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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

b. department.C.C.01(A)(1): (1) Public Utilities Commission. board or commission to R. 119. division. c.C. (10th Dist. 119. (2) A statute specifically subjects the agency. 5101. boards and commissions are specifically named in R. bureau.01(A)(1).C.C. or commission that has the authority to promulgate rules or make adjudications in: (1) (2) (3) (4) (5) the Civil Service Commission. R. 119. (1) Certain agencies. the Industrial Commission. (3) The agency. board or commission has authority to issue. Chapter 119 Pursuant to R. 117. Governmental Entities Subject to R. Exclusions from Definition of “Agency”. board or commission of the state government having the authority of responsibility of issuing.C. The licensing functions of any administrative or executive officer. R. remove or cancel licenses. B.01(A)(1): Any official. R. APPLICATION OF R.01(A). there are three ways in which a state agency. 2d 115. 119. suspending. R. CHAPTER 119 A.01 to 119. 119. suspension.01(A) a. Chapter 119.01(A)(2)(b). board or commission of the state government specifically made subject to sections 119.09. R. 119. amendment or rescission of rules mandated by R.C. Agencies Specifically Named in R.01(A)(1). 119. revoking or cancelling licenses. R.I. 119. and/or the Bureau of Workers’ Compensation. board or commission may be required to follow the Ohio Administrative Procedure Act.13 of the Revised Code.C.01(A)(2): Any official or work unit having authority to promulgate rules or make adjudications in the Department of Jobs and Family Services specifically pertaining to: (1) Adoption. bureau. suspend.C. e. 1 . Chapter 119. Entities that Constitute an “Agency” 1.C.C. Any administrative or executive officer. department. 1975). the Division of Liquor Control. (2) Issuance. Fair v. School Employees Retirement Sys. 44 Ohio App.C. division. board. revocation or cancellation of licenses. the Department of Taxation.C. d.

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

1 (emphasis added). b.C.C. the refusal was not an agency decision and therefore. 2d at 152 n. 119. 3 . Chapter 119. Entities exercising derivative power a. a. "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination.12. the act is a licensing function because it does not fall under the exemption included in R. 2003-Ohio-6940. Inc. duties. Dept. C. which then authorized state universities to exercise the powers. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119. Right to an appeal: Pursuant to R. The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services. 151-52. Not Ministerial Acts 1. Bd.13. 4.C. (1963). 03AP-330. (1981). 119. 119. (4) The Tenth District Court of Appeals held in Springfield Fireworks. Board of Edn. which was an agency subject to Chapter 119. 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. 2d 149.01 to 119. of Commerce. para. 174 Ohio St. The conduct at issue was authorized by R. and functions of the Department of Administrative Services with respect to civil service employees." R. was not appealable pursuant to R. of Admin. the entity is also subject to Chapter 119. v. (1) In Bd.14(G). 1 (emphasis added). of Findlay School Dist. may appeal from the order of the agency to the court of common pleas. or canceling of a license. of Trustees. Ohio Dept. 68 Ohio St. 124. or denying the issuance or renewal of a license or registration of a licensee.Therefore. v.C. or revoking or suspending a license . at ¶ 24. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119. 119. Chapter 119 Applies to Adjudications. entity exercising derivative power must be a state agency. suspending.06.. of Trustees of Ohio State Univ.01(B). paragraph two of the syllabus). revoking.C. Serv. 68 Ohio St. the university was also bound by Chapter 119 in the exercise of those powers. para. 10th Dist No.. Chapter 119 provides certain rights in relation to adjudications. 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. Since the act was not a licensing function.” R.3 (citing Karrick v. Where an entity exercises power derived from another agency that is covered by Chapter 119.C.12. 467.

v. 2d 1. Koch v. 616. 3d 612. 1990). New London Hosp.01(D) as: “* * * the determination by the highest or ultimate authority of an agency of the rights. or was merely a ministerial act. (10th Dist. (6th Dist. 1993). Brown (1982). (10th Dist. “Ministerial Act” defined a. v. 67 Ohio St. 612. 70 Ohio App. 2d 1 that. 69 Ohio St. privileges. duties. A ministerial act has been defined as an act that. State Dept. “Adjudication” defined a. 150 Ohio App. a person performs in a prescribed manner.). one must determine whether the act of the agency constituted an adjudication. v. 618. 1980 Ohio App. Inc. the licensee was entitled to a hearing prior to being forced to cease bingo operations. or legal relationships of a specific person. given a certain state of facts. 4 . 80AP-208. Raceway Park. Thus. 762. 69 Ohio St. Odita v. Id. 3d 612. the act of denying his transfer application was a ministerial act to which no right to appeal attached. 1994). 2002-Ohio-6838. Ohio Dept. 3d 82. Ohio Dept. at 12. at *8.C. In re Seltzer (1993). 3d 702. without regard to or the exercise of that person’s own judgment upon the propriety of the act being done. cited in Ohio Boys Town v. c. 10th Dist. Nash (1902). therefore. Inc. 119. Chapter 119. LEXIS 12569. Ohio State Racing Comm. Bayside Nursing Ctr. 70 Ohio App. the Sixth District Court of Appeals held that because the Division of Wildlife has no discretionary authority in reviewing Koch's request to transfer his commercial fishing license. but does not include the issuance of a license in response to an application with respect to which no question is raised. of Health (10 Dist. 614. at ¶ 16.” b. b. 88. Ohio Dept. nor other acts of a ministerial nature. of Natural Res. in order to determine whether Chapter 119 applies. Id. State ex rel. 3d 220.2. v. 3d 754. Ministerial acts involve no discretion (1) In Koch v. 66 Ohio St. 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. 3. benefits. 96 Ohio App.C. 88 Ohio App. An “adjudication” is defined by R.. of Human Servs. pursuant to R. The Ohio Supreme Court ruled in Ohio Boys Town. in obedience to the mandate of legal authority. of Natural Res. 224. The Supreme Court held that the rejection of the application for renewal was an adjudication by the highest or ultimate authority of an agency. No. Brown (1982). Trauger v. of Ohio Non-Profit Corp. Creasy.

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

5. Orders Effective Without a Hearing 1.062. R. Certain orders canceling or suspending a driver’s license. 119. 119.06(B).C. 2006Ohio-2171. 4. Ohio occupational therapy. Exception: When a statute permits the suspension of a license without a prior hearing. c. 119. R. 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. D. The Action of the agency rejecting the application shall not be effective prior to 15 days after the notice of rejection was mailed to the licensee. (1) Failure to provide an opportunity for a hearing following the suspension violates due process. R. Board of examiners of architects. 119. No. A hearing must be held following suspension. C. 119. If a licensee timely files for renewal or registration. State Med. and give the appellant a right to hearing on appeal. 3. b. of Ohio. Orders revoking a license where an agency is required by statute to revoke a license pursuant to a judgment of a court. General rule: Agency must provide an opportunity for a hearing BEFORE issuing an adjudication order. provides: a. R. para. R. the licensee shall not be required to discontinue the licensed business or profession merely because the agency fails to act on the application.C. at ¶ 14. R. 6 . Board of landscape architect examiners. 2. Orders suspending a license where a statute specifically permits the suspension of a license without a hearing. 2. Bd. another agency. Suspensions Without A Prior Hearing (“Summary Suspensions”) 1. 10th Dist. 05AP-1079.06(A). and athletic trainers board. Chiropractic board. This is often called a “summary suspension. or to the board of tax appeals. 119.(2) No hearing is required for the following boards if the applicant failed a licensing examination: (a) (b) (c) (d) (e) Medical board. The agency must provide a hearing unless a hearing was held prior to the denial. Doriott v.C.C. 9.C. physical therapy. When an agency denies a renewal or registration.C.06(C).06.” a.06.

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

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

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

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

(10th Dist.062. 119.L. Service of Notice 1. 2d 110.07. registered mail is not required. E.C. 3d 332. 67 Ohio App. 2011-Ohio-431. R. 89CV-01-64 and 88CV12-8615 (July 3. No.C. (2) Service at a place of business. b. 10 A. State Med. ¶ 35 (1) No requirement that the notice to counsel be sent by registered /certified mail. (1) Note: registered mail and certified mail are interchangeable. When an item is sent by certified mail. Franklin C. To attorney by regular mail: “A copy of the notice shall be mailed to attorneys or other representatives of record representing the party. 1. 21 Ohio App. 1990). 3.02(G).C. 3d 287. (7th Dist. Annotations 1.” R. Gilbo (2nd Dist. 10AP-419. of Edn. Liquor Control Comm. Ohio State Med. D. Amon v. a rebuttable presumption of delivery to the addressee is established. R. 47 A. To party by certified mail: Notice of opportunity for hearing must be sent to the party by registered mail. Initial service of notice a. return receipt requested. Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine.(2) A board’s issuance of a summary suspension one year after it had knowledge of the licensee’s practice violations was unconstitutional. 96 Ohio App. State v.3d 361. Angerman v. Kellough v. return receipt requested. 1989)..P. 1994). Nos. 11 . R. Tripodi v. 2. 290. 119. (3) Driver’s license: In a case involving revocation or suspension of a driver’s license.R. 1970). 10th Dist. and thereafter a signed receipt is returned to the sender. 339. Necessity of notice and hearing before revocation or suspension of motor vehicle driver’s license. 119.5th 1.07. Bd.R. Ohio State Bd. Sufficiency of notice or hearing required prior to termination of welfare benefits.R. 60 A. a..L. Bd.3d 277. 111-12.L.C. (2) No requirement that the agency search anything other than its own files to find out if the party is represented by counsel.

