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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

b. remove or cancel licenses. B. R.C. 117. R.09. board or commission may be required to follow the Ohio Administrative Procedure Act.01(A)(1). R.01(A)(1): Any official. 119.01(A)(1): (1) Public Utilities Commission. amendment or rescission of rules mandated by R. 119. 119. Chapter 119 Pursuant to R. revoking or cancelling licenses.01(A)(1).01 to 119. the Department of Taxation.C. 1975).C.C. CHAPTER 119 A. department. 2d 115.01(A). School Employees Retirement Sys. boards and commissions are specifically named in R. R. 119. e. 1 .C. the Industrial Commission. 119.C.C.C. R.C. division. 119. 44 Ohio App. The licensing functions of any administrative or executive officer. department. 5101. (2) A statute specifically subjects the agency. 119.C. or commission that has the authority to promulgate rules or make adjudications in: (1) (2) (3) (4) (5) the Civil Service Commission. (3) The agency.13 of the Revised Code. suspend. Governmental Entities Subject to R.I. suspension. Chapter 119. Exclusions from Definition of “Agency”.C. and/or the Bureau of Workers’ Compensation. division.C. board or commission has authority to issue. board. Fair v. d. 119. bureau. (2) Issuance. the Division of Liquor Control. Entities that Constitute an “Agency” 1. APPLICATION OF R. Any administrative or executive officer. revocation or cancellation of licenses.01(A) a. (1) Certain agencies. board or commission of the state government specifically made subject to sections 119.C. R. c. board or commission to R. there are three ways in which a state agency. Chapter 119.01(A)(2)(b). board or commission of the state government having the authority of responsibility of issuing. Agencies Specifically Named in R. bureau. suspending. (10th Dist.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.

§ 119. 3. 759. (1988). 96 Ohio App. institution. as well as other activities specifically mentioned in R. 119. § 301. (5) Actions of the Industrial Commission or Bureau of Worker’s Compensation brought under R. commission. Chapter 119. (3) Controlling Board. R. Relations Bd. institution.. Chapter 119 without restriction to rulemaking. Ohio Dept. [but not] any arrangement whereby a person. 67 Ohio St.C. 119.01(B).C. Entity’s own law specifically makes it subject to R. b. South Community.C. 38 Ohio St. of Health (10th Dist. 10. Mills (1981). 2. revoking or canceling licenses.C. Franklin C. (10th Dist.94. 53 Ohio App. 95CVF064466 (Aug. 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. 47. 1988). b. v.(2) Utility Radiological Safety Board. v. The courts define an agency’s licensing authority based on the involvement an entity has with the processing of licenses. 3d 224. a. 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. or entity furnishes Medicaid services under a provider agreement with Ohio Department of Human Services. 1995). The Revised Code defines “license” as: [a]ny license. 2 . State Emp. 119. rehabilitating or liquidating businesses. Assn. Home S. 41 Ohio St. Entity has authority for issuing. & L. No. 3d 754. v.12. McEldowney v. of Transp.C.C. Boesch (1975). Genoa Banking Co. 2d 106.P. Code Ann. certificate. Examples: (1) Decision to hold contractor in default of contract is not a licensing function. 4123. 111. Inc. 2d 115.” 49 Stat. or charter issued by any agency….C. a. suspending. 3d 45.01-4123. as amended. 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. v. (2) The action of a superintendent of banks in approving branch applications was such an elaborate procedure that the action was considered a licensing function. 42 U. The mere approval of a savings and loan branch location application was not a licensing function. it is not an arrangement whereby a person. v. 620 (1935). Chapter 119.01(A).S. Ohio Dept. permit. There must be a clear legislative intent to make an entity’s functions subject to R. Asphalt Specialist Inc. (4) Actions of the superintendent of financial institutions and the superintendent of insurance regarding the taking possession. (3) In Bayside Nursing Ctr. 1994). Ohio Expositions Comm.

paragraph two of the syllabus). the act is a licensing function because it does not fall under the exemption included in R. 2003-Ohio-6940.01(B). "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination. suspending. 119. (1981). the university was also bound by Chapter 119 in the exercise of those powers. 2d 149. 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. the refusal was not an agency decision and therefore. v. of Findlay School Dist. para. Dept. revoking. or canceling of a license. entity exercising derivative power must be a state agency. Where an entity exercises power derived from another agency that is covered by Chapter 119. or revoking or suspending a license . b. Board of Edn. was not appealable pursuant to R.C. of Commerce.C. and functions of the Department of Administrative Services with respect to civil service employees. Chapter 119. 174 Ohio St. Chapter 119 Applies to Adjudications.3 (citing Karrick v. 03AP-330.12. Entities exercising derivative power a. Chapter 119 provides certain rights in relation to adjudications. 68 Ohio St. 10th Dist No. 119. The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services. Inc. 151-52.” R. Bd. which then authorized state universities to exercise the powers.. 68 Ohio St. C.C. 467. para. of Trustees of Ohio State Univ. 119.01 to 119. of Trustees. (1963). Ohio Dept.. Since the act was not a licensing function. Not Ministerial Acts 1. 1 (emphasis added). 2d at 152 n. which was an agency subject to Chapter 119. a. of Admin. 1 (emphasis added). duties.12. 124. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119. Serv.14(G). 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. 119.C.Therefore. 4. (4) The Tenth District Court of Appeals held in Springfield Fireworks. or denying the issuance or renewal of a license or registration of a licensee. v. at ¶ 24.13. Right to an appeal: Pursuant to R.C. (1) In Bd. The conduct at issue was authorized by R.C. 3 . may appeal from the order of the agency to the court of common pleas." R. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119. the entity is also subject to Chapter 119.06.

70 Ohio App.. 2d 1. Inc. at 12. Brown (1982). 612. Koch v. at *8. cited in Ohio Boys Town v. Ohio State Racing Comm. Id. 96 Ohio App. Odita v. 1980 Ohio App. Bayside Nursing Ctr. in obedience to the mandate of legal authority.C. one must determine whether the act of the agency constituted an adjudication. 2002-Ohio-6838. 1993). pursuant to R. Creasy. Chapter 119. 3d 702. In re Seltzer (1993). 69 Ohio St. Ohio Dept. of Natural Res. 88. An “adjudication” is defined by R. LEXIS 12569.2. given a certain state of facts. 3d 220. 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. 2d 1 that. 1990). 618. but does not include the issuance of a license in response to an application with respect to which no question is raised. 150 Ohio App. without regard to or the exercise of that person’s own judgment upon the propriety of the act being done. 3. v. State Dept. No. Ministerial acts involve no discretion (1) In Koch v. New London Hosp. (10th Dist. or was merely a ministerial act. 69 Ohio St. 4 . in order to determine whether Chapter 119 applies. the licensee was entitled to a hearing prior to being forced to cease bingo operations. v. of Human Servs. 66 Ohio St. Trauger v. (10th Dist.). privileges. 3d 82. “Ministerial Act” defined a. of Health (10 Dist. Inc. 616. duties. the act of denying his transfer application was a ministerial act to which no right to appeal attached.01(D) as: “* * * the determination by the highest or ultimate authority of an agency of the rights.C. 3d 612. Raceway Park. 3d 612. The Ohio Supreme Court ruled in Ohio Boys Town. 3d 754. 88 Ohio App. 80AP-208. (6th Dist.” b. Ohio Dept. The Supreme Court held that the rejection of the application for renewal was an adjudication by the highest or ultimate authority of an agency. State ex rel. b. 67 Ohio St. a person performs in a prescribed manner. Brown (1982). benefits. Nash (1902). 614. or legal relationships of a specific person. nor other acts of a ministerial nature. Ohio Dept. 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. c. 1994). v. v. Thus. of Natural Res. 762. 224. at ¶ 16. “Adjudication” defined a. Id. 119. of Ohio Non-Profit Corp. 10th Dist. A ministerial act has been defined as an act that. 70 Ohio App. therefore.

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

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

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

325. c. 1. of Real Estate and Professional Licensing.C. 1981).. time frame for filing the notice is discretionary. 4. No. LTV Steel Co. No. the party has a right to a reasonable notice of hearing and a reasonable opportunity to be heard. Ohio State Dept. as a result. Barlow v. 2010-Ohio-3842. 6th Dist. If a party has a right to a hearing. 2 Ohio App. NOTICE REQUIREMENTS A. ¶ 16 and 17. 3d 323. The Meadows court ruled that the state’s failure to follow the statute deprived the defendant of his rights to due process. The law or rule directly involved. R. Wightman v. 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. absence of instructions of how to appeal and the deadlines involved violated due process requirements.C. 3d 100. not mandatory. Franklin C. 119. Although proper notice of the opportunity for hearing is mandatory. Id. 2012-Ohio-3506.07. Div. in all cases in which an agency must afford an opportunity for a hearing prior to issuing an order. 10th Dist. d. Dept. 2010).. 8 . Crawford-Cole v. Finley v. Industrial Comm. 5. State ex rel. at ¶ 31. Lucas Cty. of Ohio (10th Dist. Dusty Drilling Co. of Commerce. Failure to give proper notice invalidates any order entered pursuant to the hearing. of Job & Family Servs. Cunningham v. the notice of hearing must include: a. 1995). B. 103-04. No. 3.P.follow the statutory scheme for an administrative license suspension when it did not afford the defendant a post-suspension hearing within five days. 119. a. an appellant must demonstrate prejudice from any failure to meet the timeframes. b. para.C. 10th Dist. R.07. 10AP-699.07. No. Notice of the party’s right to a hearing. the agency must give proper notice of the opportunity for hearing. 119. Ohio Real Estate Commission. Ohio Real Estate Comm. 2011-Ohio-1816. 24. b. The charges or other reasons for the proposed action. Even though there is no specific statutory requirement. State ex rel. Pursuant to R. Content of Notice 1. v. para. III. and that. Mandatory Requirement 1. 10CVF-3027 (Aug. 2. 102 Ohio App. 09AP-1050. The agency is subject to a reasonable standard. L-11-1177. (10th Dist. The Tenth District Court of Appeals held that timeframes are directory.

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

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

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

S. Failure to Claim (1) If party fails to claim the notice: a. address or addressee unknown. No. R. Fink v. Personal service on employee of business. Service is complete when the certificate of mailing is obtained. (b) Notice must be published in a newspaper of general circulation in the county of last known address of the party. unless the notice is returned showing failure of delivery. (c) Must be published once a week for three weeks. 12 . d. 98AP-1403.2. or forwarding address unknown or expired. after certified mail service was refused. (3) Publication (a) Must publish a summary of the substantive provisions of the notice. satisfied due process requirement to give notice reasonably calculated to apprise the business owner of proposed action. Failure of delivery (1) If notice is returned because of failure of delivery. b.07 makes a distinction between failure to claim and failure of delivery. 10th Dist. Postal Service. Failure of delivery occurs when a notice is returned by postal authorities marked undeliverable. Agency shall obtain a certificate of mailing from the U. Ohio State Liquor Control Comm. 119.C. LEXIS 6530. the agency must serve the notice by personal service or publication. b.. a. at *5. Failure to claim occurs when party refuses to accept delivery of certified mail. (b) Refusal of delivery by personal service is not failure of delivery. (i) Last known address is the mailing address of the party contained in the records of the agency. (2) Personal Service (a) Performed by an employee or agent of the agency. Agency shall send notice by ordinary mail at party’s last known address. 1999 Ohio App. (c) Personal delivery may be made at any time. Last known address is the mailing address of the party contained in the records of the agency. c.

