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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Chapter 119.C. 119. (3) The agency. board or commission of the state government specifically made subject to sections 119. boards and commissions are specifically named in R.01(A)(1). revocation or cancellation of licenses. (2) A statute specifically subjects the agency.13 of the Revised Code. board or commission has authority to issue. bureau. 119. Entities that Constitute an “Agency” 1. board or commission may be required to follow the Ohio Administrative Procedure Act.C. 1 . division. R. 119. board or commission to R. bureau. division. 119. revoking or cancelling licenses.C.C. Any administrative or executive officer. 119.01(A)(1).I.01(A)(2)(b). e. suspension. the Department of Taxation. (1) Certain agencies. The licensing functions of any administrative or executive officer. there are three ways in which a state agency. Agencies Specifically Named in R. Exclusions from Definition of “Agency”.C. APPLICATION OF R.09.01 to 119. suspend.01(A) a. Governmental Entities Subject to R. the Industrial Commission. d.C. 44 Ohio App.C. b. 2d 115. CHAPTER 119 A. and/or the Bureau of Workers’ Compensation. (2) Issuance. board or commission of the state government having the authority of responsibility of issuing. R.C. 5101. 1975). or commission that has the authority to promulgate rules or make adjudications in: (1) (2) (3) (4) (5) the Civil Service Commission. the Division of Liquor Control. 119. department.01(A)(1): (1) Public Utilities Commission.01(A)(1): Any official. department. Fair v. Chapter 119.01(A). c.C. Chapter 119 Pursuant to R.C.C. 119.01(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.C. R.C. board. R. School Employees Retirement Sys. (10th Dist. 117. remove or cancel licenses. R. 119. R. suspending. amendment or rescission of rules mandated by R.

Entity has authority for issuing. Code Ann. 95CVF064466 (Aug. (4) Actions of the superintendent of financial institutions and the superintendent of insurance regarding the taking possession. 10. 41 Ohio St. Genoa Banking Co. South Community. 96 Ohio App. 2d 106. b. 4123.C. The Revised Code defines “license” as: [a]ny license. of Transp. 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. Chapter 119 without restriction to rulemaking. 119.01-4123. State Emp.P. Boesch (1975).94. (5) Actions of the Industrial Commission or Bureau of Worker’s Compensation brought under R. Assn. McEldowney v. 119. 111. § 119. Inc. 67 Ohio St.C. of Health (10th Dist. 53 Ohio App. 2 . 620 (1935). a. Entity’s own law specifically makes it subject to R. § 301. Chapter 119. (10th Dist. suspending. Home S. commission. 47. Ohio Expositions Comm.01(A). 3d 45. 38 Ohio St. Mills (1981). Ohio Dept. The mere approval of a savings and loan branch location application was not a licensing function. There must be a clear legislative intent to make an entity’s functions subject to R. & L. 1994). or charter issued by any agency…. v. 119. 3d 754. 759. Ohio Dept. 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. 2d 115. (3) Controlling Board. or entity furnishes Medicaid services under a provider agreement with Ohio Department of Human Services. institution. 3d 224. (1988). permit.S.C. a. it is not an arrangement whereby a person. v.01(B).C. 42 U. institution. 1988). 2. Asphalt Specialist Inc. v. 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. rehabilitating or liquidating businesses. R..(2) Utility Radiological Safety Board. v. b. (3) In Bayside Nursing Ctr. Chapter 119.C. Relations Bd. No. 3. Franklin C. The courts define an agency’s licensing authority based on the involvement an entity has with the processing of licenses.12.C. as amended. v. [but not] any arrangement whereby a person. (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. Examples: (1) Decision to hold contractor in default of contract is not a licensing function. 1995). as well as other activities specifically mentioned in R.” 49 Stat. certificate.C. revoking or canceling licenses.

124. Serv. 119. Chapter 119 provides certain rights in relation to adjudications. Right to an appeal: Pursuant to R. Where an entity exercises power derived from another agency that is covered by Chapter 119. the entity is also subject to Chapter 119.14(G). which then authorized state universities to exercise the powers. Inc. 119.01(B). 68 Ohio St. 467. 4. or canceling of a license.C. (1963). The conduct at issue was authorized by R. 119. duties. of Commerce.C.C.06. and functions of the Department of Administrative Services with respect to civil service employees. may appeal from the order of the agency to the court of common pleas. the act is a licensing function because it does not fall under the exemption included in R. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119. 10th Dist No. of Trustees of Ohio State Univ.01 to 119. 1 (emphasis added).12. The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services. a. 151-52. entity exercising derivative power must be a state agency." R. Chapter 119.13.C. 119. or revoking or suspending a license . was not appealable pursuant to R. of Admin..3 (citing Karrick v. Entities exercising derivative power a. which was an agency subject to Chapter 119. of Trustees. v. (1) In Bd. 174 Ohio St. C. Dept. 2d 149.C. b. para. Board of Edn. Chapter 119 Applies to Adjudications.. 2d at 152 n. para. 1 (emphasis added). 3 . at ¶ 24.12.C. revoking. 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. Not Ministerial Acts 1. 68 Ohio St. of Findlay School Dist. Ohio Dept. paragraph two of the syllabus). the university was also bound by Chapter 119 in the exercise of those powers. (1981). the refusal was not an agency decision and therefore. "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination. (4) The Tenth District Court of Appeals held in Springfield Fireworks. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119.Therefore. 2003-Ohio-6940. or denying the issuance or renewal of a license or registration of a licensee. suspending. Since the act was not a licensing function. v. 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.” R. Bd. 03AP-330.

at ¶ 16. 88 Ohio App. b. 67 Ohio St. Ohio Dept. No. 96 Ohio App. State ex rel.2. 70 Ohio App.). 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. “Ministerial Act” defined a. Ohio Dept. 614. New London Hosp. 1990). (6th Dist. Thus. but does not include the issuance of a license in response to an application with respect to which no question is raised. 224.01(D) as: “* * * the determination by the highest or ultimate authority of an agency of the rights. An “adjudication” is defined by R. (10th Dist. v. nor other acts of a ministerial nature. cited in Ohio Boys Town v. of Health (10 Dist. of Ohio Non-Profit Corp. therefore. 3d 702.” b. (10th Dist. in order to determine whether Chapter 119 applies. The Supreme Court held that the rejection of the application for renewal was an adjudication by the highest or ultimate authority of an agency. Ministerial acts involve no discretion (1) In Koch v. Raceway Park. LEXIS 12569. the act of denying his transfer application was a ministerial act to which no right to appeal attached. 69 Ohio St. Brown (1982). v. at *8. 616. Creasy. c. pursuant to R. In re Seltzer (1993). 1993). 80AP-208. 3.C. 3d 82. 66 Ohio St. duties. v. The Ohio Supreme Court ruled in Ohio Boys Town. Bayside Nursing Ctr. or legal relationships of a specific person. given a certain state of facts. Nash (1902). 612. 88. or was merely a ministerial act. 150 Ohio App. of Human Servs. 119. “Adjudication” defined a. 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. 3d 220. of Natural Res. the licensee was entitled to a hearing prior to being forced to cease bingo operations. Id. Trauger v. 10th Dist. Inc. Id. State Dept.. 618. benefits. 1994). 2d 1 that. 4 . 3d 612. 2d 1. 762. 70 Ohio App. 69 Ohio St. A ministerial act has been defined as an act that. Brown (1982). 3d 754. privileges. a person performs in a prescribed manner. without regard to or the exercise of that person’s own judgment upon the propriety of the act being done. Koch v. Chapter 119. Odita v. v. Ohio Dept. in obedience to the mandate of legal authority. at 12. 3d 612. Ohio State Racing Comm. 2002-Ohio-6838. 1980 Ohio App.C. Inc. of Natural Res. one must determine whether the act of the agency constituted an adjudication.

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

Board of examiners of architects. When an agency denies a renewal or registration. Orders Effective Without a Hearing 1.06(B). another agency. Exception: When a statute permits the suspension of a license without a prior hearing. The agency must provide a hearing unless a hearing was held prior to the denial. Board of landscape architect examiners. 3. of Ohio.062. 119. Certain orders canceling or suspending a driver’s license. 119. and athletic trainers board.C. 9.C. Bd. R. 6 . the licensee shall not be required to discontinue the licensed business or profession merely because the agency fails to act on the application.(2) No hearing is required for the following boards if the applicant failed a licensing examination: (a) (b) (c) (d) (e) Medical board.C. or to the board of tax appeals. A hearing must be held following suspension. 2006Ohio-2171.06. No.C. Chiropractic board. 119. General rule: Agency must provide an opportunity for a hearing BEFORE issuing an adjudication order. D. R. c.06(C). If a licensee timely files for renewal or registration. 119. 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. (1) Failure to provide an opportunity for a hearing following the suspension violates due process.” a. para. R.06. Suspensions Without A Prior Hearing (“Summary Suspensions”) 1. 119. R. and give the appellant a right to hearing on appeal. 2. R. 2. b. 119. Doriott v. This is often called a “summary suspension. C. Orders revoking a license where an agency is required by statute to revoke a license pursuant to a judgment of a court.06(A). R. Orders suspending a license where a statute specifically permits the suspension of a license without a hearing. 5. 10th Dist. at ¶ 14. State Med. 4.C. Ohio occupational therapy. 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. 05AP-1079. provides: a.C. physical therapy.

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

103-04. 325. of Job & Family Servs. The agency is subject to a reasonable standard. a. time frame for filing the notice is discretionary. the party has a right to a reasonable notice of hearing and a reasonable opportunity to be heard. Id. R. Lucas Cty. 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. in all cases in which an agency must afford an opportunity for a hearing prior to issuing an order. an appellant must demonstrate prejudice from any failure to meet the timeframes. ¶ 16 and 17. Crawford-Cole v. Cunningham v. The Meadows court ruled that the state’s failure to follow the statute deprived the defendant of his rights to due process. Dept. Ohio Real Estate Commission. 10AP-699. 10CVF-3027 (Aug. 119. of Commerce. at ¶ 31. Wightman v.07. 4. Failure to give proper notice invalidates any order entered pursuant to the hearing. Dusty Drilling Co. Content of Notice 1. 3. State ex rel.P. 1. Barlow v.follow the statutory scheme for an administrative license suspension when it did not afford the defendant a post-suspension hearing within five days. of Real Estate and Professional Licensing.07. 5. No. L-11-1177. 1981). B. The Tenth District Court of Appeals held that timeframes are directory. and that. 119. d. LTV Steel Co. para. v. Mandatory Requirement 1. If a party has a right to a hearing. para. Ohio Real Estate Comm. 24. 2012-Ohio-3506. No. c.C. of Ohio (10th Dist. Notice of the party’s right to a hearing.C. 3d 323. NOTICE REQUIREMENTS A. Finley v. b. R. 2011-Ohio-1816. Franklin C. 1995). as a result. the notice of hearing must include: a. 2.C.. 2010-Ohio-3842. 3d 100. III. Div. b.. 2010). 8 . The charges or other reasons for the proposed action. 6th Dist. The law or rule directly involved. 09AP-1050. 10th Dist. No. absence of instructions of how to appeal and the deadlines involved violated due process requirements. Industrial Comm. 119. Pursuant to R. No. not mandatory. 10th Dist. State ex rel. the agency must give proper notice of the opportunity for hearing. 2 Ohio App. Although proper notice of the opportunity for hearing is mandatory.07. 102 Ohio App. Ohio State Dept. Even though there is no specific statutory requirement. (10th Dist.

Industrial Comm. Most administrative agencies have no time limits for bringing charges. of Commerce. Limits the scope of the charges. if personally appearing. Finley v. Griffin v. he or she would have done differently in preparation of his or her defense. 3d at 423. 423. the respondent must demonstrate prejudice by indicating what. 9 . 198. 119. if anything. 2 Ohio App. Dusty Drilling Co. Bd. Ohio Dept. C. LEXIS 2753. 3d 192. even if the notice contains some deficiencies. of Ohio (10th Dist. 103-04.07 is to enable the respondent to prepare a defense to the charges. Statement that the party. Ohio Dept. See Fehrman v. 91AP1018. or by such other representative who is permitted to practice before the agency. 2011-Ohio6089. present his or her position. ¶ 26. In order to show a violation of due process. and g. by his or her attorney. Must be clear enough to allow the party to prepare a defense. 2 Ohio App.e. 10th Dist. No. Div.C. LTV Steel Co. including reasonable notice of the subject matter of the hearing. 3d 503. b. State ex rel. f. in lieu of personally appearing. licensee was deprived of ability to prepare a defense with regard to other patients. 11AP-174. may present evidence and examine witnesses appearing for and against him or her. 130 Ohio App. Statement that the party may. Statement that the party may appear in person. are broader than the charges set forth in the notice of hearing. and contentions in writing. Procedural due process in administrative hearings constitutes the right to a reasonable notice of hearing and a reasonable opportunity to be heard. Keaton v. of Commerce (10th Dist. (1st Dist. Bd. Purpose of the notice requirement a. 1998). In re Morgenstern. Id. 325. 1995). Geroc v. 37 Ohio App. Delays in Issuing Notice a. argument. Sohi. 10th Dist. Ohio Veterinary Med. of Ohio. at *7. 102 Ohio App. 3d 100. (1) An appellate court may not uphold an agency's order based upon findings which. State Dental Bd. State ex rel. 509-11. No. while supported by the record. State Med. (8th Dist. 3d 414. 2001). of Securities (10th Dist. 130 Ohio App. 2. Sohi v. (2) Where dental board provided names of only two patients to the licensee. The notice of opportunity for hearing sufficiently apprises the respondent of the precise nature of the charges against him. Due Process 1. 1987). 1981). 141 Ohio App. (1) The purpose of the notice required by R.. v. 2. 1992 Ohio App. 3d 323. 482-83. 3d 480.

