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

ii

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3d 45. rehabilitating or liquidating businesses. Relations Bd. (4) Actions of the superintendent of financial institutions and the superintendent of insurance regarding the taking possession. & L. (10th Dist. Code Ann.C. 111.C. Chapter 119. 96 Ohio App. Chapter 119 without restriction to rulemaking. McEldowney v. 2d 115. (3) Controlling Board. 2d 106. (5) Actions of the Industrial Commission or Bureau of Worker’s Compensation brought under R. suspending. v. Chapter 119. Ohio Dept. 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. Assn. b.C. 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. a. commission.01-4123. of Transp.C.” 49 Stat. Home S. 1995). Genoa Banking Co. 119.94. The Revised Code defines “license” as: [a]ny license. The courts define an agency’s licensing authority based on the involvement an entity has with the processing of licenses. South Community. 620 (1935).C. it is not an arrangement whereby a person. 4123. State Emp.12. 1988). 3d 754. a. 38 Ohio St. Franklin C. Ohio Dept. Mills (1981). No. Boesch (1975). The mere approval of a savings and loan branch location application was not a licensing function. 42 U. Entity has authority for issuing.C. (1988). Examples: (1) Decision to hold contractor in default of contract is not a licensing function. as amended. as well as other activities specifically mentioned in R. 41 Ohio St. 67 Ohio St. 119. certificate.01(A). permit. 3d 224. 95CVF064466 (Aug. v. 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. v. There must be a clear legislative intent to make an entity’s functions subject to R. 3. R. 2 . v. (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. 1994). or charter issued by any agency…. 53 Ohio App. Ohio Expositions Comm.C. 759. Entity’s own law specifically makes it subject to R.P. institution. [but not] any arrangement whereby a person. of Health (10th Dist. 2.. or entity furnishes Medicaid services under a provider agreement with Ohio Department of Human Services. 47. (3) In Bayside Nursing Ctr. revoking or canceling licenses. v.01(B). § 119. b.S. Asphalt Specialist Inc. 10. Inc. institution. 119.(2) Utility Radiological Safety Board. § 301.

of Trustees. revoking. the refusal was not an agency decision and therefore. Since the act was not a licensing function. 124. 151-52. 2d 149. which was an agency subject to Chapter 119. Chapter 119. para. b.12. (4) The Tenth District Court of Appeals held in Springfield Fireworks. v. 119. para. Ohio Dept. (1) In Bd. Chapter 119 Applies to Adjudications.. Dept. paragraph two of the syllabus). or canceling of a license. the entity is also subject to Chapter 119. v. Bd. Chapter 119 provides certain rights in relation to adjudications.C. (1963). or revoking or suspending a license . or denying the issuance or renewal of a license or registration of a licensee.C. Right to an appeal: Pursuant to R. which then authorized state universities to exercise the powers. at ¶ 24. may appeal from the order of the agency to the court of common pleas. 119. of Findlay School Dist. 174 Ohio St. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119. entity exercising derivative power must be a state agency. Inc.. of Admin.C. 467. 1 (emphasis added). 2d at 152 n. of Trustees of Ohio State Univ. 03AP-330. the act is a licensing function because it does not fall under the exemption included in R. Board of Edn. Not Ministerial Acts 1. 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. 3 .01(B). C.14(G). and functions of the Department of Administrative Services with respect to civil service employees. Entities exercising derivative power a. (1981). 1 (emphasis added). The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services. 68 Ohio St. 4. "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination. 10th Dist No.13.C. a.” R. suspending.C. Where an entity exercises power derived from another agency that is covered by Chapter 119. of Commerce. was not appealable pursuant to R. 119.12.01 to 119. the university was also bound by Chapter 119 in the exercise of those powers.06. duties.Therefore. The conduct at issue was authorized by R.3 (citing Karrick v. 68 Ohio St. 2003-Ohio-6940. 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. 119. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119.C." R. Serv.

duties. in obedience to the mandate of legal authority. 150 Ohio App. 70 Ohio App. 614. Creasy. Ministerial acts involve no discretion (1) In Koch v. 4 . Chapter 119. A ministerial act has been defined as an act that. of Health (10 Dist. benefits. Brown (1982). 3d 82. in order to determine whether Chapter 119 applies. 762. Inc. Ohio Dept. 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. of Human Servs. 3d 702.C. Ohio Dept. An “adjudication” is defined by R.C. 3d 754. Inc. 69 Ohio St. Ohio State Racing Comm. The Ohio Supreme Court ruled in Ohio Boys Town.” b. privileges.2. b. 2d 1. Brown (1982). nor other acts of a ministerial nature. Bayside Nursing Ctr. Trauger v.. of Natural Res. “Adjudication” defined a. 1994). of Ohio Non-Profit Corp. Id. Raceway Park. No. 70 Ohio App. Koch v. Nash (1902). State ex rel. 3d 220. 2d 1 that. given a certain state of facts. 96 Ohio App. the act of denying his transfer application was a ministerial act to which no right to appeal attached. 3. 612. v. v. New London Hosp. 618. (10th Dist. but does not include the issuance of a license in response to an application with respect to which no question is raised. In re Seltzer (1993). cited in Ohio Boys Town v. v. Ohio Dept. 69 Ohio St. “Ministerial Act” defined a. Id. 88 Ohio App. c. pursuant to R. one must determine whether the act of the agency constituted an adjudication. 224. (10th Dist. LEXIS 12569. the licensee was entitled to a hearing prior to being forced to cease bingo operations.). without regard to or the exercise of that person’s own judgment upon the propriety of the act being done. Thus. 88. 1990). (6th Dist. 80AP-208. at 12. 2002-Ohio-6838. v. 3d 612. 119. of Natural Res. 66 Ohio St. or was merely a ministerial act. at ¶ 16. Odita v. 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. 67 Ohio St. a person performs in a prescribed manner. 10th Dist. 3d 612.01(D) as: “* * * the determination by the highest or ultimate authority of an agency of the rights. at *8. 1980 Ohio App. The Supreme Court held that the rejection of the application for renewal was an adjudication by the highest or ultimate authority of an agency. State Dept. therefore. 616. 1993). or legal relationships of a specific person.

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

R. 2006Ohio-2171. Ohio occupational therapy.06(C). Orders Effective Without a Hearing 1. or to the board of tax appeals. Chiropractic board.C. Bd.06(A). When an agency denies a renewal or registration.C. R.06.06.C. para. 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. Board of landscape architect examiners. 5. 2. Suspensions Without A Prior Hearing (“Summary Suspensions”) 1. and give the appellant a right to hearing on appeal. 119. Certain orders canceling or suspending a driver’s license. of Ohio. 2. provides: a. the licensee shall not be required to discontinue the licensed business or profession merely because the agency fails to act on the application. The agency must provide a hearing unless a hearing was held prior to the denial. R. State Med. R. R. 119. (1) Failure to provide an opportunity for a hearing following the suspension violates due process. 119.062. another agency. If a licensee timely files for renewal or registration. 3. R. 4. 05AP-1079. 119. at ¶ 14. Board of examiners of architects. A hearing must be held following suspension. D. b.C. physical therapy. 119. 119. General rule: Agency must provide an opportunity for a hearing BEFORE issuing an adjudication order. C. 10th Dist. 9. Exception: When a statute permits the suspension of a license without a prior hearing. Orders revoking a license where an agency is required by statute to revoke a license pursuant to a judgment of a court. 6 . and athletic trainers board. This is often called a “summary suspension.C.(2) No hearing is required for the following boards if the applicant failed a licensing examination: (a) (b) (c) (d) (e) Medical board.” a. c. Doriott v. No.06(B).C. 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 suspending a license where a statute specifically permits the suspension of a license without a hearing.

119. Doriott v. Ct. the Wadsworth Municipal Court found that the state did not 7 . b. 2006-Ohio-2171. 2d 3. 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. c. Due process concerns a. 52. 119. 05AP-1079. b. LEXIS 556. if the Mackey test is met. Ohio Bureau of Motor Vehicles (1990). not later than the business day next succeeding such order. (2) Copy of the notice must be mailed to the attorney or other representative of record. No.S. in which the court found that strict adherence to the judicial model of due process was not mandated for administrative hearings. of Ohio.(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. at ¶ 12. State Med. return receipt requested. 5th Dist. Supreme Court has ruled that summary suspensions are generally constitutionally permitted to protect the public. Notice of suspension must state: (1) Reasons for the agency’s action. then the due process rights of the individual are not violated. at *7. (2) However. (1) Wagers v.07. in Meadows v. Rather. 443 U. (2) Risk of erroneous deprivation of the private interest through the procedures used. 1. The U. of Motor Vehicles (Wadsworth Mun.. Bd. The Ohio Supreme Court adopted the Mackey test in Doyle v. No. Ohio State Racing Comm. (2) Law or rule directly involved. to require the board to provide notice of opportunity for hearing subsequent to the suspension. 5. and (3) Opportunity for hearing if requested within thirty days of the mailing of the notice. Ohio Bur. (Massachusetts DUI case).07. 71 Ohio Misc. a. 3d 46. Notice requirements for pre-hearing suspensions pursuant to R. 1992 Ohio App.C.S. Three-Step Analysis (Mackey) (1) Nature and importance of the private interest affected by the official state action. 17. 1995). 4. Mackey v. Service of the Notice (1) Notice must be sent to the party by registered mail. CA-2885. 3. 10th Dist. Montrym (1979).C. 51 Ohio St. (3) Fiscal or administrative burden that additional or substitute procedures would require.

1995). No. 3d 100. c. 2011-Ohio-1816. in all cases in which an agency must afford an opportunity for a hearing prior to issuing an order. Barlow v. State ex rel. 10AP-699. 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. Finley v. v. 4. 2. para. Industrial Comm. 1. Lucas Cty. a. 119. 24. an appellant must demonstrate prejudice from any failure to meet the timeframes. R. The Tenth District Court of Appeals held that timeframes are directory. Div. 325.07.. L-11-1177. 6th Dist. B. The agency is subject to a reasonable standard. No. Dusty Drilling Co. Content of Notice 1. No. NOTICE REQUIREMENTS A. 2010).07. 09AP-1050.P. b. Crawford-Cole v. The law or rule directly involved. the notice of hearing must include: a. 1981). Although proper notice of the opportunity for hearing is mandatory. the agency must give proper notice of the opportunity for hearing. and that. b. para. Pursuant to R.C. Even though there is no specific statutory requirement.. absence of instructions of how to appeal and the deadlines involved violated due process requirements. at ¶ 31. 119. The Meadows court ruled that the state’s failure to follow the statute deprived the defendant of his rights to due process.C. Mandatory Requirement 1. No. The charges or other reasons for the proposed action. Franklin C. 2012-Ohio-3506. Cunningham v. 10CVF-3027 (Aug. 2010-Ohio-3842. 10th Dist.C. Id. time frame for filing the notice is discretionary. of Job & Family Servs. 2 Ohio App. Ohio Real Estate Commission. 8 .07. of Commerce. 5. 3d 323. If a party has a right to a hearing. LTV Steel Co. d. 119. 10th Dist. 3. 103-04. Wightman v. Notice of the party’s right to a hearing. Failure to give proper notice invalidates any order entered pursuant to the hearing. 102 Ohio App. Dept. ¶ 16 and 17. not mandatory. the party has a right to a reasonable notice of hearing and a reasonable opportunity to be heard. Ohio Real Estate Comm. R. III. State ex rel. of Ohio (10th Dist. (10th Dist. as a result. Ohio State Dept. of Real Estate and Professional Licensing.follow the statutory scheme for an administrative license suspension when it did not afford the defendant a post-suspension hearing within five days.

Statement that the party may appear in person. Statement that the party may. Ohio Dept. Must be clear enough to allow the party to prepare a defense. 3d 480.07 is to enable the respondent to prepare a defense to the charges. if personally appearing. by his or her attorney. Ohio Veterinary Med. 2 Ohio App. of Commerce. 102 Ohio App. 37 Ohio App. of Ohio (10th Dist. Finley v. Keaton v. (1) The purpose of the notice required by R. while supported by the record. 3d 323. present his or her position. 2. 2. 1992 Ohio App. including reasonable notice of the subject matter of the hearing. (2) Where dental board provided names of only two patients to the licensee. In order to show a violation of due process. Div. Bd. In re Morgenstern. 1998). argument.. 103-04. Due Process 1. Purpose of the notice requirement a. (8th Dist. are broader than the charges set forth in the notice of hearing. State ex rel. 1995). 119. Most administrative agencies have no time limits for bringing charges. Limits the scope of the charges. LEXIS 2753.e. 2001). the respondent must demonstrate prejudice by indicating what. C. See Fehrman v. 141 Ohio App. Dusty Drilling Co. at *7. LTV Steel Co. 1981). Sohi. Bd. Id. and contentions in writing. Statement that the party.C. licensee was deprived of ability to prepare a defense with regard to other patients. 91AP1018. or by such other representative who is permitted to practice before the agency. 1987). if anything. (1st Dist. 198. 10th Dist. he or she would have done differently in preparation of his or her defense. 130 Ohio App. State Dental Bd. Industrial Comm. b. and g. may present evidence and examine witnesses appearing for and against him or her. ¶ 26. Sohi v. 482-83. of Securities (10th Dist. State ex rel. of Ohio. 9 . f. 2011-Ohio6089. Griffin v. Geroc v. 3d 192. Ohio Dept. No. 423. 325. State Med. 2 Ohio App. (1) An appellate court may not uphold an agency's order based upon findings which. 509-11. The notice of opportunity for hearing sufficiently apprises the respondent of the precise nature of the charges against him. 130 Ohio App. v. Procedural due process in administrative hearings constitutes the right to a reasonable notice of hearing and a reasonable opportunity to be heard. 3d 503. No. even if the notice contains some deficiencies. 3d 414. 10th Dist. 11AP-174. 3d at 423. in lieu of personally appearing. Delays in Issuing Notice a. 3d 100. of Commerce (10th Dist.

