Administrative Law Handbook | Evidence | Evidence (Law)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

it is not an arrangement whereby a person.C.. 119. institution. [but not] any arrangement whereby a person.C. 95CVF064466 (Aug. McEldowney v. b. The Revised Code defines “license” as: [a]ny license. 3. (3) Controlling Board. 2d 115.01(B). permit. Mills (1981). 3d 45. (4) Actions of the superintendent of financial institutions and the superintendent of insurance regarding the taking possession.” 49 Stat. 4123. (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. commission. a. There must be a clear legislative intent to make an entity’s functions subject to R. Relations Bd. rehabilitating or liquidating businesses. Chapter 119 without restriction to rulemaking. 41 Ohio St. of Health (10th Dist. South Community. § 301. 1995).12. Chapter 119. 10. (1988). (3) In Bayside Nursing Ctr. institution. 2d 106. v. & L. 1988). Chapter 119. Franklin C. as well as other activities specifically mentioned in R. a. Ohio Dept. Boesch (1975). 3d 754.(2) Utility Radiological Safety Board.C. 759. b. 38 Ohio St. 2 . 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.01-4123. Ohio Expositions Comm.C.C. or charter issued by any agency…. v. v. State Emp.01(A). Assn. 119. Inc.S. 620 (1935). The courts define an agency’s licensing authority based on the involvement an entity has with the processing of licenses.94. (5) Actions of the Industrial Commission or Bureau of Worker’s Compensation brought under R. suspending. v. v. 53 Ohio App. 47. Entity’s own law specifically makes it subject to R. Genoa Banking Co. Entity has authority for issuing. Examples: (1) Decision to hold contractor in default of contract is not a licensing function. Ohio Dept. 2. or entity furnishes Medicaid services under a provider agreement with Ohio Department of Human Services. 96 Ohio App. 42 U. 119. Home S. The mere approval of a savings and loan branch location application was not a licensing function.P. R. Code Ann. of Transp. 67 Ohio St.C. as amended. 111. § 119.C. (10th Dist. 3d 224. 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. certificate. 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. 1994). Asphalt Specialist Inc. revoking or canceling licenses. No.

Since the act was not a licensing function. or denying the issuance or renewal of a license or registration of a licensee. and functions of the Department of Administrative Services with respect to civil service employees.06. 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. 1 (emphasis added).01 to 119. entity exercising derivative power must be a state agency. duties.Therefore. Ohio Dept. a. The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services. 1 (emphasis added).3 (citing Karrick v.C. Right to an appeal: Pursuant to R. 124. Inc. Chapter 119 provides certain rights in relation to adjudications. of Trustees. which was an agency subject to Chapter 119. Board of Edn. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119. the university was also bound by Chapter 119 in the exercise of those powers. 119. The conduct at issue was authorized by R.13. Entities exercising derivative power a.. 119.C. at ¶ 24. 68 Ohio St. Not Ministerial Acts 1. which then authorized state universities to exercise the powers. suspending. 03AP-330. para. 174 Ohio St. 2d at 152 n. or revoking or suspending a license .C. or canceling of a license.12. (1963). Chapter 119 Applies to Adjudications. of Findlay School Dist. of Admin. Serv. 3 . 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. 68 Ohio St. may appeal from the order of the agency to the court of common pleas. para. of Commerce. (1981). "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination.12. 467.14(G).C. the entity is also subject to Chapter 119. (1) In Bd. revoking.. the act is a licensing function because it does not fall under the exemption included in R. 119. 2d 149. 10th Dist No. Bd. v. Dept." R. 119. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119. was not appealable pursuant to R.01(B). v. paragraph two of the syllabus). of Trustees of Ohio State Univ.” R.C. 2003-Ohio-6940. 4. the refusal was not an agency decision and therefore. (4) The Tenth District Court of Appeals held in Springfield Fireworks. b.C. Where an entity exercises power derived from another agency that is covered by Chapter 119. Chapter 119. 151-52. C.

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

C. 88 (quoting State ex rel. 762-63. Armstrong v. R. 20. which is a pre-requisite to the issuance of a license. Exceptions (1) If a hearing was held prior to such refusal. Ohio Dept. New London Hosp. State Dept. Chapter 119. 130 Ohio St. Brown v. Instead. along with back pay and retroactive benefits was not an executive act dependent upon the judgment or discretion of the Director of ODHS. When a statute permits suspension of a license without a prior hearing. the Director must act “in obedience to the mandate of legal authority. without regard to or the exercise of [his/her] judgment upon the propriety of the act being done. Franklin C.” II.(2) Citing Koch. 1994). held in part that where the termination of a provider agreement in a given situation is mandated by the Revised Code.. 2. 5 . 1980 Ohio App. 88 Ohio App. 3d 82. of Ohio Non-Profit Corp. at *9. 96 Ohio App. 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. 119. of Health (10th Dist. 07CVF07-9225 (Aug. Ohio Bur. (3) In Odita v. 119.06. Nash.06 specifically enumerates certain cases where a hearing must be afforded upon request. 1. 618). 3d 82 (citing State ex rel. When an agency refuses to issue new license. of Human Servs. Mandamus may be used to compel performance of purely ministerial acts. B. the Tenth District Court of Appeals in Bayside Nursing Ctr. RIGHT TO HEARING A. no adjudication order is valid unless an opportunity for hearing is afforded in accordance with R. Except as provided in R. a. Creasy. State Dept. Davey (1935). Trauger v. v.C. 3d 754. See also. of Human Servs..'" See also. such termination amounts to a ministerial act to which no appeal right attaches. 160). 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. (1) In Odita v. of Motor Vehicles. 4. 88 Ohio App.C. 2007). v. No. c. When an agency asserts that an individual must obtain a license and the individual claims the law does not impose such a requirement. 66 Ohio St. 3. When an individual is refused admittance to an examination.P. LEXIS 12569. 612.

Orders revoking a license where an agency is required by statute to revoke a license pursuant to a judgment of a court.(2) No hearing is required for the following boards if the applicant failed a licensing examination: (a) (b) (c) (d) (e) Medical board. 2.C.C. 119. 05AP-1079. 2006Ohio-2171. R. 9. When an agency denies a renewal or registration. Board of landscape architect examiners. 2. Suspensions Without A Prior Hearing (“Summary Suspensions”) 1.06. 3. of Ohio. No. R.06(B).06(C). another agency.06. If a licensee timely files for renewal or registration.062. R.C. This is often called a “summary suspension. A hearing must be held following suspension. State Med. 119. at ¶ 14. Orders suspending a license where a statute specifically permits the suspension of a license without a hearing. 119. and give the appellant a right to hearing on appeal. 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. or to the board of tax appeals. Board of examiners of architects. Exception: When a statute permits the suspension of a license without a prior hearing. 119. (1) Failure to provide an opportunity for a hearing following the suspension violates due process. 10th Dist. R. Certain orders canceling or suspending a driver’s license.” a. R. para. provides: a. 119. Bd.C. D. Orders Effective Without a Hearing 1. 119. the licensee shall not be required to discontinue the licensed business or profession merely because the agency fails to act on the application. Doriott v. c.C. C. 5. Chiropractic board. Ohio occupational therapy.C. R. General rule: Agency must provide an opportunity for a hearing BEFORE issuing an adjudication order. 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. physical therapy. b. The agency must provide a hearing unless a hearing was held prior to the denial. and athletic trainers board. 4.06(A). 6 .

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

State ex rel. Franklin C. 4. 102 Ohio App. 3d 323. Pursuant to R. 119. of Job & Family Servs.C. 2012-Ohio-3506. 09AP-1050. time frame for filing the notice is discretionary. Dusty Drilling Co. The agency is subject to a reasonable standard. 119.. 3. 2. para. Failure to give proper notice invalidates any order entered pursuant to the hearing. absence of instructions of how to appeal and the deadlines involved violated due process requirements. 325. (10th Dist. Div. an appellant must demonstrate prejudice from any failure to meet the timeframes. III. LTV Steel Co. 2010). in all cases in which an agency must afford an opportunity for a hearing prior to issuing an order.. Mandatory Requirement 1. 24. of Real Estate and Professional Licensing. at ¶ 31. NOTICE REQUIREMENTS A. Content of Notice 1. Barlow v. Ohio Real Estate Commission. Dept. 103-04. The Meadows court ruled that the state’s failure to follow the statute deprived the defendant of his rights to due process. Crawford-Cole v. d. 1.07. the notice of hearing must include: a. of Ohio (10th Dist. State ex rel. ¶ 16 and 17.07. Lucas Cty. Ohio Real Estate Comm. not mandatory. b. No.P. R. 119. 5. 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 Commerce. No. R. Finley v. 10CVF-3027 (Aug. as a result.follow the statutory scheme for an administrative license suspension when it did not afford the defendant a post-suspension hearing within five days. Ohio State Dept. para. Id. the agency must give proper notice of the opportunity for hearing. 2 Ohio App. 2010-Ohio-3842. 3d 100. L-11-1177. 1995). 1981). The law or rule directly involved. 10AP-699.07. B. Even though there is no specific statutory requirement. Although proper notice of the opportunity for hearing is mandatory. The Tenth District Court of Appeals held that timeframes are directory. 8 . 6th Dist. 10th Dist. Cunningham v. c. the party has a right to a reasonable notice of hearing and a reasonable opportunity to be heard. and that. v. No. The charges or other reasons for the proposed action. 2011-Ohio-1816. Notice of the party’s right to a hearing.C. Wightman v. If a party has a right to a hearing. 10th Dist. No. a. b.C. Industrial Comm.

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

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

111-12.P. 10AP-419.. Initial service of notice a. 89CV-01-64 and 88CV12-8615 (July 3. To party by certified mail: Notice of opportunity for hearing must be sent to the party by registered mail. 21 Ohio App. 96 Ohio App. 1970).C. (2) Service at a place of business. 3d 332. R. D. State v. 119. Bd.L. Franklin C. of Edn. Bd. Ohio State Med.C. 47 A. 1994). R. Necessity of notice and hearing before revocation or suspension of motor vehicle driver’s license. E.C. registered mail is not required. a rebuttable presumption of delivery to the addressee is established. Tripodi v. 339. Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine. 2.02(G). 3d 287. Kellough v.” R.07.L.062. 290.07.R.5th 1.. ¶ 35 (1) No requirement that the notice to counsel be sent by registered /certified mail. b. 3.3d 361.C.L. return receipt requested.R. Liquor Control Comm. 1989). a. 1990). When an item is sent by certified mail. 2d 110. Sufficiency of notice or hearing required prior to termination of welfare benefits. Angerman v. return receipt requested. 1. R. 10 A. 119. 2011-Ohio-431. Service of Notice 1. (7th Dist.3d 277. Amon v. and thereafter a signed receipt is returned to the sender. 11 . Annotations 1. (1) Note: registered mail and certified mail are interchangeable. Gilbo (2nd Dist. 10th Dist. (10th Dist. State Med. Ohio State Bd. (2) No requirement that the agency search anything other than its own files to find out if the party is represented by counsel. Nos.R. (3) Driver’s license: In a case involving revocation or suspension of a driver’s license. 67 Ohio App. 119. No. To attorney by regular mail: “A copy of the notice shall be mailed to attorneys or other representatives of record representing the party.(2) A board’s issuance of a summary suspension one year after it had knowledge of the licensee’s practice violations was unconstitutional. 60 A.