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

96 Ohio App..R. Ohio State Med.C. b. Initial service of notice a.. ¶ 35 (1) No requirement that the notice to counsel be sent by registered /certified mail.(2) A board’s issuance of a summary suspension one year after it had knowledge of the licensee’s practice violations was unconstitutional. Ohio State Bd. 21 Ohio App. Nos.3d 277. registered mail is not required. Service of Notice 1. 1994). Liquor Control Comm. 67 Ohio App. 10AP-419. 10th Dist. R. 290. Tripodi v. State Med. 47 A. No. (7th Dist.3d 361. Annotations 1.R. R. Gilbo (2nd Dist.L. Sufficiency of notice or hearing required prior to termination of welfare benefits. Necessity of notice and hearing before revocation or suspension of motor vehicle driver’s license. To party by certified mail: Notice of opportunity for hearing must be sent to the party by registered mail. To attorney by regular mail: “A copy of the notice shall be mailed to attorneys or other representatives of record representing the party. 111-12. E. 339. State v. 2011-Ohio-431. Bd.L. R. of Edn. 1989). return receipt requested. 2. (2) No requirement that the agency search anything other than its own files to find out if the party is represented by counsel. 2d 110. Kellough v. D. Franklin C.07.L. Amon v.C. (10th Dist. return receipt requested. 11 .C. 1970).C. a.02(G). (3) Driver’s license: In a case involving revocation or suspension of a driver’s license. 119. a rebuttable presumption of delivery to the addressee is established. 3d 332.07.P.062.R. Angerman v. 89CV-01-64 and 88CV12-8615 (July 3. 119. and thereafter a signed receipt is returned to the sender. Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine. 3. (1) Note: registered mail and certified mail are interchangeable. 3d 287.5th 1. (2) Service at a place of business. Bd. 60 A. 1. 10 A. When an item is sent by certified mail. 119. 1990).” R.

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

Does the agency have sufficient evidence to support every charge stated in the notice? 4. Waiver a. 7th Dist. 1986). 76. 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. 2. Does the notice comply with all procedural requirements set forth in statute and administrative rule that are unique to the agency? 6.. Ohio State Racing Comm. LEXIS 116. 62337. so as to be precluded from afterward challenging the proceeding for want of notice.) 7. 02 JE 22. 7. G. “A person entitled to statutory notice may waive it. with the first publication of the notice set forth in the affidavit. Is the agency authorized by statute or administrative rule to take the proposed action? 5. the name of a contact person? 13 .C. 2000 Ohio App. (3rd Dist.C. 3d 74. such as patient names. 1965). Prinz v. F. 1st Dist. Practical Considerations 1. 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. Does the notice include confidential information. Failure of an agency to give notice as prescribed results in the invalidation of any order entered into pursuant to the hearing.” Fogt v. An agency cannot enforce an order resulting from an improper notice of charges. Harris.(d) A proof of publication affidavit. at *12-13. 2003-Ohio496. must be mailed by ordinary mail to the party at the last known address. Jefferson County Child Support Enforcement Agency v.07. Kirresh. at *3. 119. 30 Ohio App.07? 8. 424-25. 119. No. 1992 Ohio App. para. or any feature of it. 8th Dist. or may. No. which should be stated in a separate document attached to the notice? 3. 2d 423. Failure to Give Proper Notice 1. Sliker (10th Dist. See also. Does the notice state all of the respondent’s hearing and representation rights as specified in R. Does the notice indicate the agency’s address and telephone number and. State Counselor & Soc. by his conduct. C-990200. No. R. City of Lakewood v. LEXIS 4755. 3 Ohio App. Worker Bd. acknowledge the giving of notice to him. if necessary. a. (e) Notice deemed received as of the date of last publication. Columbus v.

9. 1979 Ohio App. Reserving right to hearing shows intent to request. HEARING REQUESTS A. the act may be done on the next succeeding day that is not Sunday or a legal holiday”. B. 2. No.C. Bd.C. Chapter 119. which letter also stated that licensee was not waiving his right to a hearing.C. 1.14.07 begins to run on the date the agency or board mails the notice by certified mail.14.C. 14 . 54292.07) 1. Does the notice indicate the method of service to be utilized? 10.C. (10th Dist. Williams. Bd. A party must request a hearing within thirty days of the date of mailing the notice. 1. If multiple violations. 103 Ohio App. But see Alcover v. a. The time computations set forth in R.14 apply to proceedings conducted pursuant to R. 1. 119.14 states that when a public office is closed to the public and it is the last day to do a required act. where attorney advised the licensee that request must be made in writing to the board). 1995). 8th Dist. Agency erred by failing to timely set a hearing date and time as mandated by R. 1. showing intent to request hearing. 78AP860. Chapter 119 does not specifically provide that a request for hearing must be in writing. Timing of Request (R.” IV. 1987 Ohio App. Computing Time Pursuant to R.C. In writing a. a.C. No. except that. “the act may be performed on the next succeeding day that is not a Sunday or a legal holiday. 1. when the last day falls on Sunday or a legal holiday. R. Licensee sent a letter proposing an informal settlement. Ohio State Med. Standard Oil Co. 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. Method of Requesting a Hearing 1. R. v. The court found this was sufficient notification because licensee had expressly reserved the right to adjudication. at *9. LEXIS 11662. 318. 119. LEXIS 9961. The thirty days provided by R. 3d 317. is it clear which alleged facts violate each statute or rule stated in the notice? H. 10th Dist.. Chapter 119. Harrison v. at *9 (telephone request to assistant attorney general insufficient.C. Ohio State Med. 2.

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

Continuances 1. Id. No. Kash (8th Dist. not mandatory. A hearing cannot be continued for an unreasonable amount of time.. 1988). in the same notice. 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. at *7-8. SCHEDULING OF THE HEARING A. Sahely v. Kizer v. LEXIS 2713. Practical Note.C. (2) Thus. a.C. LEXIS 6173. McCullion. 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. 1988). The agency may postpone or continue a scheduled hearing upon its own motion or the motion of any party. LEXIS 2034. Vild. V. 3. Once a party requests a hearing.07. and forthwith notify the party. the agency must initially schedule the hearing for seven to fifteen days from the date of the request.09. v.. R. The date set must be seven to fifteen days from the time the party requested a hearing. a. 2. (1) In In re Application of Milton Hardware Co. b. the agency shall immediately schedule the time. 60858. Ohio State Racing Comm. see Section IX APPEALS. 10th Dist. 1993 Ohio App. (10th Dist.07. Ohio Dept. 3. No. Id. at *7. 92AP-1430. Ohio St. of Edn. No. R. Yoder v. R. 31 Ohio App. 3d 201. the court said that two (2) years was an unreasonable delay. b. 3d 111. 1991 Ohio App. unless otherwise agreed upon by both the agency and the party. because the agency has the authority to continue a hearing upon its own motion. 262. In re Barnes (10th Dist. but may then continue the hearing to a later date. 3d 256. 16 . CA2867. 2d 157. Ohio State Racing Comm. of Commerce v. Initial Scheduling 1. (9th Dist. Requirement to hold hearing within fifteen days is directory. 119. inform the party of the continuance. para. Effect on appeal rights (split in decisions).C. 1991 Ohio App. 1969). The agency will often set the initial hearing date. B. 3. and then. 5th Dist. para. 113. date and place for the hearing. See In re Application of Milton Hardware Co. at *4-5. 1986). 19 Ohio App. 61 Ohio App. 119.3. 40 Ohio App. 8th Dist. 119. infra. Bd. 166.

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

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

C. R. Murray (1993). 51 Ohio St. 80 Ohio App.C. 48 Ohio App. 2. a. b. 10th Dist.” State Med.C. Id. (2) The court further indicated that Froug could have requested a continuance if more time was necessary to review the records. Parties cannot obtain prehearing discovery depositions regardless of whether the depositions are described as “depositions” or “prehearing discovery depositions. at *9-12. 535. See Froug v. The agency violates R. at *11. Frantz (1990). 119. 2. 2009-Ohio-1103. R.. 28-29. Chapter 119 provides that a party may request the issuance of a subpoena duces tecum for the purpose of conducting a hearing. Ohio State Bd. No. Subpoenas for Purposes of a Hearing 1. 119. Bd. 3d 143. Chapter 119 does not provide for discovery depositions. however. b. LEXIS 305. 119. 66 Ohio St. The mandatory language in R. 3d 605. Because R. and upon request of any party shall.C.C.C. C. a. Ohio Board of Nursing. 1992). Method of delivery 19 . b. The subpoena shall be directed to the sheriff of the county where the witness resides or is found. R.09 does not provide for prehearing discovery depositions by a party to an adjudication hearing. Burneson v. 08AP-794. 10th Dist. reversal of the agency’s final order is not necessary where the respondent fails to show prejudice. For the purpose of conducting an adjudication hearing. No. 119. 145. Ohio State Racing Comm.09 pertains to securing the attendance of witnesses and the production of records and documents for the purpose of conducting an adjudication hearing.hearing against a party who was present or represented at the taking of the deposition. In re Heath (10th Dist. 00AP-523. Id. at ¶ 24. of Ohio v. 1988).09 (emphasis added). the agency may. (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. issue a subpoena for any witness or subpoena duces tecum to compel the production of records. 2001 Ohio App. R. and served and returned in the same manner as a subpoena in a criminal case is served and returned.C. 3d 527. Poppe (12th Dist. 611-12.09 is satisfied when the agency subpoenas records to be delivered at the commencement of the hearing. Ohio State Bd. Proper service and fees a. of Pharmacy v. of Pharmacy v. 119. 3d 222.09 by not issuing a subpoena when requested by the respondent.

(a) A witness living in the same county as the agency waives the right to fees if not demanded upon services. Crim. No. error could be cured by subsequently tendering the fees. if tendered prior to the time appearance is compelled. (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. 03AP-266. 20 . para.09. State v. Must be returned in the same manner as a subpoena in a criminal case. or otherwise. OAG Opinion. 2. Perfection Corp. 17(D) provides that proper service is effected by tendering to the witness. 3. 2004-Ohio-4041. witness fees and mileage fees must be attached to the subpoena and tendered without demand or the witness is not obligated to appear. c. 17(D) provides that if the witness resides outside the county where the agency is located. valid service is completed. at ¶ 26. 86-066. Castle (9th Dist. R.C. 3d 732. 734. 10th Dist.C. OAG Opinion. Fees (1) Witness residing within county: Crim. 17(D) provides that the return may be forwarded through the postal service. the fees for one day’s attendance and the mileage fees allowed by law. R. 119. 92 Ohio App. b. and the witness may not later refuse to appear solely because the fees were not tendered upon service. R. 2335.09. 86-066. Smith Corp. (b) When the fees were not tendered with subpoena. or by leaving it at his usual place of residence. 119.08 for current amount. fees shall be tendered without demand. v.(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. A.O.. Return of subpoena a. R. (a) Where a witness lives outside the county where the agency is located.C. (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. (2) Witness outside the county: Crim. R. upon demand. 1994). See R. (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.

8 Ohio St. 2317. Failure to obey subpoena/sanctions a. 1998 Ohio App.21. Ohio Motor Vehicle Dealers Bd. v. and may not resort to other forms of punishment. Carratola. 3 Ohio App.21. (4) An agency is limited to the statutory attachment procedures to sanction contempt of its subpoenas.09. at *13. (c) If the matter is one in which the witness may be subject to lawful questioning. subject only to proper privilege assertion by the witness. 3d 218. 119. Contempt proceedings. Ohio State Dental Bd. (c) The writ will only issue for disobedience of a subpoena “personally served” on the witness. may order. such as limiting testimony of other witnesses. (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.C. 27. him to show cause why such writ should not issue against him" if the witness was served with the subpoena in some other fashion. 1981). R. (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.C. (1) Upon failure to comply: (a) Agency must file an application to enforce the subpoena if requested.C. (b) Although the agency is required to seek enforcement of subpoena. But the court "by a rule. 9th Dist. Green v. LEXIS 2020. (d) Court shall compel compliance as in cases of disobedience of court subpoena. 3d 26.21. 18658. (3) Requirement to Enforce if Requested..C. 220. 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. (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. (a) The agency is required to seek enforcement if asked by the party who requested the subpoena.” R. R. 1998 Ohio App. 21 . (a) This statute is inapplicable if proper fees are not paid to the witness.4. LEXIS 2020. Carratola v. No. 2317. 2317. Remlinger (1983). at *13. Western Reserve Psychiatric Habilitation Center (9th Dist.

the court of common pleas has no jurisdiction to entertain a motion to quash an administrative subpoena.C. 2.24. Chiropractic Bd.C. paragraph 4 of the syllabus.. 307. 93 Ohio St. R.. Dept. R. 45(E) may be granted. 1996). 3d 59. 390-91. 173. R. D. Ombudsman.g. No. 4731. Implied power.24. below. Bd. 22 .C.22(F)(3). (1) Absent specific statutory authority or a pending case or appeal.29). Thompson. Board of Nursing.b. (2) Thus.. R. State Med. Investigative Subpoenas 1. R. for general principle of implied power to perform duty.C. 2000).48(A)(2). 61. Hunt v. 1993). e. Investigatory subpoenas are those to compel testimony or the production of records. Dept. In re David E. 1707. do not have specific statutory procedures for enforcement of investigative subpoenas.20(H).P. D. Some agencies have statutory authority to issue investigative subpoenas. there is an implied power to enforce them through the court.. of Securities. the only avenue available to a witness is to defend an action to compel. 87 Ohio App. Hildebrant (1915).C.22(F)(3). 1. Bd. (10th Dist. Other agencies. 4731.C. 00MS000041 (July 24. (e. Chapter 119 does not provide statutory authority for a motion to quash. Ombudsman.g. of Aging. b. (2) If the statute grants enforcement according to the Civil Rules.C. 4723. Medical records a. of Securities. Enforcement a. it is reasonable to argue that the sanctions permitted by Civ. State Med. Chiropractic Board. See discussion re: Health Insurance Portability and Accountability Act (“HIPAA”). Specified authority (1) Some agencies have specific statutory procedures for enforcement of these subpoenas. 1707. (E.C. of Aging. R. Polen. 4734. Franklin C. 4723. for purposes of investigation. Div. 1994).C..C. prior to hearing..C. See State ex rel. because R. b. 3. 173. Chapter 119. Medical Bd. Board of Nursing. R. The Medical Board’s statutory authority to subpoena patient records is not dependent upon patient consent. v. 108 Ohio App.g. In re Investigation of Laplow (10th Dist. since the legislature has empowered them to issue subpoenas. R. Div. R. However. 3d 305.20(H).29). Motions to Quash not authorized by R.C. In re Investigation of Laplow (9th Dist. 96 Ohio App. R. 3d 386. 4.