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

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

LEXIS 6530. or forwarding address unknown or expired.2. Last known address is the mailing address of the party contained in the records of the agency. R. Service is complete when the certificate of mailing is obtained. unless the notice is returned showing failure of delivery. 119.07 makes a distinction between failure to claim and failure of delivery. 10th Dist. (b) Notice must be published in a newspaper of general circulation in the county of last known address of the party. (3) Publication (a) Must publish a summary of the substantive provisions of the notice. Agency shall obtain a certificate of mailing from the U. Personal service on employee of business. b. Ohio State Liquor Control Comm. Failure to Claim (1) If party fails to claim the notice: a. Postal Service. Fink v.. b. 98AP-1403. Agency shall send notice by ordinary mail at party’s last known address. (c) Must be published once a week for three weeks. (b) Refusal of delivery by personal service is not failure of delivery. No. address or addressee unknown. Failure of delivery occurs when a notice is returned by postal authorities marked undeliverable. d. c. the agency must serve the notice by personal service or publication. (i) Last known address is the mailing address of the party contained in the records of the agency. (c) Personal delivery may be made at any time. 1999 Ohio App.C. 12 . Failure of delivery (1) If notice is returned because of failure of delivery. (2) Personal Service (a) Performed by an employee or agent of the agency. Failure to claim occurs when party refuses to accept delivery of certified mail. satisfied due process requirement to give notice reasonably calculated to apprise the business owner of proposed action. at *5.S. a. after certified mail service was refused.

or any feature of it.” Fogt v.) 7. Kirresh. LEXIS 4755. LEXIS 116.C. 7th Dist. City of Lakewood v. 424-25. 1986). Failure to Give Proper Notice 1.. which should be stated in a separate document attached to the notice? 3. so as to be precluded from afterward challenging the proceeding for want of notice. Columbus v.(d) A proof of publication affidavit. Does the notice state all of the respondent’s hearing and representation rights as specified in R. Harris. 1st Dist. No. No. “A person entitled to statutory notice may waive it. by his conduct. G. such as patient names. 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. 1992 Ohio App. Sliker (10th Dist. Waiver a. 2000 Ohio App. Does the agency have sufficient evidence to support every charge stated in the notice? 4. or may. Does the notice indicate the agency’s address and telephone number and. 76. Practical Considerations 1. 8th Dist. must be mailed by ordinary mail to the party at the last known address. Is the agency authorized by statute or administrative rule to take the proposed action? 5. 02 JE 22. acknowledge the giving of notice to him.C. Jefferson County Child Support Enforcement Agency v. State Counselor & Soc. at *12-13. F. Worker Bd. with the first publication of the notice set forth in the affidavit. 2d 423. 1965). Ohio State Racing Comm. Does the notice include confidential information. at *3. if necessary.07? 8. 2. R. Does the notice comply with all procedural requirements set forth in statute and administrative rule that are unique to the agency? 6. 3 Ohio App. An agency cannot enforce an order resulting from an improper notice of charges. Prinz v. (e) Notice deemed received as of the date of last publication. 119. Failure of an agency to give notice as prescribed results in the invalidation of any order entered into pursuant to the hearing. 119. No. C-990200. (3rd Dist. 30 Ohio App. 62337. a. 7. 3d 74.07. para. See also. the name of a contact person? 13 . 2003-Ohio496. 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.

14 . is it clear which alleged facts violate each statute or rule stated in the notice? H. Agency erred by failing to timely set a hearing date and time as mandated by R. when the last day falls on Sunday or a legal holiday. Licensee sent a letter proposing an informal settlement.14 apply to proceedings conducted pursuant to R. 1. Chapter 119.C.9.14. 103 Ohio App. at *9. B.C.C.07 begins to run on the date the agency or board mails the notice by certified mail. except that. LEXIS 9961. Method of Requesting a Hearing 1. which letter also stated that licensee was not waiving his right to a hearing.” IV. 3d 317. showing intent to request hearing. The court found this was sufficient notification because licensee had expressly reserved the right to adjudication. R. 2. Ohio State Med. 119. Ohio State Med. Does the notice indicate the method of service to be utilized? 10. Bd.14 states that when a public office is closed to the public and it is the last day to do a required act. Standard Oil Co. Computing Time Pursuant to R. 78AP860. 1. 1987 Ohio App. a. where attorney advised the licensee that request must be made in writing to the board). If multiple violations. 1. 10th Dist. Chapter 119. 54292. No. The thirty days provided by R. But see Alcover v. R.. 119. 1995). Timing of Request (R. Harrison v.C. (10th Dist. “the act may be performed on the next succeeding day that is not a Sunday or a legal holiday. v.C. 1. Chapter 119 does not specifically provide that a request for hearing must be in writing.14. HEARING REQUESTS A.C. A party must request a hearing within thirty days of the date of mailing the notice. Reserving right to hearing shows intent to request. 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. 8th Dist. 318. No. 1979 Ohio App. the act may be done on the next succeeding day that is not Sunday or a legal holiday”. at *9 (telephone request to assistant attorney general insufficient. Bd. 2. In writing a. Williams.07) 1.C. a.C. 1. The time computations set forth in R. LEXIS 11662.

Bd. Ohio State Medical Bd. 291 (court declined to decide issue). would be needed to fulfill the requirement for a hearing . 15 . Note: Many agencies (e. No. .C. No. of Edn. but some sort of reliable evidentiary review. “…nothing in the Board’s enabling statutes or R. the Board lacked any statutory authority to permit [plaintiff’s] participation. 2. . LEXIS 4918. 54292. 10th Dist. 8th Dist. . Ohio State Bd. as well as a more considered review of the circumstances of the case. Cannot testify. The notice must be received by the agency within the thirty day time period. however. Medical Board.g. Ohio State Chiropractic Bd. Alcover v.b. 4731. 2011-Ohio-431. 2.may or may not be implicated when prisoners request a hearing. Nursing Board. Chapter 119 hearing. May attend hearing. LEXIS 3977. 88AP-276.. See Amon v. No right to make argument.28(D)) amended their statutes in response to the Goldman decision.. of Ohio (10th Dist. (10th Dist. Evidentiary review in lieu of hearing a.C. .C. 145 Ohio App. The “prison-mail rule” – which states that the date of filing for inmates is the date of delivery to prison authorities .22(J). Bd. call witnesses. including the sworn testimony of the investigator. Chapter 119 sanctions [plaintiff’s] participation in the hearing . 67 Ohio App. C. 2001). State Med. Hsueh v. No.” Goldman v. 3d 589. 4123.” Kellough v. Goldman v. 1989 Ohio App. 129. to provide that no hearing must be held if one is not requested.C.. No. at *5-6. in 1996.. 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. b. d. Chirila v.C.. 10th Dist. R. a. Bd. Ohio State Med. however. 10th Dist. 3d 287. at *7. R. If respondent fails to timely request a hearing. 596-97. Bd. b. LEXIS 9961. c. State Med.07. at *8-9 (appeal following remand). . the agency need not hold full-blown R. 1987 Ohio App. agencies generally perform an evidentiary review prior to taking action. Ohio State Med. Loss of party’s right to participate. Effect of Failure to Timely Request a Hearing within Thirty (30) Days 1. 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. 10AP-419. or present other evidence. 119. 1996). 98AP-238. 3d 124. 110 Ohio App. because of public nature. 1998 Ohio App. (10th Dist. 1990). in the interest of due process.

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

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

2003-Ohio-4061. Bd. R. S-32-92. 5th Dist. ¶ 43. No. 119. 10th Dist. 11-CA-9. para. Froug v. . B. 2 (emphasis added). Dist. Leake v. a. 15 Ohio St.01 to 119. Depositions 1. ¶ 40. Dept. Ohio Board of Nursing. including discovery rules.C. 10th Dist. No. OBTAINING EVIDENCE AND SECURING WITNESSES FOR HEARING A. the agency .C. See Moffett v. Ohio State Bd. Chapter 119 provides for depositions in lieu of hearing. Finally. discovery rules do not apply. Bd.” b.13 of the Revised Code. Casey v.c. . 00AP-523.. No. The courts have held that because the Civil Rules are not applicable to administrative hearings. 7th Dist. State Med. Nichols (1984).C.09: “For the purpose of conducting any adjudication hearing required by sections 119. 2003 CO 7. Chapter 119 Does Not Provide for Discovery Under Civil or Criminal Rules of Procedure 1. 2012-Ohio-1002. The agency's own law and rules may provide protection to certain records. . No. 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 . at *9. of Pharmacy. 1(A) limits the Civil Rules to “all courts of this state in the exercise of civil jurisdiction at law or in equity . The taking of the deposition shall be in the same manner as is prescribed by law for the taking of depositions in civil actions. 9. 119. . R. VI. a. at *10. 6th Dist. . 2002-Ohio-606 at * 10. Civ. . Chapter 119. are not applicable to the administrative hearing procedure. . 7th Dist. 4. 3d 7. ¶ 24 and 32. the Criminal Rules of Procedure do not apply to proceedings conducted pursuant to R. the deposition may be used at 18 .C. Wayne S. LEXIS 305. 2001 Ohio App.. 2003-Ohio-7007. No. The Ohio Rules of Civil Procedure. Salem City Sch.” White Consolidated Industries v. of Psychology. Agency law or rules may set guidelines for consideration of motions for continuance of hearing. of Ed. Similar to the civil rules.C. b. . R. an administrative agency may allow testimony by deposition for witnesses who will not be available at the time of the hearing. According to R. 3. The agency’s own law and rules may provide for a discovery-like exchange of information. Miller v. Ohio State Bd. 00 CA 264. LEXIS 3290. For the purpose of conducting an adjudication hearing. 1993 Ohio App. of Human Serv. 02AP-1315. Mahoning Cty. Gipe v. No. of Ohio. “The formulation of procedural rules of administrative agencies is basically left to the discretion of the agencies. 2.09.” R.

issue a subpoena for any witness or subpoena duces tecum to compel the production of records.C. 48 Ohio App. 145. 28-29. at *11. a. 3d 527. 119. b. 2001 Ohio App. Frantz (1990). of Pharmacy v. Ohio State Bd. Murray (1993). Ohio State Bd. Burneson v. Bd.09 by not issuing a subpoena when requested by the respondent. R.09 does not provide for prehearing discovery depositions by a party to an adjudication hearing. Because R. Id. Ohio Board of Nursing.09 pertains to securing the attendance of witnesses and the production of records and documents for the purpose of conducting an adjudication hearing. Proper service and fees a. 119. at *9-12. 2. (2) The court further indicated that Froug could have requested a continuance if more time was necessary to review the records. reversal of the agency’s final order is not necessary where the respondent fails to show prejudice.C. the agency may.C. LEXIS 305. In re Heath (10th Dist.C. The subpoena shall be directed to the sheriff of the county where the witness resides or is found. 00AP-523. Method of delivery 19 . 535. The mandatory language in R. 119. b. of Ohio v. 119.C. 2009-Ohio-1103. R.C. No. No. 80 Ohio App. 3d 143. b. Ohio State Racing Comm. 119. 10th Dist. C. 3d 605. 2. R. For the purpose of conducting an adjudication hearing.hearing against a party who was present or represented at the taking of the deposition. at ¶ 24. 51 Ohio St. 1988). Chapter 119 provides that a party may request the issuance of a subpoena duces tecum for the purpose of conducting a hearing.09 is satisfied when the agency subpoenas records to be delivered at the commencement of the hearing. R. and served and returned in the same manner as a subpoena in a criminal case is served and returned. however. and upon request of any party shall. See Froug v. 611-12.C. 3d 222. Id. Subpoenas for Purposes of a Hearing 1. 10th Dist. (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. 08AP-794.09 (emphasis added). The agency violates R. Chapter 119 does not provide for discovery depositions. a.. Poppe (12th Dist. Parties cannot obtain prehearing discovery depositions regardless of whether the depositions are described as “depositions” or “prehearing discovery depositions. 66 Ohio St.” State Med. 1992). of Pharmacy v.

17(D) provides that proper service is effected by tendering to the witness. See R. Castle (9th Dist. v. c. R. Return of subpoena a. 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. Must be returned in the same manner as a subpoena in a criminal case. (2) Witness outside the county: Crim. A.08 for current amount. 3. if tendered prior to the time appearance is compelled. Smith Corp. R.O.C.09. 86-066. 92 Ohio App. 10th Dist.(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. b. the fees for one day’s attendance and the mileage fees allowed by law. 86-066. or otherwise. 17(D) provides that the return may be forwarded through the postal service. (a) Where a witness lives outside the county where the agency is located. 1994). at ¶ 26.09. and the witness may not later refuse to appear solely because the fees were not tendered upon service. Fees (1) Witness residing within county: Crim. 2335. fees shall be tendered without demand. upon demand. 03AP-266. or by leaving it at his usual place of residence.. 2. 3d 732. Crim. 17(D) provides that if the witness resides outside the county where the agency is located. (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. (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. R. No. 119. valid service is completed. R. State v. (a) A witness living in the same county as the agency waives the right to fees if not demanded upon services. OAG Opinion. witness fees and mileage fees must be attached to the subpoena and tendered without demand or the witness is not obligated to appear. (b) When the fees were not tendered with subpoena. OAG Opinion.C. error could be cured by subsequently tendering the fees. 2004-Ohio-4041. 20 . 119. Perfection Corp. 734. para.C.

