ohio St. a determination by the trial court as to the admissibility of the evidence. “In virtually all circumstances finality does not attach when the motion [in limine] is granted. precautionary ruling by the trial court reflecting its anticipatory treatment of [an] evidentiary issue.1 (quoting State v. Grubb (1986). I. (1) Even though the 119 language is permissive. Garrett v. 617. 3d at 202. Examination of Witnesses 1. 3d 308. in order to allow the court to make a final decision on its admissibility and preserve any objection on the record. a motion in limine is not a final. 3.” State v.

6. 18-19.09. Zurow v. 119. Cleveland (8th Dist. 4. and substantial evidence. 611. he/she should so move. R. 5. Marked exhibits should be shown to opposing counsel. Bd. para. Hearing officer and opposing counsel should be given a copy. 69 Ohio App. b.C. Who can administer oaths: Chapter 119 grants the agency or anyone delegated to conduct the hearing with the power to administer oaths. cross-examination may concern any relevant area of inquiry even if beyond the scope of direct. Marked exhibits should be presented to the witness for identification and authentication. Cross Examination a. 1978). (3rd Dist. giving opposing counsel opportunity to voice objections. If a party desires to introduce marked exhibits into the record. 3. b. If the party does not object. The agency may call a party to testify under oath as upon cross-examination. 61 Ohio App. at 19. probative. (2) An agency’s refusal to accept testimony of more than two character witnesses is not an abuse of discretion. Ask witnesses to state and spell their name for the record after being sworn in. 2. 3. and to speak audibly and clearly for the reporter.such decision could not be justified by reliable. the Agency’s decision will not be reversed. 2. Kaufman v. Id. Ohio Veterinary Med. which may be used as a guide. 1990). The hearing examiner should rule on a motion to admit evidence after entertaining any objections to the introduction of evidence. para. the licensee may call witnesses who will vouch for his/her/its character. Exhibits should be marked. 87. Exhibits also may be admitted at the close of case-in-chief at which time the opposing party may object. R. Evid. Character Witnesses (1) In discussing the character or business reputation of a licensee. Direct examination a. 8. 42 . 3d 79.09. Practical Considerations 1. 119. J. 2d 14. (3) The failure to swear a witness is a waiveable error. Under the Ohio Rules of Evidence. 7. Documentary Evidence. R. b.C.

165-67: if documentary evidence is not properly introduced and admitted into the record at the administrative hearing. 72 Ohio St. Although due process considerations would probably preclude an agency from dismissing a case on its merits before a full adjudication hearing is completed. proof of receipt. 12.” Talwar v. 1969). Williams v. Bd. (10th Dist. 2004). it must appear beyond reasonable doubt from the complaint that the plaintiff/relator can prove no set of facts entitling him or her recovery. Boggs v. 2006-Ohio-2171. (10th Dist. Div. 2007-Ohio-3328. 10th Dist. proof of mailing by certified mail. No. 3. 83 Ohio App. The State Medical Board of Ohio. 43 . 2000). Doriott v. v. Where the legislature has provided special statutory proceedings for the discipline of a licensee. at ¶ 4 (citing State ex rel. Ohio State Dental Bd. State Med. 2d 157. 172 Ohio App. Gary Charles Gelesh. respondent may not file a motion to quash (dismiss/summary judgment) a hearing once requested. notice letter. 4. In re Application of Milton Hardware Co. of Edn. Agency/Board may not deny the right to a hearing. Fields v. 1992). State Med. but nevertheless becomes part of the record on appeal. letter to Respondent scheduling hearing.E. Springfield Local School Dist. Failure to state a claim with proper notice. 874 N. 3d 131. Dressler Coal Co. Executive Branch (9th Dist.C.2d 1256 (10th Dist.). An administrative agency is precluded from dismissing a hearing once it has been requested by a respondent. In general.. 3d 365. under Civ. State ex rel.g. or were agreed to by the parties. Failure to provide opportunity for a hearing violates Due Process. at ¶ 14.O. a licensee may not bypass the special statutory proceedings in the guise of obtaining declatory relief. 2. 10th Dist. 119. 5. Aust v. 23 Ohio St. 3d 485. 2009-Ohio5852. Exceptions: a. 3d 677 at 683. 72-73. 8. of Ohio (10th Dist. Summit Cty. (2) “A complaint in mandamus states a claim if it alleges the existence of the legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted. State of Ohio ex rel. dismissals (without a hearing) based on procedural issues such as res judicata and subject matter jurisdiction have been upheld by the courts on appeal. 19 Ohio App. of Reclamation (1986). any written memoranda in which continuances were granted. (1) In order to dismiss a complaint for failure to state a claim upon which relief can be granted. 137. R. 08AP-158. of Ohio.7. including the right to appeal any agency decision pursuant to R. No. ¶ 25-27. the court may reverse the agency’s action. 136 Ohio App. D. Bessey. 05AP-1079.12. 156 Ohio App. hearing request. 3d 94. (1995). Jurisdictional items should always be placed into the record: e. K. Bd. Bd. Can A Case Be Dismissed Prior to Hearing? 1. 3d 68. v.

See In the Matter of: Hal Artz Lincoln-Mercury. 1981). Ohio Liquor Control Comm. 170 Ohio St. Hanson v. v. 119.06. Limbach (1994). 3d 184. Party should raise “as applied” constitutional challenges at hearing. 130. VFW Post 1238 Bellevue v. 3d 195. at *24-25. of Edn. 11. 7th Dist. 3d 229. Ackerman (1st Dist. the Tenth District held that such challenges could be raised for the first time on appeal as long as the necessary evidence is admitted in the record. See Cleveland Gear Co. or whether the allegation is that the statute is unconstitutional as applied. 68 Ohio St. Herrick v. Hanson. (3) In reviewing the complaint. 3d 545. 548. b. 1 Ohio App. 595-96. however. Such determinations are reserved to the courts alone. Kinney (1986). 2d 128.12. 35 Ohio St. 65 Ohio St. 24 Ohio St. This is true whether the challenge is a facial challenge to the statute. b. v. 1991 Ohio App. 90-B-20. LEXIS 4932. Guernsey Cty. Bowers (1960).. 405. Inc.C. Limbach (1988). MCI Telecommunications Corp. LEXIS 4883. The prudent 44 . Kresge Co. No.C. and the expert commentary of the agency on the issue. Bd. the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the non-moving party. 65 Ohio St.S. R. syllabus. 3d 545. of South-Western City Schools v. As creatures of statute. Skalsky v. 548)). v. of Commrs. a. S. Hairston. at *5. Issues involving challenges to the validity of statute or its application. Bd. at 231. Addressing Constitutional Issues 1. Section 119. administrative agencies themselves are without jurisdiction to rule on the constitutionality of a statute. such challenges must first be raised before the agency because they require both the development of an evidentiary record for review by the appellate courts. 91AP-1493. 1992 Ohio App. (2) In at least one case. 131 Ohio App. Withdrawal by respondent (1) Although respondent has the right to withdraw from his or her own hearing. No. Agency may not rule on the constitutionality of a statute. in which the Tenth District Court of Appeals distinguished Cleveland Gear as inapplicable to Chapter 119 proceedings and concluded that “as applied” constitutional challenges could be raised for the first time in the court of common pleas as long as all of the evidence necessary for consideration of the issue was either already in the administrative record or properly admissible as “newly discovered” evidence under R. 406-07. 197-99. Ford Motor Co. L. 3d 591. (1992). 3d 10. Zieverink v. 44 Ohio St. 10th Dist.95 (quoting State ex rel. v. (6th Dist. See also. Kosydar (1975). State ex rel. (1) Although the agency itself may not determine whether a statute has been applied in a manner that is unconstitutional. 1998). the administrative agency is entitled to discipline the respondent absent respondent’s presence so long as the opportunity for a hearing was afforded upon request.

b.C. Issues involving the construction of a statute. 3d 150. Lieux v. 1987). 154. Pons v. 1133.03). Ohio 1972). the legislative scheme ordinarily should not be allowed. 1. 3d 183. 44 Ohio St. Under certain circumstances parties may bypass the administrative hearing and raise constitutional challenges to a statute and/or its application directly in court by means of such collateral actions as declaratory judgment (R.S.47(A) (legislative intent is that statutes comply with constitutional requirements). 247. (3) The decision whether to allow a declaratory judgment collateral challenge lies within the sound discretion of the trial court. 417. c. Austintown Assoc. 3d 244. Ct. rather than supplement. 186. Bd. (S. Buckeye Quality Care Centers v. 1125. 349 F. however. 185. Jackson (10th Dist. 3d 619. v. Cleveland Gear Co.C. 2. § 1983. Agencies with authority to administer and enforce legislative enactments may constitutionally determine the precise scope of their authority and the proper objects of their jurisdiction. 42 Ohio St. v. Driscoll v. 621. (1994). Herrick v. Although an agency is precluded from passing upon the constitutional validity of a statute or its application. Due deference is ordinarily given to such interpretations. 70 Ohio St. Arbor Health Care Co. State of Ohio ex 45 . v. State ex rel. injunctive relief. Collateral challenges to the validity of a statute and/or its application. Fletcher (10th Dist. 154 Ohio St. 39 Ohio App. (4) Where a specialized statutory remedy is available in the form of an adjudicatory hearing. 3. a. 1988). of Ohio (1993). 3d 229. Public Util. nothing precludes an agency from applying the constitution to properly construe a statute that is at issue. Hamilton Mun. 2721. Comm. Limbach (1988).choice. Hodgson v. 3d 183. 129. 35 Ohio St. Kosydar. Facial constitutional challenges may be raised for the first time on appeal because they are not dependent on a factual record. declaratory relief has been allowed because the administrative agency could not provide the relief sought. Office of Consumer's Counsel v. 412.” Arbor Health Care Co. (2) When “a specialized statutory [administrative] remedy is available in the form of an adjudicatory hearing. 48 Ohio App. would be to raise the issue at hearing to ensure proper development of the record. State Med.C. Westlake (1951). Declaratory judgment (1) Where the relief sought rests solely on a constitutional claim. Jackson (10th Dist. rather than supplement. a suit seeking a declaration of rights that would bypass. Supp. R. the legislative scheme ordinarily is not permissible. 2d 263. (1975). b.D. a suit seeking a declaration of rights which would bypass. and 42 U. 66 Ohio St. 39 Ohio App. 1987). 2d 128. a.

rel. Gary Charles Gelesh, D.O. v. The State Medical Bd. of Ohio (10th Dist.), 172 Ohio App. 365, 2007-Ohio-3328, at ¶ 25. Where a licensee does not challenge the validity of a statute, but merely seeks interpretation that could be resolved in an administrative appeal, the licensee may not bypass the administrative process through a declaratory judgment action. Id. at ¶ 30. c. 42 U.S.C. § 1983 actions (1) Failure to exhaust administrative remedies is not a proper defense to an action asserting federal constitutional rights violations under 42 U.S.C. § 1983. Felder v. Casey (1988), 487 U.S. 131; Gibney v. Toledo Bd. of Edn. (1988), 40 Ohio St. 3d 152, 155; Grybosky v. Ohio Civ. Rights Comm'n., 11th Dist. No. 2010-A-0047, 2011-Ohio-6843; Grybosky v. Ohio Civ. Rights Comm'n., 11th Dist. No. 2010-A0047, 2012-Ohio-3637; Johnson v. Wilkinson (4th Dist. 1992), 84 Ohio App. 3d 509, 514-15. But see Higgason v. Stogsdill (2004), 818 N.E.2d 486 (noting exception for prisoner lawsuits pursuant to Federal Prisoner Litigation Reform Act). (2) Other defenses such as Eleventh Amendment immunity, Seminole Tribe of Florida v. Florida (1996), 517 U.S. 44; Pennhurst State School & Hosp. v. Haldeman (1984), 465 U.S. 89; Edelman v. Jordan (1974), 415 U.S. 651, the lack of enforceable Section 1983 rights, privileges or immunities in the statute, and/or the foreclosure of enforcement, Wilder v. Virginia Hosp. Assn. (1990), 496 U.S. 498; Golden State Transit Corp. v. City of Los Angeles (1989), 493 U.S. 103, may preclude collateral attacks on statutes. M. Hearing Examiner 1. R.C. 119.09 permits the appointment of a referee or examiner to conduct hearings. a. Examiner must be a licensed to practice law in Ohio. b. Examiner must possess other qualifications as required by the agency. 2. Role of the examiner a. May administer oaths or affirmations, R.C. 119.09 b. Examiner has the same authority in conducting hearing as is granted to the agency, R.C. 119.09 c. Direct and facilitate the conduct of the hearing d. Rule on motions to continue and other motions e. Rule on objections made at the hearing f. Agency’s rules may provide for the issuance of pre-hearing entries, setting deadlines for requesting subpoenas, disclosing witnesses, etc.

46

g. The hearing examiner may evaluate the qualifications of a witness, and assess the weight to be given a witness’s testimony. Landefeld v. State Med. Bd., 10th Dist. No. 99AP-612, 2000 Ohio App. LEXIS 2556, at *35. h. Issue Report and Recommendation to the agency. R.C. 119.09. See Section VII(M)(7), Resort and Recommendation, below. i. Dismissal of charges (1) The referee or examiner appointed to conduct an administrative hearing under R.C. 119.09 “shall have the same powers and authority in conducting said hearing as granted to the agency.” R.C. 119.09, para. 9. Thus, a hearing examiner is limited to the same due process constraints as is an agency in deciding whether an action should be dismissed. (2) Because the hearing examiner makes a recommendation to the agency as to findings and fact and conclusions of law, the hearing examiner should not dismiss a case, but, rather recommend dismissal of a case or charge, with the agency to accept or reject that conclusion. 3. Allegations of bias a. A reviewing court presumes that a decision of an agency is valid and reached in a sound manner. This presumption imposes upon the party raising the issue of bias to prove that any bias adversely affected a decision. West Virginia v. Ohio Hazardous Waste (1986), 28 Ohio St. 3d 83, 86; Ohio Motor Vehicle Dealers Bd. v. Central Cadillac Co. (1984), 14 Ohio St. 3d 64, 67; Wheeling Steel Corp. v. Evatt (1944), 143 Ohio St. 71, 84; Cleveland v. Budget Comm. (1977), 50 Ohio St. 2d 97, 98-99. See Withrow v. Larkin (1975), 421 U.S. 35, 47, 55, (administrators are assumed to be of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.) b. A hearing examiner having been previously employed by an administrative agency before which a matter is pending is not, in and of itself, sufficient to disqualify a hearing examiner for bias. West Virginia v. Ohio Hazardous Waste, 28 Ohio St. 3d at 86. c. Standards for assessing bias in the judiciary (1) The same standards to determine bias for a judge arguably should be applicable to an administrative hearing examiner. (2) Rule 2.11 of the Code of Judicial Conduct requires disclosure to the parties if the judge served as a lawyer in the controversy or the judge and/or judge’s family has a financial interest or served as a party in the proceeding. Instead of withdrawing from the proceeding, the judge may disclose the potential conflict to the parties and with the consent of all parties may continue on the case. If, however, the judge has a personal bias or prejudice concerning a party or lawyer or personal