A “record” is any item that: (1) Contains information stored on a fixed medium (such as paper. c. film. 142. The requested records must be released unless they fall within an exemption or exception to the Public Records Act. R. policies. 149. operations or other activities of the office. 3d 170. Multimedia v. State ex rel. (1) The information must pertain to the medical history. decisions.43(A)(1). 149. Respondents May Obtain Certain Agency Records through the Ohio Public Records Act. 3d 141. 149. 72 Ohio St.011.). not exempt by law. and (3) Documents the organization.E. Cincinnati Post v. as defined under R.43(A)(1) and (3). (2) Is created. (The following is a brief outline of Public Records Law. b. received. R. Schweikert (1988). b. 38 Ohio St.43(A)(1)(g) and (4). R. Kraft (1993). but not generated in the process of medical treatment is not covered by the medical records exception. 3d 141. The provisions of the Act that provide access are to be liberally interpreted and exemptions are to be strictly construed. see the most recent version of the Ohio Sunshine Law Update published by the Ohio Attorney General. d. computer. or sent under the jurisdiction of a public office.011(G). Exemptions/Exceptions: a. 149. The Public Records Act applies to any record. see Steffan v. 23 . 142. etc. (2) The record must have been generated in the course of medical treatment. Medical records. diagnosis. prognosis or medical condition of a patient. For more detail. 67 Ohio St.) 1. functions. Any doubts are to be resolved in favor of disclosure. 440. a. Multimedia.C.C. 2. 149. 3d 439. Uncirculated personal notes.C. c. see R. State ex rel. Trial preparation records. 72 Ohio St. For a complete list of exemptions.C. State ex rel. procedures. 173.43. (a) A report of a medical professional generated as part of the decision making process regarding employment. of a public office.C. Snowden (1995). 149. R.C.

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

C. See State ex rel. 2000 Ohio App. So long as the statute can be read to prohibit general release. Polovishack v. 6th Dist. Mentor.22 (Long term care ombudsman investigative files). Police Officers for Equal Rights v.C. of Human Serv. City of Akron (1994). R. not related to any one specific agency.C. 27 (child abuse investigation reports). 3d 420. 3d 516. 1996-Ohio234. Leonard v. based on a federal privacy interest. 2151. Beacon Journal v. WLWT-TV5 v. State ex rel.20 and 3309. 54 Ohio St. 5153. Toledo Police Patrolman’s Assn. R. 50 Ohio St. One particularly noteworthy exemption premised on federal law is the exemption of social security numbers. Conrad. 3307. 89 Ohio St. See. R. The following are a few examples: R. (3) Federally protected information. This is far from an exhaustive list.27 (PERS member information). f. (1) Agency confidentiality provisions. State ex rel. for example the Trade Secrets Act. R. (1990). Ohio Patrolmen’s Benevolent Assn. (4) Once applicable. State ex rel. Yant v.C. Toledo. that create confidentiality. 612. R. 3d 681. 3d 51. 1333. 1995-Ohio-19. 3d 605. Be sure to check the agency’s own statutes. (a) Many state administrative clients have statutes making specific information confidential. 360. 3d 185. 77 Ohio St. Leis. the statute likely qualifies as an exemption under this statute. Cuyahoga County Dept. v. 75 Ohio St. The Family Education Rights and Privacy Act 25 . 3d 440. R. Jackson (1994).C. R. White.65. LEXIS 875. (2) General confidentiality provisions. 145. (5) State ex rel.17 (Director of Commerce Investigations). State ex rel. (2) The following line of cases illustrates the volatility of this area of the law. State ex rel. 74 Ohio St.43(A)(1)(v).proceeding than in the context of a civil or administrative proceeding. 3304. 1996-Ohio-204.g. 1997-Ohio-273. 149.22 (STRS and SERS member information). Lashutka.421 (Child abuse and neglect investigation records). (b) Student Education Records. State ex rel. 173. the confidential law enforcement investigatory record exemption remains applicable until all proceedings are complete.C. discusses the applicability of this exception to administrative investigation files.21 (Client records of rehabilitation services). There are also general state statutes. 2000-Ohio-214.C. State ex rel. Steckman v.C. Local 10 v. (b) The legislative language used to create confidentiality may be phrased in different ways. Records the release of which is prohibited by state or federal law. No. Mayfield (1990). L-99-1143. e. Renfro v. 3d 357. 70 Ohio St. 70 Ohio St. 72 Ohio St. (a) Social Security Numbers. 3d 25.

Section F. (2) Upon request.43 provides: (1) Upon request. 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. the agency shall make copies available at cost and within reasonable time. The agency may ask that the request be put in writing to assist it in responding to the request. § 552. or to impose a waiting period before the record is sealed pursuant to R. (4) If information within a public record is exempt. 2012Ohio-2730. 149. 5 U. 3.C.041(E). 26 . (c) When determining whether a federal exemption applies.43(B)(1). Niesen-Pennycuff.S.52(A)(1). The Supreme Court of Ohio in State v.S. (a) Redaction must be plainly visible. 2953. 149. R. Exemptions under the Federal Freedom of Information Act. (4) Privileged information (a) See discussion below. Access to court record sealed or expunged under R.C. protects the release of educational records without written consent of the student or the student’s parents. 20 U.C. R. 2953. 149. 2951. but the Public Records Act does not require that the request be put in writing.52(A)(1). all responsive records must be promptly prepared and available for inspection at all reasonable times during regular business hours.C.(“FERPA”). do not generally act to exempt records in the hands of a state agency. A pending administrative proceeding involving a conviction or intervention in lieu of conviction may be affected. g.3d 416.32(A)(1). 132 Ohio St.43(B)(1). b. the agency must provide a redacted copy. remember. in most instances. unless the state agency is acting for the federal agency in some substantial respect. § 1232g(b)(1). the agency may deny the request.C.C.C. 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.43(B)(2). but must provide the requestor with an opportunity to revise the request. Consult FERPA for requirements and exceptions. a.C. R. the trial court has discretion either to grant the motion immediately under R.C. 149. Mechanics of making and responding to a public records request. Protected Information regarding privileged information. R. 2953. (3) If the requestor makes an overly broad or an ambiguous request.C.

in whole or in part. the agency must provide an explanation for denial. 149. Hutson.e. d. 9-4). 4. (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. 103 Ohio St.(b) Redaction is considered a denial.43.43.C. provides insight into how the operative terms in R. The specific statute trumps 149. rather than a transcript of the audiotape. (c) Only awarded if the requestor transmits a written request via hand delivery or certified mail.43(B)(3). (3) Regular business hours for a police department which is open 24 hours a day are normal administrative hours (i. 621-26. the party is entitled to the copy at cost. 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. 149. (5) If the request is denied. b. (b) Maximum $1000. R. 27 . (2) The public office cannot charge for inspection. c. (1) At cost does not include employee labor time. Warren Newspapers v. 70 Ohio St.C.43(C). R. that party cannot obtain the documents at cost under the Public Records Act. 149. However.C.43. 3d 89. State ex rel. Liabilities (1) Civil penalties: (a) Statutory damages: $100/day after filing of mandamus action. Slagle v. 2004-Ohio-4354. 3d 619. the party must pay the court reporter to get a copy of the court transcripts in common pleas court. 149. 149. (ii) The custodian of the public records failed to comply with the party’s request.C. R. indicating legal authority for denial. if a party only seeks a copy of an audiotape of court proceedings.C. 1994-Ohio-5. Enforcing Public Records Act a. at ¶ 15-17. Rogers (2004). Anyone aggrieved by an agency’s failure to release a public record may bring a mandamus action to compel release. therefore.43(B) are to be interpreted.

Deliberative process privilege/executive privilege. (2) The reasons for this are that: (a) the actors are the same. opinions. Gundler (1996). 577. Relation between the executive privilege and the deliberative process privilege. Supp. and in most cases requires the consent of the patient for release. . What is protected? (1) Protects advice.512(e): Disclosures for Judicial and Administrative Proceedings. 45 CFR § 164. (b) the rationale for the privileges are similar. b. Protected Information 1.C. (c) both of the privileges are limited in application. Confidential records: See Public Records Act Section E(2). and other communicative means used by a government decision-maker in the process of reaching a decision. 2. State ex rel. 3. exemptions/exceptions. Bank Securities Litigation (E. F. at 28 . [and] the contributing influences” of an administrative decision. . Id. Pennington v. Health Insurance Portability and Accountability Act (“HIPAA”). In re Franklin Natl.(iii) The requesting party filed a mandamus action pursuant to R. recommendations. 174. (1) The general deliberative process privilege is routinely grouped and usually interchangeable with the executive privilege. Exceptions that may permit agencies to subpoena PHI without patient consent: (1) (2) (3) (4) 45 CFR § 164. b. 582.Y. 75 Ohio St. Protects the privacy of Protected Health Information (“PHI”). a. a. 45 CFR § 164. 149. 1979). 45 CFR § 164.512(a): Disclosures Required by Law. 478 F. above. Note: regulations state specific parameters and conditions for application of each type of exception.512(d): Disclosures for Health Oversight Activities.512(f): Disclosure for Law Enforcement Purposes.D.43 to obtain copies of the records. (2) The judiciary is barred from probing into “the methods by which a decision is reached .N. 3d 171. (iv) The party received the requested public records only after the mandamus action was filed.

g. 107 Ohio App. 243 (executive privilege). 1972). 1978). 2d 753. Morgan (1941). (2) Information sought to be protected must be pre-decisional and the communications must be part of the deliberative process. Union. 3d 241. (3) The Supreme Court has held that in an administrative proceeding in which R. Rev. The deliberative process privilege and the executive privilege are qualified privileges.S. 81 Ohio St. 3d 729. Carl Zeiss. v. 879. 33 Ohio App. Libis v.A. 736-37.R.Y. e. 63 N.C. U. B. Gen. Sullivan (N. (S. v. 1985.S. Purpose (1) To protect the decision-making process of government officials.R. Hamilton County Bd. Henneman v.S. 396. Mary Imogene Bassett Hosp. 2d 94. June. e. 28-29. and that the privilege is an exception to the Public Records Law.R. see State ex rel. v. 136 F. 40 F. 591 F. AFLCIO v. Requirements for application of the privilege. Jordan v.L. 1982). v. 935. Jena (D. Inc. of Zoning Appeals of Akron (9th Dist. the “judicial mental process” privilege prohibits the release of the attorney-examiner’s report to the parties. of Revision. c. 44. 1966). Lawyers Guild v.D. 42.D. 29 . Chapter 119 does not apply. V. 1987). f. Doyle (10th Dist. 1991). SEIU. (1) Asserted by high-level government official. 1995). of Justice (C. Marzetti Co. Gulyassy (10th Dist. 64.D. Bd.N. See also. T. (2) However. 44. 136 F.C. d. 318.N. 96 F. 3d 58.581 (quoting Carl Zeiss Stiftung v.D. Common law recognition of the privilege (1) The deliberative process privilege has been recognized and sanctioned by Ohio courts. U. 409. Raveson. Mary Imogene Bassett Hosp. head of the agency.D. Atty. TBC Westlake. 390.C. or by a high-level subordinate/delegate.C.N. (a) Someone with sufficient authority as determined by role or hierarchical status. 42. v. 332-26) (executive privilege case). Dist. 35 Ohio St. which holds that there is no deliberative process exemption to the public records law. Louis S. City of Toledo (1988).D. (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. 1199 Health Care & Social Serv. 3d 25.E. Sullivan (N.Y.D.D.Y. thereby harming the public interest. 37 Ohio App. Dept. 1991). 772.D.R. 313 U. Natl. 96. Unmasking The Motives Of Government Decisionmakers: A Subpoena For Your Thoughts?. 1998-Ohio-445.