But the court "by a rule. 119. at *13. (c) The writ will only issue for disobedience of a subpoena “personally served” on the witness. (c) If the matter is one in which the witness may be subject to lawful questioning. 2317..09. Carratola v. 18658. 9th Dist.C. subject only to proper privilege assertion by the witness. 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. (1) Upon failure to comply: (a) Agency must file an application to enforce the subpoena if requested. (a) The agency is required to seek enforcement if asked by the party who requested the subpoena.C. R. may order. Remlinger (1983). Ohio Motor Vehicle Dealers Bd. 1998 Ohio App. 21 . LEXIS 2020. (a) This statute is inapplicable if proper fees are not paid to the witness. 2317. No. 3d 26.C. 3 Ohio App.” R. Ohio State Dental Bd. failure to do so does not require reversal of the agency’s decision unless the appellant shows prejudice resulting from the failure. the court shall compel obedience by attachment proceedings for contempt.4. (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. such as limiting testimony of other witnesses. Carratola. (b) The application is filed in the court of common pleas where the disobedience occurred. (2) Attachment proceedings for contempt are set forth in R. Western Reserve Psychiatric Habilitation Center (9th Dist. (d) Court shall compel compliance as in cases of disobedience of court subpoena. LEXIS 2020. Contempt proceedings. and may not resort to other forms of punishment. 2317.21. 1998 Ohio App. 220.21. v.C. (b) Although the agency is required to seek enforcement of subpoena. (3) Requirement to Enforce if Requested. (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.21. Failure to obey subpoena/sanctions a. 8 Ohio St. 3d 218. 1981). 27. Green v. (4) An agency is limited to the statutory attachment procedures to sanction contempt of its subpoenas. R.

1707. do not have specific statutory procedures for enforcement of investigative subpoenas. See discussion re: Health Insurance Portability and Accountability Act (“HIPAA”). paragraph 4 of the syllabus. 61. 4731. b. Enforcement a. R. Chapter 119 does not provide statutory authority for a motion to quash.22(F)(3). (E. because R.C. Implied power.C. of Aging. (2) Thus. the only avenue available to a witness is to defend an action to compel. Dept. 4734.. 3. 4731. R. 4723. R. 2. 4723. R. 1996). the court of common pleas has no jurisdiction to entertain a motion to quash an administrative subpoena.20(H). 173. R. Div.48(A)(2). of Aging. Polen. Thompson. R. 1707. 390-91.24. 1994).. Medical Bd. of Securities. Other agencies. it is reasonable to argue that the sanctions permitted by Civ. 45(E) may be granted.C. e.C.C. 1993). of Securities. 3d 59.C. below.29). Bd. However. 96 Ohio App. Ombudsman. 3d 386. Specified authority (1) Some agencies have specific statutory procedures for enforcement of these subpoenas. The Medical Board’s statutory authority to subpoena patient records is not dependent upon patient consent.g. R.C. 173. 108 Ohio App. Board of Nursing..C.C.29). prior to hearing. Chiropractic Board. See State ex rel.g.b. In re Investigation of Laplow (9th Dist. Div. (10th Dist. 2000).. b.C. 22 . 307. (e. Motions to Quash not authorized by R. 00MS000041 (July 24. Hildebrant (1915). Investigatory subpoenas are those to compel testimony or the production of records. 87 Ohio App. for purposes of investigation. State Med. Medical records a. State Med. 3d 305. 4. R. In re David E. there is an implied power to enforce them through the court. No. (2) If the statute grants enforcement according to the Civil Rules.22(F)(3).C. since the legislature has empowered them to issue subpoenas. Chapter 119. 1. D. Ombudsman. v. for general principle of implied power to perform duty. Investigative Subpoenas 1. D.20(H). 93 Ohio St.. Some agencies have statutory authority to issue investigative subpoenas.P. Bd. R.g. (1) Absent specific statutory authority or a pending case or appeal. Hunt v.C. Chiropractic Bd. Franklin C. Dept. In re Investigation of Laplow (10th Dist. Board of Nursing. R..24.

a.) 1.43.C. R. received. policies. 23 . State ex rel. Multimedia.C. 149. 72 Ohio St. 142.43(A)(1) and (3). 142. d. see the most recent version of the Ohio Sunshine Law Update published by the Ohio Attorney General. For more detail. R. 3d 141. 149. decisions. b. computer. 2. 149. c. Uncirculated personal notes. and (3) Documents the organization.C. prognosis or medical condition of a patient. The Public Records Act applies to any record. 3d 170. 149. Multimedia v. 440. Medical records. of a public office. 149. (1) The information must pertain to the medical history. film. or sent under the jurisdiction of a public office. as defined under R. R. 72 Ohio St.43(A)(1)(g) and (4). operations or other activities of the office.C. Exemptions/Exceptions: a. The provisions of the Act that provide access are to be liberally interpreted and exemptions are to be strictly construed. (2) Is created. c. (The following is a brief outline of Public Records Law.011. 173. A “record” is any item that: (1) Contains information stored on a fixed medium (such as paper. State ex rel. Cincinnati Post v. State ex rel. 67 Ohio St. Snowden (1995).C. see R. etc. (2) The record must have been generated in the course of medical treatment. Kraft (1993). functions.43(A)(1). (a) A report of a medical professional generated as part of the decision making process regarding employment. diagnosis. 3d 141. 3d 439. The requested records must be released unless they fall within an exemption or exception to the Public Records Act.C. procedures. Trial preparation records. b. 149.011(G). not exempt by law. Respondents May Obtain Certain Agency Records through the Ohio Public Records Act. see Steffan v. Schweikert (1988). but not generated in the process of medical treatment is not covered by the medical records exception. For a complete list of exemptions. 38 Ohio St. Any doubts are to be resolved in favor of disclosure.).E. R.

Conrad. 3d 420. Inc. 63 Ohio St. (iii) Information creating a serious danger to law enforcement personnel. Franklin County Sheriff’s Dept. 3d 420. the administrative agency’s investigative file may be trial preparation if criminal prosecution was anticipated by the AAG. State ex rel. crime victims. 1993-Ohio-192. 682. 47 Ohio St. v. 431-32. 1996-Ohio-234.43(A)(1)(h) and (2). University of Akron (1980). 60-61. 3d 498. (1) As with the trial preparation exemption. McGee v. State ex rel. State ex rel. 3d 59. Martin (1988). R. Beacon Journal v. (3) Dicta contained in State ex rel. State ex rel.(1) In the criminal context. witnesses or information sources. State ex rel. 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. 74 Ohio St. 70 Ohio St. 37 Ohio St. Barton v. Steckman v. Jackson (1994). information in a prosecutor’s files is deemed to be trial preparation material. Yant v. probable cause determination or investigation into wrongdoing. (1) Two-step analysis for determining applicability of this exemption. City of Cleveland. of Psychology (1989). the work product exemption appears to be more comprehensive in the context of a criminal 24 . requiring a showing that the information was not gathered for some purpose other than litigation. 49 Ohio St. (ii) Identity of an information source or witness to whom confidentiality has been reasonably promised. Martin v. (2) The application of this exemption appears to be more limited in the civil and administrative context. e. Ohio State Bd. 156. SERB (1992).C. 309. 3d 681. 3d 155. Confidential Law Enforcement Investigatory Records (“CLEIR” Exception). Steckman. v. 64 Ohio St. Shupe (1988). State ex rel. 70 Ohio St. 502. 149. Thompson Newspapers. 29-30. reversed on other grounds. 67 Ohio St.. 2d 392 (routine techniques not protected). State ex rel. quasi-criminal. (a) Step 1: Does the record pertain to a law enforcement matter of a criminal. (iv) Specific investigatory techniques and procedures. 3d 28. (v) Specific investigatory work product. i. 3d 308.e. 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.

3d 420. 3d 185.C. R. 3304. f. See. (2) The following line of cases illustrates the volatility of this area of the law. Ohio Patrolmen’s Benevolent Assn. 27 (child abuse investigation reports). (a) Social Security Numbers. Records the release of which is prohibited by state or federal law. Yant v. WLWT-TV5 v. Cuyahoga County Dept. There are also general state statutes. based on a federal privacy interest. e. R.43(A)(1)(v). L-99-1143. 1333. the confidential law enforcement investigatory record exemption remains applicable until all proceedings are complete. 3d 440.C. (2) General confidentiality provisions. 75 Ohio St. 74 Ohio St. (b) The legislative language used to create confidentiality may be phrased in different ways. So long as the statute can be read to prohibit general release. 77 Ohio St. Polovishack v. Beacon Journal v. for example the Trade Secrets Act. 50 Ohio St. Police Officers for Equal Rights v. 3d 681. Lashutka. (a) Many state administrative clients have statutes making specific information confidential. 2151. Be sure to check the agency’s own statutes. 145. 89 Ohio St. that create confidentiality. 3d 51. R. 3d 25.22 (STRS and SERS member information).421 (Child abuse and neglect investigation records). of Human Serv. 70 Ohio St. v. R. One particularly noteworthy exemption premised on federal law is the exemption of social security numbers.17 (Director of Commerce Investigations). 3d 605. Jackson (1994). 360. 612. 3307. (b) Student Education Records. (3) Federally protected information. 6th Dist. White. 54 Ohio St. Renfro v. 1995-Ohio-19. discusses the applicability of this exception to administrative investigation files. Leonard v. State ex rel.27 (PERS member information). 149. Mentor. Steckman v. Mayfield (1990). State ex rel. State ex rel. This is far from an exhaustive list.65.C. (5) State ex rel. No.g. R. State ex rel.proceeding than in the context of a civil or administrative proceeding.C. Toledo. State ex rel. 3d 357. Conrad. City of Akron (1994).21 (Client records of rehabilitation services). 1996-Ohio234.C. the statute likely qualifies as an exemption under this statute. 1996-Ohio-204. 1997-Ohio-273.C.C. 70 Ohio St. R. State ex rel. Leis. Toledo Police Patrolman’s Assn.22 (Long term care ombudsman investigative files). The following are a few examples: R.C. (1) Agency confidentiality provisions.20 and 3309. Local 10 v. 173. See State ex rel. (4) Once applicable. R. 2000 Ohio App. (1990). not related to any one specific agency. State ex rel. 2000-Ohio-214. The Family Education Rights and Privacy Act 25 . 5153. LEXIS 875. 72 Ohio St. 3d 516.

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

C. Liabilities (1) Civil penalties: (a) Statutory damages: $100/day after filing of mandamus action. 9-4).e. the agency must provide an explanation for denial. R. c. 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) The public office cannot charge for inspection. the party is entitled to the copy at cost. Warren Newspapers v. therefore. Hutson. (5) If the request is denied. b. 149. 621-26. 149. Enforcing Public Records Act a. 27 .43(C).C. 2004-Ohio-4354.43. d. 103 Ohio St. if a party only seeks a copy of an audiotape of court proceedings.43. 149.43(B)(3). the party must pay the court reporter to get a copy of the court transcripts in common pleas court. indicating legal authority for denial. 3d 89. R. in whole or in part. 70 Ohio St. (3) Regular business hours for a police department which is open 24 hours a day are normal administrative hours (i.C. 1994-Ohio-5. (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.43(B) are to be interpreted. that party cannot obtain the documents at cost under the Public Records Act. R. However. at ¶ 15-17. provides insight into how the operative terms in R. (ii) The custodian of the public records failed to comply with the party’s request.(b) Redaction is considered a denial. Anyone aggrieved by an agency’s failure to release a public record may bring a mandamus action to compel release. 3d 619. 149. Slagle v. (c) Only awarded if the requestor transmits a written request via hand delivery or certified mail. State ex rel. The specific statute trumps 149. (1) At cost does not include employee labor time.C. 4.C. (b) Maximum $1000. Rogers (2004). 149.43. rather than a transcript of the audiotape.

512(d): Disclosures for Health Oversight Activities. Health Insurance Portability and Accountability Act (“HIPAA”). and in most cases requires the consent of the patient for release. at 28 .Y. Bank Securities Litigation (E. Gundler (1996). 149. State ex rel. exemptions/exceptions. [and] the contributing influences” of an administrative decision. 45 CFR § 164. Note: regulations state specific parameters and conditions for application of each type of exception. Confidential records: See Public Records Act Section E(2).(iii) The requesting party filed a mandamus action pursuant to R. Protects the privacy of Protected Health Information (“PHI”). (iv) The party received the requested public records only after the mandamus action was filed. 478 F. Relation between the executive privilege and the deliberative process privilege. a. a. Supp. Protected Information 1.512(a): Disclosures Required by Law. Pennington v. F. 582. recommendations. (2) The reasons for this are that: (a) the actors are the same. 3d 171. 1979). 174. (b) the rationale for the privileges are similar.512(e): Disclosures for Judicial and Administrative Proceedings.D. and other communicative means used by a government decision-maker in the process of reaching a decision. 75 Ohio St.N. . What is protected? (1) Protects advice. 45 CFR § 164. 3.43 to obtain copies of the records. (1) The general deliberative process privilege is routinely grouped and usually interchangeable with the executive privilege. opinions. 2. Exceptions that may permit agencies to subpoena PHI without patient consent: (1) (2) (3) (4) 45 CFR § 164. 577. (2) The judiciary is barred from probing into “the methods by which a decision is reached . Id. 45 CFR § 164.C. b.512(f): Disclosure for Law Enforcement Purposes. above. . b. In re Franklin Natl. (c) both of the privileges are limited in application. Deliberative process privilege/executive privilege.