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

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.. Chapter 119.C. No. Does the notice indicate the method of service to be utilized? 10.14 states that when a public office is closed to the public and it is the last day to do a required act. Williams. Bd. Standard Oil Co.07) 1. 2. R. 8th Dist.C.C. Computing Time Pursuant to R. Agency erred by failing to timely set a hearing date and time as mandated by R. But see Alcover v. 1. a. except that. Chapter 119. 1.14. 54292. where attorney advised the licensee that request must be made in writing to the board).14. Method of Requesting a Hearing 1. Ohio State Med. B. No. 10th Dist. at *9 (telephone request to assistant attorney general insufficient. The time computations set forth in R. 119. Timing of Request (R. LEXIS 11662. 78AP860. 1987 Ohio App. In writing a.C. 3d 317. “the act may be performed on the next succeeding day that is not a Sunday or a legal holiday. Bd. 119. HEARING REQUESTS A. 318.” IV. 1. which letter also stated that licensee was not waiving his right to a hearing. the act may be done on the next succeeding day that is not Sunday or a legal holiday”. Ohio State Med. The court found this was sufficient notification because licensee had expressly reserved the right to adjudication. 2. v. 1. Harrison v. Reserving right to hearing shows intent to request. (10th Dist. 103 Ohio App.C.C.C.C. The thirty days provided by R. If multiple violations.9. showing intent to request hearing. Chapter 119 does not specifically provide that a request for hearing must be in writing.07 begins to run on the date the agency or board mails the notice by certified mail. Licensee sent a letter proposing an informal settlement.14 apply to proceedings conducted pursuant to R. is it clear which alleged facts violate each statute or rule stated in the notice? H. LEXIS 9961. 1. a. when the last day falls on Sunday or a legal holiday. 14 . 1995). R. A party must request a hearing within thirty days of the date of mailing the notice. at *9. 1979 Ohio App.

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

CA2867. Kash (8th Dist. 3d 256. 5th Dist. R. 1988). (9th Dist. R. Ohio State Racing Comm. LEXIS 6173.C. the agency shall immediately schedule the time. SCHEDULING OF THE HEARING A. and then. 3. para.. No. 2. 119. 119. 1986). date and place for the hearing. 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. The date set must be seven to fifteen days from the time the party requested a hearing. Effect on appeal rights (split in decisions). Ohio St. Vild. 262. at *4-5. Ohio Dept. of Edn. inform the party of the continuance. Continuances 1. infra. See In re Application of Milton Hardware Co. No. of Commerce v. (1) In In re Application of Milton Hardware Co. LEXIS 2713. v. In re Barnes (10th Dist. 19 Ohio App.C. 92AP-1430. unless otherwise agreed upon by both the agency and the party. 31 Ohio App. 1969). 2d 157. 1991 Ohio App. (2) Thus. 16 . McCullion. No.09. 3. A hearing cannot be continued for an unreasonable amount of time. a. a. the court said that two (2) years was an unreasonable delay. because the agency has the authority to continue a hearing upon its own motion. see Section IX APPEALS. Practical Note. Requirement to hold hearing within fifteen days is directory. Ohio State Racing Comm. b. 40 Ohio App. para. B. Once a party requests a hearing. R. 3.07. The agency may postpone or continue a scheduled hearing upon its own motion or the motion of any party. Kizer v. 1991 Ohio App. 1988). V.C. Bd. (10th Dist. 3d 201. 166. b. LEXIS 2034. The agency will often set the initial hearing date.3. 8th Dist. Initial Scheduling 1. 113. Yoder v. 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. the agency must initially schedule the hearing for seven to fifteen days from the date of the request. and forthwith notify the party. in the same notice. Id. at *7-8. 3d 111.. at *7. but may then continue the hearing to a later date. 119. Id. 1993 Ohio App. Sahely v. 10th Dist. 60858.07. not mandatory. 61 Ohio App.

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

” White Consolidated Industries v. See Moffett v. Casey v. Finally. Chapter 119 Does Not Provide for Discovery Under Civil or Criminal Rules of Procedure 1. 11-CA-9. Ohio State Bd. 119. Dept. According to R. State Med. 2003-Ohio-7007. the Criminal Rules of Procedure do not apply to proceedings conducted pursuant to R. Depositions 1. an administrative agency may allow testimony by deposition for witnesses who will not be available at the time of the hearing. Chapter 119 provides for depositions in lieu of hearing. “The formulation of procedural rules of administrative agencies is basically left to the discretion of the agencies. Dist. ¶ 40. ¶ 43. 2001 Ohio App. 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 . 00 CA 264. a. 02AP-1315. Ohio State Bd. . OBTAINING EVIDENCE AND SECURING WITNESSES FOR HEARING A. Similar to the civil rules.. b. a. 00AP-523. 9. 2003-Ohio-4061. . The agency's own law and rules may provide protection to certain records. LEXIS 3290. 6th Dist.13 of the Revised Code. 7th Dist. R. including discovery rules. 1(A) limits the Civil Rules to “all courts of this state in the exercise of civil jurisdiction at law or in equity . Agency law or rules may set guidelines for consideration of motions for continuance of hearing. of Psychology. Miller v. Nichols (1984). The courts have held that because the Civil Rules are not applicable to administrative hearings. Civ. . R. The agency’s own law and rules may provide for a discovery-like exchange of information. Mahoning Cty.” b. The Ohio Rules of Civil Procedure. 3.. at *9. 119. 2 (emphasis added). B. 2003 CO 7. 5th Dist. Salem City Sch. . . Bd. Gipe v. . of Pharmacy. No. the deposition may be used at 18 . Ohio Board of Nursing. 2012-Ohio-1002.C. S-32-92. are not applicable to the administrative hearing procedure. VI.09: “For the purpose of conducting any adjudication hearing required by sections 119. of Human Serv. 2002-Ohio-606 at * 10. R.C.” R. 4. The taking of the deposition shall be in the same manner as is prescribed by law for the taking of depositions in civil actions. 7th Dist. para. Bd. . Wayne S. No. For the purpose of conducting an adjudication hearing.C.09. No. 3d 7.01 to 119.C. . 10th Dist. No. Leake v.c. 15 Ohio St. Froug v. Chapter 119. the agency . at *10. 2. ¶ 24 and 32. 10th Dist. of Ed. LEXIS 305. No. of Ohio. 1993 Ohio App.C. discovery rules do not apply. No.

Ohio State Bd. See Froug v. LEXIS 305. Proper service and fees a. 2. (2) The court further indicated that Froug could have requested a continuance if more time was necessary to review the records. R. Bd. 119. however. 08AP-794. Parties cannot obtain prehearing discovery depositions regardless of whether the depositions are described as “depositions” or “prehearing discovery depositions. The mandatory language in R. Ohio State Bd. 119. 10th Dist. b.C. at *9-12. a.hearing against a party who was present or represented at the taking of the deposition.09 by not issuing a subpoena when requested by the respondent.C.. Subpoenas for Purposes of a Hearing 1. 2001 Ohio App. 3d 527.09 does not provide for prehearing discovery depositions by a party to an adjudication hearing. 1992). 51 Ohio St. No. 535. In re Heath (10th Dist. Chapter 119 provides that a party may request the issuance of a subpoena duces tecum for the purpose of conducting a hearing.09 pertains to securing the attendance of witnesses and the production of records and documents for the purpose of conducting an adjudication hearing. No. Frantz (1990). 80 Ohio App. For the purpose of conducting an adjudication hearing. reversal of the agency’s final order is not necessary where the respondent fails to show prejudice. Chapter 119 does not provide for discovery depositions. 119. 3d 143. 2009-Ohio-1103. Id. The agency violates R. Id. at *11. R. of Pharmacy v. 66 Ohio St. 3d 605.C. 611-12. Method of delivery 19 . 3d 222. Ohio Board of Nursing. b.C.C. of Ohio v. 119. C. Ohio State Racing Comm. Because R. and upon request of any party shall.” State Med. b. 48 Ohio App. Murray (1993).C. Poppe (12th Dist. 2. of Pharmacy v. R. at ¶ 24.09 (emphasis added).C. 145. 28-29. a. (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. R. 10th Dist. issue a subpoena for any witness or subpoena duces tecum to compel the production of records.09 is satisfied when the agency subpoenas records to be delivered at the commencement of the hearing. Burneson v. the agency may. 00AP-523. The subpoena shall be directed to the sheriff of the county where the witness resides or is found. 1988). and served and returned in the same manner as a subpoena in a criminal case is served and returned. 119.

R. 86-066. (a) A witness living in the same county as the agency waives the right to fees if not demanded upon services.08 for current amount. (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. (b) When the fees were not tendered with subpoena. R. 03AP-266. 1994). 2335. Return of subpoena a. 92 Ohio App. and the witness may not later refuse to appear solely because the fees were not tendered upon service. A. 3. fees shall be tendered without demand. 2. c. See R. (a) Where a witness lives outside the county where the agency is located. (4) Fees and mileage shall be paid from the fund in the state treasury for the use of the agency in the same manner as other expenses of the agency are paid. R. if tendered prior to the time appearance is compelled. 10th Dist. Must be returned in the same manner as a subpoena in a criminal case. upon demand. (2) Witness outside the county: Crim.O. 20 . R. (2) When a subpoena was sent via regular mail to the witness’s usual place of residence and the witness has actual knowledge of the subpoena and of the consequences for failing to comply with the subpoena. 17(D) provides that the return may be forwarded through the postal service. OAG Opinion.C. para. v. Perfection Corp.C. No.. 119. or otherwise. the fees for one day’s attendance and the mileage fees allowed by law. State v. 734.C. Crim. 17(D) provides that if the witness resides outside the county where the agency is located. b.09. witness fees and mileage fees must be attached to the subpoena and tendered without demand or the witness is not obligated to appear. error could be cured by subsequently tendering the fees. valid service is completed. at ¶ 26. R.09. 86-066.(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. Fees (1) Witness residing within county: Crim. 17(D) provides that proper service is effected by tendering to the witness. Castle (9th Dist. 2004-Ohio-4041. or by leaving it at his usual place of residence. Smith Corp. 3d 732. 119. OAG Opinion.

at *13. 2317. (a) This statute is inapplicable if proper fees are not paid to the witness. (c) The writ will only issue for disobedience of a subpoena “personally served” on the witness. at *13.C. (2) Attachment proceedings for contempt are set forth in R. (d) Court shall compel compliance as in cases of disobedience of court subpoena. may order.. Western Reserve Psychiatric Habilitation Center (9th Dist. Green v. (3) Requirement to Enforce if Requested.21. 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. But the court "by a rule. 21 . 1998 Ohio App. 8 Ohio St. No.4. 119. 18658. LEXIS 2020. R. subject only to proper privilege assertion by the witness. 1981). Ohio Motor Vehicle Dealers Bd. Carratola v.21. 220. (b) Although the agency is required to seek enforcement of subpoena. the court shall compel obedience by attachment proceedings for contempt. (c) If the matter is one in which the witness may be subject to lawful questioning. Carratola.C.” R. 27. (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. 3 Ohio App. 1998 Ohio App. LEXIS 2020. v. (1) Upon failure to comply: (a) Agency must file an application to enforce the subpoena if requested. and may not resort to other forms of punishment. Failure to obey subpoena/sanctions a. (a) The agency is required to seek enforcement if asked by the party who requested the subpoena.21. 3d 26. him to show cause why such writ should not issue against him" if the witness was served with the subpoena in some other fashion. Ohio State Dental Bd. Contempt proceedings.C. 9th Dist.09. failure to do so does not require reversal of the agency’s decision unless the appellant shows prejudice resulting from the failure. Remlinger (1983). 2317.C. 3d 218. (b) The application is filed in the court of common pleas where the disobedience occurred. (4) An agency is limited to the statutory attachment procedures to sanction contempt of its subpoenas. R. 2317.