47

knowledge of facts in dispute, then the judge must recuse him- or herself. Gov.Jud.R. 2.11(C). (3) To support a bias claim, knowledge must be gained through extra-judicial means. The Supreme Court of Ohio has held that, “A judge need not recuse himself simply because he acquired knowledge of the facts during a prior proceeding.” State v. D’Ambrosio (1993), 67 Ohio St. 3d 185, 188. (4) “The basis of the disqualification of a judge for bias or prejudice is that of personal bias or prejudice, for or against a party, which renders the judge unable to exercise his or her functions impartially in the particular case. The words ‘bias’ and ‘prejudice’ refer to the mental attitude or disposition of the judge toward a party to the litigation and not to any views that he or she may entertain regarding the subject matter involved.” 46 Am. Jur. 2d Judges § 132. 4. Ex parte communications a. There is no express prohibition against ex parte communications in R.C. Chapter 119. b. Once a case is assigned for hearing, the appearance of fairness is enhanced when the hearing examiner limits contacts with the agency to those made in the presence or hearing of the parties or counsel. c. Agency law or rules may expressly limit ex parte communications. 5. Interlocutory appeals of examiner rulings a. There is no express provision in the Ohio Revised Code for an interlocutory appeal of hearing examiner rulings to either the administrative agency or board, or to the court of common pleas from which an agency appeal may ultimately lie. The language of R.C. 119.09 seems to suggest that the opposite is true, that there was no express intent to grant jurisdiction to take interlocutory appeals from the decisions of a hearing examiner who may be appointed to hear a case. As such, the suggestion is strong that there exists no such right of appeal. b. R.C. 119.09 gives an administrative agency the right to have the matter before it heard by a hearing examiner, an attorney at law who will usually rule on issues pertinent to the case as well as hear the evidence and determine the admissibility of evidence and testimony. Many of these decisions must be made prior to the actual hearing, and the issue of the authority of the hearing examiner to make such rulings has not been set forth by statute. Nor has the ability of the agency to review such determinations, absent the issuance of a final report and recommendation. c. Under R.C. 119.09, the hearing examiner has the same rights and responsibilities as the agency in conducting the hearing. The argument is strong that the hearing examiner’s determinations should not be disturbed until the final recommendation is issued. Certainly, if intermediate orders were appealable, parties would always run to the administrative agency for full board consideration. This would certainly hamper the administrative hearing process, and would undermine the statutory authority given to

48

as no final R&R is issued.01 (emphasis added). . . Section 2506. authority. It is clear that unless a final determination is made. benefits or legal relationships of a person. tribunal. 2506. duties. 351 (decisions on discovery matters generally not appealable on interlocutory appeal).C. the courts have held that interlocutory orders are not appealable if they do not affect a substantial right of the parties or are not made in a special proceeding. See McHenry v. it would follow that there is no ability to appeal the decision of the hearing examiner. 2d 77.the hearing examiner. While there is little or no case law on this subject. board. et seq. and hold that the remedy for any errors or omissions during the proceedings is through the right of appeal of the final order to the common pleas courts. General Accident Ins. as these matters would have previously been determined by such interlocutory appeals. or decision that determines rights. e. the interlocutory decisions of an agency would not create the avenue for an appeal to either the agency or the courts. 19 (the decision to consider a petition for annexation of land is not appealable. See. which set forth the jurisdiction of the courts to hear appeals.C.02 and 2505. 2d 159. if the matter cannot survive as a separate interlocutory appeal to the courts. 2505. 2506. paragraph one of the syllabus (recommendation of a planning commission to the city for further action is not a final appealable order). Whitman (1978). 54 Ohio St. the better rule to follow is that there is no right of review by the agency until the final report and recommendation is issued.g. or decision of any officer. adjudication. and the matter would otherwise be bifurcated. because it is deemed to be a final order affecting a substantial right. 1986).01 provides. (8th Dist. Further. ordinance.11 Acres in Northampton Township (9th Dist. 3d 18. adjudication. Union Camp Corp. Brecksville (8th Dist. 1995). The concept of not allowing interlocutory appeals to the agencies are to be supported further by the statutory provisions under R. 1976). v. e. Flair Corp.03. . commission. . The exception might be denial of a request for a hearing de novo. such interlocutory appeals would render meaningless the requirement that the hearing examiner issue findings of fact and conclusions of law. See In re Petition for Annexation of 5. For that reason alone. d. g. but does not include any order. department. or statute to a higher administrative authority if a right to a hearing on such appeal is provided . Arguably. if they were available. adjudication. 162-63. adjudication. or decision” means an order. Several courts support this view. bureau. 49 Ohio App. or decision from which an appeal is granted by rule.C. 49 . or other division of any political subdivision of the state may be reviewed by the court of common pleas . Co.01. 3d 350. Generally. v. f. an analogy may be found in the administrative appeals provisions of R. 34 Ohio App. as the final adjudication process would necessarily be longer than if the agency had heard the matter fully itself. privileges. . R. in part: Every final order.. The appeal may include all errors or omissions contained in interlocutory orders. Further. no agency would ever assign a case to a hearing examiner. and a final order is not issued until a resolution is passed specifically granting or denying the relief requested in the petition). A “final order. 104 Ohio App.

h. Util. Carroll (6th Dist. This issue was also addressed in State v. 112. there is no direct right of appeal to the courts from the determinations of hearing examiners on matters issued prior to a final determination on the merits. and presumably to court review. 50 . the courts will not entertain an action where the failure to exhaust administrative remedies doctrine may be applied. 101 (court denied realtor’s application for a writ of prohibition). For administrative agencies involving political subdivisions. 3d 453). The court cited with approval 1 Ohio Jurisprudence 2d 570. State Med. at *5-7. 2d 110 and Carroll. 1977). In that case a hearing examiner for the medical board held the record open for more than seventeen months after the hearing. 2001 Ohio App. Pub. To hold otherwise would circumvent the hearing examiner process. 2d 110. 54 Ohio App. Pub. Id. 1991). and would slow the proceedings to a crawl. b.. See also. Gen Motors Corp. (1966). The courts have held that the remedy of appeal to the courts provides adequate remedies for any procedural defects or irregularities. DeWeaver v. 10th Dist. No. 1 Ohio St. each ruling on the procedural aspect of a case would then be subject to scrutiny and review. provided the evidence so taken is considered by the agency in making its ultimate decision. Halleen Chevrolet v.” Carroll. of Ohio. 10th Dist. a hearing by such delegate does not deny due process and is not unfair. LEXIS 2862 (citing In re Christian Care Home of Cincinnati (10th Dist. 95APE09-1247. and should not take jurisdiction over the matter until such time as the final report and recommendation is issued. Administrative Law and Procedure. (1966). Comm. were followed in a Tenth District Court of Appeals decision.” Laughlin v. Section 114: “In the absence of a contrary statute. 6. Util. In Carroll. 6 Ohio St. the court reversed the board’s decision because only one board member considered the evidence. 54 Ohio App. Hearing examiner unable or fails to issue the Report and Recommendation a. Where an agency expressly or impliedly has authority to delegate the taking of evidence to less than the whole number of its members or to an examiner or investigator. Bd. LEXIS 949. at 171-72. the agency must give deference to the hearing examiner. 00AP-1454. Kremer v. Comm. In short. Similarly. if the agency still has jurisdiction and there is a right of review from an intervening order (such as a report and recommendation). No. then resigned before issuing findings of fact and conclusions of law. Otherwise. 2d 100. 2d at 171. An administrative agency or board may substitute hearing examiners without affecting the due process rights of the respondent in an administrative hearing. 74 Ohio App. d. 6 Ohio St. and the consequences of such an interpretation of the law would be arduous. Laughlin v. Clearly. If a hearing examiner is unable or fails to issue a report and recommendation. i. 2d 160. Faust (1965). 1996 Ohio App. State ex rel. an administrative agency or board may substitute hearing examiners. “It is not essential that a person who prepares findings and recommendations in an administrative proceeding hears the evidence if he reviews and examines the record of the proceeding. c. the legislature did not intend this result. due process or the concept of a fair hearing does not require that the actual taking of testimony be before the same officers as are to determine the matter involved.

64 Ohio St. If a report and recommendation is not issued. (2) At least one court has held that an administrative board may properly base its decision on the hearing examiner’s written findings of fact provided that “the findings of fact constitute a basis for making informed. 22841. deliberate.09. 1981). The Ninth District Court of Appeals also held that the second hearing examiner could assess credibility of the witness without personally observing witness testimony.The Court held at 832: “It matters not whether the Board. and. 2006-Ohio-1304. There is simply nothing constitutionally suspect. v. and independent conclusions about the issues.” Erie Care Center. Ackerman (6th Dist. there existed an adequate remedy at law). the court may still find there is ample evidence in the record to support the agency's decision to revoke a license. heard the testimony and observed the witnesses’ demeanor as long as the members of the Board review all of the evidence.” Lies v. 2 Ohio App. v. 210. Findings and conclusions (1) The purpose of findings of fact is “to aid the reviewing court and to protect the due process rights of those affected by an agency’s actions. (c) Recommendation of the action to be taken by the agency. 3d 186. Kremer v. 9th Dist. Rights Comm. and determine the credibility of the expert testimony. LEXIS 949. para.. or statutorily prohibited. 95APE09-1247. (b) Conclusions of law. heard the testimony and observed the witnesses’ demeanor as long as the members of the Board review all of the evidence. Ohio Veterinary Med. at ¶ 25. a party might bring a mandamus action to cause the administrative agency to act. 119.C. at *6 (“It matters not whether the Board. 1996 Ohio App. with respect to the substitution of hearing examiners here. No. But see. Aircraft Baking Sys. 187 (mandamus will not issue for board’s failure to issue decision when appellant had statutory right of appeal. Id. 3d 102. Ohio Civ. itself. Bd. Although some of the findings of fact made by a hearing examiner may be more in the nature of a narrative of the evidence presented at the hearing. 5 Ohio App. 10th Dist. Required elements. No. itself. 103. therefore. State Med. 1982). Inc. But see State ex rel. including transcripts and exhibits. (1992). and the board members need not read the entire transcript of testimony in the absence of any affirmative demonstration that the findings of fact are in any way defective. and (2) Must set forth the following: (a) Findings of fact. Bd. State Med.” e. by review of the record and inconsistencies therein. 9: (1) Written report. R. (1st Dist. Bd. Corp. b. f. Heath v. Report and Recommendation a. 7. including transcripts and exhibits. of Ohio. 3d 204. and determine the credibility of the expert 51 .

9. (1) Note: R. b. The agency must consider the objections before approving. (1) Copy must be sent by certified mail within 5 days of filing with the agency.C. 119. R. (2) Serve upon the party or the party’s attorney or representative of record. 2d 160 at 171-72 (decision reversed because only one board member reviewed evidence). d. 119. Chapter 119 is silent on this issue. 3d 701. Objections must be filed within ten days of receipt of the Report and Recommendation. (10th Dist. AGENCY ACTION A. Respondent may file objections to the Report and Recommendation.C. Service of the Report and Recommendation. para. “Party” is defined under R.09. 9. Carroll (6th Dist. 9. VIII. modifying. 8. Effect of Report and Recommendation (1) The hearing examiner’s Report and Recommendation is submitted to the appropriate agency representatives to be approved.C. para. 85 Ohio App.09. c. para.09 provides that “the party” may file objections. the state may file a response to the respondent’s objections. Objections to Report and Recommendation. 119. Miller v. or disapproving the recommendation of the examiner.testimony”) (emphasis added) and State v.C. (2) It has also been argued that although the state may not file objections itself. modified or disapproved.C. Ohio Rehabilitation Services Comm. 54 Ohio App. 714. may file objections to the hearing examiner’s report. 1993).09. R. 119. 119. thus. 1977). (2) Recommendation is not final until confirmed and approved by the agency. a. it is argued that only the respondent. c. Hearings Held Before the Agency 52 . R. not the State.01(G) as “the person whose interests are the subject of an adjudication by an agency. (1) Extension to file objections may be granted by the agency. (2) Agency may not issue a final order without allowing ten days for objections to be filed.

or the introduction of further documentary evidence. In such cases. 3d 562. but does not require. Washington v. 666 N. Comm. 119. R. 1998-Ohio-380. 3. OAC 4723-16-12 (Nursing Board). paragraph two of the syllabus. 2. Pub.. 9. R.C. R. (9th Dist. 99 Ohio St. Util. depending on agency rules. 567. See. para. 2.1. some agencies conduct hearings without a hearing examiner. Administrative powers are only implied when clearly necessary to effect an express power. State ex rel. Id. OAC 4731-31-15(G) (Medical Board). Haehn v. 53 . 246-47. an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute. e. 119. Accordingly. 82 Ohio St.2d 625 (9th Dist. (1) Generally. Taking of Additional Evidence 1. Public Emp. 3d 218. Retirement Bd. Agencies sometimes remand cases to the hearing examiner for the taking of additional evidence. The party may appear on his or her own or through counsel. 3d 208.09. 119.E. Jonathan R. no report and recommendation is needed. Ohio State Racing Commission.. Wise v. 2.. agencies to appoint a hearing examiner to conduct the hearing.E. 72. 1981) 3 Ohio App.091. The failure of an agency to hold a hearing prior to the expiration of a license does not deprive the agency of jurisdiction to hold the hearing or to issue a final order regarding the license. 211-212. 119.2d 833 (10th Dist. Prior to issuance of a final order. 70. 614 N. Green v. E. 83 Ohio App. R. Some agencies permit parties to personally appear before the agency prior to the agency’s deliberations. Failure to Hold Hearing Prior to Expiration of License/Surrender of License 1.g. A licensee's voluntary surrender of his or her license prior to an adjudication hearing does not deprive the agency of its jurisdiction to hold the hearing and revoke the license.09. See also. Western Reserve Psychiatric Habilitation Center.09 permits. C.C.C. (1918). Implied remand a. 1995). 106 Ohio App. and the agency can issue an order following deliberations on the case. para. 9.C. D. 1992) 2. B. Mallory v. Personal Appearances Before the Agency 1. Ohio Motor Vehicle Dealers Board. the agency may order the taking of additional testimony. 3d 235. Remand to Hearing Examiner 1.

deliberate. 3rd Dist. 44. e. Courts have implicitly. Ford Motor Co. v. 1986). in the absence of any showing that the findings of fact are defective. 9. not a final order). A. 3d 235. non-appealable order. 05AP1137. 1997). 525 (remand to consider additional evidence). 2000-Ohio-1812. No. No. Bentley & Sons Co. recognized the power of agencies to remand cases to the examiner. 91AP-354. at *7. No. Slain Ford. 82 Ohio St. Bd. 3d 522. at *5-6.09 provides that an agency’s order must be “based on” the evidence. . State of Ohio Med. v. 10th Dist.. State Med. 326-27..’” State ex rel. transcript of testimony and evidence. Inc. 3d 204. These “implied powers . LEXIS 3665. 118 Ohio App. (3) Power will not be implied when the agency has the means to decide the issue within the confines of its express authority. 93APE09-1216. Bd. Green. Retirement Bd. 3d 555. Zak v Ohio State Dental Bd. . 82692. Inc. 246-47. Slain Ford.C. Public Emp.. 8th Dist. 119. Several courts have held that while R. d. 1993 Ohio App. 3d at 220. 33 Ohio App. 10th Dist. 54 . 2. LEXIS 6035. Pierce (1917). Chiropractic Board: OAC 4734-4-13(E) Counselor and Social Work Board: OAC 4757-11-04(H)(3) Dental Board: OAC 4715-15-16(E) Medical Board: OAC 4731-13-15(E) Respiratory Care Board: OAC 4761-11-14(E) 3.. 3 Ohio App. Chapman v. b. 1998-Ohio-380 (quoting State ex rel. Mallory. 2000). No. 1998-Ohio-380. 1981). Ohio State Racing Comm. Lies v. 96 Ohio St. 10th Dist. Ohio Veterinary Licensing Bd. Consideration of the Record 1. paragraph three of the syllabus (not necessary to read the entire transcript “so long as the findings of fact constitute a basis for making informed. at ¶ 9 (remand for purpose of determining attorney’s fees). Marion Ob/Gyn v. 1991 Ohio App. b. and additional testimony and evidence. recommendation. 47). 2 Ohio App.” R. Mallory v. Urella v. See Lally v. at ¶ 98 (remand to consider previously excluded testimony). are limited to those that ‘may reasonably be necessary to make the express power effective. 2004-Ohio-2981. 2006-Ohio-3315. Ohio State Dental Board (9th Dist. and independent conclusions about the issues”). Ohio Veterinary Med. 137 Ohio App. F.C. No. (10th Dist. 2. c.09. (1st Dist. 1991 Ohio App. Some agency rules provide that the agency may remand a case back to a hearing examiner for the purpose of taking additional evidence. at *5-6 (holding that remand was an interlocutory decision. LEXIS 3665.. McCall v. Vonderwell v. or objections of the parties. 15-2000-13. 3d 324. The agency’s order must be “based on such report.. a. 119.. (10th Dist. Bd. para. An agency’s decision to remand to the examiner is an interlocutory. Inc. this language does not necessarily require agencies to read the entire transcript of the proceeding. American Isuzu Motors. 560 (remand for briefing of legal issue).(2) Such implied power can be no greater than the express power and must be exercised subject to the same express power limitations. if not explicitly.

