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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

119. department. revoking or cancelling licenses. (10th Dist. R. Chapter 119.01(A)(2): Any official or work unit having authority to promulgate rules or make adjudications in the Department of Jobs and Family Services specifically pertaining to: (1) Adoption. (3) The agency. 119. R.C.C.01(A). d. R.I. School Employees Retirement Sys. amendment or rescission of rules mandated by R. The licensing functions of any administrative or executive officer. 1 .13 of the Revised Code. remove or cancel licenses. R. the Department of Taxation. revocation or cancellation of licenses. board or commission may be required to follow the Ohio Administrative Procedure Act. Exclusions from Definition of “Agency”. R. Fair v. division. suspension.C. Chapter 119 Pursuant to R. 1975). board. Agencies Specifically Named in R. b. the Industrial Commission. boards and commissions are specifically named in R. board or commission of the state government specifically made subject to sections 119. bureau.C. Governmental Entities Subject to R. (2) A statute specifically subjects the agency. 119. department. board or commission has authority to issue.C. Entities that Constitute an “Agency” 1.01(A) a. 119. Any administrative or executive officer. the Division of Liquor Control.09. Chapter 119. e. and/or the Bureau of Workers’ Compensation. there are three ways in which a state agency. 119. 119.01 to 119.C. or commission that has the authority to promulgate rules or make adjudications in: (1) (2) (3) (4) (5) the Civil Service Commission. APPLICATION OF R.C.C. (1) Certain agencies.C. CHAPTER 119 A. board or commission of the state government having the authority of responsibility of issuing. R. c. 2d 115.01(A)(1): Any official.01(A)(1): (1) Public Utilities Commission. (2) Issuance. 119. 117. 5101. suspending. board or commission to R.C. bureau. 44 Ohio App.C.C.01(A)(2)(b). B.C.01(A)(1).01(A)(1). division. 119. suspend.

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

01 to 119. revoking. of Admin. 3 . 124.C. Chapter 119 provides certain rights in relation to adjudications. the refusal was not an agency decision and therefore. (1981)." R. Ohio Dept. 4. the act is a licensing function because it does not fall under the exemption included in R. 2d at 152 n. 03AP-330.13. 2003-Ohio-6940. (1963). and functions of the Department of Administrative Services with respect to civil service employees. 151-52.C. Bd. para. 1 (emphasis added). Since the act was not a licensing function. 119. suspending. 174 Ohio St.C. 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. of Trustees of Ohio State Univ. or denying the issuance or renewal of a license or registration of a licensee. b. or canceling of a license.12. 10th Dist No. the university was also bound by Chapter 119 in the exercise of those powers. Inc. Chapter 119. of Findlay School Dist. para. 1 (emphasis added). The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services. may appeal from the order of the agency to the court of common pleas. 68 Ohio St. v. which then authorized state universities to exercise the powers. duties. paragraph two of the syllabus). (1) In Bd. Not Ministerial Acts 1.06. 119. The conduct at issue was authorized by R.. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119. Chapter 119 Applies to Adjudications. of Commerce. 467. 119.C. v. 2d 149.C.3 (citing Karrick v. entity exercising derivative power must be a state agency. 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. at ¶ 24. Serv.01(B).Therefore. Dept. (4) The Tenth District Court of Appeals held in Springfield Fireworks.12. 119. which was an agency subject to Chapter 119. a. "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination.C. Right to an appeal: Pursuant to R. Board of Edn. the entity is also subject to Chapter 119. C. Entities exercising derivative power a. 68 Ohio St. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119. of Trustees. Where an entity exercises power derived from another agency that is covered by Chapter 119.14(G). or revoking or suspending a license .” R.. was not appealable pursuant to R.

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

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

3. Bd.06. Board of landscape architect examiners. b. para. When an agency denies a renewal or registration. 119. Exception: When a statute permits the suspension of a license without a prior hearing. Orders suspending a license where a statute specifically permits the suspension of a license without a hearing. 10th Dist. 05AP-1079.C. at ¶ 14.06.C. General rule: Agency must provide an opportunity for a hearing BEFORE issuing an adjudication order. If a licensee timely files for renewal or registration.C. R. 2. the licensee shall not be required to discontinue the licensed business or profession merely because the agency fails to act on the application.C. another agency. 119.06(A). of Ohio. R. D. physical therapy. 119. The Action of the agency rejecting the application shall not be effective prior to 15 days after the notice of rejection was mailed to the licensee. Orders Effective Without a Hearing 1. 119. (1) Failure to provide an opportunity for a hearing following the suspension violates due process. A hearing must be held following suspension. and give the appellant a right to hearing on appeal. No. 119. Orders revoking a license where an agency is required by statute to revoke a license pursuant to a judgment of a court. provides: a. C. State Med.(2) No hearing is required for the following boards if the applicant failed a licensing examination: (a) (b) (c) (d) (e) Medical board.062. c. 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. The agency must provide a hearing unless a hearing was held prior to the denial. R. R. R.C. 9. Chiropractic board. This is often called a “summary suspension. 6 . and athletic trainers board. 2. Certain orders canceling or suspending a driver’s license. 119. Board of examiners of architects. Ohio occupational therapy. or to the board of tax appeals.06(C).C.06(B).” a. Suspensions Without A Prior Hearing (“Summary Suspensions”) 1. 2006Ohio-2171. R. Doriott v. 4. 5.

The U. Rather. Ct. Doriott v. the Wadsworth Municipal Court found that the state did not 7 . b.07.S. of Ohio. at *7.(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. Three-Step Analysis (Mackey) (1) Nature and importance of the private interest affected by the official state action. 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. No. if the Mackey test is met. No.S. Notice of suspension must state: (1) Reasons for the agency’s action. 119. Montrym (1979). 1. 10th Dist. b. (3) Fiscal or administrative burden that additional or substitute procedures would require. (2) Risk of erroneous deprivation of the private interest through the procedures used. 71 Ohio Misc. (2) Copy of the notice must be mailed to the attorney or other representative of record. 2d 3. 119. and (3) Opportunity for hearing if requested within thirty days of the mailing of the notice. Supreme Court has ruled that summary suspensions are generally constitutionally permitted to protect the public. Ohio Bureau of Motor Vehicles (1990). 17. 1995). of Motor Vehicles (Wadsworth Mun. 51 Ohio St. 443 U. to require the board to provide notice of opportunity for hearing subsequent to the suspension. (2) Law or rule directly involved. Due process concerns a. CA-2885. State Med. Notice requirements for pre-hearing suspensions pursuant to R. Bd. in which the court found that strict adherence to the judicial model of due process was not mandated for administrative hearings. LEXIS 556.07. Service of the Notice (1) Notice must be sent to the party by registered mail. Mackey v.C. (Massachusetts DUI case). 1992 Ohio App. Ohio State Racing Comm. 3d 46. then the due process rights of the individual are not violated. 3. not later than the business day next succeeding such order. 2006-Ohio-2171. The Ohio Supreme Court adopted the Mackey test in Doyle v. 05AP-1079. Ohio Bur.C. at ¶ 12. 4. a. in Meadows v.. 5th Dist. 5. (1) Wagers v. return receipt requested. 52. (2) However. c.

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

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

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

Nos. E.R. of Edn. Tripodi v. 3d 332. 339.3d 361. 1. a. State Med. 96 Ohio App.L. 1994). b. 67 Ohio App. 119. R. 119.” R. (7th Dist. To attorney by regular mail: “A copy of the notice shall be mailed to attorneys or other representatives of record representing the party. Annotations 1. 10th Dist. ¶ 35 (1) No requirement that the notice to counsel be sent by registered /certified mail. 1990).L. 3d 287.. Angerman v.07.P.062. (3) Driver’s license: In a case involving revocation or suspension of a driver’s license. 47 A. return receipt requested.C. 21 Ohio App. and thereafter a signed receipt is returned to the sender. a rebuttable presumption of delivery to the addressee is established. No. 10AP-419.07. When an item is sent by certified mail. Necessity of notice and hearing before revocation or suspension of motor vehicle driver’s license. (1) Note: registered mail and certified mail are interchangeable. Ohio State Med. return receipt requested. Gilbo (2nd Dist.(2) A board’s issuance of a summary suspension one year after it had knowledge of the licensee’s practice violations was unconstitutional. Sufficiency of notice or hearing required prior to termination of welfare benefits. Bd. Ohio State Bd. Kellough v.02(G).L.R. 2. State v. 290.C. 60 A. Service of Notice 1. 3. Liquor Control Comm. 11 . registered mail is not required.R. 2011-Ohio-431. 2d 110.C. Amon v. 119. (2) Service at a place of business. 1989). Franklin C. 10 A. R.C. 89CV-01-64 and 88CV12-8615 (July 3. R. Bd. (10th Dist. (2) No requirement that the agency search anything other than its own files to find out if the party is represented by counsel. Initial service of notice a. Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine.. To party by certified mail: Notice of opportunity for hearing must be sent to the party by registered mail.5th 1. D. 1970).3d 277. 111-12.

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

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

LEXIS 9961. Method of Requesting a Hearing 1. 1. 1. The time computations set forth in R. Reserving right to hearing shows intent to request. Chapter 119.C. Computing Time Pursuant to R.07 begins to run on the date the agency or board mails the notice by certified mail. 54292. No. 78AP860. a. is it clear which alleged facts violate each statute or rule stated in the notice? H. Chapter 119 does not specifically provide that a request for hearing must be in writing. 1. R. 1979 Ohio App. 103 Ohio App. Licensee sent a letter proposing an informal settlement. 3d 317. 2.14 apply to proceedings conducted pursuant to R. 1995). 119. which letter also stated that licensee was not waiving his right to a hearing. Bd. 1987 Ohio App. at *9. LEXIS 11662. showing intent to request hearing. No. at *9 (telephone request to assistant attorney general insufficient.C. B. Chapter 119. In writing a. Agency erred by failing to timely set a hearing date and time as mandated by R. Harrison v. a. The court found this was sufficient notification because licensee had expressly reserved the right to adjudication. Does the notice indicate the method of service to be utilized? 10.C.C.C. HEARING REQUESTS A. when the last day falls on Sunday or a legal holiday. v. Bd.” IV. (10th Dist. 318. 10th Dist. A party must request a hearing within thirty days of the date of mailing the notice. Standard Oil Co. 1.. R. 119.C. Ohio State Med.9. The thirty days provided by R.14. except that.07) 1. where attorney advised the licensee that request must be made in writing to the board). 14 . the act may be done on the next succeeding day that is not Sunday or a legal holiday”.C. Williams. 8th Dist.14 states that when a public office is closed to the public and it is the last day to do a required act. But see Alcover v. “the act may be performed on the next succeeding day that is not a Sunday or a legal holiday. 1.14. If multiple violations. Timing of Request (R. Ohio State Med.C. 2. 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.

