Administrative Law Handbook | Evidence | Evidence (Law)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

R.C. Chapter 119 Pursuant to R.C. 119. Fair v. e. or commission that has the authority to promulgate rules or make adjudications in: (1) (2) (3) (4) (5) the Civil Service Commission. there are three ways in which a state agency. board. division.01(A)(1). Chapter 119.C. 44 Ohio App. R. board or commission has authority to issue. 119. 5101.09. 117. R. 2d 115. (1) Certain agencies. R. Agencies Specifically Named in R. CHAPTER 119 A. bureau. department.C. 119. b. Governmental Entities Subject to R. board or commission of the state government having the authority of responsibility of issuing. board or commission may be required to follow the Ohio Administrative Procedure Act.C.C. 119.C.01(A)(2): Any official or work unit having authority to promulgate rules or make adjudications in the Department of Jobs and Family Services specifically pertaining to: (1) Adoption.01(A) a.C.01(A)(2)(b).C. bureau. 119. suspend. and/or the Bureau of Workers’ Compensation. R.01(A)(1): Any official. R.C. (2) Issuance. d. the Division of Liquor Control. suspension.C. (3) The agency. board or commission to R. Entities that Constitute an “Agency” 1. Chapter 119.I. School Employees Retirement Sys. amendment or rescission of rules mandated by R. board or commission of the state government specifically made subject to sections 119. remove or cancel licenses. (2) A statute specifically subjects the agency. The licensing functions of any administrative or executive officer. the Industrial Commission. (10th Dist.13 of the Revised Code. B. 119. 119.01(A)(1): (1) Public Utilities Commission. boards and commissions are specifically named in R. APPLICATION OF R.01 to 119.01(A).C. 119. Any administrative or executive officer.01(A)(1).C. c. revoking or cancelling licenses. the Department of Taxation. 1975). suspending. 1 . Exclusions from Definition of “Agency”. revocation or cancellation of licenses. division. department.

State Emp.C. v. 1988). suspending. 67 Ohio St. institution. 2 . (1988). Ohio Expositions Comm. a. Assn. b.S.P. it is not an arrangement whereby a person. Code Ann. 42 U. (5) Actions of the Industrial Commission or Bureau of Worker’s Compensation brought under R. Chapter 119. 3d 754. 119. 96 Ohio App. (3) Controlling Board. institution. as well as other activities specifically mentioned in R. (2) The action of a superintendent of banks in approving branch applications was such an elaborate procedure that the action was considered a licensing function. Examples: (1) Decision to hold contractor in default of contract is not a licensing function.01(A). 38 Ohio St. v. 111. Relations Bd.C. Asphalt Specialist Inc. (3) In Bayside Nursing Ctr. 1994). The courts define an agency’s licensing authority based on the involvement an entity has with the processing of licenses. Inc. b. Entity has authority for issuing. 119. 3d 45.12. v. 4123. 47. The mere approval of a savings and loan branch location application was not a licensing function.C. § 301.C. commission. permit. of Health (10th Dist. § 119. (10th Dist. & L. certificate. 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. There must be a clear legislative intent to make an entity’s functions subject to R. 759. Entity’s own law specifically makes it subject to R. 2d 115. [but not] any arrangement whereby a person. Ohio Dept. 2d 106. or charter issued by any agency…. Home S. Mills (1981). 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. McEldowney v. as amended.(2) Utility Radiological Safety Board. (4) Actions of the superintendent of financial institutions and the superintendent of insurance regarding the taking possession.C. 2. 53 Ohio App. South Community. 3.” 49 Stat.01-4123.C. 3d 224. v. Genoa Banking Co. Ohio Dept. 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. No.C. Boesch (1975). 41 Ohio St. 1995). of Transp. v. Chapter 119 without restriction to rulemaking. R. The Revised Code defines “license” as: [a]ny license. revoking or canceling licenses. Chapter 119. rehabilitating or liquidating businesses. 10. 95CVF064466 (Aug.01(B). or entity furnishes Medicaid services under a provider agreement with Ohio Department of Human Services.94.. Franklin C. 620 (1935). 119. a.

C. b.06. and functions of the Department of Administrative Services with respect to civil service employees. Not Ministerial Acts 1. 467. Chapter 119 provides certain rights in relation to adjudications. The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services. Bd. Entities exercising derivative power a.. Board of Edn. 4. entity exercising derivative power must be a state agency. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119.14(G). at ¶ 24. may appeal from the order of the agency to the court of common pleas." R. C. or revoking or suspending a license . 119. 124.” R.13. the refusal was not an agency decision and therefore. Chapter 119. 03AP-330. 68 Ohio St. was not appealable pursuant to R. paragraph two of the syllabus).12.01(B). The conduct at issue was authorized by R. Inc. Serv. v. 1 (emphasis added). a. 174 Ohio St. which then authorized state universities to exercise the powers. Right to an appeal: Pursuant to R. 119. 2d at 152 n. of Trustees. 1 (emphasis added). of Trustees of Ohio State Univ. 3 .3 (citing Karrick v. Dept. which was an agency subject to Chapter 119. (1963). 2d 149. (4) The Tenth District Court of Appeals held in Springfield Fireworks. the entity is also subject to Chapter 119. 68 Ohio St. 2003-Ohio-6940.C. or denying the issuance or renewal of a license or registration of a licensee. para. v. suspending. 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. 10th Dist No. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119. (1) In Bd. duties. 119.C. Since the act was not a licensing function.. the act is a licensing function because it does not fall under the exemption included in R.C. (1981). 151-52. the university was also bound by Chapter 119 in the exercise of those powers.12. 119.Therefore. of Admin. "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination. Ohio Dept. 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. or canceling of a license.C. of Commerce. para. Where an entity exercises power derived from another agency that is covered by Chapter 119.C. Chapter 119 Applies to Adjudications.01 to 119. of Findlay School Dist. revoking.

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

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

Orders suspending a license where a statute specifically permits the suspension of a license without a hearing. at ¶ 14. 05AP-1079. If a licensee timely files for renewal or registration. Exception: When a statute permits the suspension of a license without a prior hearing. R. This is often called a “summary suspension. 6 .C. 10th Dist. D. para. A hearing must be held following suspension. Doriott v.06. 2. (1) Failure to provide an opportunity for a hearing following the suspension violates due process.06(B). Suspensions Without A Prior Hearing (“Summary Suspensions”) 1. b. Orders revoking a license where an agency is required by statute to revoke a license pursuant to a judgment of a court. 119.06(C). 119. R. No. 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. R. physical therapy. 2006Ohio-2171.C. 119. 119. 5. 9. R. C. R. Bd. 119. another agency. 4. 119. of Ohio. 2. 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. Board of landscape architect examiners.06.C. R. Ohio occupational therapy. Board of examiners of architects.C. Orders Effective Without a Hearing 1. c. State Med. provides: a. Certain orders canceling or suspending a driver’s license. 3.C. and athletic trainers board. or to the board of tax appeals.(2) No hearing is required for the following boards if the applicant failed a licensing examination: (a) (b) (c) (d) (e) Medical board. and give the appellant a right to hearing on appeal. The agency must provide a hearing unless a hearing was held prior to the denial.062. General rule: Agency must provide an opportunity for a hearing BEFORE issuing an adjudication order.06(A). the licensee shall not be required to discontinue the licensed business or profession merely because the agency fails to act on the application.C. Chiropractic board.” a. When an agency denies a renewal or registration.