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

” (4) Applies to attorney only. ¶ 28. voluntary disclosure of privileged communications can result in the loss of privilege for all other communications that deal with the same subject matter. if the communication was not intended to be confidential. 1995-Ohio-80.021 defines “client” in the privilege statute to include the client’s “agent. c. Also. Common law privilege (1) The common law attorney-client privilege applies to communications between a client and an agent of the attorney. or other representative. 305. (3) Communications must be made in confidence and not in the presence of strangers. ¶30 (Insurance company stands in the shoes of its insured and the insurance company’s letter. it is not privileged and must be produced. 3d 570.3d 10. 72 Ohio St. Bloom-Carroll Local School Dist. Such conduct might include not screening files released in a discovery production of records. whereas the common-law privilege could be viewed more broadly.C. (5) Waiver (a) The common-law privilege is destroyed by voluntary disclosure to others of the content of the statement. however. employee. R. is a preliminary communication with that attorney about the case). State v. or representative of the attorney. (b) Practical Note. 2317. Dawson v. not agents. (4) To the extent that narrative portions of attorney-fee statements are descriptions of legal services performed by counsel for a client. 573-74. Post. 3d 380. 131 Ohio St. The statutory privilege does not define “attorney” as including an agent.3d 10. Travelers Indemnity Co. v. 3d 380 at 385. Last. below. careless or inadequate document screening procedures. 131 Ohio St. State v. The statute’s language prohibits testimony by an attorney. Cochrane (1951). State ex rel.(3) Definition of client. 2011-Ohio-6009. 32 Ohio St. employee. State v. 31 . because no intention of confidentiality exists. keeping privileged documents in files that are routinely reviewed by third parties. Bloom-Carroll. Dawson v.. and leaving privileged documents in a public hallway. 385 (defendant's discussion with polygraph examiner hired by attorney for defendant was privileged. McDermott. State ex rel.) (2) Not necessarily limited to precluding attorney’s testimony. privilege was waived when witness discussed his statements to polygraph examiner with third party who was not agent of attorney. they are protected by the attorneyclient privilege. leaving documents in a place where third parties have access to them and no measures are taken to maintain confidentiality. Post (1987). 32 Ohio St. 316. See Treatises. 155 Ohio St. copied to the retained attorney. 2011Ohio-6009. a partial. The privilege can be waived unintentionally by conduct which implies a waiver.

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

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

but are not controlling). 2. 417. 1996-Ohio-282. d. R. Haley v.specific to an agency may provide standards for that agency.. 162. v. Administrative agencies have a duty to base their conclusions on competent evidence. 74 Ohio St.. v. for Orange City School Dist.g. 1969). 3d 256. The evidence must be probative and relevant.” b. 74 Ohio St. When an administrative agency enacts rules as to the standards of admissibility of evidence to be followed in its hearings. No. Board of Edn. a. 11AP-133. 2d 157.C.g. 252. Co. Chrysler Plastic Products Corp. c. Comm. Ohio State Racing Comm. b. 10th Dist. 49. 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. (10th Dist. d. 56 Ohio App. In re Application of Milton Hardware Co. of Revision. 39 Ohio App. Universal Disposal. An administrative body should not be inhibited by strict rules of evidence.. Inc. e. 263. Citizens to Protect Environment. 19 Ohio App. 2d 157. e. (10th Dist. Health department reports identified by a police officer were admissible. the rules of evidence may be considered in an advisory capacity in an administrative hearing. In re Application of Milton Hardware Co. 4123. Evidence Rule 101(A) specifically states: “These rules govern proceedings in the courts of this state. 2012-Ohio-2218 37 . such rules must be consistent with the guaranty that such hearings shall be fair in all their procedural respects. 16. R. Ohio Liquor Control Comm. Kash (8th Dist. Ohio Rules of Evidence not strictly applicable. 3. Some agency statutes or rules expressly provide that the agency is not bound by the rules of evidence. and therefore are not applicable in administrative proceedings. rules may be taken into consideration. An administrative agency may not sanction as evidence something which is clearly not evidence. Board of Edn. Pub. (2nd Dist.. Furthermore. 6. Ohio State Dental Bd. 1969). Cuyahoga Cty. 1988). Bd. a. 3d 1. v. 7 Ohio App. (1955). Douglas v. Util. 263.28 (Unemployment Compensation). 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. 1987). 163. v. e. 163 Ohio St. See.C. Inc. OAC 4723-16-01(E) (Nursing). 3d at 417. for Orange City School Dist. c.10 (Worker’s Compensation). Evidence Rule 101(A) does not mention administrative agencies as forums to which the rules of evidence apply.” Chesapeake & Ohio Ry. (10th Dist. See. 3d 15. 3d 415. 1988). (10th Dist. 3d 45. State ex rel. 19 Ohio App. 61 Ohio App. an administrative agency should not act on evidence that is clearly not admissible. However. OAC 4723-16-01(E) (in Board of Nursing hearings. 1982). competent or probative of facts that the agency is to determine. Agency standards must be fair and reasonable. 4141.

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

see: a. at *6 (quoting Bucyrus (1929).  The agency presents any rebuttal case and submits evidence into the record. No. 161. G. e. at 430). and to base their conclusion upon competent evidence. exhibits should be offered for identification purposes and should be introduced and the admission of such made a part of the record. procedures to be followed before administrative agencies are not those that are required in ordinary civil actions. Closing arguments may be oral or written. Mayers v. Generally speaking. 19 Ohio App. State ex rel. and strict rules of a judicial hearing do not govern in administrative hearings. Practical notes: The following is an overview of the suggested procedure for the typical administrative hearing. Courts have consistently held that a proper hearing bears a substantial adherence to courtroom procedures. 2d 157. the administrative agency properly adhered to the language of Evid. In re Application of Milton Hardware Co. 114 Ohio St. present closing arguments. In some cases it may also be advisable to file post-hearing briefs. 1989 Ohio App.” c. it is the duty of such bodies to permit a full hearing upon all subjects pertinent to the issue. and in this regard. 4th Dist. 270. In re Application of Milton Hardware Co. when complicated factual and legal questions are at issue in the case. should be introduced.  The agency. Gray (1926). Accordingly. The respondent may choose to present an opening argument after the agency concludes presentation of its case-in-chief. 702. 1969). 120 Ohio St. 430: “While the technical rules of a hearing by a court are not required to be strictly observed in hearings before administrative bodies.g.  The agency presents its case-in-chief and submits evidence into the record. Bucyrus v. 2. Introduction of Evidence 1.2. 275. of Health (1929). 426.” b. (10th Dist. 3. R. holding that when determining the qualifications necessary for a person to testify as an expert. 165: “It is our feeling that basic evidentiary procedures should be followed in administrative hearings. 2d 157. Remy v. LEXIS 3363. 1969). 19 Ohio App.  The respondent presents its/his/her case-in-chief and submits evidence into the record. 88-CA-5. 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. (10th Dist. and such result can better be accomplished by a substantial adherence to the rules observed in hearings in court. “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 . State Dept.  Hearing convenes with opening statements. and then the respondent. 120 Ohio St. Limbach.

a proffer is necessary so the court can determine if the evidentiary exclusion was proper or if said exclusion constitutes reversible error.C.09. para. 119. Who rules on objections? (1) In case before a hearing examiner. examiner rules on objections. the board may choose to have the board president or other designee rule on objections or have the board members vote on objections. b.C. If evidence is offered but not admitted. b. Methods of making a proffer (1) The proffering attorney or party. From the reviewing court's perspective.” In re Application of Milton Hardware Co.09. Proffer of evidence a. that the board/agency be consistent and follow the same procedure in each hearing. 119.09. describes the proposed testimony or document(s). (a) There is no R. It is important. Opposing counsel can make any appropriate objections during the offer of proof. in narrative fashion. 6. Reasons for making a proffer: It will create a record to ensure that the reviewing court will know the nature of the excluded evidence. however.C. and the proffer shall be made a part of the hearing record. Chapter 119 statutory guidance regarding which individual within an agency or board should make rulings on objections.the admission of such be made part of the record. R.C. (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. (2) In case before entire board. A party may object to evidence offered at a hearing. 4. 1969). c. the party shall make proffer of the evidence. (2) The proffering attorney or party examines witness(s) concerning matters deemed objectionable by the hearing officer. 6. agencies are free to designate an individual(s) to perform this function. the authorities are less clear. (10th Dist. 3. 19 Ohio App. Objections a. R. In situations where a hearing is held before a full board. 40 . d. para. 2d 157. paragraph two of the syllabus. The proffer may also convince the hearing examiner to change his/her mind as to the evidentiary value of the evidence. 119.

1982). City of Sandusky (1994). in order to allow the court to make a final decision on its admissibility and preserve any objection on the record. Ulis (1992). 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. a. A ruling on a motion in limine is “a tentative. In the administrative context. 3d 83. Unlike a motion to suppress. because 41 . 3. 3d 199. b. All witnesses placed under oath. 2. 3d 308. Interlocutory nature. c.” State v. 3d 446. two-step process. (2) If the entire record consists of witnesses who are not placed under oath. 3d 607.1 (quoting State v. 85 n.H. of Ohio v. during the trial when the party desires to introduce the evidence which is the subject of the motion in limine. 61 Ohio St. Garrett v. and the other side objects. 28 Ohio St. 72 Ohio St. I. a ruling on a motion in limine is “committed to the sound discretion of the administrative tribunal. Guthrie (10th Dist. State v. 201-02). Ohio Civil Rights Comm. Grubb (1986). 28 Ohio St. 140. Grubb.” State v. of Akron v. it is recommended that all witnesses be placed under oath or affirmance. and not mandatory. 28 Ohio St. 65 Ohio St. an appellate court cannot affirm the agency’s decision. 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. a motion in limine is not a final. appealable order. 4. Failure to do so is a waiver of the party’s right to argue the evidentiary issue on appeal. 3 Ohio App. 3d at 202. Grubb (1986). precautionary ruling by the trial court reflecting its anticipatory treatment of [an] evidentiary issue. Witness oath or affirmance a. 449 (quotations and citations omitted). Riverside Methodist Hospital Assn. paragraph two of the syllabus. and second.” State v. 68 Ohio St. 3d 199 at 202. See also. French (1995). “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.” Little Forest Medical Ctr. (1) Even though the 119 language is permissive. which is determined by the circumstances and evidence adduced in the trial and the issues raised by the evidence. 3d 139. interlocutory. Examination of Witnesses 1. Motions in Limine 1. a determination by the trial court as to the admissibility of the evidence. (1991). 617. “In virtually all circumstances finality does not attach when the motion [in limine] is granted.

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

any written memoranda in which continuances were granted. 2000). at ¶ 4 (citing State ex rel. 3. Although due process considerations would probably preclude an agency from dismissing a case on its merits before a full adjudication hearing is completed. of Reclamation (1986). Failure to state a claim with proper notice. Williams v. No. notice letter. Agency/Board may not deny the right to a hearing. 83 Ohio App. Doriott v. In re Application of Milton Hardware Co.E. Executive Branch (9th Dist. 23 Ohio St. at ¶ 14. (10th Dist. Bd. proof of mailing by certified mail. (10th Dist. the court may reverse the agency’s action.” Talwar v. 72 Ohio St. 2009-Ohio5852. 1969).2d 1256 (10th Dist. 1992).12. Div. 3d 131. 43 . it must appear beyond reasonable doubt from the complaint that the plaintiff/relator can prove no set of facts entitling him or her recovery.C. a licensee may not bypass the special statutory proceedings in the guise of obtaining declatory relief. under Civ. 3d 68. 3d 365. proof of receipt. Can A Case Be Dismissed Prior to Hearing? 1. Springfield Local School Dist. 136 Ohio App. v. 05AP-1079. Fields v. No. 156 Ohio App. v. Exceptions: a. 2007-Ohio-3328. K. In general. but nevertheless becomes part of the record on appeal. 165-67: if documentary evidence is not properly introduced and admitted into the record at the administrative hearing. 3d 677 at 683.O. 2006-Ohio-2171. State of Ohio ex rel. dismissals (without a hearing) based on procedural issues such as res judicata and subject matter jurisdiction have been upheld by the courts on appeal. respondent may not file a motion to quash (dismiss/summary judgment) a hearing once requested. 2004). 3d 94. 19 Ohio App. Gary Charles Gelesh. 172 Ohio App. State Med. Bd. 2d 157. 10th Dist. D. 08AP-158. (1995).). Jurisdictional items should always be placed into the record: e. Bd.g. Aust v. 3d 485. 4. including the right to appeal any agency decision pursuant to R. An administrative agency is precluded from dismissing a hearing once it has been requested by a respondent. 137. of Edn. Ohio State Dental Bd. 119. (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. The State Medical Board of Ohio. letter to Respondent scheduling hearing. 5. Summit Cty. 8. or were agreed to by the parties. 12. 874 N. Dressler Coal Co. Where the legislature has provided special statutory proceedings for the discipline of a licensee. 72-73. of Ohio (10th Dist. hearing request. Failure to provide opportunity for a hearing violates Due Process. of Ohio. R. 2. (1) In order to dismiss a complaint for failure to state a claim upon which relief can be granted. 10th Dist. State Med. Boggs v. State ex rel. Bessey. ¶ 25-27.7..