1994). R. 61. of Aging.. 2000). Bd.22(F)(3). b. for purposes of investigation. 390-91.C. 4734. Enforcement a. R. Hildebrant (1915). 108 Ohio App. 3.. Bd. 173. of Securities. 2. prior to hearing. paragraph 4 of the syllabus.20(H). 173. 1996).C. below. (e. R. Hunt v. 1993).. 3d 59. it is reasonable to argue that the sanctions permitted by Civ.g. 1707.C.24. since the legislature has empowered them to issue subpoenas. See discussion re: Health Insurance Portability and Accountability Act (“HIPAA”). (2) Thus. R. (10th Dist. R. Chiropractic Board.20(H). of Aging.C.. 87 Ohio App.g.C.. R. Some agencies have statutory authority to issue investigative subpoenas. 307. Dept. D. 1707. Chapter 119. there is an implied power to enforce them through the court. Div. 4723. b. Dept. Investigatory subpoenas are those to compel testimony or the production of records. Thompson. 1. 4.22(F)(3). In re Investigation of Laplow (10th Dist.29). 3d 386.29). Implied power. 3d 305. However.. because R. 4731.C. 4723.C. 93 Ohio St. do not have specific statutory procedures for enforcement of investigative subpoenas. R. R. Medical Bd. Motions to Quash not authorized by R. State Med. In re Investigation of Laplow (9th Dist. Investigative Subpoenas 1.C.C. Chiropractic Bd.b. Ombudsman.24. v. Div. No. State Med. In re David E. 00MS000041 (July 24. The Medical Board’s statutory authority to subpoena patient records is not dependent upon patient consent.C. of Securities. 4731.C. Board of Nursing. Polen. Ombudsman. the court of common pleas has no jurisdiction to entertain a motion to quash an administrative subpoena. 96 Ohio App. e.C. 22 .48(A)(2). See State ex rel.P. Chapter 119 does not provide statutory authority for a motion to quash. D. (1) Absent specific statutory authority or a pending case or appeal. the only avenue available to a witness is to defend an action to compel. R. for general principle of implied power to perform duty. Franklin C. 45(E) may be granted. Other agencies. (E.g. (2) If the statute grants enforcement according to the Civil Rules. Specified authority (1) Some agencies have specific statutory procedures for enforcement of these subpoenas. Medical records a. Board of Nursing. R.

The requested records must be released unless they fall within an exemption or exception to the Public Records Act.43(A)(1). computer. Medical records. Trial preparation records.C.C.E. Uncirculated personal notes. functions. 38 Ohio St. diagnosis. b. 72 Ohio St. State ex rel. The Public Records Act applies to any record. c. (The following is a brief outline of Public Records Law. not exempt by law. a. 23 .C. 149. State ex rel. see the most recent version of the Ohio Sunshine Law Update published by the Ohio Attorney General. of a public office.43.43(A)(1)(g) and (4). 67 Ohio St. procedures. Cincinnati Post v. A “record” is any item that: (1) Contains information stored on a fixed medium (such as paper. as defined under R. The provisions of the Act that provide access are to be liberally interpreted and exemptions are to be strictly construed. and (3) Documents the organization.43(A)(1) and (3). (a) A report of a medical professional generated as part of the decision making process regarding employment. 142. 149. prognosis or medical condition of a patient. 149.). 149. received. For more detail. (2) Is created. see Steffan v. (2) The record must have been generated in the course of medical treatment. 3d 141. Respondents May Obtain Certain Agency Records through the Ohio Public Records Act. 2. 149. 173. 142.011. R. policies. 3d 439. Kraft (1993).C. (1) The information must pertain to the medical history. Schweikert (1988). R. but not generated in the process of medical treatment is not covered by the medical records exception. 3d 141. State ex rel. 149. 3d 170. For a complete list of exemptions.C. R.011(G). or sent under the jurisdiction of a public office. Exemptions/Exceptions: a. operations or other activities of the office.) 1. film. R. see R. c.C. Any doubts are to be resolved in favor of disclosure. d. 440. decisions. b. Multimedia v. Snowden (1995). 72 Ohio St. Multimedia. etc.

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

612. (1) Agency confidentiality provisions.g. Renfro v. Mayfield (1990). Mentor. WLWT-TV5 v. State ex rel. 1996-Ohio234. 5153.C. R. Police Officers for Equal Rights v. 75 Ohio St. Jackson (1994). of Human Serv. Toledo Police Patrolman’s Assn.65. (2) General confidentiality provisions.22 (Long term care ombudsman investigative files). R. One particularly noteworthy exemption premised on federal law is the exemption of social security numbers. LEXIS 875.C. State ex rel.proceeding than in the context of a civil or administrative proceeding. 1997-Ohio-273. (5) State ex rel. White. (3) Federally protected information. 173. 2000-Ohio-214. State ex rel. based on a federal privacy interest. 145. 1996-Ohio-204. The Family Education Rights and Privacy Act 25 . 3d 420. Local 10 v. (b) Student Education Records. 3d 605. Yant v. 74 Ohio St. 6th Dist. 3304.C. R. City of Akron (1994). 3d 185.21 (Client records of rehabilitation services). for example the Trade Secrets Act. 3d 357. (1990). R. Toledo.C. 27 (child abuse investigation reports). 89 Ohio St. Be sure to check the agency’s own statutes. 77 Ohio St. 70 Ohio St. No. 3d 681.43(A)(1)(v).C. Conrad. The following are a few examples: R.C. State ex rel. State ex rel. See. the statute likely qualifies as an exemption under this statute. 3307. Polovishack v. R. There are also general state statutes. 149. R. 72 Ohio St. 3d 25. Beacon Journal v. (2) The following line of cases illustrates the volatility of this area of the law. This is far from an exhaustive list. State ex rel. 3d 440. Records the release of which is prohibited by state or federal law. Steckman v. not related to any one specific agency.C. 54 Ohio St. 1333.C.22 (STRS and SERS member information). 360. Cuyahoga County Dept.17 (Director of Commerce Investigations).20 and 3309. R. 3d 51. (a) Many state administrative clients have statutes making specific information confidential. 3d 516. the confidential law enforcement investigatory record exemption remains applicable until all proceedings are complete. Ohio Patrolmen’s Benevolent Assn. State ex rel. 2000 Ohio App. that create confidentiality. 50 Ohio St. Leonard v. L-99-1143. v. 1995-Ohio-19. (4) Once applicable. 70 Ohio St. So long as the statute can be read to prohibit general release. (b) The legislative language used to create confidentiality may be phrased in different ways. e. f.27 (PERS member information). discusses the applicability of this exception to administrative investigation files. See State ex rel. (a) Social Security Numbers. Leis. 2151.421 (Child abuse and neglect investigation records). Lashutka.

132 Ohio St. 149. Protected Information regarding privileged information. the agency must provide a redacted copy. (c) When determining whether a federal exemption applies.(“FERPA”). 2951. Consult FERPA for requirements and exceptions. R.43(B)(1). 20 U. Niesen-Pennycuff. 149.52(A)(1). records made confidential in the hands of an agency of the federal government are usually not exempt when in the hands of the state agency.52(A)(1).C.43(B)(1). 2953. Section F. § 552. 2953.C. in most instances. 149. (a) Redaction must be plainly visible.C.S. A pending administrative proceeding involving a conviction or intervention in lieu of conviction may be affected. The agency may ask that the request be put in writing to assist it in responding to the request.C. all responsive records must be promptly prepared and available for inspection at all reasonable times during regular business hours. 149. 5 U. § 1232g(b)(1). do not generally act to exempt records in the hands of a state agency. 26 . b.C. R. the agency shall make copies available at cost and within reasonable time. (4) Privileged information (a) See discussion below. but must provide the requestor with an opportunity to revise the request.C. remember. (3) If the requestor makes an overly broad or an ambiguous request. R.3d 416. a. held that when a criminal defendant who has successfully completed a program of intervention in lieu of conviction moves for an order sealing his or her record under R. the trial court has discretion either to grant the motion immediately under R. unless the state agency is acting for the federal agency in some substantial respect. (4) If information within a public record is exempt. Exemptions under the Federal Freedom of Information Act.S.43(B)(2). or to impose a waiting period before the record is sealed pursuant to R.041(E). The Supreme Court of Ohio in State v.32(A)(1). R.C. 3. 2012Ohio-2730. protects the release of educational records without written consent of the student or the student’s parents.43 provides: (1) Upon request. (2) Upon request.C.C. Access to court record sealed or expunged under R. 2953. but the Public Records Act does not require that the request be put in writing.C. Mechanics of making and responding to a public records request. the agency may deny the request. g.

149. 149. c.C. 3d 619. Hutson. The specific statute trumps 149. 149. State ex rel. b. (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. 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. 2004-Ohio-4354. rather than a transcript of the audiotape. 4. the party must pay the court reporter to get a copy of the court transcripts in common pleas court. d.43(C). that party cannot obtain the documents at cost under the Public Records Act.C.C. in whole or in part. Enforcing Public Records Act a. 621-26. the party is entitled to the copy at cost. if a party only seeks a copy of an audiotape of court proceedings. Anyone aggrieved by an agency’s failure to release a public record may bring a mandamus action to compel release. at ¶ 15-17. However. (1) At cost does not include employee labor time. Warren Newspapers v.(b) Redaction is considered a denial. R. 1994-Ohio-5. 27 . R. Rogers (2004).43.e. therefore.43(B) are to be interpreted.C. 103 Ohio St. (5) If the request is denied. 9-4). the agency must provide an explanation for denial. 70 Ohio St. Liabilities (1) Civil penalties: (a) Statutory damages: $100/day after filing of mandamus action. (2) The public office cannot charge for inspection. 149.43(B)(3). (3) Regular business hours for a police department which is open 24 hours a day are normal administrative hours (i. Slagle v. (ii) The custodian of the public records failed to comply with the party’s request. 149. 3d 89.43. provides insight into how the operative terms in R. (c) Only awarded if the requestor transmits a written request via hand delivery or certified mail. (b) Maximum $1000. indicating legal authority for denial. R.43.C.