Rather. c.(2) Medical Board statute permitting board to suspend license without a hearing when a licensee fails to submit to a medical examination must be read together with R. then the due process rights of the individual are not violated. at *7. 4. No. 119. (Massachusetts DUI case). to require the board to provide notice of opportunity for hearing subsequent to the suspension.07.S. 17. CA-2885. (2) Risk of erroneous deprivation of the private interest through the procedures used. 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. 10th Dist. in which the court found that strict adherence to the judicial model of due process was not mandated for administrative hearings. 1.S. of Motor Vehicles (Wadsworth Mun. Three-Step Analysis (Mackey) (1) Nature and importance of the private interest affected by the official state action.C. a. return receipt requested. 52. b. the Wadsworth Municipal Court found that the state did not 7 . The Ohio Supreme Court adopted the Mackey test in Doyle v. (2) Law or rule directly involved. The U. 3. 3d 46. 1992 Ohio App. Notice requirements for pre-hearing suspensions pursuant to R. Due process concerns a. 2d 3. not later than the business day next succeeding such order. Service of the Notice (1) Notice must be sent to the party by registered mail. Notice of suspension must state: (1) Reasons for the agency’s action. 5th Dist. (3) Fiscal or administrative burden that additional or substitute procedures would require. of Ohio. Ohio Bur.07. 119. 5. and (3) Opportunity for hearing if requested within thirty days of the mailing of the notice.C. at ¶ 12. in Meadows v. if the Mackey test is met. Bd. 05AP-1079. b. 2006-Ohio-2171. No. 71 Ohio Misc. Doriott v. 1995). State Med. Supreme Court has ruled that summary suspensions are generally constitutionally permitted to protect the public. (1) Wagers v. Mackey v. 51 Ohio St. Ohio Bureau of Motor Vehicles (1990). (2) However. 443 U. Ct. Montrym (1979). Ohio State Racing Comm. (2) Copy of the notice must be mailed to the attorney or other representative of record. LEXIS 556..

NOTICE REQUIREMENTS A. 119. (10th Dist. 325. No. III. 09AP-1050.07. an appellant must demonstrate prejudice from any failure to meet the timeframes. LTV Steel Co. 4. No. of Job & Family Servs. Dusty Drilling Co.07. not mandatory. L-11-1177. 24. Mandatory Requirement 1. The Meadows court ruled that the state’s failure to follow the statute deprived the defendant of his rights to due process. B. The agency is subject to a reasonable standard. The law or rule directly involved. as a result. 1981). Pursuant to R. Lucas Cty.C. v. 10CVF-3027 (Aug. 102 Ohio App. No.P. b. Industrial Comm. Cunningham v. 119. No. time frame for filing the notice is discretionary. Failure to give proper notice invalidates any order entered pursuant to the hearing.. R. Even though there is no specific statutory requirement. 5. of Ohio (10th Dist. If a party has a right to a hearing. Ohio State Dept. 119. Franklin C. 10th Dist. 6th Dist. the notice of hearing must include: a. 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. d. Div. c. 10AP-699..follow the statutory scheme for an administrative license suspension when it did not afford the defendant a post-suspension hearing within five days. Finley v. of Real Estate and Professional Licensing. and that. 3. ¶ 16 and 17.07. 2012-Ohio-3506. Barlow v. in all cases in which an agency must afford an opportunity for a hearing prior to issuing an order. 2. State ex rel. 2 Ohio App. Crawford-Cole v. Id. 1. Content of Notice 1. R. at ¶ 31. Ohio Real Estate Comm. 1995). a. absence of instructions of how to appeal and the deadlines involved violated due process requirements.C. 2010-Ohio-3842. Dept. para. para. The Tenth District Court of Appeals held that timeframes are directory. 8 . 2010). State ex rel. Wightman v. The charges or other reasons for the proposed action. of Commerce. the agency must give proper notice of the opportunity for hearing.C. Ohio Real Estate Commission. 3d 100. 103-04. Although proper notice of the opportunity for hearing is mandatory. 10th Dist. 3d 323. Notice of the party’s right to a hearing. the party has a right to a reasonable notice of hearing and a reasonable opportunity to be heard. b. 2011-Ohio-1816.

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

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

C. 67 Ohio App.. (3) Driver’s license: In a case involving revocation or suspension of a driver’s license. No.3d 277. State v. 1994). 11 . 1989). ¶ 35 (1) No requirement that the notice to counsel be sent by registered /certified mail. 89CV-01-64 and 88CV12-8615 (July 3. Sufficiency of notice or hearing required prior to termination of welfare benefits. Franklin C. 47 A. 119. (7th Dist. Ohio State Bd. (2) Service at a place of business. To attorney by regular mail: “A copy of the notice shall be mailed to attorneys or other representatives of record representing the party.(2) A board’s issuance of a summary suspension one year after it had knowledge of the licensee’s practice violations was unconstitutional. Bd.R. 10th Dist. R. To party by certified mail: Notice of opportunity for hearing must be sent to the party by registered mail.L. Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine. 3d 287.5th 1.07.C. 2d 110. Liquor Control Comm.C. 111-12. Initial service of notice a. and thereafter a signed receipt is returned to the sender.3d 361. E. Necessity of notice and hearing before revocation or suspension of motor vehicle driver’s license. registered mail is not required.062. 2011-Ohio-431. b. 1970). a rebuttable presumption of delivery to the addressee is established.” R. a. 1990).07. Ohio State Med. 10 A. Gilbo (2nd Dist. (1) Note: registered mail and certified mail are interchangeable. 339. Amon v. When an item is sent by certified mail. (2) No requirement that the agency search anything other than its own files to find out if the party is represented by counsel. return receipt requested. State Med. (10th Dist. 119.L. 10AP-419. R. 60 A. 290.R. 2. R. Annotations 1. 21 Ohio App. 1. 3.. 3d 332. 96 Ohio App. Kellough v. Service of Notice 1. Bd.R. of Edn.02(G).P. Nos. Angerman v. 119.C. return receipt requested. Tripodi v. D.L.