1992 Ohio App. 3d 591. 3d 229. 91AP-1493. or whether the allegation is that the statute is unconstitutional as applied. Ackerman (1st Dist. 35 Ohio St. 130. (2) In at least one case.12. however. 406-07. 1981). 2d 128. See In the Matter of: Hal Artz Lincoln-Mercury. Addressing Constitutional Issues 1. Hanson. Bd. at *24-25. L. (1) Although the agency itself may not determine whether a statute has been applied in a manner that is unconstitutional. Limbach (1994). 405. administrative agencies themselves are without jurisdiction to rule on the constitutionality of a statute. Limbach (1988). State ex rel. LEXIS 4932. Hanson v. Zieverink v. Issues involving challenges to the validity of statute or its application. 3d 195. 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. This is true whether the challenge is a facial challenge to the statute. b. 1991 Ohio App. 595-96. Inc. Withdrawal by respondent (1) Although respondent has the right to withdraw from his or her own hearing. Bd. 3d 10. Such determinations are reserved to the courts alone. Bowers (1960). 24 Ohio St. 548. a. 131 Ohio App. 65 Ohio St. See also. 65 Ohio St. MCI Telecommunications Corp. (6th Dist. 170 Ohio St.C. Agency may not rule on the constitutionality of a statute. the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the non-moving party. (1992). Kinney (1986). S. 68 Ohio St. Hairston. 90-B-20. 10th Dist. at *5. 548)). VFW Post 1238 Bellevue v. 3d 545. 1998). R. at 231. v. Guernsey Cty. See Cleveland Gear Co. Skalsky v.S. As creatures of statute. Ohio Liquor Control Comm. b. LEXIS 4883. of Edn. of Commrs. 7th Dist. No. 44 Ohio St. v. Ford Motor Co. Party should raise “as applied” constitutional challenges at hearing. v.. of South-Western City Schools v. 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. 3d 545. syllabus. 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. 197-99. 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.95 (quoting State ex rel. (3) In reviewing the complaint.06. and the expert commentary of the agency on the issue. 119. Kresge Co. v. The prudent 44 . Kosydar (1975). 1 Ohio App. 3d 184. Herrick v. Section 119. 11.C. No.

154. Hodgson v. § 1983. declaratory relief has been allowed because the administrative agency could not provide the relief sought. and 42 U. 42 Ohio St. Although an agency is precluded from passing upon the constitutional validity of a statute or its application.C. the legislative scheme ordinarily should not be allowed. Comm. Facial constitutional challenges may be raised for the first time on appeal because they are not dependent on a factual record. b. Arbor Health Care Co. the legislative scheme ordinarily is not permissible. (1975). v. 349 F. 3d 619. v. rather than supplement. 2d 128. Due deference is ordinarily given to such interpretations. 66 Ohio St. 39 Ohio App. Austintown Assoc. 154 Ohio St. 186. rather than supplement. Limbach (1988). (3) The decision whether to allow a declaratory judgment collateral challenge lies within the sound discretion of the trial court. would be to raise the issue at hearing to ensure proper development of the record. State Med. 417.03). Lieux v. 3d 183. Ct. a. Supp. 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. Pons v.choice. 2d 263.C.C.D. 185. Kosydar. 44 Ohio St. Driscoll v. 70 Ohio St. Herrick v. Hamilton Mun. Fletcher (10th Dist.S. a suit seeking a declaration of rights that would bypass. 1987). 3. 1987). c. 3d 183. 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. Westlake (1951). (4) Where a specialized statutory remedy is available in the form of an adjudicatory hearing. Office of Consumer's Counsel v. 1. injunctive relief. Issues involving the construction of a statute. Jackson (10th Dist. 247. 1125. (S. 3d 244. 2. Cleveland Gear Co. nothing precludes an agency from applying the constitution to properly construe a statute that is at issue. Public Util. 48 Ohio App. State ex rel. State of Ohio ex 45 . a. (1994). 39 Ohio App. 3d 150. 129. (2) When “a specialized statutory [administrative] remedy is available in the form of an adjudicatory hearing.” Arbor Health Care Co. 412. 35 Ohio St. Bd. of Ohio (1993).47(A) (legislative intent is that statutes comply with constitutional requirements). Jackson (10th Dist. R. Declaratory judgment (1) Where the relief sought rests solely on a constitutional claim. 1988). v. 621. Collateral challenges to the validity of a statute and/or its application. Ohio 1972). 1133. however. Buckeye Quality Care Centers v. 3d 229. b. 2721. a suit seeking a declaration of rights which would bypass.

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.

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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

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

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

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

119. AGENCY ACTION A. 714. “Party” is defined under R. Objections to Report and Recommendation.C. R. Service of the Report and Recommendation. 9. c. or disapproving the recommendation of the examiner. Hearings Held Before the Agency 52 . VIII. thus. (10th Dist. (1) Note: R. (2) Serve upon the party or the party’s attorney or representative of record. 119. 8. Chapter 119 is silent on this issue. R.testimony”) (emphasis added) and State v. Effect of Report and Recommendation (1) The hearing examiner’s Report and Recommendation is submitted to the appropriate agency representatives to be approved.C.09.01(G) as “the person whose interests are the subject of an adjudication by an agency. 9. para.09 provides that “the party” may file objections. para. d. c. (1) Copy must be sent by certified mail within 5 days of filing with the agency.C. R. Respondent may file objections to the Report and Recommendation. b. (2) Recommendation is not final until confirmed and approved by the agency. 119.C.C. 119. 54 Ohio App. may file objections to the hearing examiner’s report. modified or disapproved. a. Carroll (6th Dist. 119. Miller v. (2) It has also been argued that although the state may not file objections itself. 1977). 3d 701.09. 85 Ohio App.09. Objections must be filed within ten days of receipt of the Report and Recommendation. The agency must consider the objections before approving. modifying. para. it is argued that only the respondent. not the State. 1993). the state may file a response to the respondent’s objections. Ohio Rehabilitation Services Comm. 2d 160 at 171-72 (decision reversed because only one board member reviewed evidence). 9. (1) Extension to file objections may be granted by the agency. (2) Agency may not issue a final order without allowing ten days for objections to be filed.

but does not require. 3. In such cases. 119. 9.. 3d 218. E. 1981) 3 Ohio App. 70. 3d 208. 2. Ohio State Racing Commission. R.C. depending on agency rules.C. OAC 4723-16-12 (Nursing Board). Mallory v. Washington v.2d 833 (10th Dist. 72. 83 Ohio App. e.09 permits. 119. para.2d 625 (9th Dist. Util. Western Reserve Psychiatric Habilitation Center. Implied remand a. Failure to Hold Hearing Prior to Expiration of License/Surrender of License 1.. 211-212.091. The failure of an agency to hold a hearing prior to the expiration of a license does not deprive the agency of jurisdiction to hold the hearing or to issue a final order regarding the license. (9th Dist. no report and recommendation is needed. 3d 235. See. 567. 119. Jonathan R. paragraph two of the syllabus. 106 Ohio App. 666 N. Public Emp. See also. 2. B. 9. and the agency can issue an order following deliberations on the case. R. Ohio Motor Vehicle Dealers Board. OAC 4731-31-15(G) (Medical Board). Agencies sometimes remand cases to the hearing examiner for the taking of additional evidence. (1) Generally.1. 1992) 2. 99 Ohio St. agencies to appoint a hearing examiner to conduct the hearing.C. 1998-Ohio-380. 53 . Administrative powers are only implied when clearly necessary to effect an express power. Haehn v. D. Green v. 82 Ohio St.09. Taking of Additional Evidence 1. Pub.09.E. C. 614 N.E. an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute. 1995). or the introduction of further documentary evidence. Accordingly. Personal Appearances Before the Agency 1. 2. para. some agencies conduct hearings without a hearing examiner. R.g. R.. Some agencies permit parties to personally appear before the agency prior to the agency’s deliberations. Comm. the agency may order the taking of additional testimony. The party may appear on his or her own or through counsel. 246-47. 119. State ex rel. Remand to Hearing Examiner 1. Wise v. 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. Prior to issuance of a final order. Retirement Bd. 3d 562. Id.C. (1918).

LEXIS 3665.C. 3d 324. in the absence of any showing that the findings of fact are defective. a. (10th Dist. e. 33 Ohio App. 3d 204. (10th Dist. Inc. 525 (remand to consider additional evidence). 3rd Dist. at ¶ 9 (remand for purpose of determining attorney’s fees). Ohio Veterinary Licensing Bd. 2006-Ohio-3315. 93APE09-1216. 47). Inc. at *7. 82692. transcript of testimony and evidence. Pierce (1917). 91AP-354.. Ohio State Racing Comm.09 provides that an agency’s order must be “based on” the evidence. Some agency rules provide that the agency may remand a case back to a hearing examiner for the purpose of taking additional evidence.(2) Such implied power can be no greater than the express power and must be exercised subject to the same express power limitations. b. 2 Ohio App. Bd. 1991 Ohio App. 3d 522. State of Ohio Med. 326-27. deliberate. 118 Ohio App. 1998-Ohio-380 (quoting State ex rel. 2. 2000-Ohio-1812. 3 Ohio App. at ¶ 98 (remand to consider previously excluded testimony). 137 Ohio App. No. v. Slain Ford. Mallory. 1981). 05AP1137. . 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. These “implied powers . State Med. 10th Dist. if not explicitly.. Bentley & Sons Co. Consideration of the Record 1.09.’” State ex rel. Inc. McCall v. b.. Lies v. are limited to those that ‘may reasonably be necessary to make the express power effective. c. 2000). American Isuzu Motors. A. 15-2000-13. 1998-Ohio-380. 8th Dist. and additional testimony and evidence. 1991 Ohio App. (3) Power will not be implied when the agency has the means to decide the issue within the confines of its express authority. d. Slain Ford. 54 .. 246-47. No. at *5-6. Vonderwell v. F. No. No. para. Ford Motor Co. Green. and independent conclusions about the issues”). LEXIS 3665. Several courts have held that while R. Courts have implicitly. 119. 44. The agency’s order must be “based on such report. v. non-appealable order. Bd. Marion Ob/Gyn v. 3d 555. 96 Ohio St. 9. No.. An agency’s decision to remand to the examiner is an interlocutory. 10th Dist. 119. recognized the power of agencies to remand cases to the examiner. Chapman v. Mallory v. 10th Dist. 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. at *5-6 (holding that remand was an interlocutory decision. Zak v Ohio State Dental Bd. 3d at 220.C.. 1986). Public Emp. 82 Ohio St. Ohio Veterinary Med. or objections of the parties. (1st Dist. this language does not necessarily require agencies to read the entire transcript of the proceeding. See Lally v. 560 (remand for briefing of legal issue). Urella v. 1993 Ohio App. 2004-Ohio-2981. Bd. recommendation..” R. . LEXIS 6035. 3d 235. 2. 1997). Ohio State Dental Board (9th Dist. Retirement Bd. not a final order).

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

Agency modifying the penalty (1) Per Brown v. Ohio Bur. 3d 40).09. LEXIS 22065 (Mar. an administrative agency. 1999) at *21-22.S. as the agency may be called upon in subsequent hearings to apply the facts in a similar fashion. 2003-Ohio-987. and what the agency considered to be facts supported by the record. Ohio Bur. para. b. 1985).. Trout v. 79. Blinn v. Ohio Dept. 293. 02AP-783. Ohio Bur. Id. 3d 391. of Emp. In the Brown case. 10th Dist. Dist. The Agency may only take actions or impose penalties authorized by law. of Edn. 1999 U. it must include in the record the reasons for such modification or disapproval. Serv. e. c. but did not accept the recommendation. (1994). the agency should afford due deference to the findings of the examiner. C-3-96-010. The agency should be able to both articulate and demonstrate how it is applying the law to the case before it.09. 70 Ohio St. (10th Dist. 32 Ohio St. when considering a report and recommendation under 119. (1994). City of Springfield. Ohio courts have indicated that. 119. then the exacerbating factors should be stated with particularity. of Emp. and the reasons why it relied on certain facts as opposed to others. Suspensions 56 . Further. (10th Dist. 3d at 2. (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. H. In re Certificate of Need Application of Providence Hosp. 3d 77.D. Disciplinary Actions 1. 70 Ohio St. Serv. (citing Jones v. Franklin Cty. Ohio Bur. the Supreme Court of Ohio has held that where the findings are based upon assessments of credibility driven by observance of witnesses’ demeanor. R. may make de novo findings of fact and conclusions of law. Ohio No. at ¶ 17.C. Crow v. 398. 70 Ohio St. See Brown v. 52 Ohio St. of Edn. Amherst Village Bd. of Emp. 2. If the penalty is to be less than that proposed by the hearing examiner. S. Brown v. 67 Ohio App.a. Serv. then the mitigating factors warranting the lesser penalty should be specifically set forth. This is just as important even if the case is not appealed. as the ultimate factfinder. No. Graziano v. the agency should give due deference to the recommendations of the hearing examiner. If the agency modifies or disapproves the recommendation of the examiner. of Emp. 3d 1. 29 Ohio App. 1990). 3d 289. If the converse is true. 3d at 2. the Supreme Court noted that the agency did not indicate that it examined the record. (1994). Serv. it should be able to demonstrate the conclusions it draws from the facts. Although the agency has the authority to make de novo findings of fact. A reviewing court will need to be able to determine what the agency relied upon. (1987). 2. 9. d. Sheriff (1990). and further adopted the findings of fact. 3.