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

with the first publication of the notice set forth in the affidavit. by his conduct. No. Failure of an agency to give notice as prescribed results in the invalidation of any order entered into pursuant to the hearing. Does the notice include confidential information.C. Ohio State Racing Comm. 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. Prinz v. Failure to Give Proper Notice 1. Kirresh.” Fogt v. LEXIS 116. 119. must be mailed by ordinary mail to the party at the last known address. 1986). No.. a. such as patient names. 62337. 2003-Ohio496. F. City of Lakewood v. R. (3rd Dist. 02 JE 22. “A person entitled to statutory notice may waive it. Jefferson County Child Support Enforcement Agency v. (e) Notice deemed received as of the date of last publication. 8th Dist. 3d 74. 424-25. at *12-13. at *3. 1992 Ohio App. 2. Practical Considerations 1. Waiver a. Does the agency have sufficient evidence to support every charge stated in the notice? 4.(d) A proof of publication affidavit. Sliker (10th Dist. LEXIS 4755. Does the notice comply with all procedural requirements set forth in statute and administrative rule that are unique to the agency? 6. State Counselor & Soc. 30 Ohio App. if necessary. Does the notice state all of the respondent’s hearing and representation rights as specified in R. 1st Dist. Harris. 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. which should be stated in a separate document attached to the notice? 3. 2d 423. 76. Worker Bd. Does the notice indicate the agency’s address and telephone number and. 7.07. C-990200. 7th Dist. 3 Ohio App. 119. No. Columbus v. Is the agency authorized by statute or administrative rule to take the proposed action? 5.07? 8. 2000 Ohio App. or any feature of it. acknowledge the giving of notice to him. para. 1965).C. See also. the name of a contact person? 13 . G. or may.) 7. so as to be precluded from afterward challenging the proceeding for want of notice. An agency cannot enforce an order resulting from an improper notice of charges.

Bd.. HEARING REQUESTS A. Timing of Request (R. 2. 54292. LEXIS 11662. 119. the act may be done on the next succeeding day that is not Sunday or a legal holiday”. 1995).” IV. (10th Dist. 1987 Ohio App. 1. 119. a. But see Alcover v. B. 2. Chapter 119. The court found this was sufficient notification because licensee had expressly reserved the right to adjudication. 1. at *9 (telephone request to assistant attorney general insufficient. 1. Harrison v. 10th Dist. except that. Ohio State Med.C. Chapter 119 does not specifically provide that a request for hearing must be in writing. 1979 Ohio App. LEXIS 9961. Williams. No. 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. Reserving right to hearing shows intent to request. 1. Method of Requesting a Hearing 1. Ohio State Med. No.07 begins to run on the date the agency or board mails the notice by certified mail.07) 1. The thirty days provided by R. 318.C.C. 3d 317. R. a.14.14. Does the notice indicate the method of service to be utilized? 10. If multiple violations. 8th Dist.C. 14 . which letter also stated that licensee was not waiving his right to a hearing.14 states that when a public office is closed to the public and it is the last day to do a required act. Licensee sent a letter proposing an informal settlement. A party must request a hearing within thirty days of the date of mailing the notice.C. 1. v. where attorney advised the licensee that request must be made in writing to the board). R. is it clear which alleged facts violate each statute or rule stated in the notice? H. Chapter 119.C. Standard Oil Co. when the last day falls on Sunday or a legal holiday. The time computations set forth in R.C.14 apply to proceedings conducted pursuant to R.C. Computing Time Pursuant to R. In writing a. Agency erred by failing to timely set a hearing date and time as mandated by R. Bd.9. at *9. “the act may be performed on the next succeeding day that is not a Sunday or a legal holiday. 103 Ohio App. showing intent to request hearing. 78AP860.

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

(2) Thus. Ohio State Racing Comm. 92AP-1430. at *7-8. The date set must be seven to fifteen days from the time the party requested a hearing. Initial Scheduling 1. 16 . 1988). the agency shall immediately schedule the time. 3d 201. 166. Once a party requests a hearing. Id. 31 Ohio App. v. R. the court said that two (2) years was an unreasonable delay. 1969). 119. date and place for the hearing. 1991 Ohio App. The agency may postpone or continue a scheduled hearing upon its own motion or the motion of any party. in the same notice. In re Barnes (10th Dist. CA2867.. 61 Ohio App. para. 60858. 2.C. Ohio State Racing Comm. of Commerce v. b. 8th Dist. No. Ohio Dept. at *4-5. Vild. infra. Kizer v.C. 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.07. 1986). 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. (9th Dist. (10th Dist. 3d 111. 40 Ohio App. of Edn. 262.09. R. Practical Note. SCHEDULING OF THE HEARING A. para. The agency will often set the initial hearing date.07. a. Sahely v. a. 1988). R. and forthwith notify the party. 1991 Ohio App. LEXIS 2713.C. Effect on appeal rights (split in decisions). 3d 256. LEXIS 2034. LEXIS 6173. because the agency has the authority to continue a hearing upon its own motion. 119. 3. the agency must initially schedule the hearing for seven to fifteen days from the date of the request. B. McCullion. Requirement to hold hearing within fifteen days is directory. and then. inform the party of the continuance. 119. V. 3.3. b. 3. A hearing cannot be continued for an unreasonable amount of time. Kash (8th Dist. Bd. 5th Dist. Ohio St. 113. 1993 Ohio App.. 2d 157. (1) In In re Application of Milton Hardware Co. No. see Section IX APPEALS. 19 Ohio App. but may then continue the hearing to a later date. 10th Dist. Id. not mandatory. No. Continuances 1. Yoder v. See In re Application of Milton Hardware Co. at *7. unless otherwise agreed upon by both the agency and the party.

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

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

R. Ohio Board of Nursing.C.09 (emphasis added). 119. 1988). Murray (1993). Id.. the agency may. 145. Frantz (1990). Ohio State Bd.09 pertains to securing the attendance of witnesses and the production of records and documents for the purpose of conducting an adjudication hearing.09 by not issuing a subpoena when requested by the respondent.09 is satisfied when the agency subpoenas records to be delivered at the commencement of the hearing. 10th Dist. Id. LEXIS 305. Method of delivery 19 . Because R. 3d 527. 66 Ohio St. and upon request of any party shall. The mandatory language in R. 00AP-523. Bd. at *11. 3d 605. 08AP-794. No. of Pharmacy v. 80 Ohio App. 119. Ohio State Bd. No. The agency violates R. issue a subpoena for any witness or subpoena duces tecum to compel the production of records.09 does not provide for prehearing discovery depositions by a party to an adjudication hearing. 1992).” State Med. reversal of the agency’s final order is not necessary where the respondent fails to show prejudice. a. however. of Pharmacy v. Burneson v. 48 Ohio App.C. (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.C. 119. 2. b. C. at ¶ 24. (2) The court further indicated that Froug could have requested a continuance if more time was necessary to review the records. at *9-12. Chapter 119 does not provide for discovery depositions. 2009-Ohio-1103. R. Subpoenas for Purposes of a Hearing 1. b. 119.hearing against a party who was present or represented at the taking of the deposition. R.C. 51 Ohio St. In re Heath (10th Dist. 28-29. b. of Ohio v. 10th Dist. 2. 2001 Ohio App. See Froug v. and served and returned in the same manner as a subpoena in a criminal case is served and returned. 535. Ohio State Racing Comm. R. For the purpose of conducting an adjudication hearing. 3d 222. 611-12.C. a. The subpoena shall be directed to the sheriff of the county where the witness resides or is found.C. Chapter 119 provides that a party may request the issuance of a subpoena duces tecum for the purpose of conducting a hearing. 119. 3d 143. Parties cannot obtain prehearing discovery depositions regardless of whether the depositions are described as “depositions” or “prehearing discovery depositions. Poppe (12th Dist. Proper service and fees a.C.

b. upon demand. or otherwise. 3. 10th Dist. Smith Corp. if tendered prior to the time appearance is compelled. 17(D) provides that proper service is effected by tendering to the witness. para. 2335.09. at ¶ 26. No. Return of subpoena a. 20 . OAG Opinion. 734. c. 17(D) provides that if the witness resides outside the county where the agency is located. Castle (9th Dist. OAG Opinion. 1994). Must be returned in the same manner as a subpoena in a criminal case. 119.09. R. valid service is completed. Crim. 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. error could be cured by subsequently tendering the fees. 3d 732. 2. and the witness may not later refuse to appear solely because the fees were not tendered upon service. Fees (1) Witness residing within county: Crim. 03AP-266. 2004-Ohio-4041. A. witness fees and mileage fees must be attached to the subpoena and tendered without demand or the witness is not obligated to appear. R.O. (2) Witness outside the county: Crim. See R.C. (a) A witness living in the same county as the agency waives the right to fees if not demanded upon services. State v.C. 86-066. fees shall be tendered without demand. R.C.08 for current amount. 92 Ohio App. 119. R. (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. 86-066. (a) Where a witness lives outside the county where the agency is located. 17(D) provides that the return may be forwarded through the postal service. (b) When the fees were not tendered with subpoena. v.. Perfection Corp.(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. or by leaving it at his usual place of residence. (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. the fees for one day’s attendance and the mileage fees allowed by law.

(c) The writ will only issue for disobedience of a subpoena “personally served” on the witness. (2) Attachment proceedings for contempt are set forth in R. (b) Although the agency is required to seek enforcement of subpoena. 2317.C. Carratola. 1998 Ohio App.” R. (a) This statute is inapplicable if proper fees are not paid to the witness. 220. Failure to obey subpoena/sanctions a. may order. LEXIS 2020. 18658. (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. LEXIS 2020. 119.C. 1998 Ohio App.21. 3d 218. No.21. (1) Upon failure to comply: (a) Agency must file an application to enforce the subpoena if requested. Contempt proceedings. But the court "by a rule.09. subject only to proper privilege assertion by the witness. R.C. Ohio State Dental Bd. 9th Dist. at *13. 3 Ohio App. Green v.. Remlinger (1983). the court shall compel obedience by attachment proceedings for contempt. such as limiting testimony of other witnesses. him to show cause why such writ should not issue against him" if the witness was served with the subpoena in some other fashion. R. 3d 26. 8 Ohio St. v. Carratola v. 1981). 27. 2317. (4) An agency is limited to the statutory attachment procedures to sanction contempt of its subpoenas. (c) If the matter is one in which the witness may be subject to lawful questioning. (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.4. (a) The agency is required to seek enforcement if asked by the party who requested the subpoena. 21 . (3) Requirement to Enforce if Requested. (d) Court shall compel compliance as in cases of disobedience of court subpoena. (b) The application is filed in the court of common pleas where the disobedience occurred.C. failure to do so does not require reversal of the agency’s decision unless the appellant shows prejudice resulting from the failure. at *13.21. and may not resort to other forms of punishment. Western Reserve Psychiatric Habilitation Center (9th Dist. Ohio Motor Vehicle Dealers Bd. 2317.