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

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

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

Ohio Board of Nursing. The courts have held that because the Civil Rules are not applicable to administrative hearings. . 2.C. 2003-Ohio-7007.. of Pharmacy. 15 Ohio St.c. including discovery rules. Finally. ¶ 40. 119.01 to 119. the agency . Dept. The agency's own law and rules may provide protection to certain records. Bd. No. 2002-Ohio-606 at * 10. of Psychology. at *9.. Gipe v. 2001 Ohio App. of Ed. S-32-92. R. LEXIS 3290. Ohio State Bd. 4. 9. Salem City Sch. b. Leake v. a. Chapter 119 provides for depositions in lieu of hearing.C. ¶ 43. an administrative agency may allow testimony by deposition for witnesses who will not be available at the time of the hearing. Depositions 1.C.09: “For the purpose of conducting any adjudication hearing required by sections 119. at *10. discovery rules do not apply. para. No. 10th Dist. . Dist. a. are not applicable to the administrative hearing procedure. 2012-Ohio-1002. See Moffett v.C. ¶ 24 and 32.09.” R. 11-CA-9. . 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 . OBTAINING EVIDENCE AND SECURING WITNESSES FOR HEARING A. No. LEXIS 305. The Ohio Rules of Civil Procedure. . 1(A) limits the Civil Rules to “all courts of this state in the exercise of civil jurisdiction at law or in equity . The taking of the deposition shall be in the same manner as is prescribed by law for the taking of depositions in civil actions. 3. the deposition may be used at 18 . R. 2 (emphasis added). 7th Dist. Froug v. VI.” White Consolidated Industries v. 02AP-1315. 1993 Ohio App. . 3d 7. 7th Dist. Casey v. of Human Serv. State Med. 5th Dist. R. Ohio State Bd. Mahoning Cty. No. No. Chapter 119 Does Not Provide for Discovery Under Civil or Criminal Rules of Procedure 1. Bd. . . 6th Dist. 2003-Ohio-4061. B. According to R. 10th Dist. Chapter 119. For the purpose of conducting an adjudication hearing. Similar to the civil rules.13 of the Revised Code. 00 CA 264.” b. of Ohio. the Criminal Rules of Procedure do not apply to proceedings conducted pursuant to R. Nichols (1984). No. Wayne S. Civ. “The formulation of procedural rules of administrative agencies is basically left to the discretion of the agencies. 119. Miller v. . Agency law or rules may set guidelines for consideration of motions for continuance of hearing. The agency’s own law and rules may provide for a discovery-like exchange of information. 00AP-523.C. 2003 CO 7.

00AP-523. a. Ohio State Bd. R.C. b. Burneson v.09 does not provide for prehearing discovery depositions by a party to an adjudication hearing. 119. Frantz (1990). R. however. 2. The mandatory language in R. Subpoenas for Purposes of a Hearing 1.hearing against a party who was present or represented at the taking of the deposition. The agency violates R. For the purpose of conducting an adjudication hearing. Id. R. See Froug v. Murray (1993). Poppe (12th Dist.09 by not issuing a subpoena when requested by the respondent. 119.C. of Pharmacy v. (2) The court further indicated that Froug could have requested a continuance if more time was necessary to review the records. Ohio State Racing Comm. The subpoena shall be directed to the sheriff of the county where the witness resides or is found. of Ohio v. 80 Ohio App. Parties cannot obtain prehearing discovery depositions regardless of whether the depositions are described as “depositions” or “prehearing discovery depositions. Method of delivery 19 . at *9-12. Id. No. 10th Dist. 48 Ohio App. b. 10th Dist. issue a subpoena for any witness or subpoena duces tecum to compel the production of records. 3d 143. 1992).. 2.09 is satisfied when the agency subpoenas records to be delivered at the commencement of the hearing. Ohio State Bd. b. Bd. 1988). 119. Chapter 119 provides that a party may request the issuance of a subpoena duces tecum for the purpose of conducting a hearing. 66 Ohio St. 08AP-794. (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. Chapter 119 does not provide for discovery depositions. 28-29. In re Heath (10th Dist. the agency may. C.” State Med. Ohio Board of Nursing. 145. No. 535. 611-12. at ¶ 24. of Pharmacy v. 2009-Ohio-1103. and upon request of any party shall. Proper service and fees a.C.09 pertains to securing the attendance of witnesses and the production of records and documents for the purpose of conducting an adjudication hearing. LEXIS 305. Because R.C. 3d 222. 119. 119. 3d 605. a. reversal of the agency’s final order is not necessary where the respondent fails to show prejudice. 3d 527.C.C. R.09 (emphasis added). 51 Ohio St. and served and returned in the same manner as a subpoena in a criminal case is served and returned.C. 2001 Ohio App. at *11.

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

and may not resort to other forms of punishment. 2317. 8 Ohio St. 1998 Ohio App. (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. 18658. 1981). 220.21. 1998 Ohio App. him to show cause why such writ should not issue against him" if the witness was served with the subpoena in some other fashion. the court shall compel obedience by attachment proceedings for contempt. (3) Requirement to Enforce if Requested. (c) The writ will only issue for disobedience of a subpoena “personally served” on the witness. Contempt proceedings. 2317. LEXIS 2020. 3d 26. (2) Attachment proceedings for contempt are set forth in R. (4) An agency is limited to the statutory attachment procedures to sanction contempt of its subpoenas. Remlinger (1983). Failure to obey subpoena/sanctions a. subject only to proper privilege assertion by the witness.C. (1) Upon failure to comply: (a) Agency must file an application to enforce the subpoena if requested. 21 . at *13. v. R. 3 Ohio App. 2317. Western Reserve Psychiatric Habilitation Center (9th Dist. Carratola. (c) If the matter is one in which the witness may be subject to lawful questioning.C. 9th Dist. (a) This statute is inapplicable if proper fees are not paid to the witness. 27. (a) The agency is required to seek enforcement if asked by the party who requested the subpoena. 119. Ohio State Dental Bd. such as limiting testimony of other witnesses. No. may order. But the court "by a rule.C.09. 3d 218. Green v. at *13. (b) Although the agency is required to seek enforcement of subpoena. (d) Court shall compel compliance as in cases of disobedience of court subpoena. failure to do so does not require reversal of the agency’s decision unless the appellant shows prejudice resulting from the failure.” R. R. (c) A court of common pleas has a mandatory duty to compel attendance by attachment proceedings when a witness refuses to testify in an administrative hearing. Ohio Motor Vehicle Dealers Bd. Carratola v. LEXIS 2020.21.. (b) The application is filed in the court of common pleas where the disobedience occurred.21.C.4.

173. 1707.29). 00MS000041 (July 24. Investigative Subpoenas 1. Motions to Quash not authorized by R. Dept. (E.C. R. do not have specific statutory procedures for enforcement of investigative subpoenas. Franklin C. v. 1993). 4723.P.b. Polen. 2000). R. for general principle of implied power to perform duty. R.29). b.C. 173. Bd. R.C. Some agencies have statutory authority to issue investigative subpoenas. No. In re Investigation of Laplow (9th Dist.C. See discussion re: Health Insurance Portability and Accountability Act (“HIPAA”). Div. See State ex rel. Board of Nursing. Implied power. (1) Absent specific statutory authority or a pending case or appeal.24. 2. D. Hunt v. 307. Investigatory subpoenas are those to compel testimony or the production of records. 4731.20(H).. Chapter 119 does not provide statutory authority for a motion to quash. (2) Thus...C.C.g.C. 1707. 4734. 4. Bd. 22 . 1996). 1. it is reasonable to argue that the sanctions permitted by Civ. 3. below.48(A)(2). In re Investigation of Laplow (10th Dist. 96 Ohio App.. 4723. 87 Ohio App. R. 93 Ohio St. Dept.C. paragraph 4 of the syllabus. R. 45(E) may be granted. Specified authority (1) Some agencies have specific statutory procedures for enforcement of these subpoenas. Other agencies. The Medical Board’s statutory authority to subpoena patient records is not dependent upon patient consent.C. Chapter 119. State Med. R.22(F)(3). 108 Ohio App. Board of Nursing. R. Medical Bd.g. 61. for purposes of investigation. 1994). prior to hearing... However. Hildebrant (1915). D. b. R.24. Enforcement a. 390-91.g. of Securities.20(H). Chiropractic Bd. of Securities. the court of common pleas has no jurisdiction to entertain a motion to quash an administrative subpoena. 3d 386.C.C. (2) If the statute grants enforcement according to the Civil Rules. 3d 305.C. Chiropractic Board. R. In re David E. (10th Dist. 3d 59. Ombudsman. Ombudsman. Medical records a.22(F)(3). of Aging. the only avenue available to a witness is to defend an action to compel. Thompson. of Aging. because R. Div. 4731. there is an implied power to enforce them through the court. since the legislature has empowered them to issue subpoenas. (e. State Med. e.

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

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

State ex rel. the confidential law enforcement investigatory record exemption remains applicable until all proceedings are complete. There are also general state statutes. Beacon Journal v. Steckman v. Leis. See State ex rel.proceeding than in the context of a civil or administrative proceeding. 3304.21 (Client records of rehabilitation services). 3d 25. v. 1997-Ohio-273. R. Leonard v. for example the Trade Secrets Act. R. 6th Dist. of Human Serv. Mayfield (1990). 145. R. 3d 440. (a) Many state administrative clients have statutes making specific information confidential. (1) Agency confidentiality provisions.22 (STRS and SERS member information). Polovishack v. 70 Ohio St. 72 Ohio St. So long as the statute can be read to prohibit general release. 3d 51.g. White. not related to any one specific agency. 1996-Ohio-204.22 (Long term care ombudsman investigative files). R. Records the release of which is prohibited by state or federal law. One particularly noteworthy exemption premised on federal law is the exemption of social security numbers. Local 10 v.43(A)(1)(v). Cuyahoga County Dept. the statute likely qualifies as an exemption under this statute. (4) Once applicable. WLWT-TV5 v. 173. Toledo Police Patrolman’s Assn. No. 1333. 2000-Ohio-214. See. (3) Federally protected information.C. R. 5153. Ohio Patrolmen’s Benevolent Assn. 50 Ohio St. City of Akron (1994). 54 Ohio St. (b) The legislative language used to create confidentiality may be phrased in different ways. 75 Ohio St. State ex rel. R. The following are a few examples: R. State ex rel.C. Yant v. 89 Ohio St.20 and 3309.C. State ex rel.17 (Director of Commerce Investigations).C. Be sure to check the agency’s own statutes. L-99-1143. 2151. Mentor. Jackson (1994). f.C. 3d 357. State ex rel. that create confidentiality. discusses the applicability of this exception to administrative investigation files. 1996-Ohio234. (2) General confidentiality provisions. based on a federal privacy interest. (2) The following line of cases illustrates the volatility of this area of the law. (a) Social Security Numbers. 3d 185.65. (b) Student Education Records. 1995-Ohio-19. 360. 3d 420. State ex rel. 70 Ohio St. (5) State ex rel. LEXIS 875. Lashutka. 3d 681. e. Conrad. 27 (child abuse investigation reports). Police Officers for Equal Rights v. 149. (1990). This is far from an exhaustive list.C. 74 Ohio St.C. 3307. 77 Ohio St.C. 612. Toledo.421 (Child abuse and neglect investigation records). State ex rel. Renfro v. 2000 Ohio App. 3d 605. 3d 516.27 (PERS member information). R. The Family Education Rights and Privacy Act 25 .