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

Does the notice indicate the agency’s address and telephone number and. 1992 Ohio App. at *12-13. if necessary. Practical Considerations 1. LEXIS 116. Harris.C. City of Lakewood v. Kirresh. Does the agency have sufficient evidence to support every charge stated in the notice? 4. Failure to Give Proper Notice 1. No.C. Does the notice state all of the respondent’s hearing and representation rights as specified in R. at *3. with the first publication of the notice set forth in the affidavit. 7.07? 8. 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. See also.) 7. No. (3rd Dist. acknowledge the giving of notice to him. Waiver a. the name of a contact person? 13 . such as patient names. so as to be precluded from afterward challenging the proceeding for want of notice. State Counselor & Soc. (e) Notice deemed received as of the date of last publication. Does the notice include confidential information. G. C-990200. by his conduct. must be mailed by ordinary mail to the party at the last known address. Prinz v. 2. 424-25. 1965). 3d 74. An agency cannot enforce an order resulting from an improper notice of charges. a..(d) A proof of publication affidavit. 2000 Ohio App. LEXIS 4755. or may. “A person entitled to statutory notice may waive it. No. 1986). Worker Bd. 2003-Ohio496. 7th Dist. Does the notice comply with all procedural requirements set forth in statute and administrative rule that are unique to the agency? 6. R. 119. Ohio State Racing Comm. 76. 3 Ohio App. 1st Dist. 119. 02 JE 22. Sliker (10th Dist. Is the agency authorized by statute or administrative rule to take the proposed action? 5. Columbus v. or any feature of it. which should be stated in a separate document attached to the notice? 3. 30 Ohio App. 2d 423. para. 62337. Jefferson County Child Support Enforcement Agency v. 8th Dist. F.” Fogt v. 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 clearly and accurately state the factual charges or reasons for the proposed action? Can the respondent prepare a defense using only this statement? 2.07.

” IV. is it clear which alleged facts violate each statute or rule stated in the notice? H. 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.C. when the last day falls on Sunday or a legal holiday.C. except that. at *9. The thirty days provided by R. But see Alcover v. 119.. Chapter 119 does not specifically provide that a request for hearing must be in writing. 3d 317. 2. 1. Standard Oil Co. Agency erred by failing to timely set a hearing date and time as mandated by R. Reserving right to hearing shows intent to request. Harrison v. 8th Dist. Chapter 119. 1. No.C. 2.C. LEXIS 9961.14 states that when a public office is closed to the public and it is the last day to do a required act.14. Williams. a. R. Ohio State Med. 1995). showing intent to request hearing. at *9 (telephone request to assistant attorney general insufficient. 14 . HEARING REQUESTS A. The time computations set forth in R. Computing Time Pursuant to R. Bd. A party must request a hearing within thirty days of the date of mailing the notice. 10th Dist. Bd. which letter also stated that licensee was not waiving his right to a hearing. 103 Ohio App.07) 1. 78AP860. Licensee sent a letter proposing an informal settlement.14. R.9. Does the notice indicate the method of service to be utilized? 10. Method of Requesting a Hearing 1. a. 119. 1979 Ohio App.C. B.14 apply to proceedings conducted pursuant to R. Ohio State Med. Chapter 119.C. where attorney advised the licensee that request must be made in writing to the board). 318. (10th Dist. The court found this was sufficient notification because licensee had expressly reserved the right to adjudication. If multiple violations.07 begins to run on the date the agency or board mails the notice by certified mail. “the act may be performed on the next succeeding day that is not a Sunday or a legal holiday. the act may be done on the next succeeding day that is not Sunday or a legal holiday”. 1.C. Timing of Request (R. LEXIS 11662. 1. v.C. 54292. No. 1. 1987 Ohio App. In writing a.

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

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

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

The courts have held that because the Civil Rules are not applicable to administrative hearings. The agency's own law and rules may provide protection to certain records. of Ohio.C. Nichols (1984). Gipe v. LEXIS 305. Miller v. According to R. Chapter 119 provides for depositions in lieu of hearing. No. Civ. The Ohio Rules of Civil Procedure. 2003 CO 7. are not applicable to the administrative hearing procedure. Mahoning Cty. . Ohio Board of Nursing. Ohio State Bd. No. R. of Human Serv. a.c. The agency’s own law and rules may provide for a discovery-like exchange of information. discovery rules do not apply. 2 (emphasis added). of Psychology. the deposition may be used at 18 . For the purpose of conducting an adjudication hearing.. para. a. Leake v. 9. No. .09. 6th Dist. 4. Finally. 2012-Ohio-1002. .” R. The taking of the deposition shall be in the same manner as is prescribed by law for the taking of depositions in civil actions. 2001 Ohio App. 00 CA 264. Chapter 119.C. . . R. B. Froug v. 2. 3d 7.C. of Pharmacy. State Med. Dept. ¶ 43. Ohio State Bd. 7th Dist. 10th Dist. Similar to the civil rules. OBTAINING EVIDENCE AND SECURING WITNESSES FOR HEARING A. 11-CA-9. No. 7th Dist. 5th Dist. at *10. . Casey v. b.” White Consolidated Industries v. including discovery rules. 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 . See Moffett v. Dist.” b. the agency .C. 1(A) limits the Civil Rules to “all courts of this state in the exercise of civil jurisdiction at law or in equity . Wayne S. of Ed. VI. . 2003-Ohio-4061. the Criminal Rules of Procedure do not apply to proceedings conducted pursuant to R. Depositions 1. 00AP-523. R. S-32-92. Bd.13 of the Revised Code. 2003-Ohio-7007. ¶ 24 and 32. 3. Chapter 119 Does Not Provide for Discovery Under Civil or Criminal Rules of Procedure 1. “The formulation of procedural rules of administrative agencies is basically left to the discretion of the agencies. No.. 119.09: “For the purpose of conducting any adjudication hearing required by sections 119.01 to 119. 2002-Ohio-606 at * 10. 15 Ohio St. Agency law or rules may set guidelines for consideration of motions for continuance of hearing. LEXIS 3290. at *9. 02AP-1315. ¶ 40. 119.C. 1993 Ohio App. Bd. an administrative agency may allow testimony by deposition for witnesses who will not be available at the time of the hearing. 10th Dist. Salem City Sch. . No.

3d 527. LEXIS 305.09 (emphasis added).” State Med. a. 119. b. Chapter 119 provides that a party may request the issuance of a subpoena duces tecum for the purpose of conducting a hearing. Chapter 119 does not provide for discovery depositions. 51 Ohio St. at *11. and upon request of any party shall. 611-12. of Pharmacy v. No. Subpoenas for Purposes of a Hearing 1. 48 Ohio App.C. Proper service and fees a. Method of delivery 19 . and served and returned in the same manner as a subpoena in a criminal case is served and returned. Parties cannot obtain prehearing discovery depositions regardless of whether the depositions are described as “depositions” or “prehearing discovery depositions. 2. Id. 00AP-523. 2009-Ohio-1103. 08AP-794. Ohio State Bd. Id. 80 Ohio App.. 2.hearing against a party who was present or represented at the taking of the deposition. (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.09 by not issuing a subpoena when requested by the respondent. 119. 119. Bd. 10th Dist. b. issue a subpoena for any witness or subpoena duces tecum to compel the production of records. Because R. b. Murray (1993).09 is satisfied when the agency subpoenas records to be delivered at the commencement of the hearing. 119. R.C.C. a. For the purpose of conducting an adjudication hearing. 10th Dist. See Froug v.C. C. The mandatory language in R. Ohio State Racing Comm. however. Frantz (1990). In re Heath (10th Dist. No. The agency violates R.C. R. Ohio State Bd. 3d 222. 535. The subpoena shall be directed to the sheriff of the county where the witness resides or is found. Ohio Board of Nursing.09 pertains to securing the attendance of witnesses and the production of records and documents for the purpose of conducting an adjudication hearing. reversal of the agency’s final order is not necessary where the respondent fails to show prejudice. 119. 145. at *9-12. R. of Pharmacy v. of Ohio v. 1992). 28-29. the agency may. 66 Ohio St. 1988). (2) The court further indicated that Froug could have requested a continuance if more time was necessary to review the records. Poppe (12th Dist. Burneson v. 2001 Ohio App.09 does not provide for prehearing discovery depositions by a party to an adjudication hearing. 3d 605.C. at ¶ 24. R. 3d 143.C.

2335. (a) A witness living in the same county as the agency waives the right to fees if not demanded upon services. Smith Corp. OAG Opinion. b. Perfection Corp. (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. 1994). and the witness may not later refuse to appear solely because the fees were not tendered upon service. the fees for one day’s attendance and the mileage fees allowed by law.09. 17(D) provides that proper service is effected by tendering to the witness. 92 Ohio App. R. State v. No. See R.O. (3) Fees and mileage of the sheriff and witness shall be the same as that allowed in the court of common pleas in criminal matters. 86-066. 119. Must be returned in the same manner as a subpoena in a criminal case. R.C. 3. at ¶ 26. upon demand.. v. R. 17(D) provides that the return may be forwarded through the postal service. 20 . 86-066. or otherwise. OAG Opinion. witness fees and mileage fees must be attached to the subpoena and tendered without demand or the witness is not obligated to appear. Fees (1) Witness residing within county: Crim. 3d 732. valid service is completed. R. (2) Witness outside the county: Crim. Crim. Castle (9th Dist.(1) Criminal Rule 17(D) provides that service of a subpoena upon a person shall be made by delivering a copy to such person or by reading the subpoena to him in person. (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. or by leaving it at his usual place of residence. R. fees shall be tendered without demand. 10th Dist. 119. 734. 03AP-266. 17(D) provides that if the witness resides outside the county where the agency is located. Return of subpoena a. if tendered prior to the time appearance is compelled. para. (a) Where a witness lives outside the county where the agency is located. 2. c. 2004-Ohio-4041.09. A. (b) When the fees were not tendered with subpoena.08 for current amount.C. error could be cured by subsequently tendering the fees.C.