including the entire transcript. (10th Dist. based on such report. The agency must look at the facts of the case in order to be able to support any argument that it reviewed and considered the record of the hearing. 15-2000-13.. 1981). and should not be modified upon the issuance of the final agency order. R. No. Approving the Report and Recommendation a. 4517. 2. 2000-Ohio-1812 (board did not read entire transcript). 3d 204.3. Some agencies’ statutes provide time limits for the issuance of orders following a recommendation. 1993). 85 Ohio App. 3d 701. Best practice is for the agency to review the entire record of the proceedings. d. See.. See. R. c.” These may be “magic words” that should be used in all orders that accept the recommendation of a hearing examiner. or objections of the parties. and any additional testimony and evidence. The Agency is permitted to independently review the evidence. 3d 391. if the agency accepts the recommendations of the hearing examiner without any determination to modify the same. 119. recommendation.. 67 Ohio App. Bd.09 provides that no recommendation shall be final “until confirmed and approved by the agency as indicated by the order entered in its record. e. “[T]he order of the agency. it should indicate in its order that the R&R is “confirmed and approved.C. and to avoid charges that it rubber-stamped the recommendations of the hearing examiner. 3rd Dist.C. the hearing examiner’s R&R is deemed accepted. 4. Vonderwell v. Ohio Rehabilitation Services Comm. 5. and draw its own conclusions from the evidence. (1st Dist. R.” b. G. 1990). or disapprove the recommendation of the examiner. 3.09. 210 (unclear whether each board member reviewed entire record).55.23(D) (board must issue order within 60 days or within any time period agreed upon by the party).g. 713-14.g. R. to make its own findings. In re Certificate of Need Application of Providence Hosp. Modifying or disapproving the recommendation of the examiner 55 . Ohio Veterinary Med. 398. 4731. Failure to act promptly on a Report and Recommendation a.” Miller v. (10th Dist. e. if the agency fails to act within a certain time period from the issuance of the R&R. Under some statutes. Ohio Veterinary Licensing Bd. The Agency may approve.C. transcript of testimony and evidence. 2 Ohio App. shall have the same effect as if such hearing had been conducted by the agency. Accordingly. Agency Review of the Report and Recommendation of the Hearing Examiner 1. modify. b. See Lies v.C. 119.

70 Ohio St. 10th Dist.S. when considering a report and recommendation under 119. H. d. Serv. as the agency may be called upon in subsequent hearings to apply the facts in a similar fashion. (2) The agency must be careful to avoid the appearance that it was not giving proper deference to the hearing examiner as criticized in Brown. (10th Dist. 70 Ohio St. Disciplinary Actions 1. 3d 77. 2. Ohio Bur. an administrative agency.a. 293. 67 Ohio App. the Supreme Court of Ohio has held that where the findings are based upon assessments of credibility driven by observance of witnesses’ demeanor. 9.09. The agency should be able to both articulate and demonstrate how it is applying the law to the case before it. Sheriff (1990). and the reasons why it relied on certain facts as opposed to others. 2003-Ohio-987. and what the agency considered to be facts supported by the record. of Emp. C-3-96-010. it should be able to demonstrate the conclusions it draws from the facts. as the ultimate factfinder. the agency should give due deference to the recommendations of the hearing examiner. LEXIS 22065 (Mar. of Emp. (10th Dist. Ohio Bur. See Brown v. it must include in the record the reasons for such modification or disapproval. Trout v. (citing Jones v. 1999 U. then the mitigating factors warranting the lesser penalty should be specifically set forth. Serv. 02AP-783. Blinn v. In the Brown case. If the penalty is to be less than that proposed by the hearing examiner. of Edn. 32 Ohio St. Agency modifying the penalty (1) Per Brown v. 1985). and further adopted the findings of fact. Suspensions 56 .. Ohio Dept. R. 3d 1. 52 Ohio St. 1990). Serv. Serv. 398. A reviewing court will need to be able to determine what the agency relied upon. 3d at 2. of Emp. but did not accept the recommendation. then the exacerbating factors should be stated with particularity. Id. (1994). Ohio courts have indicated that. If the converse is true. No. Amherst Village Bd. of Edn. the agency should afford due deference to the findings of the examiner. (1994). 2. City of Springfield. Dist. b. This is just as important even if the case is not appealed. of Emp. Brown v. c. In re Certificate of Need Application of Providence Hosp. may make de novo findings of fact and conclusions of law. S.09. (1994). Ohio No. 3d 391. 3d 40). Graziano v. 70 Ohio St.C. 3d 289. Franklin Cty. If the agency modifies or disapproves the recommendation of the examiner. 119. 1999) at *21-22. Ohio Bur.D. para. The Agency may only take actions or impose penalties authorized by law. e. 3d at 2. 29 Ohio App. Further. the Supreme Court noted that the agency did not indicate that it examined the record. Although the agency has the authority to make de novo findings of fact. at ¶ 17. (1987). Ohio Bur. 3. Crow v. 79.

v. 29 Ohio St. 463 (procedural due process). State v. in some circumstances. Independent of criminal penalties a. 1988). 3d 455. 3d 606. b. The agency may not impose multiple penalties for one violation of a statute. Williams (1996). at ¶ 7.a. “ State v.). 5. 2005Ohio-2995. Non-permanent revocations: licensee may reapply or be reinstated. For example. following a permanent license revocation. White (1987). 435-36 (double jeopardy). The agency may impose multiple penalties when each penalty is based on a different violation of the statutes. Wesco Ohio Ltd. the agency must accept and process a subsequent application for a new license. b. 3. Ohio State Bd. 2004-Ohio-2709. however. 3d 94. 57 . 76 Ohio St. an applicant may apply for a new license. 40. Richter v. 3d 425. 2005-Ohio-2995. b. 3d 39. Poignon v. at ¶ 14. or incorporated law. 2005-Ohio-2995. Gustafson (1996). must expressly state that the revocation is permanent. Bd. No. 76 Ohio St. 20 (French. concurring). placing a defendant under an administrative license suspension for DUI does not constitute a punishment that triggers a double jeopardy impediment to further governmental enforcement action. 161 Ohio App. Multiple penalties a. 55 Ohio App. Permanent revocations (1) At least one court has held that for a revocation to be permanent. The term suspension implies temporary loss of license. paragraph one of the syllabus (issue preclusion). of Ohio (10th Dist. See Richter. 3d 290. State v. 03AP-178. (4) In the context of a driver’s license. (3) Under this interpretation. 10th Dist. State ex rel. Ohio Bd. Richter. of Pharmacy. Hochhausler (1996). 4. of Pharmacy (10th Dist. Revocations a. at ¶ 14. the order. (2) The Tenth District has held that. unless the law in effect at the time of the revocation precludes further application. State v. at ¶12. State Med. nor does it violate procedural due process or create a valid argument of issue preclusion. 98-99. 76 Ohio St. Administrative actions against a license or permit as may be specifically authorized by statute do not constitute a bar against criminal prosecution based on the facts that underlie both actions. the Supreme Court of Ohio has held that the term revocation means a “permanent taking without the expectation of reinstatement.

9. a. The agency may incorporate by reference the entire Report and Recommendation.12 of the Ohio Revised Code.09. R. 119. certified as an exact reproduction by the officer responsible for keeping the original. para. The following language is recommended for the general statement of time and method: Any party desiring to appeal shall file a Notice of Appeal with the [Agency/ Board/ Commission] [address]. of Commerce. b.C. 9. 119.” R. The Notice of Appeal shall also be filed by the appellant with the [appropriate court of common pleas]. 119. and should attach a copy of the same to its final order. 5. 114 Ohio St. Hughes v. of Commerce. 10. 10. 119. Such notices of appeal shall be filed within fifteen (15) days after the mailing of the notice of the [Agency’s/ Board’s/Commission’s] Order as provided in Section 119. para. and substantial evidence and is not in accordance with law. 2007Ohio-2877. The order modifying or disapproving the Report and Recommendation must state the reasons for the modification or disapproval. that tracks the language of R. at ¶ 14-15.09. The order must be entered on the agency’s journal. was found sufficient to put a party on notice as to how to file an appeal of an agency’s order. 10. Content and Issuance of the Order 1.C.09. a. The party must be served with a certified copy of the order. R.C. 2007-Ohio-2877. R. 58 .C. The agency must maintain the original order in its files. setting forth the order appealed from and stating that the agency’s order is not supported by reliable. 3d 47. Language. Service of the Order 1. The order approving the Report and Recommendation should state that the recommendation is “confirmed and approved. Ohio Dept. R. A certified copy is a duplicate of an original. 3.I. 10. at ¶ 16.C. 119.C. para. Hughes v. and substantial evidence and is not in accordance with law.09. 119. para. probative. para. 2. set forth the specific grounds of the party’s appeal beyond the statement that the agency’s order is not supported by reliable.09. J. 4. The order must include or have attached a statement of the time and method by which an appeal may be perfected. R. Ohio Dept.09. probative. but need not. b. para. The notice of appeal may.C. 119.12.

263. [name] the undersigned [Director/Chairperson] for the [agency/board commission] hereby certify that the foregoing is a true and exact reproduction of the original order of the [agency/board/ commission]. of Commerce. SS I.. b. Set Products. 308. supra. at ¶ 12. K. ¶ 35 4. Issue preclusion/collateral estoppel precludes the relitigation of an issue actually and necessarily litigated and determined in a prior action. 2011-Ohio-431. 114 Ohio St. 119. Note: There are differences between the service requirements for an order and for a report and recommendation. Cooper v. v. 10AP-419. v. both the party and the attorney must be served. of Workers’ Compensation. No. If delivery fails.c. A report and recommendation must be sent by certified mail to the party OR the party’s attorney.07. the party must be served with a certified copy by certified mail. 3. 3d 47. Sun Refining Marketing Co. R. 2007-Ohio-2877. 2000 Ohio App. Claim preclusion/res judicata applies to administrative proceedings that are of a judicial nature and where the parties have had an ample opportunity to litigate the issues involved in the proceeding. The time period for appeal of an agency decision does not commence until the party is properly served with the agency’s order. Ohio Dept. Inc. For the order. a. Effect of Orders – Claim/Issue Preclusion 1. Nos. The agency must send a certified copy of the order to the party by certified mail.C. CA99-09-108. 12th Dist. Bd. Hughes v. There is no requirement that the copy to be sent to the attorney be certified. Ohio State Bd. 10th Dist. 3d 260. Kellough v. at *7. CA99-07-082. 5. 200? ___[signature]___________ Name Title Date (seal) 2. See failure of delivery of notice. 3d 306. of Edn. The agency must also mail a copy of the order to the party’s attorney. of Zoning Appeals (1987). 31 Ohio St. and the attorney may be served with an uncertified copy by regular mail. entered on its journal on the ___ day of _____. LEXIS 2268. the agency may use other methods of service as provided. Administrator of Ohio Bur. Brennan (1987). 31 Ohio St. However. 2. The following language is recommended for the certification: State of Ohio County of _________________. Application of collateral estoppel/issue preclusion 59 . Bainbridge Twp. 3.

OEA/NEA v. (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment. a party must plead and prove that: (1) the party against whom estoppel is sought was a party in privity with a party to the prior action. Relations Bd. Frye Teachers Assn. Inc.S. Identity of the issues (1) A judgment or decree in a former action does not bar a subsequent action when the causes of action are not the same.. in order to preclude either party from relitigating an issue. even though each action relates to the same subject matter. A judgment. Goodson v. (1) “Ordinarily. Res judicata/collateral estoppel applies to administrative decisions of a judicial nature. one of the primary considerations is the identity of the evidence necessary to sustain the action. A prior judgment estops a party. or issue preclusion. 62 Ohio St. Lindley (1980). 81 Ohio St. or a person in privity with him.” Superior's Brand Meats. (1983). and (4) the issue must have been identical to the issue involved in the prior suit. A final. 60 . Stores. 2 Ohio St. To determine whether a second action was barred by this rule of law. 452 U. syllabus. d. State Emp. 3d 392. Federated Dept. 394. e. Ft. v. (1998). b. the general rule is that mutuality of parties is a requisite to collateral estoppel. where an administrative proceeding is of a judicial nature and where the parties have had an adequate opportunity to litigate the issues involved in the proceeding. 2d 133. 3d 193. Mutality of the parties (1) In Ohio. syllabus. the doctrine of collateral estoppel may be used to bar litigation of issues in a second administrative proceeding. collateral estoppel operates only where all of the parties to the present proceeding were bound by the prior judgment. As a general principle. 398. unappealed judgment on the merits that may have been wrong or rested on a legal principle subsequently overruled in another case does not alter the preclusive consequences of that judgment. from subsequently relitigating the identical issue raised in the prior action. McDonough Power Equip. Inc. v. In order to prevail on the defense of collateral estoppel. 395. must be preclusive upon both. c. (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue.a. Moitie (1981).

84 F. 160 Ohio St.C.C. para. Party adversely affected a. Where a right to appeal is provided only through statute. 70. USDA (S. 64 Ohio St. 27.S.(2) The Supreme Court has further held. 2d 67. 175. 2.C. however. at ¶ 12. At common law. 10th Dist. Corn v. may appeal from the order of the agency. b. 2011-Ohio394. 39 Ohio St. pursuant to 28 U. of Edn. 1997). . The right to appeal the action or the determination of an administrative body is neither inherent nor inalienable.12) A. Inc.C. No inherent right to appeal a. or revoking or suspending a license.12. Ohio’s R. the right to appeal may be exercised only by those parties who are able to demonstrate a present interest in the subject matter that has been prejudiced by the action of the body from which the appeal is taken. 26. 56 Ohio St. that the doctrine should be applied with flexibility in the administrative context. if no right to appeal exists under state law. Holmes v. Mahoning-Youngstown Community Action Partnership v. C. 3d 24. Supp. Nos. the party must strictly comply with the statutory requirements for filing an appeal. 3-02-04. Similarly.” R. Civil Rights Comm. (1992). 9. . The right to appeal must be derived from a constitutional or statutory right. Likewise. 3. § 1367. Jacobs v. (Montgomery C. Troy City Council (Miami C. “Any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination. 2d 886. 3rd Dist. Zelnick v. IX. In re Annexation in Mad River Twp. APPEALS (R. Inc.P. 2d 187. 64 Ohio St. G & D.C. the Ohio legislature must have granted the appellant the right to pursue the appeal. Lexington Supermarket. 119. Teledyne (1988). Union Gospel Press (1980). 176. 188. v.P. an appellant cannot appeal a state agency decision in federal district court. 1970). Ohio 1999).D. 4. 119. 61 . Willoughby Hills v. 3d 168. Bd of Liquor Control (1953). or denying the issuance or renewal of a license or registration of a licensee. when a federal program funded with federal dollars has a regulatory scheme that (1) clearly defines the method of resolving claims as comprising an independent hearing and (2) mandates that the hearing determination is the final administrative determination.. No. 1. For a court of common pleas to have subject matter jurisdiction over an appeal of an agency decision. Chapter 119 administrative appeal process may not be used to appeal the hearing determination. v. 85 Ohio Misc. . 11AP-582 and 11AP-83. Who May Appeal 1. Ohio State Liquor Control Comm. 2002-Ohio-4407. under the court’s exercise of supplemental jurisdiction. Ramsdell v. Inc. 889. Ohio Dept. 171. (1990). 3d 24. 11. The right to appeal administrative decisions is provided only through statute. 25 Ohio Misc. Bar’s Sahara..