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

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

State v. McDermott. ¶ 28. is a preliminary communication with that attorney about the case). 3d 380. however. or other representative. (4) To the extent that narrative portions of attorney-fee statements are descriptions of legal services performed by counsel for a client. State ex rel. The privilege can be waived unintentionally by conduct which implies a waiver.021 defines “client” in the privilege statute to include the client’s “agent.(3) Definition of client.) (2) Not necessarily limited to precluding attorney’s testimony. keeping privileged documents in files that are routinely reviewed by third parties. a partial. Common law privilege (1) The common law attorney-client privilege applies to communications between a client and an agent of the attorney. because no intention of confidentiality exists. Dawson v. careless or inadequate document screening procedures. 2317. Dawson v. The statutory privilege does not define “attorney” as including an agent. 573-74. not agents. below. 316.3d 10. v. or representative of the attorney. (3) Communications must be made in confidence and not in the presence of strangers. 32 Ohio St. c. (b) Practical Note. employee. 2011-Ohio-6009. leaving documents in a place where third parties have access to them and no measures are taken to maintain confidentiality. Bloom-Carroll. it is not privileged and must be produced. (5) Waiver (a) The common-law privilege is destroyed by voluntary disclosure to others of the content of the statement. employee.C. State v. R. State v. 305. 131 Ohio St. The statute’s language prohibits testimony by an attorney. 31 . 155 Ohio St. 131 Ohio St. 1995-Ohio-80. 32 Ohio St. copied to the retained attorney. Bloom-Carroll Local School Dist.. and leaving privileged documents in a public hallway. if the communication was not intended to be confidential. Last. Travelers Indemnity Co.” (4) Applies to attorney only. whereas the common-law privilege could be viewed more broadly. Post (1987). ¶30 (Insurance company stands in the shoes of its insured and the insurance company’s letter. State ex rel. they are protected by the attorneyclient privilege. Also. voluntary disclosure of privileged communications can result in the loss of privilege for all other communications that deal with the same subject matter. See Treatises. 2011Ohio-6009. 385 (defendant's discussion with polygraph examiner hired by attorney for defendant was privileged. 3d 570. Such conduct might include not screening files released in a discovery production of records. privilege was waived when witness discussed his statements to polygraph examiner with third party who was not agent of attorney.3d 10. 72 Ohio St. 3d 380 at 385. Cochrane (1951). Post.

Sears. Nature of Proceeding 1. Hamilton County Bd. c. Treatises a. VII. v. However. all administrative hearings are open to the public. R. 1966). Unless an agency has a specific law to the contrary. Open to the public a. 1990). Labor Relations Bd. Sections 824-847. Bd. 3d 58. Carl Zeiss. Deliberative Process Privilege a.. 1988). 109 Ohio St.R. Jena (D.B. 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. See State ex rel. Liquor Control Comm. Taft. 3d 58. 10th Dist.C.5. 70 Ohio App. Rice (1993). 1983).E. v.” and are not subject to the Open Meetings Act. but deliberations need not be in open meeting). quoting In re Sealed Case (C.C. Paul R. Attorney-Client Privilege in the United States. No. Inc. (10th Dist.D. v. Jones v. 318. 44 Ohio Jurisprudence 3d. (1975). b. 01AP-344. 87-91. 324. 132 at 151. 2006Ohio-1825. 119.01(E). and therefore should be held in “executive session”). Standard to be met in order to establish the privilege and the reason for the privilege: (1) the material must be pre-decisional. Id. 1997). and (2) it must be deliberative. 352 (hearing public pursuant to Chapter 119. b. 421 U. The privilege allows the government to withhold documents and other materials that would reveal advisory opinions. Evidence (4th Ed. 121 F. 3d 8. Hamilton County Bd. 3d 346. b. 2001-Ohio-8766.D. 1998-Ohio-445 (“sunshine law” does not apply to adjudication proceedings at the Board of Tax Appeals because its adjudication is quasi-judicial. of Revision. c. Id. 1998-Ohio-445. V.383-385. 61.D. Angerman v. 6. Roebuck & Co. TBC Westlake. 737. Evidence and Witnesses. State Med. citing Natl. In re Petition for Annexation (10th Dist. 52 Ohio App. 11-12.C. of Revision. 61. Inc.S. 81 Ohio St. quasi-judicial hearings are not “meetings. TBC Westlake. 8 Wigmore. See also. 3d 364. 3d 729. 32 .A. THE CONDUCT OF HEARINGS A. at P. 81 Ohio St. The Ohio Supreme Court has recognized the common law tenets of the deliberative process privilege. at 383. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. at 383-384. quoting Carl Zeiss Stiftung v. 40 F. Dann v.

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

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

No. 6th Dist. No. 11CA-9. 03CA2894.C. Green v.07 provides that “at the hearing. (2) In addition. to consider hearsay evidence that is in conflict with sworn testimony. No. Mason v. Ohio State Bd. stating that Taylor is not applicable where both parties were permitted to present hearsay evidence at the hearing. Ohio State Bd. a. in Todd v. but by sworn testimony of several live witnesses who testified on behalf of appellee. 10AP-419. 38 . 119. Ohio Dept. 1987). Invacare Corp. Kellough v. 3d 297. Taylor v. Miller v. Ohio State Bd. Bd. R. 1984). 10th Dist. (2nd Dist. 1st Dist. . Spud’s Auto Parts. of Pharmacy. 2004-Ohio-2185. 2012-Ohio-1002. . General procedure.07 and 119. the party must proffer the evidence into the record. Servs. at *5. Erdeljohn v. of Edn. and appellant’s testimony was contradicted not only by appellee’s hearsay evidence. 20 Ohio App. the Fourth Appellate District concluded that it is “required to give great deference to the hearing officer’s findings of fact. R. 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.C. 299. 3d 1. 92CA5451. 1998 Ohio App. a.. It is not always unreasonable. Limits on use of hearsay evidence. LEXIS 5887. LEXIS 1524. L-98-1105. Ohio State Dental Bd. 2000 Ohio App. of Review (8th Dist. 6. [the party] may .4. (4) the agency shall pass upon the admissibility of evidence. c. of Emp.09. 1993 Ohio App.e. Hearing Procedure 1. Chapter 119 says very little about the procedure to be followed during an administrative hearing. 9. b. Relatively little statutory guidance.” i. and (6) upon the agency’s refusal to admit evidence offered by a party. Bur. of Job & Family Serv. Haley v. 119.C. 38 Ohio Misc. 5th Dist. 2d 1. The hearsay rule is relaxed in administrative proceedings. LEXIS 2687. C-990573. No. No. (3) the agency may ask any party to testify under oath as upon cross-examination. 119.09 sets forth the basic parameters of a hearing: (1) a stenographic record may be made of the hearing. present evidence and examine witnesses appearing for and against him. 7 Ohio App..” This section is silent regarding the manner in which evidence is to be presented. No. 1982). at *17. 9th Dist. however. 4th Dist. b. The only references to hearing procedures appear in R. witness credibility. of Pharmacy (Hamilton C. but the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner. “and it would be inappropriate to disregard his findings simply because they are partially based on admissible hearsay testimony. at ¶26. (2) the agency or hearing examiner may administer oaths or affirmations.” F. 2011-Ohio-431.. at *12.P. (5) a party may make evidentiary objections to the evidentiary rulings of the agency. (1) See Valdez v..

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

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

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

If the party does not object. Marked exhibits should be presented to the witness for identification and authentication. J. and to speak audibly and clearly for the reporter. para. Cleveland (8th Dist. R. Practical Considerations 1. 18-19. b. Documentary Evidence.09. Kaufman v. Evid. Cross Examination a. 5. 42 . Under the Ohio Rules of Evidence. Hearing officer and opposing counsel should be given a copy. the licensee may call witnesses who will vouch for his/her/its character. 3d 79. Exhibits should be marked. If a party desires to introduce marked exhibits into the record. cross-examination may concern any relevant area of inquiry even if beyond the scope of direct.such decision could not be justified by reliable. b. 119. The agency may call a party to testify under oath as upon cross-examination. the Agency’s decision will not be reversed. Bd. (3) The failure to swear a witness is a waiveable error. Id. 87. giving opposing counsel opportunity to voice objections. Exhibits also may be admitted at the close of case-in-chief at which time the opposing party may object. Who can administer oaths: Chapter 119 grants the agency or anyone delegated to conduct the hearing with the power to administer oaths. 4. 2.C. 3. (3rd Dist. 119. R. probative. Ohio Veterinary Med. 6. which may be used as a guide. 2d 14. Direct examination a. Zurow v. Marked exhibits should be shown to opposing counsel. 7. para. he/she should so move. 3. Ask witnesses to state and spell their name for the record after being sworn in. Character Witnesses (1) In discussing the character or business reputation of a licensee. 69 Ohio App. 1990). The hearing examiner should rule on a motion to admit evidence after entertaining any objections to the introduction of evidence. at 19. 611. 61 Ohio App. R. 2.09.C. 8. and substantial evidence. 1978). b. (2) An agency’s refusal to accept testimony of more than two character witnesses is not an abuse of discretion.

K. 2006-Ohio-2171. 1969). 10th Dist.). 874 N. (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. D. (10th Dist. 2007-Ohio-3328. Dressler Coal Co. State Med.12. 2.” Talwar v. 83 Ohio App. Springfield Local School Dist. 3d 68. Can A Case Be Dismissed Prior to Hearing? 1. 5. Bessey. v. Div. The State Medical Board of Ohio. 136 Ohio App. 2009-Ohio5852. 23 Ohio St. 172 Ohio App. 72-73. notice letter. Bd. of Ohio. 2004). 19 Ohio App. An administrative agency is precluded from dismissing a hearing once it has been requested by a respondent. of Ohio (10th Dist. a licensee may not bypass the special statutory proceedings in the guise of obtaining declatory relief. Doriott v. Ohio State Dental Bd. Bd. any written memoranda in which continuances were granted. Exceptions: a. 3d 131. 1992). proof of mailing by certified mail. 72 Ohio St. No. but nevertheless becomes part of the record on appeal.g. 2000). of Edn. 2d 157. or were agreed to by the parties. hearing request. Although due process considerations would probably preclude an agency from dismissing a case on its merits before a full adjudication hearing is completed. State of Ohio ex rel. 137. Boggs v. under Civ. State Med. Where the legislature has provided special statutory proceedings for the discipline of a licensee. 3d 485. Summit Cty. 156 Ohio App. No. 119. 10th Dist. at ¶ 14. Failure to state a claim with proper notice.7.2d 1256 (10th Dist..O. Failure to provide opportunity for a hearing violates Due Process. 4. 3d 94. 12. 165-67: if documentary evidence is not properly introduced and admitted into the record at the administrative hearing. dismissals (without a hearing) based on procedural issues such as res judicata and subject matter jurisdiction have been upheld by the courts on appeal. R. (10th Dist. 3. 43 . at ¶ 4 (citing State ex rel. the court may reverse the agency’s action. In re Application of Milton Hardware Co. Aust v. proof of receipt. 3d 677 at 683. 3d 365. letter to Respondent scheduling hearing. (1995). ¶ 25-27. Bd. v. (1) In order to dismiss a complaint for failure to state a claim upon which relief can be granted. of Reclamation (1986). State ex rel. 8. Agency/Board may not deny the right to a hearing. Jurisdictional items should always be placed into the record: e. it must appear beyond reasonable doubt from the complaint that the plaintiff/relator can prove no set of facts entitling him or her recovery.E. respondent may not file a motion to quash (dismiss/summary judgment) a hearing once requested. Williams v. including the right to appeal any agency decision pursuant to R. Fields v. In general. Executive Branch (9th Dist.C. 05AP-1079. 08AP-158. Gary Charles Gelesh.

Party should raise “as applied” constitutional challenges at hearing. The prudent 44 . 406-07. Section 119. of Commrs. 130. 170 Ohio St. at *5. LEXIS 4932. 3d 545. 44 Ohio St. Kresge Co. LEXIS 4883. Limbach (1988). administrative agencies themselves are without jurisdiction to rule on the constitutionality of a statute. 3d 229. however. 1981). Skalsky v. See Cleveland Gear Co.12. Ackerman (1st Dist. No. (1) Although the agency itself may not determine whether a statute has been applied in a manner that is unconstitutional. Hanson v. Agency may not rule on the constitutionality of a statute. 90-B-20. Zieverink v. v. 11. 7th Dist. 65 Ohio St. 3d 195. 548. No. Such determinations are reserved to the courts alone. (3) In reviewing the complaint. v. and the expert commentary of the agency on the issue. State ex rel. 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. Hairston. Herrick v.95 (quoting State ex rel. S. Kosydar (1975). 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. 405. v. Guernsey Cty. See also. This is true whether the challenge is a facial challenge to the statute.. Ford Motor Co. b. Bowers (1960). 3d 184.C. Hanson. Issues involving challenges to the validity of statute or its application. 1992 Ohio App. Addressing Constitutional Issues 1. 10th Dist. 1998). or whether the allegation is that the statute is unconstitutional as applied. Withdrawal by respondent (1) Although respondent has the right to withdraw from his or her own hearing. Inc. 119. Ohio Liquor Control Comm. the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the non-moving party. 68 Ohio St. 1 Ohio App. (1992). Limbach (1994). L. Kinney (1986). 197-99.C. 35 Ohio St. 24 Ohio St. R. 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. 1991 Ohio App. Bd. (2) In at least one case.S. (6th Dist. of South-Western City Schools v. 548)). 131 Ohio App. v. MCI Telecommunications Corp. 91AP-1493. As creatures of statute. syllabus. at 231. See In the Matter of: Hal Artz Lincoln-Mercury. b. 3d 545. VFW Post 1238 Bellevue v. a. 3d 591.06. 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. Bd. 65 Ohio St. at *24-25. 3d 10. 595-96. of Edn. 2d 128.