(iv) The party received the requested public records only after the mandamus action was filed. 45 CFR § 164.512(e): Disclosures for Judicial and Administrative Proceedings. (c) both of the privileges are limited in application. 1979). State ex rel. 174. 75 Ohio St. (b) the rationale for the privileges are similar. a. 45 CFR § 164. Id. [and] the contributing influences” of an administrative decision. What is protected? (1) Protects advice. F.(iii) The requesting party filed a mandamus action pursuant to R. (2) The reasons for this are that: (a) the actors are the same. b. 478 F.D. . 2. 582. Relation between the executive privilege and the deliberative process privilege. Supp. Pennington v. and in most cases requires the consent of the patient for release. Health Insurance Portability and Accountability Act (“HIPAA”).512(a): Disclosures Required by Law. In re Franklin Natl. b. Protects the privacy of Protected Health Information (“PHI”). and other communicative means used by a government decision-maker in the process of reaching a decision. Bank Securities Litigation (E. Gundler (1996). (1) The general deliberative process privilege is routinely grouped and usually interchangeable with the executive privilege. exemptions/exceptions. Note: regulations state specific parameters and conditions for application of each type of exception. opinions. Protected Information 1. 149. Confidential records: See Public Records Act Section E(2).Y. 577. Exceptions that may permit agencies to subpoena PHI without patient consent: (1) (2) (3) (4) 45 CFR § 164. 3d 171.512(f): Disclosure for Law Enforcement Purposes.43 to obtain copies of the records. at 28 .N. 45 CFR § 164. 3. (2) The judiciary is barred from probing into “the methods by which a decision is reached . recommendations.C. a.512(d): Disclosures for Health Oversight Activities. Deliberative process privilege/executive privilege. . above.

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

Statutory privilege (1) R.” (2) Exceptions (a) Client expressly consents. b. 478 F. Gregor. U.(1) Courts review evidence in camera. Jackson v.N.C. 707. In re Franklin Natl. v.02(A) limits an attorney testifying “concerning a communication made to him by his client in that relation or his advice to his client. 2151.02(A) provides the exclusive means by which privileged communications directly between an attorney and a client can be waived. (ii) The availability of other evidence.D. 1979). (b) Factors (i) The relevance of evidence sought to be protected. 418 U. 4. 2317. 30 .S. 1979). (c) Client voluntarily testifies or is deemed by R.D. (b) Deceased client's executor/administrator expressly consents. attorney-client privilege has basis both in statute and common law. (v) The possibility of future apprehension by government employees who will realize that their secrets could be breached. (iv) The role of the government in the litigation.C. 110 Ohio St. In re Franklin Natl.Y. 2006-Ohio-4968. Bank Securities Litigation (E.S. Supp. 478 F.N.Y. privilege is not waived by mere disclosure of communications to a third party. paragraph one of the syllabus.421 to have waived the privilege. 577 at 583.C. Supp. 3d 488. Attorney-client privilege a. Nixon (1974). (2) Courts use a balancing test. (a) Court weighs the government’s interest in non-disclosure versus the court’s fact-finding needs. Bank Securities Litigation (E. 577 at 582-87. (iii) The importance of the litigation. (d) Note: R. 2317. 683. In Ohio.

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

3d 729. at 383. 2006Ohio-1825. 32 . Sections 824-847. v. and (2) it must be deliberative. 3d 58. quoting Carl Zeiss Stiftung v. b. 421 U. Paul R.S. at 383-384. Evidence and Witnesses. 1988). However. 44 Ohio Jurisprudence 3d. No. 121 F. The Ohio Supreme Court has recognized the common law tenets of the deliberative process privilege. Both requirements stem from the privilege’s ultimate purpose [which is] to prevent injury to the quality of agency decisions’ by allowing government officials freedom to debate alternative approaches in private. See also. 3d 364.B. R. Attorney-Client Privilege in the United States. at P. 01AP-344.” and are not subject to the Open Meetings Act. quasi-judicial hearings are not “meetings. b.E. 1998-Ohio-445 (“sunshine law” does not apply to adjudication proceedings at the Board of Tax Appeals because its adjudication is quasi-judicial. v. 6. V.C. Hamilton County Bd. of Revision. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. 2001-Ohio-8766.01(E). Carl Zeiss. In re Petition for Annexation (10th Dist. citing Natl. 1983). 52 Ohio App. THE CONDUCT OF HEARINGS A. all administrative hearings are open to the public. 81 Ohio St. Dann v.383-385. 61. v. 318. Open to the public a. Deliberative Process Privilege a. quoting In re Sealed Case (C. of Revision.A.C. 1997). Angerman v.R. 40 F. 3d 58. 8 Wigmore. 1990). (10th Dist. Taft. Inc. Rice (1993). Bd. 11-12. Jones v. Inc. 324. Standard to be met in order to establish the privilege and the reason for the privilege: (1) the material must be pre-decisional. TBC Westlake. Labor Relations Bd. See State ex rel. 352 (hearing public pursuant to Chapter 119. VII. Sears.5. 132 at 151. 3d 346. Liquor Control Comm. and therefore should be held in “executive session”). The privilege allows the government to withhold documents and other materials that would reveal advisory opinions.C. State Med. Id. c.. b. 119. but deliberations need not be in open meeting).D. 1998-Ohio-445. Roebuck & Co. Id. 70 Ohio App. 81 Ohio St. 87-91. 3d 8.D.D. 61. 1966). Jena (D. 10th Dist. Unless an agency has a specific law to the contrary. (1975). 737. Nature of Proceeding 1. Hamilton County Bd. TBC Westlake. 109 Ohio St. Treatises a. c. Evidence (4th Ed.

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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59 Ohio L. and may therefore present such evidence first. 2. this will be the agency. 53 Ohio St. but R. Typically. R. Preponderance of evidence means that agency has burden to show that it is more likely than not that the events charged occurred. E. Abs. (10th Dist. Section IX APPEALS. Buckeye Bar. Preponderance of the evidence standard a. b. D. Sanders v. See discussion.09 states agencies “shall pass on the admissibility of evidence” presented at the hearing. Ohio Environmental Bd. Bur. R. for definitions of reliable. Fleckner (1950). Sanders v. 2d 25. 119. 32 Ohio App. c. probative and substantial evidence. 81. 1993). but the Supreme Court of Ohio has held that the standard for administrative cases is a preponderance of the evidence.a. 1977). 33 Ohio Misc. Schregardus. Note – An agency’s enabling act may specify which party maintains the burden of production with respect to specific issues. The party attempting to establish that the averments in the notice of hearing are correct has the burden of going forward with the evidence. below. d. 91.C. Statutes or rules 36 . a court may reverse the agency’s order if it finds that the order was not supported by “reliable.C.P. para. See Clermont Co. Reliable. 135. v. of Pharmacy v. probative and substantial evidence a. EBR 132761 (June 10. all agency orders should be based upon reliable.C. Inc. 119. No. Abs. of Motor Vehicles (Franklin C. 135. c. the applicant may have the burden to produce evidence of qualification for licensure. 1972). b. Standard of Proof Required 1. The standard of “clear and convincing” evidence has been rejected as inappropriate. 1987). of Rev. EBR 132753. Ohio Liquor Control Comm.. In application cases. so the agency will usually present its case-in-chief first. 1998-Ohio-181.C.09 does not incorporate the Ohio Rules of Evidence. Accordingly. 59 Ohio L. 27.12. 22. See Pang v. Weinstein (Hamilton C. Auditor v. 119. 197. Ohio State Bd.” R. b. Chiero v. Standards for Consideration of Evidence 1. 3d 79. 13. Liquor Control Comm. probative and substantial evidence. if contested.P. 55 Ohio Misc. 24. VFW Post 8586 v. 83 Ohio St. Chapter 119 does not explicitly define the burden of proof required. On appeal of an agency’s order. probative and substantial evidence. Minch (1990). c. See also. 2d 89. 3d 186. Fleckner (1950).

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

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

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

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

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

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

of Reclamation (1986). proof of receipt. 2. 72-73. State of Ohio ex rel. (1) In order to dismiss a complaint for failure to state a claim upon which relief can be granted. Failure to state a claim with proper notice. proof of mailing by certified mail.O. Dressler Coal Co. 43 . State ex rel. a licensee may not bypass the special statutory proceedings in the guise of obtaining declatory relief. v. of Ohio. at ¶ 14. of Edn. 1969). Ohio State Dental Bd. (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. No. any written memoranda in which continuances were granted. 2004). Bd. 2007-Ohio-3328. hearing request. 72 Ohio St. 165-67: if documentary evidence is not properly introduced and admitted into the record at the administrative hearing.” Talwar v. 172 Ohio App.. Jurisdictional items should always be placed into the record: e. 2006-Ohio-2171. Div. including the right to appeal any agency decision pursuant to R. K. Although due process considerations would probably preclude an agency from dismissing a case on its merits before a full adjudication hearing is completed. Exceptions: a. dismissals (without a hearing) based on procedural issues such as res judicata and subject matter jurisdiction have been upheld by the courts on appeal. letter to Respondent scheduling hearing. of Ohio (10th Dist. (10th Dist. Bd. R. 3d 94.2d 1256 (10th Dist. 08AP-158. An administrative agency is precluded from dismissing a hearing once it has been requested by a respondent. 10th Dist.g. 137. 1992).12. the court may reverse the agency’s action. 05AP-1079. Bessey. Boggs v. under Civ. Can A Case Be Dismissed Prior to Hearing? 1. State Med. respondent may not file a motion to quash (dismiss/summary judgment) a hearing once requested.E. 12. at ¶ 4 (citing State ex rel. Williams v. Agency/Board may not deny the right to a hearing. 2000). Bd.). Where the legislature has provided special statutory proceedings for the discipline of a licensee. ¶ 25-27. Doriott v.C. 8. In general. Springfield Local School Dist. 83 Ohio App. notice letter. State Med. Fields v. 3d 365. 119. D. 3d 131.7. 3d 68. (1995). 874 N. 23 Ohio St. 2009-Ohio5852. 3d 677 at 683. The State Medical Board of Ohio. Failure to provide opportunity for a hearing violates Due Process. 10th Dist. (10th Dist. Summit Cty. 5. Gary Charles Gelesh. 2d 157. Aust v. 3d 485. but nevertheless becomes part of the record on appeal. 19 Ohio App. 4. Executive Branch (9th Dist. In re Application of Milton Hardware Co. v. No. 3. 156 Ohio App. or were agreed to by the parties. it must appear beyond reasonable doubt from the complaint that the plaintiff/relator can prove no set of facts entitling him or her recovery. 136 Ohio App.

1 Ohio App. 3d 545. Skalsky v. 406-07. 11. Hanson. Kresge Co. See Cleveland Gear Co. 3d 184. 548. of Edn. Herrick v. (3) In reviewing the complaint. Ford Motor Co. Section 119. v. Addressing Constitutional Issues 1.S. The prudent 44 . 7th Dist. of Commrs. Bd. at 231. 2d 128. 131 Ohio App. 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. See also. or whether the allegation is that the statute is unconstitutional as applied. (1) Although the agency itself may not determine whether a statute has been applied in a manner that is unconstitutional. at *5.95 (quoting State ex rel. the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the non-moving party. L. 44 Ohio St.12. Limbach (1994). 3d 591. 10th Dist. 595-96. No. 3d 229. 65 Ohio St. As creatures of statute. v. 1998). Such determinations are reserved to the courts alone. VFW Post 1238 Bellevue v. Agency may not rule on the constitutionality of a statute. Inc. R. Party should raise “as applied” constitutional challenges at hearing. b. Bowers (1960). 3d 10.C. Limbach (1988). Bd. 65 Ohio St. Issues involving challenges to the validity of statute or its application. syllabus. 91AP-1493. See In the Matter of: Hal Artz Lincoln-Mercury. 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. LEXIS 4883. 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.. 405. MCI Telecommunications Corp. No. Hairston. 1981). of South-Western City Schools v. 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. LEXIS 4932. S. (1992). 548)). Guernsey Cty. v. and the expert commentary of the agency on the issue. 90-B-20. Kinney (1986). administrative agencies themselves are without jurisdiction to rule on the constitutionality of a statute. Ohio Liquor Control Comm. 1992 Ohio App. a. 35 Ohio St. 3d 195. State ex rel. b. however. 197-99. Kosydar (1975). Hanson v.C. 1991 Ohio App. 170 Ohio St. v. Zieverink v. (2) In at least one case. 119. 130. This is true whether the challenge is a facial challenge to the statute. 3d 545. (6th Dist.06. Ackerman (1st Dist. Withdrawal by respondent (1) Although respondent has the right to withdraw from his or her own hearing. 24 Ohio St. at *24-25. 68 Ohio St.