without an independent interest in the matter. 119. Osborn v. 119. 46 Ohio St. 510. 3d 147. 3d 99. Ohio State Bd. Collyer v. A bank that receives notice pursuant to R.01(G). State ex rel. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency. to appeal an order by the superintendent of banks granting the application. Blue Cross of Northeast Ohio v. rev’d on other grounds. 3d 48. 119. 346. Bd. Osborn. 385. Wells Community School. 1111. Other Parties 1. or partnership. e. (1938). paragraph one of the syllabus.C. 2d 91. 102. v. (10th Dist. Parents of Students Attending Edge Academy of Akron & Ida B. Dept. 1970). No. 54 Ohio St. Government entities as parties for purposes of R. In re Job Abolishment of Jenkins (10th Dist.12. 2002-Ohio-1318. No. State ex rel. 47-50. 119.01(G).b. 46 Ohio St. 150-51. 47. of Admin.01(F).C. 3d 507. nor its director was a “party” within the meaning of R.C. of Edn. B. 1991). ”Person” is defined as “a person. Clermont Natl. Bank v.C.C.12 (1) Neither the state. Bd. Siesel..C. of Mental Retardation & Developmental Disabilities v. 1984). Serv. 10th Dist.C. 49.C. at ¶ 6 (Ohio State Personnel Board of Review decisions may be appealed by a county board of mental retardation and development to the courts of common pleas pursuant to R. Unless a statute provides otherwise. 3d 113. (2) When the State acts merely as an adjudicator. 2d 41. 2d 41. Edwards (10th Dist.12. under R.” R. Professionals Guild of Ohio (1989). and has standing. a state agency. 13-0215. 387. (1992). 27 Ohio App. (1990). d. Harrison v. (4) An “appointing authority” has no right of appeal to the common pleas court from a decision of the state personnel board of review disaffirming a job-abolishment by such appointing authority because the appointing authority is not a “party” whose interests are the subject of the adjudication nor is it adversely affected by the decision. 120 Ohio App. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R. 119. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party. Relations Bd. Compare Seneca County Bd. 01AP-786.C.01. Hamilton Cty. State Emp. 3rd Dist.” R. 1963). 74 Ohio App. v. Haig v. 114. Chapter 119). firm. 62 . 62 Ohio St. of Mental Retardation & Developmental Disabilities v. 119. Broadview Developmental Ctr. association. 21 Ohio App. the State is not a proper party to an appeal pursuant to 119. 347. of Edn. Public Utilities Comm. Akron City School Dist. 119. Ratchford (10th Dist.02 of a hearing on an application for the establishment of a new branch by an applicant bank is a “party adversely affected” under R. c. Jackson (1976). 134 Ohio St. 46 Ohio St. corporation.12. 2002-Ohio-4235.

C. 10th Dist. (2) The party need not attach a copy of the order as long as the appellant sufficiently describes the order appealed from. pursuant to R. 2011-Ohio-2485. of Industrial Relations. 4. Court of Common Pleas. (1) Attaching a copy of the order satisfies the requirement to set “forth the order appealed. Residents of a school district had no right to appeal a decision of the State Board of Education assigning or joining a school district to a joint vocational school district. 10th Dist. 189 Ohio App. c. of Nursing. 4. but need not set forth the specific grounds of the party’s appeal. 10th Dist. at ¶ 6. Johnson v.2. Only the local school board could bring the appeal. of Edn. Ohio State Bd. Statement of grounds/required language (1) The notice of appeal must state that the order is not supported by reliable. Notice of Appeal 1. 119. LEXIS 8150. b. 119. 119. 76AP-423. Ferguson-Ramos. 05AP-511 (Dec. 74AP-231.C.C. at *6. No. No. 3d 678. 2005) at ¶ 10. 10th Dist. 119. 4. para.12. LEXIS 3041. 3. R. finding that “any requirement to make a written statement of the standard of review in the 63 .P. 6. See Foreman v. probative. Content of Notice of Appeal a. Community residents had no right to appeal. probative.C. Barnes v.12. 119. 10AP-421. The notice of appeal must set forth the order appealed from and state that the order is not supported by reliable. and is not in accordance with law. 1974 Ohio App. Lucas Cty. and substantial evidence. Pinkney v. No. 1976 Ohio App. 2006). (2) The notice may. Ohio Dept.” Hunnewell v. at *4-5. (a) Split in appellate authority as to whether requirement is jurisdictional: (i) The Tenth District Court of Appeals has held that the failure to include the required language is a jurisdictional defect requiring dismissal of the appeal. Franklin C. and substantial evidence and is not in accordance with law.C.C. R.. beyond the statement that the agency’s order is not supported by reliable. No.12. Ohio State Univ. at ¶ 12. R. Setting forth the order appealed from: attach OR sufficiently describe. probative. (ii) The Seventh District Court of Appeals disagreed. No. as they are not parties under R. State Bd. para. 2010-Ohio-4731.12. 05CVF066560 (June 15. and substantial evidence and is not in accordance with law.. a certificate of plan approval granted to a real estate developer for the construction of a mall complex. Siegler v.12. para.

204. 10 MA 153. 4. 12 O.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). Effective May 8. para. 3d 471. 2012). No. 119. Franklin C. Where to File R. 11 MA 39.C. Under R.notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction.. The notice of appeal filed with the agency and with the court of common pleas need not be exact copies of each other as long as they timely inform the respective recipients of the respondent’s intent to appeal the agency’s order. the notice of appeal must be filed with the agency and with a court of common pleas. Form of the Notice of Appeal a. Dudukovich v. Zidian v Dept. of Job and Family Services. 58 Ohio St. ruled in accordance with the Tenth District Court of Appeals.C. “[i]n filing a notice of appeal with the agency or court. 7th Dist. v. 2011-Ohio-1604 (appeal under R. probative. 11 MA 39. 119. D. No. ¶ 39. 2012-Ohio-1499. 7th Dist. No.2d 202.2d 1113. 2505. 128 Ohio St.12 governs appeals taken pursuant to R.C. When a statute provides for appeal of an administrative agency’s decision but does not reference the statute pursuant to which the appeal must be taken.. Ohio Dept. The notice of appeal need not contain the language specified by R. 10th Dist. 119.3d 198. the notice that is filed may be either the original notice or a copy of the original notice. probative and substantial evidence and/or is not in accordance with law. Evankovich. County of place of business or county of residence 64 . and a copy with the court. Chapter 2505 governs the procedure for administrative appeals. ¶ 43-44. 119. Lorain Metropolitan Housing Authority (1979). 2009. 1. Ohio Dept. of Commerce. 119.12.C. 389 N. Russell v. and substantial evidence and is not in accordance with law”)— the filing of the notice of appeal is an affirmative statement that the respondent believes that the underlying order is not supported by reliable. No.12 to remove the requirement to file the original notice of appeal with the agency. No. State of Ohio Bd. at ¶ 34. 12-CVF-1835 (Apr. 2012-Ohio1499. R.C. of Job & Family Services.P. 2.E.v. Chapter 119. the General Assembly revised R. Warren County Regional Planning Comm. 2011-Ohio-3172. Zidian v Dept.12. Inc.12 (that “the agency’s order is not supported by reliable. Which court of common pleas? a.O. 7th Dist.C.Ohio-95. 10.C. of Commerce. 11AP-259. of Pharmacy v. 2.” R. Deaconess Hosp. 2012. But see Welsh Development Co. The statute now provides that.C.

If the party is not an Ohio resident. R. Altoff v. at ¶ 12. Franklin C. 2012).C. 2006-Ohio-502. 1: (1) (2) (3) (4) Liquor Control Commission Medical Board Chiropractic Board Board of Nursing b. 119.12. No. 1. 10th Dist. 2006-Ohio-502. para.(1) In most cases. 07-564 (July 30. 04AP-619 and 04AP620. v.12. in the case of an appeal by the Department of Rehabilitation and Correction.C. b. No. Peter Garg v. No. BP Exploration & Oil. R. para.C.12. Appeals from the fire marshal pursuant to R. 119. State of Ohio Bd.P. Ohio State Fire Marshal. 119. R. 119. No. 4. Ohio State Dental Bd. Duchon v. Chapter 3737 must be filed in the county in which the building of the aggrieved person is located. 12CVF7204 (October 17. Appeals from the following agencies must be filed in the Franklin County Court of Common Pleas. (2) The party must choose one. para. Special designations a. paras. R.C. The party must choose whether to file a notice of appeal in the county of place of business or the county of residence. 119. and may not file notices of appeal in both counties. revoke or suspend a license may be filed in Franklin County. not the county where the dentist worked one day per week. 1. Franklin County Court of Common Pleas a. 2005-Ohio-1533. the notice of appeal must be filed in the common pleas court of the county in which the place of business of the licensee is located or the county in which the licensee is a resident. at ¶ 15. Gallia County was not the county of place of business for purposes of an appeal of an order of the Psychology Board. Inc. of Commerce.P.12. c.C. performing services not regulated by the Psychology Board. not both. (b) Where the psychologist worked twice per month in Gallia County. 3. Altoff. 65 . was the county of place of business. Appeals from a decision of the State Personnel Board of Review or a municipal or civil service township civil service commission shall be taken to the court of common pleas of the county in which the appointing authority is located or. 119. 04CA16.C. para.. and has no place of business in Ohio.12. 2. to the Court of Common Pleas of Franklin County. Miami C. 2. para. 1.12. the party may file an appeal in Franklin County. 2. R.C. R. 4th Dist. (3) County of place of business (a) The county where the dentist worked four days per week. Appeals of adjudications that do not deny an application. 2007). Dept. of Psychology.

119. 3. 2d 48. Ohio Veterinary Med.. at ¶ 6. Ohio Dept. State v.42(C). R. Proper service pursuant to R. a. Inc. E. 04AP-748. 10th Dist. 1993 Ohio App. 3d 47. Pursuant to R. of Rehabilitation & Correction (1998). (Franklin C. 2003-Ohio-3121. 2505. 84 Ohio St. para. 321. 511. 01CA13. Yeager v. 2nd Dist. 11AP-259. 114 Ohio St. Addressing “new” evidence which was available during the initial trial/hearing is inadmissible on a motion to stay in order to prevent undue prejudice on the opposing party.C. 1955 Ohio App. Bailey v.C. 1987).C. Evidence a. Suspension (Stay) of Agency’s Order on Appeal 1. 119.12. 8th Dist. Ball. 119. Bd. v. 2012-Ohio-2908. 37 Ohio App. 4th Dist. 103. Granting of suspension of the order 66 . 3d at 102. Deaconess Hosp. 72 Ohio Law Abs. Colonial. 3d 192. (10th Dist. Ohio Dept.. 2012-Ohio-95. 5th Dist. LEXIS 5647 (Nov. para. The court held that R. App.12 is a condition precedent to the running of the time for appeal. 10th Dist. Geroc v. 1993). 114 Ohio Misc. 4. 3d 317. 2000). Chapter 2505 governs the manner for filing appeals under R.C. Time for Filing the Notice of Appeal 1. Harrison v. 2007-Ohio-2877. 10th Dist. Morrison v. one to the agency and the other to the court.12 deprives the court of jurisdiction over the appeal and mandates dismissal. paragraph one of the syllabus. Dickson v. Ohio Dept. No. 84 Ohio St. Ohio Dept.07) Nibert v.P. 4. of Admin. Hiddens. 119. R. 3d 100. 103 Ohio App.12. No. 2006-Ohio-3436. Ohio State Med. Ohio Liquor Control Comm. 2007-Ohio-2972. Bd. 02AP-1019. of Commerce. 24. LEXIS 744. 110. both notices of appeal. No. Serv. 2. No. v. A stay of execution of the agency’s order pending appeal is not automatic. ¶ 28 (R. of Ins.C. 189. Nibert. 21487. Liebold v. The actual mailing date of the order is the event that triggers the appeal period.C. Scott (1955). 2002-Ohio-5986. must be filed within 15 days of the mailing of the agency’s order. 2011 CA 0085. Hughes v. 195. at ¶ 13.c. (8th Dist. Williams. Normal practice is for the appellant to file a motion for stay or suspension of the agency’s order after filing the notice of appeal. F. 1995). 3.C. 2. at ¶ 14. 5. Mansfield. No.12. 51. No. The filing of an appeal does not automatically operate to suspend or stay the agency’s order. b. Ohio Dept. of Job & Family Services. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R.C. Arndt v.

Franklin C.. 119. 67 . Ohio State Dental Bd. No. (3) Fernando C. Bd. 1994).P. of Ins. Franklin C. 1993). Ohio State Med. See Leo D'Souza.12. v. M. R. State Bd. 93CVF05-3734 (Aug. at 4 (Court held that." Hazem S. Williams v. State Medical Board of Ohio. 1998). 2. it must also be shown that granting a suspension will not threaten the “health. No. Franklin C. Franklin C. State Medical Board of Ohio. of Chiropractic Examiners. 27. Bd.P.P.D. v. Bd. Franklin C. No. “[t]he loss of income. 1993) (foreseeable financial hardship alone is not unusual hardship). 1996). 119. Unusual Hardship required. 96CVF09-7055 (Oct. Franklin C. Garada. Ohio State Med. No. Roland v. Haw-Chyr Wu v. State of Ohio Dept. (2) Expected financial hardship of losing one’s license is not “unusual hardship” required for a stay. v. (4) Suspension of practice in another state is not an "unusual hardship. O. Bd. M. The Court found that such an allegation constitutes a threat to the health. 9. 9. safety. Ohio State Med. 94CVF05-3308 (June 6.). clients. 1993).D. The court found that this would amount to an unusual hardship. No. 10. Bd. para.. 07-CVF0911839 (Sept. 08CVF-05-7342 (June 12. Franklin C.” See R. 5. No.D.P. Franklin C. Herman Dreskin. State Med. 5.. b. Ohio State Med.a.. 2007). See Gill v. employees and reputation are all inherent results of the revocation of a medical license” and therefore do not constitute an unusual hardship.P. 97CVF-09-8830 (Oct. and welfare of the public. The State Medical Board of Ohio. 93CVF08-5808 (Jan. 94CVF10-7097 (Nov. No. Franklin C.P. No.C.. 2008). No.12 para. v. 1996). 14. 92CVF11-9231 (Mar.P. (b) The Medical Board determined that a doctor’s over-prescription of drugs with indifference to the prescription abuses of his patients allegedly contributed to the suicides of three patients. Larach. Dolce v. Franklin C. HMOs and PPOs require the termination of any suspended physician from their reimbursement policies. property. Franklin C. 12. Doctor alleged that the Medical Board may report his suspension to the National Practitioners Data Bank. A court may grant suspension of an agency’s order if it appears that an unusual hardship to the appellant will result from the execution of the agency's order pending determination of the appeal. safety. No.. and welfare of the public. No. 1994). Bd.P. Hoffman v. Roy v. (1) “Unusual hardship” is more than the mere loss of the right to practice one’s profession. Other Factors to Consider (1) Medical Board and Chiropractic Board (a) For appeals from these boards. Franklin C. M.P.P. 98CVF06-4873 (July 10. 1994).P.. of Ohio.D. and that certain insurance plans. 29. 93CVF09-6881 (Dec. Ohio State Med. M. 1997). See also. Essig v. 96CVF05-3566 (June 5.C. No.P.

para. 119. M. City of Cincinnati Civil Service Comm. 3d at 781-82. (1) If an appeal is taken from a common pleas court decision when the court previously granted a suspension of the agency order. 3d 777. The State Medical Board of Ohio. See. then the suspension “shall not be vacated” and will continue until the matter is finally adjudicated. 5. 68 . 1st Dist. (b) whether the appellant has shown that it will suffer irreparable injury. (10th Dist. Leo D'Souza. v.. Deciding a motion for suspension of agency order is wholly within sound discretion of the trial court.. Krihwan. C-800651. Franklin C. In granting a suspension of an agency’s order.. Standard of review of trial court decision on this issue is “abuse of discretion. 92CVF05-4202 (July 15. that is. 141 Ohio App. Generally. (c) whether the issuance of a stay will cause harm to others. No.12. 2001). 141 Ohio App. Terms of the suspension a.C.P. until all appeals are exhausted and agency’s order becomes final. 5. 1981 Ohio App. R. and (d) whether the public interest would be served by granting a stay. c.C. 783. para.P.g. The Court may set terms during duration of suspension including restrictions on practice. the Court may fix the terms of the suspension order. No.D.” Hunter v. R. para.12. b. 2008). (3) The court generally has broad discretion on what factors to consider in granting a suspension of the agency’s order. Bob Krihwan Pontiac-GMC Truck. General Motors Corp. 119. v. Duration of the stay/suspension of the agency’s order a. Fattah v. See R. An order denying a stay of an agency’s order may constitute a final appealable order when the court will be unable to fashion a remedy to repair the appellant’s loss. at *910.(2) Logical considerations: The Court of Appeals for the Tenth Appellate District has held that the following factors are “logical considerations” when determining whether to stay an administrative order pending appeal: (a) whether the appellant has shown a strong or substantial likelihood or probability of success on the merits. e. No.C. Bd. 5. LEXIS 13852. Ohio State Med. 119. Franklin C. 4. 5. 1992). 08CVF-05-7342 (June 12.12. suspension of the order remains in effect until the matter is “finally adjudicated”. Inc.