(d) Court shall compel compliance as in cases of disobedience of court subpoena. 119. (c) If the matter is one in which the witness may be subject to lawful questioning. v. LEXIS 2020.21. Carratola v. 8 Ohio St..C. (c) The writ will only issue for disobedience of a subpoena “personally served” on the witness. LEXIS 2020. 21 . may order.” R. Ohio State Dental Bd. 3d 218. such as limiting testimony of other witnesses. (1) Upon failure to comply: (a) Agency must file an application to enforce the subpoena if requested. R. 220. (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. (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. at *13. (4) An agency is limited to the statutory attachment procedures to sanction contempt of its subpoenas. No. (b) Although the agency is required to seek enforcement of subpoena. and may not resort to other forms of punishment. R. (a) This statute is inapplicable if proper fees are not paid to the witness.C. failure to do so does not require reversal of the agency’s decision unless the appellant shows prejudice resulting from the failure. Ohio Motor Vehicle Dealers Bd. (2) Attachment proceedings for contempt are set forth in R.C.21. But the court "by a rule.09. the court shall compel obedience by attachment proceedings for contempt. subject only to proper privilege assertion by the witness. Western Reserve Psychiatric Habilitation Center (9th Dist.21. 2317. 9th Dist. (a) The agency is required to seek enforcement if asked by the party who requested the subpoena. 2317. Remlinger (1983). 1998 Ohio App.C.4. 1998 Ohio App. 2317. him to show cause why such writ should not issue against him" if the witness was served with the subpoena in some other fashion. Green v. 18658. Carratola. (3) Requirement to Enforce if Requested. 27. 3d 26. at *13. Failure to obey subpoena/sanctions a. (b) The application is filed in the court of common pleas where the disobedience occurred. Contempt proceedings. 3 Ohio App. 1981).

1707.20(H).22(F)(3). R. of Aging. the only avenue available to a witness is to defend an action to compel. for purposes of investigation. R.29). Enforcement a. State Med. 1993). No.. below. 3d 305.C.C. R. 173. Medical records a. 93 Ohio St. 3d 59. However. Franklin C.C. for general principle of implied power to perform duty. Div. (2) Thus.C. Other agencies. In re Investigation of Laplow (10th Dist.22(F)(3). 4. (E. b. Specified authority (1) Some agencies have specific statutory procedures for enforcement of these subpoenas.48(A)(2).20(H). Chiropractic Board. Thompson. State Med. 1. Investigative Subpoenas 1. 4731. paragraph 4 of the syllabus. 4723.. Implied power.g. Chiropractic Bd. Ombudsman. Board of Nursing. b. R. The Medical Board’s statutory authority to subpoena patient records is not dependent upon patient consent. Bd. 108 Ohio App. there is an implied power to enforce them through the court. R. of Aging.g. R..24. of Securities. R.b. 4734. 3. R.g. Medical Bd. 45(E) may be granted. Some agencies have statutory authority to issue investigative subpoenas. (2) If the statute grants enforcement according to the Civil Rules. 4731. v. 61. Dept. 1994). R. 4723.C. D. (1) Absent specific statutory authority or a pending case or appeal. 173. Dept. 3d 386.29).C. (e. 2. 96 Ohio App. Polen. In re David E. Board of Nursing. D.C.C. Div. since the legislature has empowered them to issue subpoenas.. because R. 307. it is reasonable to argue that the sanctions permitted by Civ. 87 Ohio App. e. Chapter 119 does not provide statutory authority for a motion to quash. Hunt v. 2000). 1996). do not have specific statutory procedures for enforcement of investigative subpoenas. See discussion re: Health Insurance Portability and Accountability Act (“HIPAA”).C. Bd. 390-91. the court of common pleas has no jurisdiction to entertain a motion to quash an administrative subpoena.C. R. Hildebrant (1915). Investigatory subpoenas are those to compel testimony or the production of records. 1707.C. 22 . Motions to Quash not authorized by R. 00MS000041 (July 24. (10th Dist..24.P. of Securities.C. In re Investigation of Laplow (9th Dist. Chapter 119. prior to hearing.. Ombudsman. See State ex rel.

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

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

State ex rel. Renfro v. Be sure to check the agency’s own statutes. 50 Ohio St.43(A)(1)(v). (b) The legislative language used to create confidentiality may be phrased in different ways. 3d 681. Steckman v. the statute likely qualifies as an exemption under this statute.proceeding than in the context of a civil or administrative proceeding. (4) Once applicable. Conrad. R. R. 3d 605. There are also general state statutes. 2000-Ohio-214. White. f. 1997-Ohio-273.C. So long as the statute can be read to prohibit general release. Mentor.C. R.C.C.C. 3d 516. 77 Ohio St. R. (a) Many state administrative clients have statutes making specific information confidential. R. Mayfield (1990). (5) State ex rel. 3d 440. Leis. See State ex rel. the confidential law enforcement investigatory record exemption remains applicable until all proceedings are complete. 70 Ohio St. 3d 51. (b) Student Education Records. 1996-Ohio234. 75 Ohio St. State ex rel. Toledo.21 (Client records of rehabilitation services).C. No. (2) The following line of cases illustrates the volatility of this area of the law. not related to any one specific agency. 360. (2) General confidentiality provisions. R. 1333. (3) Federally protected information.C. See. 1995-Ohio-19. WLWT-TV5 v. 173. 89 Ohio St. Lashutka. Local 10 v. Police Officers for Equal Rights v. State ex rel. Leonard v.22 (Long term care ombudsman investigative files).27 (PERS member information). 54 Ohio St. Ohio Patrolmen’s Benevolent Assn.g. 6th Dist. State ex rel. based on a federal privacy interest. Toledo Police Patrolman’s Assn.C.22 (STRS and SERS member information). City of Akron (1994). (1990). 145. LEXIS 875. of Human Serv. 5153. 72 Ohio St. Beacon Journal v. 3304. 1996-Ohio-204. (a) Social Security Numbers.65. One particularly noteworthy exemption premised on federal law is the exemption of social security numbers. The Family Education Rights and Privacy Act 25 . e. that create confidentiality. 3d 357. State ex rel. 27 (child abuse investigation reports). Cuyahoga County Dept. for example the Trade Secrets Act. discusses the applicability of this exception to administrative investigation files. State ex rel. 149. This is far from an exhaustive list. v. Yant v. Jackson (1994). State ex rel. L-99-1143. 2000 Ohio App. 3d 25. Polovishack v. 2151.20 and 3309. 70 Ohio St. R. 3d 185. 3307. 74 Ohio St.17 (Director of Commerce Investigations). 3d 420. Records the release of which is prohibited by state or federal law. (1) Agency confidentiality provisions.421 (Child abuse and neglect investigation records). The following are a few examples: R. 612.

43(B)(1). (2) Upon request. 5 U. (4) If information within a public record is exempt. all responsive records must be promptly prepared and available for inspection at all reasonable times during regular business hours.041(E). (3) If the requestor makes an overly broad or an ambiguous request. 26 .52(A)(1).S.C. 149. § 552. R. 2953. a. (4) Privileged information (a) See discussion below. or to impose a waiting period before the record is sealed pursuant to R. g. unless the state agency is acting for the federal agency in some substantial respect. Mechanics of making and responding to a public records request.(“FERPA”). 2012Ohio-2730. but must provide the requestor with an opportunity to revise the request. § 1232g(b)(1).C. 149. Exemptions under the Federal Freedom of Information Act. the agency shall make copies available at cost and within reasonable time.C. in most instances. A pending administrative proceeding involving a conviction or intervention in lieu of conviction may be affected.C. 132 Ohio St.C. the trial court has discretion either to grant the motion immediately under R. but the Public Records Act does not require that the request be put in writing. 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. (a) Redaction must be plainly visible.43 provides: (1) Upon request. 2953.3d 416. 20 U. The agency may ask that the request be put in writing to assist it in responding to the request. 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.C. 2953. R.43(B)(1). Niesen-Pennycuff.32(A)(1). R. protects the release of educational records without written consent of the student or the student’s parents. (c) When determining whether a federal exemption applies. the agency may deny the request.43(B)(2).C. do not generally act to exempt records in the hands of a state agency.C.S. 2951. Protected Information regarding privileged information.52(A)(1). The Supreme Court of Ohio in State v. Consult FERPA for requirements and exceptions.C. 149. the agency must provide a redacted copy. R. Section F. 149. 3. b. remember.C. Access to court record sealed or expunged under R.

(5) If the request is denied.C. b.C.(b) Redaction is considered a denial. c. (ii) The custodian of the public records failed to comply with the party’s request. 27 . Enforcing Public Records Act a. Anyone aggrieved by an agency’s failure to release a public record may bring a mandamus action to compel release. (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. (3) Regular business hours for a police department which is open 24 hours a day are normal administrative hours (i. 9-4). 1994-Ohio-5. indicating legal authority for denial.43. Warren Newspapers v.C. If a specific statute requires a party to an action to pay a designated fee to the court reporter for transcripts or copies of transcripts. at ¶ 15-17.43(B) are to be interpreted.43(B)(3). in whole or in part. 3d 89. 3d 619. (c) Only awarded if the requestor transmits a written request via hand delivery or certified mail. R. Hutson.C. 103 Ohio St. 149. 4. if a party only seeks a copy of an audiotape of court proceedings. the agency must provide an explanation for denial.43. R. therefore. The specific statute trumps 149. rather than a transcript of the audiotape. Liabilities (1) Civil penalties: (a) Statutory damages: $100/day after filing of mandamus action. the party is entitled to the copy at cost. d.C. 621-26. 149. Slagle v. R.43(C). (2) The public office cannot charge for inspection. 2004-Ohio-4354. the party must pay the court reporter to get a copy of the court transcripts in common pleas court.43. that party cannot obtain the documents at cost under the Public Records Act.e. State ex rel. 70 Ohio St. (b) Maximum $1000. provides insight into how the operative terms in R. However. Rogers (2004). (1) At cost does not include employee labor time. 149. 149. 149.