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

09.09. R. b.C. 10. 58 . para. R. 119. Content and Issuance of the Order 1.09. The notice of appeal may. certified as an exact reproduction by the officer responsible for keeping the original. at ¶ 14-15. J. The agency must maintain the original order in its files. para. The order must be entered on the agency’s journal. para. 119.09. 2007Ohio-2877. The order modifying or disapproving the Report and Recommendation must state the reasons for the modification or disapproval. The party must be served with a certified copy of the order. and substantial evidence and is not in accordance with law. a. that tracks the language of R. The agency may incorporate by reference the entire Report and Recommendation. 2. 9. R. setting forth the order appealed from and stating that the agency’s order is not supported by reliable.09. 10. but need not. 119.C. R. 119. of Commerce.09.C. A certified copy is a duplicate of an original. 119. 3d 47. 9. 10. 119. R. 3. para. and substantial evidence and is not in accordance with law. Language. Ohio Dept. 2007-Ohio-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]. 10. Ohio Dept. a. 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.C. was found sufficient to put a party on notice as to how to file an appeal of an agency’s order. para.I.12. The order approving the Report and Recommendation should state that the recommendation is “confirmed and approved. 119.12 of the Ohio Revised Code. at ¶ 16.” R. set forth the specific grounds of the party’s appeal beyond the statement that the agency’s order is not supported by reliable. Hughes v.C. The order must include or have attached a statement of the time and method by which an appeal may be perfected. The Notice of Appeal shall also be filed by the appellant with the [appropriate court of common pleas]. 114 Ohio St. probative. and should attach a copy of the same to its final order. Hughes v. 4. Service of the Order 1. of Commerce. 5. para. probative.C.C. b.

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

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

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

Wells Community School.b. 46 Ohio St. Osborn v. Public Utilities Comm. No. ”Person” is defined as “a person.C. Other Parties 1. Akron City School Dist. 150-51. Clermont Natl. Harrison v. 3d 507. 119. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party. (2) When the State acts merely as an adjudicator. 10th Dist. 62 Ohio St. 114. 1984). nor its director was a “party” within the meaning of R. under R. 2002-Ohio-4235. Bank v.12. of Mental Retardation & Developmental Disabilities v. of Edn. 119. State ex rel. 49.C. Edwards (10th Dist. Bd. firm. 346. A bank that receives notice pursuant to R. 347. d.” R. Haig v. 119. Ohio State Bd. and has standing. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency. 21 Ohio App.” R. 1970). Ratchford (10th Dist. 119.C. Jackson (1976).01(G). 119. 385. e.12.C.C. Hamilton Cty. 3d 48. 3d 113. 46 Ohio St.12 (1) Neither the state. 27 Ohio App. 54 Ohio St. 2d 41. rev’d on other grounds. of Edn. c. Chapter 119). 1963). 1991). 2002-Ohio-1318. B. 102. 74 Ohio App. paragraph one of the syllabus. Professionals Guild of Ohio (1989). Relations Bd. 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. 46 Ohio St. Serv. a state agency. Siesel. 119. No. without an independent interest in the matter. Parents of Students Attending Edge Academy of Akron & Ida B. 2d 91. In re Job Abolishment of Jenkins (10th Dist. State ex rel. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R. 47-50. 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. of Admin.C. (1990). Osborn. (1938). 510. Government entities as parties for purposes of R. 134 Ohio St. of Mental Retardation & Developmental Disabilities v. 120 Ohio App. State Emp. 3rd Dist. 3d 147.C. to appeal an order by the superintendent of banks granting the application.01. Compare Seneca County Bd.C. Collyer v. 387. 13-0215. Blue Cross of Northeast Ohio v. 01AP-786. 1111. the State is not a proper party to an appeal pursuant to 119.. or partnership. Dept. v.01(G). Unless a statute provides otherwise. (10th Dist. 2d 41. association. 62 . (1992). 119. 3d 99. corporation.C.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. v.12. Broadview Developmental Ctr. 47.01(F).

2011-Ohio-2485. 3d 678.C. finding that “any requirement to make a written statement of the standard of review in the 63 . 74AP-231. (ii) The Seventh District Court of Appeals disagreed. 3. State Bd. at *6. at ¶ 6. 10th Dist. Ohio State Univ. 10th Dist. LEXIS 3041. 119.” Hunnewell v.C.C. No. as they are not parties under R. and substantial evidence and is not in accordance with law. No. a certificate of plan approval granted to a real estate developer for the construction of a mall complex. 10th Dist. 119. 05AP-511 (Dec..12. R. of Industrial Relations. Notice of Appeal 1.. 4.12. Pinkney v. 10th Dist. probative. and is not in accordance with law.P. 119. Only the local school board could bring the appeal. para. of Nursing. (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. (2) The party need not attach a copy of the order as long as the appellant sufficiently describes the order appealed from. but need not set forth the specific grounds of the party’s appeal. See Foreman v. 2006). 6. Statement of grounds/required language (1) The notice of appeal must state that the order is not supported by reliable. para. 10AP-421. 4. at *4-5. 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. beyond the statement that the agency’s order is not supported by reliable. Johnson v. probative. para.12. probative. R. 189 Ohio App. 1976 Ohio App. LEXIS 8150. No. Court of Common Pleas. Ohio State Bd. Ohio Dept. b. c. (1) Attaching a copy of the order satisfies the requirement to set “forth the order appealed. The notice of appeal must set forth the order appealed from and state that the order is not supported by reliable. of Edn. 2005) at ¶ 10. C. and substantial evidence and is not in accordance with law. 119. 1974 Ohio App. Setting forth the order appealed from: attach OR sufficiently describe. Lucas Cty. No. pursuant to R. (2) The notice may.12. Franklin C. Content of Notice of Appeal a. No. Ferguson-Ramos. at ¶ 12. 2010-Ohio-4731. Community residents had no right to appeal.2. 119.C. and substantial evidence. Barnes v.12. 4. R. 05CVF066560 (June 15. 76AP-423.C. Siegler v.

. Where to File R. 7th Dist. Effective May 8.C. County of place of business or county of residence 64 . Chapter 119. Ohio Dept. But see Welsh Development Co. No. 58 Ohio St. 119. Russell v. 128 Ohio St. 2505. Lorain Metropolitan Housing Authority (1979). 11 MA 39. The statute now provides that.2d 202.v. of Job and Family Services. 10th Dist. 119. 2. 2009.C. ruled in accordance with the Tenth District Court of Appeals.O.. “[i]n filing a notice of appeal with the agency or court. 12-CVF-1835 (Apr. 7th Dist. 4.P. 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. 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 Commerce. 2012. Under R. and a copy with the court. Evankovich.C. v. 2011-Ohio-1604 (appeal under R. Franklin C.12 (that “the agency’s order is not supported by reliable. Dudukovich v. Ohio Dept. at ¶ 34. 2. Chapter 2505 governs the procedure for administrative appeals. 389 N.C.Ohio-95.12.” R. probative and substantial evidence and/or is not in accordance with law. of Pharmacy v. No. 2012).12. 11 MA 39.notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction. Which court of common pleas? a. Inc. Zidian v Dept. 11AP-259. 10. 2012-Ohio1499. 119.12 to remove the requirement to file the original notice of appeal with the agency. 1. No.3d 198. 3d 471. State of Ohio Bd. No.C.2d 1113. 12 O. The notice of appeal need not contain the language specified by R.C.C. The notice of appeal filed with the agency and with the court of common pleas need not be exact copies of each other as long as they timely inform the respective recipients of the respondent’s intent to appeal the agency’s order. the General Assembly revised R. D. ¶ 39. the notice of appeal must be filed with the agency and with a court of common pleas.E.12 governs appeals taken pursuant to R. 119. of Commerce. probative. 2011-Ohio-3172. R. 2012-Ohio-1499. the notice that is filed may be either the original notice or a copy of the original notice.C. Warren County Regional Planning Comm. 204. para. ¶ 43-44. Form of the Notice of Appeal a. No. 10 MA 153. 7th Dist.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). Deaconess Hosp. Zidian v Dept. of Job & Family Services. 119.

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

at ¶ 14. Bd. at ¶ 13. 1995). 2012-Ohio-2908. 84 Ohio St. 5th Dist. 3d 317. Chapter 2505 governs the manner for filing appeals under R. Harrison v. of Admin. ¶ 28 (R.. 2002-Ohio-5986. 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. 2nd Dist. No. v. 3d at 102. 511. R. of Ins. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R. Liebold v.C. No. 10th Dist. Ohio Veterinary Med. 1993). R. Serv. 2012-Ohio-95. 103.12. No. No. 2007-Ohio-2877. 2007-Ohio-2972. Williams.C. both notices of appeal.12 is a condition precedent to the running of the time for appeal. 8th Dist. Hughes v. 2d 48. Hiddens. Ohio State Med. Nibert. Ohio Dept. 119. Deaconess Hosp. at ¶ 6.C. of Rehabilitation & Correction (1998).C. Pursuant to R.C. 189. Time for Filing the Notice of Appeal 1.. App. The actual mailing date of the order is the event that triggers the appeal period. Scott (1955). No. 110. Dickson v. (10th Dist. 5. of Commerce. 11AP-259. b. para. 37 Ohio App.C. 1955 Ohio App. Granting of suspension of the order 66 .C. 2. Ohio Dept. 321. 2003-Ohio-3121. 114 Ohio Misc. Colonial. The filing of an appeal does not automatically operate to suspend or stay the agency’s order. Geroc v.12. one to the agency and the other to the court. Ohio Liquor Control Comm. 01CA13.C.07) Nibert v. LEXIS 5647 (Nov. Yeager v. 4. 02AP-1019. 2. 72 Ohio Law Abs. State v.42(C). 3. para. 1987). (Franklin C. 2006-Ohio-3436. 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. 3d 47. a. Ohio Dept. 119. 119. 10th Dist. Suspension (Stay) of Agency’s Order on Appeal 1. 10th Dist. Ball. 21487. 2000). Bailey v.12 deprives the court of jurisdiction over the appeal and mandates dismissal.c. 2505. Inc. 119. Proper service pursuant to R. Mansfield. Bd. (8th Dist. of Job & Family Services. paragraph one of the syllabus. Arndt v. No. 1993 Ohio App. 195. 84 Ohio St. 3. LEXIS 744. 2011 CA 0085. Morrison v. Ohio Dept. 24. must be filed within 15 days of the mailing of the agency’s order.P. 4. Ohio Dept. 3d 192. v. 114 Ohio St. 51. Evidence a. 4th Dist. F. A stay of execution of the agency’s order pending appeal is not automatic. 103 Ohio App. 04AP-748. The court held that R. E.12. 3d 100.

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

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

Plotnick v. Giovanetti v. 6.C. A license renewal cannot be denied by reason of an agency order that is on appeal and has been suspended by the court. and did not intend for the limit to be evaded with successive stays. (b) Fifteen-month limitation on suspension of agency order is constitutional and does not violate due process or equal protection rights. State Med. b. b. R. (b) The court is required to enter judgment within six months of filing of the record. Haddix. 119. Exceptions (1) Liquor Control Commission. Nos. LEXIS 5639. 63 Ohio App.C. (i) The stay does not continue on appeal to court of appeals. 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. License renewal and suspended agency orders a. R.C. ¶ 8. 119. c. 69 . (3) However. 1987 Ohio App. R. 2nd Dist. Bd. LEXIS 10933.12. 119.(2) Generally where a timely appeal is taken from a trial court. 1991). 265. 6.12. 9951.C. R. any trial court order suspending an agency order will remain in effect until the appellate process is complete. City of Dayton v. of Ohio. Ohio State Dental Board (7th Dist. 119. para.121. The final adjudication order may apply to a license that was renewed during the appeal (regardless of stay/suspension of agency order). No. 3d 262.12. 84AP-225 & 84AP-362. at *24-25. 10th Dist. (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.12. 1984 Ohio App. at *6. 119. para. Expiration of license shall not affect the appeal.C. R. 5. 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. whichever occurs first. or upon a final decision of the common pleas court. (c) The General Assembly set a definite time period for the duration of a suspension of the agency’s order. para.