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

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

1. the act may be done on the next succeeding day that is not Sunday or a legal holiday”. which letter also stated that licensee was not waiving his right to a hearing.07) 1. at *9. Chapter 119. 103 Ohio App. at *9 (telephone request to assistant attorney general insufficient. where attorney advised the licensee that request must be made in writing to the board). Timing of Request (R.C. 54292. Method of Requesting a Hearing 1. 14 . The court found this was sufficient notification because licensee had expressly reserved the right to adjudication. 119. The time computations set forth in R. showing intent to request hearing.C.C.C. 1.07 begins to run on the date the agency or board mails the notice by certified mail. Computing Time Pursuant to R. v.9. R. “the act may be performed on the next succeeding day that is not a Sunday or a legal holiday. R. No. Chapter 119. is it clear which alleged facts violate each statute or rule stated in the notice? H. 318.14 states that when a public office is closed to the public and it is the last day to do a required act.C. except that.14. Chapter 119 does not specifically provide that a request for hearing must be in writing. 2. Agency erred by failing to timely set a hearing date and time as mandated by R. No. 119.14. when the last day falls on Sunday or a legal holiday. Williams. Ohio State Med. LEXIS 11662. HEARING REQUESTS A. 1995). a. a. Bd.. 1. 78AP860. Standard Oil Co. 1979 Ohio App. The time within which an act is required by law to be done shall be computed by “excluding the first and including the last day.C. 1. Reserving right to hearing shows intent to request.C. B. LEXIS 9961. Does the notice indicate the method of service to be utilized? 10. The thirty days provided by R. Bd. 3d 317. In writing a. Harrison v. But see Alcover v.C. Licensee sent a letter proposing an informal settlement. 1. 1987 Ohio App.” IV.14 apply to proceedings conducted pursuant to R. 10th Dist. A party must request a hearing within thirty days of the date of mailing the notice. 2. Ohio State Med. 8th Dist. (10th Dist. If multiple violations.

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

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. but may then continue the hearing to a later date. 3. The date set must be seven to fifteen days from the time the party requested a hearing. Ohio St. No. of Commerce v. v.07. (10th Dist. date and place for the hearing. 1969). b. 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. 3d 111.. V. and forthwith notify the party. at *7-8. Sahely v. Initial Scheduling 1. McCullion. 1991 Ohio App. para. A hearing cannot be continued for an unreasonable amount of time.C. See In re Application of Milton Hardware Co. Id. 1993 Ohio App. Bd. Vild. 3d 201. Kash (8th Dist. Effect on appeal rights (split in decisions). In re Barnes (10th Dist. R. the agency shall immediately schedule the time. infra.3. at *7. B. 1988). No. CA2867. 92AP-1430. (2) Thus. at *4-5. The agency may postpone or continue a scheduled hearing upon its own motion or the motion of any party. 40 Ohio App. 31 Ohio App. (1) In In re Application of Milton Hardware Co. 2.07. 3d 256. 60858.. Id. 19 Ohio App. 2d 157. in the same notice. 119. SCHEDULING OF THE HEARING A.C. because the agency has the authority to continue a hearing upon its own motion. Yoder v. Ohio Dept. Continuances 1. 1986). the court said that two (2) years was an unreasonable delay. No. 262. 166. R. not mandatory. Ohio State Racing Comm. The agency will often set the initial hearing date. 5th Dist. the agency must initially schedule the hearing for seven to fifteen days from the date of the request. Ohio State Racing Comm. see Section IX APPEALS. 113. 3.09. 8th Dist. LEXIS 2034. LEXIS 6173. 61 Ohio App. 1988). b. 10th Dist. and then. 119. Practical Note. a. para. Kizer v. of Edn. 16 . 119. (9th Dist. unless otherwise agreed upon by both the agency and the party. a. R.C. LEXIS 2713. Requirement to hold hearing within fifteen days is directory. 1991 Ohio App. Once a party requests a hearing. inform the party of the continuance. 3.

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

. R.” b. 119. . of Ohio. Casey v.” R. Ohio State Bd. at *9. R. No. Ohio State Bd. 7th Dist. ¶ 43. 4. 3. . . R. B. 7th Dist. Chapter 119 Does Not Provide for Discovery Under Civil or Criminal Rules of Procedure 1. 2001 Ohio App. including discovery rules. OBTAINING EVIDENCE AND SECURING WITNESSES FOR HEARING A. Nichols (1984). 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 . State Med. . 2002-Ohio-606 at * 10. of Human Serv. Ohio Board of Nursing. The agency's own law and rules may provide protection to certain records. 6th Dist. For the purpose of conducting an adjudication hearing. 02AP-1315. Leake v.” White Consolidated Industries v.C. are not applicable to the administrative hearing procedure. 00 CA 264. an administrative agency may allow testimony by deposition for witnesses who will not be available at the time of the hearing. No. “The formulation of procedural rules of administrative agencies is basically left to the discretion of the agencies. 11-CA-9. 15 Ohio St. LEXIS 3290.. S-32-92. Wayne S.09: “For the purpose of conducting any adjudication hearing required by sections 119. 2003-Ohio-4061. No. Chapter 119. 00AP-523. The taking of the deposition shall be in the same manner as is prescribed by law for the taking of depositions in civil actions.c. Froug v. Gipe v. the agency . discovery rules do not apply. Miller v. No. Bd. of Pharmacy. According to R. Dept. .C. a. 2003-Ohio-7007.. Similar to the civil rules. Chapter 119 provides for depositions in lieu of hearing. ¶ 24 and 32. the deposition may be used at 18 . 9. No. VI. of Ed. . b. a. 5th Dist. the Criminal Rules of Procedure do not apply to proceedings conducted pursuant to R. The agency’s own law and rules may provide for a discovery-like exchange of information. 2003 CO 7. 119. 2012-Ohio-1002. 10th Dist. 1993 Ohio App. The courts have held that because the Civil Rules are not applicable to administrative hearings. . Finally. para. No. of Psychology.C. LEXIS 305. See Moffett v.C. Salem City Sch. Agency law or rules may set guidelines for consideration of motions for continuance of hearing.13 of the Revised Code. Bd. ¶ 40. The Ohio Rules of Civil Procedure. Civ. 1(A) limits the Civil Rules to “all courts of this state in the exercise of civil jurisdiction at law or in equity . Dist. 3d 7. Mahoning Cty. 10th Dist.C.01 to 119. 2. at *10. 2 (emphasis added). Depositions 1.09.