(c) The General Assembly set a definite time period for the duration of a suspension of the agency’s order. 2nd Dist. 119. 10th Dist.C.12. c.12. R. Haddix. (2) Medical Board or Chiropractic Board (a) A court order suspending an order of the Medical Board or Chiropractic Board terminates 15 months after the date of the filing of the appeal. 9951.C. the trial court order will expire at the close of the time allowed for perfecting any appeal and the failure of a party to timely perfect an appeal will not revive the expired stay order. Ohio State Dental Board (7th Dist. (b) Fifteen-month limitation on suspension of agency order is constitutional and does not violate due process or equal protection rights. Giovanetti v. 5. 1987 Ohio App. 265.121. para. Exceptions (1) Liquor Control Commission. 3d 262. State Med.12. LEXIS 5639. 119. 119. para. (b) The court is required to enter judgment within six months of filing of the record. 7 (a) Stays of certain orders by the Liquor Control Commission must terminate no more than six months after the filing of the certified record in the common pleas court. ¶ 8.C. City of Dayton v. 6. 6. 1991). (i) The stay does not continue on appeal to court of appeals. para. 84AP-225 & 84AP-362. 69 . Bd. at *6. Nos. A license renewal cannot be denied by reason of an agency order that is on appeal and has been suspended by the court. and did not intend for the limit to be evaded with successive stays. whichever occurs first. R. The final adjudication order may apply to a license that was renewed during the appeal (regardless of stay/suspension of agency order). or upon a final decision of the common pleas court. Expiration of license shall not affect the appeal. R. any trial court order suspending an agency order will remain in effect until the appellate process is complete. LEXIS 10933. 119. 1984 Ohio App. b. Plotnick v. 63 Ohio App. at *24-25. (3) However. License renewal and suspended agency orders a.12. R. 119.C. b.(2) Generally where a timely appeal is taken from a trial court. R. of Ohio.C. No.

1 provides that the Civil Rules are to be followed in all courts in Ohio in the exercise of civil jurisdiction at law or in equity. Giovanetti v. 1985 Ohio App. 1990). . Price v. 2d 131. Civil Rules may apply when the common pleas court conducts a trial de novo. See D-1 Liquor Permit Filed with the Ohio Dept. Civ. 2d 42. The Civil Rules are not categorically inapplicable to appeals from administrative orders. 99 Ohio Misc. a. (1990). the Civil Rules should apply unless they are “clearly inapplicable. Talley v. the court is limited to the record below. and attorneys should look to the statute granting the right of appeal to determine whether the rules guide the procedure. of Liquor Control by Stover v. The 11th District has held that when the common pleas court must decide questions of law and fact. No. Civ. Warner (Cleveland Mun.12. 2. 1974 Ohio App. d. 3d 24. then there is no reason not to apply the Civil Rules. Civil Rule 1 is clearly a rule of inclusion rather than exclusion. R. 8th Dist. To the extent that the issue in question is procedural in nature. LEXIS 8285. 3d 381. and the court held that Rule 60(B) was inapplicable to such proceedings. 119. LEXIS 3871. . 1 for guidance. 1999). c. the Rules apply unless by their nature they are clearly inapplicable. This question must be decided on a case-by-case basis. as in appeals under R. Ramsdell v. 133. 56 Ohio St. of Cty. G. . at *6) (administrative appeal pursuant to R.” The Civil Rules should be held to be clearly inapplicable only when their use will alter the basic statutory purpose for which the specific procedure was originally provided in the special statutory action. R. such as when an appeal requires a trial de novo. 10th Dist No. Commrs.” An administrative appeal is a special statutory proceeding. however. 383. (7) in all other special statutory proceedings . The Civil Rules will be applicable to special statutory proceedings that are adversarial in nature. 70 Ohio St. Ohio State Dental Bd. 1(C) states that the Civil Rules “to the extent that they would by their nature be clearly inapplicable..12 is a special statutory proceeding to which the rules of civil procedure do not apply). 70 . but not in Chapter 119 appeals. 2506. 3. R. Ct. 1(C).C. b. Administrative appeals are special statutory proceedings. Courts have looked to Civ. Applicability of Civil Rules to Administrative Appeals 1.C. R. 33089. 4. at *4-5 (citing Sweetbriar Co. Liquor Control Comm. If appellant wins on appeal. Bd. the court held that in an appeal under 119. unless there is a good and sufficient reason not to apply the rules. court shall order agency to renew license upon payment of fee. 84AP1085.. (11th Dist.121. R. Case-by-case determination for special statutory proceedings. Decisions on particular civil rules. Westinghouse (1982). . 66 Ohio App. . shall not apply . 27. v.d. Under Civ. 119.C. Ohio Civil Rights Comm. 45 (determinations made on a “rule-by-rule” basis).

a. Rule 59 (Motion for new trial) is not applicable to administrative appeals. A court of common pleas has no authority to grant a new trial pursuant to Civ. R. 59(C), because a trial was never conducted by the court of common pleas. In interpreting the authority of a common pleas court in reviewing state agency decisions under analogous R.C. 119.12, several appellate courts have held that a common pleas court has no power to grant a new trial from a judgment rendered in an administrative appeal. See Ohio State Medical Bd. v. Pla (8th Dist. 1988), 42 Ohio App. 3d 239, 240; Shady Acres Nursing Home, Inc. v. Bd. of Building Appeals (11th Dist. 1976), 50 Ohio App. 2d 391, syllabus; See also, Warren v. Board of County Commrs., 11th Dist. No. 94-P-0056, 1995 Ohio App. LEXIS 2301, at *3-4 (political subdivision appeal under R.C. Chapter 2506. b. Rule 60(B) (Motion for relief from judgment) is not applicable to administrative appeals. Buchler v. Ohio Dept. of Commerce (8th Dist. 1996), 110 Ohio App. 3d 20, 22; McConnell v. Ohio Bur. of Emp. Servs., 10th Dist. No. 96APE03-360, 1996 Ohio App. LEXIS 3889; Giovanetti v. Ohio State Dental Bd. (11th Dist. 1990), 66 Ohio App. 3d 381 at 383; In re Multi-Fund of Columbus, Inc., Franklin C.P. No. 09CVF-12-18865 (Mar. 29, 2011). c. A stay order under Civil Rule 62(A) is not applicable to an administrative appeal. Sweetbriar Co. v. Liquor Control Comm., 8th Dist. No. 33089, 1974 Ohio App. LEXIS 3871, at *5. d. Rules 60(A)(4) and (5) (Motion for relief from judgment) are not applicable to an administrative appeal. Sweetbriar, 1974 Ohio App. LEXIS 3871, at *6. 5. Local rules of a court of common pleas, such as rule setting page limitations for briefs, may be enforced in an administrative appeal. Boggs v. Ohio Real Estate Comm. (10th Dist.), 186 Ohio App. 3d 96; 2009-Ohio-6325, at ¶ 42. H. Certification of the Record 1. Pursuant to R.C. 119.12, an agency is required to prepare and certify to the court a complete record of the proceedings in the case. 2. Time for filing a. A record must be filed within thirty days after receipt of a notice of appeal. R.C. 119.12, para. 9. See Schupp v. City of Cincinnati Civ. Serv. Comm., 1st Dist. No. C020176, 2002-Ohio-7077, at ¶ 11; Geroc v. Ohio Veterinary Med. Bd., 8th Dist. No. 59100, 1991 Ohio App. LEXIS 5350, *17. b. Additional time may be granted by the court, not to exceed thirty days, when it is shown that the agency has made substantial effort to comply. R.C. 119.12 para. 9. 3. Content of the record a. Complete record of the proceedings

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(1) “Complete record of proceedings” was defined by the court in Checker Realty Co. v. Ohio Real Estate Comm. (10th Dist. 1974), 41 Ohio App. 2d 37, 42, as “[a] precise history of the administrative proceedings from their commencement to their termination.” See Kramp v. Ohio State Racing Comm. (9th Dist. 1991), 81 Ohio App. 3d 186, 189; Bergdahl v. Ohio State Bd. of Psychology (4th Dist. 1990), 70 Ohio App. 3d 488, 490. (2) Specific items that must be included (Note--this is not an exhaustive list). (a) The agency’s order. Brockmeyer v. Ohio Real Estate Comm. (10th Dist. 1996), 5 Ohio App. 2d 161, paragraph two of the syllabus. (b) Minutes of the board meeting at which the order was approved. Bergdahl, 70 Ohio App. 3d at 491. (c) Transcript of the hearing, Hyde Park Neighborhood Council, Inc. v. Cincinnati, 1st Dist. No. C-110579, 2012-Ohio-3331; Linbaugh Corp. v. Ohio Liquor Control Comm., 11th Dist. No. 95-T-5323, 1996 Ohio App. LEXIS 1704, at *7. (d) Motions and other filings. See Adamson v. Ohio State Med. Bd., 10th Dist. No. 03AP-926, 2004-Ohio-5261, at ¶ 26. (e) Exhibits admitted at hearing (f) Proffered evidence (i) The record must include proffered material when necessary to avoid prejudice on appeal. Jordan v. State Bd. of Nursing Edn. and Nurse Registration, 4th Dist. No. 532, 1987 Ohio App. LEXIS 6439, at *5. b. Original records v. certified copies (1) A record of the proceedings in the case before an administrative agency may be complete within the meaning of R.C. 119.12, even though it contains a certified copy of, and not the original, final order of the agency. McKenzie v. Ohio State Racing Comm. (1966), 5 Ohio St. 2d 229, 232. (2) A copy of an exhibit may be used to complete the record certified by the Board for appeal so long as a party is not prejudiced. Vogelsong v. Ohio State Bd. of Pharm. (4th Dist. 1997), 123 Ohio App. 3d 260, 267. c. Proceedings before a body other than the agency are not part of the record and need not be included in the record on appeal, unless they were considered by the agency in making its decision. Kramp v. Ohio State Racing Comm., 81 Ohio App. 3d 186. 4. Burden on the agency

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a. The agency, not the appellant, has the burden of ensuring that a complete record is filed in the common pleas court. Linbaugh Corp. v. Ohio Liquor Control Comm., 1996 Ohio App. LEXIS 1704, at *7. b. The agency has a duty to prepare and certify a transcript of the hearing as part of the record and must assume the cost of preparing the record; See Stephan v. State Veterinary Med. Bd. (1960), 113 Ohio App. 538, 540-43. 5. Certification of the record a. Who can certify the record? (1) Certification of the record by the clerk of the board satisfies the requirement of certification by the agency. Tisone v. Bd. of Liquor Control (10th Dist. 1964), 1 Ohio App. 2d 126, syllabus. (2) There is a sufficient certification by “the agency” under R.C. 119.12 where a member or employee of the agency certifies that what purports to be a record of such proceedings is a complete record thereof, that any copies of material herein are certified to be true copies of the original matter, and that such certificate is made by order of the agency and acting in its behalf, unless it is made to appear affirmatively that the one so certifying did not have authority to do so or that the record so certified is not a complete record of the proceedings. McKenzie v. Ohio State Racing Comm. (1966), 5 Ohio St. 2d 229, 232. (3) R.C. 119.12 does not require that all members of a multi-member agency certify the record. McKenzie, 5 Ohio St. 2d 229, paragraph one of the syllabus. b. How to certify (1) The record must include a certification page. Bd. of Real Estate Examiners v. Peth (2nd Dist. 1964), 4 Ohio App. 2d 413, 414; Minarik v. Bd. of Review, Dept. of State Personnel (10th Dist. 1962), 118 Ohio App. 71, 74; McKenzie v. Ohio State Racing Comm. (10th Dist. 1965), 1 Ohio App. 2d 283, 288. (2) The record certification must contain a statement that the record is complete. Peth, 4 Ohio App. 2d 413, 415. (3) When the record filed with the court consists of a group of detached exhibits, none of which bears the filing stamp of the agency, and papers, some of which are merely unsigned carbon copies of letters, accompanied by a letter of transmittal bearing only the rubber stamp facsimile of the signature of the secretary of the agency, it is not a certification of a complete record of the proceedings in the case, as required by R.C. 119.12. Bd. of Real Estate Examiners v. Peth, 4 Ohio App. 2d 413, syllabus. 6. Failure to certify the complete record

73

3d at 155. 10th Dist. No. at *4. Div. (b) An appellant must object or otherwise take affirmative action before a court may grant him judgment due to the agency’s failure to timely certify a complete record. See Arlow v. 3d 488 at 491-92. 119. R. 155. c. Ohio Dept. at * 6-7. (1) Motion required (a) Court may enter a finding based upon failure to certify record only upon a party’s motion. 24 Ohio St. 2. C-860124. 2002-Ohio-3338. 82135. See Wolf v. v. 01AP-1217.” Jordan v. 2010-Ohio-3842. (3) Showing of prejudice (a) Failure to file minutes was prejudicial when the issue in the case was whether agency based its decision upon one if its administrative rules. Bergdahl v. 2d 153. LEXIS 1704. 1987 Ohio App.12. 70 Ohio App. the judgment is mandatory.” R. Serv. b. 09AP-1050. No. Ohio Liquor Control Comm. No.. McDonald v.C. LEXIS 5492. omission requires correction. 119. Distinction between complete failure to file the record and omission from record. shall cause the court to enter a finding in favor of the party adversely affected. para. Inc. 227. the party is required to show prejudice. Ohio State Dept. of Nursing Edn. Comm. Comm. Hamilton County Welfare Dept. No. 119. upon motion. Arlow v. (1) In a total failure to timely certify. 3d 153. Ohio Rehab.C. 8th Dist. Ohio Rehab.12 provides that “[f]ailure of the agency to comply within the time allowed. Jennemen v. 532. 3d 225. Ohio State Bd. 10th Dist. (2) “Adversely affected” requires a showing of prejudice resulting from the item being omitted from the record. (2) “Failure requires reversal. 2003-Ohio3261. 4th Dist. City of Cleveland. Prejudice required for incomplete record (1) When an agency timely files the record.12. at *7. State Bd. 24 Ohio St. Cntr. but the record is not complete..C.. 155. 21 Ohio App. No. 1st Dist. Bd. v. 74 . 48 Ohio St. (b) No prejudice when items omitted did not appear to be outcome determinative. and Nurse Registration. Linbaugh Corp. (1986). 9. Barlow v. Ohio St. of Real Estate and Professional Licensing. LEXIS 6439. of Commerce (1976). 1987 Ohio App. of Psychology (4th Dist. Lorms v. 1985). of Chiropractic Examiners (1st Dist. the party is entitled to judgment only if the party is “adversely affected” as provided in R. 1996 Ohio App. (1986). Serv. (c) If a party neglects to file a motion. in other circumstances. at ¶ 10.. the party waives the right to object to failure to certify the complete record.a. 1990). of Commerce. Gourmet Bev. n. Ohio Liquor Control Comm. at ¶ 12.