Liquor Control Comm. Price v. then there is no reason not to apply the Civil Rules. 4. 84AP1085. R. . of Cty. LEXIS 8285. 1 for guidance. Ohio State Dental Bd. v. 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. the Civil Rules should apply unless they are “clearly inapplicable. R. d. 2.d. the court is limited to the record below. 1985 Ohio App. at *6) (administrative appeal pursuant to R. 8th Dist. 119. 66 Ohio App. LEXIS 3871. R. The 11th District has held that when the common pleas court must decide questions of law and fact. Applicability of Civil Rules to Administrative Appeals 1.121. G. (1990). Case-by-case determination for special statutory proceedings. 70 . Bd. . 1(C).” An administrative appeal is a special statutory proceeding. . 99 Ohio Misc. 3d 24. If appellant wins on appeal.. court shall order agency to renew license upon payment of fee. 133. 1999). unless there is a good and sufficient reason not to apply the rules. as in appeals under R. and the court held that Rule 60(B) was inapplicable to such proceedings. 1990). 70 Ohio St. and attorneys should look to the statute granting the right of appeal to determine whether the rules guide the procedure. c. Commrs. shall not apply . Ohio Civil Rights Comm. 56 Ohio St.C. 383. R. the Rules apply unless by their nature they are clearly inapplicable. Civ. such as when an appeal requires a trial de novo.” 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. of Liquor Control by Stover v. No.C. 45 (determinations made on a “rule-by-rule” basis). The Civil Rules will be applicable to special statutory proceedings that are adversarial in nature. This question must be decided on a case-by-case basis. 33089. b. 10th Dist No. 2d 131. 3. the court held that in an appeal under 119. Civ.. Giovanetti v. See D-1 Liquor Permit Filed with the Ohio Dept. To the extent that the issue in question is procedural in nature. Westinghouse (1982). Civil Rule 1 is clearly a rule of inclusion rather than exclusion. Ct. R.12. Talley v. at *4-5 (citing Sweetbriar Co. 2506. . Warner (Cleveland Mun. 1(C) states that the Civil Rules “to the extent that they would by their nature be clearly inapplicable. Civil Rules may apply when the common pleas court conducts a trial de novo. 3d 381.12 is a special statutory proceeding to which the rules of civil procedure do not apply). Decisions on particular civil rules. but not in Chapter 119 appeals. a. however. Administrative appeals are special statutory proceedings. 2d 42. Ramsdell v.C. Under Civ. Courts have looked to Civ. 1974 Ohio App. (7) in all other special statutory proceedings . . 27. (11th Dist. 119. The Civil Rules are not categorically inapplicable to appeals from administrative orders.

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

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(b) No prejudice when items omitted did not appear to be outcome determinative. (1) In a total failure to timely certify. (1986). McDonald v. the judgment is mandatory. Ohio Rehab. LEXIS 5492.C.12. the party is entitled to judgment only if the party is “adversely affected” as provided in R. No. (2) “Adversely affected” requires a showing of prejudice resulting from the item being omitted from the record. Inc. (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. Ohio State Bd. 9. No. Hamilton County Welfare Dept. Ohio Liquor Control Comm. (1986). Ohio Liquor Control Comm. City of Cleveland. of Commerce. No. Ohio State Dept. Div. 3d 225. 2003-Ohio3261. Serv.a.. 119. 74 . v. (c) If a party neglects to file a motion. in other circumstances. 155. 09AP-1050. the party waives the right to object to failure to certify the complete record. 119. 01AP-1217. 2.” Jordan v. 1987 Ohio App. omission requires correction. but the record is not complete. No. of Real Estate and Professional Licensing. at ¶ 10. Ohio Rehab. Comm.C. Lorms v. Barlow v. the party is required to show prejudice. of Nursing Edn. Comm. v.” R.. 2002-Ohio-3338. at * 6-7. of Commerce (1976). 227.. LEXIS 1704.12. See Wolf v. of Psychology (4th Dist. Bd. Arlow v. b. Ohio Dept. 24 Ohio St. 3d 488 at 491-92. LEXIS 6439. at *4. (1) Motion required (a) Court may enter a finding based upon failure to certify record only upon a party’s motion. 3d 153. C-860124. (2) “Failure requires reversal. Prejudice required for incomplete record (1) When an agency timely files the record. 119. 1996 Ohio App. 24 Ohio St. 8th Dist. 1985). (3) Showing of prejudice (a) Failure to file minutes was prejudicial when the issue in the case was whether agency based its decision upon one if its administrative rules. Bergdahl v. 21 Ohio App. Cntr. 1987 Ohio App. 70 Ohio App. 532. 1990). 10th Dist. Serv. State Bd. at ¶ 12. shall cause the court to enter a finding in favor of the party adversely affected. Jennemen v. 10th Dist. 155.12 provides that “[f]ailure of the agency to comply within the time allowed. upon motion. n. Linbaugh Corp. 48 Ohio St. of Chiropractic Examiners (1st Dist. at *7. and Nurse Registration. See Arlow v. Gourmet Bev. Distinction between complete failure to file the record and omission from record. 2010-Ohio-3842. R. 1st Dist. 4th Dist. c. No. 82135.. 3d at 155.C. Ohio St. 2d 153. para.

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

502. at ¶ 36. however. then the trial court may also determine the constitutionality of the statute as applied. Ohio State Bd. Newly discovered evidence and Civil Rule 60 (B)(2) (1) Language in R. para. 1990). CVS/Pharmacy #3131 v. he or she cannot then raise the constitutional issue by introducing new evidence before the trial court unless the evidence is newly 76 . courts have held that the moving party has the burden of demonstrating: (a) that the evidence was actually “newly discovered”. c. Unless otherwise provided by law. 288. 1992). Ohio Bur. If the appellant does not present such evidence before the agency. R. 121 Ohio App. No. 67 Ohio App. 83 Ohio App. Ohio State Bd. 3d 33. 82215. 119. that is. 119. newly discovered evidence does not refer to newly created evidence.C. and b. 2. 2003-Ohio-3806.1. 3d 278. of Pharmacy. 2003-Ohio-3806. 8th Dist. of Motor Vehicles (9th Dist. Duryee.12. 38. b. The court may grant a request for the admission of additional evidence when it is satisfied that such additional evidence is: a. at ¶ 36. 119. CVS/Pharmacy #3131 v.” Steckler v. of Registration for Professional Engineers & Surveyors (9th Dist. 3d 495. 60(B)(2). Duryee (9th Dist. Diversified Benefit Plans Agency v. 3. 540 (citations omitted). 101 Ohio App. of Psychology (8th Dist. the court is confined to the record as certified to it by the agency. “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. Could not with reasonable diligence have been ascertained prior to the hearing before the agency. cases interpreting Rule 60(B)(2) may therefore be helpful in interpreting R. 101 Ohio App. (2) In interpreting Civ. not merely impeaching or cumulative. of Pharmacy. Ohio State Bd.” Holden v. 1997).C.12. 3d at 502. Newly discovered. New evidence of constitutional issues (1) If an appellant presents evidence before a state agency concerning the constitutionality of a statute as applied. 1995). and that a new trial would probably produce a different result.12 relating to newly discovered evidence is analogous to language in Civil Rule 60(B)(2). and (c) that the evidence is material. R. (b) that the movant exercised due diligence.C. State Bd. 3d 531. Newly discovered evidence a. Clark v. 11. it must have been discovered subsequent to the trial.

relief must be sought by exhausting this remedy before the courts will act. Rationale a. In other words. 2nd Dist. Zieverink v. Lieux v. 2012-Ohio-2187.C. (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. 16895.discovered and was not ascertainable with reasonable diligence prior to the hearing before the agency. BMV.12. Ohio Liquor Control Comm. 12th Dist. Exhaustion of Administrative Remedies Doctrine 1. (1969). 11AP-837. Berning v. 1996). State ex rel. Bartec. 154 Ohio St. at *5. Jaber (6th Dist. 3d 10. of Job & Family Servs. Because the statute in question was part of the statutory framework that the board should have applied in its analysis. CA2011-05-039. CA2011-05-039. American Legion Post 0046 Bellevue v. No. ¶ 65. J. 1996). 111 Ohio App. 12th Dist. 63 Ohio St. 11. Dept. No. 2003-Ohio-7251. The state could not have discovered the evidence in time no matter the diligence. In re Henneke. 395 U. b. Noernberg v. No. Ackerman (1st Dist. City of Brook Park (1980). See Wymsylo v. 797. at ¶ 21. Crawford-Cole v. 2d 26. 3d 874. In re Henneke. Al-Sadeq Islamic Educational Ctr. 113 Ohio App. Lucas Cty. 2012-Ohio-2991. 119. 132 Ohio St. Educational Serv. L-11-1177. No. The United States Supreme Court in McKart v. U. Westlake (1951). did not waive the issue on appeal. 416-17 (must exhaust administrative remedies prior to mandamus action). 6th Dist. 193.. by failing to raise the issue as a defense at the administrative hearing. ¶ 22. provided the following reasons for the requirement: (1) the need for the litigant to allow the agency to build a factual record. 3d 795. No. 2012-Ohio-996. 6th Dist. a party challenging the constitutionality of a statute as applied must raise the challenge at the first available opportunity during the administrative proceedings.. See also. Covell v. v. L-03-1089. 1998 Ohio App. (6th Dist.S. Failure to timely request a hearing does not preclude a court's consideration of a due process violation. LEXIS 2964. (2012). Definition a. of Transp. The doctrine of exhaustion of administrative remedies mandates that when an administrative remedy is provided by statute.. c. No. Lucas Cty. City of Toledo v. 77 . 29 (prior to seeking court action in an administrative matter. 1 Ohio App. Ctr.S. ¶79. 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. Ohio Dept. 2012-Ohio-996. 879. at ¶ 5. the party must exhaust the available avenues of administrative relief through administrative appeal. the respondent. Inc. 185. 2. 412.3d 167. 10th Dist. 1981). 2012-Ohio-3506.

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

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

of Commerce. See Oak Grove Manor. No. Clagg v. Ohio Dept.. Ohio State Med. See Harrison. 3d 76. v. LEXIS 2665. Bd. Caltrider (2nd Dist. But see Derakhshan v. No. See Thompson v. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. See also. 2005-Ohio-5575. 3d 317. Fiorica. of Rehabilitation and Correction. at *6-7. Inc. 3d at 319-20. v. 2nd Dist. LEXIS 4367. at *6-7. at ¶ 6. 10th Dist. See Camrack v. but does not deprive a person of the right to appeal. 2005-Ohio5575. Reichart-Spaeth v.. 1987 Ohio App. 10th Dist. Camrack v. 10th Dist. Bd. at *10-11. No. at *8-9. 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. (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. 18521. 01AP-71 and 01AP-72. 2005). 13660. LEXIS 1194. State Med. not a jurisdictional defect). v. 2007-Ohio-5802. Ohio State Med. 8th Dist. 103 Ohio App. 2010-Ohio-416. LEXIS 9961. b. 164 Ohio App. Harrison v. Inc. which deprives the common pleas court of jurisdiction over the merits of the appeal. 3d at 319-20. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. Worker Bd. (10th Dist. State Med. 164 Ohio App. No right to consideration of merits on appeal. Reichart-Spaeth. 2001-Ohio-4113 (citing In re Turner Nursing Home. 319-20. Some cases have held that a failure to timely request a hearing constitutes a waiver of hearing. (2) Jurisdiction to consider constitutional challenges 80 . LEXIS 9961. Ohio Dept. 1988 Ohio App. State Med. at ¶ 6. Baycliffs Corp. Fiorica. *4. No. Bd. LEXIS 5729. 103 Ohio App. Caltrider (2nd Dist. 1993 Ohio App. 10th Dist. 1998-Ohio-414. at *4. Bd. Blackburn Sec. Harrison v. LEXIS 1194. LEXIS 4367. at *3). No. 1987 Ohio App. 1987 Ohio App. 2001 Ohio App.. 86AP-767. No. 54292.12 appeal. LEXIS 9961. Alcover... Ohio Counselor & Soc. which deprives the common pleas court of jurisdiction over the merits of a 119. of Ohio. 2001 Ohio App. the agency can rebut the presumption with evidence that the request was never received. Ohio State Med. 103 Ohio App. Alcover. 1987 Ohio App. 3d 76. Bd. Bd. 6. 88AP-516. No adverse affect on right to appeal. 82 Ohio St. No. 07AP-261. 10th Dist. b. c. 3d 277.(declaratory judgment action).). No. Ohio Dept. of Human Services. v. Failure to request hearing as failure to exhaust (split in authority) a. 1995). 1988 Ohio App. Alcover v. 09AP-78. 2nd Dist. at ¶ 24 (holding that failure to exhaust is an affirmative defense that can be waived.

of Twp. The respondent is limited to questions of law. See also. irrespective of the position of the proceedings on the calendar of the court.C. Constitutional challenges must be raised at the first opportunity. 11 MA 39. Bd. hearing an action de novo. Avery v. of Commerce. (c) Injunctive Relief. of Ohio. 81 .03's language. "[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. R. 3d 92. No. The administrative agency does not have authority to declare its statutes unconstitutional. raising such a challenge in an administrative action would be futile. 3d 155 (holding that in order to seek injunctive relief. Chapter 119 proceedings over all other civil cases. 2. (1984). Improvement Dist. plaintiff must exhaust administrative remedies if available). 3d 64. K. v.C. v. failure to participate in the hearing waives any issue with the factual determination made by the agency. The trial court may allow further evidence or arguments. However. Inc. Trustees of Etna Twp. Bd. but rather authorizes the court to admit and consider new evidence if permitted and to weigh evidence on the whole record. Lynch (2000). Ohio Motor Vehicle Dealers Bd. 14 Ohio St. Rossford. 7th Dist. It is within the discretion of the trial court to allow the parties to present oral argument. “…injunctive and declaratory relief are inappropriate if they act to by-pass special statutory proceedings. 2012-Ohio-1975. 7. 2012-Ohio-1499. submit briefs. Administrative appeals take precedence: The court shall give preference to R. Id. accordingly. Id. if such challenges are not raised in an administrative proceeding.C.12. 132 Ohio St. 67. Role of the Common Pleas Court on Administrative Appeal 1. (b) Exhaustion required for “as applied” constitutional challenge. No. 2001 Ohio App. of Ohio. 10th Dist. para. accordingly. Conduct a “hearing” on the appeal a. ¶ 13.(a) Exhaustion not required for facial constitutional challenge. R. 00-CA-99. Zidian v. 2007-Ohio-5802. Failure to appear at the hearing does not constitute failure to exhaust administrative remedies. at ¶ 28-29. LEXIS 2030 (Court lacks jurisdiction to be consider injunctive relief when statutory administrative remedies were not first pursued). b. it will be impossible to develop the record supporting the challenge. AT&T Communs. State Med. 07AP-261. at ¶ 26. Central Cadillac Co. 12. and therefore exhaustion is not required for a facial constitutional challenge. 2001). Ohio Transp. LTD v. Derakhshan v. 145 Ohio App. Dept. 2506. 119. The “hearing” may consist solely of a review of the record certified to the court.” DBM Enterprises. failure to request a hearing bars an as applied constitutional challenge on appeal.. and/or introduce newly discovered evidence. 5th Dist. c. No. (6th Dist.