2012Ohio-2730. in most instances. the agency shall make copies available at cost and within reasonable time. Protected Information regarding privileged information. b.C.3d 416.52(A)(1). 20 U. R. A pending administrative proceeding involving a conviction or intervention in lieu of conviction may be affected. remember. do not generally act to exempt records in the hands of a state agency.32(A)(1). records made confidential in the hands of an agency of the federal government are usually not exempt when in the hands of the state agency.S. Exemptions under the Federal Freedom of Information Act. The Supreme Court of Ohio in State v. 2953. protects the release of educational records without written consent of the student or the student’s parents.C. a. (4) Privileged information (a) See discussion below. Access to court record sealed or expunged under R. R.C. but must provide the requestor with an opportunity to revise the request.S.C. all responsive records must be promptly prepared and available for inspection at all reasonable times during regular business hours. the agency must provide a redacted copy. R. 2953. 2953.C.C. or to impose a waiting period before the record is sealed pursuant to R.52(A)(1). (c) When determining whether a federal exemption applies. unless the state agency is acting for the federal agency in some substantial respect. Section F.43 provides: (1) Upon request.(“FERPA”). 26 . 3. 149.C.43(B)(2). 149.C. 132 Ohio St. the agency may deny the request. the trial court has discretion either to grant the motion immediately under R. Mechanics of making and responding to a public records request. but the Public Records Act does not require that the request be put in writing. Consult FERPA for requirements and exceptions.43(B)(1).C. 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. 5 U. R. (3) If the requestor makes an overly broad or an ambiguous request. (2) Upon request.041(E). (a) Redaction must be plainly visible. § 552. Niesen-Pennycuff. 149. g. 149.43(B)(1). 2951.C. (4) If information within a public record is exempt. § 1232g(b)(1).

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

Id. 1979). 3d 171.43 to obtain copies of the records. [and] the contributing influences” of an administrative decision. above. (2) The judiciary is barred from probing into “the methods by which a decision is reached . What is protected? (1) Protects advice.512(f): Disclosure for Law Enforcement Purposes.Y. exemptions/exceptions. Confidential records: See Public Records Act Section E(2). at 28 . 478 F. recommendations. 3. Pennington v. (2) The reasons for this are that: (a) the actors are the same. and in most cases requires the consent of the patient for release. F.(iii) The requesting party filed a mandamus action pursuant to R. Protected Information 1.D. 45 CFR § 164. Relation between the executive privilege and the deliberative process privilege. Note: regulations state specific parameters and conditions for application of each type of exception. (iv) The party received the requested public records only after the mandamus action was filed. Gundler (1996). 149. . In re Franklin Natl. (1) The general deliberative process privilege is routinely grouped and usually interchangeable with the executive privilege. Deliberative process privilege/executive privilege. 75 Ohio St. Protects the privacy of Protected Health Information (“PHI”). opinions. (b) the rationale for the privileges are similar. 45 CFR § 164. State ex rel.512(e): Disclosures for Judicial and Administrative Proceedings.512(a): Disclosures Required by Law. b. 2. . (c) both of the privileges are limited in application. 577. and other communicative means used by a government decision-maker in the process of reaching a decision. Health Insurance Portability and Accountability Act (“HIPAA”). a. Bank Securities Litigation (E. Exceptions that may permit agencies to subpoena PHI without patient consent: (1) (2) (3) (4) 45 CFR § 164. Supp. a. 45 CFR § 164.C.512(d): Disclosures for Health Oversight Activities. 174.N. 582. b.

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

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

employee. 3d 380 at 385. Post (1987). copied to the retained attorney. if the communication was not intended to be confidential.” (4) Applies to attorney only. (4) To the extent that narrative portions of attorney-fee statements are descriptions of legal services performed by counsel for a client. The statute’s language prohibits testimony by an attorney.. Also. McDermott. below. v. voluntary disclosure of privileged communications can result in the loss of privilege for all other communications that deal with the same subject matter.3d 10. privilege was waived when witness discussed his statements to polygraph examiner with third party who was not agent of attorney. 3d 570. 2011Ohio-6009. The statutory privilege does not define “attorney” as including an agent. 131 Ohio St. a partial. it is not privileged and must be produced. Dawson v. Common law privilege (1) The common law attorney-client privilege applies to communications between a client and an agent of the attorney. 32 Ohio St. 305. is a preliminary communication with that attorney about the case). Bloom-Carroll Local School Dist. leaving documents in a place where third parties have access to them and no measures are taken to maintain confidentiality. State v. whereas the common-law privilege could be viewed more broadly.C. State ex rel.) (2) Not necessarily limited to precluding attorney’s testimony. ¶30 (Insurance company stands in the shoes of its insured and the insurance company’s letter. 316. See Treatises. and leaving privileged documents in a public hallway.3d 10. 131 Ohio St. Cochrane (1951). 573-74. c. State v. The privilege can be waived unintentionally by conduct which implies a waiver. ¶ 28. they are protected by the attorneyclient privilege. 2011-Ohio-6009. 155 Ohio St. careless or inadequate document screening procedures. 3d 380. 72 Ohio St. not agents. employee. (b) Practical Note. 1995-Ohio-80.021 defines “client” in the privilege statute to include the client’s “agent. however. Dawson v. 32 Ohio St. 385 (defendant's discussion with polygraph examiner hired by attorney for defendant was privileged. State ex rel. State v. Travelers Indemnity Co. or representative of the attorney.(3) Definition of client. keeping privileged documents in files that are routinely reviewed by third parties. (3) Communications must be made in confidence and not in the presence of strangers. R. 31 . 2317. or other representative. Post. Last. (5) Waiver (a) The common-law privilege is destroyed by voluntary disclosure to others of the content of the statement. Such conduct might include not screening files released in a discovery production of records. Bloom-Carroll. because no intention of confidentiality exists.

Labor Relations Bd. v. Sections 824-847. 421 U.” and are not subject to the Open Meetings Act. 81 Ohio St. 61. 3d 364.5. 3d 729. Roebuck & Co. Paul R. Id. THE CONDUCT OF HEARINGS A.A. 1988). Taft. 109 Ohio St. Liquor Control Comm. at 383-384. R. Open to the public a. 87-91. The Ohio Supreme Court has recognized the common law tenets of the deliberative process privilege.C. 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. Treatises a.E. and (2) it must be deliberative. b. at P.01(E). 1997). all administrative hearings are open to the public. (1975). See State ex rel.D. 3d 346. 61. Evidence and Witnesses. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. 3d 8. 119. The privilege allows the government to withhold documents and other materials that would reveal advisory opinions. 121 F. 10th Dist.S. 2006Ohio-1825. and therefore should be held in “executive session”).383-385. v. citing Natl. 1983). Jena (D. Bd. Id. quoting In re Sealed Case (C. 32 . (10th Dist. Jones v.R. c. State Med. 3d 58. Hamilton County Bd.D. Angerman v.C. Nature of Proceeding 1. TBC Westlake. 52 Ohio App. 2001-Ohio-8766. 81 Ohio St. Unless an agency has a specific law to the contrary. 1990). 1998-Ohio-445 (“sunshine law” does not apply to adjudication proceedings at the Board of Tax Appeals because its adjudication is quasi-judicial. Carl Zeiss. of Revision. 70 Ohio App.D. 40 F. Rice (1993). b. 132 at 151. quoting Carl Zeiss Stiftung v. Standard to be met in order to establish the privilege and the reason for the privilege: (1) the material must be pre-decisional. Evidence (4th Ed. No. 737. b. See also. 1966). Inc. quasi-judicial hearings are not “meetings. 318. 11-12.. Deliberative Process Privilege a. 01AP-344. 6. Sears. 8 Wigmore. Attorney-Client Privilege in the United States. 3d 58. of Revision.C. 44 Ohio Jurisprudence 3d. but deliberations need not be in open meeting). TBC Westlake. VII. Hamilton County Bd. v. at 383. 324. V. 1998-Ohio-445. c. However. Inc.B. 352 (hearing public pursuant to Chapter 119. Dann v. In re Petition for Annexation (10th Dist.

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

35

See Pang v. The standard of “clear and convincing” evidence has been rejected as inappropriate. Weinstein (Hamilton C. See Clermont Co.” R. 24. Fleckner (1950).C. See discussion. this will be the agency. 1987). 83 Ohio St. E. of Motor Vehicles (Franklin C. 55 Ohio Misc. Minch (1990). Standards for Consideration of Evidence 1. 197. 2d 89. (10th Dist. if contested. b. and may therefore present such evidence first. Typically. 1972). No. 33 Ohio Misc. 27. Ohio Liquor Control Comm. Fleckner (1950). Liquor Control Comm. b. 13.C.09 does not incorporate the Ohio Rules of Evidence. On appeal of an agency’s order. probative and substantial evidence a. Abs. EBR 132761 (June 10. 1993). of Pharmacy v. Note – An agency’s enabling act may specify which party maintains the burden of production with respect to specific issues. 2d 25. b. 59 Ohio L. but the Supreme Court of Ohio has held that the standard for administrative cases is a preponderance of the evidence. the applicant may have the burden to produce evidence of qualification for licensure. R. Sanders v. for definitions of reliable. Buckeye Bar. Standard of Proof Required 1. See also. 81. para. 135.C. Inc. probative and substantial evidence. Chiero v. of Rev. Statutes or rules 36 . D. 119. 59 Ohio L. c.. 3d 79. VFW Post 8586 v. Ohio Environmental Bd. 135.12. 32 Ohio App. but R. Schregardus. Preponderance of evidence means that agency has burden to show that it is more likely than not that the events charged occurred. Sanders v. a court may reverse the agency’s order if it finds that the order was not supported by “reliable. below.P. Reliable. c.09 states agencies “shall pass on the admissibility of evidence” presented at the hearing. Abs. Section IX APPEALS. all agency orders should be based upon reliable. 2. Accordingly. 53 Ohio St.P. v.C.a. Chapter 119 does not explicitly define the burden of proof required. Ohio State Bd. 1977). 91. probative and substantial evidence. Auditor v. 22. The party attempting to establish that the averments in the notice of hearing are correct has the burden of going forward with the evidence. EBR 132753. probative and substantial evidence. R. c. 119. Preponderance of the evidence standard a. d. 119. so the agency will usually present its case-in-chief first. Bur. 3d 186. In application cases. 1998-Ohio-181.

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

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

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

09. If evidence is offered but not admitted.C.” In re Application of Milton Hardware Co. 6.09. (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.C. the party shall make proffer of the evidence. Objections a. and the proffer shall be made a part of the hearing record. Methods of making a proffer (1) The proffering attorney or party. describes the proposed testimony or document(s). that the board/agency be consistent and follow the same procedure in each hearing. A party may object to evidence offered at a hearing.the admission of such be made part of the record. para. however. 40 . d. Opposing counsel can make any appropriate objections during the offer of proof.C. examiner rules on objections. Chapter 119 statutory guidance regarding which individual within an agency or board should make rulings on objections. 119. R. It is important. the board may choose to have the board president or other designee rule on objections or have the board members vote on objections. 19 Ohio App.C. 1969). 2d 157. (10th Dist. (2) The proffering attorney or party examines witness(s) concerning matters deemed objectionable by the hearing officer. (a) There is no R. b. 3. 119. From the reviewing court's perspective. c. the authorities are less clear. agencies are free to designate an individual(s) to perform this function. Who rules on objections? (1) In case before a hearing examiner. 119. R. 6. Proffer of evidence a. Reasons for making a proffer: It will create a record to ensure that the reviewing court will know the nature of the excluded evidence.09. para. paragraph two of the syllabus. In situations where a hearing is held before a full board. 4. b. The proffer may also convince the hearing examiner to change his/her mind as to the evidentiary value of the evidence. in narrative fashion. a proffer is necessary so the court can determine if the evidentiary exclusion was proper or if said exclusion constitutes reversible error. (2) In case before entire board.