Issues involving the construction of a statute. Jackson (10th Dist. of Ohio (1993). however. 42 Ohio St. (2) When “a specialized statutory [administrative] remedy is available in the form of an adjudicatory hearing. Kosydar. 3d 229. 185. 35 Ohio St. 39 Ohio App. Cleveland Gear Co. Limbach (1988).” Arbor Health Care Co. Austintown Assoc. nothing precludes an agency from applying the constitution to properly construe a statute that is at issue. Collateral challenges to the validity of a statute and/or its application. Hodgson v. Although an agency is precluded from passing upon the constitutional validity of a statute or its application. 186. rather than supplement. the legislative scheme ordinarily should not be allowed. Buckeye Quality Care Centers v. 48 Ohio App. a. 66 Ohio St. v. (1994).C. 3d 183. State of Ohio ex 45 . 417. 349 F. injunctive relief. 1987). 247.D. a suit seeking a declaration of rights which would bypass. Ct. Due deference is ordinarily given to such interpretations. State Med. Declaratory judgment (1) Where the relief sought rests solely on a constitutional claim.C. Facial constitutional challenges may be raised for the first time on appeal because they are not dependent on a factual record. Public Util. 3d 619. (4) Where a specialized statutory remedy is available in the form of an adjudicatory hearing. 1988). rather than supplement. 621. v. R.choice. 154 Ohio St. 1125. and 42 U. (S. 3d 244. 39 Ohio App. 3. a. (1975). 1. Ohio 1972). Arbor Health Care Co. 3d 150. the legislative scheme ordinarily is not permissible. Comm. 2d 263. v. b.03).C. Pons v. 2721. 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. 129. Fletcher (10th Dist. State ex rel. Jackson (10th Dist. b.S. 70 Ohio St. Lieux v. declaratory relief has been allowed because the administrative agency could not provide the relief sought. Office of Consumer's Counsel v. (3) The decision whether to allow a declaratory judgment collateral challenge lies within the sound discretion of the trial court. Bd. Herrick v.47(A) (legislative intent is that statutes comply with constitutional requirements). 412. Driscoll v. 1133. c. 154. Supp. 44 Ohio St. 2. 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. Hamilton Mun. a suit seeking a declaration of rights that would bypass. would be to raise the issue at hearing to ensure proper development of the record. 3d 183. 1987). Westlake (1951). 2d 128. § 1983.

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

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

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

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

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

and the agency can issue an order following deliberations on the case. Implied remand a. R. 72.g. 119. D. 2. Public Emp. 1998-Ohio-380. R.. Agencies sometimes remand cases to the hearing examiner for the taking of additional evidence. OAC 4723-16-12 (Nursing Board). 1981) 3 Ohio App. 211-212. Ohio Motor Vehicle Dealers Board.. some agencies conduct hearings without a hearing examiner. 2.2d 625 (9th Dist. 9. 1992) 2. Some agencies permit parties to personally appear before the agency prior to the agency’s deliberations. 106 Ohio App. depending on agency rules. Western Reserve Psychiatric Habilitation Center. 3d 235.C. R.1.09.2d 833 (10th Dist. Jonathan R. Retirement Bd. Util. 82 Ohio St. agencies to appoint a hearing examiner to conduct the hearing. R. 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.E. (1918). Haehn v. See. OAC 4731-31-15(G) (Medical Board). 99 Ohio St. Comm. 567. (1) Generally. See also. Failure to Hold Hearing Prior to Expiration of License/Surrender of License 1. 2. State ex rel. no report and recommendation is needed. The party may appear on his or her own or through counsel. C. or the introduction of further documentary evidence. Washington v. paragraph two of the syllabus. 3d 218.C. B. Personal Appearances Before the Agency 1. Wise v. e. In such cases. 119. Pub. E. the agency may order the taking of additional testimony. Mallory v. 119. Accordingly. para.. 53 .091. 3. Ohio State Racing Commission.E. (9th Dist.C. an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute. 83 Ohio App. 3d 208. 666 N. Administrative powers are only implied when clearly necessary to effect an express power. 70. Remand to Hearing Examiner 1. 1995).C. Prior to issuance of a final order.09 permits. 3d 562. 614 N. 9. but does not require. 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. 119. Green v. Id. 246-47. Taking of Additional Evidence 1. para.

. 2000-Ohio-1812. 2000). 10th Dist. 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. 3rd Dist. Retirement Bd.’” State ex rel. 326-27. 2. The agency’s order must be “based on such report. A. 82 Ohio St. No. para. (10th Dist. LEXIS 6035. No. (10th Dist. 47). this language does not necessarily require agencies to read the entire transcript of the proceeding. 9. 54 . 2004-Ohio-2981. recognized the power of agencies to remand cases to the examiner. Ohio Veterinary Licensing Bd. 1981). Ford Motor Co. v.09 provides that an agency’s order must be “based on” the evidence. Bentley & Sons Co. Bd. 3d 555. 3 Ohio App.. Ohio State Dental Board (9th Dist. An agency’s decision to remand to the examiner is an interlocutory. (3) Power will not be implied when the agency has the means to decide the issue within the confines of its express authority. Mallory v. 33 Ohio App..” R. No. 93APE09-1216. at *5-6 (holding that remand was an interlocutory decision. 1986). and additional testimony and evidence. Inc. Ohio State Racing Comm. 1991 Ohio App. No.C. McCall v. Ohio Veterinary Med. 91AP-354. Zak v Ohio State Dental Bd. at *5-6. Courts have implicitly. c. Marion Ob/Gyn v. 1998-Ohio-380 (quoting State ex rel. b. These “implied powers .. American Isuzu Motors. at *7. 96 Ohio St. No. a. non-appealable order. (1st Dist. Lies v. 10th Dist. deliberate. if not explicitly. 15-2000-13. 82692. Urella v. Pierce (1917). State of Ohio Med. 2 Ohio App. 3d 324. e. are limited to those that ‘may reasonably be necessary to make the express power effective. 3d 522.(2) Such implied power can be no greater than the express power and must be exercised subject to the same express power limitations. Inc. 3d 235. at ¶ 98 (remand to consider previously excluded testimony). Public Emp. Several courts have held that while R. 10th Dist. . 560 (remand for briefing of legal issue).. 3d 204. Vonderwell v. d. F. Inc.. . Mallory. at ¶ 9 (remand for purpose of determining attorney’s fees). Bd. v. Chapman v. 44. LEXIS 3665. in the absence of any showing that the findings of fact are defective. 2. 8th Dist. 119. Green. State Med. 1993 Ohio App. Bd. 119. Slain Ford. Some agency rules provide that the agency may remand a case back to a hearing examiner for the purpose of taking additional evidence. 118 Ohio App. Consideration of the Record 1. or objections of the parties.. recommendation. transcript of testimony and evidence. and independent conclusions about the issues”). 525 (remand to consider additional evidence). 1997). not a final order). LEXIS 3665. b. 2006-Ohio-3315. 1991 Ohio App. 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. 1998-Ohio-380. See Lally v. 3d at 220.09. 137 Ohio App. Slain Ford.C. 246-47. 05AP1137.

85 Ohio App. Ohio Veterinary Licensing Bd. the hearing examiner’s R&R is deemed accepted.23(D) (board must issue order within 60 days or within any time period agreed upon by the party). modify.g. or objections of the parties. d. Ohio Veterinary Med. it should indicate in its order that the R&R is “confirmed and approved. 2 Ohio App. R..C. 2000-Ohio-1812 (board did not read entire transcript)..” b. Bd. 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.C.3. c. 4.” These may be “magic words” that should be used in all orders that accept the recommendation of a hearing examiner. and any additional testimony and evidence. Accordingly. (1st Dist. e. 1990). 398. Agency Review of the Report and Recommendation of the Hearing Examiner 1. based on such report. Approving the Report and Recommendation a. if the agency accepts the recommendations of the hearing examiner without any determination to modify the same. to make its own findings. 5. and to avoid charges that it rubber-stamped the recommendations of the hearing examiner. 119. 210 (unclear whether each board member reviewed entire record). The Agency is permitted to independently review the evidence. 67 Ohio App. shall have the same effect as if such hearing had been conducted by the agency. or disapprove the recommendation of the examiner. R. See. No. and should not be modified upon the issuance of the final agency order. 119. including the entire transcript. if the agency fails to act within a certain time period from the issuance of the R&R. b. transcript of testimony and evidence. R. R.09 provides that no recommendation shall be final “until confirmed and approved by the agency as indicated by the order entered in its record. 3rd Dist. (10th Dist. Some agencies’ statutes provide time limits for the issuance of orders following a recommendation.g. “[T]he order of the agency. See. 2. Under some statutes. Best practice is for the agency to review the entire record of the proceedings.. Failure to act promptly on a Report and Recommendation a. (10th Dist. See Lies v. 1993). 4731. 4517. The Agency may approve. Ohio Rehabilitation Services Comm. 3d 701. 713-14. 3. 3d 391.” Miller v.C. e. G.55. 3d 204. recommendation. and draw its own conclusions from the evidence. Modifying or disapproving the recommendation of the examiner 55 . 1981). In re Certificate of Need Application of Providence Hosp. Vonderwell v.09.C. 15-2000-13.

of Emp. Ohio Dept. 70 Ohio St. 3d 289. LEXIS 22065 (Mar. (1987). 293. 3d 1. This is just as important even if the case is not appealed. 3d 77. an administrative agency. 398. the Supreme Court noted that the agency did not indicate that it examined the record. at ¶ 17. Serv. (1994). (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. In re Certificate of Need Application of Providence Hosp. 1999 U. (1994). 67 Ohio App. The Agency may only take actions or impose penalties authorized by law. it must include in the record the reasons for such modification or disapproval. Although the agency has the authority to make de novo findings of fact.09. (1994). Ohio Bur. 3d at 2. of Edn. No. Serv. and what the agency considered to be facts supported by the record. Crow v. may make de novo findings of fact and conclusions of law. Amherst Village Bd. 10th Dist. Trout v. Further. when considering a report and recommendation under 119. 29 Ohio App. 52 Ohio St. 3. See Brown v. 2003-Ohio-987. City of Springfield. it should be able to demonstrate the conclusions it draws from the facts. 2. of Emp. S. (10th Dist. Sheriff (1990). In the Brown case. 79. 3d at 2. 9..a. Ohio Bur. 119. as the ultimate factfinder. d. 1985). e. the Supreme Court of Ohio has held that where the findings are based upon assessments of credibility driven by observance of witnesses’ demeanor. of Edn. 02AP-783.09. as the agency may be called upon in subsequent hearings to apply the facts in a similar fashion. 70 Ohio St. R. 2. If the converse is true. If the agency modifies or disapproves the recommendation of the examiner. Ohio Bur. the agency should afford due deference to the findings of the examiner. Dist. Ohio courts have indicated that. Brown v. c. and the reasons why it relied on certain facts as opposed to others. 3d 391. then the mitigating factors warranting the lesser penalty should be specifically set forth. 70 Ohio St. 3d 40). (10th Dist. but did not accept the recommendation. Disciplinary Actions 1. (citing Jones v. C-3-96-010. Serv. 1999) at *21-22. para. Ohio No. then the exacerbating factors should be stated with particularity. Serv. 1990). of Emp. The agency should be able to both articulate and demonstrate how it is applying the law to the case before it. b.D. the agency should give due deference to the recommendations of the hearing examiner. Id. of Emp. and further adopted the findings of fact. Suspensions 56 . H. 32 Ohio St.S. A reviewing court will need to be able to determine what the agency relied upon. Franklin Cty. If the penalty is to be less than that proposed by the hearing examiner. Agency modifying the penalty (1) Per Brown v. Ohio Bur. Blinn v. Graziano v.C.

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

09.12. R. 2. R. certified as an exact reproduction by the officer responsible for keeping the original. The Notice of Appeal shall also be filed by the appellant with the [appropriate court of common pleas]. Ohio Dept.09. 2007Ohio-2877. 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]. and should attach a copy of the same to its final order. The agency must maintain the original order in its files. para. 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 119.09. The order modifying or disapproving the Report and Recommendation must state the reasons for the modification or disapproval. 10. para. 119. 119. 3d 47. R. The order must include or have attached a statement of the time and method by which an appeal may be perfected.12 of the Ohio Revised Code.C. Content and Issuance of the Order 1.C. para. 5. set forth the specific grounds of the party’s appeal beyond the statement that the agency’s order is not supported by reliable.09. of Commerce. 119. setting forth the order appealed from and stating that the agency’s order is not supported by reliable.C. A certified copy is a duplicate of an original. and substantial evidence and is not in accordance with law. probative.09. Language. Service of the Order 1. b. The order must be entered on the agency’s journal. para. para. 119. but need not. 119. of Commerce. R. 10. that tracks the language of R. The agency may incorporate by reference the entire Report and Recommendation. 2007-Ohio-2877.C. was found sufficient to put a party on notice as to how to file an appeal of an agency’s order. Hughes v.09. and substantial evidence and is not in accordance with law. b. a. The order approving the Report and Recommendation should state that the recommendation is “confirmed and approved. 3. 114 Ohio St.C. 10. 119. Hughes v.C.C. 119.” R. J. The notice of appeal may. probative. The party must be served with a certified copy of the order. 9. R. 9. a. 58 . 4. at ¶ 14-15. at ¶ 16. Ohio Dept.I. 10. para.