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

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

Crumpler v. d. 2011-Ohio6089. 83 Ohio St. 12 Ohio St. 3d at 528. (6th Dist.C. No.” Henry's Cafe. if it were the original trier of fact. Griffin v. Ladd v. construction or interpretation of statutes and rules of the agency. Sandusky (1984). Licensing Bd. Therefore. ¶ 14. No. 170 Ohio St. Café Napoli Partnership v. but. the court of appeals is without jurisdiction to review that court’s judgment. VFW Post 8586 v. 9th Dist. Ohio State Liquor Control Comm. Bingham v. (8) The court must defer to the factual findings unless the findings are internally inconsistent. 2007Ohio-3210. 10th Dist. Ohio Bd. b. Civil Rights Comm. it is immaterial that the reviewing court. Westerville City Schools v. 3d 323. 76 Ohio App. at ¶ 16. 1 Ohio B. rule. a. probative and substantial evidence and is in accordance with law. State of Ohio. 46 Ohio App. 11AP-174. 122-23. 1980). vacate or modify an order of an agency unless it finds that the order is supported by reliable.. 119. 1998 Ohio App.¶ 42. An agency may appeal from a common pleas court’s review of an agency decision only upon questions of law. 236. where it makes such a finding. when the trial court has made no specific determination as to the meaning of a statute. Rep. (5) A reviewing court should not substitute its judgment for that of an administrative board. No. State Bd. (6) Although the common pleas court should afford due deference to the factual findings of the agency. Agency may appeal only on questions of law relating to the constitutionality. 3d 79. Appeal from the Common Pleas Court to the Court of Appeals 1. 11AP-544. 2d 120. (10th Dist. Ohio Counselor and Social Worker Bd. 34. L. 84 . A reviewing court has no power to review penalties (1) The Court of Common Pleas may reverse. or regulation. rest on improper inferences. Conrad (1984). (10th Dist. No. 18510. R. Ohio Liquor Control Comm. 2d 108 at 111. probative and substantial evidence. LEXIS 532.12. Farrao v. 10th Dist. Kisil v. 71 Ohio App. or are otherwise insupportable. 1991). 63 Ohio St. (7) As long as the administrative agency’s order is supported by reliable. 3d 30. of Edn. 312. the agency cannot appeal. of Nursing. vacate or modify. 1998-Ohio-181. Inc. A reviewing court has no power to review penalties meted out by the agency. Furthermore... Bureau of Motor Vehicles (5th Dist. 233.of Cincinnati v. may have reached a different conclusion. 319. the agency’s findings are not conclusive. where it is clear that the common pleas court’s judgment was made entirely upon the evidence. 328-29. 81. 1991). Bd. 2012-Ohio-1416. 1975). Appeals from common pleas court by the agency are limited. State Med. it can only affirm and cannot reverse. at *6-7. Miami-Jacobs Career College v. 06AP-1055. v. Board of Liquor Control (1959). Ohio Veterinary Med. of Ohio. 10th Dist.

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

allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level. 124.C. 124.092(F)(2) would not bar recovery of fees. or local government. 119. 119.092(F)(4).C.C. and R. unless the agency has established a higher hourly rate by rule that is applicable under the circumstances. R.C. 119.092(A)(2). 119.092(B)(2)(c). 2335.C. An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits. state. in an amount not to exceed $75 per hour. 119. Non-recoverable fees a. A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. the First District has held that attorney fees may be recovered after hearings under R.C. but not R.092). 2003-Ohio2203.092(F)(4) as it pertains to the state personnel board of review.C.C. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R.03 (involving discharges or layoffs) and those arising R. (1) NOTE: There is a split of authority concerning the scope of R. which allows a prevailing party on appeal to move the court for attorney fees in accordance with R. d.03.X.C.).C. 119. 119. R. 119.092(F)(4). e. 3d 600. 119. (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits. R.092(F)(3).C.C. An adjudication hearing was held by the state personnel board of review pursuant to R. R.34. 119. What are “fees”? a.C. An adjudication hearing was held to establish or fix a rate.092(F)(1). 2. 124.092(F)(2). 124. B. syllabus.C. “Fees” means reasonable attorney fees.C. b. and 2. 1. R. R. R.12. 152 Ohio App.C. The fees of the prevailing eligible party were one hundred dollars or less. 86 . R. 119.39. ATTORNEY FEES A.092. Haghighi v. Moody (1st Dist. 119. c.34 (involving removals or reductions for disciplinary reasons). Chapter 119 contains two attorney fee provisions: 1.C. Relying on the plain language of R. Recovery of Attorney Fees by Party Prevailing at Hearing (R.C.

A prevailing party is entitled to attorney fees. 73 Ohio St. Stetz.C. 1992). LEXIS 3536. the award is not automatic. Hamilton Cty. Wilde v. Auglaize Mercer Community Action Comm. (1995).C. Chapter 4117.03 -. Ohio Civil Rights Comm. (2) An individual whose net worth exceeded one million dollars at the time he received notification of the hearing.092(F)(4). 124. Carruthers v. Inc. An “Eligible party” means a party to an adjudication hearing other than the following: (1) The agency. 121 Ohio App. 1999 Ohio App. See discussion below re: “prevailing party” under R. 98CA00138.C. at *37. of Common Pleas.after hearings under R. 5th Dist. at *7-8. however. 5th Dist. 1999 Ohio App. No. Nos. Ohio Veterinary Med. g.12 b.03. 3..C. or an organization that had a net worth exceeding five million dollars at the time the party received notification of the hearing.092. Procedure for requesting fees from the agency a.C.092(A)(1). 401-02. 124. 3d 723. Juvenile Div. 119. (3) The Tenth District Court of Appeals has held that all lawful hearings before the SPBR are necessarily in accordance with R. Ct. (1st Dist. 43. State ex rel. R. (3) A sole owner of an unincorporated business.C. 3d 397. f. 725. R. 119. R. 119. v. 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.092 does not permit an eligible prevailing party to file a separate action for fees in common pleas court. Discount Fireworks. An adjudication hearing was held by the state employment relations board pursuant to R.C. 98CA00025. O’Connor (10th Dist. Estate of Kirby v.C. 87 . shall not be excluded as an eligible party because of its net worth. 78 Ohio App. Licensing Bd. LEXIS 4813. 119.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. 1999CA00055. v. 4. 119. The Ohio Civil Rights Commission is not an “agency” for purposes of R. and (4) An employer that employed more than five hundred people at the time the party received notification of the hearing. 1997). b. 3d 39. A motion to the agency is the only mechanism for recovering fees. Who can recover fees: prevailing eligible party? a.

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

(3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing.C. not its initiation. (2) Whether the position of the agency in initiating the matter was substantially justified. 65 Ohio St. matter on which action is brought and issue is joined and in relation to which. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100. 1992-Ohio-1. Id.07. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation. 3d 338.C. not continue a proceeding that has already begun. Sowald.092(B)(2). if issue be one of fact. 119. Substantially justified (1) Whether the initiation of the action was substantially justified is evaluated at the time of initiating the action. Sowald. as found by the court of appeals. testimony is taken. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. Denial or reduction of fees requested 89 . 1992-Ohio-1.06 and 119. b. 342.(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.. issuance of the notice of opportunity for hearing. at 342-43. Merits of the motion: was the agency “substantially justified” in initiating the action? a. and finds improvement in deficiencies. Initiating action (1) “Initiate” means to commence an action. of Health v. 119. 9. b. State ex rel. (2) Generally. 1992-Ohio-1. (2) See cases below interpreting “substantially justified” language in R. Decision on the motion for fees a. R. i. Moreover. 8.e. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. (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.C. Sowald.12’s provision for attorney fees. 119. Ohio Dept.

c. 474. 119. Findings and conclusions underlying the decision. a.092(D).C. 119. 119. R. R. 1998) 130 Ohio App.092. d. 1999). a. if any. State Dental Bd.C.C.C. Sohi v. Bd.092(B)(2)(a). (10th Dist. the award is treated as a judgment under R. Chapter 2743. Gladieux v.092(E). 3d 465. or special circumstances make an award unjust.092(B)(2). Reasons or bases for the findings and conclusions. (1) To be filed October 1 in the fiscal year following the fiscal year covered by the report. Payment of award a. (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. 119. 425. (2) Copy must be mailed to the prevailing eligible party.C. The agency must file a report to be filed with the general assembly. not the board. d. (2) Must include specific information listed in R.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. R. (1st Dist. Eligible party appeal 90 . R. 11. R. c. 133 Ohio App.C. Med. Per R.(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. because appeals are decided by the common pleas court. May be paid by agency from any funds available for such compensation. and Amount of the award. 119. (b) If the fees do not exceed $100. 3d 414. Appeal to common pleas court under R. Ohio St.092(B)(2)(c). 119.092(B)(2)(b).092(E). Filing and service (1) Determination must be entered in the record. except no interest is paid. the decision as to fees must be in writing and must state: (1) (2) (3) (4) Whether an award has been granted.C. 119. If no funds are available. b.C. 119. 10.C.

119. 119.12.C.092(C). R.(1) May appeal denial or reduction of award. R. 2. R. “Prevailing party” 91 .C.12. The agency must file a certified record as required in R.39 sets forth general rules governing the award of attorney fees in actions against the state. 02AP-955. 119.C.C. 119. 1.C. not the agency itself.C. Ohio Veterinary Med. Licensing Bd..092(C). Harrison v. 10th Dist. R. No.C. R. 3. 119. at ¶10.092(C). R. 119.092(C). (2) Decision is final and not appealable.092(C). 2335. b. (2) The agency’s appeal would be filed in the manner specified by R. 2003Ohio-3816. In re Williams (1992). 119. 119. R.39 a.C.C. 78 Ohio App. 5.C. (2) he is financially eligible.12 for appeals. in accordance with R.12. (1) The court may modify the decision of the examiner or the agency only if the failure to grant. (3) A copy of the decision must be certified to the agency and the eligible party. 4. 119. R. 558. Statutory framework: R.C. or calculation involved an abuse of discretion.C. 2335. and (3) the state’s position in initiating the matter in controversy was not substantially justified. R. This attorney fee provision applies only to appeals brought pursuant to R. c. 2335. (2) File in same court in which the party would appeal agency’s adjudication order.39(B) provides that an individual may recover attorney fees if (1) he prevails.12 provides that the court shall award compensation for fees to a prevailing party.C. 2335. Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee. 119. 3d 556. Common pleas court decision. C.C. d. Ability to receive fees: prevailing eligible party a.39. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order.

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

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

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

39 a. the court in In re Van Arsdel distinguished cases such as Holden v. you may wish to consult the Ohio Administrative Law Handbook and Agency Directory in Baldwin’s Ohio Administrative Code.C. 67 Ohio App.C. a. 95 . 3d 531. No. 2335. R. the agency may appeal an order granting an award. R. 2335. See also. c. under the right circumstances. 1992-Ohio-1. An administrative appeal decision under R. 1994) at *6-7.39(B). 2335. 3d 338. Adjudication orders exempted under R. State ex rel. Ohio Bur. LEXIS 6174 (Feb. Exemptions from R. 3d 458. 2335.2335. of Health v. b. attorney fees could be awarded in a proceeding where the state attempted to decertify a nursing home.092(F).” This principle was reaffirmed in Thermal-Tron. 65 Ohio St.C. 10.C. 65 Ohio St.35.C. If the case is an appeal of the adjudication order of an agency pursuant to section 119.C. Schregardus. 11.39. 1990).39(F)(3)(a).39(F)(3)(b). Pro se litigants may not be awarded attorney fees under R. 460. 10th Dist. 2335. Ohio Dept. b. 2335. 1994 Ohio App. 119.C. R. Note: For additional information on administrative law. c.C. where the state sought to take away a license already held by an individual. state. 2335. However. When the eligible party’s attorney was paid pursuant to appropriation by federal. Sowald. State ex rel.39(B)(2). d. The order of the court may be modified by the appellate court only if it finds that the grant or the failure to grant an award.39(F)(3)(c). 5101.39(B)(2). by a prevailing eligible party that is denied an award or receives a reduced award. R. where the court assumed (without deciding) that. Freeman v. 24. or local government.C. An order of a court considering a motion under this section is appealable as in other cases. of Motor Vehicles (9th Dist. Morris (1992). v. b. Appealing an award of attorney fees under R. involved an abuse of discretion. Inc. 93AP-331.12 of the Revised Code. or the calculation of the amount of an award.

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