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

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

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

131 Ohio St. careless or inadequate document screening procedures. a partial. employee. 2011Ohio-6009. 2317. State v. below. Bloom-Carroll Local School Dist. State ex rel. R. (4) To the extent that narrative portions of attorney-fee statements are descriptions of legal services performed by counsel for a client. McDermott. and leaving privileged documents in a public hallway. 3d 570.(3) Definition of client. 305. (5) Waiver (a) The common-law privilege is destroyed by voluntary disclosure to others of the content of the statement. or representative of the attorney.) (2) Not necessarily limited to precluding attorney’s testimony. Such conduct might include not screening files released in a discovery production of records. 1995-Ohio-80. employee. is a preliminary communication with that attorney about the case). whereas the common-law privilege could be viewed more broadly. State v.” (4) Applies to attorney only.. because no intention of confidentiality exists. (b) Practical Note. Common law privilege (1) The common law attorney-client privilege applies to communications between a client and an agent of the attorney. however. The privilege can be waived unintentionally by conduct which implies a waiver. not agents. 573-74.3d 10. 155 Ohio St. State v. 3d 380 at 385. Bloom-Carroll. leaving documents in a place where third parties have access to them and no measures are taken to maintain confidentiality. The statute’s language prohibits testimony by an attorney. Last. copied to the retained attorney.021 defines “client” in the privilege statute to include the client’s “agent. v. Dawson v.C. or other representative. Post. 72 Ohio St. Cochrane (1951). ¶30 (Insurance company stands in the shoes of its insured and the insurance company’s letter. it is not privileged and must be produced. ¶ 28. Post (1987). See Treatises. 131 Ohio St. 31 . (3) Communications must be made in confidence and not in the presence of strangers. Travelers Indemnity Co. 385 (defendant's discussion with polygraph examiner hired by attorney for defendant was privileged.3d 10. State ex rel. if the communication was not intended to be confidential. c. The statutory privilege does not define “attorney” as including an agent. keeping privileged documents in files that are routinely reviewed by third parties. 32 Ohio St. 3d 380. 2011-Ohio-6009. Dawson v. Also. 32 Ohio St. they are protected by the attorneyclient privilege. privilege was waived when witness discussed his statements to polygraph examiner with third party who was not agent of attorney. 316. voluntary disclosure of privileged communications can result in the loss of privilege for all other communications that deal with the same subject matter.

3d 364. 737. 352 (hearing public pursuant to Chapter 119. at P.C. 421 U. Labor Relations Bd. Treatises a. at 383. (1975). 01AP-344. The Ohio Supreme Court has recognized the common law tenets of the deliberative process privilege. 1988). Angerman v. b.01(E). c. No. State Med.D. In re Petition for Annexation (10th Dist. 3d 346. 132 at 151. Inc. 6. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. b. v. Open to the public a. b.D. all administrative hearings are open to the public. 44 Ohio Jurisprudence 3d. 8 Wigmore. quoting In re Sealed Case (C.5. Carl Zeiss. 11-12. TBC Westlake. R. 61. 1983). Sections 824-847.. of Revision. 121 F. at 383-384. 40 F. Dann v. but deliberations need not be in open meeting). See also. v.C. citing Natl. and (2) it must be deliberative. c. Paul R. Id. Evidence and Witnesses. quoting Carl Zeiss Stiftung v.B. Jena (D. 32 . Hamilton County Bd. 3d 58. V. TBC Westlake. Nature of Proceeding 1.383-385. Both requirements stem from the privilege’s ultimate purpose [which is] to prevent injury to the quality of agency decisions’ by allowing government officials freedom to debate alternative approaches in private.R. 3d 8.D. VII. 324. 1998-Ohio-445. Id. 2006Ohio-1825. quasi-judicial hearings are not “meetings.C. 318.E. Unless an agency has a specific law to the contrary. Roebuck & Co.A. Standard to be met in order to establish the privilege and the reason for the privilege: (1) the material must be pre-decisional.S. Liquor Control Comm. 1990). 10th Dist. 109 Ohio St. of Revision. v. 3d 729. 61. THE CONDUCT OF HEARINGS A.” and are not subject to the Open Meetings Act. The privilege allows the government to withhold documents and other materials that would reveal advisory opinions. 87-91. 119. Bd. 1966). Deliberative Process Privilege a. 81 Ohio St. Inc. See State ex rel. Attorney-Client Privilege in the United States. and therefore should be held in “executive session”). 52 Ohio App. 1998-Ohio-445 (“sunshine law” does not apply to adjudication proceedings at the Board of Tax Appeals because its adjudication is quasi-judicial. (10th Dist. 3d 58. Sears. Rice (1993). Taft. Evidence (4th Ed. 70 Ohio App. 1997). Jones v. 81 Ohio St. Hamilton County Bd. However. 2001-Ohio-8766.

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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119. No. Minch (1990). Chapter 119 does not explicitly define the burden of proof required. of Pharmacy v. Fleckner (1950). VFW Post 8586 v.P. 1987). 81.09 does not incorporate the Ohio Rules of Evidence. 197. c. v. probative and substantial evidence a.a. 135. R. 1993). Preponderance of evidence means that agency has burden to show that it is more likely than not that the events charged occurred. 24. Schregardus. of Motor Vehicles (Franklin C. 135. 32 Ohio App. and may therefore present such evidence first. Liquor Control Comm.. Standard of Proof Required 1. b.12. E. Abs. EBR 132753. Weinstein (Hamilton C. a court may reverse the agency’s order if it finds that the order was not supported by “reliable.C.” R. Preponderance of the evidence standard a. See Pang v.C. 119. R. probative and substantial evidence. 13. Fleckner (1950). 33 Ohio Misc. probative and substantial evidence.09 states agencies “shall pass on the admissibility of evidence” presented at the hearing. Ohio Environmental Bd. 53 Ohio St. d. Abs. Accordingly. of Rev. Reliable. so the agency will usually present its case-in-chief first. 59 Ohio L. the applicant may have the burden to produce evidence of qualification for licensure. Sanders v. (10th Dist. Auditor v. 2. D. 22. 55 Ohio Misc. Typically. 91. b. but the Supreme Court of Ohio has held that the standard for administrative cases is a preponderance of the evidence. See discussion. 59 Ohio L. Inc. 3d 79. Sanders v. See also. Ohio Liquor Control Comm. In application cases.C. probative and substantial evidence. Standards for Consideration of Evidence 1. b. Note – An agency’s enabling act may specify which party maintains the burden of production with respect to specific issues. Chiero v. all agency orders should be based upon reliable. below. 3d 186. Statutes or rules 36 . 1977). 2d 25. The standard of “clear and convincing” evidence has been rejected as inappropriate. Bur. 83 Ohio St. EBR 132761 (June 10. c. if contested. para. 27. 1972). 2d 89. 119. Buckeye Bar.C. Ohio State Bd.P. but R. The party attempting to establish that the averments in the notice of hearing are correct has the burden of going forward with the evidence. On appeal of an agency’s order. c. for definitions of reliable. See Clermont Co. 1998-Ohio-181. Section IX APPEALS. this will be the agency.

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

299. Invacare Corp. 10AP-419. at *17. Bd. Ohio State Dental Bd. c. Miller v. 119. 4th Dist. 2000 Ohio App.e. LEXIS 5887. 3d 1. b. . L-98-1105. 03CA2894. 119..C. No. (3) the agency may ask any party to testify under oath as upon cross-examination. present evidence and examine witnesses appearing for and against him. 2d 1. R. Chapter 119 says very little about the procedure to be followed during an administrative hearing. 1982).07 and 119. The only references to hearing procedures appear in R. 10th Dist.. but the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner. The hearsay rule is relaxed in administrative proceedings. witness credibility. (2) the agency or hearing examiner may administer oaths or affirmations.” F. Ohio Dept. 9th Dist. R. Ohio State Bd. a.” This section is silent regarding the manner in which evidence is to be presented. 1993 Ohio App. 7 Ohio App.4. 11CA-9. 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. (2) In addition. a. LEXIS 1524. 38 Ohio Misc. the Fourth Appellate District concluded that it is “required to give great deference to the hearing officer’s findings of fact. Spud’s Auto Parts. Taylor v. of Emp. the party must proffer the evidence into the record. 3d 297. of Pharmacy.C. Relatively little statutory guidance.09 sets forth the basic parameters of a hearing: (1) a stenographic record may be made of the hearing. No. Green v. and appellant’s testimony was contradicted not only by appellee’s hearsay evidence. 92CA5451.. 2004-Ohio-2185. Erdeljohn v. 2011-Ohio-431. General procedure.07 provides that “at the hearing. 6. (2nd Dist. No. of Edn. No. [the party] may . 1st Dist. 5th Dist. however. stating that Taylor is not applicable where both parties were permitted to present hearsay evidence at the hearing. of Review (8th Dist. Ohio State Bd. and (6) upon the agency’s refusal to admit evidence offered by a party. of Job & Family Serv. (4) the agency shall pass upon the admissibility of evidence. Kellough v.P. Hearing Procedure 1. 119. . of Pharmacy (Hamilton C. 1998 Ohio App. No. Servs. at *5. 20 Ohio App. to consider hearsay evidence that is in conflict with sworn testimony. Bur. “and it would be inappropriate to disregard his findings simply because they are partially based on admissible hearsay testimony. 6th Dist. 1984).” i. Limits on use of hearsay evidence. at ¶26. C-990573.09. (5) a party may make evidentiary objections to the evidentiary rulings of the agency. Ohio State Bd. 2012-Ohio-1002.C. 1987). at *12. Haley v. Mason v. 38 . It is not always unreasonable. b. No. LEXIS 2687. in Todd v. 9.. (1) See Valdez v. but by sworn testimony of several live witnesses who testified on behalf of appellee.

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

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

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

3. probative. Character Witnesses (1) In discussing the character or business reputation of a licensee. 61 Ohio App. b. Marked exhibits should be presented to the witness for identification and authentication. Ask witnesses to state and spell their name for the record after being sworn in. The agency may call a party to testify under oath as upon cross-examination. Who can administer oaths: Chapter 119 grants the agency or anyone delegated to conduct the hearing with the power to administer oaths. b. Bd. If the party does not object. (2) An agency’s refusal to accept testimony of more than two character witnesses is not an abuse of discretion. Id. Evid. 4. R. Hearing officer and opposing counsel should be given a copy. 87. Exhibits also may be admitted at the close of case-in-chief at which time the opposing party may object. (3rd Dist. (3) The failure to swear a witness is a waiveable error. If a party desires to introduce marked exhibits into the record. 119. 611. 69 Ohio App. Practical Considerations 1. the Agency’s decision will not be reversed. 42 . cross-examination may concern any relevant area of inquiry even if beyond the scope of direct. at 19. 7. 1990). and substantial evidence. para. Cleveland (8th Dist. Zurow v. b. which may be used as a guide. 2.C. Cross Examination a.C. para. and to speak audibly and clearly for the reporter. 2. Exhibits should be marked. 5. The hearing examiner should rule on a motion to admit evidence after entertaining any objections to the introduction of evidence. 119.09.09. 2d 14. 1978). giving opposing counsel opportunity to voice objections. R. 8. Ohio Veterinary Med. Direct examination a.such decision could not be justified by reliable. J. the licensee may call witnesses who will vouch for his/her/its character. 18-19. Kaufman v. Documentary Evidence. 6. 3d 79. R. he/she should so move. 3. Under the Ohio Rules of Evidence. Marked exhibits should be shown to opposing counsel.