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

119. 61 Ohio App. (3rd Dist. The hearing examiner should rule on a motion to admit evidence after entertaining any objections to the introduction of evidence. Who can administer oaths: Chapter 119 grants the agency or anyone delegated to conduct the hearing with the power to administer oaths. 4.C. 2. para. giving opposing counsel opportunity to voice objections. he/she should so move. 119. Exhibits also may be admitted at the close of case-in-chief at which time the opposing party may object. Bd. If the party does not object. (3) The failure to swear a witness is a waiveable error. 3. the Agency’s decision will not be reversed. at 19. 3d 79. b.C. 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. and substantial evidence. 1978). 8. Cleveland (8th Dist. Character Witnesses (1) In discussing the character or business reputation of a licensee.such decision could not be justified by reliable. Documentary Evidence. (2) An agency’s refusal to accept testimony of more than two character witnesses is not an abuse of discretion. Ohio Veterinary Med. 5. Under the Ohio Rules of Evidence. which may be used as a guide. The agency may call a party to testify under oath as upon cross-examination. Evid. R. Exhibits should be marked. Hearing officer and opposing counsel should be given a copy. 18-19. Cross Examination a. 611. the licensee may call witnesses who will vouch for his/her/its character. 69 Ohio App. 87. para.09. and to speak audibly and clearly for the reporter. 2d 14.09. 2. 7. 3. R. b. J. cross-examination may concern any relevant area of inquiry even if beyond the scope of direct. 6. probative. Direct examination a. Practical Considerations 1. 1990). b. Zurow v. If a party desires to introduce marked exhibits into the record. Id. Kaufman v. Marked exhibits should be shown to opposing counsel. R. 42 .

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

No. 1992 Ohio App. Limbach (1994). (1) Although the agency itself may not determine whether a statute has been applied in a manner that is unconstitutional. at 231. of Edn. Ackerman (1st Dist.C. syllabus. 68 Ohio St. S.12. 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. 1981). 3d 591. Withdrawal by respondent (1) Although respondent has the right to withdraw from his or her own hearing. 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. State ex rel. (1992). v. 3d 184. 595-96. Skalsky v. v. of Commrs. b. R. 548. Hairston. Bowers (1960). v. LEXIS 4883. L. 10th Dist. Hanson. 130. 1 Ohio App. (2) In at least one case. 197-99. 35 Ohio St. 65 Ohio St. administrative agencies themselves are without jurisdiction to rule on the constitutionality of a statute. The prudent 44 . Herrick v. 406-07. Party should raise “as applied” constitutional challenges at hearing. a.S. No. v. 3d 545. Guernsey Cty. Bd. 119. Agency may not rule on the constitutionality of a statute. b. 11. 1991 Ohio App. 405. or whether the allegation is that the statute is unconstitutional as applied. MCI Telecommunications Corp. (6th Dist. Addressing Constitutional Issues 1. the Tenth District held that such challenges could be raised for the first time on appeal as long as the necessary evidence is admitted in the record. Bd. 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. at *24-25. 3d 10. 24 Ohio St. 65 Ohio St. of South-Western City Schools v. at *5. See In the Matter of: Hal Artz Lincoln-Mercury.C.. 91AP-1493. 44 Ohio St. 170 Ohio St. Kinney (1986). (3) In reviewing the complaint. This is true whether the challenge is a facial challenge to the statute. 131 Ohio App. 2d 128. Zieverink v.95 (quoting State ex rel. As creatures of statute. and the expert commentary of the agency on the issue. See Cleveland Gear Co. 7th Dist. 3d 195. Ford Motor Co. Inc. Issues involving challenges to the validity of statute or its application. 3d 545. See also. Kosydar (1975). VFW Post 1238 Bellevue v. 90-B-20. Limbach (1988). 3d 229. Hanson v. 1998). LEXIS 4932.06. however. Ohio Liquor Control Comm. Such determinations are reserved to the courts alone. 548)). the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the non-moving party. Section 119. Kresge Co.

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

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

such interlocutory appeals would render meaningless the requirement that the hearing examiner issue findings of fact and conclusions of law. as no final R&R is issued. v. 49 Ohio App. or other division of any political subdivision of the state may be reviewed by the court of common pleas . tribunal. Whitman (1978). in part: Every final order.11 Acres in Northampton Township (9th Dist. 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. ordinance. Generally. 2506. 19 (the decision to consider a petition for annexation of land is not appealable. General Accident Ins. 1986). Union Camp Corp. 162-63. R. 49 . e.the hearing examiner. For that reason alone.01 provides. While there is little or no case law on this subject.C. but does not include any order. and a final order is not issued until a resolution is passed specifically granting or denying the relief requested in the petition). . g. Section 2506.03. adjudication. It is clear that unless a final determination is made.C. Flair Corp. 3d 350. adjudication. Further. it would follow that there is no ability to appeal the decision of the hearing examiner. or decision of any officer. the interlocutory decisions of an agency would not create the avenue for an appeal to either the agency or the courts. duties. or statute to a higher administrative authority if a right to a hearing on such appeal is provided . 351 (decisions on discovery matters generally not appealable on interlocutory appeal).. and the matter would otherwise be bifurcated. Co. See. commission. The concept of not allowing interlocutory appeals to the agencies are to be supported further by the statutory provisions under R. 2506. Several courts support this view. board. department. adjudication. Brecksville (8th Dist. Arguably. 2505. the better rule to follow is that there is no right of review by the agency until the final report and recommendation is issued. 1976). authority. .C. no agency would ever assign a case to a hearing examiner. or decision from which an appeal is granted by rule. A “final order. (8th Dist. The appeal may include all errors or omissions contained in interlocutory orders. 2d 159. adjudication. The exception might be denial of a request for a hearing de novo. if they were available.02 and 2505. . if the matter cannot survive as a separate interlocutory appeal to the courts. 34 Ohio App.g. paragraph one of the syllabus (recommendation of a planning commission to the city for further action is not a final appealable order). d. e. because it is deemed to be a final order affecting a substantial right. privileges. or decision” means an order. 2d 77. Further. bureau. . an analogy may be found in the administrative appeals provisions of R. which set forth the jurisdiction of the courts to hear appeals. . as these matters would have previously been determined by such interlocutory appeals. et seq. benefits or legal relationships of a person. v.01 (emphasis added). See In re Petition for Annexation of 5. or decision that determines rights. f.01. 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. 3d 18. 1995). See McHenry v. 54 Ohio St. 104 Ohio App. as the final adjudication process would necessarily be longer than if the agency had heard the matter fully itself.

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

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

9. the state may file a response to the respondent’s objections. a. (2) Recommendation is not final until confirmed and approved by the agency. AGENCY ACTION A. (2) Agency may not issue a final order without allowing ten days for objections to be filed. para. c. Chapter 119 is silent on this issue. para. R. 119. 119. (1) Note: R. thus. (10th Dist. 8. 3d 701. c. Objections to Report and Recommendation. 9. Carroll (6th Dist. 54 Ohio App.09. Respondent may file objections to the Report and Recommendation. Objections must be filed within ten days of receipt of the Report and Recommendation. “Party” is defined under R.C. R. 119.09. Ohio Rehabilitation Services Comm. 2d 160 at 171-72 (decision reversed because only one board member reviewed evidence). 9. (2) It has also been argued that although the state may not file objections itself. 119. (1) Copy must be sent by certified mail within 5 days of filing with the agency. not the State. d. Miller v. Service of the Report and Recommendation.C.C.09. 119. para. Hearings Held Before the Agency 52 . Effect of Report and Recommendation (1) The hearing examiner’s Report and Recommendation is submitted to the appropriate agency representatives to be approved.testimony”) (emphasis added) and State v. 1977). b. The agency must consider the objections before approving. 85 Ohio App.01(G) as “the person whose interests are the subject of an adjudication by an agency. (2) Serve upon the party or the party’s attorney or representative of record.C. 1993). modifying. 714. or disapproving the recommendation of the examiner. it is argued that only the respondent.09 provides that “the party” may file objections.C. (1) Extension to file objections may be granted by the agency. VIII. may file objections to the hearing examiner’s report. modified or disapproved. R.

E. Pub. an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute.C.091.09 permits. 246-47. the agency may order the taking of additional testimony. Taking of Additional Evidence 1. R. Id.g. 567. OAC 4723-16-12 (Nursing Board). 614 N. 83 Ohio App. Remand to Hearing Examiner 1. 119. Personal Appearances Before the Agency 1. 53 . 9. 3d 235. Green v. Accordingly. 2.C. B. Agencies sometimes remand cases to the hearing examiner for the taking of additional evidence. Util. 72. Some agencies permit parties to personally appear before the agency prior to the agency’s deliberations. 82 Ohio St. OAC 4731-31-15(G) (Medical Board). In such cases. 666 N. 119. Retirement Bd. 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.. or the introduction of further documentary evidence.C. Wise v. no report and recommendation is needed.. 9. e. 1992) 2. (1) Generally. but does not require. para. Mallory v. 70. depending on agency rules. 2. 3d 208.09. D. Washington v. 211-212. 1998-Ohio-380. and the agency can issue an order following deliberations on the case. 119. 3. (1918). State ex rel. para. agencies to appoint a hearing examiner to conduct the hearing. C.1. 106 Ohio App. R. Jonathan R. paragraph two of the syllabus. R.2d 833 (10th Dist. Implied remand a.. 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. See. See also. Comm.09. The party may appear on his or her own or through counsel. 99 Ohio St. R. Public Emp. Failure to Hold Hearing Prior to Expiration of License/Surrender of License 1. Prior to issuance of a final order. some agencies conduct hearings without a hearing examiner. 1995). E. 3d 218.E. 3d 562. Ohio Motor Vehicle Dealers Board. Western Reserve Psychiatric Habilitation Center. (9th Dist. Ohio State Racing Commission. 1981) 3 Ohio App. Haehn v.2d 625 (9th Dist. 119. 2. Administrative powers are only implied when clearly necessary to effect an express power.C.

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

. G.g. The Agency may approve. Failure to act promptly on a Report and Recommendation a. e. 4731. 3. 398. including the entire transcript. or objections of the parties. the hearing examiner’s R&R is deemed accepted. R. b. 3rd Dist. (10th Dist. Ohio Veterinary Licensing Bd.. if the agency fails to act within a certain time period from the issuance of the R&R. Best practice is for the agency to review the entire record of the proceedings.C. “[T]he order of the agency. 713-14. 1993).g.C. and to avoid charges that it rubber-stamped the recommendations of the hearing examiner.C.23(D) (board must issue order within 60 days or within any time period agreed upon by the party). Accordingly. Modifying or disapproving the recommendation of the examiner 55 . The Agency is permitted to independently review the evidence. d. See Lies v. Ohio Veterinary Med. Agency Review of the Report and Recommendation of the Hearing Examiner 1.C.3. Vonderwell v. 210 (unclear whether each board member reviewed entire record). Approving the Report and Recommendation a. 2.. 4. modify.55. 1981). if the agency accepts the recommendations of the hearing examiner without any determination to modify the same. e. 119. Bd. transcript of testimony and evidence. See. c.” Miller v. 3d 204.” These may be “magic words” that should be used in all orders that accept the recommendation of a hearing examiner. recommendation. 2000-Ohio-1812 (board did not read entire transcript). 4517. 67 Ohio App.” b. 15-2000-13. 3d 391. and draw its own conclusions from the evidence. based on such report. In re Certificate of Need Application of Providence Hosp. 2 Ohio App.09. to make its own findings. No. 85 Ohio App. (1st Dist. See. Ohio Rehabilitation Services Comm. Under some statutes. and any additional testimony and evidence. and should not be modified upon the issuance of the final agency order. R. 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. Some agencies’ statutes provide time limits for the issuance of orders following a recommendation. 119. R. R. 5.09 provides that no recommendation shall be final “until confirmed and approved by the agency as indicated by the order entered in its record. 3d 701. shall have the same effect as if such hearing had been conducted by the agency. or disapprove the recommendation of the examiner. it should indicate in its order that the R&R is “confirmed and approved. (10th Dist. 1990).