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

(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. c. 20 . Return of subpoena a. State v.O.. R.C. at ¶ 26.C. upon demand. R. (2) Witness outside the county: Crim. No. the fees for one day’s attendance and the mileage fees allowed by law. if tendered prior to the time appearance is compelled. 2004-Ohio-4041. 17(D) provides that if the witness resides outside the county where the agency is located. OAG Opinion. R. 03AP-266. 86-066. 10th Dist. R. error could be cured by subsequently tendering the fees. (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. 17(D) provides that the return may be forwarded through the postal service. or by leaving it at his usual place of residence. b. 92 Ohio App. 1994). 3d 732.08 for current amount. (a) Where a witness lives outside the county where the agency is located.09. and the witness may not later refuse to appear solely because the fees were not tendered upon service. v. A. para. (2) When a subpoena was sent via regular mail to the witness’s usual place of residence and the witness has actual knowledge of the subpoena and of the consequences for failing to comply with the subpoena. 17(D) provides that proper service is effected by tendering to the witness. 2335. valid service is completed. Perfection Corp. Smith Corp. Must be returned in the same manner as a subpoena in a criminal case. 119. 119. (a) A witness living in the same county as the agency waives the right to fees if not demanded upon services.C. OAG Opinion. Castle (9th Dist. 734. fees shall be tendered without demand. 3. 2. witness fees and mileage fees must be attached to the subpoena and tendered without demand or the witness is not obligated to appear. Crim. R.(1) Criminal Rule 17(D) provides that service of a subpoena upon a person shall be made by delivering a copy to such person or by reading the subpoena to him in person. Fees (1) Witness residing within county: Crim. or otherwise.09. See R. 86-066. (b) When the fees were not tendered with subpoena.

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

Chiropractic Bd.b. State Med. for purposes of investigation. 1996). of Aging.C.. there is an implied power to enforce them through the court. Chapter 119. Polen..C. Other agencies. 93 Ohio St. The Medical Board’s statutory authority to subpoena patient records is not dependent upon patient consent. 3. R. of Aging. below. 61. Board of Nursing. 307..C. Medical records a. 108 Ohio App. R. paragraph 4 of the syllabus. Div. 96 Ohio App. 1. 22 .C.. (E. Bd. 3d 59. Chiropractic Board. R. of Securities. Dept. 2. D. 4731.C. 3d 386. 1707.20(H).C. 2000).C. do not have specific statutory procedures for enforcement of investigative subpoenas. 1707.22(F)(3).g. R. However. because R. In re Investigation of Laplow (10th Dist.C. R. Franklin C.29). In re David E.29). it is reasonable to argue that the sanctions permitted by Civ. of Securities.C. Div.24. 4731. 173. b. Ombudsman. See discussion re: Health Insurance Portability and Accountability Act (“HIPAA”).P. 173. Investigative Subpoenas 1. Hunt v. 4734. 3d 305. 4723. R.C. Dept. Hildebrant (1915). since the legislature has empowered them to issue subpoenas. D.g. v. R.C. 45(E) may be granted. In re Investigation of Laplow (9th Dist. 1994). 4723.. Motions to Quash not authorized by R. (10th Dist. See State ex rel.48(A)(2). R. Enforcement a. Ombudsman. prior to hearing.22(F)(3). R.24. 1993). (e. 390-91. the only avenue available to a witness is to defend an action to compel.g.C. b. 4.. 00MS000041 (July 24. (2) If the statute grants enforcement according to the Civil Rules. Specified authority (1) Some agencies have specific statutory procedures for enforcement of these subpoenas. Board of Nursing. Implied power.20(H). Medical Bd. Chapter 119 does not provide statutory authority for a motion to quash. (1) Absent specific statutory authority or a pending case or appeal. the court of common pleas has no jurisdiction to entertain a motion to quash an administrative subpoena. for general principle of implied power to perform duty. R. Thompson. 87 Ohio App. State Med. (2) Thus. e. Investigatory subpoenas are those to compel testimony or the production of records. No. Bd. Some agencies have statutory authority to issue investigative subpoenas.

Multimedia v. Cincinnati Post v. Kraft (1993). (2) The record must have been generated in the course of medical treatment. The requested records must be released unless they fall within an exemption or exception to the Public Records Act. not exempt by law. 149. 2.011(G). A “record” is any item that: (1) Contains information stored on a fixed medium (such as paper. 3d 170. decisions. State ex rel.43(A)(1) and (3). 142. (2) Is created. received. For more detail. 67 Ohio St. 149. 440. procedures. Medical records. 3d 439. The provisions of the Act that provide access are to be liberally interpreted and exemptions are to be strictly construed.C. diagnosis. 3d 141. c. d. c. prognosis or medical condition of a patient. Uncirculated personal notes. (The following is a brief outline of Public Records Law. 142. Respondents May Obtain Certain Agency Records through the Ohio Public Records Act. R. 173. 149. a. see the most recent version of the Ohio Sunshine Law Update published by the Ohio Attorney General.43(A)(1)(g) and (4).C. For a complete list of exemptions. etc. 23 . (1) The information must pertain to the medical history. (a) A report of a medical professional generated as part of the decision making process regarding employment. b.011.E. b. R. operations or other activities of the office. or sent under the jurisdiction of a public office. policies.). Schweikert (1988).C. functions. as defined under R. of a public office. see R. Exemptions/Exceptions: a. 72 Ohio St. 38 Ohio St. Trial preparation records. 149. R.C. State ex rel.) 1. The Public Records Act applies to any record. Multimedia. film. Any doubts are to be resolved in favor of disclosure. State ex rel. and (3) Documents the organization.43(A)(1). but not generated in the process of medical treatment is not covered by the medical records exception. Snowden (1995). 149. see Steffan v. 3d 141.C.C. R.43. computer. 72 Ohio St. 149.

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

74 Ohio St. 70 Ohio St. 3d 420. State ex rel. the confidential law enforcement investigatory record exemption remains applicable until all proceedings are complete. v.C. See. Local 10 v. Polovishack v. (4) Once applicable. (a) Social Security Numbers. 3d 681. e. (b) The legislative language used to create confidentiality may be phrased in different ways. 1995-Ohio-19. 77 Ohio St.20 and 3309.C. that create confidentiality. State ex rel. (b) Student Education Records.421 (Child abuse and neglect investigation records). R. This is far from an exhaustive list. 1996-Ohio234. 54 Ohio St. State ex rel.C. 2000-Ohio-214. 27 (child abuse investigation reports). 1997-Ohio-273. State ex rel. 3304. Beacon Journal v.27 (PERS member information). The Family Education Rights and Privacy Act 25 . 6th Dist. discusses the applicability of this exception to administrative investigation files. 1996-Ohio-204. (5) State ex rel. 3d 25.C. See State ex rel. not related to any one specific agency. White. for example the Trade Secrets Act. based on a federal privacy interest. R.21 (Client records of rehabilitation services). Lashutka. Cuyahoga County Dept. 3307. Ohio Patrolmen’s Benevolent Assn. 89 Ohio St. 612. No. Conrad. City of Akron (1994). of Human Serv. Yant v. 3d 51. (a) Many state administrative clients have statutes making specific information confidential. Mayfield (1990).g.22 (Long term care ombudsman investigative files). 2000 Ohio App. R.22 (STRS and SERS member information). R. LEXIS 875. State ex rel. Toledo.65. Police Officers for Equal Rights v. the statute likely qualifies as an exemption under this statute. R. 145. State ex rel. So long as the statute can be read to prohibit general release. 72 Ohio St. 3d 605.C. R. Toledo Police Patrolman’s Assn. Leonard v. 70 Ohio St. 1333. 50 Ohio St. WLWT-TV5 v.C.43(A)(1)(v). One particularly noteworthy exemption premised on federal law is the exemption of social security numbers. 2151. Leis. Renfro v. (2) The following line of cases illustrates the volatility of this area of the law.C. 149. Records the release of which is prohibited by state or federal law. (2) General confidentiality provisions. 5153. (1) Agency confidentiality provisions. 360. (1990). 3d 440. f. Steckman v. The following are a few examples: R. State ex rel.C. Jackson (1994).17 (Director of Commerce Investigations). Mentor.proceeding than in the context of a civil or administrative proceeding. R. There are also general state statutes. 3d 185. (3) Federally protected information. L-99-1143. 75 Ohio St. 3d 516. Be sure to check the agency’s own statutes. 3d 357. 173.