D. 2007-Ohio-3328. 874 N.E. 2009-Ohio5852.). 1992).C. 2. respondent may not file a motion to quash (dismiss/summary judgment) a hearing once requested. The State Medical Board of Ohio. Executive Branch (9th Dist. at ¶ 4 (citing State ex rel. 23 Ohio St. 5. Fields v. it must appear beyond reasonable doubt from the complaint that the plaintiff/relator can prove no set of facts entitling him or her recovery. 10th Dist. dismissals (without a hearing) based on procedural issues such as res judicata and subject matter jurisdiction have been upheld by the courts on appeal. No. Where the legislature has provided special statutory proceedings for the discipline of a licensee. Boggs v. (1995). of Ohio (10th Dist. of Edn. Gary Charles Gelesh. State of Ohio ex rel. proof of receipt. Failure to state a claim with proper notice. 83 Ohio App. 3. Failure to provide opportunity for a hearing violates Due Process. 2004). v. (10th Dist. but nevertheless becomes part of the record on appeal.g. 119. of Reclamation (1986). 156 Ohio App. Bd. 4. of Ohio. 3d 677 at 683. 43 . No. Can A Case Be Dismissed Prior to Hearing? 1. Aust v. ¶ 25-27. Bd. Div. Williams v. Agency/Board may not deny the right to a hearing. or were agreed to by the parties. R. 136 Ohio App. Dressler Coal Co. 08AP-158. 2006-Ohio-2171. 3d 131. 72 Ohio St. hearing request. 2000).. Although due process considerations would probably preclude an agency from dismissing a case on its merits before a full adjudication hearing is completed. 1969). 05AP-1079. notice letter. including the right to appeal any agency decision pursuant to R. In re Application of Milton Hardware Co.O.2d 1256 (10th Dist. 72-73. 3d 485.7. 172 Ohio App. under Civ. Ohio State Dental Bd. Doriott v. K. letter to Respondent scheduling hearing. 3d 365. proof of mailing by certified mail. Exceptions: a.” Talwar v. State ex rel. An administrative agency is precluded from dismissing a hearing once it has been requested by a respondent. 12. (10th Dist. 10th Dist. v. at ¶ 14.12. (1) In order to dismiss a complaint for failure to state a claim upon which relief can be granted. 137. Bessey. In general. the court may reverse the agency’s action. 3d 68. 3d 94. Springfield Local School Dist. 165-67: if documentary evidence is not properly introduced and admitted into the record at the administrative hearing. State Med. Summit Cty. 8. 2d 157. 19 Ohio App. (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. Jurisdictional items should always be placed into the record: e. a licensee may not bypass the special statutory proceedings in the guise of obtaining declatory relief. State Med. any written memoranda in which continuances were granted. Bd.

Ford Motor Co. at *24-25. S. Guernsey Cty. (6th Dist. LEXIS 4932. a. syllabus. 44 Ohio St. 1 Ohio App. This is true whether the challenge is a facial challenge to the statute. 3d 195. See also.C. Hairston. 11. The prudent 44 . 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. 65 Ohio St. Limbach (1988). 91AP-1493. v. v. 1991 Ohio App. 3d 545. Ohio Liquor Control Comm. Issues involving challenges to the validity of statute or its application. however. No. 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. Inc. 548. 3d 591. 3d 545. Withdrawal by respondent (1) Although respondent has the right to withdraw from his or her own hearing. or whether the allegation is that the statute is unconstitutional as applied. State ex rel. 131 Ohio App. 130. 2d 128. Limbach (1994). v. (3) In reviewing the complaint. Bowers (1960). L.S. As creatures of statute. the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the non-moving party.12. 90-B-20. 65 Ohio St. MCI Telecommunications Corp. Skalsky v. of Edn. (1) Although the agency itself may not determine whether a statute has been applied in a manner that is unconstitutional. See In the Matter of: Hal Artz Lincoln-Mercury. 68 Ohio St. 406-07. LEXIS 4883. Herrick v. Party should raise “as applied” constitutional challenges at hearing. 1981). Hanson. Kinney (1986). 3d 229. administrative agencies themselves are without jurisdiction to rule on the constitutionality of a statute. Such determinations are reserved to the courts alone. Kosydar (1975). Section 119. 3d 10. 7th Dist. See Cleveland Gear Co. b.C.95 (quoting State ex rel. Ackerman (1st Dist. 1998). 119. Bd. 170 Ohio St. at *5. 548)). 3d 184. VFW Post 1238 Bellevue v. at 231. 10th Dist. b. (1992). No.. v. Zieverink v. of South-Western City Schools 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. 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. 595-96.06. of Commrs. 405. R. Kresge Co. 24 Ohio St. Hanson v. and the expert commentary of the agency on the issue. 197-99. Addressing Constitutional Issues 1. (2) In at least one case. Agency may not rule on the constitutionality of a statute. 35 Ohio St. Bd. 1992 Ohio App.

2721. 1987). 412. 154. Declaratory judgment (1) Where the relief sought rests solely on a constitutional claim. Austintown Assoc. 1. a. Herrick v. Jackson (10th Dist. 154 Ohio St. Ohio 1972). a suit seeking a declaration of rights which would bypass. (3) The decision whether to allow a declaratory judgment collateral challenge lies within the sound discretion of the trial court. c. v. 2d 128. 66 Ohio St. 1133.47(A) (legislative intent is that statutes comply with constitutional requirements). 186. Hodgson v. (4) Where a specialized statutory remedy is available in the form of an adjudicatory hearing. State of Ohio ex 45 . 35 Ohio St. 3d 150. injunctive relief. and 42 U. (1994). 48 Ohio App. 417. Driscoll v. Cleveland Gear Co. would be to raise the issue at hearing to ensure proper development of the record. Issues involving the construction of a statute. b. 3d 183. of Ohio (1993). 1987). 3d 244. Public Util. Due deference is ordinarily given to such interpretations. 39 Ohio App. Westlake (1951). 39 Ohio App.C. Supp.S. 1988). 3. however. 621. (1975). 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. 1125. State ex rel. Limbach (1988). 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. Lieux v. Hamilton Mun. 2d 263. b. R. Collateral challenges to the validity of a statute and/or its application. a suit seeking a declaration of rights that would bypass.03). Although an agency is precluded from passing upon the constitutional validity of a statute or its application.choice. nothing precludes an agency from applying the constitution to properly construe a statute that is at issue.C. 349 F. Bd. declaratory relief has been allowed because the administrative agency could not provide the relief sought. Buckeye Quality Care Centers v. 3d 619. Arbor Health Care Co. 3d 229. Comm. State Med. Jackson (10th Dist. rather than supplement. the legislative scheme ordinarily should not be allowed. 2. v. Office of Consumer's Counsel v. 185. a. v.C. Ct. 3d 183. 70 Ohio St. Pons v. 129. Kosydar. 42 Ohio St. 44 Ohio St. (S. rather than supplement. Fletcher (10th Dist.D. § 1983. the legislative scheme ordinarily is not permissible. (2) When “a specialized statutory [administrative] remedy is available in the form of an adjudicatory hearing. Facial constitutional challenges may be raised for the first time on appeal because they are not dependent on a factual record. 247.” Arbor Health Care Co.

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

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

47

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

48

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

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

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

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

119. 3. no report and recommendation is needed. some agencies conduct hearings without a hearing examiner.C. Failure to Hold Hearing Prior to Expiration of License/Surrender of License 1. 1995). e. 83 Ohio App. OAC 4731-31-15(G) (Medical Board). Remand to Hearing Examiner 1. 2. 3d 562. Public Emp. Western Reserve Psychiatric Habilitation Center. 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. R.2d 833 (10th Dist. 3d 208. 106 Ohio App. Personal Appearances Before the Agency 1.2d 625 (9th Dist. 1998-Ohio-380.09 permits. paragraph two of the syllabus. 53 . 72. 3d 218. C. 70.09.g.E. E.. B. Taking of Additional Evidence 1. Ohio State Racing Commission. 614 N.C. See also. the agency may order the taking of additional testimony. Util. Implied remand a. 567. (1) Generally. 1981) 3 Ohio App. an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute. Ohio Motor Vehicle Dealers Board. but does not require. OAC 4723-16-12 (Nursing Board). 119. Mallory v. A licensee's voluntary surrender of his or her license prior to an adjudication hearing does not deprive the agency of its jurisdiction to hold the hearing and revoke the license. 2. agencies to appoint a hearing examiner to conduct the hearing. 9. R. depending on agency rules. Prior to issuance of a final order. State ex rel. Comm. 246-47.091. 119. D. Accordingly. Jonathan R. Pub. Retirement Bd. 3d 235. 99 Ohio St. Washington v. and the agency can issue an order following deliberations on the case. para. In such cases. See.. Agencies sometimes remand cases to the hearing examiner for the taking of additional evidence. Wise v. 666 N. 9. Administrative powers are only implied when clearly necessary to effect an express power. Id.09. 211-212. 119. Haehn v.C. (1918). 82 Ohio St.. Some agencies permit parties to personally appear before the agency prior to the agency’s deliberations. (9th Dist.1. The party may appear on his or her own or through counsel. 2. R. R. or the introduction of further documentary evidence. 1992) 2. para. Green v.E.C.

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

Ohio Veterinary Med. transcript of testimony and evidence. 15-2000-13. 2. 3d 701. See.C. Accordingly. 3d 204.09. shall have the same effect as if such hearing had been conducted by the agency. 210 (unclear whether each board member reviewed entire record). R. if the agency accepts the recommendations of the hearing examiner without any determination to modify the same. and any additional testimony and evidence.. 2000-Ohio-1812 (board did not read entire transcript). 398. and to avoid charges that it rubber-stamped the recommendations of the hearing examiner. Ohio Veterinary Licensing Bd. 4.55. Under some statutes. 1993). (1st Dist. Failure to act promptly on a Report and Recommendation a. R. 713-14. In re Certificate of Need Application of Providence Hosp. b. if the agency fails to act within a certain time period from the issuance of the R&R. 3d 391.23(D) (board must issue order within 60 days or within any time period agreed upon by the party). 1990). modify.. c. or objections of the parties. The Agency may approve. The Agency is permitted to independently review the evidence. See Lies v. Vonderwell v. Best practice is for the agency to review the entire record of the proceedings.g. R. R. 4731. Bd. d. and draw its own conclusions from the evidence. or disapprove the recommendation of the examiner. e. 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. the hearing examiner’s R&R is deemed accepted. (10th Dist.” b. 3.g. Modifying or disapproving the recommendation of the examiner 55 . to make its own findings. e. 2 Ohio App. recommendation. Ohio Rehabilitation Services Comm.C. “[T]he order of the agency. (10th Dist. 119. See.3. 85 Ohio App. Agency Review of the Report and Recommendation of the Hearing Examiner 1. G. 119. No. 3rd Dist. based on such report.09 provides that no recommendation shall be final “until confirmed and approved by the agency as indicated by the order entered in its record. 4517. and should not be modified upon the issuance of the final agency order. including the entire transcript. 1981). Approving the Report and Recommendation a..C.” These may be “magic words” that should be used in all orders that accept the recommendation of a hearing examiner. Some agencies’ statutes provide time limits for the issuance of orders following a recommendation.C. it should indicate in its order that the R&R is “confirmed and approved. 67 Ohio App. 5.” Miller v.