Bd.C.g. R. R.C.C. Dept. D. 87 Ohio App. State Med. Specified authority (1) Some agencies have specific statutory procedures for enforcement of these subpoenas. Ombudsman. In re Investigation of Laplow (9th Dist. it is reasonable to argue that the sanctions permitted by Civ.20(H). Div. for purposes of investigation. See State ex rel. Implied power. 3d 386..C.C. of Aging. 1. 173. Bd. since the legislature has empowered them to issue subpoenas. 3d 59. State Med. there is an implied power to enforce them through the court.g. 2.C. Polen. v. of Aging. below. Board of Nursing. Franklin C. Ombudsman. of Securities. R. R.. Medical records a. 1707. 307.C.22(F)(3). R. 1994). Chiropractic Board.. In re Investigation of Laplow (10th Dist. 4723. 4723. 1993). b. Medical Bd.b. R.22(F)(3). (1) Absent specific statutory authority or a pending case or appeal.C.. (2) Thus.29).C. 2000). 4734. However. Thompson. b. do not have specific statutory procedures for enforcement of investigative subpoenas. Chapter 119 does not provide statutory authority for a motion to quash. R. 390-91. paragraph 4 of the syllabus. (10th Dist.C. 1996). 22 . The Medical Board’s statutory authority to subpoena patient records is not dependent upon patient consent.g. 45(E) may be granted.24. 61. (E. In re David E.. R.C.24. Some agencies have statutory authority to issue investigative subpoenas. Investigatory subpoenas are those to compel testimony or the production of records. 00MS000041 (July 24. No. Hildebrant (1915). R. for general principle of implied power to perform duty. D.. 96 Ohio App. of Securities.20(H). (2) If the statute grants enforcement according to the Civil Rules. 173. R. because R. Div. Investigative Subpoenas 1. 3. Chapter 119. Board of Nursing. Dept. prior to hearing. Motions to Quash not authorized by R.29). 108 Ohio App. e. 4731. 4.P. 93 Ohio St. See discussion re: Health Insurance Portability and Accountability Act (“HIPAA”). 4731. (e. Chiropractic Bd. Enforcement a.48(A)(2). Hunt v. 3d 305. the court of common pleas has no jurisdiction to entertain a motion to quash an administrative subpoena. 1707.C. the only avenue available to a witness is to defend an action to compel. Other agencies.

Medical records. 3d 439. Schweikert (1988). Multimedia. 3d 170. 3d 141. or sent under the jurisdiction of a public office. policies. State ex rel. 38 Ohio St.C.). d. see the most recent version of the Ohio Sunshine Law Update published by the Ohio Attorney General. b.E. 149. 173. (2) The record must have been generated in the course of medical treatment. 2. film.C. Cincinnati Post v.43. Trial preparation records. received. The Public Records Act applies to any record. For more detail. but not generated in the process of medical treatment is not covered by the medical records exception. as defined under R. Exemptions/Exceptions: a. R. 149. of a public office. A “record” is any item that: (1) Contains information stored on a fixed medium (such as paper. State ex rel. prognosis or medical condition of a patient. see Steffan v. R. Snowden (1995).43(A)(1) and (3). a. etc. decisions. 149. c. 23 . 149. R. Multimedia v.C. 67 Ohio St. functions. 72 Ohio St. 142. (1) The information must pertain to the medical history. 3d 141.011. c.011(G).C.C. computer.43(A)(1)(g) and (4). 149. (The following is a brief outline of Public Records Law. and (3) Documents the organization. 72 Ohio St. 440. 149. Respondents May Obtain Certain Agency Records through the Ohio Public Records Act. R.C. see R. Uncirculated personal notes. (2) Is created. (a) A report of a medical professional generated as part of the decision making process regarding employment. operations or other activities of the office. Any doubts are to be resolved in favor of disclosure. procedures. 142. b. not exempt by law. For a complete list of exemptions. State ex rel.43(A)(1). The provisions of the Act that provide access are to be liberally interpreted and exemptions are to be strictly construed.) 1. The requested records must be released unless they fall within an exemption or exception to the Public Records Act. diagnosis. Kraft (1993).

37 Ohio St. 3d 498. Beacon Journal v. 60-61. (v) Specific investigatory work product. City of Cleveland. 3d 28. (2) The application of this exemption appears to be more limited in the civil and administrative context. witnesses or information sources. 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. the administrative agency’s investigative file may be trial preparation if criminal prosecution was anticipated by the AAG. Shupe (1988). 149. State ex rel. v. 1993-Ohio-192. 3d 155. 3d 420. Martin (1988). information in a prosecutor’s files is deemed to be trial preparation material. 3d 308.43(A)(1)(h) and (2). State ex rel. i. v. civil or administrative matter? (b) Step 2: Would release of the record create a high probability of disclosing any of the following: (i) Identity of an uncharged suspect. probable cause determination or investigation into wrongdoing. quasi-criminal.(1) In the criminal context. State ex rel. 63 Ohio St. 3d 59. 64 Ohio St. Martin v. (3) Dicta contained in State ex rel. 3d 681. 309. Barton v. (a) Step 1: Does the record pertain to a law enforcement matter of a criminal.C.e. State ex rel. Confidential Law Enforcement Investigatory Records (“CLEIR” Exception). 70 Ohio St. (1) Two-step analysis for determining applicability of this exemption. reversed on other grounds. 49 Ohio St. McGee v. University of Akron (1980). 682. 29-30. Inc. State ex rel. Yant v. Franklin County Sheriff’s Dept. (iii) Information creating a serious danger to law enforcement personnel. 502. e. 67 Ohio St. SERB (1992). State ex rel. (1) As with the trial preparation exemption. 74 Ohio St. (ii) Identity of an information source or witness to whom confidentiality has been reasonably promised. the work product exemption appears to be more comprehensive in the context of a criminal 24 . 156. 47 Ohio St. 70 Ohio St. R. 2d 392 (routine techniques not protected). crime victims. 431-32. Ohio State Bd. Thompson Newspapers. Jackson (1994). Steckman v. 1996-Ohio-234. State ex rel. of Psychology (1989). requiring a showing that the information was not gathered for some purpose other than litigation. Conrad. Steckman. 3d 420. (iv) Specific investigatory techniques and procedures..

the confidential law enforcement investigatory record exemption remains applicable until all proceedings are complete. Steckman v. The following are a few examples: R. 89 Ohio St. (2) The following line of cases illustrates the volatility of this area of the law. The Family Education Rights and Privacy Act 25 . 360.27 (PERS member information). 1333. 70 Ohio St.20 and 3309. 173. R. R. Mayfield (1990). (a) Social Security Numbers. (b) Student Education Records. Conrad. State ex rel. Toledo Police Patrolman’s Assn. 75 Ohio St. not related to any one specific agency. 74 Ohio St. 2000 Ohio App. (3) Federally protected information. 6th Dist. Cuyahoga County Dept. 3304. See State ex rel. WLWT-TV5 v. the statute likely qualifies as an exemption under this statute. 3d 605. State ex rel. Jackson (1994). One particularly noteworthy exemption premised on federal law is the exemption of social security numbers. Renfro v. There are also general state statutes. R.43(A)(1)(v).C. Be sure to check the agency’s own statutes. 3d 420.C. City of Akron (1994). Ohio Patrolmen’s Benevolent Assn. L-99-1143. (a) Many state administrative clients have statutes making specific information confidential. So long as the statute can be read to prohibit general release. LEXIS 875. 2151. 149. State ex rel. 3d 681. Records the release of which is prohibited by state or federal law. Yant v.22 (Long term care ombudsman investigative files).22 (STRS and SERS member information). Leis. e. R. based on a federal privacy interest.17 (Director of Commerce Investigations).g. (5) State ex rel. R.21 (Client records of rehabilitation services). (1990).C. 5153. 77 Ohio St.C. (b) The legislative language used to create confidentiality may be phrased in different ways. (4) Once applicable. 1996-Ohio-204. of Human Serv. 54 Ohio St. State ex rel. 1995-Ohio-19. Toledo. that create confidentiality. Polovishack v.65. Lashutka. discusses the applicability of this exception to administrative investigation files.C. Beacon Journal v. (2) General confidentiality provisions. Leonard v. 1997-Ohio-273. 3307. This is far from an exhaustive list.C. 3d 185. R. R. State ex rel. 2000-Ohio-214. for example the Trade Secrets Act. 3d 357. 3d 440. v. State ex rel. White. 3d 51. See.proceeding than in the context of a civil or administrative proceeding. Mentor. f. 72 Ohio St. Police Officers for Equal Rights v. 70 Ohio St. 27 (child abuse investigation reports). 1996-Ohio234. Local 10 v. 612. State ex rel.421 (Child abuse and neglect investigation records). 3d 25. 3d 516.C. No. (1) Agency confidentiality provisions.C. 145. 50 Ohio St.

the agency may deny the request. (4) If information within a public record is exempt.C. 26 . held that when a criminal defendant who has successfully completed a program of intervention in lieu of conviction moves for an order sealing his or her record under R.S. 132 Ohio St. (3) If the requestor makes an overly broad or an ambiguous request.43(B)(1). Access to court record sealed or expunged under R.32(A)(1). but the Public Records Act does not require that the request be put in writing. 20 U. or to impose a waiting period before the record is sealed pursuant to R. Niesen-Pennycuff.C. g.C. (4) Privileged information (a) See discussion below. unless the state agency is acting for the federal agency in some substantial respect. 2953. remember. a. in most instances.041(E). Consult FERPA for requirements and exceptions.C. § 552. the agency must provide a redacted copy. The Supreme Court of Ohio in State v. (2) Upon request. but must provide the requestor with an opportunity to revise the request.43(B)(1). R. 149. 2953.(“FERPA”).52(A)(1). 2953.43 provides: (1) Upon request. The agency may ask that the request be put in writing to assist it in responding to the request. 2951. (c) When determining whether a federal exemption applies. 5 U. all responsive records must be promptly prepared and available for inspection at all reasonable times during regular business hours. 149. Exemptions under the Federal Freedom of Information Act. § 1232g(b)(1).C.52(A)(1). A pending administrative proceeding involving a conviction or intervention in lieu of conviction may be affected. b. R. 2012Ohio-2730. 3. 149. 149. protects the release of educational records without written consent of the student or the student’s parents.C.C.3d 416. R. Section F. the trial court has discretion either to grant the motion immediately under R. do not generally act to exempt records in the hands of a state agency.C. Protected Information regarding privileged information. Mechanics of making and responding to a public records request. records made confidential in the hands of an agency of the federal government are usually not exempt when in the hands of the state agency.43(B)(2).C.S. the agency shall make copies available at cost and within reasonable time.C. (a) Redaction must be plainly visible. R.