and the reasons why it relied on certain facts as opposed to others. 3d 289. it must include in the record the reasons for such modification or disapproval. 1990). The Agency may only take actions or impose penalties authorized by law. para. No. A reviewing court will need to be able to determine what the agency relied upon. as the ultimate factfinder. In re Certificate of Need Application of Providence Hosp. 3. c. 2. Dist. 2. 1999) at *21-22. In the Brown case. Further. the agency should afford due deference to the findings of the examiner. 02AP-783. 3d 77. If the penalty is to be less than that proposed by the hearing examiner. but did not accept the recommendation. d. Serv. of Emp. of Emp. 32 Ohio St. R. of Edn. 1985). Ohio Bur. Serv. 2003-Ohio-987. Ohio No. (1994). (1994). Franklin Cty. Brown v. Ohio Bur. the agency should give due deference to the recommendations of the hearing examiner. 119. Disciplinary Actions 1. 3d 40). then the exacerbating factors should be stated with particularity.S. LEXIS 22065 (Mar. (10th Dist. 3d at 2. (2) The agency must be careful to avoid the appearance that it was not giving proper deference to the hearing examiner as criticized in Brown.a. (citing Jones v. 3d at 2.09. (1994). Amherst Village Bd. 3d 1. 398. 79. an administrative agency. If the agency modifies or disapproves the recommendation of the examiner. at ¶ 17. Suspensions 56 . S. Id. 67 Ohio App. 10th Dist. Serv. Although the agency has the authority to make de novo findings of fact. it should be able to demonstrate the conclusions it draws from the facts. and further adopted the findings of fact. Serv. and what the agency considered to be facts supported by the record. then the mitigating factors warranting the lesser penalty should be specifically set forth.. the Supreme Court noted that the agency did not indicate that it examined the record. as the agency may be called upon in subsequent hearings to apply the facts in a similar fashion. C-3-96-010. 70 Ohio St. of Emp.09. 70 Ohio St. e. of Edn. City of Springfield. the Supreme Court of Ohio has held that where the findings are based upon assessments of credibility driven by observance of witnesses’ demeanor. Ohio Bur. 52 Ohio St. when considering a report and recommendation under 119. (10th Dist. 29 Ohio App. of Emp. b. Graziano v. See Brown v. 70 Ohio St. Ohio Dept. The agency should be able to both articulate and demonstrate how it is applying the law to the case before it. Ohio Bur. Blinn v. may make de novo findings of fact and conclusions of law. Crow v. 1999 U. This is just as important even if the case is not appealed. Agency modifying the penalty (1) Per Brown v. Ohio courts have indicated that.C. Sheriff (1990). 293. (1987). If the converse is true.D. H. Trout v. 3d 391. 9.

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

119. b. R. para. The agency may incorporate by reference the entire Report and Recommendation.09. set forth the specific grounds of the party’s appeal beyond the statement that the agency’s order is not supported by reliable.C. The party must be served with a certified copy of the order. probative. a. 119. setting forth the order appealed from and stating that the agency’s order is not supported by reliable. Content and Issuance of the Order 1. 10.C. R.C. 3d 47.09. a. 2007Ohio-2877.09. and substantial evidence and is not in accordance with law. 9. 114 Ohio St. The order modifying or disapproving the Report and Recommendation must state the reasons for the modification or disapproval. The Notice of Appeal shall also be filed by the appellant with the [appropriate court of common pleas]. 119. Service of the Order 1. J. 10. The order must include or have attached a statement of the time and method by which an appeal may be perfected. of Commerce. The order approving the Report and Recommendation should state that the recommendation is “confirmed and approved. R. para. at ¶ 14-15. Ohio Dept. Language. probative.” R.C.C. 119. 2007-Ohio-2877. The order must be entered on the agency’s journal. The notice of appeal may. was found sufficient to put a party on notice as to how to file an appeal of an agency’s order. Hughes v. 10. 2.12 of the Ohio Revised Code. 119. 10. 4. but need not. of Commerce. certified as an exact reproduction by the officer responsible for keeping the original. that tracks the language of R. 119. 5. 58 . b. R.12. 9. 119.C.I.09. para. para. 3. 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. para. The following language is recommended for the general statement of time and method: Any party desiring to appeal shall file a Notice of Appeal with the [Agency/ Board/ Commission] [address]. and should attach a copy of the same to its final order. at ¶ 16.09. para. R.09.C. The agency must maintain the original order in its files. Hughes v. Ohio Dept. A certified copy is a duplicate of an original. and substantial evidence and is not in accordance with law.

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

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

889. 2002-Ohio-4407. if no right to appeal exists under state law. Inc. 3-02-04. Willoughby Hills v. Jacobs v. 9. however. 4.D. Mahoning-Youngstown Community Action Partnership v. USDA (S. Civil Rights Comm.12. 3rd Dist. 171. The right to appeal administrative decisions is provided only through statute.(2) The Supreme Court has further held. 1970). The right to appeal must be derived from a constitutional or statutory right. In re Annexation in Mad River Twp. that the doctrine should be applied with flexibility in the administrative context.C. No. b. 2d 67. Ohio State Liquor Control Comm. under the court’s exercise of supplemental jurisdiction. 119. No inherent right to appeal a. 26. 11AP-582 and 11AP-83. 1.12) A..P. when a federal program funded with federal dollars has a regulatory scheme that (1) clearly defines the method of resolving claims as comprising an independent hearing and (2) mandates that the hearing determination is the final administrative determination. 3d 24. Inc. para. G & D. (1990). Ramsdell v. 2011-Ohio394. 160 Ohio St.C. 1997). 2. an appellant cannot appeal a state agency decision in federal district court. 3. IX. 61 . Holmes v. 25 Ohio Misc. (1992). Ohio’s R. 10th Dist. At common law. (Montgomery C. Union Gospel Press (1980). Ohio Dept. Bar’s Sahara. of Edn. 2d 886. . Supp. Likewise. 11. at ¶ 12.P. C.C. Nos. Who May Appeal 1. Troy City Council (Miami C. 2d 187. The right to appeal the action or the determination of an administrative body is neither inherent nor inalienable. For a court of common pleas to have subject matter jurisdiction over an appeal of an agency decision. 3d 24. 27. 39 Ohio St. Party adversely affected a.. or revoking or suspending a license. Zelnick v. the party must strictly comply with the statutory requirements for filing an appeal. Bd of Liquor Control (1953). 85 Ohio Misc. v. Where a right to appeal is provided only through statute. APPEALS (R. 3d 168.S. Ohio 1999). 64 Ohio St. 70.” R. “Any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination. Corn v. . .C. Lexington Supermarket. 84 F. the Ohio legislature must have granted the appellant the right to pursue the appeal. 56 Ohio St. 176. may appeal from the order of the agency. 64 Ohio St. Teledyne (1988). 175. Similarly. 119. or denying the issuance or renewal of a license or registration of a licensee. v. Chapter 119 administrative appeal process may not be used to appeal the hearing determination. § 1367. 188.C. Inc. the right to appeal may be exercised only by those parties who are able to demonstrate a present interest in the subject matter that has been prejudiced by the action of the body from which the appeal is taken. pursuant to 28 U.

paragraph one of the syllabus. a state agency.12 (1) Neither the state. 27 Ohio App.” R.C. 119. of Edn. 385.01(F). Edwards (10th Dist. 119.01(G). Jackson (1976). 21 Ohio App. Blue Cross of Northeast Ohio v. 347. (1990). 13-0215. Clermont Natl. of Edn. B. Relations Bd. State Emp. Akron City School Dist. 134 Ohio St. 510. 346.C. e.. Osborn v. Harrison v. 119. 3rd Dist. Broadview Developmental Ctr. 1984). 2d 41. State ex rel. 1970).C. 46 Ohio St.C. or partnership. 62 Ohio St. No. 62 . (1938). 3d 48. Dept. Public Utilities Comm. of Mental Retardation & Developmental Disabilities v. 46 Ohio St. 119. 2002-Ohio-1318. and has standing.” R. 3d 99. Ohio State Bd. 3d 147.12. Haig v. ”Person” is defined as “a person. 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. Ratchford (10th Dist. d. the State is not a proper party to an appeal pursuant to 119.12. Compare Seneca County Bd. Bank v. v. Other Parties 1.12. 46 Ohio St. 54 Ohio St. Osborn. 2d 91. 3d 113. Unless a statute provides otherwise. Collyer v. association. to appeal an order by the superintendent of banks granting the application. 119. 119. 74 Ohio App. State ex rel. 47. 3d 507. 114. of Admin. 387. (1992). 2d 41.C. 49. No. Chapter 119). In re Job Abolishment of Jenkins (10th Dist. Professionals Guild of Ohio (1989). rev’d on other grounds. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R. 120 Ohio App.C. nor its director was a “party” within the meaning of R. 1111.01(G). Wells Community School. 2002-Ohio-4235. (10th Dist.b. without an independent interest in the matter. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency.C. 150-51. firm. (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. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party.C. under R. Bd. Serv. 119. 47-50. Bd. A bank that receives notice pursuant to R.C. of Mental Retardation & Developmental Disabilities v. Government entities as parties for purposes of R. Siesel. Hamilton Cty. corporation.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. 1963). Parents of Students Attending Edge Academy of Akron & Ida B. v. (2) When the State acts merely as an adjudicator. c. 1991). 01AP-786. 102.01. 10th Dist.

.12. and is not in accordance with law. Ohio State Bd. at *4-5. 4. 05AP-511 (Dec. probative. 10AP-421. 10th Dist.C. No. 3. Community residents had no right to appeal. 189 Ohio App. 2010-Ohio-4731. para. LEXIS 8150. The notice of appeal must set forth the order appealed from and state that the order is not supported by reliable. No. a certificate of plan approval granted to a real estate developer for the construction of a mall complex. 119. b. (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. para. (2) The notice may.. No. Notice of Appeal 1. as they are not parties under R. 2011-Ohio-2485. but need not set forth the specific grounds of the party’s appeal. Ferguson-Ramos. Ohio State Univ. Siegler v. at *6. Franklin C. of Nursing. 10th Dist. State Bd. No. Content of Notice of Appeal a. 1974 Ohio App. Lucas Cty. 119. C. beyond the statement that the agency’s order is not supported by reliable.P. finding that “any requirement to make a written statement of the standard of review in the 63 . R. Statement of grounds/required language (1) The notice of appeal must state that the order is not supported by reliable.C. 76AP-423. R. Pinkney v. at ¶ 6. LEXIS 3041. and substantial evidence and is not in accordance with law. 05CVF066560 (June 15.12. Barnes v. Setting forth the order appealed from: attach OR sufficiently describe.C.” Hunnewell v. Johnson v. para. of Edn. Only the local school board could bring the appeal. (ii) The Seventh District Court of Appeals disagreed.12. 4.12. (1) Attaching a copy of the order satisfies the requirement to set “forth the order appealed. 1976 Ohio App. 10th Dist. and substantial evidence and is not in accordance with law. probative. probative. 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. at ¶ 12. 119.2. See Foreman v. R. No. 2006). and substantial evidence. 2005) at ¶ 10.12. Ohio Dept. pursuant to R. 4. 119. 119. Court of Common Pleas. 74AP-231.C. of Industrial Relations. 3d 678. (2) The party need not attach a copy of the order as long as the appellant sufficiently describes the order appealed from.C. 10th Dist. c. 6.