. as the agency may be called upon in subsequent hearings to apply the facts in a similar fashion. then the exacerbating factors should be stated with particularity. Ohio courts have indicated that. This is just as important even if the case is not appealed. 2003-Ohio-987. (1994). 3d 77. 29 Ohio App. when considering a report and recommendation under 119. In re Certificate of Need Application of Providence Hosp.S. as the ultimate factfinder. Trout v. S. (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. the Supreme Court noted that the agency did not indicate that it examined the record. 3d at 2. an administrative agency. 119.09.D. the agency should afford due deference to the findings of the examiner. 9. 1999) at *21-22. (1994). 2. In the Brown case. Ohio Bur. and what the agency considered to be facts supported by the record. Serv. 70 Ohio St. Ohio Bur. Ohio Dept. 3d 391. Sheriff (1990). Serv. it should be able to demonstrate the conclusions it draws from the facts. e.C. If the agency modifies or disapproves the recommendation of the examiner. (citing Jones v. b. LEXIS 22065 (Mar. at ¶ 17. 67 Ohio App. Suspensions 56 . of Emp. then the mitigating factors warranting the lesser penalty should be specifically set forth. Franklin Cty. 52 Ohio St. may make de novo findings of fact and conclusions of law. para. Further. City of Springfield. Brown v. it must include in the record the reasons for such modification or disapproval. 79. 398. No. Amherst Village Bd. 3d at 2. but did not accept the recommendation. 293. (10th Dist. 70 Ohio St. 32 Ohio St. The agency should be able to both articulate and demonstrate how it is applying the law to the case before it. If the penalty is to be less than that proposed by the hearing examiner.a. 70 Ohio St. Dist. 3d 40). A reviewing court will need to be able to determine what the agency relied upon. 3d 1. the Supreme Court of Ohio has held that where the findings are based upon assessments of credibility driven by observance of witnesses’ demeanor. 2. c. H. Ohio No. 1985). The Agency may only take actions or impose penalties authorized by law. d. (1987). and the reasons why it relied on certain facts as opposed to others. Disciplinary Actions 1. and further adopted the findings of fact. Crow v. Ohio Bur. of Emp. (1994). Ohio Bur.09. 1990). R. Serv. Although the agency has the authority to make de novo findings of fact. of Emp. Id. If the converse is true. 3. 10th Dist. Blinn v. Graziano v. C-3-96-010. of Emp. 02AP-783. of Edn. the agency should give due deference to the recommendations of the hearing examiner. Agency modifying the penalty (1) Per Brown v. Serv. of Edn. 3d 289. 1999 U. See Brown v. (10th Dist.

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

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

Cooper v. Effect of Orders – Claim/Issue Preclusion 1. 10AP-419. Kellough v. a. Ohio Dept. both the party and the attorney must be served. 114 Ohio St. b. at ¶ 12. A report and recommendation must be sent by certified mail to the party OR the party’s attorney. supra. The time period for appeal of an agency decision does not commence until the party is properly served with the agency’s order. R. 2000 Ohio App. of Edn. Bd.. [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]. For the order. 31 Ohio St. 200? ___[signature]___________ Name Title Date (seal) 2. There is no requirement that the copy to be sent to the attorney be certified. 12th Dist. Inc. 3d 260. of Workers’ Compensation. No. 2007-Ohio-2877.c. Bainbridge Twp. CA99-09-108. of Zoning Appeals (1987). 3d 306. 5. K. 2. v. 3d 47. Set Products. 308. of Commerce. v. and the attorney may be served with an uncertified copy by regular mail. CA99-07-082. Brennan (1987). 3. Hughes v.C. However. See failure of delivery of notice. Administrator of Ohio Bur. ¶ 35 4. The agency must also mail a copy of the order to the party’s attorney. LEXIS 2268. Claim preclusion/res judicata applies to administrative proceedings that are of a judicial nature and where the parties have had an ample opportunity to litigate the issues involved in the proceeding. The following language is recommended for the certification: State of Ohio County of _________________. The agency must send a certified copy of the order to the party by certified mail. Issue preclusion/collateral estoppel precludes the relitigation of an issue actually and necessarily litigated and determined in a prior action. 263. If delivery fails. entered on its journal on the ___ day of _____. Application of collateral estoppel/issue preclusion 59 . Note: There are differences between the service requirements for an order and for a report and recommendation. Ohio State Bd. the party must be served with a certified copy by certified mail. Nos. 119.07. at *7. 2011-Ohio-431. Sun Refining Marketing Co. the agency may use other methods of service as provided. 31 Ohio St. SS I. 3. 10th Dist.

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

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

Dept. under R. Bd. 10th Dist.C. 119. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R. 510. 119.C. 1970). and has standing. 47-50. State ex rel. Clermont Natl. 2002-Ohio-1318. 46 Ohio St. d.01(F). Haig v. In re Job Abolishment of Jenkins (10th Dist. 27 Ohio App. Chapter 119). 119. of Mental Retardation & Developmental Disabilities v. 387. 1111. Bank v. 385. Serv. Broadview Developmental Ctr. firm. 1963). 62 . No.b. a state agency. (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. of Mental Retardation & Developmental Disabilities v. Collyer v. State ex rel. 3d 99. 1991). 1984).C. 120 Ohio App. 01AP-786. Osborn. Unless a statute provides otherwise. paragraph one of the syllabus. the State is not a proper party to an appeal pursuant to 119. (1990). Siesel.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.” R. nor its director was a “party” within the meaning of R.12 (1) Neither the state. 134 Ohio St. Akron City School Dist. e. 2d 91. Professionals Guild of Ohio (1989). Compare Seneca County Bd. No. 114.01(G). 2d 41. Other Parties 1. Hamilton Cty. Ratchford (10th Dist. 3rd Dist. 102.01. Harrison v.C. without an independent interest in the matter. 2d 41. 47. 3d 147. 21 Ohio App. of Edn. Blue Cross of Northeast Ohio v. Jackson (1976). Government entities as parties for purposes of R. A bank that receives notice pursuant to R. of Admin. Parents of Students Attending Edge Academy of Akron & Ida B. Relations Bd. Ohio State Bd. (1992).C. 2002-Ohio-4235. Public Utilities Comm. 3d 113.12.01(G). 3d 48. 347. or partnership. 46 Ohio St. (10th Dist. 49.” R. v. 119. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party.12.C. 46 Ohio St. rev’d on other grounds. 119.C.C. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency. 119. 62 Ohio St. 54 Ohio St. 119. association. 150-51. 13-0215. 346. 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. Edwards (10th Dist. v. Wells Community School. corporation. B. State Emp. (2) When the State acts merely as an adjudicator. c. of Edn.C. to appeal an order by the superintendent of banks granting the application. Osborn v. ”Person” is defined as “a person. Bd..12. (1938). 74 Ohio App. 3d 507.

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

Ohio Dept. Chapter 2505 governs the procedure for administrative appeals. But see Welsh Development Co. 119.3d 198.12 (that “the agency’s order is not supported by reliable.C.” R. 58 Ohio St. State of Ohio Bd. 10 MA 153. of Commerce. 128 Ohio St.C. 11AP-259. D. Chapter 119. 119.2d 1113. Where to File R. 2011-Ohio-1604 (appeal under R. ¶ 39. 119.C. para. Ohio Dept. of Commerce. 3d 471.C. No. 2. The notice of appeal need not contain the language specified by R. the General Assembly revised R. 2012. Franklin C. at ¶ 34.12. R. Deaconess Hosp.notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction. v.v. 2011-Ohio-3172. the notice of appeal must be filed with the agency and with a court of common pleas. County of place of business or county of residence 64 . 12-CVF-1835 (Apr. 7th Dist. ¶ 43-44.12 to remove the requirement to file the original notice of appeal with the agency. Inc. Form of the Notice of Appeal a. Under R.C. Evankovich. 2012). Zidian v Dept. 10. 119. No. Dudukovich v.12 governs appeals taken pursuant to R.C. 389 N. 11 MA 39.. Lorain Metropolitan Housing Authority (1979). 7th Dist. 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.E. 2. 11 MA 39. 2505. of Job & Family Services. 4. probative and substantial evidence and/or is not in accordance with law.P. 2012-Ohio-1499.12. Russell v. the notice that is filed may be either the original notice or a copy of the original notice. 2012-Ohio1499. 204.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). 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. 10th Dist. Warren County Regional Planning Comm. Which court of common pleas? a. 2009.C. No.2d 202.Ohio-95. 119.. Effective May 8. No.C. 7th Dist. No.O. ruled in accordance with the Tenth District Court of Appeals. The statute now provides that. Zidian v Dept. and a copy with the court. of Job and Family Services. of Pharmacy v. 12 O. 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. probative. 1. “[i]n filing a notice of appeal with the agency or court.

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

App. at ¶ 6. Liebold v. 110. Ohio Dept. 189. 2003-Ohio-3121. 3. Ohio Veterinary Med. LEXIS 744. 3d 100. at ¶ 13. 84 Ohio St. para. 119. one to the agency and the other to the court. State v. Ohio Dept. 21487. (10th Dist. 2007-Ohio-2877. 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. v. Yeager v. paragraph one of the syllabus.12. 3d 47. at ¶ 14. 8th Dist. 5. 3d 317. 10th Dist. 103.C. 2505. 2nd Dist.C. No. The actual mailing date of the order is the event that triggers the appeal period. 1955 Ohio App. 2012-Ohio-2908. R. must be filed within 15 days of the mailing of the agency’s order. Bd. Evidence a. 1993). Arndt v. (Franklin C.07) Nibert v. Ohio Dept. 114 Ohio St.C. Suspension (Stay) of Agency’s Order on Appeal 1. Ohio Dept. No. 84 Ohio St. 114 Ohio Misc. 37 Ohio App. Ohio State Med. 1993 Ohio App. v. No. Bd. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R. 119. 1995). The court held that R. Proper service pursuant to R. 2006-Ohio-3436. 3d at 102. Morrison v. 02AP-1019. E. Serv. Colonial. 119. Hughes v. 2002-Ohio-5986. 10th Dist. 2.c. of Rehabilitation & Correction (1998). Williams.C. Ohio Liquor Control Comm..12 is a condition precedent to the running of the time for appeal. 2011 CA 0085. 01CA13. 2012-Ohio-95. 103 Ohio App. Scott (1955). Chapter 2505 governs the manner for filing appeals under R.C. Ohio Dept. Granting of suspension of the order 66 . Ball. Mansfield. 24. R. of Admin. Bailey v. ¶ 28 (R. 10th Dist. 3.P. Harrison v. of Job & Family Services. No. b. 11AP-259. both notices of appeal. Nibert. 321. 72 Ohio Law Abs. 04AP-748. 2d 48. Time for Filing the Notice of Appeal 1. Hiddens.C. A stay of execution of the agency’s order pending appeal is not automatic. 511.42(C). 195. 2007-Ohio-2972.12 deprives the court of jurisdiction over the appeal and mandates dismissal. (8th Dist. No. F.12. of Ins.C. 3d 192. 5th Dist. 51. Deaconess Hosp. 4. 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. a. 4th Dist. 2000). Geroc v. 4.C. Dickson v. The filing of an appeal does not automatically operate to suspend or stay the agency’s order.12.. Inc. 119. No. Pursuant to R. of Commerce. para. 1987). LEXIS 5647 (Nov. 2.