Inc. 365. 2d 363. LEXIS 6439. at * 4. (2) For res judicata purposes. Serv. 1999 Ohio App. is mandatory. State ex rel. Connor (1995). 305.g. 1993). 3d 301. at *4. the agency is therefore not barred by res judicata in a subsequent action. f. Sinha v. 82 Ohio App. 24 Ohio St. 1996 Ohio App. Ohio Veterinary Med. para. Williams Ford Sales. e. 532. (Court found that when the agency’s action was based upon procedure. Jennemen. untimely request for hearing. d. of Agriculture. No. State ex rel. 234. (c) When the agency failed to file minutes prior to the deadline because the minutes had not been transcribed and approved by that time. 3d 153 at 155. judgment based upon a defect in the record on appeal is procedural. at *14. and Nurse Registration. items omitted were unlikely to have altered the trial court’s decision on appeal). (2) Additional time may be granted. Comm. 1987 Ohio App. but filed them after they were approved and prior to the court’s decision. 9. (8th Dist. 3d 153 at 155. 114. No. (b) Agency must show it has made substantial effort to comply. 1985). 21 Ohio App. R. Noble County. Finding in favor of party (1) A finding in favor of the appealing party entitles the party to be put in same position as if the order was reversed on the merits. Ohio State Bd. Record on Appeal/Submission of Additional Evidence 75 .12.. 72 Ohio St. 24 Ohio St. 3d at 227. See Arlow. v. Jennemen v. judgment for the party. 3d 111. Ohio Dept. Mandatory judgment if complete failure to file record by due date. No. Ohio St. (1986). 119.C. Crockett v. Bd. 37 Ohio App.McCauley v. LEXIS 863. McGee v. I. Bd. LEXIS 465. 21 Ohio App. Geroc v. (4) The court may permit the agency to correct a defect by filing omitted evidence. 1987). (1) No finding for party in absence of a showing of prejudice. Ohio Rehab. 4th Dist. Prejudice required if the record was filed with a wrong or omitted case number. Arlow v. 3d 225 at 227-28. of Chiropractic Examiners. e. Where the agency fails to file any record within the time allowed. of Nursing Edn. 95APE09-1239. 10th Dist. there was no prejudice. 7th Dist. upon motion. not on the merits. of Psychology (10th Dist. Robinson (1981). 3d 192 at 197. (a) Not to exceed 30 days. State Bd. See Jordan v. (1) No prejudice requirement. 67 Ohio St. (1st Dist.

2. and that a new trial would probably produce a different result. 3. newly discovered evidence does not refer to newly created evidence. The court may grant a request for the admission of additional evidence when it is satisfied that such additional evidence is: a. of Pharmacy. and b. 101 Ohio App. Unless otherwise provided by law. he or she cannot then raise the constitutional issue by introducing new evidence before the trial court unless the evidence is newly 76 . 2003-Ohio-3806. Duryee. “Newly discovered evidence refers to evidence that was in existence at the time of the administrative hearing but which was incapable of discovery by due diligence.12. Ohio State Bd. 1992). Ohio Bur. 3d 278.C. 60(B)(2). If the appellant does not present such evidence before the agency. Newly discovered evidence and Civil Rule 60 (B)(2) (1) Language in R. 82215. courts have held that the moving party has the burden of demonstrating: (a) that the evidence was actually “newly discovered”. Ohio State Bd. No. the court is confined to the record as certified to it by the agency. 119. CVS/Pharmacy #3131 v. of Registration for Professional Engineers & Surveyors (9th Dist. 3d at 502. of Psychology (8th Dist. not merely impeaching or cumulative. 67 Ohio App. c. however.12 relating to newly discovered evidence is analogous to language in Civil Rule 60(B)(2). 3d 495. (b) that the movant exercised due diligence. 11. b. Ohio State Bd. State Bd. 3d 531. Diversified Benefit Plans Agency v. cases interpreting Rule 60(B)(2) may therefore be helpful in interpreting R. of Motor Vehicles (9th Dist. 2003-Ohio-3806. 8th Dist.C. at ¶ 36. 540 (citations omitted). 119. Duryee (9th Dist.” Holden v. para. then the trial court may also determine the constitutionality of the statute as applied. it must have been discovered subsequent to the trial. 288. Could not with reasonable diligence have been ascertained prior to the hearing before the agency. and (c) that the evidence is material. at ¶ 36. of Pharmacy. CVS/Pharmacy #3131 v. 121 Ohio App. 101 Ohio App. that is. 1995). Newly discovered. 1990).” Steckler v. 3d 33. New evidence of constitutional issues (1) If an appellant presents evidence before a state agency concerning the constitutionality of a statute as applied. 38. (2) In interpreting Civ. 1997). R.C. 502. R.1. 83 Ohio App. Clark v. 119.12. Newly discovered evidence a.

Lucas Cty. 2012-Ohio-3506. c. Lieux v. 11AP-837. U. 2012-Ohio-996. did not waive the issue on appeal. Exhaustion of Administrative Remedies Doctrine 1. The court of common pleas properly allowed both parties to present evidence as to the statute’s constitutionality when the respondent/appellant did not raise the constitutional challenge until the end of the hearing. Bartec. 119. Ackerman (1st Dist. 63 Ohio St. Dept. Ohio Liquor Control Comm. the party must exhaust the available avenues of administrative relief through administrative appeal. Educational Serv. a party challenging the constitutionality of a statute as applied must raise the challenge at the first available opportunity during the administrative proceedings. 1996).S. L-11-1177. No. State ex rel. Noernberg v. 3d 795. The state could not have discovered the evidence in time no matter the diligence. 416-17 (must exhaust administrative remedies prior to mandamus action). the respondent. 2012-Ohio-996. Because the statute in question was part of the statutory framework that the board should have applied in its analysis. CA2011-05-039. 1981). Rationale a. Berning v.. No. J. provided the following reasons for the requirement: (1) the need for the litigant to allow the agency to build a factual record. 2012-Ohio-2991.S. at *5. 29 (prior to seeking court action in an administrative matter. The doctrine of exhaustion of administrative remedies mandates that when an administrative remedy is provided by statute. (2) The simple fact that respondent/appellant did not seek the information until after the hearing is not evidence that it was not ascertainable with due diligence beforehand and therefore there was no basis to permit additional evidence at the court of common pleas’ review pursuant to R. at ¶ 5. 412. No. Definition a. v. 11. CA2011-05-039. 12th Dist.. No. American Legion Post 0046 Bellevue v. No. BMV. of Job & Family Servs. b. 113 Ohio App.12. 6th Dist. In re Henneke. 2nd Dist. Westlake (1951). Lucas Cty. ¶ 22. ¶ 65. ¶79. by failing to raise the issue as a defense at the administrative hearing. 2d 26. of Transp.. 111 Ohio App. Ctr. 1 Ohio App. 395 U. at ¶ 21. 12th Dist. Failure to timely request a hearing does not preclude a court's consideration of a due process violation. In other words. 6th Dist. 3d 10.discovered and was not ascertainable with reasonable diligence prior to the hearing before the agency. 193. Al-Sadeq Islamic Educational Ctr. relief must be sought by exhausting this remedy before the courts will act. 77 . 3d 874. City of Brook Park (1980). 1996). 16895. 1998 Ohio App. Zieverink v.C. 2. 154 Ohio St. City of Toledo v. 132 Ohio St. LEXIS 2964. Inc.3d 167. L-03-1089. In re Henneke. (2012). See Wymsylo v. (6th Dist. Covell v. Ohio Dept. Jaber (6th Dist. See also. 879. 185. The United States Supreme Court in McKart v. No. 10th Dist. (1969). 2012-Ohio-2187. 2003-Ohio-7251. Crawford-Cole v. 797.

of Ohio (10th Dist. Bd. 63 Ohio St. Covell v. 119 Ohio St. 10th Dist. 2008-Ohio-3318. (1951). 170 Ohio St. Dworning v. D.”). but has failed to exhaust administrative remedies. Foreman v. (3) If exhaustion is not required. Without such a requirement the court would have nothing to review in rendering its decision. (2) Permitting such an action without exhaustion would serve only to circumvent the administrative process and by-pass the legislative scheme. b. 154 Ohio St. BMV. Co. 491. 63 Ohio St. v. Hosp. 3. (2) When administrative remedies can provide full relief. 417.. 16895. No. citing Noernberg v. State ex rel. and finally. at ¶ 11. 46 Ohio App.). Exhaustion requirements for particular actions a. 03AP-354. Declaratory judgment (1) Declaratory judgment is not available when the plaintiff asserts a determination of statutory rights without a constitutional issue. 29 (“It is a well-established principle that a party seeking relief from an administrative decision must pursue available administrative remedies before pursuing action in a court. 3d 83. 3d at 152. Fairview Gen. and (5) such deliberate abuse of the administrative process will destroy its effectiveness by encouraging people to flout its procedures. at *6.O. 2nd Dist. City Council (1965).R. Hosp. 152. 1998 Ohio App. 2d 34. Jones v. Lieux. 2003-Ohio-7031. 37-38. 2007-Ohio-3328.(2) the need for the litigant to allow the agency to exercise its discretion or apply its expertise. then there is no incentive to appeal to the agency from which there was an unfavorable decision and people are thereby encouraged to ignore the procedures of that agency. 63 Ohio St. (1960). City of Euclid. 172 Ohio App. 3d 146. Babcock v. a party may not bypass these remedies and seek relief in the court. Fairview Gen. (3) Failure to exhaust is an affirmative defense to a declaratory judgment action. New York Cent. Inc. No. The State Med. Interface Elec. (4) the need to give the agency the opportunity to discover and correct its own errors. State of Ohio ex rel. State ex rel. 78 . 1975). v. 412. Ohio case law supports the reasons stated in McKart. See Anderson v. 365. 1 Ohio St. at ¶ 28. Fletcher (1992). 2d 26.. Gary Charles Gelesh. LEXIS 2964. 501. (3) the needless invocation of the courts when the agency could grant every relief to which the party was entitled. 2d 132. City of Brook Park (1980). Ladd v. Bureau of Motor Vehicles (10th Dist. R. (1) Ohio courts have held the exhaustion of administrative remedies to be a condition precedent to resort to the courts.

Bd. 2007-Ohio4597. No. 42 Ohio St. 02-BA22. 1998 Ohio App.. State ex rel. . Inc. 2nd Dist. 2d 263. 42 Ohio St. 158. Gibney v. Med. State Med. Consolidated Land Co. Agency. 7th Dist. 9th Dist. “a lack of authority to grant relief is a subset of the greater concept that the doctrine of exhaustion of remedies will apply only ‘. State ex rel. 77 Ohio St. Capstone Holding Co. L-00-1098. c. (1992). Failure to exhaust administrative remedies is not a jurisdictional defect. there existed an adequate remedy at law). Newburgh Heights (1971). 3d 456 at 462. 6th Dist. Action Pursuant to 42 U. Austintown Assoc. Mt. Driscoll v. 3d 456. Sinai Medical Center (1990). a vain act is an exception to the doctrine of failure to exhaust administrative remedies. 2002-Ohio-7378. at ¶ 37. No. However.. (declaratory judgment action). (declaratory judgment action). 2d 263 at 273. Jones v. Exception to the Exhaustion Doctrine: a “Vain Act” a.Chagrin Falls (1997). BMV. 5. . No. 273. College of Ohio. 3d 186 (mandamus will not issue for board’s failure to issue decision when appellant had statutory right of appeal. b. No. but is an affirmative defense. (1975). 154 Ohio St. (2) Courts have denied attempts to circumvent the administrative appeal process by denying writs of mandamus: State ex rel. b. of Ohio. Ins. Austintown Assoc. Covell v. 3d 109. 412 at 418. if there is a remedy that is effectual to afford the relief sought. 16895. When proceeding with the administrative process would constitute a vain act. § 1983 (1) Exhaustion is not required prior to bringing § 1983 action in state court. State Auto. at ¶ 6. No. and. a party need not exhaust. Chagrin Falls (1997). a vain act does not entail the petitioner’s probability of receiving the remedy. Mut. LEXIS 22).C. 07AP-67. and not on the likelihood of the relief being granted. Industrial Comm. at *6 79 . 1998 Ohio App. Driscoll v. Heath v. 26 Ohio St. v. Lieux v. 4. of Edn. Rennell v. Affirmative defense or jurisdictional defect? a. 115. c. 64 Ohio St. syllabus). 462. 3d 152. 77 Ohio St. Thus. The focus is on the power of the administrative body to afford the requested relief. Consolidated Land Co. Westlake (1951).. 2000 Ohio App.S. LEXIS 1622. 2002-Ohio-7378. (1975). at ¶ 37 (citing Pappas & Assoc. v. A “vain act” occurs when an administrative body lacks the authority to grant the relief sought. Toledo Bd. 10th Dist. LEXIS 2964. 56 Ohio St. Mandamus (1) Exhaustion of administrative remedies is required prior to bringing action in mandamus. (1988). 2d 217. Nemazee v. which must be timely asserted in an action or it is waived. therefore. 40 Ohio St. 18458. Co.’” Grudzinski v. at *15-16 (quoting Kaufman v.

of Commerce.. Harrison v. See Thompson v. See Camrack v. State Med. (b) When a party alleges that a hearing request was timely sent to the agency and establishes the elements necessary for the presumption of due receipt. 86AP-767. Limited jurisdiction (1) Jurisdiction to determine timeliness of request (a) Courts holding that failure to timely request a hearing precludes consideration of the merits on appeal have held that the court retains jurisdiction to determine timeliness of the hearing request.(declaratory judgment action). v. 103 Ohio App. 3d at 319-20. of Ohio. 10th Dist. 1993 Ohio App. Ohio Dept. Harrison v. Bd. 1988 Ohio App. 2005-Ohio-5575. 3d 317. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. No. of Rehabilitation and Correction. Caltrider (2nd Dist. 1987 Ohio App. No right to consideration of merits on appeal. Some cases have held that a failure to timely request a hearing constitutes a waiver of hearing. at *6-7. Camrack v. See Harrison. Fiorica. Bd.. 164 Ohio App. LEXIS 9961. 09AP-78. 6. 3d 76. No. at *6-7. b. 3d at 319-20. but does not deprive a person of the right to appeal. No. Alcover. 8th Dist. 1995). 13660. 2nd Dist. 18521. 10th Dist. 2nd Dist. LEXIS 4367. which deprives the common pleas court of jurisdiction over the merits of a 119. 1987 Ohio App. 07AP-261. Bd. Fiorica. No. Ohio State Med. 3d 277. 82 Ohio St. 1998-Ohio-414. 2005-Ohio5575. Ohio State Med. 2005). at *4. Blackburn Sec. 319-20. Bd. 2007-Ohio-5802. v. 2001 Ohio App. Reichart-Spaeth.. b. 2001-Ohio-4113 (citing In re Turner Nursing Home. 01AP-71 and 01AP-72. No. at *10-11. 103 Ohio App. Bd. at *3). Ohio Counselor & Soc. Ohio Dept. 1988 Ohio App. Ohio Dept. Inc. State Med. Bd.12 appeal. 88AP-516.. Alcover. c.. 3d 76. 1987 Ohio App. See Oak Grove Manor. (2) Jurisdiction to consider constitutional challenges 80 . Failure to request hearing as failure to exhaust (split in authority) a. at *8-9. Caltrider (2nd Dist. Baycliffs Corp. LEXIS 9961. Inc. See also. No.). No. But see Derakhshan v. 54292. not a jurisdictional defect). Clagg v. of Human Services. 10th Dist. 10th Dist. Ohio State Med. Reichart-Spaeth v. at ¶ 24 (holding that failure to exhaust is an affirmative defense that can be waived. 2001 Ohio App. No. which deprives the common pleas court of jurisdiction over the merits of the appeal. 10th Dist. LEXIS 1194. the agency can rebut the presumption with evidence that the request was never received. LEXIS 2665. LEXIS 4367. 2010-Ohio-416. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. Worker Bd. LEXIS 5729. at ¶ 6. LEXIS 9961. No adverse affect on right to appeal. at ¶ 6. (10th Dist. *4. 1987 Ohio App. v. Alcover v. 164 Ohio App. v. LEXIS 1194. 103 Ohio App. State Med.