“[i]n filing a notice of appeal with the agency or court. Deaconess Hosp. R. The notice of appeal need not contain the language specified by R.. Warren County Regional Planning Comm.v. v.E. Under R. 11 MA 39.C. 2012-Ohio1499. 11 MA 39. Ohio Dept.12.C..O. 119. 12-CVF-1835 (Apr. 204. of Commerce. 12 O. the notice of appeal must be filed with the agency and with a court of common pleas.P. Zidian v Dept. Effective May 8. 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.12 governs appeals taken pursuant to R. Chapter 119. 7th Dist.C. 119. of Job and Family Services. and a copy with the court. 2. the General Assembly revised R. 3d 471.” R.2d 1113. 4. But see Welsh Development Co. Form of the Notice of Appeal a. Zidian v Dept. 10 MA 153. Where to File R. Evankovich. of Job & Family Services. probative and substantial evidence and/or is not in accordance with law. Inc.12. 2012. No.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). ¶ 43-44. 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.Ohio-95. 119. 119. 389 N.2d 202. The statute now provides that. 2011-Ohio-3172. 7th Dist. 2011-Ohio-1604 (appeal under R.C. at ¶ 34.12 to remove the requirement to file the original notice of appeal with the agency. of Pharmacy v. probative. No. D. 2505.C.C. Franklin C. the notice that is filed may be either the original notice or a copy of the original notice. No. Lorain Metropolitan Housing Authority (1979).C.notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction.C. Chapter 2505 governs the procedure for administrative appeals. No. 2012). 128 Ohio St. ruled in accordance with the Tenth District Court of Appeals. 119. of Commerce. Which court of common pleas? a. 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. 2. Dudukovich v. 7th Dist. 11AP-259. 1. 10th Dist. 2012-Ohio-1499. Ohio Dept. ¶ 39. para. 2009. State of Ohio Bd.3d 198. 10. County of place of business or county of residence 64 .12 (that “the agency’s order is not supported by reliable. No. 58 Ohio St. Russell v.

para. 119. 12CVF7204 (October 17. para. 2012). 119. R.12. to the Court of Common Pleas of Franklin County.C. Peter Garg v.C. 2.C. Altoff. in the case of an appeal by the Department of Rehabilitation and Correction. Chapter 3737 must be filed in the county in which the building of the aggrieved person is located.C. 4th Dist. Appeals from the fire marshal pursuant to R. the party may file an appeal in Franklin County. 2.C. No.P. 2005-Ohio-1533. at ¶ 12. para. Gallia County was not the county of place of business for purposes of an appeal of an order of the Psychology Board. 07-564 (July 30. 65 .P. BP Exploration & Oil. 2007). R. 10th Dist. 119. (2) The party must choose one. Special designations a. of Psychology. 2006-Ohio-502. of Commerce. The party must choose whether to file a notice of appeal in the county of place of business or the county of residence. v. 1: (1) (2) (3) (4) Liquor Control Commission Medical Board Chiropractic Board Board of Nursing b. Ohio State Fire Marshal. 4. Inc. at ¶ 15. 119.12.C. 04AP-619 and 04AP620. c. Franklin C. Appeals of adjudications that do not deny an application. not the county where the dentist worked one day per week. R. paras. 2.12. (3) County of place of business (a) The county where the dentist worked four days per week. 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. and may not file notices of appeal in both counties. was the county of place of business.12. 1.C. 1. Altoff v. Dept. R. (b) Where the psychologist worked twice per month in Gallia County. 119. 119. Appeals from the following agencies must be filed in the Franklin County Court of Common Pleas. and has no place of business in Ohio.. No.(1) In most cases. R. performing services not regulated by the Psychology Board. b.12. para. If the party is not an Ohio resident. 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. para. 3. 04CA16.12. 1. Franklin County Court of Common Pleas a. 2006-Ohio-502. Duchon v. No. Ohio State Dental Bd. Miami C. revoke or suspend a license may be filed in Franklin County. R. not both. No. State of Ohio Bd.

Morrison v. 3. of Job & Family Services. 21487. Bailey v.12 is a condition precedent to the running of the time for appeal. Evidence a. (10th Dist. State v. at ¶ 13. Ohio Dept. 1987). Ohio Veterinary Med.C. Pursuant to R. 5th Dist. Ohio Dept. 119. Ohio State Med. Ohio Dept. 1993 Ohio App. No. Ohio Liquor Control Comm. Chapter 2505 governs the manner for filing appeals under R. 24. App. 103. 114 Ohio St. Yeager v. Harrison v. Time for Filing the Notice of Appeal 1. 2nd Dist. Ohio Dept. No. E. 2011 CA 0085. one to the agency and the other to the court. No. 02AP-1019.C. Mansfield. 11AP-259. 119. R.P.C. 1993). v. 2002-Ohio-5986. both notices of appeal. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R. 3d at 102.12.c. R. 10th Dist.07) Nibert v.12. ¶ 28 (R.12 deprives the court of jurisdiction over the appeal and mandates dismissal. paragraph one of the syllabus. v.12. 01CA13. The filing of an appeal does not automatically operate to suspend or stay the agency’s order. Ball. No. of Rehabilitation & Correction (1998). Hiddens. a. at ¶ 6. Serv. Bd. A stay of execution of the agency’s order pending appeal is not automatic.. at ¶ 14. Liebold v. The court held that R. 4. 3. 2012-Ohio-95. 84 Ohio St. Dickson v. 84 Ohio St. para. 321. Inc.42(C). Deaconess Hosp. (Franklin C.C. LEXIS 744. 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. 2007-Ohio-2877. Nibert. 189. 2000). 3d 47. of Admin. Geroc v. Ohio Dept. 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. 2. Arndt v. 2505. 2.C. 119. 103 Ohio App. 1995). must be filed within 15 days of the mailing of the agency’s order. Granting of suspension of the order 66 . No. of Ins. 10th Dist. Scott (1955).C. 04AP-748.C. 195. 10th Dist. Williams. para. The actual mailing date of the order is the event that triggers the appeal period. No. 51. Suspension (Stay) of Agency’s Order on Appeal 1.C. 2012-Ohio-2908. Proper service pursuant to R. 114 Ohio Misc. 37 Ohio App. 511. 8th Dist. Hughes v. 2d 48. 3d 317. (8th Dist. 2006-Ohio-3436. 3d 192. 1955 Ohio App. of Commerce. b. 4th Dist. F. 119. 110. 72 Ohio Law Abs. 4. Colonial. 5.. Bd. LEXIS 5647 (Nov. 3d 100. 2007-Ohio-2972. 2003-Ohio-3121.

Ohio State Med. Bd. R. 1994). State Med.12 para. State Medical Board of Ohio.P. 9. Ohio State Med. No. Hoffman v. employees and reputation are all inherent results of the revocation of a medical license” and therefore do not constitute an unusual hardship. v." Hazem S. and welfare of the public.D. Franklin C. Williams v. M. para. Bd. No. A court may grant suspension of an agency’s order if it appears that an unusual hardship to the appellant will result from the execution of the agency's order pending determination of the appeal. No. 5.P. The court found that this would amount to an unusual hardship. “[t]he loss of income. Franklin C. Roy v. (4) Suspension of practice in another state is not an "unusual hardship. 94CVF10-7097 (Nov.P.P. Doctor alleged that the Medical Board may report his suspension to the National Practitioners Data Bank.D.P. of Chiropractic Examiners.. Unusual Hardship required. Dolce v. 119. Franklin C. 1997). safety. M. O. property. Garada. M. Franklin C. Essig v. No. (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. b. Roland v. Bd. 67 . No. Franklin C. 12.D. State Bd. of Ins. v. Franklin C. Franklin C. of Ohio. 1993).P. 2008). See Leo D'Souza. Franklin C. Bd. and that certain insurance plans. 08CVF-05-7342 (June 12. Other Factors to Consider (1) Medical Board and Chiropractic Board (a) For appeals from these boards. 14. (3) Fernando C. No. HMOs and PPOs require the termination of any suspended physician from their reimbursement policies. The Court found that such an allegation constitutes a threat to the health. No. Ohio State Med. 29. Bd. 94CVF05-3308 (June 6.. No. at 4 (Court held that. 93CVF08-5808 (Jan.D. 1993). 1994). No.. 97CVF-09-8830 (Oct.C. v.C. Ohio State Med. 96CVF09-7055 (Oct. 119. 10. Haw-Chyr Wu v. 07-CVF0911839 (Sept. See also. The State Medical Board of Ohio. Franklin C.P. No. 1994).” See R.). v..P. Franklin C.P. 93CVF05-3734 (Aug.P. 92CVF11-9231 (Mar. (2) Expected financial hardship of losing one’s license is not “unusual hardship” required for a stay. No. clients. 1998). 93CVF09-6881 (Dec. Franklin C. 1996).P. and welfare of the public. (1) “Unusual hardship” is more than the mere loss of the right to practice one’s profession. 2.a. 5. No. 98CVF06-4873 (July 10.12. 27. 1996). safety. 9. it must also be shown that granting a suspension will not threaten the “health. 2007). Franklin C.. Ohio State Dental Bd. 1993) (foreseeable financial hardship alone is not unusual hardship). State Medical Board of Ohio. Bd. M. Larach.. Ohio State Med. Herman Dreskin. State of Ohio Dept.P. 96CVF05-3566 (June 5. See Gill v..

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

(c) The General Assembly set a definite time period for the duration of a suspension of the agency’s order. 119. No. (b) The court is required to enter judgment within six months of filing of the record.C. 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. any trial court order suspending an agency order will remain in effect until the appellate process is complete. (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. 6. Expiration of license shall not affect the appeal. LEXIS 10933. or upon a final decision of the common pleas court. 119.12. (i) The stay does not continue on appeal to court of appeals. R.C. Haddix. 5. para. para.12. whichever occurs first. License renewal and suspended agency orders a. R. State Med. R. 63 Ohio App. 1987 Ohio App. 265. LEXIS 5639. (b) Fifteen-month limitation on suspension of agency order is constitutional and does not violate due process or equal protection rights. Giovanetti v. 119. para. of Ohio.C. 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. b. (3) However. 119. Plotnick v. 69 . 2nd Dist.C. 10th Dist. 6. and did not intend for the limit to be evaded with successive stays. 119. A license renewal cannot be denied by reason of an agency order that is on appeal and has been suspended by the court. Nos. c. at *24-25. 1984 Ohio App. R. 9951. Bd. b. ¶ 8.(2) Generally where a timely appeal is taken from a trial court.12.121. The final adjudication order may apply to a license that was renewed during the appeal (regardless of stay/suspension of agency order).12. Ohio State Dental Board (7th Dist. 1991). 3d 262. at *6. Exceptions (1) Liquor Control Commission. R. City of Dayton v.C. 84AP-225 & 84AP-362.