(1) At cost does not include employee labor time. Anyone aggrieved by an agency’s failure to release a public record may bring a mandamus action to compel release. R. 149.C. 27 . R. indicating legal authority for denial. provides insight into how the operative terms in R. (5) If the request is denied. 70 Ohio St. (b) Maximum $1000. the party is entitled to the copy at cost. 2004-Ohio-4354. The specific statute trumps 149. b. 149. 9-4). 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. (3) Regular business hours for a police department which is open 24 hours a day are normal administrative hours (i. 621-26. (ii) The custodian of the public records failed to comply with the party’s request. therefore. (2) The public office cannot charge for inspection. However. 103 Ohio St. at ¶ 15-17. Warren Newspapers v.43. 1994-Ohio-5. in whole or in part. the party must pay the court reporter to get a copy of the court transcripts in common pleas court. rather than a transcript of the audiotape.(b) Redaction is considered a denial. that party cannot obtain the documents at cost under the Public Records Act. 3d 619.43. Enforcing Public Records Act a. the agency must provide an explanation for denial. d.43(C). Hutson. 149. (c) Only awarded if the requestor transmits a written request via hand delivery or certified mail.43(B)(3). if a party only seeks a copy of an audiotape of court proceedings. c. (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. 3d 89. R. Liabilities (1) Civil penalties: (a) Statutory damages: $100/day after filing of mandamus action.C. State ex rel. Rogers (2004).C.43(B) are to be interpreted. 4. 149. 149.e.C.C.43. Slagle v.

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

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

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

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

2001-Ohio-8766. 87-91. 1983). 81 Ohio St. 44 Ohio Jurisprudence 3d. 1998-Ohio-445.D. Nature of Proceeding 1.S. of Revision. Jena (D.5.” and are not subject to the Open Meetings Act. State Med. 3d 8. THE CONDUCT OF HEARINGS A.D. 3d 58. at P. 3d 346. 8 Wigmore. 01AP-344. V. Taft. 81 Ohio St. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. (1975). b.E. (10th Dist. 3d 729. However. VII. but deliberations need not be in open meeting). Carl Zeiss. 32 . 10th Dist. No. quoting Carl Zeiss Stiftung v. Paul R. Hamilton County Bd. 61. Standard to be met in order to establish the privilege and the reason for the privilege: (1) the material must be pre-decisional. 132 at 151. Attorney-Client Privilege in the United States. at 383. Bd. 109 Ohio St.D. Hamilton County Bd.383-385. 6. 1998-Ohio-445 (“sunshine law” does not apply to adjudication proceedings at the Board of Tax Appeals because its adjudication is quasi-judicial. and (2) it must be deliberative. quasi-judicial hearings are not “meetings. Dann v. Deliberative Process Privilege a. Labor Relations Bd. Sears. Treatises a. 318. c. 61. citing Natl. In re Petition for Annexation (10th Dist. 3d 58.C. Open to the public a. at 383-384. 737. Angerman v. Liquor Control Comm. Evidence (4th Ed.R. Id. The Ohio Supreme Court has recognized the common law tenets of the deliberative process privilege. 11-12. Rice (1993).B. R. v.C. See also. Id. 40 F. c. v. 1990). 324. of Revision. all administrative hearings are open to the public. 52 Ohio App. 121 F. See State ex rel. 119. quoting In re Sealed Case (C. The privilege allows the government to withhold documents and other materials that would reveal advisory opinions. Evidence and Witnesses. b. Sections 824-847. 1997). 1966). Inc. Unless an agency has a specific law to the contrary. TBC Westlake. Roebuck & Co. 1988). v. TBC Westlake. b.A.C. 352 (hearing public pursuant to Chapter 119. 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. Jones v. Inc. and therefore should be held in “executive session”). 421 U.. 3d 364.01(E). 70 Ohio App. 2006Ohio-1825.

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

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

No. 92CA5451. Mason v. at *17. Relatively little statutory guidance. 119. 6th Dist. the party must proffer the evidence into the record. however. 299. (5) a party may make evidentiary objections to the evidentiary rulings of the agency. 7 Ohio App. stating that Taylor is not applicable where both parties were permitted to present hearsay evidence at the hearing. Erdeljohn v. 1998 Ohio App. of Job & Family Serv.. Hearing Procedure 1. R. of Pharmacy. and appellant’s testimony was contradicted not only by appellee’s hearsay evidence. Ohio State Dental Bd. . The only references to hearing procedures appear in R. (3) the agency may ask any party to testify under oath as upon cross-examination. a.” This section is silent regarding the manner in which evidence is to be presented. Invacare Corp.P. It is not always unreasonable. Ohio Dept. Ohio State Bd. present evidence and examine witnesses appearing for and against him.4. 2012-Ohio-1002.09 sets forth the basic parameters of a hearing: (1) a stenographic record may be made of the hearing. the Fourth Appellate District concluded that it is “required to give great deference to the hearing officer’s findings of fact. Haley v. of Edn. (4) the agency shall pass upon the admissibility of evidence. Kellough v. 6. Ohio State Bd. 3d 297.. No. [the party] may . to consider hearsay evidence that is in conflict with sworn testimony. of Pharmacy (Hamilton C. 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. General procedure.” F. Servs. 1987). Ohio State Bd. 4th Dist. a. (2) the agency or hearing examiner may administer oaths or affirmations. 1984). 20 Ohio App. LEXIS 5887. Bd. of Review (8th Dist. 1st Dist. 11CA-9. 38 . 10AP-419. R. 5th Dist. 03CA2894. (2nd Dist. witness credibility. c. C-990573. Green v. 119.. . Bur. “and it would be inappropriate to disregard his findings simply because they are partially based on admissible hearsay testimony. No. but by sworn testimony of several live witnesses who testified on behalf of appellee. 9th Dist. Spud’s Auto Parts.09. but the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner. at *12.e. 2000 Ohio App. 2d 1. No.” i. Limits on use of hearsay evidence. No. 10th Dist. No. 9. 119. 3d 1. b. 2004-Ohio-2185.. in Todd v. The hearsay rule is relaxed in administrative proceedings. LEXIS 1524. 1982).C. 38 Ohio Misc.07 and 119.C. (1) See Valdez v. at ¶26.07 provides that “at the hearing. at *5. b. Chapter 119 says very little about the procedure to be followed during an administrative hearing. Taylor v. and (6) upon the agency’s refusal to admit evidence offered by a party. of Emp. 2011-Ohio-431.C. Miller v. 1993 Ohio App. (2) In addition. LEXIS 2687. L-98-1105.

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

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

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

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

Although due process considerations would probably preclude an agency from dismissing a case on its merits before a full adjudication hearing is completed. at ¶ 4 (citing State ex rel. Exceptions: a.7. Div. Aust v. 2009-Ohio5852. K. 2000). 8. 2004). R. 2. v. Fields v. Bessey. Doriott v. 23 Ohio St. 3d 131. Bd. of Ohio (10th Dist. No. 3. Dressler Coal Co. of Edn. (1995). 165-67: if documentary evidence is not properly introduced and admitted into the record at the administrative hearing. of Ohio.). 3d 485. the court may reverse the agency’s action. 12. Agency/Board may not deny the right to a hearing. Bd. 43 . Failure to state a claim with proper notice. Where the legislature has provided special statutory proceedings for the discipline of a licensee. State Med. D. 10th Dist.E. 172 Ohio App. 5. In general. (10th Dist. ¶ 25-27. Executive Branch (9th Dist. 119. State ex rel. 72-73. (1) In order to dismiss a complaint for failure to state a claim upon which relief can be granted. Can A Case Be Dismissed Prior to Hearing? 1. under Civ. Ohio State Dental Bd. at ¶ 14. respondent may not file a motion to quash (dismiss/summary judgment) a hearing once requested. In re Application of Milton Hardware Co. (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. Boggs v. letter to Respondent scheduling hearing. The State Medical Board of Ohio. 10th Dist.C. dismissals (without a hearing) based on procedural issues such as res judicata and subject matter jurisdiction have been upheld by the courts on appeal.2d 1256 (10th Dist. 19 Ohio App. or were agreed to by the parties. 3d 677 at 683.g. of Reclamation (1986). 2d 157. Williams v. Summit Cty. State Med. 72 Ohio St. Gary Charles Gelesh. 4. Bd. Failure to provide opportunity for a hearing violates Due Process. 2006-Ohio-2171. (10th Dist.” Talwar v. 05AP-1079. v. 3d 94. proof of receipt. notice letter. it must appear beyond reasonable doubt from the complaint that the plaintiff/relator can prove no set of facts entitling him or her recovery. proof of mailing by certified mail. including the right to appeal any agency decision pursuant to R.12. 3d 68. State of Ohio ex rel. 08AP-158. 1969). Springfield Local School Dist. 1992). 137. hearing request. but nevertheless becomes part of the record on appeal. An administrative agency is precluded from dismissing a hearing once it has been requested by a respondent. 2007-Ohio-3328. 3d 365. 136 Ohio App. any written memoranda in which continuances were granted. 156 Ohio App.. a licensee may not bypass the special statutory proceedings in the guise of obtaining declatory relief. No. 874 N. 83 Ohio App.O. Jurisdictional items should always be placed into the record: e.