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

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

46

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

47

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

48

as no final R&R is issued. authority. R. For that reason alone. . paragraph one of the syllabus (recommendation of a planning commission to the city for further action is not a final appealable order). v. 162-63. 49 . 3d 18. .the hearing examiner. 351 (decisions on discovery matters generally not appealable on interlocutory appeal). an analogy may be found in the administrative appeals provisions of R. 49 Ohio App. The concept of not allowing interlocutory appeals to the agencies are to be supported further by the statutory provisions under R. Whitman (1978). v. Union Camp Corp. or statute to a higher administrative authority if a right to a hearing on such appeal is provided . General Accident Ins. such interlocutory appeals would render meaningless the requirement that the hearing examiner issue findings of fact and conclusions of law. it would follow that there is no ability to appeal the decision of the hearing examiner. 54 Ohio St. See McHenry v. See In re Petition for Annexation of 5. g. but does not include any order. Generally. or decision of any officer.01. benefits or legal relationships of a person. board. 3d 350. ordinance. 19 (the decision to consider a petition for annexation of land is not appealable. or decision” means an order. because it is deemed to be a final order affecting a substantial right. 34 Ohio App.02 and 2505. 1976). tribunal. the better rule to follow is that there is no right of review by the agency until the final report and recommendation is issued. as these matters would have previously been determined by such interlocutory appeals. 2d 159. Flair Corp. adjudication.01 provides. Brecksville (8th Dist.C. if the matter cannot survive as a separate interlocutory appeal to the courts. if they were available. 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. 1995). or other division of any political subdivision of the state may be reviewed by the court of common pleas . Arguably. department. See. adjudication. The appeal may include all errors or omissions contained in interlocutory orders. While there is little or no case law on this subject. or decision that determines rights.01 (emphasis added). in part: Every final order. 1986). 2506. as the final adjudication process would necessarily be longer than if the agency had heard the matter fully itself. adjudication. which set forth the jurisdiction of the courts to hear appeals. duties. e. (8th Dist. no agency would ever assign a case to a hearing examiner.. et seq.C. A “final order. 2506. bureau. the interlocutory decisions of an agency would not create the avenue for an appeal to either the agency or the courts. adjudication. and a final order is not issued until a resolution is passed specifically granting or denying the relief requested in the petition). d. f. Several courts support this view. privileges. . 2d 77.03. or decision from which an appeal is granted by rule.11 Acres in Northampton Township (9th Dist.C. Further. It is clear that unless a final determination is made.g. Co. . 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. and the matter would otherwise be bifurcated. The exception might be denial of a request for a hearing de novo. . Section 2506. commission. Further. 104 Ohio App. 2505. e.

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

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

85 Ohio App. modified or disapproved. not the State. (2) Recommendation is not final until confirmed and approved by the agency. Chapter 119 is silent on this issue. para. R. (2) It has also been argued that although the state may not file objections itself. (1) Note: R. c. 9. (2) Serve upon the party or the party’s attorney or representative of record. 119. 1977). Carroll (6th Dist. 2d 160 at 171-72 (decision reversed because only one board member reviewed evidence). 9. (1) Copy must be sent by certified mail within 5 days of filing with the agency. 3d 701. (1) Extension to file objections may be granted by the agency. modifying. may file objections to the hearing examiner’s report. Objections must be filed within ten days of receipt of the Report and Recommendation. Hearings Held Before the Agency 52 . Service of the Report and Recommendation. thus. (2) Agency may not issue a final order without allowing ten days for objections to be filed. “Party” is defined under R. it is argued that only the respondent. AGENCY ACTION A.09. 714. VIII. 8.C. 119. 9. para. Objections to Report and Recommendation. Ohio Rehabilitation Services Comm. R. a. Effect of Report and Recommendation (1) The hearing examiner’s Report and Recommendation is submitted to the appropriate agency representatives to be approved. d. 119.C. Respondent may file objections to the Report and Recommendation. 119.C.09.09. the state may file a response to the respondent’s objections. 54 Ohio App. or disapproving the recommendation of the examiner. Miller v. 119.testimony”) (emphasis added) and State v.C. para. c. b.09 provides that “the party” may file objections. 1993). The agency must consider the objections before approving. (10th Dist. R.C.01(G) as “the person whose interests are the subject of an adjudication by an agency.

1981) 3 Ohio App. Accordingly. e.09.. Western Reserve Psychiatric Habilitation Center. R.091. 246-47. In such cases. OAC 4731-31-15(G) (Medical Board).2d 625 (9th Dist. an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute. agencies to appoint a hearing examiner to conduct the hearing. Mallory v. C. 119. 9. The party may appear on his or her own or through counsel.C. 614 N. Some agencies permit parties to personally appear before the agency prior to the agency’s deliberations. Pub. Wise v. 3d 208. Haehn v. 666 N. 72. R. Comm. 106 Ohio App. but does not require. 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. depending on agency rules.C. 119. 83 Ohio App. 3d 562.C. 2.09 permits. Implied remand a. Administrative powers are only implied when clearly necessary to effect an express power. the agency may order the taking of additional testimony. Ohio State Racing Commission. 1998-Ohio-380. State ex rel.E. 3d 235. 3d 218. Public Emp. Util. (1) Generally. See also. B. 1995). 2. Remand to Hearing Examiner 1. Personal Appearances Before the Agency 1. 53 . no report and recommendation is needed. Prior to issuance of a final order. 567. Retirement Bd. Washington v. some agencies conduct hearings without a hearing examiner. para. (1918). or the introduction of further documentary evidence. Ohio Motor Vehicle Dealers Board.C.g. 99 Ohio St. R.1. Jonathan R. Failure to Hold Hearing Prior to Expiration of License/Surrender of License 1. paragraph two of the syllabus. D. 82 Ohio St. Green 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. para. 70. E. 119. and the agency can issue an order following deliberations on the case. 2. (9th Dist. See.2d 833 (10th Dist. Agencies sometimes remand cases to the hearing examiner for the taking of additional evidence. 1992) 2. Taking of Additional Evidence 1. 3. OAC 4723-16-12 (Nursing Board). 119. 211-212.E. 9.09.. R.. Id.

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

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

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

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

The order approving the Report and Recommendation should state that the recommendation is “confirmed and approved. a. The notice of appeal may.C. R. 119.C. 3. 119.C.09. 119.C. 5. probative.I. para. and should attach a copy of the same to its final order.C. b. R. was found sufficient to put a party on notice as to how to file an appeal of an agency’s order. The order must be entered on the agency’s journal. 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. 9. 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].09. R. The Notice of Appeal shall also be filed by the appellant with the [appropriate court of common pleas]. 2007Ohio-2877. The agency may incorporate by reference the entire Report and Recommendation. para.C. setting forth the order appealed from and stating that the agency’s order is not supported by reliable. Hughes v. 10. probative. A certified copy is a duplicate of an original. The agency must maintain the original order in its files. para. and substantial evidence and is not in accordance with law.09. 58 . of Commerce. and substantial evidence and is not in accordance with law. The order must include or have attached a statement of the time and method by which an appeal may be perfected. 119. b. Language. para. 10. at ¶ 14-15. Ohio Dept. The party must be served with a certified copy of the order. Hughes v. para. set forth the specific grounds of the party’s appeal beyond the statement that the agency’s order is not supported by reliable. certified as an exact reproduction by the officer responsible for keeping the original. 2007-Ohio-2877. but need not. that tracks the language of R. a. of Commerce. 10. 2. 10. 114 Ohio St. 4.12. The order modifying or disapproving the Report and Recommendation must state the reasons for the modification or disapproval. 9. Ohio Dept. para. Service of the Order 1. at ¶ 16.12 of the Ohio Revised Code. 119.09. 3d 47. Content and Issuance of the Order 1. R.09. J. 119. 119.09.” R. R.

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

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

para.D. an appellant cannot appeal a state agency decision in federal district court. 119.. Likewise. For a court of common pleas to have subject matter jurisdiction over an appeal of an agency decision. 1.S. 175. 2002-Ohio-4407. Corn v. Teledyne (1988). “Any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination. 3-02-04. 2d 67. the party must strictly comply with the statutory requirements for filing an appeal. or revoking or suspending a license. 4. .C. The right to appeal the action or the determination of an administrative body is neither inherent nor inalienable. 3d 168. of Edn. Troy City Council (Miami C. Holmes v. Inc. b. 2. v.C. 3d 24. however. 25 Ohio Misc. Ramsdell v. 3d 24.” R.C. 39 Ohio St. (1990).P. at ¶ 12. 176. Lexington Supermarket. Zelnick v. IX. 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. Jacobs v. 188. Union Gospel Press (1980). if no right to appeal exists under state law. APPEALS (R. Nos. Ohio State Liquor Control Comm. Where a right to appeal is provided only through statute. USDA (S. 70.C. 3rd Dist. 9. Chapter 119 administrative appeal process may not be used to appeal the hearing determination. 2011-Ohio394. Mahoning-Youngstown Community Action Partnership v. Willoughby Hills v. Ohio’s R.(2) The Supreme Court has further held. or denying the issuance or renewal of a license or registration of a licensee. 171. . C. 2d 886. Inc. G & D. 2d 187.12. 1997). 64 Ohio St. 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. 1970). No. v.12) A. No inherent right to appeal a. pursuant to 28 U. . 27. under the court’s exercise of supplemental jurisdiction. 889. In re Annexation in Mad River Twp. (1992). Supp. Bar’s Sahara. The right to appeal administrative decisions is provided only through statute. may appeal from the order of the agency. the Ohio legislature must have granted the appellant the right to pursue the appeal. 119. At common law. Party adversely affected a. Ohio Dept. (Montgomery C. 56 Ohio St. 3.C. 85 Ohio Misc. Bd of Liquor Control (1953). 11. 84 F. 160 Ohio St.P. 11AP-582 and 11AP-83. that the doctrine should be applied with flexibility in the administrative context. 26. Similarly. 64 Ohio St. Inc. Civil Rights Comm. 61 . Ohio 1999). § 1367. The right to appeal must be derived from a constitutional or statutory right.. Who May Appeal 1. 10th Dist.