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

Franklin C. 141 Ohio App. b. and (d) whether the public interest would be served by granting a stay. Duration of the stay/suspension of the agency’s order a. 3d at 781-82. Terms of the suspension a. until all appeals are exhausted and agency’s order becomes final. 783. 141 Ohio App. e. Leo D'Souza. 119.. Ohio State Med.. 5. (c) whether the issuance of a stay will cause harm to others.12. suspension of the order remains in effect until the matter is “finally adjudicated”. Deciding a motion for suspension of agency order is wholly within sound discretion of the trial court. (1) If an appeal is taken from a common pleas court decision when the court previously granted a suspension of the agency order. Krihwan. 5. 119.. M. 1981 Ohio App. that is. R. LEXIS 13852. 92CVF05-4202 (July 15. Inc. No.(2) Logical considerations: The Court of Appeals for the Tenth Appellate District has held that the following factors are “logical considerations” when determining whether to stay an administrative order pending appeal: (a) whether the appellant has shown a strong or substantial likelihood or probability of success on the merits.D. (10th Dist. 2008).P. c.C.P. 3d 777.C.C. C-800651. (3) The court generally has broad discretion on what factors to consider in granting a suspension of the agency’s order. Bd. See R. Fattah v. para. v. 08CVF-05-7342 (June 12.g. 5.12. the Court may fix the terms of the suspension order. Generally. 2001). Franklin C. at *910. The Court may set terms during duration of suspension including restrictions on practice. 4. Bob Krihwan Pontiac-GMC Truck. v. No. No.12. In granting a suspension of an agency’s order. The State Medical Board of Ohio. 5. 119. 1st Dist. See. para. then the suspension “shall not be vacated” and will continue until the matter is finally adjudicated. R. (b) whether the appellant has shown that it will suffer irreparable injury. para. City of Cincinnati Civil Service Comm. Standard of review of trial court decision on this issue is “abuse of discretion. 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. 1992).” Hunter v. 68 . General Motors Corp.

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

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

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

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

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

1992). 540 (citations omitted). of Registration for Professional Engineers & Surveyors (9th Dist. Unless otherwise provided by law. 11. Could not with reasonable diligence have been ascertained prior to the hearing before the agency. of Pharmacy. at ¶ 36. “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. of Pharmacy. R. 101 Ohio App. Ohio State Bd. 3d 278.C. If the appellant does not present such evidence before the agency. 121 Ohio App. 3d 531. and b. then the trial court may also determine the constitutionality of the statute as applied. he or she cannot then raise the constitutional issue by introducing new evidence before the trial court unless the evidence is newly 76 . Newly discovered evidence and Civil Rule 60 (B)(2) (1) Language in R. c. 3. 3d 33. the court is confined to the record as certified to it by the agency. 119. 1995). 3d 495. (b) that the movant exercised due diligence. Newly discovered evidence a. 3d at 502. however. Duryee. CVS/Pharmacy #3131 v. of Psychology (8th Dist. newly discovered evidence does not refer to newly created evidence. 2003-Ohio-3806. courts have held that the moving party has the burden of demonstrating: (a) that the evidence was actually “newly discovered”. 82215. Diversified Benefit Plans Agency v. 119.” Holden v. at ¶ 36. Ohio Bur. it must have been discovered subsequent to the trial. Duryee (9th Dist. 60(B)(2). CVS/Pharmacy #3131 v. Ohio State Bd. (2) In interpreting Civ. Ohio State Bd. 288.1.” Steckler v. not merely impeaching or cumulative. 1990).12 relating to newly discovered evidence is analogous to language in Civil Rule 60(B)(2). para. Newly discovered. of Motor Vehicles (9th Dist. 67 Ohio App. 83 Ohio App. 2. b. R. The court may grant a request for the admission of additional evidence when it is satisfied that such additional evidence is: a. 101 Ohio App. that is. Clark v. State Bd. and that a new trial would probably produce a different result. 2003-Ohio-3806. 1997). cases interpreting Rule 60(B)(2) may therefore be helpful in interpreting R.C. 119. 502.12.C. New evidence of constitutional issues (1) If an appellant presents evidence before a state agency concerning the constitutionality of a statute as applied.12. 38. 8th Dist. and (c) that the evidence is material. No.

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

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

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

v. LEXIS 1194. of Commerce. See Harrison. at ¶ 6. 2005-Ohio-5575. 2001 Ohio App. v. 1987 Ohio App. Alcover. 1993 Ohio App. Harrison v.(declaratory judgment action). Fiorica. 18521. 2001-Ohio-4113 (citing In re Turner Nursing Home. 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. No. Reichart-Spaeth. at *6-7. Bd. Inc. Reichart-Spaeth v. but does not deprive a person of the right to appeal. Fiorica. 01AP-71 and 01AP-72. 82 Ohio St. No. LEXIS 9961. Caltrider (2nd Dist. v. 319-20. LEXIS 5729. Bd. See also. Clagg v. Bd.. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. See Camrack v. Bd. 88AP-516. *4. which deprives the common pleas court of jurisdiction over the merits of a 119. 10th Dist. at ¶ 24 (holding that failure to exhaust is an affirmative defense that can be waived. No. Baycliffs Corp. No. 1988 Ohio App. Ohio State Med. 54292... (10th Dist. 86AP-767. No. Alcover v. which deprives the common pleas court of jurisdiction over the merits of the appeal. LEXIS 9961. 6. 103 Ohio App. Ohio State Med. 2007-Ohio-5802. not a jurisdictional defect). b. LEXIS 4367. 1998-Ohio-414. No. b. at ¶ 6. (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. at *3). No right to consideration of merits on appeal. State Med.. Ohio Dept. 10th Dist. c. 3d 277. Blackburn Sec. of Rehabilitation and Correction. 2nd Dist. 07AP-261. 10th Dist. 103 Ohio App. 1987 Ohio App. 3d at 319-20. Ohio Dept. at *8-9. 8th Dist. State Med. 2005-Ohio5575. Some cases have held that a failure to timely request a hearing constitutes a waiver of hearing. 10th Dist. Bd. 103 Ohio App. Inc. See Oak Grove Manor. of Ohio. LEXIS 1194.12 appeal. LEXIS 4367. LEXIS 9961. the agency can rebut the presumption with evidence that the request was never received. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. See Thompson v. Camrack v. 164 Ohio App. State Med. (2) Jurisdiction to consider constitutional challenges 80 . Ohio State Med. Worker Bd. 10th Dist. Caltrider (2nd Dist.). 2001 Ohio App. Ohio Dept. Bd. at *4. No adverse affect on right to appeal. 3d 76. 2005). v. But see Derakhshan v. 1987 Ohio App. 13660. at *10-11. of Human Services. 3d at 319-20. 09AP-78. 2nd Dist. 1988 Ohio App. Alcover. No. 1995). Harrison v. 3d 76. 2010-Ohio-416. No. at *6-7. Failure to request hearing as failure to exhaust (split in authority) a. 3d 317. 1987 Ohio App.. LEXIS 2665. 164 Ohio App. Ohio Counselor & Soc.

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

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

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

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

at ¶ 11.. 1167 v. Crawford-Cole v. On an appeal of those specific questions of law. 3d 257.” State v. (4th Dist. 2. at ¶ 21. 87 Ohio App.. 1998 Ohio App. No. 9th Dist. para. 10th Dist. 3d 863. (2) Questions on appeal relating to statutory construction are legal issues that a court of appeals reviews de novo. Cty. (1992). 3d 191. Abuse of discretion standard on issues of fact (1) When a court of appeals reviews the decision of the trial court.. but perversity of will. partiality. 1167). 3d at 260-61 (quoting State ex rel.. L-11-1177. at ¶ 8. Univ. v. at ¶ 5. See A-1 Nat'l Agency Group LLC No. LEXIS 532. Relations Bd. Ohio Liquor Control Comm. at *7-8. or moral delinquency. of Edn. Lovelace Motor Freight. 2003-Ohio-3432.. 10th Dist. Dept. probative. (3rd Dist. 2012-Ohio-3506 ¶ 12. 10th Dist. Hawkins v. Lancaster (1986). Relations Bd. of Ins. 03AP-732. at ¶14. 18510. 1800 Riverhouse. 260-61. 222. 3d 339. Standard of Review a. 193. Marion Corr. 62 Ohio App. Lucas Cty. 14. Licensing Bd. No. not the exercise of judgment but defiance thereof. Glassco v. a court of appeals must determine whether the trial court abused its discretion as to issues of fact. 03AP-871. Univ. prejudice. 22 Ohio St. passion. 15-04-01. (In re A-1 Nat’l Agency Group LLC No. Ohio Dept. R. 119. (1988). No.c. State Emp. v. Ohio State Liquor Control Comm. Inc. or substantial evidence. 6th Dist. Jenkins (1984).. Dept. No. 343. Lorain City Bd. 3d 164. Relations Bd. 1990). of Edn. De novo review on questions of law (1) When questions of law are raised on appeal from an administrative agency. of Job & Family Servs. of Commerce. 10th Dist. 1993). 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. of Scioto Cty.C. 85 . 871. 04AP-46. 40 Ohio St. the court of appeals exercises plenary powers of review. 2004-Ohio-2168. 63 Ohio St. State Emp. 2004-Ohio-3831.12. State Emp. Ohio Veterinary Med.. 02AP-1223. Bingham v. Ohio Dept. v. Hosp. not the exercise of reason but rather of passion or bias. 40 Ohio St. 15 Ohio St. 2004-Ohio3726. (2) An abuse of discretion “implies not merely error of judgment. Inst. (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. of Cincinnati College of Med. (3) Issues relating to constitutionality and procedural due process are given plenary review by the court of appeals. No. v. of Job & Family Servs. 3rd Dist. Inc. b.” Lorain City Bd. No. 3d 704 at 711. Mathews v. No. Brown v. 2004-Ohio-3553.. Pacella v. Commrs. v.