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

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

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

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

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

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

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

R. C. OAC 4731-31-15(G) (Medical Board). 99 Ohio St.. Comm. Administrative powers are only implied when clearly necessary to effect an express power. 1998-Ohio-380. (1918). In such cases. but does not require. 9. R. Personal Appearances Before the Agency 1. 3. 9. Some agencies permit parties to personally appear before the agency prior to the agency’s deliberations. paragraph two of the syllabus. 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. agencies to appoint a hearing examiner to conduct the hearing. Taking of Additional Evidence 1. 1981) 3 Ohio App. para. and the agency can issue an order following deliberations on the case. R. 119. (1) Generally. B.C. 614 N. 119.g. Haehn v.C. Public Emp. Ohio State Racing Commission. D.2d 625 (9th Dist. Id. 83 Ohio App. 666 N.. 72. Jonathan R. 211-212. 3d 208. 53 . 3d 218. Washington v. Util. Failure to Hold Hearing Prior to Expiration of License/Surrender of License 1. Ohio Motor Vehicle Dealers Board.C.1. Agencies sometimes remand cases to the hearing examiner for the taking of additional evidence.09. 2. Mallory v. 567.E. OAC 4723-16-12 (Nursing Board). See. 246-47. (9th Dist.C. Remand to Hearing Examiner 1. 2. State ex rel. 82 Ohio St. Green v. Retirement Bd. Western Reserve Psychiatric Habilitation Center. Wise v. 70. an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute.. Implied remand a.09 permits. Pub. Prior to issuance of a final order. 1995). 119. no report and recommendation is needed. e. 2. para. Accordingly. or the introduction of further documentary evidence. 1992) 2. some agencies conduct hearings without a hearing examiner. depending on agency rules. See also. 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.091. 119.E. E. R.2d 833 (10th Dist. 106 Ohio App. the agency may order the taking of additional testimony. The party may appear on his or her own or through counsel. 3d 235.09. 3d 562.

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

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

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

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

set forth the specific grounds of the party’s appeal beyond the statement that the agency’s order is not supported by reliable. 10.I. R. a. 114 Ohio St. para. 3d 47. The agency may incorporate by reference the entire Report and Recommendation. 10. Content and Issuance of the Order 1. The order approving the Report and Recommendation should state that the recommendation is “confirmed and approved. 9. Language. The notice of appeal may. 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]. para. The order must include or have attached a statement of the time and method by which an appeal may be perfected. and substantial evidence and is not in accordance with law. The agency must maintain the original order in its files. 119.C. para. that tracks the language of R.C. b. Hughes v. para. Ohio Dept.C. setting forth the order appealed from and stating that the agency’s order is not supported by reliable.C. para. 119. at ¶ 16. 2007-Ohio-2877. of Commerce. The Notice of Appeal shall also be filed by the appellant with the [appropriate court of common pleas]. and should attach a copy of the same to its final order. certified as an exact reproduction by the officer responsible for keeping the original. A certified copy is a duplicate of an original.12 of the Ohio Revised Code. Ohio Dept. para. at ¶ 14-15. R.09. R. 10.09. 4. 5. 9. 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. 119. 58 .C. 10. of Commerce. probative.09. 119. 119.09.12.C.09. a. probative. The party must be served with a certified copy of the order. was found sufficient to put a party on notice as to how to file an appeal of an agency’s order. R.C. 2007Ohio-2877. The order modifying or disapproving the Report and Recommendation must state the reasons for the modification or disapproval. Hughes v. Service of the Order 1. The order must be entered on the agency’s journal.” R. 119. R.09. but need not. 2. J. and substantial evidence and is not in accordance with law. 3. b. 119.

However. The following language is recommended for the certification: State of Ohio County of _________________. CA99-07-082. 10AP-419. Nos. For the order. 2007-Ohio-2877. 3d 306. 114 Ohio St. 2000 Ohio App. 3. 5. The time period for appeal of an agency decision does not commence until the party is properly served with the agency’s order. SS I. Note: There are differences between the service requirements for an order and for a report and recommendation. Issue preclusion/collateral estoppel precludes the relitigation of an issue actually and necessarily litigated and determined in a prior action. at ¶ 12. 308. See failure of delivery of notice. Administrator of Ohio Bur. The agency must send a certified copy of the order to the party by certified mail. at *7. Inc. Bd. No. and the attorney may be served with an uncertified copy by regular mail. 3. b. 3d 260. There is no requirement that the copy to be sent to the attorney be certified. entered on its journal on the ___ day of _____.c. R. K. 263. 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. v. Brennan (1987). Ohio State Bd. the party must be served with a certified copy by certified mail. of Edn. Effect of Orders – Claim/Issue Preclusion 1. Bainbridge Twp. Hughes v. A report and recommendation must be sent by certified mail to the party OR the party’s attorney. supra. CA99-09-108.07. LEXIS 2268. 3d 47. Sun Refining Marketing Co. the agency may use other methods of service as provided.. The agency must also mail a copy of the order to the party’s attorney. 2011-Ohio-431. 10th Dist. 119. Ohio Dept. of Zoning Appeals (1987). of Commerce. Set Products. 200? ___[signature]___________ Name Title Date (seal) 2. Kellough v. ¶ 35 4. 31 Ohio St.C. Application of collateral estoppel/issue preclusion 59 . of Workers’ Compensation. 12th Dist. 2. If delivery fails. 31 Ohio St. both the party and the attorney must be served. Cooper v. v. [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]. a.

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

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

2002-Ohio-4235. Other Parties 1. paragraph one of the syllabus. 46 Ohio St. (1992).C. or partnership. 2002-Ohio-1318. 49. 47-50. 3d 147. State Emp.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. of Edn. 347. State ex rel. 2d 41. of Edn. B. (2) When the State acts merely as an adjudicator. 119. 3d 507. e.. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency. Public Utilities Comm.12. No. nor its director was a “party” within the meaning of R. Harrison v. Osborn v. ”Person” is defined as “a person. 1970). Clermont Natl. of Mental Retardation & Developmental Disabilities v. 1991). 120 Ohio App. Dept. c. without an independent interest in the matter.C. 54 Ohio St. rev’d on other grounds. 21 Ohio App. 119. (1990). v. 2d 41. association. Collyer v.C.C. Unless a statute provides otherwise. 134 Ohio St. 102. Edwards (10th Dist. Compare Seneca County Bd. 1963). 46 Ohio St. 46 Ohio St. 2d 91.b. Siesel. 1111. Hamilton Cty.01(G). No. (10th Dist. Wells Community School. 01AP-786. Ohio State Bd. of Mental Retardation & Developmental Disabilities v. (4) An “appointing authority” has no right of appeal to the common pleas court from a decision of the state personnel board of review disaffirming a job-abolishment by such appointing authority because the appointing authority is not a “party” whose interests are the subject of the adjudication nor is it adversely affected by the decision. under R. 119. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party. 27 Ohio App. 10th Dist. 346. 3d 48. v. Government entities as parties for purposes of R. 385. 47. 62 Ohio St. 119. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R. Osborn. A bank that receives notice pursuant to R. firm. 510. Akron City School Dist. 119. Bd. of Admin. Serv. 387. d. 1984). 3rd Dist.C. 13-0215. Bank v.12. Relations Bd.12 (1) Neither the state. State ex rel. 62 . Bd. 119.C. corporation. Blue Cross of Northeast Ohio v. Chapter 119). Jackson (1976). Parents of Students Attending Edge Academy of Akron & Ida B. Broadview Developmental Ctr.12.C. 114.01(G). to appeal an order by the superintendent of banks granting the application. the State is not a proper party to an appeal pursuant to 119. 3d 99. 74 Ohio App. In re Job Abolishment of Jenkins (10th Dist.C. 150-51. Ratchford (10th Dist.” R.01.” R. and has standing. Haig v.01(F). a state agency. 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. Professionals Guild of Ohio (1989). (1938). 119.C. 3d 113.

119. probative. finding that “any requirement to make a written statement of the standard of review in the 63 . No. and substantial evidence and is not in accordance with law. 119. Franklin C. but need not set forth the specific grounds of the party’s appeal. para. No. 3d 678. 4. 119. 119. Lucas Cty. Content of Notice of Appeal a.12. c.. probative. Barnes v. (2) The party need not attach a copy of the order as long as the appellant sufficiently describes the order appealed from. a certificate of plan approval granted to a real estate developer for the construction of a mall complex. at *4-5. as they are not parties under R. 2011-Ohio-2485. Statement of grounds/required language (1) The notice of appeal must state that the order is not supported by reliable. 05AP-511 (Dec. 189 Ohio App. LEXIS 8150.P. and is not in accordance with law. Ohio Dept. 10th Dist. at *6. b. 6. Ohio State Bd.” Hunnewell v. Court of Common Pleas.C. C. of Edn. probative. (1) Attaching a copy of the order satisfies the requirement to set “forth the order appealed. Ferguson-Ramos. (ii) The Seventh District Court of Appeals disagreed. and substantial evidence. beyond the statement that the agency’s order is not supported by reliable. Notice of Appeal 1. The notice of appeal must set forth the order appealed from and state that the order is not supported by reliable.12. at ¶ 6. R. 2010-Ohio-4731.C. 1974 Ohio App. of Industrial Relations. 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.2. at ¶ 12. Johnson v. R. 4. 05CVF066560 (June 15. para. No.12.C.. 119. and substantial evidence and is not in accordance with law. 10AP-421. 2005) at ¶ 10.C. Ohio State Univ. 76AP-423. Community residents had no right to appeal. Only the local school board could bring the appeal. 74AP-231.12. Pinkney v.12. 2006). 10th Dist. para. 3. (2) The notice may. (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. Siegler v. No. of Nursing. State Bd. LEXIS 3041. pursuant to R. 10th Dist. See Foreman v. No. 10th Dist.C. Setting forth the order appealed from: attach OR sufficiently describe. 1976 Ohio App. 4. R.