and has standing. 1984). 3d 113. 3d 48. 347.C. 102.C. Hamilton Cty. 119. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party.01. B. Unless a statute provides otherwise. Compare Seneca County Bd. 2002-Ohio-1318. Government entities as parties for purposes of R.C. nor its director was a “party” within the meaning of R. Professionals Guild of Ohio (1989). Other Parties 1. 119. 13-0215. 385. 119.01(G). Bd. Edwards (10th Dist. 47. Bd.C. No. 47-50.12. Broadview Developmental Ctr. 3rd Dist. to appeal an order by the superintendent of banks granting the application. under R.12. Public Utilities Comm.C. of Mental Retardation & Developmental Disabilities v. Collyer v. 120 Ohio App. 01AP-786. (1992). (1990). 119. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R. (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. 150-51. Wells Community School. 2d 91. firm. 2d 41. Haig v.12 (1) Neither the state.b. 1970). 346. Ohio State Bd. 49. of Admin. No. 46 Ohio St. 1963).C. corporation. Relations Bd. 119. or partnership. paragraph one of the syllabus. Blue Cross of Northeast Ohio v. (1938). e. 114. 54 Ohio St. Dept. State ex rel. Harrison v. State Emp.C. Chapter 119). 387. Serv. 10th Dist. at ¶ 6 (Ohio State Personnel Board of Review decisions may be appealed by a county board of mental retardation and development to the courts of common pleas pursuant to R.01(G). rev’d on other grounds.12. Parents of Students Attending Edge Academy of Akron & Ida B. (2) When the State acts merely as an adjudicator.C.” R. Clermont Natl.01(F). 3d 99. 3d 507. Siesel.C. 1111. 3d 147. c. 1991). A bank that receives notice pursuant to R. of Edn. without an independent interest in the matter. 119. v. of Edn. Osborn v. 46 Ohio St.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. Osborn. State ex rel. the State is not a proper party to an appeal pursuant to 119. 510. Ratchford (10th Dist. a state agency. 2002-Ohio-4235.” R. 21 Ohio App. Bank v. of Mental Retardation & Developmental Disabilities v. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency. Jackson (1976). association. 46 Ohio St. 62 . 27 Ohio App. Akron City School Dist. 74 Ohio App. In re Job Abolishment of Jenkins (10th Dist.. 62 Ohio St. v. 119. 2d 41. (10th Dist. d. 134 Ohio St. ”Person” is defined as “a person.

Siegler v.C.. b. 1974 Ohio App. a certificate of plan approval granted to a real estate developer for the construction of a mall complex. (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. 189 Ohio App. Pinkney v. Community residents had no right to appeal. 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. See Foreman v.12. para. No. Court of Common Pleas. R. Ohio Dept. as they are not parties under R. probative.12. Ohio State Univ. 4. probative. of Industrial Relations. (2) The party need not attach a copy of the order as long as the appellant sufficiently describes the order appealed from.C.12. probative. 119. Franklin C. but need not set forth the specific grounds of the party’s appeal. and substantial evidence and is not in accordance with law.” Hunnewell v. at *6. 10th Dist. 2011-Ohio-2485. and substantial evidence and is not in accordance with law.C. 05AP-511 (Dec. Only the local school board could bring the appeal. No. pursuant to R. R. 3d 678. Barnes v.12. para. 10AP-421.C. 1976 Ohio App. Notice of Appeal 1. and substantial evidence. 4. 119.2. 2010-Ohio-4731. c.P. 10th Dist. beyond the statement that the agency’s order is not supported by reliable. 74AP-231. 76AP-423. 119. finding that “any requirement to make a written statement of the standard of review in the 63 . The notice of appeal must set forth the order appealed from and state that the order is not supported by reliable. 119. at ¶ 6. Ohio State Bd. 10th Dist. Johnson v. at ¶ 12. Lucas Cty. 2005) at ¶ 10.C. Statement of grounds/required language (1) The notice of appeal must state that the order is not supported by reliable. para. 6. 10th Dist. at *4-5. 05CVF066560 (June 15. LEXIS 3041. Content of Notice of Appeal a. (ii) The Seventh District Court of Appeals disagreed. State Bd. and is not in accordance with law. No. (1) Attaching a copy of the order satisfies the requirement to set “forth the order appealed. of Edn. 2006). R. 3.12. LEXIS 8150.. No. No. 119. of Nursing. Setting forth the order appealed from: attach OR sufficiently describe. (2) The notice may. 4. C. Ferguson-Ramos.

E. 389 N. 204. No. probative. Dudukovich v.v.C. D. Lorain Metropolitan Housing Authority (1979). ¶ 43-44. Under R. 2505. Franklin C.Ohio-95.. Evankovich. ¶ 39. 128 Ohio St. 2012-Ohio1499.” R. The notice of appeal need not contain the language specified by R.12. 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.P. of Job & Family Services. No. Zidian v Dept. Inc. 2011-Ohio-1604 (appeal under R. 12-CVF-1835 (Apr. the notice of appeal must be filed with the agency and with a court of common pleas.C. No.. 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. Effective May 8. 10 MA 153. Form of the Notice of Appeal a. 2. 2009. The statute now provides that. 1. 2012-Ohio-1499.3d 198. State of Ohio Bd. Ohio Dept. No. of Job and Family Services. 11 MA 39. 2. 3d 471.12.C. “[i]n filing a notice of appeal with the agency or court.2d 1113. 4. 10th Dist. Which court of common pleas? a. 2011-Ohio-3172. 2012. 2012). 119. ruled in accordance with the Tenth District Court of Appeals. at ¶ 34. Where to File R. Warren County Regional Planning Comm. the notice that is filed may be either the original notice or a copy of the original notice.C. Zidian v Dept. No. 119. 11AP-259.12 governs appeals taken pursuant to R. of Commerce. Ohio Dept. probative and substantial evidence and/or is not in accordance with law. Chapter 119. 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. of Commerce.12 to remove the requirement to file the original notice of appeal with the agency.C. But see Welsh Development Co. 11 MA 39.C. 119. Deaconess Hosp. and a copy with the court. 10. para.C.C.2d 202. 12 O. R. 58 Ohio St. Chapter 2505 governs the procedure for administrative appeals.12 (that “the agency’s order is not supported by reliable. 7th Dist. Russell v.O. 7th Dist. 7th Dist. the General Assembly revised R. of Pharmacy v. 119. County of place of business or county of residence 64 .notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). v. 119.

1. 2. of Psychology. Gallia County was not the county of place of business for purposes of an appeal of an order of the Psychology Board. Chapter 3737 must be filed in the county in which the building of the aggrieved person is located. Franklin County Court of Common Pleas a. of Commerce. revoke or suspend a license may be filed in Franklin County. Inc. and may not file notices of appeal in both counties. BP Exploration & Oil. State of Ohio Bd. para. Peter Garg v. not the county where the dentist worked one day per week.12. 1. R. R. Franklin C. Special designations a. 04AP-619 and 04AP620.C. 119. c. in the case of an appeal by the Department of Rehabilitation and Correction. Appeals of adjudications that do not deny an application. 04CA16. 1.C. 119.12.C. Appeals from the following agencies must be filed in the Franklin County Court of Common Pleas. 2006-Ohio-502.12.12. No. para. 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. paras. 2. The party must choose whether to file a notice of appeal in the county of place of business or the county of residence.C. 65 . para. 12CVF7204 (October 17.C. 3. 119. 119. and has no place of business in Ohio. 1: (1) (2) (3) (4) Liquor Control Commission Medical Board Chiropractic Board Board of Nursing b. 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. performing services not regulated by the Psychology Board. 2012). to the Court of Common Pleas of Franklin County.P. (2) The party must choose one.C. 2007).12. Duchon v. (3) County of place of business (a) The county where the dentist worked four days per week. No. No. Ohio State Dental Bd. was the county of place of business. 2005-Ohio-1533. para. not both. 2. 07-564 (July 30. at ¶ 12. 2006-Ohio-502. Altoff. 4th Dist. at ¶ 15.. Dept. 4. (b) Where the psychologist worked twice per month in Gallia County. Ohio State Fire Marshal. the party may file an appeal in Franklin County. Altoff v. R. If the party is not an Ohio resident. No. R. v. 119.12. R.(1) In most cases. 119. para. b. 10th Dist. R.C. Miami C.P. Appeals from the fire marshal pursuant to R.

119. 3. 2505. LEXIS 744. 2007-Ohio-2972. 1995). 4th Dist. The actual mailing date of the order is the event that triggers the appeal period. 4. 10th Dist. 8th Dist. 3d at 102. 114 Ohio St. 321. 2007-Ohio-2877. Colonial. 3d 192. 103. Bailey v. The court held that R. of Job & Family Services. No. must be filed within 15 days of the mailing of the agency’s order. 2000).. 21487. F. 110. para. 04AP-748. 119. 119.12 deprives the court of jurisdiction over the appeal and mandates dismissal. R. 5th Dist. 1987). 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. 114 Ohio Misc. Ohio Veterinary Med. Deaconess Hosp. 1955 Ohio App. 119. Scott (1955). Liebold v. 2006-Ohio-3436. 2012-Ohio-95.C. No. No. Granting of suspension of the order 66 . Ohio State Med. paragraph one of the syllabus. Arndt v. ¶ 28 (R. E. App. No. of Admin. 2012-Ohio-2908. 02AP-1019. 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. No. Pursuant to R. Ohio Dept. Morrison v. para. Ohio Liquor Control Comm.12.C. of Rehabilitation & Correction (1998). A stay of execution of the agency’s order pending appeal is not automatic. Ohio Dept. Serv. 84 Ohio St. 1993). (8th Dist. 2003-Ohio-3121. 84 Ohio St. at ¶ 13. Time for Filing the Notice of Appeal 1. 24. 3d 47. of Ins. 511. 2. 11AP-259. Inc. v.12. Geroc v. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R. 10th Dist. Yeager v. 10th Dist. Mansfield.C. 195.42(C). 5. No. Hughes v. a. 4. 1993 Ohio App. Hiddens. LEXIS 5647 (Nov. Dickson v. 72 Ohio Law Abs.C.12 is a condition precedent to the running of the time for appeal. 3. Ohio Dept. Bd. State v. 3d 317. 103 Ohio App. 37 Ohio App. Proper service pursuant to R.C. The filing of an appeal does not automatically operate to suspend or stay the agency’s order. of Commerce. one to the agency and the other to the court. both notices of appeal. at ¶ 6. 2002-Ohio-5986. Nibert. 51. Ball.C. 2nd Dist. (Franklin C. Ohio Dept. Ohio Dept. Chapter 2505 governs the manner for filing appeals under R.12.C. v. 2. 3d 100. R. at ¶ 14. (10th Dist. 2d 48.07) Nibert v. Suspension (Stay) of Agency’s Order on Appeal 1. 189.. Williams. Bd. Harrison v. 2011 CA 0085. b.C.c. 01CA13. Evidence a.P.