. at ¶ 28-29. 2.” DBM Enterprises. 10th Dist. Ohio Motor Vehicle Dealers Bd. 7. 2001). and therefore exhaustion is not required for a facial constitutional challenge. 5th Dist. It is within the discretion of the trial court to allow the parties to present oral argument. but rather authorizes the court to admit and consider new evidence if permitted and to weigh evidence on the whole record. failure to participate in the hearing waives any issue with the factual determination made by the agency. para. ¶ 13. Improvement Dist. 2007-Ohio-5802. No. No. No. and/or introduce newly discovered evidence. 81 . 3d 155 (holding that in order to seek injunctive relief. accordingly. State Med. Bd. 145 Ohio App. 3d 64. Failure to appear at the hearing does not constitute failure to exhaust administrative remedies. Conduct a “hearing” on the appeal a. (1984). R.C. 132 Ohio St. Chapter 119 proceedings over all other civil cases.(a) Exhaustion not required for facial constitutional challenge. accordingly.C. Id. Derakhshan v. b. hearing an action de novo. The trial court may allow further evidence or arguments. of Ohio. 11 MA 39. 00-CA-99. Role of the Common Pleas Court on Administrative Appeal 1. R. The respondent is limited to questions of law. K. of Ohio. if such challenges are not raised in an administrative proceeding. c. LTD v. “…injunctive and declaratory relief are inappropriate if they act to by-pass special statutory proceedings. Constitutional challenges must be raised at the first opportunity. 3d 92. Central Cadillac Co. 14 Ohio St. Zidian v. 12. Lynch (2000). Dept. v. Avery v. 119. irrespective of the position of the proceedings on the calendar of the court. v. failure to request a hearing bars an as applied constitutional challenge on appeal. 2506.03's language. 67. "[t]he hearing of an [administrative] appeal shall proceed as in the trial of a civil action" does not require the court of common pleas to act as a trial court. 2001 Ohio App. submit briefs. 7th Dist. Bd. Inc. (6th Dist. 2012-Ohio-1975. Ohio Transp. Rossford. it will be impossible to develop the record supporting the challenge.C. However. The “hearing” may consist solely of a review of the record certified to the court. (b) Exhaustion required for “as applied” constitutional challenge.12. at ¶ 26. of Twp. 07AP-261. AT&T Communs. Administrative appeals take precedence: The court shall give preference to R. (c) Injunctive Relief. plaintiff must exhaust administrative remedies if available). of Commerce. Trustees of Etna Twp. 2012-Ohio-1499. raising such a challenge in an administrative action would be futile. Id. LEXIS 2030 (Court lacks jurisdiction to be consider injunctive relief when statutory administrative remedies were not first pursued). The administrative agency does not have authority to declare its statutes unconstitutional. See also.

The role of the trial court in an appeal from a decision of an administrative agency is to determine whether: (1) The agency’s decision is supported by a preponderance of reliable. c.3. Ohio Liquor Control Comm. 10th Dist. probative. 63 Ohio St. 119. 10th Dist. 2004-Ohio-3726. 82 . 4. (1992). there must be a reasonable probability that the evidence is true. or modify the agency’s order a. that the order is supported by reliable. para. reverse. Id.. Our Place. 11AP-174. Our Place. vacate or modify the agency’s order if the court finds that the agency order is not supported by reliable. Reverse. 13 (emphasis added). Bd. 3d 570. State Med. 04AP-46. it must have importance and value. or other ruling (1) A court may reverse. and substantial evidence. Griffin v. at ¶ 11. 10th Dist. Affirmance (1) “The court may affirm the order of the agency complained of in the appeal if it finds. 119. Affirm. A court of common pleas when reviewing an agency’s order need only find substantial. No. Smith v. Inc. at *8. of Ohio. that is.. No.C. LEXIS 6331. ¶ 37. No. 11AP-174.12. vacate. upon consideration of the entire record and such additional evidence as the court has admitted. R. 98CA03. No. 63 Ohio St. 1998 Ohio App.C. it can be confidently trusted. 2011-Ohio6089. of Ohio. para. or is not in accordance with law. Mathews v. probative and substantial evidence and is in accordance with law. b.” R. probative. and substantial evidence. Bd. vacate.12. Liquor Control Comm. Ohio State Liquor Control Comm. (2) Reliable. v. Griffin v. (c) “Substantial” evidence is evidence with some weight. (b) “Probative” evidence is evidence that tends to prove the issue in question. 13. 571. In order to be reliable. or modify order. 4th Dist. 3d 570 at 571. 2011-Ohio-6089. it must be relevant in determining the issue. and (2) The agency’s decision is in accordance with law. reliable and probative evidence supporting one ground for revocation in order to uphold the agency’s order. probative and substantial evidence (a) “Reliable” evidence is dependable. State Med. ¶ 37.

71 Ohio App. 2003-G-2505 and 2003-G-2513. 10th Dist.” University of Cincinnati v. 2005-CA-86. 279. 528.” Herbert v. Bd. Cty. had the opportunity to observe the demeanor of the witnesses and weigh their credibility. 1984 Ohio App. R. 164 Ohio St. 9th Dist. of Ohio. which. Bainbridge Twp. 1991). LEXIS 12259. c. 9th Dist. of Liquor Control (1955). (2) “For example. 2006-Ohio4443. Wells v. of Edn. 5th Dist. See Brown v. No. University of Cincinnati v. Mathews v. Due Deference on questions of fact (1) The reviewing court must give due deference to the administrative resolution of evidentiary conflicts. when the evidence before the court consists of conflicting testimony of approximately equal weight. 13. 91AP-1235. 63 Ohio St. 11740. No. 63 Ohio St. OBES. (3) A common pleas court in such cases “should not weigh the evidence anew. 711.. (2) An appeal to the trial court of an administrative order is not a trial de novo. at *6-7. at ¶ 18.C. LEXIS 532. Ohio Dept. 2004-Ohio-3687. 11th Dist. 1993). Ohio Veterinary Med. 2004-Ohio-3726. State Med. 275. See also. with due deference given to the administrative resolution of evidentiary conflicts.. of Scioto Cty. Mitchell v. Standard of Review: Common Pleas Court a. (4) The reviewing court may reevaluate the credibility of the evidence. No. 04AP-46. Conrad (1984). Andrews v. (10th Dist. Commrs. as the fact-finder. 2d 108. Crumpler v. Nos. (4th Dist. State Bd. Asad v. but should simply see if there is credible evidence in the record to support the Board’s finding. Bd. probative and substantial evidence and is in accordance with law. Ohio State Liquor Control Comm. Bingham v.. at *3. 18510. Administrator. 111. of Jobs and Family Services. b. at ¶ 40. 2d at 111. the court should defer to the determination of the administrative body. 3d 526. at ¶ 11.12. Licensing Bd. No. 10th Dist. De Novo Review on issues of law (1) The common pleas court conducts a de novo review on issues of law. Appellate “hybrid” review (1) The statute directs the common pleas court to function as an appellate court. 5. para.(2) Any other ruling is permitted as long as it is supported by reliable. 3d 704. No. The review of the administrative record is a hybrid review which is neither a trial de novo nor an appeal on questions of law only. LEXIS 2533. 1992 Ohio App. (2) A de novo review means an appellate court must independently make a determination without giving deference to the lower court’s decision. University 83 . 119. Conrad. 1998 Ohio App. 87 Ohio App.

2007Ohio-3210. Westerville City Schools v. Bd. 18510. 2d 108 at 111. or regulation. 170 Ohio St. No. where it is clear that the common pleas court’s judgment was made entirely upon the evidence. the court of appeals is without jurisdiction to review that court’s judgment. 83 Ohio St. 2d 120. ¶ 14. Rep. State Med. (10th Dist. when the trial court has made no specific determination as to the meaning of a statute. 81. Crumpler v. VFW Post 8586 v. at ¶ 16. No. of Edn. 1998-Ohio-181.12. Ohio State Liquor Control Comm. construction or interpretation of statutes and rules of the agency. Conrad (1984). 119. 2012-Ohio-1416. (7) As long as the administrative agency’s order is supported by reliable. rest on improper inferences. v. it can only affirm and cannot reverse. 3d 323. (6th Dist. A reviewing court has no power to review penalties meted out by the agency. No. 71 Ohio App.. the agency cannot appeal. 12 Ohio St. Ohio Bd. State of Ohio. L. vacate or modify an order of an agency unless it finds that the order is supported by reliable.. 233. if it were the original trier of fact. 319. Therefore. 122-23. Miami-Jacobs Career College v. (8) The court must defer to the factual findings unless the findings are internally inconsistent. Civil Rights Comm. Ohio Counselor and Social Worker Bd. may have reached a different conclusion. 10th Dist. Ohio Veterinary Med.C. 11AP-544. Furthermore. 11AP-174. Bureau of Motor Vehicles (5th Dist. 84 . but. Appeal from the Common Pleas Court to the Court of Appeals 1. No. Kisil v. it is immaterial that the reviewing court.” Henry's Cafe. 1 Ohio B. probative and substantial evidence.. Café Napoli Partnership v. Agency may appeal only on questions of law relating to the constitutionality. (10th Dist. Sandusky (1984). rule. 1991). 63 Ohio St.¶ 42. Griffin v. d.of Cincinnati v. 1998 Ohio App. 2011-Ohio6089. 34. 236. 1991). of Ohio. 9th Dist. probative and substantial evidence and is in accordance with law. Ladd v. 46 Ohio App. at *6-7. Licensing Bd. a. 3d at 528. 3d 79. 10th Dist. Bingham v. (5) A reviewing court should not substitute its judgment for that of an administrative board. (6) Although the common pleas court should afford due deference to the factual findings of the agency. or are otherwise insupportable. 3d 30. 328-29. A reviewing court has no power to review penalties (1) The Court of Common Pleas may reverse. 1980). State Bd. 1975). R. Appeals from common pleas court by the agency are limited. LEXIS 532. b. 06AP-1055. Board of Liquor Control (1959). 76 Ohio App. An agency may appeal from a common pleas court’s review of an agency decision only upon questions of law. the agency’s findings are not conclusive. Ohio Liquor Control Comm. vacate or modify. of Nursing. 312. Farrao v. where it makes such a finding. 10th Dist. Inc.

of Job & Family Servs. 2004-Ohio-3553. partiality. v. probative. 3d at 260-61 (quoting State ex rel. 3d 164. Bingham v. R. 18510..” Lorain City Bd. (In re A-1 Nat’l Agency Group LLC No. 40 Ohio St. Ohio State Liquor Control Comm. (1992). at ¶ 11. 22 Ohio St. 193. 85 . 10th Dist. 2004-Ohio-3831. of Edn. (3) Issues relating to constitutionality and procedural due process are given plenary review by the court of appeals. 343. 40 Ohio St.. (4th Dist. Lancaster (1986). Pacella v. Hosp. Commrs. 03AP-871.. 6th Dist. Ohio Dept. Hawkins v. No. State Emp.c. 63 Ohio St. of Cincinnati College of Med.12. Inst. 3d 191. v. Dept. LEXIS 532. or substantial evidence. (3rd Dist. 03AP-732. 2003-Ohio-3432. of Edn. 2004-Ohio-2168. Licensing Bd. 1167). (3) “In order to have an ‘abuse’ in reaching such determination the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will. L-11-1177. passion. 2004-Ohio3726. State Emp. Crawford-Cole v. of Commerce. See A-1 Nat'l Agency Group LLC No.. 3d 339. Dept. of Job & Family Servs. 1998 Ohio App.” State v. 1800 Riverhouse. Relations Bd. No. Relations Bd. 2012-Ohio-3506 ¶ 12. Univ. State Emp. Abuse of discretion standard on issues of fact (1) When a court of appeals reviews the decision of the trial court. 3rd Dist. Ohio Liquor Control Comm. at *7-8.. at ¶ 8. Ohio Dept. prejudice. 3d 704 at 711. Inc. para. 10th Dist. No. 04AP-46. 119. 87 Ohio App. Inc.C. 1167 v. 62 Ohio App. On an appeal of those specific questions of law. 1990). 02AP-1223. Lucas Cty. Marion Corr. of Scioto Cty. not the exercise of reason but rather of passion or bias. v. No. Brown v. the court of appeals exercises plenary powers of review. 222. Univ. Lorain City Bd.. Cty. Mathews v. (2) An abuse of discretion “implies not merely error of judgment. Glassco v. (2) Questions on appeal relating to statutory construction are legal issues that a court of appeals reviews de novo.. the court may also review the correctness of a judgment of the common pleas court that the agency’s order is not supported by reliable. Jenkins (1984). 14. Ohio Veterinary Med. Lovelace Motor Freight. 260-61. v. at ¶14. 3d 863. v. No. 10th Dist. 2. of Ins. not the exercise of judgment but defiance thereof. De novo review on questions of law (1) When questions of law are raised on appeal from an administrative agency. or moral delinquency. 871. at ¶ 5. (1988). b. No. 15 Ohio St. at ¶ 21. 9th Dist. but perversity of will. 15-04-01. Standard of Review a. 3d 257.. 10th Dist. 1993). No. Relations Bd. a court of appeals must determine whether the trial court abused its discretion as to issues of fact.

86 . 119. c. 119. syllabus. R.C. Recovery of Attorney Fees by Party Prevailing at Hearing (R. and 2. 3d 600. Moody (1st Dist. 119. and R.092(F)(2) would not bar recovery of fees.C. What are “fees”? a. R. 119. R.03 (involving discharges or layoffs) and those arising R.). 2. An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits. 119. R. 119. An adjudication hearing was held to establish or fix a rate.092(F)(3).092(F)(4). b. or local government.C. but not R.34 (involving removals or reductions for disciplinary reasons). A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. R.C. 1.092(F)(2). “Fees” means reasonable attorney fees.C. 119. ATTORNEY FEES A. e. allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level.092(A)(2).C.092). in an amount not to exceed $75 per hour. 119. The fees of the prevailing eligible party were one hundred dollars or less. B.C.C. 2003-Ohio2203.092(B)(2)(c). 119. Non-recoverable fees a.C. which allows a prevailing party on appeal to move the court for attorney fees in accordance with R. Relying on the plain language of R. 124.C.C. state. 119. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R. 119.092(F)(1). (1) NOTE: There is a split of authority concerning the scope of R. the First District has held that attorney fees may be recovered after hearings under R.C.C. Haghighi v. An adjudication hearing was held by the state personnel board of review pursuant to R. R.092(F)(4).C.C. 124. d.C. (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits. R.12. 124.34.39.X. unless the agency has established a higher hourly rate by rule that is applicable under the circumstances.092. Chapter 119 contains two attorney fee provisions: 1. 2335.C. 124.03. R.C. 119.092(F)(4) as it pertains to the state personnel board of review. 152 Ohio App.