Protected Information regarding privileged information. but the Public Records Act does not require that the request be put in writing. the trial court has discretion either to grant the motion immediately under R. Consult FERPA for requirements and exceptions. 2953. Exemptions under the Federal Freedom of Information Act. Mechanics of making and responding to a public records request. 132 Ohio St.C. protects the release of educational records without written consent of the student or the student’s parents.S. Section F.C. 2953. 2953.C. R. the agency must provide a redacted copy. g. 149. 20 U. (4) If information within a public record is exempt.32(A)(1).C. the agency may deny the request.C.43(B)(2). § 552. A pending administrative proceeding involving a conviction or intervention in lieu of conviction may be affected. records made confidential in the hands of an agency of the federal government are usually not exempt when in the hands of the state agency. the agency shall make copies available at cost and within reasonable time. (4) Privileged information (a) See discussion below. 2012Ohio-2730.52(A)(1). Niesen-Pennycuff.C. § 1232g(b)(1).(“FERPA”). a. Access to court record sealed or expunged under R. all responsive records must be promptly prepared and available for inspection at all reasonable times during regular business hours. R. 5 U.C. 3. b.52(A)(1). 149. (a) Redaction must be plainly visible.43 provides: (1) Upon request.041(E). or to impose a waiting period before the record is sealed pursuant to R. R. in most instances. 149. (2) Upon request. 2951.C. do not generally act to exempt records in the hands of a state agency.S. The agency may ask that the request be put in writing to assist it in responding to the request. The Supreme Court of Ohio in State v. 26 . remember.3d 416. (3) If the requestor makes an overly broad or an ambiguous request. (c) When determining whether a federal exemption applies. but must provide the requestor with an opportunity to revise the request. held that when a criminal defendant who has successfully completed a program of intervention in lieu of conviction moves for an order sealing his or her record under R.C.43(B)(1).C. unless the state agency is acting for the federal agency in some substantial respect. 149. R.43(B)(1).

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

Gundler (1996). Protects the privacy of Protected Health Information (“PHI”).512(f): Disclosure for Law Enforcement Purposes. (c) both of the privileges are limited in application. Exceptions that may permit agencies to subpoena PHI without patient consent: (1) (2) (3) (4) 45 CFR § 164.512(a): Disclosures Required by Law.43 to obtain copies of the records. at 28 . Pennington v. .C. and other communicative means used by a government decision-maker in the process of reaching a decision.512(e): Disclosures for Judicial and Administrative Proceedings. Confidential records: See Public Records Act Section E(2). (2) The judiciary is barred from probing into “the methods by which a decision is reached . 1979). recommendations. Health Insurance Portability and Accountability Act (“HIPAA”). In re Franklin Natl. above. 149. a. F.Y.(iii) The requesting party filed a mandamus action pursuant to R. (iv) The party received the requested public records only after the mandamus action was filed. [and] the contributing influences” of an administrative decision. 174. Bank Securities Litigation (E. opinions. 75 Ohio St. a. 45 CFR § 164. 2. exemptions/exceptions. b. 45 CFR § 164. 577. What is protected? (1) Protects advice. 3d 171. 478 F.N. (1) The general deliberative process privilege is routinely grouped and usually interchangeable with the executive privilege. 582.512(d): Disclosures for Health Oversight Activities. Protected Information 1. Relation between the executive privilege and the deliberative process privilege. b. 45 CFR § 164. . Note: regulations state specific parameters and conditions for application of each type of exception.D. Deliberative process privilege/executive privilege. State ex rel. 3. and in most cases requires the consent of the patient for release. (b) the rationale for the privileges are similar. Id. (2) The reasons for this are that: (a) the actors are the same. Supp.