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

12. 68 . R. 1992). Krihwan. v. (b) whether the appellant has shown that it will suffer irreparable injury. para. (c) whether the issuance of a stay will cause harm to others. Bd. Ohio State Med. para. R. Terms of the suspension a. 5. Standard of review of trial court decision on this issue is “abuse of discretion.P. 2008). e.C. M.g. (3) The court generally has broad discretion on what factors to consider in granting a suspension of the agency’s order.” Hunter v. General Motors Corp.. 119. Bob Krihwan Pontiac-GMC Truck. City of Cincinnati Civil Service Comm. 5. b.C. 92CVF05-4202 (July 15. See.12. para. The State Medical Board of Ohio. (10th Dist. C-800651. No. 1981 Ohio App. Inc. until all appeals are exhausted and agency’s order becomes final. See R. Fattah v. Deciding a motion for suspension of agency order is wholly within sound discretion of the trial court. 3d 777. 4. 08CVF-05-7342 (June 12. Franklin C. (1) If an appeal is taken from a common pleas court decision when the court previously granted a suspension of the agency order. that is.P. 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. The Court may set terms during duration of suspension including restrictions on practice. 5. and (d) whether the public interest would be served by granting a stay. 5. v. 119. 3d at 781-82. Duration of the stay/suspension of the agency’s order a. c. the Court may fix the terms of the suspension order. then the suspension “shall not be vacated” and will continue until the matter is finally adjudicated. Leo D'Souza. 141 Ohio App.. LEXIS 13852. No.C. 119.(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. 783. In granting a suspension of an agency’s order..D. No. 1st Dist. 141 Ohio App. Franklin C. at *910.12. Generally. suspension of the order remains in effect until the matter is “finally adjudicated”. 2001).

1984 Ohio App.C. para. 265. 119. 1987 Ohio App. City of Dayton v. 119. Exceptions (1) Liquor Control Commission.C. R. Nos. Haddix.12. c. (3) However. Ohio State Dental Board (7th Dist. A license renewal cannot be denied by reason of an agency order that is on appeal and has been suspended by the court. State Med. LEXIS 10933. 1991). R. The final adjudication order may apply to a license that was renewed during the appeal (regardless of stay/suspension of agency order). R. 6. 2nd Dist. 10th Dist. LEXIS 5639. at *6. License renewal and suspended agency orders a. (b) The court is required to enter judgment within six months of filing of the record.(2) Generally where a timely appeal is taken from a trial court. b.121. at *24-25. para. 119. ¶ 8. (c) The General Assembly set a definite time period for the duration of a suspension of the agency’s order. 9951. 84AP-225 & 84AP-362. para. 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. 3d 262. 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. (b) Fifteen-month limitation on suspension of agency order is constitutional and does not violate due process or equal protection rights. b. (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. No.12.C. or upon a final decision of the common pleas court.12. 119. (i) The stay does not continue on appeal to court of appeals.C. 69 . Expiration of license shall not affect the appeal. of Ohio. 6. Giovanetti v. 63 Ohio App. Plotnick v.C. 119.12. and did not intend for the limit to be evaded with successive stays. R. Bd. 5. R. any trial court order suspending an agency order will remain in effect until the appellate process is complete.

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

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

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

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

73

. (1) Motion required (a) Court may enter a finding based upon failure to certify record only upon a party’s motion. at * 6-7.” R. 09AP-1050. No. 3d 488 at 491-92. 24 Ohio St. of Commerce (1976). 2002-Ohio-3338. 70 Ohio App. 155. LEXIS 6439. LEXIS 5492.a. See Wolf v. 2d 153. LEXIS 1704. of Nursing Edn. Serv. 3d 225. (1986).C. Arlow v. in other circumstances. (b) An appellant must object or otherwise take affirmative action before a court may grant him judgment due to the agency’s failure to timely certify a complete record. See Arlow v. at ¶ 12.. the party is required to show prejudice. (c) If a party neglects to file a motion. Gourmet Bev. 1987 Ohio App. (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. 227.12 provides that “[f]ailure of the agency to comply within the time allowed. Div. McDonald v. 2003-Ohio3261. Hamilton County Welfare Dept. 2010-Ohio-3842. the party is entitled to judgment only if the party is “adversely affected” as provided in R. Barlow v. 119. 8th Dist.12. v. 2. (1) In a total failure to timely certify. Bergdahl v. Comm. 82135.C. of Chiropractic Examiners (1st Dist. 48 Ohio St. but the record is not complete. (2) “Failure requires reversal. Ohio State Dept. 1987 Ohio App. of Real Estate and Professional Licensing. 24 Ohio St.. 119.C. City of Cleveland. Ohio State Bd. of Commerce.. shall cause the court to enter a finding in favor of the party adversely affected. 3d at 155. Ohio Rehab. and Nurse Registration. the judgment is mandatory. Ohio Dept. Serv. the party waives the right to object to failure to certify the complete record. Inc. 119. 10th Dist. R. 01AP-1217. Lorms v. 74 . 9. 1st Dist. at *7.” Jordan v. Cntr. Ohio Liquor Control Comm. b. State Bd. 4th Dist. 1985). Prejudice required for incomplete record (1) When an agency timely files the record. omission requires correction. at ¶ 10. 1990). Ohio St. v. Linbaugh Corp. 155. at *4. n.12. (1986). Distinction between complete failure to file the record and omission from record. 21 Ohio App. (2) “Adversely affected” requires a showing of prejudice resulting from the item being omitted from the record. (b) No prejudice when items omitted did not appear to be outcome determinative. upon motion. c. 10th Dist. Jennemen v. 532. Ohio Liquor Control Comm. of Psychology (4th Dist. No. No. Bd. No. C-860124. Comm. para. Ohio Rehab. 1996 Ohio App. No. 3d 153.

No. Where the agency fails to file any record within the time allowed. State Bd.McCauley v. (b) Agency must show it has made substantial effort to comply. 37 Ohio App. 4th Dist. 24 Ohio St. 3d 301. of Agriculture. No. 9. Ohio State Bd. Ohio Rehab. Bd. Mandatory judgment if complete failure to file record by due date. upon motion. State ex rel. Bd. (1986). LEXIS 465. items omitted were unlikely to have altered the trial court’s decision on appeal). Jennemen v. 365.12.. 95APE09-1239. R. 7th Dist. 82 Ohio App. of Nursing Edn. para. judgment for the party. I. (2) For res judicata purposes. 3d 192 at 197. 3d at 227. (1st Dist. 1999 Ohio App. Arlow v. e. judgment based upon a defect in the record on appeal is procedural. (1) No prejudice requirement. at * 4. of Chiropractic Examiners. LEXIS 863. d. 3d 111. 24 Ohio St. e. 119.C. See Arlow. 1987). Geroc v. 1993). 114. 3d 225 at 227-28. State ex rel. (a) Not to exceed 30 days. Connor (1995). LEXIS 6439. 72 Ohio St. 1996 Ohio App. but filed them after they were approved and prior to the court’s decision. 1985). not on the merits. untimely request for hearing. Jennemen. 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. Robinson (1981). Record on Appeal/Submission of Additional Evidence 75 . 3d 153 at 155. there was no prejudice. Crockett v. at *4. No. and Nurse Registration. Ohio St. (4) The court may permit the agency to correct a defect by filing omitted evidence. of Psychology (10th Dist. is mandatory. 67 Ohio St. Williams Ford Sales. 21 Ohio App. (8th Dist. Ohio Veterinary Med. 10th Dist. 3d 153 at 155. Comm. (c) When the agency failed to file minutes prior to the deadline because the minutes had not been transcribed and approved by that time. (1) No finding for party in absence of a showing of prejudice. 21 Ohio App. Serv. the agency is therefore not barred by res judicata in a subsequent action. 2d 363. (2) Additional time may be granted. 1987 Ohio App. Noble County. f. Sinha v. Ohio Dept.g. at *14. v. 532. 234. 305. (Court found that when the agency’s action was based upon procedure. Prejudice required if the record was filed with a wrong or omitted case number. McGee v. See Jordan v. Inc.

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

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

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

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

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

failure to participate in the hearing waives any issue with the factual determination made by the agency. Derakhshan v. State Med. (b) Exhaustion required for “as applied” constitutional challenge. hearing an action de novo. failure to request a hearing bars an as applied constitutional challenge on appeal. The respondent is limited to questions of law. Lynch (2000). See also. c. 11 MA 39. plaintiff must exhaust administrative remedies if available). accordingly. accordingly. "[t]he hearing of an [administrative] appeal shall proceed as in the trial of a civil action" does not require the court of common pleas to act as a trial court. 2001 Ohio App. 12. Ohio Motor Vehicle Dealers Bd. “…injunctive and declaratory relief are inappropriate if they act to by-pass special statutory proceedings. Id. 132 Ohio St.C. submit briefs. It is within the discretion of the trial court to allow the parties to present oral argument. LTD v. 2. AT&T Communs. 7th Dist. of Twp. it will be impossible to develop the record supporting the challenge. R. v. 2012-Ohio-1975. 00-CA-99. R. Conduct a “hearing” on the appeal a. (c) Injunctive Relief. at ¶ 26. b. The trial court may allow further evidence or arguments. Avery v. Administrative appeals take precedence: The court shall give preference to R. Role of the Common Pleas Court on Administrative Appeal 1.12. 7. but rather authorizes the court to admit and consider new evidence if permitted and to weigh evidence on the whole record. at ¶ 28-29. raising such a challenge in an administrative action would be futile. 2007-Ohio-5802. irrespective of the position of the proceedings on the calendar of the court. K.” DBM Enterprises. (6th Dist. No. The “hearing” may consist solely of a review of the record certified to the court.03's language. Central Cadillac Co. 81 . if such challenges are not raised in an administrative proceeding. Zidian v. Bd. 3d 64. (1984). Failure to appear at the hearing does not constitute failure to exhaust administrative remedies.. 5th Dist. para. Id. 67. 145 Ohio App. 07AP-261. Bd. 14 Ohio St.(a) Exhaustion not required for facial constitutional challenge. No.C. 2506. Improvement Dist. 2012-Ohio-1499. No. 2001). of Ohio. 3d 155 (holding that in order to seek injunctive relief. of Ohio. Ohio Transp. Rossford.C. ¶ 13. v. Trustees of Etna Twp. 10th Dist. of Commerce. Inc. Constitutional challenges must be raised at the first opportunity. The administrative agency does not have authority to declare its statutes unconstitutional. Chapter 119 proceedings over all other civil cases. 3d 92. and/or introduce newly discovered evidence. and therefore exhaustion is not required for a facial constitutional challenge. 119. LEXIS 2030 (Court lacks jurisdiction to be consider injunctive relief when statutory administrative remedies were not first pursued). Dept. However.