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

the general rule is that mutuality of parties is a requisite to collateral estoppel. even though each action relates to the same subject matter. As a general principle. OEA/NEA v. e. and (4) the issue must have been identical to the issue involved in the prior suit. (1) “Ordinarily.. Moitie (1981).S. 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. from subsequently relitigating the identical issue raised in the prior action. (1998). the doctrine of collateral estoppel may be used to bar litigation of issues in a second administrative proceeding. 2 Ohio St. must be preclusive upon both. 2d 133. 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. or a person in privity with him. 452 U. State Emp. 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. b. or issue preclusion. Lindley (1980). collateral estoppel operates only where all of the parties to the present proceeding were bound by the prior judgment. in order to preclude either party from relitigating an issue.” Superior's Brand Meats. c. A prior judgment estops a party.a. 398. (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue. Goodson v. 62 Ohio St. 81 Ohio St. In order to prevail on the defense of collateral estoppel. A judgment. Stores. d. Ft. Inc. 395. v. v. 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. Mutality of the parties (1) In Ohio. McDonough Power Equip. 3d 193. Inc. A final. (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment. one of the primary considerations is the identity of the evidence necessary to sustain the action. Res judicata/collateral estoppel applies to administrative decisions of a judicial nature. syllabus. (1983). To determine whether a second action was barred by this rule of law. syllabus. 60 . Relations Bd. 394. 3d 392. Frye Teachers Assn. Federated Dept.

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

Parents of Students Attending Edge Academy of Akron & Ida B. State ex rel. 119. State Emp.C. 1963). 62 Ohio St. 3d 113.01(G). 119. A bank that receives notice pursuant to R. Osborn. ”Person” is defined as “a person. 3d 99.C.” R. to appeal an order by the superintendent of banks granting the application. c. 3rd Dist. Ratchford (10th Dist. In re Job Abolishment of Jenkins (10th Dist. 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. Haig v. 1111..01. 21 Ohio App.C. Jackson (1976). 47-50. 1991). (1938).12 (1) Neither the state. 510. State ex rel.C. 46 Ohio St. Bd. e. Bd. (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. (1992). Collyer v. 120 Ohio App. 2d 91. firm. corporation. rev’d on other grounds.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. 3d 48. Bank v. Hamilton Cty. Broadview Developmental Ctr. 1970). under R. 2002-Ohio-4235.C. of Mental Retardation & Developmental Disabilities v. (2) When the State acts merely as an adjudicator. 347. of Edn.C.12. 119. Compare Seneca County Bd. Clermont Natl.C. 119. 119. v. of Edn. Harrison v. Wells Community School. Public Utilities Comm. paragraph one of the syllabus. Blue Cross of Northeast Ohio v. 385. 46 Ohio St. the State is not a proper party to an appeal pursuant to 119. 49. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party. 119. 3d 147. Osborn v. 01AP-786.” R. Unless a statute provides otherwise. 74 Ohio App. 114. of Admin. Edwards (10th Dist. Relations Bd. 47. Professionals Guild of Ohio (1989). Serv.12. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency. and has standing. (10th Dist. nor its director was a “party” within the meaning of R. Akron City School Dist. 10th Dist. No. a state agency.C. Siesel. v. 2d 41. 1984). 346. of Mental Retardation & Developmental Disabilities v.01(G). 54 Ohio St. 13-0215. Government entities as parties for purposes of R. 387. 134 Ohio St. association.C.01(F). 62 . 2d 41. 102. B. or partnership. without an independent interest in the matter. 150-51. 46 Ohio St. Dept. d. Chapter 119). 3d 507. No. Ohio State Bd. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R. (1990).12. 27 Ohio App. 119. Other Parties 1.b. 2002-Ohio-1318.

12. 10th Dist. 189 Ohio App.12. para. 4. (ii) The Seventh District Court of Appeals disagreed. 2011-Ohio-2485. 119. 3. probative. c. 119. 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. finding that “any requirement to make a written statement of the standard of review in the 63 . 6. No. 1974 Ohio App.C. 76AP-423. 10th Dist. probative. para. State Bd. para.12. of Edn.12. Ohio Dept. Setting forth the order appealed from: attach OR sufficiently describe. and substantial evidence and is not in accordance with law. (2) The party need not attach a copy of the order as long as the appellant sufficiently describes the order appealed from. No. No. Ohio State Univ. (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. and substantial evidence. but need not set forth the specific grounds of the party’s appeal. 10th Dist. R.C. 10AP-421. The notice of appeal must set forth the order appealed from and state that the order is not supported by reliable. as they are not parties under R. 119.C.P. Content of Notice of Appeal a. and substantial evidence and is not in accordance with law. 1976 Ohio App. Notice of Appeal 1. 2005) at ¶ 10. probative. C. LEXIS 8150.. Community residents had no right to appeal.12. 10th Dist. 3d 678. and is not in accordance with law. See Foreman v. at *6.C. 2010-Ohio-4731. LEXIS 3041. pursuant to R. Franklin C. Pinkney v. beyond the statement that the agency’s order is not supported by reliable. R.” Hunnewell v. 119. at ¶ 12. 05AP-511 (Dec. at *4-5. 05CVF066560 (June 15. Statement of grounds/required language (1) The notice of appeal must state that the order is not supported by reliable. of Nursing. 4. of Industrial Relations. (2) The notice may. Ferguson-Ramos. 2006). Court of Common Pleas. 119. Only the local school board could bring the appeal. a certificate of plan approval granted to a real estate developer for the construction of a mall complex. Johnson v. No. No. Ohio State Bd. b. at ¶ 6. Siegler v.2.. R.C. 74AP-231. Barnes v. (1) Attaching a copy of the order satisfies the requirement to set “forth the order appealed. 4. Lucas Cty.

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.C. 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. of Pharmacy v. 7th Dist. The statute now provides that. Deaconess Hosp. County of place of business or county of residence 64 . 119. of Commerce. para. Under R. 7th Dist. 2009. Chapter 2505 governs the procedure for administrative appeals.. 2011-Ohio-3172. Form of the Notice of Appeal a. 119.12 governs appeals taken pursuant to R. probative and substantial evidence and/or is not in accordance with law. v. 11AP-259. No. 12 O. and a copy with the court. 2. Evankovich.2d 1113. the notice that is filed may be either the original notice or a copy of the original notice. ¶ 43-44.Ohio-95. of Job and Family Services.E. ruled in accordance with the Tenth District Court of Appeals. 3d 471. 389 N. 11 MA 39. 58 Ohio St.notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction. D.. 2012). Warren County Regional Planning Comm. 2505.C. 10 MA 153. 119. Which court of common pleas? a. 12-CVF-1835 (Apr.2d 202. Zidian v Dept.12. Ohio Dept.P. the notice of appeal must be filed with the agency and with a court of common pleas. of Job & Family Services. But see Welsh Development Co. 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. No. State of Ohio Bd. Franklin C. 2012. 10th Dist. No. The notice of appeal need not contain the language specified by R. 204. 2011-Ohio-1604 (appeal under R.3d 198. Dudukovich v.C. Effective May 8.C. Chapter 119.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). Inc.C.” R. 2. 11 MA 39. Lorain Metropolitan Housing Authority (1979).12.v.O. Ohio Dept. No. Russell v. 4. 7th Dist.12 (that “the agency’s order is not supported by reliable. Zidian v Dept. “[i]n filing a notice of appeal with the agency or court. probative. Where to File R. 2012-Ohio1499.C. R. at ¶ 34. 119. of Commerce. 119.C. the General Assembly revised R. ¶ 39. 10. No. 128 Ohio St.C. 2012-Ohio-1499.12 to remove the requirement to file the original notice of appeal with the agency. 1.

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

The actual mailing date of the order is the event that triggers the appeal period.C. LEXIS 744. 2007-Ohio-2972. Ohio State Med. Suspension (Stay) of Agency’s Order on Appeal 1. at ¶ 14. 8th Dist.. 4th Dist. Hughes v. No. E. ¶ 28 (R. 1993). 2012-Ohio-2908. 24. No. Chapter 2505 governs the manner for filing appeals under R. 114 Ohio St. 2002-Ohio-5986. at ¶ 6. 114 Ohio Misc. 2000). App. Bd. Geroc v. Morrison v. A stay of execution of the agency’s order pending appeal is not automatic. 2007-Ohio-2877.C. 103 Ohio App. 04AP-748. Ball. Ohio Liquor Control Comm. 10th Dist. must be filed within 15 days of the mailing of the agency’s order. Mansfield. 110. Granting of suspension of the order 66 . Nibert. Bd. 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. Ohio Dept. 4. Serv.12. of Commerce. 189. b. Arndt v. v. 119.42(C).12. Pursuant to R. 2. Ohio Veterinary Med.12 is a condition precedent to the running of the time for appeal. 2505. of Admin. 2d 48. 119.P. Ohio Dept. 2011 CA 0085. F. 2nd Dist. Bailey v.C. Hiddens. Scott (1955). v. 103. 1987). both notices of appeal. of Rehabilitation & Correction (1998). 511. No. 21487. Ohio Dept. Deaconess Hosp. a. 01CA13. LEXIS 5647 (Nov. Dickson v. one to the agency and the other to the court.. 3d 47. 3. 3d 100. (Franklin C. 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. Harrison v. of Job & Family Services. Williams. 5. No. Liebold v. Proper service pursuant to R. 02AP-1019. 11AP-259. at ¶ 13. 2012-Ohio-95. 3d 317. No. Ohio Dept. 1993 Ohio App.C. 10th Dist. Evidence a.C. 5th Dist. paragraph one of the syllabus. 10th Dist.C. The filing of an appeal does not automatically operate to suspend or stay the agency’s order. R. 3d at 102. Time for Filing the Notice of Appeal 1. The court held that R. (8th Dist. (10th Dist.c. 72 Ohio Law Abs.12. State v. 3d 192. 84 Ohio St. 37 Ohio App. Colonial. 2. 3. 321. 2003-Ohio-3121. Ohio Dept.12 deprives the court of jurisdiction over the appeal and mandates dismissal. 2006-Ohio-3436.07) Nibert v. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R.C. 1955 Ohio App. of Ins.C. Yeager v. 119. 51. para. 4. 1995). para. 119. 84 Ohio St. R. 195. No. Inc.

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

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

License renewal and suspended agency orders a. 6. 1991). or upon a final decision of the common pleas court. para. Haddix.(2) Generally where a timely appeal is taken from a trial court. City of Dayton v. No.C.12. LEXIS 10933. 1987 Ohio App.12. (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. R.12. Expiration of license shall not affect the appeal. A license renewal cannot be denied by reason of an agency order that is on appeal and has been suspended by the court. 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. R. 6. 119. The final adjudication order may apply to a license that was renewed during the appeal (regardless of stay/suspension of agency order). of Ohio.121. 119.C. 2nd Dist. R. 69 . Nos.C. para. 84AP-225 & 84AP-362. LEXIS 5639. R. 9951. Plotnick v. whichever occurs first.12. (3) However. Exceptions (1) Liquor Control Commission. (c) The General Assembly set a definite time period for the duration of a suspension of the agency’s order. (b) The court is required to enter judgment within six months of filing of the record. Bd. 119. at *6. 1984 Ohio App. para. State Med. (i) The stay does not continue on appeal to court of appeals.C. 265. 5.C. b. Ohio State Dental Board (7th Dist. 3d 262. 119. ¶ 8. b. at *24-25. 119. and did not intend for the limit to be evaded with successive stays. R. 10th Dist. Giovanetti v. c. 63 Ohio App. (b) Fifteen-month limitation on suspension of agency order is constitutional and does not violate due process or equal protection rights. 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. any trial court order suspending an agency order will remain in effect until the appellate process is complete.