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

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

of Nursing Edn. and Nurse Registration. Jennemen v. 9. Ohio Liquor Control Comm. of Commerce (1976). 3d 225. the party is entitled to judgment only if the party is “adversely affected” as provided in R. (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. b. the party is required to show prejudice. 24 Ohio St. 1985).. City of Cleveland. 119. McDonald v. para. of Commerce. See Wolf v. Comm.a. 2d 153.. at ¶ 10. shall cause the court to enter a finding in favor of the party adversely affected. Bd. 3d 488 at 491-92. Ohio Rehab. Hamilton County Welfare Dept. 1990). See Arlow v. LEXIS 1704. Ohio Rehab. LEXIS 6439. 2003-Ohio3261. (2) “Failure requires reversal. the judgment is mandatory. Div. No. 532. 2010-Ohio-3842. Distinction between complete failure to file the record and omission from record. 1987 Ohio App. of Chiropractic Examiners (1st Dist. (3) Showing of prejudice (a) Failure to file minutes was prejudicial when the issue in the case was whether agency based its decision upon one if its administrative rules. 24 Ohio St. Cntr. 4th Dist. R. 119. 155. at *4. 2. Prejudice required for incomplete record (1) When an agency timely files the record. the party waives the right to object to failure to certify the complete record. Barlow v. 1st Dist. Serv. Inc. 1996 Ohio App. 3d at 155.C. (2) “Adversely affected” requires a showing of prejudice resulting from the item being omitted from the record. of Psychology (4th Dist. No. No. at *7. Comm. Ohio Liquor Control Comm. Ohio State Dept. upon motion. c. State Bd. 10th Dist. 70 Ohio App. (c) If a party neglects to file a motion.C. 21 Ohio App.” R. (b) No prejudice when items omitted did not appear to be outcome determinative. (1) Motion required (a) Court may enter a finding based upon failure to certify record only upon a party’s motion. Serv. in other circumstances. 09AP-1050. 155. 48 Ohio St. but the record is not complete. 3d 153.12 provides that “[f]ailure of the agency to comply within the time allowed. Lorms v. Bergdahl v. Ohio St.C. C-860124. (1) In a total failure to timely certify. (1986). v. v. No.. 82135. LEXIS 5492.. No. at ¶ 12. 74 . 119. Ohio Dept. n. 1987 Ohio App. 8th Dist. 10th Dist.12. (1986). 227. of Real Estate and Professional Licensing.” Jordan v. Arlow v. Gourmet Bev. Ohio State Bd. at * 6-7.12. 01AP-1217. Linbaugh Corp. omission requires correction. 2002-Ohio-3338.

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

1992). Clark v. Newly discovered evidence a. Newly discovered.C. State Bd. 1995). not merely impeaching or cumulative. 3d 278. courts have held that the moving party has the burden of demonstrating: (a) that the evidence was actually “newly discovered”. b. 8th Dist. 121 Ohio App. of Pharmacy. Diversified Benefit Plans Agency v. CVS/Pharmacy #3131 v. it must have been discovered subsequent to the trial. 502. c. New evidence of constitutional issues (1) If an appellant presents evidence before a state agency concerning the constitutionality of a statute as applied. that is. 2003-Ohio-3806. Ohio State Bd. para. at ¶ 36. at ¶ 36. 3d 531. 101 Ohio App. 83 Ohio App.” Holden v. and b. 3d 33.12.C.” Steckler v. CVS/Pharmacy #3131 v. Could not with reasonable diligence have been ascertained prior to the hearing before the agency. Newly discovered evidence and Civil Rule 60 (B)(2) (1) Language in R. and (c) that the evidence is material. 82215. then the trial court may also determine the constitutionality of the statute as applied. If the appellant does not present such evidence before the agency.1. 1997). (2) In interpreting Civ. 60(B)(2). 288. 2. 119. 3d 495. 119. Ohio State Bd. Duryee (9th Dist. cases interpreting Rule 60(B)(2) may therefore be helpful in interpreting R. R. (b) that the movant exercised due diligence. of Registration for Professional Engineers & Surveyors (9th Dist. Unless otherwise provided by law. 38. 3d at 502. Ohio Bur. Duryee. of Psychology (8th Dist. The court may grant a request for the admission of additional evidence when it is satisfied that such additional evidence is: a. No. and that a new trial would probably produce a different result. 540 (citations omitted). 1990). 119. however. of Pharmacy. R.12 relating to newly discovered evidence is analogous to language in Civil Rule 60(B)(2). of Motor Vehicles (9th Dist. newly discovered evidence does not refer to newly created evidence.12. 11. the court is confined to the record as certified to it by the agency.C. “Newly discovered evidence refers to evidence that was in existence at the time of the administrative hearing but which was incapable of discovery by due diligence. 3. Ohio State Bd. 2003-Ohio-3806. 67 Ohio App. 101 Ohio App. he or she cannot then raise the constitutional issue by introducing new evidence before the trial court unless the evidence is newly 76 .

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

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

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

(2) Jurisdiction to consider constitutional challenges 80 . But see Derakhshan v. 3d 76. LEXIS 5729. LEXIS 1194. 103 Ohio App. Bd. 10th Dist. Worker Bd.(declaratory judgment action). 2005-Ohio-5575. Ohio State Med. 2001 Ohio App. 88AP-516. at ¶ 6. 319-20.12 appeal. Clagg v. b. Fiorica. State Med. See Thompson v. v. at *10-11. See Harrison. 103 Ohio App. at *6-7. No. Fiorica. Inc. at *6-7. v. 86AP-767. b. Ohio Counselor & Soc. 3d 277. 2001-Ohio-4113 (citing In re Turner Nursing Home. 1987 Ohio App. 13660. at ¶ 6. at *3). LEXIS 9961.. v. State Med. Ohio Dept. 8th Dist. 164 Ohio App. 2nd Dist. Alcover. Ohio Dept. *4. No. No right to consideration of merits on appeal. 1993 Ohio App. of Human Services. 1987 Ohio App. LEXIS 9961. Reichart-Spaeth. Caltrider (2nd Dist. 1987 Ohio App. Harrison v. LEXIS 4367.). LEXIS 1194. but does not deprive a person of the right to appeal. 3d 76. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. 82 Ohio St. No. 3d 317. No adverse affect on right to appeal. which deprives the common pleas court of jurisdiction over the merits of a 119. See Camrack v. the agency can rebut the presumption with evidence that the request was never received. See Oak Grove Manor. c. Blackburn Sec. Inc. No. 1995). 07AP-261.. No. 2007-Ohio-5802. Bd. 2010-Ohio-416. Camrack v. Ohio State Med. Bd. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. 10th Dist. 10th Dist. 3d at 319-20. which deprives the common pleas court of jurisdiction over the merits of the appeal. 3d at 319-20. Ohio Dept. 2001 Ohio App. Caltrider (2nd Dist. No. LEXIS 4367.. Alcover. 1987 Ohio App. No. at *4. Alcover v. No. 1988 Ohio App. Ohio State Med.. 10th Dist. Reichart-Spaeth v. Some cases have held that a failure to timely request a hearing constitutes a waiver of hearing.. 1998-Ohio-414. of Ohio. Baycliffs Corp. 2005-Ohio5575. 09AP-78. 10th Dist. 164 Ohio App. 2005). LEXIS 9961. 103 Ohio App. 01AP-71 and 01AP-72. of Rehabilitation and Correction. 18521. (10th Dist. Harrison v. State Med. Bd. LEXIS 2665. not a jurisdictional defect). 54292. 1988 Ohio App. Bd. 2nd Dist. (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 ¶ 24 (holding that failure to exhaust is an affirmative defense that can be waived. Bd. 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. v. at *8-9. of Commerce. Failure to request hearing as failure to exhaust (split in authority) a. See also. 6.

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

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

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

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

1167). at *7-8. 2003-Ohio-3432. or substantial evidence. Bingham v. Cty.. at ¶ 21. 15 Ohio St. Inc. Brown v. 14. 3d 191. (3rd Dist. 15-04-01. not the exercise of judgment but defiance thereof. 10th Dist. State Emp. No. Crawford-Cole v. No. No. Lovelace Motor Freight. 2012-Ohio-3506 ¶ 12. probative. 22 Ohio St. at ¶ 5. 3d 704 at 711. Relations Bd. 2004-Ohio-2168. No. (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. Ohio Dept. Hawkins v. 63 Ohio St.” Lorain City Bd. (In re A-1 Nat’l Agency Group LLC No.. (1988). L-11-1177.c. Standard of Review a. partiality. Inc. 1998 Ohio App. 2004-Ohio3726. (4th Dist. 3d 164. 03AP-871. 3d 257. Marion Corr. v. No. On an appeal of those specific questions of law. prejudice. State Emp. 1167 v. 193.. 10th Dist.C. at ¶ 11. Hosp. 222. not the exercise of reason but rather of passion or bias. 62 Ohio App. 2004-Ohio-3553. of Cincinnati College of Med. of Commerce. of Edn. (2) Questions on appeal relating to statutory construction are legal issues that a court of appeals reviews de novo. Lancaster (1986).. Ohio Liquor Control Comm. the court of appeals exercises plenary powers of review. Mathews v. Univ. Ohio Dept. (2) An abuse of discretion “implies not merely error of judgment. v. 40 Ohio St. 2004-Ohio-3831. 3d 863.” State v. of Edn. Univ. 1990). Dept. No. of Job & Family Servs. 40 Ohio St. 04AP-46. Licensing Bd. 1800 Riverhouse. 85 . 18510. 9th Dist. of Scioto Cty. LEXIS 532. (1992). at ¶14. 10th Dist. 6th Dist. Glassco v. b. Relations Bd. Dept. para. 871. of Ins. Inst. See A-1 Nat'l Agency Group LLC No. v. passion. De novo review on questions of law (1) When questions of law are raised on appeal from an administrative agency. Abuse of discretion standard on issues of fact (1) When a court of appeals reviews the decision of the trial court. at ¶ 8. 260-61.12. a court of appeals must determine whether the trial court abused its discretion as to issues of fact. 87 Ohio App. Ohio Veterinary Med. Relations Bd.. 3d 339. 02AP-1223. v.. (3) Issues relating to constitutionality and procedural due process are given plenary review by the court of appeals. 343. 10th Dist. 03AP-732.. Lucas Cty. 1993). Ohio State Liquor Control Comm. Commrs. but perversity of will. 2. or moral delinquency. Jenkins (1984). 3rd Dist. State Emp. v. of Job & Family Servs. 3d at 260-61 (quoting State ex rel. Pacella v.. Lorain City Bd. 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. 119. No. R.

C.092(F)(4) as it pertains to the state personnel board of review. 1. 2. 119.C.X. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R. (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits. 119. 2335.092(F)(2).C. Non-recoverable fees a. 124.C. A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. b. c. 119. 124.C. and 2. 2003-Ohio2203.C. An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits.092(A)(2).092(F)(4). unless the agency has established a higher hourly rate by rule that is applicable under the circumstances.39.12. 124. (1) NOTE: There is a split of authority concerning the scope of R. d.C. ATTORNEY FEES A. R. R. 119. R.092).C. R.). B. R. The fees of the prevailing eligible party were one hundred dollars or less. Moody (1st Dist. 119.C. “Fees” means reasonable attorney fees.34 (involving removals or reductions for disciplinary reasons).C. Haghighi v. in an amount not to exceed $75 per hour. 124. 3d 600. the First District has held that attorney fees may be recovered after hearings under R. 119. 119. syllabus.C. 119. R. R. 119.C. 119.092(F)(2) would not bar recovery of fees.C.092. state. Relying on the plain language of R.092(F)(1). but not R. 86 . An adjudication hearing was held by the state personnel board of review pursuant to R. 119. allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level.C. or local government.092(F)(3). An adjudication hearing was held to establish or fix a rate.C.03 (involving discharges or layoffs) and those arising R. Recovery of Attorney Fees by Party Prevailing at Hearing (R.092(B)(2)(c). Chapter 119 contains two attorney fee provisions: 1. 119.34. R.C. and R.C.03.C. 152 Ohio App. e. What are “fees”? a.092(F)(4). which allows a prevailing party on appeal to move the court for attorney fees in accordance with R.