Form of the Notice of Appeal a. No. 2012). Ohio Dept. No. Effective May 8. 1.E. 11 MA 39. No. 2505. Under R.Ohio-95. County of place of business or county of residence 64 . 10. ¶ 43-44. Deaconess Hosp. 2012.C. and a copy with the court. The notice of appeal need not contain the language specified by R. Franklin C. 2012-Ohio1499. 119. Ohio Dept. Zidian v Dept. ¶ 39. 128 Ohio St.C.C. Chapter 2505 governs the procedure for administrative appeals. the notice of appeal must be filed with the agency and with a court of common pleas. v.2d 202.12.12 to remove the requirement to file the original notice of appeal with the agency.12 governs appeals taken pursuant to R. of Job and Family Services. No. 12-CVF-1835 (Apr. 7th Dist.12. 2011-Ohio-1604 (appeal under R. 389 N. ruled in accordance with the Tenth District Court of Appeals.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). State of Ohio Bd. But see Welsh Development Co. Lorain Metropolitan Housing Authority (1979).12 (that “the agency’s order is not supported by reliable.C.O.” R. 7th Dist. 3d 471. of Commerce. 7th Dist. 11 MA 39.. at ¶ 34. 119. 58 Ohio St. Which court of common pleas? a. 10 MA 153. 12 O. 2012-Ohio-1499. Dudukovich v. the General Assembly revised R.C. 11AP-259. D.C. 119. No. The statute now provides that. probative and substantial evidence and/or is not in accordance with law. 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. 10th Dist.v. of Commerce. 119. 2009.P. 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. Inc.notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction. Russell v.C. 4. Zidian v Dept. para. of Pharmacy v. 119. of Job & Family Services. 2. R. 204.. probative. the notice that is filed may be either the original notice or a copy of the original notice. 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. Evankovich. “[i]n filing a notice of appeal with the agency or court.3d 198.2d 1113. 2. 2011-Ohio-3172. Where to File R.C. Chapter 119. Warren County Regional Planning Comm.

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

v. 3d 192. A stay of execution of the agency’s order pending appeal is not automatic.12 is a condition precedent to the running of the time for appeal.C. Normal practice is for the appellant to file a motion for stay or suspension of the agency’s order after filing the notice of appeal. Inc. 511. No. Ohio Liquor Control Comm. Proper service pursuant to R. must be filed within 15 days of the mailing of the agency’s order. 84 Ohio St. Evidence a. 24..12 deprives the court of jurisdiction over the appeal and mandates dismissal. 2002-Ohio-5986. 103. R. Ohio Dept. E. Dickson v. 3d at 102. 2012-Ohio-95.C.12.P. State v. 1955 Ohio App. 3d 317. The filing of an appeal does not automatically operate to suspend or stay the agency’s order. 3. 110. b. No. both notices of appeal. 2. 72 Ohio Law Abs. 2011 CA 0085. Bd. 10th Dist.C. 02AP-1019. Chapter 2505 governs the manner for filing appeals under R. para. 01CA13. Liebold v. para. Ohio Dept. The actual mailing date of the order is the event that triggers the appeal period. R. 1995). Deaconess Hosp. one to the agency and the other to the court. ¶ 28 (R. 2007-Ohio-2877. Time for Filing the Notice of Appeal 1. 5th Dist.c. Mansfield. of Job & Family Services. at ¶ 14. paragraph one of the syllabus. Bd. No. Granting of suspension of the order 66 . F. Yeager v. at ¶ 6. 119. 114 Ohio St. 2012-Ohio-2908.C.12.12. 2nd Dist. a.C. No. of Admin. 1987). App.. Ohio Veterinary Med.07) Nibert v. 119. 119. The court held that R. 10th Dist.42(C). 84 Ohio St. Colonial. 04AP-748. No. 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. 37 Ohio App. 189. Ball. of Ins. Harrison v. 103 Ohio App. 4th Dist. Ohio State Med. 1993 Ohio App. 114 Ohio Misc. 21487. 2000). Geroc v. 321. Scott (1955). 4. Hughes v. 2505. 4. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R.C.C. Suspension (Stay) of Agency’s Order on Appeal 1. 2003-Ohio-3121. 5. No. Ohio Dept. Ohio Dept. Bailey v. (8th Dist. 51. 3d 100. Arndt v. at ¶ 13. 1993). Serv. (10th Dist. LEXIS 5647 (Nov. 195. (Franklin C. 3. of Commerce. 2d 48. 119. Hiddens. Nibert.C. 11AP-259. v. 8th Dist. 2. LEXIS 744. 2007-Ohio-2972. Pursuant to R. 2006-Ohio-3436. Morrison v. Williams. of Rehabilitation & Correction (1998). 10th Dist. 3d 47. Ohio Dept.

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

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

63 Ohio App. 265. Plotnick v. License renewal and suspended agency orders a. para. b. Giovanetti v. State Med. c. at *24-25. 2nd Dist. and did not intend for the limit to be evaded with successive stays. para. of Ohio. LEXIS 5639. The final adjudication order may apply to a license that was renewed during the appeal (regardless of stay/suspension of agency order). LEXIS 10933. R. R.12. 119. 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. whichever occurs first.12. 119. any trial court order suspending an agency order will remain in effect until the appellate process is complete. Nos. City of Dayton v. (b) Fifteen-month limitation on suspension of agency order is constitutional and does not violate due process or equal protection rights. (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. 5. R. No. 6. R. Bd. 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. ¶ 8. 84AP-225 & 84AP-362. 69 . (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. (c) The General Assembly set a definite time period for the duration of a suspension of the agency’s order.C. 10th Dist. 6. Haddix. Exceptions (1) Liquor Control Commission.C.12. Expiration of license shall not affect the appeal. b.C. Ohio State Dental Board (7th Dist. 3d 262. (3) However.C. 1991). para.C. (i) The stay does not continue on appeal to court of appeals. 119. 119. 9951. or upon a final decision of the common pleas court. 1987 Ohio App. 1984 Ohio App. at *6. R.12. A license renewal cannot be denied by reason of an agency order that is on appeal and has been suspended by the court. 119.121.

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

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

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

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

b.1. 502. 1990). 60(B)(2). The court may grant a request for the admission of additional evidence when it is satisfied that such additional evidence is: a. that is. Could not with reasonable diligence have been ascertained prior to the hearing before the agency. 82215. Unless otherwise provided by law.C. it must have been discovered subsequent to the trial. then the trial court may also determine the constitutionality of the statute as applied. and that a new trial would probably produce a different result. and b. courts have held that the moving party has the burden of demonstrating: (a) that the evidence was actually “newly discovered”. however. 101 Ohio App. Diversified Benefit Plans Agency v. 3d 33. 540 (citations omitted). and (c) that the evidence is material. Newly discovered. 1992). (2) In interpreting Civ. 2. 119. at ¶ 36. 38.12 relating to newly discovered evidence is analogous to language in Civil Rule 60(B)(2).C. Ohio State Bd. State Bd.” Holden v. Clark v. Duryee (9th Dist. of Psychology (8th Dist. 121 Ohio App. newly discovered evidence does not refer to newly created evidence. Duryee. 3d 495. CVS/Pharmacy #3131 v. “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. New evidence of constitutional issues (1) If an appellant presents evidence before a state agency concerning the constitutionality of a statute as applied. 288. para. 2003-Ohio-3806. of Motor Vehicles (9th Dist. R.12. 11. 119. 119. If the appellant does not present such evidence before the agency. 8th Dist. Newly discovered evidence and Civil Rule 60 (B)(2) (1) Language in R. not merely impeaching or cumulative.” Steckler v. of Pharmacy. Newly discovered evidence a. 3d 278. c.12. 67 Ohio App. 2003-Ohio-3806. 3d at 502. CVS/Pharmacy #3131 v. the court is confined to the record as certified to it by the agency. 83 Ohio App.C. of Registration for Professional Engineers & Surveyors (9th Dist. 1995). (b) that the movant exercised due diligence. he or she cannot then raise the constitutional issue by introducing new evidence before the trial court unless the evidence is newly 76 . 101 Ohio App. No. cases interpreting Rule 60(B)(2) may therefore be helpful in interpreting R. R. 3d 531. 1997). of Pharmacy. at ¶ 36. 3. Ohio State Bd. Ohio State Bd. Ohio Bur.

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

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

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

Caltrider (2nd Dist. 54292. No. but does not deprive a person of the right to appeal. LEXIS 9961. at ¶ 6. LEXIS 2665. (2) Jurisdiction to consider constitutional challenges 80 . Alcover. Blackburn Sec. Bd. 1987 Ohio App.. v. See Oak Grove Manor. 2nd Dist. Ohio State Med. See Camrack v. the agency can rebut the presumption with evidence that the request was never received. LEXIS 9961. of Human Services. Some cases have held that a failure to timely request a hearing constitutes a waiver of hearing. No. 103 Ohio App. at ¶ 6. Bd. Reichart-Spaeth. No adverse affect on right to appeal.. Inc. 10th Dist.. which deprives the common pleas court of jurisdiction over the merits of the appeal. Baycliffs Corp. Bd. Fiorica. Clagg v. of Ohio. No. Ohio Counselor & Soc. 2007-Ohio-5802.. 18521. See Harrison. 1995). 10th Dist. b. State Med. LEXIS 9961. LEXIS 1194.). 1987 Ohio App. 1987 Ohio App. 3d 76. 2001 Ohio App. 3d at 319-20. Ohio State Med. 1998-Ohio-414. at *6-7. Bd. 2001-Ohio-4113 (citing In re Turner Nursing Home. LEXIS 5729. at ¶ 24 (holding that failure to exhaust is an affirmative defense that can be waived. 103 Ohio App. v. No. 2005-Ohio-5575. See also. (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. not a jurisdictional defect). Harrison v. 164 Ohio App. Bd. No. b. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. 8th Dist.(declaratory judgment action). *4. of Rehabilitation and Correction. 2nd Dist. at *3). But see Derakhshan v. 1988 Ohio App. Ohio Dept. 6. No. of Commerce. (10th Dist. 3d 317. at *6-7. 1988 Ohio App. 13660. No right to consideration of merits on appeal. 2005). 88AP-516. Ohio Dept. LEXIS 1194. 01AP-71 and 01AP-72. 10th Dist. 86AP-767. 10th Dist. Fiorica. 82 Ohio St. 3d 76. LEXIS 4367. 164 Ohio App. Camrack v. State Med. Caltrider (2nd Dist. 09AP-78. 3d at 319-20. Failure to request hearing as failure to exhaust (split in authority) a. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. 2010-Ohio-416. See Thompson v. 319-20. No. 1993 Ohio App. Ohio State Med. which deprives the common pleas court of jurisdiction over the merits of a 119. State Med. 3d 277. Reichart-Spaeth v. at *10-11. 10th Dist. 1987 Ohio App. Inc. Ohio Dept. v. c. 103 Ohio App. Alcover v.. 07AP-261.12 appeal. 2005-Ohio5575. v. No. LEXIS 4367. at *8-9. Bd. Harrison v. at *4. 2001 Ohio App. 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. Alcover. Worker Bd.