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

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

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

State ex rel. at *14. No. 21 Ohio App. 3d at 227. Ohio Dept. untimely request for hearing. Sinha v. McGee v. 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. 2d 363. Comm. R. is mandatory. not on the merits. 365. 72 Ohio St. (4) The court may permit the agency to correct a defect by filing omitted evidence. 119. 3d 153 at 155. Geroc v. No. e. judgment for the party. (2) Additional time may be granted. (Court found that when the agency’s action was based upon procedure.McCauley v. of Agriculture. 21 Ohio App. 4th Dist. 10th Dist. Jennemen. e. 3d 225 at 227-28. See Jordan v. 7th Dist. para. but filed them after they were approved and prior to the court’s decision. 1987 Ohio App. Bd. 1999 Ohio App. LEXIS 6439. Robinson (1981). 1996 Ohio App. (1) No finding for party in absence of a showing of prejudice. (b) Agency must show it has made substantial effort to comply. 24 Ohio St. Jennemen v. I. of Nursing Edn. 95APE09-1239. d. Where the agency fails to file any record within the time allowed. LEXIS 863. (2) For res judicata purposes. 1985). the agency is therefore not barred by res judicata in a subsequent action. (1st Dist. 37 Ohio App. judgment based upon a defect in the record on appeal is procedural. (1) No prejudice requirement. (a) Not to exceed 30 days. Arlow v.. Noble County. (8th Dist. 3d 153 at 155.C.g. v. and Nurse Registration. at *4. See Arlow. (c) When the agency failed to file minutes prior to the deadline because the minutes had not been transcribed and approved by that time. (1986). LEXIS 465. 532. Mandatory judgment if complete failure to file record by due date. 114. 3d 111.12. Serv. 24 Ohio St. 234. of Chiropractic Examiners. Crockett v. Ohio Rehab. there was no prejudice. upon motion. Connor (1995). Inc. Williams Ford Sales. Record on Appeal/Submission of Additional Evidence 75 . 67 Ohio St. 1993). Ohio Veterinary Med. 9. f. items omitted were unlikely to have altered the trial court’s decision on appeal). 3d 192 at 197. 3d 301. State Bd. Prejudice required if the record was filed with a wrong or omitted case number. No. of Psychology (10th Dist. Bd. State ex rel. 82 Ohio App. 305. Ohio State Bd. 1987). at * 4. Ohio St.

and that a new trial would probably produce a different result. 1992). Ohio State Bd. 2003-Ohio-3806.12. of Registration for Professional Engineers & Surveyors (9th Dist. at ¶ 36. Newly discovered evidence and Civil Rule 60 (B)(2) (1) Language in R.C. b. The court may grant a request for the admission of additional evidence when it is satisfied that such additional evidence is: a. 67 Ohio App. 119. 540 (citations omitted). (2) In interpreting Civ. that is. 3d 33. 2003-Ohio-3806. 3.” Steckler v. 3d at 502. Ohio Bur. 1990). (b) that the movant exercised due diligence. c. then the trial court may also determine the constitutionality of the statute as applied. Ohio State Bd. Newly discovered evidence a. 502. Duryee (9th Dist. courts have held that the moving party has the burden of demonstrating: (a) that the evidence was actually “newly discovered”. para. of Motor Vehicles (9th Dist. 2. 82215. at ¶ 36. 121 Ohio App. Clark v. 119. Duryee.C. it must have been discovered subsequent to the trial.12.12 relating to newly discovered evidence is analogous to language in Civil Rule 60(B)(2). and (c) that the evidence is material. New evidence of constitutional issues (1) If an appellant presents evidence before a state agency concerning the constitutionality of a statute as applied. If the appellant does not present such evidence before the agency. of Psychology (8th Dist. 3d 531. 101 Ohio App. “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. and b. 1995).” Holden v. CVS/Pharmacy #3131 v. 1997). R. Newly discovered. Unless otherwise provided by law. 3d 495. 3d 278. however. Ohio State Bd. State Bd. 8th Dist. Diversified Benefit Plans Agency v. 288. not merely impeaching or cumulative. 38. 11. 60(B)(2). newly discovered evidence does not refer to newly created evidence.1. he or she cannot then raise the constitutional issue by introducing new evidence before the trial court unless the evidence is newly 76 . 119. of Pharmacy. CVS/Pharmacy #3131 v. cases interpreting Rule 60(B)(2) may therefore be helpful in interpreting R. the court is confined to the record as certified to it by the agency. 83 Ohio App. Could not with reasonable diligence have been ascertained prior to the hearing before the agency. 101 Ohio App.C. of Pharmacy. R. No.

6th Dist.discovered and was not ascertainable with reasonable diligence prior to the hearing before the agency. 12th Dist. 2012-Ohio-996. Definition a. No. The United States Supreme Court in McKart v. No. the party must exhaust the available avenues of administrative relief through administrative appeal. v. 111 Ohio App. of Job & Family Servs. 1 Ohio App. CA2011-05-039. of Transp. U. 3d 10. Failure to timely request a hearing does not preclude a court's consideration of a due process violation. 1996). 416-17 (must exhaust administrative remedies prior to mandamus action). 3d 795. L-03-1089. the respondent. 132 Ohio St. Exhaustion of Administrative Remedies Doctrine 1. 2. at *5. 1998 Ohio App. Zieverink v. LEXIS 2964. See also. (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 ¶ 21. In re Henneke. Ohio Liquor Control Comm. Lieux v. Dept. 113 Ohio App. No. 2012-Ohio-2187.. 63 Ohio St. 16895. The doctrine of exhaustion of administrative remedies mandates that when an administrative remedy is provided by statute. a party challenging the constitutionality of a statute as applied must raise the challenge at the first available opportunity during the administrative proceedings. No. 2003-Ohio-7251. Crawford-Cole v. 10th Dist. 185. relief must be sought by exhausting this remedy before the courts will act. 193.S. 879. Educational Serv. ¶ 22. Covell v. City of Brook Park (1980). 119..3d 167. 2012-Ohio-3506. State ex rel. c. 11. 3d 874. 2nd Dist. provided the following reasons for the requirement: (1) the need for the litigant to allow the agency to build a factual record. Ackerman (1st Dist. Westlake (1951). Ohio Dept. 29 (prior to seeking court action in an administrative matter. Because the statute in question was part of the statutory framework that the board should have applied in its analysis. Inc. No. 12th Dist. 2012-Ohio-2991. 11AP-837. (1969).. 1996). ¶ 65.C. Al-Sadeq Islamic Educational Ctr. Ctr. 2d 26. Lucas Cty. No. Bartec. The state could not have discovered the evidence in time no matter the diligence. b. In re Henneke. See Wymsylo v. Berning v. (2012). 2012-Ohio-996. 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. L-11-1177. City of Toledo v. 395 U. BMV. 154 Ohio St. Noernberg v. by failing to raise the issue as a defense at the administrative hearing. Lucas Cty. Jaber (6th Dist. American Legion Post 0046 Bellevue v. (6th Dist. 412. CA2011-05-039. ¶79. 1981).S. J. at ¶ 5.12. Rationale a. 6th Dist. did not waive the issue on appeal. 77 . 797. In other words.

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

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

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

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

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

711. 2005-CA-86. Conrad (1984). 2004-Ohio-3726. 164 Ohio St. 3d 704. Bainbridge Twp. 63 Ohio St. b. 2006-Ohio4443. 279. 9th Dist. LEXIS 12259. Appellate “hybrid” review (1) The statute directs the common pleas court to function as an appellate court. Crumpler v. Ohio Dept. R. LEXIS 2533.(2) Any other ruling is permitted as long as it is supported by reliable. at *3. Commrs. Conrad. (2) “For example. No.” Herbert v. Bd. 11th Dist. of Liquor Control (1955). State Bd.12. Ohio Veterinary Med. Ohio State Liquor Control Comm. Mathews v. at ¶ 11. as the fact-finder. 18510. 71 Ohio App. OBES. Bd. had the opportunity to observe the demeanor of the witnesses and weigh their credibility. Standard of Review: Common Pleas Court a. 87 Ohio App. Nos. (4th Dist. (2) An appeal to the trial court of an administrative order is not a trial de novo. (4) The reviewing court may reevaluate the credibility of the evidence. 10th Dist. 5. but should simply see if there is credible evidence in the record to support the Board’s finding. 3d 526. para. 63 Ohio St. 13. LEXIS 532. 1991). of Scioto Cty. 11740. 2003-G-2505 and 2003-G-2513. Asad v. of Jobs and Family Services. the court should defer to the determination of the administrative body. 119. 2004-Ohio-3687. No. Due Deference on questions of fact (1) The reviewing court must give due deference to the administrative resolution of evidentiary conflicts. De Novo Review on issues of law (1) The common pleas court conducts a de novo review on issues of law. University 83 . Wells v. (10th Dist. of Edn. with due deference given to the administrative resolution of evidentiary conflicts. Cty. at ¶ 40. 9th Dist. at ¶ 18. when the evidence before the court consists of conflicting testimony of approximately equal weight. 275. Bingham v. See Brown v.. 2d at 111. Licensing Bd. Andrews v. Mitchell v. 1998 Ohio App. State Med.” University of Cincinnati v. 1992 Ohio App. 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. 1993). 91AP-1235. 1984 Ohio App. 2d 108.. 528. of Ohio. No. No. 04AP-46. No. which. 111.C. (2) A de novo review means an appellate court must independently make a determination without giving deference to the lower court’s decision. University of Cincinnati v. (3) A common pleas court in such cases “should not weigh the evidence anew. See also.. Administrator. 5th Dist. 10th Dist. probative and substantial evidence and is in accordance with law. at *6-7. c.

Bureau of Motor Vehicles (5th Dist. Ohio State Liquor Control Comm. the agency cannot appeal. 1 Ohio B. 71 Ohio App..¶ 42. 76 Ohio App. 84 . 10th Dist. the court of appeals is without jurisdiction to review that court’s judgment. 3d 323. 328-29. 63 Ohio St. b. probative and substantial evidence and is in accordance with law. LEXIS 532. of Nursing. 170 Ohio St. rest on improper inferences. Sandusky (1984). Miami-Jacobs Career College v. State Med. 83 Ohio St. 46 Ohio App. (5) A reviewing court should not substitute its judgment for that of an administrative board. it is immaterial that the reviewing court. An agency may appeal from a common pleas court’s review of an agency decision only upon questions of law. 10th Dist. (6) Although the common pleas court should afford due deference to the factual findings of the agency. of Ohio. rule. the agency’s findings are not conclusive. 11AP-174. d. v. A reviewing court has no power to review penalties (1) The Court of Common Pleas may reverse. (10th Dist. (7) As long as the administrative agency’s order is supported by reliable. but. where it is clear that the common pleas court’s judgment was made entirely upon the evidence. (6th Dist. 2d 120. 10th Dist. 1991). Kisil v. A reviewing court has no power to review penalties meted out by the agency. Ladd v. Conrad (1984). Ohio Veterinary Med. 312. or regulation. at ¶ 16. No. a. 3d at 528. Civil Rights Comm. 1980). No. Appeal from the Common Pleas Court to the Court of Appeals 1. vacate or modify. where it makes such a finding. R.” Henry's Cafe. 2011-Ohio6089. State Bd. 1975). Board of Liquor Control (1959). No.. Licensing Bd. vacate or modify an order of an agency unless it finds that the order is supported by reliable. Ohio Liquor Control Comm. 233. 2007Ohio-3210. 9th Dist. Café Napoli Partnership v. Appeals from common pleas court by the agency are limited. 1998-Ohio-181. L. VFW Post 8586 v. 119. Ohio Counselor and Social Worker Bd. 236. 3d 79. Ohio Bd. construction or interpretation of statutes and rules of the agency. 1991). (8) The court must defer to the factual findings unless the findings are internally inconsistent. Farrao v. 06AP-1055. No. when the trial court has made no specific determination as to the meaning of a statute. Westerville City Schools v. State of Ohio.C. 81. Bd. probative and substantial evidence. Inc. Furthermore. 18510. ¶ 14. of Edn.12. Agency may appeal only on questions of law relating to the constitutionality. 3d 30. 1998 Ohio App. 2012-Ohio-1416.of Cincinnati v. 122-23. or are otherwise insupportable. 11AP-544. Bingham v. 34. Griffin v. 2d 108 at 111. it can only affirm and cannot reverse. 319. Rep. if it were the original trier of fact. may have reached a different conclusion. 12 Ohio St. Crumpler v. at *6-7. (10th Dist.. Therefore.

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

119.092). 119.092(F)(1). or local government.39. Moody (1st Dist. R.C. A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits.12.C. 124. R.C. 2. 119. ATTORNEY FEES A. c. (1) NOTE: There is a split of authority concerning the scope of R. syllabus. 119. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R. R.34 (involving removals or reductions for disciplinary reasons). 2003-Ohio2203.C. 152 Ohio App.X. 119. 1.092.C.C.). the First District has held that attorney fees may be recovered after hearings under R.C.092(B)(2)(c). Non-recoverable fees a. 2335. 119. and 2. allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level. R.C. An adjudication hearing was held by the state personnel board of review pursuant to R. which allows a prevailing party on appeal to move the court for attorney fees in accordance with R.C.C. Haghighi v. R. Chapter 119 contains two attorney fee provisions: 1. An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits. 124. 3d 600.C. e.03 (involving discharges or layoffs) and those arising R.092(F)(2) would not bar recovery of fees.092(A)(2).092(F)(4).C. 119.C. state. unless the agency has established a higher hourly rate by rule that is applicable under the circumstances.092(F)(4).092(F)(3).03. Relying on the plain language of R. 119. 119. 124.C.C. The fees of the prevailing eligible party were one hundred dollars or less. “Fees” means reasonable attorney fees. 119. and R. in an amount not to exceed $75 per hour. 119. 119. b. What are “fees”? a.C. Recovery of Attorney Fees by Party Prevailing at Hearing (R. R.092(F)(4) as it pertains to the state personnel board of review.C. R. B.34.C. d. R. 86 . but not R.092(F)(2). 124. An adjudication hearing was held to establish or fix a rate.