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

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

R. (2) Whether the position of the agency in initiating the matter was substantially justified. and finds improvement in deficiencies. Ohio Dept. 65 Ohio St. b. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation.(3) that the prevailing eligible party engaged in conduct during the course of the hearing that unduly and unreasonably protracted the final resolution of the matter. Initiating action (1) “Initiate” means to commence an action. b.e. (2) See cases below interpreting “substantially justified” language in R.C. (3) Whether special circumstances make an award unjust: and (4) Whether the prevailing party engaged in conduct during the course of the hearing that unduly and unreasonably protracted the final resolution. Substantially justified (1) Whether the initiation of the action was substantially justified is evaluated at the time of initiating the action. matter on which action is brought and issue is joined and in relation to which.. 9. Moreover. issuance of the notice of opportunity for hearing. as found by the court of appeals. Merits of the motion: was the agency “substantially justified” in initiating the action? a. 1992-Ohio-1. (2) Generally. 119. if issue be one of fact. not continue a proceeding that has already begun. Sowald. State ex rel. Decision on the motion for fees a.12’s provision for attorney fees. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. 1992-Ohio-1. Id.06 and 119. 8. 3d 338. Denial or reduction of fees requested 89 . Sowald. 342. testimony is taken.C. 119.07.C. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100. at 342-43. Sowald. not its initiation. (3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing. 119. of Health v. i. 1992-Ohio-1.092(B)(2).

d. R. except no interest is paid. 119. The agency must file a report to be filed with the general assembly. because appeals are decided by the common pleas court. 119. not the board. Reasons or bases for the findings and conclusions. if any. Eligible party appeal 90 .092(B)(2)(b). 425. d.C. Bd. R. Chapter 2743.C. May be paid by agency from any funds available for such compensation. 119. R.C. (1) To be filed October 1 in the fiscal year following the fiscal year covered by the report. R. 119. (2) Copy must be mailed to the prevailing eligible party.092(D). Ohio St.092(B)(2)(a).C.C. the decision as to fees must be in writing and must state: (1) (2) (3) (4) Whether an award has been granted.C. (1st Dist. 10.(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. a. 119. R. or special circumstances make an award unjust. 133 Ohio App.092(B)(2)(c).092(E). 3d 465. b.092(E). Findings and conclusions underlying the decision. Med. State Dental Bd. 474.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.C. the award is treated as a judgment under R. c. Payment of award a. Filing and service (1) Determination must be entered in the record. Sohi v. Appeal to common pleas court under R. (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. Gladieux v.092(B)(2). 119. 119.C. 1998) 130 Ohio App. (b) If the fees do not exceed $100.092. 11. 3d 414. If no funds are available. 119. c. 1999). Per R. and Amount of the award. a.C. (2) Must include specific information listed in R. (10th Dist.

R.. and (3) the state’s position in initiating the matter in controversy was not substantially justified. R. (2) The agency’s appeal would be filed in the manner specified by R. not the agency itself. The agency must file a certified record as required in R. at ¶10.C.(1) May appeal denial or reduction of award.39.092(C).092(C). No.C.39(B) provides that an individual may recover attorney fees if (1) he prevails. 2335.C. Ability to receive fees: prevailing eligible party a. 3d 556. 2335.C.C. 119.092(C). (3) A copy of the decision must be certified to the agency and the eligible party. 119. 2. 78 Ohio App.092(C). 558. R.092(C). in accordance with R.12 for appeals.39 a.C.C.C. 2003Ohio-3816. 119. (2) File in same court in which the party would appeal agency’s adjudication order.12.C. (2) Decision is final and not appealable. Ohio Veterinary Med. R. 119.C. Licensing Bd. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order. This attorney fee provision applies only to appeals brought pursuant to R. R. c. 2335. R.12 provides that the court shall award compensation for fees to a prevailing party. 119. 119. R. Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee. Common pleas court decision. C. R. 02AP-955. or calculation involved an abuse of discretion.39 sets forth general rules governing the award of attorney fees in actions against the state.C. 10th Dist. Harrison v. Statutory framework: R. 119.C. 119. R. (2) he is financially eligible.12. 4. 3. 119. 2335. In re Williams (1992). 1.12.C. (1) The court may modify the decision of the examiner or the agency only if the failure to grant. b. “Prevailing party” 91 .C. 5. d. 119.

(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. R. Korn v. 71 Ohio App. c.. State Medical Bd. State Medical Bd. Same requirements for content of motion as in R.C. or a partnership. Korn v.C. The motion must be filed within 30 days of the final judgment by the reviewing court in the action or appeal. “Eligible party” means a party to an action or appeal involving the state.. The court must determine: (1) Whether the position of the state in initiating the matter in controversy was substantially justified.39(A)(2). 3d 483. or organization that had. a net worth exceeding five million dollars at the time the action or appeal was filed. 71 Ohio App. b. See above. (10th Dist. Motion for fees a. 2335. 71 Ohio App. 2335. to qualify as the prevailing party.39(B)(1). State Medical Bd.39(D). 119. more than five hundred persons at the time the action or appeal was filed. corporation. 1991). 6. except that an organization that is described in subsection 501(c)(3) and is tax exempt under subsection 501(a) of the Internal Revenue Code shall not be excluded as an eligible party under this division because of its net worth. 2335.(1) A party need not attain a complete victory. (2) An individual whose net worth exceeded one million dollars at the time the action or appeal was filed. 3d 483 at 487. (3) A sole owner of an unincorporated business that had. The motion may request both fees incurred in appeal and in the administrative hearing. or organization that employed. (4) A sole owner of an unincorporated business that employed..C. R. 7. b. 487. corporation.C. association.” Korn v. association. or a partnership. dismissal of all charges without remand. 92 . R. (3) The court may take the partial victory into account when determining the amount of the fees to be awarded. Court review a. 3d 483 at 487.092.e. i. other than the following: (1) The state.

(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.” R. The clerk of court shall mail a certified copy to the state and the prevailing eligible party. Burden of proof (1) The state has the burden of proving that its position in initiating the matter in controversy was substantially justified.C. The State’s failure to prevail on the merits does not create a presumption that its position was not substantially justified. knowledgeable in the area of the law. Denial of award: substantially justified standard a. Fees may be denied if the position of the agency initiating the matter in controversy was “substantially justified. 2335. or (b) special circumstances make an award unjust. 2335. The order must be included in the record of the appeal. (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. R. The State’s position may be substantially justified so long as “there is a genuine pretrial dispute concerning the propriety of the state's action from the facts of the case or the law applicable thereto ***. 8. if any e.C. believes that the state’s 93 . b. that special circumstances make an award unjust.39(B)(2)(a). The court must issue its order in writing and include: (1) (2) (3) (4) An indication of whether the award is granted Findings and conclusions underlying the decision Reasons or bases for the findings and conclusions Amount of award. If a reasonable person. f. d. c.(2) Whether special circumstances make the award unjust. 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.39(B)(2). b. The court may deny the award or reduce the amount as follows: (1) The court may deny if: (a) the state’s position in initiating matter was substantially justified.

The court must evaluate information that the agency had before it at the time it initiated the action. e. 78 Ohio App. d. Ohio Bur.P.position is correct. In re Van Arsdal. 3d 556. at ¶ 18. 161 Ohio App. 558. 33 Ohio Misc. at *4. In re Williams (1992).” Id. 5th Dist. Weinstein. 3d 556. (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. Safety. 11th Dist. 2005-Ohio-2856. 9. This articulation of the standard is based in part on interpretations of federal courts in applying the Equal Access to Justice Act. 2d 25. Penix v. 94 . 119.e. 78 Ohio App. See. 1991 Ohio App. LEXIS 3470. Under these circumstances.C. Attorney fees have generally been denied in cases where the appellant has unsuccessfully applied for a license or certificate. § 2412. Bd. No. at *4.12 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. 1990). 539. the court offered an evidentiary test for substantial justification. of Pub. 2011-Ohio-191. 91AP-190. (2) To meet this standard. 33 Ohio Misc. at ¶ 13. LEXIS 5391. 10th Dist. substantially probable). No.C. Weinstein (Hamilton C. No.S... and that based on that evidence it was reasonable to believe that it was more likely than not (i. (1) The court held that. which also uses a “substantially justified” test for awarding attorney fees. the State initiated an automatic suspension of a driver’s license based on records from a municipal court indicating that the appellant was convicted of leaving the scene of an accident.” Ohio State Bd. the State in a R. 10th Dist. the court of appeals found that the State's position had been substantially justified.. 2002-T-0098. which held that “where the state through administrative action denies certification or licensure. 89AP-1186. Denial of award: unsuccessful application of license or certificate a. of Motor Vehicles (9th Dist. Ohio State Med. then the substantially justified standard has been met. The error was not discovered and corrected by the municipal court until after BMV initiated the license revocation. 1990 Ohio App. 558. 2d 25. e.. 67 Ohio App. In Ohio State Bd. syllabus. Gilmore v.” Warren’s Eastside Auto Sales v. In Holden v. to withstand an award of fees. the State “must demonstrate that it had sufficient material and essential evidence in support of all of the necessary elements of the offense charged.g. No. and not just possible. 3d 551. 2003Ohio-5702. Ohio State Dental Board (1st Dist. 28 U. that reasonable minds could make a finding of legal violation by a preponderance of that evidence. Boyle v. Ohio Real Estate Appraiser Bd. 3d 531. (2) The agency may be substantially justified in relying upon incorrect information. 10-CA-19. citing In re Williams. the state is not the initiating party for purposes of an award of attorney's fees pursuant to R. c. of Pharmacy v.). 1987). Ohio Dept. of Pharmacy v.C.

39(F)(3)(c). LEXIS 6174 (Feb. R. 95 .39(F)(3)(a). 2335. 24. v. R. 5101.2335. If the case is an appeal of the adjudication order of an agency pursuant to section 119.39(B)(2). 119. Appealing an award of attorney fees under R.39 a.39(F)(3)(b). Sowald. 2335.C. state. 3d 338.092(F). where the state sought to take away a license already held by an individual. d. An order of a court considering a motion under this section is appealable as in other cases. R.39. 93AP-331. 2335. c. of Motor Vehicles (9th Dist. b.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. Inc. under the right circumstances. 3d 531.C. See also. 1992-Ohio-1.C.39(B). 65 Ohio St. of Health v.35.C. b. you may wish to consult the Ohio Administrative Law Handbook and Agency Directory in Baldwin’s Ohio Administrative Code. R. Schregardus.12 of the Revised Code. 1994) at *6-7. or the calculation of the amount of an award. where the court assumed (without deciding) that.C.C. State ex rel. Freeman v. the agency may appeal an order granting an award. 2335. 11. No.” This principle was reaffirmed in Thermal-Tron. or local government. the court in In re Van Arsdel distinguished cases such as Holden v. However. b. Pro se litigants may not be awarded attorney fees under R. When the eligible party’s attorney was paid pursuant to appropriation by federal. State ex rel. Ohio Bur. 2335. 1994 Ohio App. c. Exemptions from R. 2335. by a prevailing eligible party that is denied an award or receives a reduced award. 460.C. 10th Dist. 65 Ohio St. 10. 2335. attorney fees could be awarded in a proceeding where the state attempted to decertify a nursing home. involved an abuse of discretion. Note: For additional information on administrative law. a.39(B)(2). 67 Ohio App. Ohio Dept.C. Adjudication orders exempted under R. 3d 458. Morris (1992). An administrative appeal decision under R. 1990).