accordingly. The administrative agency does not have authority to declare its statutes unconstitutional. 11 MA 39. submit briefs. 119.12. Trustees of Etna Twp.C. Id. (b) Exhaustion required for “as applied” constitutional challenge. of Commerce. raising such a challenge in an administrative action would be futile. R. 14 Ohio St. Id. 7. Inc. 2506. v. Bd. The “hearing” may consist solely of a review of the record certified to the court.. R.” DBM Enterprises. 3d 64. of Ohio. No. 145 Ohio App. if such challenges are not raised in an administrative proceeding. 12. 132 Ohio St. However. irrespective of the position of the proceedings on the calendar of the court. c. Conduct a “hearing” on the appeal a. 3d 155 (holding that in order to seek injunctive relief. LEXIS 2030 (Court lacks jurisdiction to be consider injunctive relief when statutory administrative remedies were not first pursued). v. (6th Dist. Role of the Common Pleas Court on Administrative Appeal 1. 00-CA-99.03's language. Chapter 119 proceedings over all other civil cases. (1984). Failure to appear at the hearing does not constitute failure to exhaust administrative remedies. Constitutional challenges must be raised at the first opportunity. Central Cadillac Co. K. 2012-Ohio-1499. of Ohio. State Med. No. plaintiff must exhaust administrative remedies if available). para. ¶ 13. 10th Dist. b. No.C. AT&T Communs. 2001 Ohio App. Administrative appeals take precedence: The court shall give preference to R.(a) Exhaustion not required for facial constitutional challenge. "[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. See also. 2. Improvement Dist. Bd. hearing an action de novo. at ¶ 28-29. The respondent is limited to questions of law. 5th Dist. and/or introduce newly discovered evidence. Zidian v. 2012-Ohio-1975. accordingly. 3d 92. failure to participate in the hearing waives any issue with the factual determination made by the agency. and therefore exhaustion is not required for a facial constitutional challenge. Derakhshan v. Rossford. 7th Dist. Ohio Transp.C. “…injunctive and declaratory relief are inappropriate if they act to by-pass special statutory proceedings. 2007-Ohio-5802. 07AP-261. but rather authorizes the court to admit and consider new evidence if permitted and to weigh evidence on the whole record. 2001). It is within the discretion of the trial court to allow the parties to present oral argument. (c) Injunctive Relief. 81 . of Twp. failure to request a hearing bars an as applied constitutional challenge on appeal. it will be impossible to develop the record supporting the challenge. The trial court may allow further evidence or arguments. LTD v. Ohio Motor Vehicle Dealers Bd. Avery v. at ¶ 26. Lynch (2000). Dept. 67.

Affirmance (1) “The court may affirm the order of the agency complained of in the appeal if it finds. State Med. R. 119. Griffin v. 98CA03. Smith v. Griffin v. (b) “Probative” evidence is evidence that tends to prove the issue in question. (2) Reliable. LEXIS 6331. Affirm. 11AP-174. b.” R. 2004-Ohio-3726. 1998 Ohio App. and substantial evidence. at *8. reverse. Liquor Control Comm. 10th Dist. (1992). probative. 63 Ohio St. probative. State Med. 10th Dist. 82 . it can be confidently trusted. vacate. Ohio State Liquor Control Comm. In order to be reliable. 63 Ohio St. Id. or is not in accordance with law. para. 11AP-174. Bd. No.3. there must be a reasonable probability that the evidence is true. that is. Mathews v.. Our Place. 13 (emphasis added). (c) “Substantial” evidence is evidence with some weight. upon consideration of the entire record and such additional evidence as the court has admitted. at ¶ 11.C. it must be relevant in determining the issue. No. 4. or other ruling (1) A court may reverse.. vacate or modify the agency’s order if the court finds that the agency order is not supported by reliable. Our Place. ¶ 37. vacate. Inc. 2011-Ohio-6089. or modify order. v. 13. Ohio Liquor Control Comm. c. A court of common pleas when reviewing an agency’s order need only find substantial.C. probative and substantial evidence (a) “Reliable” evidence is dependable. that the order is supported by reliable. 2011-Ohio6089. Reverse. 571. Bd. para. and (2) The agency’s decision is in accordance with law. ¶ 37.12. reliable and probative evidence supporting one ground for revocation in order to uphold the agency’s order. No. 3d 570. 4th Dist.12. 04AP-46. or modify the agency’s order a. of Ohio. of Ohio. No. probative and substantial evidence and is in accordance with law. 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. 10th Dist. and substantial evidence. 3d 570 at 571. 119. it must have importance and value.

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

122-23. Bingham v. 18510. An agency may appeal from a common pleas court’s review of an agency decision only upon questions of law. Bd. construction or interpretation of statutes and rules of the agency. when the trial court has made no specific determination as to the meaning of a statute. of Nursing.” Henry's Cafe. 11AP-174. Ohio Liquor Control Comm. Conrad (1984). rest on improper inferences. probative and substantial evidence and is in accordance with law. 328-29. (6) Although the common pleas court should afford due deference to the factual findings of the agency. No. 1998 Ohio App. (6th Dist. 1991). 1 Ohio B. 1998-Ohio-181. vacate or modify. Appeals from common pleas court by the agency are limited. 3d 323. Ohio Veterinary Med. may have reached a different conclusion. 2d 108 at 111. (8) The court must defer to the factual findings unless the findings are internally inconsistent. 312. 46 Ohio App. Ladd v. (10th Dist. probative and substantial evidence. where it makes such a finding. 84 .. (10th Dist. at *6-7. Miami-Jacobs Career College v. (7) As long as the administrative agency’s order is supported by reliable. 10th Dist. No. if it were the original trier of fact. vacate or modify an order of an agency unless it finds that the order is supported by reliable. 83 Ohio St. Ohio Counselor and Social Worker Bd. 1980). 06AP-1055.of Cincinnati v. or are otherwise insupportable. 233. VFW Post 8586 v. Licensing Bd. 170 Ohio St. Inc. Civil Rights Comm. 3d 30. (5) A reviewing court should not substitute its judgment for that of an administrative board. Kisil v. 9th Dist. 81. the agency’s findings are not conclusive. 71 Ohio App. State Bd. 63 Ohio St. Café Napoli Partnership v. Furthermore. the agency cannot appeal. 11AP-544. it is immaterial that the reviewing court. 3d 79. Therefore. Bureau of Motor Vehicles (5th Dist. 119. State of Ohio. 1991). 236. Crumpler v. 3d at 528. Rep. 319. 2011-Ohio6089. 10th Dist. b. d. where it is clear that the common pleas court’s judgment was made entirely upon the evidence. Ohio Bd. 2007Ohio-3210. ¶ 14. Ohio State Liquor Control Comm. LEXIS 532. 10th Dist. Farrao v. of Ohio. 34. 12 Ohio St. Griffin v. of Edn. 2012-Ohio-1416.12. A reviewing court has no power to review penalties meted out by the agency. State Med. Sandusky (1984). Agency may appeal only on questions of law relating to the constitutionality. 2d 120. R.C. 1975). No.. Board of Liquor Control (1959). A reviewing court has no power to review penalties (1) The Court of Common Pleas may reverse. or regulation. Westerville City Schools v. it can only affirm and cannot reverse. rule. but. a. the court of appeals is without jurisdiction to review that court’s judgment.¶ 42. 76 Ohio App. at ¶ 16. v. No. Appeal from the Common Pleas Court to the Court of Appeals 1. L..

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

12. Relying on the plain language of R. 119. (1) NOTE: There is a split of authority concerning the scope of R.C. 119. and R.092(B)(2)(c).03 (involving discharges or layoffs) and those arising R.C. 119. 119.C. R. e.C. 2003-Ohio2203.092. syllabus.C.). which allows a prevailing party on appeal to move the court for attorney fees in accordance with R. but not R. 119.092). 124.C. in an amount not to exceed $75 per hour.C.03.092(F)(2) would not bar recovery of fees. d. Haghighi v. 119.092(F)(4) as it pertains to the state personnel board of review.092(A)(2). ATTORNEY FEES A. 152 Ohio App. The fees of the prevailing eligible party were one hundred dollars or less. R.34 (involving removals or reductions for disciplinary reasons). R.C. R. allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level. An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits.092(F)(4).C. R. 3d 600. A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. Moody (1st Dist. What are “fees”? a. 119. and 2. Recovery of Attorney Fees by Party Prevailing at Hearing (R. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R. 119.X. c. R.C.092(F)(1). Chapter 119 contains two attorney fee provisions: 1.092(F)(2). An adjudication hearing was held by the state personnel board of review pursuant to R. 86 . 119. the First District has held that attorney fees may be recovered after hearings under R. “Fees” means reasonable attorney fees.C. R.C. 124. 2335. 1.C.C. state.092(F)(3).C.092(F)(4).C.39.C. 124. An adjudication hearing was held to establish or fix a rate. Non-recoverable fees a. or local government. unless the agency has established a higher hourly rate by rule that is applicable under the circumstances.34. 119. (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits. R.C. 119. 119. 124. B. b. 2.

An adjudication hearing was held by the state employment relations board pursuant to R. Procedure for requesting fees from the agency a. 119. 124. A motion to the agency is the only mechanism for recovering fees. A prevailing party is entitled to attorney fees. 119. R. 1992). Ohio Civil Rights Comm. 43. f. (1st Dist.092(F)(4). 1999 Ohio App. 3d 39. Estate of Kirby v. Chapter 4117. 3d 723. No. Carruthers v. except that an organization that is described in subsection 501(c)(3) and is tax exempt under subsection 501(a) of the Internal Revenue Code. 1999 Ohio App.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.after hearings under R. 119. 5th Dist. Who can recover fees: prevailing eligible party? a. Auglaize Mercer Community Action Comm. (1995). O’Connor (10th Dist. 1997).092(A)(1). 119. v. 78 Ohio App. Licensing Bd.C.092 does not permit an eligible prevailing party to file a separate action for fees in common pleas court. 4.092. 124. (2) An individual whose net worth exceeded one million dollars at the time he received notification of the hearing. (3) The Tenth District Court of Appeals has held that all lawful hearings before the SPBR are necessarily in accordance with R. or an organization that had a net worth exceeding five million dollars at the time the party received notification of the hearing. Nos.C. (3) A sole owner of an unincorporated business. Stetz.C. 1999CA00055. and (4) An employer that employed more than five hundred people at the time the party received notification of the hearing. Hamilton Cty.03 -. 401-02.C. the award is not automatic. Discount Fireworks.. 725. R. 73 Ohio St. LEXIS 3536. 98CA00025.03. 3d 397. Juvenile Div. R. Ct. 119. Inc. 98CA00138.C. Ohio Veterinary Med. The Ohio Civil Rights Commission is not an “agency” for purposes of R. shall not be excluded as an eligible party because of its net worth. b.C. v. of Common Pleas. however. LEXIS 4813. Wilde v. 3.12 b. 5th Dist. g.C. at *37.C. See discussion below re: “prevailing party” under R. at *7-8. 121 Ohio App. State ex rel. An “Eligible party” means a party to an adjudication hearing other than the following: (1) The agency. 87 .