Discount Fireworks. 3. at *7-8. shall not be excluded as an eligible party because of its net worth. R. 121 Ohio App. 87 . g..after hearings under R. R. and (4) An employer that employed more than five hundred people at the time the party received notification of the hearing. Auglaize Mercer Community Action Comm. Licensing Bd. 119. 73 Ohio St.092(F)(4). 5th Dist.092 does not permit an eligible prevailing party to file a separate action for fees in common pleas court. the award is not automatic. (3) A sole owner of an unincorporated business. 1992). 1999CA00055.12 b. 1999 Ohio App. 4.C. 78 Ohio App. No. Nos. (3) The Tenth District Court of Appeals has held that all lawful hearings before the SPBR are necessarily in accordance with R. 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. See discussion below re: “prevailing party” under R. 5th Dist. 3d 39. f. Estate of Kirby v. 3d 397. 119. 725. A motion to the agency is the only mechanism for recovering fees. 124. (2) An individual whose net worth exceeded one million dollars at the time he received notification of the hearing. 98CA00025. Ohio Civil Rights Comm. A prevailing party is entitled to attorney fees.C. The Ohio Civil Rights Commission is not an “agency” for purposes of R.092(A)(1). of Common Pleas. Procedure for requesting fees from the agency a.C.C. however.03. 124. Ohio Veterinary Med. An “Eligible party” means a party to an adjudication hearing other than the following: (1) The agency. at *37. An adjudication hearing was held by the state employment relations board pursuant to R. Wilde v.C. 98CA00138. Carruthers v. Stetz. 43. Juvenile Div. LEXIS 4813.C. (1st Dist. Chapter 4117. 3d 723. 1997). 119.C.03 -. R.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.092. Inc. (1995). b. 1999 Ohio App. Who can recover fees: prevailing eligible party? a. or an organization that had a net worth exceeding five million dollars at the time the party received notification of the hearing. LEXIS 3536.C. 119. v. Ct. 401-02. 119. State ex rel. O’Connor (10th Dist. v. Hamilton Cty.

Identify the party. Itemize all fees sought in the requested award. 119. b. 119. Sohi v. R. 3d 414.092(B)(1). and e. 726. and the rate at which the fees were calculated. The agency has the burden to prove the following: (1) that its position in initiating the matter was substantially justified. (1995). the agency may consider the motion. The motion shall do all of the following: a. Reviewed by the examiner or agency (1) The request for attorney fees is reviewed by the hearing examiner who conducted the adjudication hearing. 119. No hearing required. 6. that determination is not subject to review by the agency. Instead. 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. R. the actual time expended. (1st Dist.C. 119.C. State Dental Bd.C. R. 425. 73 Ohio St. (2) that special circumstances make the award unjust.092 requires only a “review” by the referee or examiner who conducted the adjudication hearing. v. This itemization shall include a statement from any attorney who represented the prevailing eligible party that indicates the fees charged.C. Indicate the amount sought as an award. Auglaize Mercer Community Action Comm. R. R.092(B)(3). 1998) 130 Ohio App. 7. Ohio Civil Rights Comm. 3d 723. b. (3) If the determination is made by the hearing examiner or referee. (2) If there was no hearing examiner.092 does not require a hearing on the motion for attorney fees. State ex rel.c. Include a statement that the agency's position in initiating the matter in controversy was not substantially justified.C. or 88 . Burden on the agency a. Indicate that the party is the prevailing eligible party and is entitled to receive an award of compensation for fees. 5. Consideration of the motion for fees a. d.092(B)(2). 119. c.

06 and 119. Id. matter on which action is brought and issue is joined and in relation to which.e. 8. and finds improvement in deficiencies. as found by the court of appeals. Substantially justified (1) Whether the initiation of the action was substantially justified is evaluated at the time of initiating the action. of Health v. Sowald. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. Initiating action (1) “Initiate” means to commence an action. State ex rel. (2) Generally. b.C.12’s provision for attorney fees. 65 Ohio St. Moreover. Denial or reduction of fees requested 89 . if issue be one of fact..092(B)(2).(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. b. 1992-Ohio-1. (2) See cases below interpreting “substantially justified” language in R. not its initiation. 342. issuance of the notice of opportunity for hearing. 1992-Ohio-1. Sowald. 1992-Ohio-1. 119. Decision on the motion for fees a. Merits of the motion: was the agency “substantially justified” in initiating the action? a. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation. Sowald. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. 119. Ohio Dept. 3d 338. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100. (3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing.C. (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. testimony is taken. R. not continue a proceeding that has already begun. i.C. at 342-43. 119.07. (2) Whether the position of the agency in initiating the matter was substantially justified. 9.

R.C. Per R. d. (2) Must include specific information listed in R. 119. b.C.C. 1998) 130 Ohio App. 133 Ohio App. Sohi v. 425. 3d 465. Filing and service (1) Determination must be entered in the record. (1) To be filed October 1 in the fiscal year following the fiscal year covered by the report. the award is treated as a judgment under R. Reasons or bases for the findings and conclusions.(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. State Dental Bd. Appeal to common pleas court under R. Gladieux v. R. c.C. d. Eligible party appeal 90 . 119. R. (10th Dist. 3d 414. except no interest is paid. 119.092(E).092(B)(2). 10. 119. 474.092(B)(2)(b). (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. 11.C. May be paid by agency from any funds available for such compensation.C.092. Findings and conclusions underlying the decision. 119. or special circumstances make an award unjust. if any. 119. 1999). (1st Dist. and Amount of the award. Med. a. a. 119. Payment of award a.C.C. Ohio St. not the board. R. Bd.092(B)(2)(a). (2) Copy must be mailed to the prevailing eligible party.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. 119.092(E). the decision as to fees must be in writing and must state: (1) (2) (3) (4) Whether an award has been granted. c.092(B)(2)(c). If no funds are available. because appeals are decided by the common pleas court. R. (b) If the fees do not exceed $100.C. Chapter 2743.092(D). The agency must file a report to be filed with the general assembly.

119.092(C).. 1. 119. (1) The court may modify the decision of the examiner or the agency only if the failure to grant. (2) Decision is final and not appealable. 119. R. 119.(1) May appeal denial or reduction of award. 3d 556. b. 119.12 for appeals.C.092(C). 119.39 a. 5. at ¶10.C. R. R. Licensing Bd. Statutory framework: R.C.12 provides that the court shall award compensation for fees to a prevailing party. Ohio Veterinary Med. 119. “Prevailing party” 91 . R. 2. not the agency itself. This attorney fee provision applies only to appeals brought pursuant to R. (2) The agency’s appeal would be filed in the manner specified by R. No. 4.C. R. C. 119.092(C).39 sets forth general rules governing the award of attorney fees in actions against the state. 119.C. 2335. in accordance with R. 3.39. R. c.C. The agency must file a certified record as required in R.12. 10th Dist. 558. (2) he is financially eligible.12. 78 Ohio App. or calculation involved an abuse of discretion. Harrison v. and (3) the state’s position in initiating the matter in controversy was not substantially justified. 02AP-955. (2) File in same court in which the party would appeal agency’s adjudication order.092(C).C. d. 2335.C. 2335. (3) A copy of the decision must be certified to the agency and the eligible party.C. Ability to receive fees: prevailing eligible party a.C. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order. Common pleas court decision.12.C. Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee. R. 2335. R. R.39(B) provides that an individual may recover attorney fees if (1) he prevails. 119.C.C. In re Williams (1992).C. 2003Ohio-3816.092(C).

R. c. 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. (4) A sole owner of an unincorporated business that employed.39(A)(2). to qualify as the prevailing party. The motion must be filed within 30 days of the final judgment by the reviewing court in the action or appeal. R. 2335. i. 119. 2335. dismissal of all charges without remand. corporation.. The motion may request both fees incurred in appeal and in the administrative hearing. (2) An individual whose net worth exceeded one million dollars at the time the action or appeal was filed.e. more than five hundred persons at the time the action or appeal was filed. Korn v. or a partnership.(1) A party need not attain a complete victory. 71 Ohio App.” Korn v. b. corporation. or organization that employed. association. other than the following: (1) The state. Motion for fees a. (10th Dist. State Medical Bd.C. The court must determine: (1) Whether the position of the state in initiating the matter in controversy was substantially justified. 71 Ohio App. R. 487. 2335..C. 3d 483 at 487. 3d 483 at 487.39(D). or organization that had. See above. 7. association.C. b.39(B)(1). (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. 1991). (3) The court may take the partial victory into account when determining the amount of the fees to be awarded. State Medical Bd. Korn v. Same requirements for content of motion as in R. State Medical Bd. a net worth exceeding five million dollars at the time the action or appeal was filed. 71 Ohio App.092. 3d 483. (3) A sole owner of an unincorporated business that had. or a partnership. 92 . “Eligible party” means a party to an action or appeal involving the state.. 6. Court review a.C.

The order must be included in the record of the appeal. R. 2335. 2335.39(B)(2)(a). The clerk of court shall mail a certified copy to the state and the prevailing eligible party. Burden of proof (1) The state has the burden of proving that its position in initiating the matter in controversy was substantially justified.39(B)(2). If a reasonable person. b. b. d. (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. The State’s failure to prevail on the merits does not create a presumption that its position was not substantially justified.C.C. 8. 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. or (b) special circumstances make an award unjust. 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. if any e. (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. c. 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. 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 ***. Denial of award: substantially justified standard a. knowledgeable in the area of the law. f.” R. that special circumstances make an award unjust. Fees may be denied if the position of the agency initiating the matter in controversy was “substantially justified. believes that the state’s 93 .(2) Whether special circumstances make the award unjust.

then the substantially justified standard has been met. 2d 25. No. Under these circumstances. Weinstein (Hamilton C. which also uses a “substantially justified” test for awarding attorney fees. 33 Ohio Misc. 3d 556. of Pharmacy v.. LEXIS 5391. 67 Ohio App. 558.e.. substantially probable). which held that “where the state through administrative action denies certification or licensure. Denial of award: unsuccessful application of license or certificate a. LEXIS 3470. 1987). No.” Ohio State Bd. 558. No. at ¶ 13. 1990). of Pharmacy v. Gilmore v. of Pub. that reasonable minds could make a finding of legal violation by a preponderance of that evidence. at *4. at ¶ 18. syllabus. Safety. 2011-Ohio-191. to withstand an award of fees.g. (2) The agency may be substantially justified in relying upon incorrect information.. Ohio Bur. 91AP-190.P. 1991 Ohio App. 2002-T-0098. § 2412. 10th Dist. Attorney fees have generally been denied in cases where the appellant has unsuccessfully applied for a license or certificate. the court offered an evidentiary test for substantial justification. 1990 Ohio App. Ohio Dept.C.position is correct. 119.” Id. 3d 531. 78 Ohio App. In re Williams (1992). d. In Ohio State Bd. the state is not the initiating party for purposes of an award of attorney's fees pursuant to R. The court must evaluate information that the agency had before it at the time it initiated the action. In re Van Arsdal. 11th Dist. and not just possible. In Holden v. Ohio State Med. 161 Ohio App. (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. 78 Ohio App.” Warren’s Eastside Auto Sales v. Ohio Real Estate Appraiser Bd. and that based on that evidence it was reasonable to believe that it was more likely than not (i. at *4. Penix v. e. 28 U. 2003Ohio-5702.12 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. the State in a R. e. Boyle v. c. The error was not discovered and corrected by the municipal court until after BMV initiated the license revocation. 10th Dist.C. 89AP-1186. Weinstein. Bd.C. 3d 551. See. 33 Ohio Misc. the State “must demonstrate that it had sufficient material and essential evidence in support of all of the necessary elements of the offense charged. 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. This articulation of the standard is based in part on interpretations of federal courts in applying the Equal Access to Justice Act. of Motor Vehicles (9th Dist. 10-CA-19. 3d 556. (1) The court held that. the court of appeals found that the State's position had been substantially justified.. 539. (2) To meet this standard.S. citing In re Williams. 9. 2005-Ohio-2856. No. 2d 25. 94 .). 5th Dist. Ohio State Dental Board (1st Dist.

you may wish to consult the Ohio Administrative Law Handbook and Agency Directory in Baldwin’s Ohio Administrative Code. c.39(F)(3)(b). involved an abuse of discretion. 1994) at *6-7. 10.C. 2335. 1990). R. An administrative appeal decision under R. LEXIS 6174 (Feb. 2335.39(B)(2). of Health v. State ex rel. No. Ohio Bur. of Motor Vehicles (9th Dist. 10th Dist. R. or local government. v. 95 .C. 1994 Ohio App.39 a.C.39. R. 11. Note: For additional information on administrative law. An order of a court considering a motion under this section is appealable as in other cases. the agency may appeal an order granting an award. 65 Ohio St. a. 5101. where the court assumed (without deciding) that. or the calculation of the amount of an award. where the state sought to take away a license already held by an individual.C. 3d 338. Ohio Dept. Morris (1992). b.092(F). state. 1992-Ohio-1. Freeman v. 460. 2335.C. 3d 531. b. by a prevailing eligible party that is denied an award or receives a reduced award. Exemptions from R.C. 2335.C.39(B). Adjudication orders exempted under R. under the right circumstances. 93AP-331.C. 3d 458. However. 2335. d. 2335. R. c. Sowald. 2335. 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. 24. If the case is an appeal of the adjudication order of an agency pursuant to section 119. 119.39(F)(3)(a). Schregardus. 65 Ohio St.12 of the Revised Code. b. Pro se litigants may not be awarded attorney fees under R.39(F)(3)(c).C. See also. the court in In re Van Arsdel distinguished cases such as Holden v.” This principle was reaffirmed in Thermal-Tron. attorney fees could be awarded in a proceeding where the state attempted to decertify a nursing home. Appealing an award of attorney fees under R. When the eligible party’s attorney was paid pursuant to appropriation by federal. Inc. State ex rel.39(B)(2). 67 Ohio App.35.2335.

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