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

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

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

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

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

Minch (1990).12. Preponderance of evidence means that agency has burden to show that it is more likely than not that the events charged occurred. Sanders v. 2d 89. Typically. 59 Ohio L. 91. for definitions of reliable. Ohio State Bd. The standard of “clear and convincing” evidence has been rejected as inappropriate.. Statutes or rules 36 . the applicant may have the burden to produce evidence of qualification for licensure. No. Chapter 119 does not explicitly define the burden of proof required. probative and substantial evidence a. Bur.C. c.09 states agencies “shall pass on the admissibility of evidence” presented at the hearing. b. 3d 186. Inc. EBR 132753. below. this will be the agency. 3d 79. Sanders v. of Rev. E. v. 1977). d. See Pang v. R. 1972). 2d 25. 2. c. Abs.P. On appeal of an agency’s order. See Clermont Co. 27. The party attempting to establish that the averments in the notice of hearing are correct has the burden of going forward with the evidence. but the Supreme Court of Ohio has held that the standard for administrative cases is a preponderance of the evidence. probative and substantial evidence. 55 Ohio Misc.” R. probative and substantial evidence. Note – An agency’s enabling act may specify which party maintains the burden of production with respect to specific issues. 119. 59 Ohio L. 135.C.P. c. 197. 119. 13. Reliable. Accordingly. b.C. Standard of Proof Required 1. Fleckner (1950). so the agency will usually present its case-in-chief first. if contested. 1998-Ohio-181. In application cases. Auditor v. 24. all agency orders should be based upon reliable. 22. b. 1993). 33 Ohio Misc. para. D. 81. VFW Post 8586 v.a. Ohio Environmental Bd. Schregardus. Fleckner (1950). 83 Ohio St. Liquor Control Comm.09 does not incorporate the Ohio Rules of Evidence. Preponderance of the evidence standard a. Standards for Consideration of Evidence 1. Chiero v. See discussion. 119.C. of Motor Vehicles (Franklin C. of Pharmacy v. EBR 132761 (June 10. (10th Dist. a court may reverse the agency’s order if it finds that the order was not supported by “reliable. and may therefore present such evidence first. Ohio Liquor Control Comm. 32 Ohio App. but R. Buckeye Bar. 1987). 53 Ohio St. Abs. Section IX APPEALS. See also. 135. probative and substantial evidence. Weinstein (Hamilton 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. 263. 4123. In re Application of Milton Hardware Co. In re Application of Milton Hardware Co. OAC 4723-16-01(E) (in Board of Nursing hearings. a. (10th Dist. 252. (10th Dist. 6. the rules of evidence may be considered in an advisory capacity in an administrative hearing. v. 3d 415. an administrative agency should not act on evidence that is clearly not admissible. (10th Dist.” Chesapeake & Ohio Ry. 16. Douglas v. d. An administrative agency may not sanction as evidence something which is clearly not evidence.. R. v. 2012-Ohio-2218 37 . for Orange City School Dist. v. Ohio State Dental Bd. 2d 157. d. Board of Edn. Co. See. 3. of Revision. 1982). and therefore are not applicable in administrative proceedings. Comm. 1988). c. 1996-Ohio-282. 1969). 163. 1969). competent or probative of facts that the agency is to determine. 2. 162. v.. 1988). Board of Edn.g. Pub. (2nd Dist. 19 Ohio App. Citizens to Protect Environment. but are not controlling). Evidence Rule 101(A) does not mention administrative agencies as forums to which the rules of evidence apply.g.C. However. 39 Ohio App. Health department reports identified by a police officer were admissible. 19 Ohio App. Ohio Rules of Evidence not strictly applicable. 49. Kash (8th Dist. e. R.specific to an agency may provide standards for that agency. 1987). 3d at 417.28 (Unemployment Compensation). for Orange City School Dist. 263. 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. 11AP-133. 4141. Agency standards must be fair and reasonable. (1955). 163 Ohio St. Cuyahoga Cty. The evidence must be probative and relevant. OAC 4723-16-01(E) (Nursing). c. Util. See. 3d 256. 2d 157. e. Evidence Rule 101(A) specifically states: “These rules govern proceedings in the courts of this state. 7 Ohio App.C. 3d 45. (10th Dist. 74 Ohio St. No.10 (Worker’s Compensation). 74 Ohio St. Ohio Liquor Control Comm. Some agency statutes or rules expressly provide that the agency is not bound by the rules of evidence.. 61 Ohio App. Ohio State Racing Comm.” b. 3d 15. Furthermore. Inc. 56 Ohio App. When an administrative agency enacts rules as to the standards of admissibility of evidence to be followed in its hearings. Administrative agencies have a duty to base their conclusions on competent evidence. Haley v. a. rules may be taken into consideration. State ex rel. b. Inc. Bd.. 3d 1. An administrative body should not be inhibited by strict rules of evidence. Chrysler Plastic Products Corp. 417. such rules must be consistent with the guaranty that such hearings shall be fair in all their procedural respects. e. Universal Disposal. 10th Dist.

10th Dist.. 03CA2894. 9.07 provides that “at the hearing. at ¶26. of Review (8th Dist. 9th Dist. b. C-990573. 3d 1. a. (2) In addition. No. Invacare Corp. and (6) upon the agency’s refusal to admit evidence offered by a party. but by sworn testimony of several live witnesses who testified on behalf of appellee. LEXIS 5887. 2004-Ohio-2185. of Emp. No. Kellough v. (2nd Dist. LEXIS 2687. Ohio Dept. Ohio State Bd. Ohio State Bd. Green v. but the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner. No. of Job & Family Serv. LEXIS 1524. of Pharmacy (Hamilton C. of Edn. Hearing Procedure 1. 6th Dist. the party must proffer the evidence into the record. the Fourth Appellate District concluded that it is “required to give great deference to the hearing officer’s findings of fact. 299. (1) See Valdez v.” i. 1987). (2) the agency or hearing examiner may administer oaths or affirmations. . Mason v.C. 1984). [the party] may . L-98-1105. however. 20 Ohio App. (3) the agency may ask any party to testify under oath as upon cross-examination. 1993 Ohio App. R. of Pharmacy.. 5th Dist. No. Ohio State Dental Bd. Bur.. No. Chapter 119 says very little about the procedure to be followed during an administrative hearing. R. Haley v. b. 2000 Ohio App. Limits on use of hearsay evidence. 119. Taylor v. 4th Dist.. Ohio State Bd. a. 7 Ohio App.” F. Servs. Erdeljohn v. Bd. at *17. 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. stating that Taylor is not applicable where both parties were permitted to present hearsay evidence at the hearing. 38 .4. 6. It is not always unreasonable. 2d 1.C. present evidence and examine witnesses appearing for and against him. 2012-Ohio-1002. in Todd v. and appellant’s testimony was contradicted not only by appellee’s hearsay evidence.09 sets forth the basic parameters of a hearing: (1) a stenographic record may be made of the hearing.” This section is silent regarding the manner in which evidence is to be presented. . 38 Ohio Misc. c. Relatively little statutory guidance. The hearsay rule is relaxed in administrative proceedings. (4) the agency shall pass upon the admissibility of evidence. No.07 and 119. 119. 3d 297. at *12. 11CA-9. “and it would be inappropriate to disregard his findings simply because they are partially based on admissible hearsay testimony. at *5.P. The only references to hearing procedures appear in R. 119. 1998 Ohio App. Spud’s Auto Parts.e.C. to consider hearsay evidence that is in conflict with sworn testimony. witness credibility. 92CA5451. 10AP-419. General procedure. (5) a party may make evidentiary objections to the evidentiary rulings of the agency.09. Miller v. 1st Dist. 2011-Ohio-431. 1982).

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

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

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

119. Zurow v. at 19. R. (3rd Dist. (3) The failure to swear a witness is a waiveable error. Practical Considerations 1. Cleveland (8th Dist. the Agency’s decision will not be reversed. J. 611. 119. R. 2d 14. The hearing examiner should rule on a motion to admit evidence after entertaining any objections to the introduction of evidence. Bd.C. he/she should so move. Marked exhibits should be presented to the witness for identification and authentication. Exhibits also may be admitted at the close of case-in-chief at which time the opposing party may object. 69 Ohio App. Under the Ohio Rules of Evidence. para.09. Exhibits should be marked. Evid. Ask witnesses to state and spell their name for the record after being sworn in. 1990). 7. Documentary Evidence. b. 87. Hearing officer and opposing counsel should be given a copy. 8. 2. cross-examination may concern any relevant area of inquiry even if beyond the scope of direct. (2) An agency’s refusal to accept testimony of more than two character witnesses is not an abuse of discretion. 3.09. Who can administer oaths: Chapter 119 grants the agency or anyone delegated to conduct the hearing with the power to administer oaths. 5. b. 18-19. Cross Examination a. and substantial evidence. The agency may call a party to testify under oath as upon cross-examination.such decision could not be justified by reliable. 2. Direct examination a. the licensee may call witnesses who will vouch for his/her/its character. Ohio Veterinary Med. If the party does not object. and to speak audibly and clearly for the reporter. Id. Character Witnesses (1) In discussing the character or business reputation of a licensee. 42 . 3. 61 Ohio App. probative. Kaufman v. Marked exhibits should be shown to opposing counsel. If a party desires to introduce marked exhibits into the record. giving opposing counsel opportunity to voice objections. 3d 79. 6. 4. which may be used as a guide. 1978). R. b.C. para.