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

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

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

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

Recovery of Attorney Fees by Party Prevailing at Hearing (R. Haghighi v.C. An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits. 86 . 119. syllabus. in an amount not to exceed $75 per hour. Relying on the plain language of R.092(F)(3).C. B.C. and R. An adjudication hearing was held by the state personnel board of review pursuant to R.34. 2.092(F)(4).X.C. R. 119. 119. 124. R.092(B)(2)(c).39. the First District has held that attorney fees may be recovered after hearings under R. R.C. 124. Chapter 119 contains two attorney fee provisions: 1.C.092(F)(2) would not bar recovery of fees. Non-recoverable fees a. 2003-Ohio2203. allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level. c. 119.03 (involving discharges or layoffs) and those arising R. state. 119.C.C.03.092(F)(2).34 (involving removals or reductions for disciplinary reasons). Moody (1st Dist.092(A)(2). An adjudication hearing was held to establish or fix a rate.C. R. and 2. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R. 2335.12. R. 1. R. 124. “Fees” means reasonable attorney fees.092(F)(4) as it pertains to the state personnel board of review. 124. A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. b. (1) NOTE: There is a split of authority concerning the scope of R.). but not R. 119. e. 119. unless the agency has established a higher hourly rate by rule that is applicable under the circumstances.C.C. 119. 119.092(F)(1). (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits.C. The fees of the prevailing eligible party were one hundred dollars or less. 119. or local government. What are “fees”? a. ATTORNEY FEES A. 3d 600. R.C.092(F)(4).C.C. R.092. 119.C. 119. which allows a prevailing party on appeal to move the court for attorney fees in accordance with R.C. 152 Ohio App.092). d.C.

or an organization that had a net worth exceeding five million dollars at the time the party received notification of the hearing. An adjudication hearing was held by the state employment relations board pursuant to R.C.C. Wilde v. 119. LEXIS 4813. 98CA00025. 78 Ohio App. 5th Dist. Juvenile Div. 1999 Ohio App. 121 Ohio App.C. 98CA00138. Who can recover fees: prevailing eligible party? a. (3) The Tenth District Court of Appeals has held that all lawful hearings before the SPBR are necessarily in accordance with R.. 119.092 does not permit an eligible prevailing party to file a separate action for fees in common pleas court. Inc.092(A)(1). at *7-8. 124.after hearings under R. An “Eligible party” means a party to an adjudication hearing other than the following: (1) The agency. (2) An individual whose net worth exceeded one million dollars at the time he received notification of the hearing. Discount Fireworks.C. Ohio Veterinary Med. R.C. 119. the award is not automatic. The Ohio Civil Rights Commission is not an “agency” for purposes of R. at *37. No. 725. (3) A sole owner of an unincorporated business. of Common Pleas. (1st Dist.12 b. 3d 723.C. shall not be excluded as an eligible party because of its net worth. 1999CA00055. Hamilton Cty. Carruthers v. Licensing Bd. See discussion below re: “prevailing party” under R. Estate of Kirby v. O’Connor (10th Dist. Stetz. 3d 397. 124. v. State ex rel.C. 119. and (4) An employer that employed more than five hundred people at the time the party received notification of the hearing.092(F)(4). Auglaize Mercer Community Action Comm.092. 73 Ohio St. 401-02.03 -. however. 43.03. 1999 Ohio App. 87 . f. LEXIS 3536. v. 1997). R. (1995).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. 119. Ct. Ohio Civil Rights Comm.C. Chapter 4117. 4. 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. 3. R. b. A prevailing party is entitled to attorney fees. 3d 39. A motion to the agency is the only mechanism for recovering fees. 1992). g. Procedure for requesting fees from the agency a. Nos. 5th Dist.

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. the agency may consider the motion.c. R. c. The agency has the burden to prove the following: (1) that its position in initiating the matter was substantially justified. 119. State ex rel. 3d 414. Identify the party. Indicate that the party is the prevailing eligible party and is entitled to receive an award of compensation for fees. Sohi v.092(B)(3). Consideration of the motion for fees a. 119. d. 73 Ohio St. Ohio Civil Rights Comm. 1998) 130 Ohio App. or 88 . 726. Itemize all fees sought in the requested award. R. Include a statement that the agency's position in initiating the matter in controversy was not substantially justified. This itemization shall include a statement from any attorney who represented the prevailing eligible party that indicates the fees charged.C. 6. and e. the actual time expended. b. that determination is not subject to review by the agency.C. (3) If the determination is made by the hearing examiner or referee. 119. (2) that special circumstances make the award unjust. Reviewed by the examiner or agency (1) The request for attorney fees is reviewed by the hearing examiner who conducted the adjudication hearing.092 does not require a hearing on the motion for attorney fees. Instead. v. (1995). (2) If there was no hearing examiner. Burden on the agency a. 119. and the rate at which the fees were calculated. R. Auglaize Mercer Community Action Comm.C. The motion shall do all of the following: a. 7. b. R.C. R. Indicate the amount sought as an award. 119.C. 425. 5. 3d 723.092 requires only a “review” by the referee or examiner who conducted the adjudication hearing. (1st Dist.092(B)(1). State Dental Bd.092(B)(2). No hearing required.

119. 119. (3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing. 8. (2) See cases below interpreting “substantially justified” language in R. not its initiation.C.(3) that the prevailing eligible party engaged in conduct during the course of the hearing that unduly and unreasonably protracted the final resolution of the matter. Initiating action (1) “Initiate” means to commence an action. b. if issue be one of fact. 9. Ohio Dept. Moreover. not continue a proceeding that has already begun. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation. matter on which action is brought and issue is joined and in relation to which. as found by the court of appeals. 65 Ohio St. (2) Generally.07.092(B)(2). 119. 1992-Ohio-1. 3d 338. (2) Whether the position of the agency in initiating the matter was substantially justified. Id. of Health v.C. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. issuance of the notice of opportunity for hearing. and finds improvement in deficiencies. (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. 1992-Ohio-1. 1992-Ohio-1. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100. i. testimony is taken. State ex rel. Sowald. at 342-43.. Sowald.e. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. Merits of the motion: was the agency “substantially justified” in initiating the action? a. R. b. 342.06 and 119.12’s provision for attorney fees. Substantially justified (1) Whether the initiation of the action was substantially justified is evaluated at the time of initiating the action.C. Decision on the motion for fees a. Denial or reduction of fees requested 89 . Sowald.

119. the award is treated as a judgment under R. a. Gladieux v. (2) Must include specific information listed in R. Ohio St.092(B)(2)(c). 3d 414.092(B)(2)(a).C. 10.092(B)(2). State Dental Bd.092(B)(2)(b). b. (2) The examiner or the agency may reduce the fees requested if the prevailing eligible party engaged in conduct during the course of the hearing that unduly and unreasonably protracted the final resolution of the matter. R. (1) To be filed October 1 in the fiscal year following the fiscal year covered by the report. if any. except no interest is paid. Per R. 119.C. 1998) 130 Ohio App. (10th Dist. Findings and conclusions underlying the decision. 119. Appeal to common pleas court under R. not the board.C.092(E). 133 Ohio App.C. 119. 119. (b) If the fees do not exceed $100. Filing and service (1) Determination must be entered in the record. d. 11. R. a. Eligible party appeal 90 . Med.(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. (1st Dist. R. Chapter 2743. Reasons or bases for the findings and conclusions.C.C. 1999).C. or special circumstances make an award unjust. and Amount of the award. the decision as to fees must be in writing and must state: (1) (2) (3) (4) Whether an award has been granted. 119. Bd. c. The agency must file a report to be filed with the general assembly. 119. If no funds are available. May be paid by agency from any funds available for such compensation. Payment of award a. 425.092. c. Sohi v. R. R. 474. because appeals are decided by the common pleas court.092(E).The fact that the board must pay any fee award does not mean the board has an unconstitutional pecuniary interest in the outcome of the matter. 119.C.C.092(D). (2) Copy must be mailed to the prevailing eligible party. d. 3d 465.

C.C. Harrison v. No.39 sets forth general rules governing the award of attorney fees in actions against the state.C. 119. at ¶10. (2) Decision is final and not appealable. Ability to receive fees: prevailing eligible party a. 119.39 a. (1) The court may modify the decision of the examiner or the agency only if the failure to grant. 5. 78 Ohio App. R. 119. R. (2) he is financially eligible. 119.C.C. 3. C. 119.12 provides that the court shall award compensation for fees to a prevailing party. Statutory framework: R.C. and (3) the state’s position in initiating the matter in controversy was not substantially justified. Ohio Veterinary Med.(1) May appeal denial or reduction of award. R. 119.092(C). R.092(C).12. “Prevailing party” 91 .39. 2335. 558. The agency must file a certified record as required in R.C.C.C.C. 119. d. (2) The agency’s appeal would be filed in the manner specified by R. 119. 2335. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order. Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee. 2003Ohio-3816. 1.092(C).12 for appeals.12. not the agency itself. This attorney fee provision applies only to appeals brought pursuant to R. 119. R.092(C).C. in accordance with R.C.39(B) provides that an individual may recover attorney fees if (1) he prevails.092(C).C. 119. b. 02AP-955.. (2) File in same court in which the party would appeal agency’s adjudication order. R. Licensing Bd. 2. (3) A copy of the decision must be certified to the agency and the eligible party. R. or calculation involved an abuse of discretion.C. 4.12. 10th Dist. 2335. In re Williams (1992). c. 3d 556. R. Common pleas court decision. R. 2335.

See above. dismissal of all charges without remand. 2335.092.C. or organization that had. a net worth exceeding five million dollars at the time the action or appeal was filed.e. 71 Ohio App. The court must determine: (1) Whether the position of the state in initiating the matter in controversy was substantially justified. (4) A sole owner of an unincorporated business that employed. Motion for fees a. more than five hundred persons at the time the action or appeal was filed. 487. association.” Korn v. “Eligible party” means a party to an action or appeal involving the state.(1) A party need not attain a complete victory. 119.39(D).C. or organization that employed. 2335. The motion may request both fees incurred in appeal and in the administrative hearing. 6. The motion must be filed within 30 days of the final judgment by the reviewing court in the action or appeal. association. 3d 483. State Medical Bd. R. to qualify as the prevailing party. 2335. (10th Dist. State Medical Bd. corporation. Korn v.. or a partnership.C. other than the following: (1) The state.39(A)(2).. 71 Ohio App. c. Same requirements for content of motion as in R.39(B)(1). Korn v. b. R. b. or a partnership. R. Court review a.. (3) A sole owner of an unincorporated business that had. 7. (2) An individual whose net worth exceeded one million dollars at the time the action or appeal was filed. 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.C. i. 1991). 71 Ohio App. State Medical Bd. 3d 483 at 487. (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. (3) The court may take the partial victory into account when determining the amount of the fees to be awarded. 92 . 3d 483 at 487. corporation.

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

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

R.C. LEXIS 6174 (Feb. Ohio Dept. 24. 2335.C. or local government. Note: For additional information on administrative law. 2335. Inc.C. 2335. b. where the court assumed (without deciding) that. Adjudication orders exempted under R.39(F)(3)(b). d. under the right circumstances. where the state sought to take away a license already held by an individual. Sowald. 3d 531. of Motor Vehicles (9th Dist. c. When the eligible party’s attorney was paid pursuant to appropriation by federal. attorney fees could be awarded in a proceeding where the state attempted to decertify a nursing home. Morris (1992). 2335. 1994 Ohio App. Pro se litigants may not be awarded attorney fees under R. c. of Health v. 67 Ohio App.2335. See also. 10th Dist.12 of the Revised Code.39(B). An order of a court considering a motion under this section is appealable as in other cases. 1992-Ohio-1. 5101. If the case is an appeal of the adjudication order of an agency pursuant to section 119. State ex rel. 2335. 3d 458. 119. R.C. 93AP-331. Exemptions from R.092(F). involved an abuse of discretion.C. b. Schregardus. b. 11. 10.35. state. 3d 338.39(F)(3)(a).” This principle was reaffirmed in Thermal-Tron.39 a. 1994) at *6-7.39(B)(2). 1990). No. However. 65 Ohio St. the agency may appeal an order granting an award. a. 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.C. you may wish to consult the Ohio Administrative Law Handbook and Agency Directory in Baldwin’s Ohio Administrative Code. v. State ex rel. An administrative appeal decision under R. Freeman v. R. R. by a prevailing eligible party that is denied an award or receives a reduced award.39.C. 2335. 65 Ohio St. or the calculation of the amount of an award. the court in In re Van Arsdel distinguished cases such as Holden v.39(B)(2).39(F)(3)(c). 460. 2335.C. 95 . Appealing an award of attorney fees under R. Ohio Bur.C.

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