This itemization shall include a statement from any attorney who represented the prevailing eligible party that indicates the fees charged.c. Identify the party.092(B)(3). and the rate at which the fees were calculated. No hearing required. or 88 . State Dental Bd. the actual time expended. R. 73 Ohio St. R. Indicate the amount sought as an award.C. 5. Burden on the agency a. R. The motion shall do all of the following: a. R. Itemize all fees sought in the requested award. A prevailing eligible party must file a motion requesting the award with the agency within 30 days after the date that the order of the agency is entered in its journal. R. (2) If there was no hearing examiner. Ohio Civil Rights Comm. 425. 3d 414.C. (2) that special circumstances make the award unjust. d.C. The agency has the burden to prove the following: (1) that its position in initiating the matter was substantially justified. Sohi v. Consideration of the motion for fees a. (1995). v. that determination is not subject to review by the agency. 119. Include a statement that the agency's position in initiating the matter in controversy was not substantially justified. 1998) 130 Ohio App. 726. c. 119. 3d 723. (1st Dist. (3) If the determination is made by the hearing examiner or referee. State ex rel. b. 6. Reviewed by the examiner or agency (1) The request for attorney fees is reviewed by the hearing examiner who conducted the adjudication hearing. Instead. and e.092(B)(2). 119.092 requires only a “review” by the referee or examiner who conducted the adjudication hearing.C.092 does not require a hearing on the motion for attorney fees. 119. 119.C. the agency may consider the motion. b.092(B)(1). 7. Auglaize Mercer Community Action Comm. Indicate that the party is the prevailing eligible party and is entitled to receive an award of compensation for fees.

119. Initiating action (1) “Initiate” means to commence an action. and finds improvement in deficiencies. not its initiation. (2) Whether the position of the agency in initiating the matter was substantially justified. 119. (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. Decision on the motion for fees a. Sowald.092(B)(2). 1992-Ohio-1. Moreover.C.06 and 119. 8.. Ohio Dept. 342. Sowald. as found by the court of appeals. testimony is taken.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. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. issuance of the notice of opportunity for hearing. 1992-Ohio-1. b. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation.07. Denial or reduction of fees requested 89 . 119.(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. (2) Generally. (3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing.e. State ex rel.C. b. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100. i. Merits of the motion: was the agency “substantially justified” in initiating the action? a. at 342-43. 1992-Ohio-1. not continue a proceeding that has already begun. R. (2) See cases below interpreting “substantially justified” language in R. 9. if issue be one of fact. 3d 338. Id. 65 Ohio St. matter on which action is brought and issue is joined and in relation to which. Sowald. of Health v.

State Dental Bd. Filing and service (1) Determination must be entered in the record. d. c.C.092(B)(2)(b). 119. (1) To be filed October 1 in the fiscal year following the fiscal year covered by the report. a. because appeals are decided by the common pleas court.092. 474.092(B)(2)(c). Ohio St. a. or special circumstances make an award unjust. 119. 133 Ohio App. Bd.(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. Chapter 2743. Per R.C.C. 3d 414. (10th Dist. May be paid by agency from any funds available for such compensation. If no funds are available. 119. and Amount of the award. Eligible party appeal 90 . if any. R. Appeal to common pleas court under R. d. Findings and conclusions underlying the decision. R.092(D). (2) Copy must be mailed to the prevailing eligible party. 119.C. not the board. Gladieux v.C.092(E). 1998) 130 Ohio App. 3d 465.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. 1999). 425. 10. (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. the award is treated as a judgment under R. 119. except no interest is paid.C.092(E). Med.092(B)(2). (2) Must include specific information listed in R. (b) If the fees do not exceed $100.092(B)(2)(a). Reasons or bases for the findings and conclusions.C. the decision as to fees must be in writing and must state: (1) (2) (3) (4) Whether an award has been granted. R. 119.C. c.C. (1st Dist. 11. 119. R. R. Payment of award a. 119. b. The agency must file a report to be filed with the general assembly. Sohi v.

Licensing Bd. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order.C. 1. (2) Decision is final and not appealable. R.C. b. C.C.39. 119. 119.C. 2335. c. in accordance with R. 3d 556. In re Williams (1992). (3) A copy of the decision must be certified to the agency and the eligible party.C. R. and (3) the state’s position in initiating the matter in controversy was not substantially justified.39 sets forth general rules governing the award of attorney fees in actions against the state. 119. 5. R.39(B) provides that an individual may recover attorney fees if (1) he prevails.092(C). 119. 2003Ohio-3816.12. 119.39 a. 2335. 2. Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee.12.C. 119.C. R. at ¶10.12 provides that the court shall award compensation for fees to a prevailing party.C. not the agency itself. (2) File in same court in which the party would appeal agency’s adjudication order.C.C. R.12 for appeals. This attorney fee provision applies only to appeals brought pursuant to R. 78 Ohio App. R. 119. 119. or calculation involved an abuse of discretion. Ability to receive fees: prevailing eligible party a.12. 2335. No. 119.. R. R. Ohio Veterinary Med.C. 4.C. (2) he is financially eligible. 2335.092(C). 10th Dist.C.092(C). d. “Prevailing party” 91 .C. Common pleas court decision. Statutory framework: R.092(C). R. The agency must file a certified record as required in R. Harrison v. (1) The court may modify the decision of the examiner or the agency only if the failure to grant.092(C). (2) The agency’s appeal would be filed in the manner specified by R. 119. 3. 558. 02AP-955.(1) May appeal denial or reduction of award.

R. 2335.C. dismissal of all charges without remand. (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.39(D). “Eligible party” means a party to an action or appeal involving the state. 92 .. 119. 487. a net worth exceeding five million dollars at the time the action or appeal was filed. corporation. 71 Ohio App. See above.. Same requirements for content of motion as in R. R. or a partnership.C. 3d 483 at 487. 7.39(B)(1). State Medical Bd. State Medical Bd.(1) A party need not attain a complete victory. Motion for fees a.C. more than five hundred persons at the time the action or appeal was filed. State Medical Bd. (3) The court may take the partial victory into account when determining the amount of the fees to be awarded. Court review a. association. The motion must be filed within 30 days of the final judgment by the reviewing court in the action or appeal. or a partnership.39(A)(2). 2335. or organization that had.. association. 6. 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. The motion may request both fees incurred in appeal and in the administrative hearing. (10th Dist.” Korn v. to qualify as the prevailing party. i. Korn v. b. (3) A sole owner of an unincorporated business that had. (2) An individual whose net worth exceeded one million dollars at the time the action or appeal was filed. 3d 483 at 487. R. 71 Ohio App. other than the following: (1) The state. (4) A sole owner of an unincorporated business that employed. Korn v. or organization that employed. 2335. 71 Ohio App. 1991). b. 3d 483.e. c.092. corporation.C. The court must determine: (1) Whether the position of the state in initiating the matter in controversy was substantially justified.

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

Boyle v. 3d 556. In re Williams (1992). 10-CA-19.g. Weinstein. and not just possible.. 5th Dist. Gilmore v. 1991 Ohio App. § 2412. In re Van Arsdal. 558. Ohio Real Estate Appraiser Bd. that reasonable minds could make a finding of legal violation by a preponderance of that evidence. 78 Ohio App. 33 Ohio Misc. 3d 531. 558. In Ohio State Bd. then the substantially justified standard has been met. 67 Ohio App. 78 Ohio App.e. Safety. at ¶ 13. 1990 Ohio App. 119. and that based on that evidence it was reasonable to believe that it was more likely than not (i.. of Pharmacy v. 2005-Ohio-2856. Ohio Bur. at *4. the State in a R.S. 94 . 539. 2003Ohio-5702. 11th Dist. 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. Ohio State Med. (2) To meet this standard.12 appeal must “prove by the preponderance of the evidence that it was substantially probable that evidence in its possession would lead to a finding of a legal violation committed by the alleged violator. the State “must demonstrate that it had sufficient material and essential evidence in support of all of the necessary elements of the offense charged. Weinstein (Hamilton C. 28 U. The court must evaluate information that the agency had before it at the time it initiated the action.P. to withstand an award of fees. of Pharmacy v. Under these circumstances. 3d 551. which also uses a “substantially justified” test for awarding attorney fees. No. LEXIS 3470. Bd. 2002-T-0098. 2d 25. (2) The agency may be substantially justified in relying upon incorrect information. 2d 25. Denial of award: unsuccessful application of license or certificate a. 9.” Id. 33 Ohio Misc. See. 3d 556.C. citing In re Williams. c. LEXIS 5391. 10th Dist. Ohio Dept.).position is correct. This articulation of the standard is based in part on interpretations of federal courts in applying the Equal Access to Justice Act. of Motor Vehicles (9th Dist. at *4. which held that “where the state through administrative action denies certification or licensure. Attorney fees have generally been denied in cases where the appellant has unsuccessfully applied for a license or certificate. 161 Ohio App.” Ohio State Bd. In Holden v. the court offered an evidentiary test for substantial justification. 89AP-1186. 2011-Ohio-191. d. Ohio State Dental Board (1st Dist.C. syllabus. at ¶ 18.. the state is not the initiating party for purposes of an award of attorney's fees pursuant to R. 1990).C. 10th Dist. 91AP-190. the court of appeals found that the State's position had been substantially justified. of Pub. (1) The court held that. The error was not discovered and corrected by the municipal court until after BMV initiated the license revocation. No. e.” Warren’s Eastside Auto Sales v. 1987). No. Penix v.. No. e. (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. substantially probable).

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

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