Jurisdictional items should always be placed into the record: e. Summit Cty. hearing request. dismissals (without a hearing) based on procedural issues such as res judicata and subject matter jurisdiction have been upheld by the courts on appeal. Exceptions: a. 10th Dist. Bd. 3d 677 at 683. respondent may not file a motion to quash (dismiss/summary judgment) a hearing once requested. Bessey. State ex rel. letter to Respondent scheduling hearing. 08AP-158.” Talwar v. 1992). v. 2004).). 156 Ohio App.12. a licensee may not bypass the special statutory proceedings in the guise of obtaining declatory relief. 3d 94. Ohio State Dental Bd. of Ohio. 72 Ohio St. 165-67: if documentary evidence is not properly introduced and admitted into the record at the administrative hearing. 2. Where the legislature has provided special statutory proceedings for the discipline of a licensee. at ¶ 4 (citing State ex rel. Executive Branch (9th Dist. 5. Boggs v. (1995). 1969). 2007-Ohio-3328. 19 Ohio App. 2006-Ohio-2171. K.C. No. State of Ohio ex rel.O. Aust v. 8. proof of receipt. Fields v. 3. Springfield Local School Dist. v. 43 . 136 Ohio App. 23 Ohio St. it must appear beyond reasonable doubt from the complaint that the plaintiff/relator can prove no set of facts entitling him or her recovery. 137. (10th Dist. (10th Dist. Agency/Board may not deny the right to a hearing. Failure to provide opportunity for a hearing violates Due Process. at ¶ 14.g. 2000). 3d 485. 2009-Ohio5852. 172 Ohio App. 83 Ohio App. 72-73. of Reclamation (1986). but nevertheless becomes part of the record on appeal. 10th Dist. Gary Charles Gelesh. (1) In order to dismiss a complaint for failure to state a claim upon which relief can be granted. D. 12. or were agreed to by the parties. 119. Failure to state a claim with proper notice. the court may reverse the agency’s action.E. Bd. proof of mailing by certified mail. of Ohio (10th Dist. notice letter. Bd. R. 3d 131.7. under Civ.2d 1256 (10th Dist.. 05AP-1079. Williams v. No. including the right to appeal any agency decision pursuant to R. any written memoranda in which continuances were granted. of Edn. Doriott v. 2d 157. 874 N. In re Application of Milton Hardware Co. Dressler Coal Co. Can A Case Be Dismissed Prior to Hearing? 1. In general. Although due process considerations would probably preclude an agency from dismissing a case on its merits before a full adjudication hearing is completed. 3d 68. The State Medical Board of Ohio. 3d 365. An administrative agency is precluded from dismissing a hearing once it has been requested by a respondent. ¶ 25-27. (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. State Med. 4. State Med. Div.

of Edn. See In the Matter of: Hal Artz Lincoln-Mercury. Bd. 11. R. VFW Post 1238 Bellevue v. (6th Dist. Skalsky v. of Commrs. Hanson. MCI Telecommunications Corp.12. 130. 44 Ohio St. v. b. b. 3d 195. 406-07.06. however. Limbach (1994). Zieverink v. The prudent 44 . syllabus. Kresge Co. As creatures of statute. Inc. at 231. Party should raise “as applied” constitutional challenges at hearing. 1992 Ohio App. 68 Ohio St. (1992). 119. 595-96. Agency may not rule on the constitutionality of a statute. at *5. v. 65 Ohio St. Kinney (1986). No.C. Guernsey Cty. Hanson v. 3d 229. 3d 184. Herrick v. 1 Ohio App. 2d 128.. Addressing Constitutional Issues 1. a. at *24-25. v. the Tenth District held that such challenges could be raised for the first time on appeal as long as the necessary evidence is admitted in the record. (3) In reviewing the complaint. v. 24 Ohio St. 548)). Bowers (1960). 197-99. LEXIS 4883. (1) Although the agency itself may not determine whether a statute has been applied in a manner that is unconstitutional. 170 Ohio St. or whether the allegation is that the statute is unconstitutional as applied. and the expert commentary of the agency on the issue.C.S. See also. S. 7th Dist. the administrative agency is entitled to discipline the respondent absent respondent’s presence so long as the opportunity for a hearing was afforded upon request. This is true whether the challenge is a facial challenge to the statute. Issues involving challenges to the validity of statute or its application. 3d 591. State ex rel. See Cleveland Gear Co. Limbach (1988). 65 Ohio St. 131 Ohio App. 10th Dist. No. 3d 545. Ackerman (1st Dist. 548. Section 119. 3d 545. 1998). LEXIS 4932. 35 Ohio St. (2) In at least one case. 91AP-1493. 1981). Kosydar (1975). of South-Western City Schools v. Ford Motor Co. 405. Hairston. L. 3d 10. Such determinations are reserved to the courts alone. administrative agencies themselves are without jurisdiction to rule on the constitutionality of a statute. Ohio Liquor Control Comm. 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. the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the non-moving party. Bd. 1991 Ohio App. 90-B-20. 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.95 (quoting State ex rel. Withdrawal by respondent (1) Although respondent has the right to withdraw from his or her own hearing.

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

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

46

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

47

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

48

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

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

v.. 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. Ackerman (6th Dist. Bd. 119. 1981). 1996 Ohio App. therefore. by review of the record and inconsistencies therein.C. there existed an adequate remedy at law). But see State ex rel. But see. Bd. 1982). 210. itself. Aircraft Baking Sys. There is simply nothing constitutionally suspect. b. v. 22841.09.” e. and (2) Must set forth the following: (a) Findings of fact. Ohio Civ. R. Id. No. State Med. 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. with respect to the substitution of hearing examiners here. (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. If a report and recommendation is not issued. Report and Recommendation a. and determine the credibility of the expert testimony. including transcripts and exhibits. and determine the credibility of the expert 51 . 10th Dist. Rights Comm. a party might bring a mandamus action to cause the administrative agency to act. No. Inc. of Ohio.” Lies v. deliberate. Ohio Veterinary Med. 187 (mandamus will not issue for board’s failure to issue decision when appellant had statutory right of appeal. and independent conclusions about the issues. at *6 (“It matters not whether the Board. 9: (1) Written report. 3d 204. at ¶ 25. heard the testimony and observed the witnesses’ demeanor as long as the members of the Board review all of the evidence. 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. Heath v. and. Bd. 5 Ohio App. 7. or statutorily prohibited. Required elements. Kremer v. 103.” Erie Care Center. f. (b) Conclusions of law. including transcripts and exhibits. (c) Recommendation of the action to be taken by the agency. 3d 102. 64 Ohio St. 2 Ohio App. para. The Ninth District Court of Appeals also held that the second hearing examiner could assess credibility of the witness without personally observing witness testimony. heard the testimony and observed the witnesses’ demeanor as long as the members of the Board review all of the evidence. 2006-Ohio-1304. Corp. 3d 186. (1st Dist. the court may still find there is ample evidence in the record to support the agency's decision to revoke a license. (1992). LEXIS 949.The Court held at 832: “It matters not whether the Board. 95APE09-1247. itself. State Med.