An adjudication hearing was held by the state personnel board of review pursuant to R.C. syllabus. 2.C. 119. R. e. 3d 600. Moody (1st Dist.092(F)(2) would not bar recovery of fees.C. 124. The fees of the prevailing eligible party were one hundred dollars or less. R. “Fees” means reasonable attorney fees.C.092(F)(4).C. d. c. the First District has held that attorney fees may be recovered after hearings under R. or local government.34.092(F)(4) as it pertains to the state personnel board of review. R. 1.092(A)(2). Haghighi v.092). 124.C. 152 Ohio App.39. 119. and 2. 119.C. but not R.C.092(B)(2)(c). allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R.). Relying on the plain language of R. Non-recoverable fees a. 2335. R.03 (involving discharges or layoffs) and those arising R.092.12. 119.C. (1) NOTE: There is a split of authority concerning the scope of R.C. A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. An adjudication hearing was held to establish or fix a rate. Chapter 119 contains two attorney fee provisions: 1.C.C.092(F)(3). R.C.C. B. R. What are “fees”? a. and R. 124.092(F)(1). unless the agency has established a higher hourly rate by rule that is applicable under the circumstances. 119. state.34 (involving removals or reductions for disciplinary reasons). 2003-Ohio2203.X. 119. which allows a prevailing party on appeal to move the court for attorney fees in accordance with R.C. ATTORNEY FEES A. 86 .03. in an amount not to exceed $75 per hour. 119. 119. b. An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits.092(F)(2). 119.C. R. 124. 119. Recovery of Attorney Fees by Party Prevailing at Hearing (R.092(F)(4). (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits. R.C. 119.C. 119.

Inc. 3d 397.092 does not permit an eligible prevailing party to file a separate action for fees in common pleas court. shall not be excluded as an eligible party because of its net worth. Hamilton Cty. An “Eligible party” means a party to an adjudication hearing other than the following: (1) The agency. 43. 124. and (4) An employer that employed more than five hundred people at the time the party received notification of the hearing. 1992). 119.12 b. A motion to the agency is the only mechanism for recovering fees. (3) The Tenth District Court of Appeals has held that all lawful hearings before the SPBR are necessarily in accordance with R. 121 Ohio App.C. 3d 723. R. v. Licensing Bd. at *37.C. Procedure for requesting fees from the agency a. 119. 1999 Ohio App. 98CA00138.092(A)(1). (2) An individual whose net worth exceeded one million dollars at the time he received notification of the hearing. (3) A sole owner of an unincorporated business. 119. State ex rel.092(F)(4).C. 1999 Ohio App.C. R. 1997). O’Connor (10th Dist. Estate of Kirby v. 3d 39. 5th Dist. 98CA00025.. (1995). The Ohio Civil Rights Commission is not an “agency” for purposes of R. (1st Dist. the award is not automatic. however. Wilde v. LEXIS 4813. or an organization that had a net worth exceeding five million dollars at the time the party received notification of the hearing.C. Ohio Veterinary Med.03 -. 1999CA00055. R. 3.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. 87 . Discount Fireworks. A prevailing party is entitled to attorney fees. 401-02. See discussion below re: “prevailing party” under R. 73 Ohio St.C. Juvenile Div. 119. 5th Dist. LEXIS 3536. 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. Ohio Civil Rights Comm. 119. g.C. 4. Auglaize Mercer Community Action Comm. Who can recover fees: prevailing eligible party? a. Nos. f. 78 Ohio App.C. b. No. Stetz. Chapter 4117. 725.after hearings under R. An adjudication hearing was held by the state employment relations board pursuant to R.03. at *7-8. Carruthers v. of Common Pleas. Ct. v. 124.092.

that determination is not subject to review by the agency. d.C. (1st Dist. or 88 . 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. State ex rel. Identify the party. 3d 414. Ohio Civil Rights Comm. 119. This itemization shall include a statement from any attorney who represented the prevailing eligible party that indicates the fees charged.C. R. Consideration of the motion for fees a. 119.092(B)(1). 1998) 130 Ohio App. 119. 73 Ohio St. Include a statement that the agency's position in initiating the matter in controversy was not substantially justified.092 does not require a hearing on the motion for attorney fees. R. 425. R. Instead. Sohi v. The agency has the burden to prove the following: (1) that its position in initiating the matter was substantially justified. Burden on the agency a. 726. Indicate the amount sought as an award.092 requires only a “review” by the referee or examiner who conducted the adjudication hearing. The motion shall do all of the following: a.C. c. (2) that special circumstances make the award unjust. and e. 6. 119. (3) If the determination is made by the hearing examiner or referee.C. (2) If there was no hearing examiner.092(B)(3). b. 5. 7. Indicate that the party is the prevailing eligible party and is entitled to receive an award of compensation for fees. 3d 723.092(B)(2). No hearing required. the actual time expended. b. State Dental Bd. and the rate at which the fees were calculated.c. R. Auglaize Mercer Community Action Comm. v. R. the agency may consider the motion. Reviewed by the examiner or agency (1) The request for attorney fees is reviewed by the hearing examiner who conducted the adjudication hearing.C. 119. Itemize all fees sought in the requested award. (1995).

R. (3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. 8. as found by the court of appeals. (2) Whether the position of the agency in initiating the matter was substantially justified.. 65 Ohio St. Sowald. (2) Generally. Substantially justified (1) Whether the initiation of the action was substantially justified is evaluated at the time of initiating the action. b. not continue a proceeding that has already begun. Denial or reduction of fees requested 89 . 1992-Ohio-1.06 and 119.C. Initiating action (1) “Initiate” means to commence an action. 1992-Ohio-1. 119. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. 342. (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. i. at 342-43. 3d 338. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation. of Health v. Sowald.(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. State ex rel. 1992-Ohio-1.C. Decision on the motion for fees a. 119. not its initiation.e.092(B)(2). Id. issuance of the notice of opportunity for hearing. Moreover. and finds improvement in deficiencies. testimony is taken. 119. if issue be one of fact. (2) See cases below interpreting “substantially justified” language in R. Sowald. matter on which action is brought and issue is joined and in relation to which.C. 9.07. Ohio Dept. Merits of the motion: was the agency “substantially justified” in initiating the action? a.12’s provision for attorney fees. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100. b.

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

78 Ohio App. R. R. Common pleas court decision. 3d 556.39 sets forth general rules governing the award of attorney fees in actions against the state. and (3) the state’s position in initiating the matter in controversy was not substantially justified. (2) he is financially eligible.C. 119. in accordance with R. Harrison v. In re Williams (1992).092(C). “Prevailing party” 91 . 119. The agency must file a certified record as required in R. c. 119.C. R. or calculation involved an abuse of discretion. (2) The agency’s appeal would be filed in the manner specified by R. (2) Decision is final and not appealable.C. (2) File in same court in which the party would appeal agency’s adjudication order.C.C. 4. (1) The court may modify the decision of the examiner or the agency only if the failure to grant.092(C). Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee. 119. d. C. Statutory framework: R. (3) A copy of the decision must be certified to the agency and the eligible party. This attorney fee provision applies only to appeals brought pursuant to R.C.C. 5. R.12 provides that the court shall award compensation for fees to a prevailing party. 2. R. No. 119.C. 119. 2335.39..C.C. R. 2003Ohio-3816. 119. 558. 119. 10th Dist.C. 1.12. 119.092(C). R.(1) May appeal denial or reduction of award. Ability to receive fees: prevailing eligible party a. at ¶10. Licensing Bd.092(C). R.39(B) provides that an individual may recover attorney fees if (1) he prevails. 119. not the agency itself.C.12. 3. 2335. 02AP-955. 2335.12 for appeals. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order.39 a.C.C. b. 2335.12.092(C). Ohio Veterinary Med. R.

. except that an organization that is described in subsection 501(c)(3) and is tax exempt under subsection 501(a) of the Internal Revenue Code shall not be excluded as an eligible party under this division because of its net worth.C. R. other than the following: (1) The state. (3) The court may take the partial victory into account when determining the amount of the fees to be awarded. 1991). 2335. State Medical Bd. to qualify as the prevailing party.. dismissal of all charges without remand. 71 Ohio App. Korn v. 71 Ohio App. b. corporation. (4) A sole owner of an unincorporated business that employed.C.092. State Medical Bd. (3) A sole owner of an unincorporated business that had. 3d 483. R. b.e. or organization that had. “Eligible party” means a party to an action or appeal involving the state. (10th Dist.C. 7. The motion may request both fees incurred in appeal and in the administrative hearing. Same requirements for content of motion as in R. or organization that employed. See above.. corporation. association. 6. association.39(B)(1). 3d 483 at 487. 2335. 3d 483 at 487.(1) A party need not attain a complete victory. Court review a. or a partnership. more than five hundred persons at the time the action or appeal was filed. or a partnership. 71 Ohio App. State Medical Bd. Korn v. Motion for fees a. 2335. (2) An individual whose net worth exceeded one million dollars at the time the action or appeal was filed. a net worth exceeding five million dollars at the time the action or appeal was filed. The court must determine: (1) Whether the position of the state in initiating the matter in controversy was substantially justified. The motion must be filed within 30 days of the final judgment by the reviewing court in the action or appeal. (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. 119.39(A)(2). R. i.C. 92 .39(D). 487.” Korn v. c.

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

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

39(F)(3)(b). 93AP-331. State ex rel. If the case is an appeal of the adjudication order of an agency pursuant to section 119. 2335. state. v. the court in In re Van Arsdel distinguished cases such as Holden v. An order of a court considering a motion under this section is appealable as in other cases. you may wish to consult the Ohio Administrative Law Handbook and Agency Directory in Baldwin’s Ohio Administrative Code.092(F). b. 2335. the agency may appeal an order granting an award. Sowald. 1994 Ohio App. R. or local government. c. Ohio Dept. Morris (1992). attorney fees could be awarded in a proceeding where the state attempted to decertify a nursing home. b.” This principle was reaffirmed in Thermal-Tron. See also. 119.39(B)(2).C. 3d 458. 2335. Exemptions from R. 10. No. a. d. 65 Ohio St. R. 2335. R. Freeman v. 5101.C. involved an abuse of discretion. Inc. 10th Dist.39(F)(3)(a). where the court assumed (without deciding) that.C.39(F)(3)(c). 460. When the eligible party’s attorney was paid pursuant to appropriation by federal.2335. of Health v.C. by a prevailing eligible party that is denied an award or receives a reduced award. 1994) at *6-7.39(B).C. b. 2335.C. 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. of Motor Vehicles (9th Dist. 2335. 2335. under the right circumstances. c.39 a. 24. However. 3d 531. 1992-Ohio-1. Ohio Bur. 1990). Note: For additional information on administrative law. Appealing an award of attorney fees under R. 3d 338. 65 Ohio St. 11. 67 Ohio App. where the state sought to take away a license already held by an individual. State ex rel. or the calculation of the amount of an award. Schregardus.12 of the Revised Code. 95 . An administrative appeal decision under R.35.C. LEXIS 6174 (Feb.39(B)(2). Adjudication orders exempted under R.C. R.C.39. Pro se litigants may not be awarded attorney fees under R.

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