Hamilton Cty. (3) A sole owner of an unincorporated business. (3) The Tenth District Court of Appeals has held that all lawful hearings before the SPBR are necessarily in accordance with R.C. b. 1999 Ohio App. Estate of Kirby v.092(A)(1). 119. Ohio Veterinary Med. v.092(F)(4). g. 98CA00138. 119. the award is not automatic. R. 3. 119. however. Stetz. Ohio Civil Rights Comm.092 does not permit an eligible prevailing party to file a separate action for fees in common pleas court.C. Discount Fireworks. shall not be excluded as an eligible party because of its net worth. (2) An individual whose net worth exceeded one million dollars at the time he received notification of the hearing. f. 725. v. O’Connor (10th Dist. R. A motion to the agency is the only mechanism for recovering fees. 5th Dist. or an organization that had a net worth exceeding five million dollars at the time the party received notification of the hearing. 78 Ohio App. No. 4. and (4) An employer that employed more than five hundred people at the time the party received notification of the hearing. 119. 121 Ohio App. Inc. at *37. 124. except that an organization that is described in subsection 501(c)(3) and is tax exempt under subsection 501(a) of the Internal Revenue Code. 3d 723. (1st Dist. 5th Dist.C. 1999 Ohio App. 73 Ohio St. 1999CA00055. 98CA00025. Chapter 4117. 43.after hearings under R. 1997). Carruthers v.C.C.03.C. Ct.C. Who can recover fees: prevailing eligible party? a.because that is the enabling statute which confers the powers and duties of the board – and therefore attorney fees are never available following an SPBR adjudication. 1992). See discussion below re: “prevailing party” under R.03 -. The Ohio Civil Rights Commission is not an “agency” for purposes of R. A prevailing party is entitled to attorney fees. (1995).092. at *7-8. 3d 397. Wilde v. 401-02. An “Eligible party” means a party to an adjudication hearing other than the following: (1) The agency. LEXIS 4813.C. 3d 39. State ex rel. 124. LEXIS 3536.. R. Procedure for requesting fees from the agency a. An adjudication hearing was held by the state employment relations board pursuant to R. 119. Juvenile Div. Nos. Licensing Bd. 87 .12 b. of Common Pleas. Auglaize Mercer Community Action Comm.

119. 119. 3d 414. R. v.C. 1998) 130 Ohio App. b. The motion shall do all of the following: a. The agency has the burden to prove the following: (1) that its position in initiating the matter was substantially justified. R. Burden on the agency a. Indicate the amount sought as an award. Instead.C.092(B)(3). b. and the rate at which the fees were calculated.C. 425.C. Consideration of the motion for fees a. 6. the actual time expended. Reviewed by the examiner or agency (1) The request for attorney fees is reviewed by the hearing examiner who conducted the adjudication hearing. State ex rel. Include a statement that the agency's position in initiating the matter in controversy was not substantially justified. 119. 726. Auglaize Mercer Community Action Comm. Sohi v. 119. Identify the party. Ohio Civil Rights Comm. (2) If there was no hearing examiner. or 88 . Indicate that the party is the prevailing eligible party and is entitled to receive an award of compensation for fees. (1st Dist. State Dental Bd. and e. A prevailing eligible party must file a motion requesting the award with the agency within 30 days after the date that the order of the agency is entered in its journal.c. the agency may consider the motion.092 does not require a hearing on the motion for attorney fees. R. 7. (3) If the determination is made by the hearing examiner or referee.092(B)(1).092(B)(2). d.C.092 requires only a “review” by the referee or examiner who conducted the adjudication hearing. 73 Ohio St. 5. R. (2) that special circumstances make the award unjust. that determination is not subject to review by the agency. c. This itemization shall include a statement from any attorney who represented the prevailing eligible party that indicates the fees charged. 119. No hearing required. (1995). Itemize all fees sought in the requested award. R. 3d 723.

C. (2) Whether the position of the agency in initiating the matter was substantially justified.06 and 119. 1992-Ohio-1. as found by the court of appeals. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100. Denial or reduction of fees requested 89 . 3d 338. Sowald. Id. issuance of the notice of opportunity for hearing. 342.. 119. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation. (2) Generally. 119.092(B)(2). Merits of the motion: was the agency “substantially justified” in initiating the action? a. Ohio Dept. Decision on the motion for fees a. Substantially justified (1) Whether the initiation of the action was substantially justified is evaluated at the time of initiating the action. (2) See cases below interpreting “substantially justified” language in R. b. matter on which action is brought and issue is joined and in relation to which. R. b. 1992-Ohio-1. 9. not its initiation. (3) Whether special circumstances make an award unjust: and (4) Whether the prevailing party engaged in conduct during the course of the hearing that unduly and unreasonably protracted the final resolution. if issue be one of fact. 119. State ex rel. Sowald.12’s provision for attorney fees.C.(3) that the prevailing eligible party engaged in conduct during the course of the hearing that unduly and unreasonably protracted the final resolution of the matter. Sowald. 8.e. Initiating action (1) “Initiate” means to commence an action.C. i. of Health v. Moreover. not continue a proceeding that has already begun. testimony is taken. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. 65 Ohio St.07. (3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing. and finds improvement in deficiencies. at 342-43. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. 1992-Ohio-1.

1999). 133 Ohio App. Ohio St. (2) The examiner or the agency may reduce the fees requested if the prevailing eligible party engaged in conduct during the course of the hearing that unduly and unreasonably protracted the final resolution of the matter.C. 425.C. Eligible party appeal 90 . Chapter 2743. Appeal to common pleas court under R. R.C.The fact that the board must pay any fee award does not mean the board has an unconstitutional pecuniary interest in the outcome of the matter. 474.C. and Amount of the award. 3d 465. 119. not the board. (2) Copy must be mailed to the prevailing eligible party.(1) The examiner or the agency may deny the motion for fees if: (a) The agency’s position in initiating the action was substantially justified. 119. (1) To be filed October 1 in the fiscal year following the fiscal year covered by the report. Findings and conclusions underlying the decision. May be paid by agency from any funds available for such compensation. 119. (1st Dist.C.092(B)(2). R. 119. a. 1998) 130 Ohio App. Bd. b. Payment of award a.092(B)(2)(a). because appeals are decided by the common pleas court. 119. or special circumstances make an award unjust. c. Med. a. 119. 119. (b) If the fees do not exceed $100.092(D).092(B)(2)(c). Gladieux v. R.092(E). if any. (2) Must include specific information listed in R.092. the decision as to fees must be in writing and must state: (1) (2) (3) (4) Whether an award has been granted.C. Sohi v. except no interest is paid. Reasons or bases for the findings and conclusions.092(E). Filing and service (1) Determination must be entered in the record.092(B)(2)(b). If no funds are available. The agency must file a report to be filed with the general assembly.C.C. (10th Dist. 3d 414. Per R. the award is treated as a judgment under R. 10. d. d. 119. 11. R.C. c. State Dental Bd. R.

2335. R. Licensing Bd. 10th Dist. 119. (2) he is financially eligible. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order. R. The agency must file a certified record as required in R.C. c. R. 119. R. R. not the agency itself. Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee.39 a.C.C. 119. 02AP-955. in accordance with R.C.12. 558. Statutory framework: R. at ¶10. R.092(C). d. Ability to receive fees: prevailing eligible party a.12. or calculation involved an abuse of discretion. R. 2335. 2. (3) A copy of the decision must be certified to the agency and the eligible party.C.C. and (3) the state’s position in initiating the matter in controversy was not substantially justified.C.39 sets forth general rules governing the award of attorney fees in actions against the state. 119. “Prevailing party” 91 .C.12 provides that the court shall award compensation for fees to a prevailing party.C.C.(1) May appeal denial or reduction of award. Common pleas court decision.C. 119. 119. R. 119.39(B) provides that an individual may recover attorney fees if (1) he prevails. 2335.092(C). 1. 5. 3d 556. (1) The court may modify the decision of the examiner or the agency only if the failure to grant.. No. 119. 78 Ohio App. 2335. R. 119. (2) The agency’s appeal would be filed in the manner specified by R. (2) Decision is final and not appealable. b.092(C). 4.12. Harrison v.C. (2) File in same court in which the party would appeal agency’s adjudication order. 2003Ohio-3816.12 for appeals.39.C. C. Ohio Veterinary Med.092(C). 119. 3.092(C). In re Williams (1992).C. This attorney fee provision applies only to appeals brought pursuant to R.

(2) A party who appeals an order or judgment and prevails to the extent of obtaining a new trial or a modification of the judgment is a “prevailing party. 3d 483 at 487. Court review a. 71 Ohio App. The motion may request both fees incurred in appeal and in the administrative hearing. or organization that employed. i.39(B)(1). Korn v. association.C.C. R. c. Motion for fees a. Same requirements for content of motion as in R. more than five hundred persons at the time the action or appeal was filed. (4) A sole owner of an unincorporated business that employed. b. Korn v. 2335. “Eligible party” means a party to an action or appeal involving the state..39(D). or a partnership. (3) A sole owner of an unincorporated business that had. 1991). 2335.C. b. The motion must be filed within 30 days of the final judgment by the reviewing court in the action or appeal. 92 . 71 Ohio App. (10th Dist. association. 6. corporation. (2) An individual whose net worth exceeded one million dollars at the time the action or appeal was filed. a net worth exceeding five million dollars at the time the action or appeal was filed. other than the following: (1) The state.” Korn v. or a partnership. 119. 2335.C. 3d 483. 71 Ohio App. State Medical Bd.39(A)(2). State Medical Bd. except that an organization that is described in subsection 501(c)(3) and is tax exempt under subsection 501(a) of the Internal Revenue Code shall not be excluded as an eligible party under this division because of its net worth.. See above. to qualify as the prevailing party. dismissal of all charges without remand.092. (3) The court may take the partial victory into account when determining the amount of the fees to be awarded.(1) A party need not attain a complete victory. The court must determine: (1) Whether the position of the state in initiating the matter in controversy was substantially justified. State Medical Bd. corporation. R. 7. 487.e. 3d 483 at 487.. or organization that had. R.

or that the prevailing eligible party engaged in conduct during the course of the action or appeal that unduly and unreasonably protracted the final resolution of the matter in controversy.39(B)(2). Fees may be denied if the position of the agency initiating the matter in controversy was “substantially justified. c. The order must be included in the record of the appeal. 2335. 2335. The court may deny the award or reduce the amount as follows: (1) The court may deny if: (a) the state’s position in initiating matter was substantially justified.(2) Whether special circumstances make the award unjust. Burden of proof (1) The state has the burden of proving that its position in initiating the matter in controversy was substantially justified. knowledgeable in the area of the law. The State’s position may be substantially justified so long as “there is a genuine pretrial dispute concerning the propriety of the state's action from the facts of the case or the law applicable thereto ***. b. (3) Whether the prevailing eligible party engaged in conduct during the course of the action or appeal that unduly and unreasonably protracted the final resolution of the matter in controversy. R. or (b) special circumstances make an award unjust. d.C. If a reasonable person. b. believes that the state’s 93 .C. The clerk of court shall mail a certified copy to the state and the prevailing eligible party. Denial of award: substantially justified standard a. The State’s failure to prevail on the merits does not create a presumption that its position was not substantially justified.” R. that special circumstances make an award unjust. if any e.39(B)(2)(a). f. 8. The court must issue its order in writing and include: (1) (2) (3) (4) An indication of whether the award is granted Findings and conclusions underlying the decision Reasons or bases for the findings and conclusions Amount of award. (2) The court may reduce or deny if the prevailing eligible party engaged in conduct during the course of the action or appeal that unduly and unreasonably protracted the final resolution of the matter in controversy.

5th Dist. then the substantially justified standard has been met. Ohio State Dental Board (1st Dist. Ohio State Med. to withstand an award of fees. the state is not the initiating party for purposes of an award of attorney's fees pursuant to R. at *4. 67 Ohio App. (1) The court held that. Ohio Bur. syllabus. 1987).g. In Holden v. 3d 551. 9. the State “must demonstrate that it had sufficient material and essential evidence in support of all of the necessary elements of the offense charged. which also uses a “substantially justified” test for awarding attorney fees.C. at ¶ 18. 78 Ohio App. that reasonable minds could make a finding of legal violation by a preponderance of that evidence.C. 89AP-1186. 1991 Ohio App. 3d 556. d. and not just possible.. 539. of Pharmacy v. Ohio Real Estate Appraiser Bd. of Motor Vehicles (9th Dist. Attorney fees have generally been denied in cases where the appellant has unsuccessfully applied for a license or certificate. 10th Dist. Gilmore v. substantially probable). In re Williams (1992). 119.). and that based on that evidence it was reasonable to believe that it was more likely than not (i. Denial of award: unsuccessful application of license or certificate a. 3d 531. The court must evaluate information that the agency had before it at the time it initiated the action. § 2412.. No. the State initiated an automatic suspension of a driver’s license based on records from a municipal court indicating that the appellant was convicted of leaving the scene of an accident.” Warren’s Eastside Auto Sales v. which held that “where the state through administrative action denies certification or licensure. 10th Dist. citing In re Williams.. at *4. 10-CA-19. 558.e. In re Van Arsdal.C.. 28 U. 2011-Ohio-191. 78 Ohio App. Safety. at ¶ 13. 2003Ohio-5702. 2002-T-0098.P. the court offered an evidentiary test for substantial justification. The error was not discovered and corrected by the municipal court until after BMV initiated the license revocation. 3d 556. 2d 25. Penix v. 2d 25. 1990 Ohio App. the court of appeals found that the State's position had been substantially justified. e. (2) The agency may be substantially justified in relying upon incorrect information. This articulation of the standard is based in part on interpretations of federal courts in applying the Equal Access to Justice Act. Bd. In Ohio State Bd. LEXIS 3470. c. 161 Ohio App. Under these circumstances. (2) To meet this standard. 2005-Ohio-2856. 1990). the State in a R. No. of Pharmacy v.S.position is correct. 94 . No. 11th Dist. of Pub. Weinstein. LEXIS 5391.” Id. No. (1) The common pleas court erred in failing to permit the agency to introduce evidence that the agency possessed at the time it initiated the action.” Ohio State Bd. 558.12 appeal must “prove by the preponderance of the evidence that it was substantially probable that evidence in its possession would lead to a finding of a legal violation committed by the alleged violator. 91AP-190. Weinstein (Hamilton C. 33 Ohio Misc. See. 33 Ohio Misc. Boyle v. Ohio Dept. e.

When the eligible party’s attorney was paid pursuant to appropriation by federal. the court in In re Van Arsdel distinguished cases such as Holden v. If the case is an appeal of the adjudication order of an agency pursuant to section 119. by a prevailing eligible party that is denied an award or receives a reduced award. 460. R. See also.39(F)(3)(b). Appealing an award of attorney fees under R. 3d 338. Inc.2335.C. or local government. of Health v. a. Exemptions from R. the agency may appeal an order granting an award.C. 95 . v. of Motor Vehicles (9th Dist.C. 65 Ohio St. State ex rel. Adjudication orders exempted under R. 65 Ohio St. Pro se litigants may not be awarded attorney fees under R. 10. Freeman v.C. attorney fees could be awarded in a proceeding where the state attempted to decertify a nursing home.39(B)(2). 11. c. Ohio Dept. b.39. An administrative appeal decision under R. where the state sought to take away a license already held by an individual. 3d 531. 2335.C. 67 Ohio App.C.” This principle was reaffirmed in Thermal-Tron. 2335.39(F)(3)(c). 2335. Ohio Bur. b. or the calculation of the amount of an award. under the right circumstances. An order of a court considering a motion under this section is appealable as in other cases. State ex rel. Sowald.C. 1992-Ohio-1. 2335.C.39 a. 2335. 10th Dist. where the court assumed (without deciding) that. 24. 1994) at *6-7. Note: For additional information on administrative law. involved an abuse of discretion.C. 93AP-331. 5101. b. you may wish to consult the Ohio Administrative Law Handbook and Agency Directory in Baldwin’s Ohio Administrative Code.12 of the Revised Code. 2335. LEXIS 6174 (Feb. 1990). 119.39(F)(3)(a). R. R. d. The order of the court may be modified by the appellate court only if it finds that the grant or the failure to grant an award. R. 1994 Ohio App.39(B)(2). However.35. No.092(F). c. 3d 458. Schregardus.39(B). 2335. Morris (1992). state.

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