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

211-212. 3d 235.C. 567. 246-47. e. 2. Administrative powers are only implied when clearly necessary to effect an express power. Retirement Bd. 614 N. 70. 2. 1998-Ohio-380. R. Western Reserve Psychiatric Habilitation Center. OAC 4723-16-12 (Nursing Board).. E. 2. (9th Dist. or the introduction of further documentary evidence.C. 3d 562. The party may appear on his or her own or through counsel. 82 Ohio St. Util. Wise v. Ohio State Racing Commission. R. Comm. 119. para. Agencies sometimes remand cases to the hearing examiner for the taking of additional evidence. (1918). Personal Appearances Before the Agency 1. agencies to appoint a hearing examiner to conduct the hearing. 119. 106 Ohio App. 119. Jonathan R.2d 625 (9th Dist. Green v. Washington v.C. In such cases. OAC 4731-31-15(G) (Medical Board). Failure to Hold Hearing Prior to Expiration of License/Surrender of License 1..2d 833 (10th Dist.09. C. Public Emp. Taking of Additional Evidence 1.E. 9. Implied remand a. 666 N. See also. 83 Ohio App. the agency may order the taking of additional testimony. 53 . Remand to Hearing Examiner 1. 9.091. 1992) 2.1. 72. and the agency can issue an order following deliberations on the case. but does not require. Pub. 1995). 119. 3. R. Accordingly. R. State ex rel. 3d 208. para. Some agencies permit parties to personally appear before the agency prior to the agency’s deliberations. 1981) 3 Ohio App. D.C. no report and recommendation is needed. 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.09 permits. 3d 218.. paragraph two of the syllabus. Id. 99 Ohio St. some agencies conduct hearings without a hearing examiner. Prior to issuance of a final order. See.g.E. (1) Generally. Haehn v. an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute. Mallory v.09. Ohio Motor Vehicle Dealers Board. depending on agency rules. B. 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.

. The agency’s order must be “based on such report. 2. e. 54 . 1991 Ohio App. 91AP-354. and additional testimony and evidence. 246-47. 1991 Ohio App. 3d 555. Several courts have held that while R. Ford Motor Co. A. recommendation. 525 (remand to consider additional evidence). 47). 2 Ohio App.(2) Such implied power can be no greater than the express power and must be exercised subject to the same express power limitations. 3 Ohio App. at *7. No. b. are limited to those that ‘may reasonably be necessary to make the express power effective. LEXIS 3665. transcript of testimony and evidence. 560 (remand for briefing of legal issue). 93APE09-1216. No. deliberate. 1993 Ohio App. Inc. c.09 provides that an agency’s order must be “based on” the evidence. if not explicitly. at *5-6 (holding that remand was an interlocutory decision. 3d 522.” R. 44. 82692. 2000). Ohio Veterinary Licensing Bd. 137 Ohio App. (1st Dist.. Vonderwell v. 2004-Ohio-2981. Slain Ford. 3d 324. Ohio State Racing Comm. Lies v. LEXIS 3665. para. McCall v. in the absence of any showing that the findings of fact are defective. Ohio Veterinary Med. American Isuzu Motors. Mallory. Bd. 3d 204.. Slain Ford.. not a final order). or objections of the parties. LEXIS 6035. Urella v. Chiropractic Board: OAC 4734-4-13(E) Counselor and Social Work Board: OAC 4757-11-04(H)(3) Dental Board: OAC 4715-15-16(E) Medical Board: OAC 4731-13-15(E) Respiratory Care Board: OAC 4761-11-14(E) 3. a. 3rd Dist. See Lally v. Bd. 33 Ohio App. Ohio State Dental Board (9th Dist. 1981). 10th Dist. 82 Ohio St. 119. 96 Ohio St. .09. Mallory v. 15-2000-13.. Inc. v.. Courts have implicitly. Retirement Bd. 10th Dist. These “implied powers . State Med. 1998-Ohio-380 (quoting State ex rel. Marion Ob/Gyn v. Public Emp. at ¶ 98 (remand to consider previously excluded testimony). and independent conclusions about the issues”). (3) Power will not be implied when the agency has the means to decide the issue within the confines of its express authority. at *5-6. this language does not necessarily require agencies to read the entire transcript of the proceeding. 3d at 220. 8th Dist.C. Chapman v. 2000-Ohio-1812. 326-27.. State of Ohio Med. 119. 3d 235.C. recognized the power of agencies to remand cases to the examiner. No. non-appealable order. d. 05AP1137.’” State ex rel. 9. Bentley & Sons Co. 1986). No. at ¶ 9 (remand for purpose of determining attorney’s fees). 118 Ohio App. Inc.. 1997). An agency’s decision to remand to the examiner is an interlocutory. Bd. (10th Dist. No. 2006-Ohio-3315. Consideration of the Record 1. 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. Green. Pierce (1917). 1998-Ohio-380. b. 10th Dist. 2. v. Some agency rules provide that the agency may remand a case back to a hearing examiner for the purpose of taking additional evidence. (10th Dist. Zak v Ohio State Dental Bd. F.

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

No. Ohio Bur. Further. The agency should be able to both articulate and demonstrate how it is applying the law to the case before it. C-3-96-010. when considering a report and recommendation under 119. (10th Dist. A reviewing court will need to be able to determine what the agency relied upon. 3d at 2. the agency should afford due deference to the findings of the examiner. 2. 2003-Ohio-987. the Supreme Court noted that the agency did not indicate that it examined the record. Graziano v. an administrative agency. of Edn. This is just as important even if the case is not appealed. Ohio Dept. 70 Ohio St. Id. 52 Ohio St. (10th Dist. Brown v. 67 Ohio App. Serv. Ohio No. d. City of Springfield. 3d 1. 1990). of Emp. para. 3d 40). (2) The agency must be careful to avoid the appearance that it was not giving proper deference to the hearing examiner as criticized in Brown. Serv. and the reasons why it relied on certain facts as opposed to others. 1999) at *21-22. at ¶ 17. Ohio Bur. If the penalty is to be less than that proposed by the hearing examiner. Although the agency has the authority to make de novo findings of fact. Ohio Bur. but did not accept the recommendation. 79. 1985). The Agency may only take actions or impose penalties authorized by law.C. Ohio Bur. Crow v. and further adopted the findings of fact. 3d 77. Agency modifying the penalty (1) Per Brown v. Ohio courts have indicated that. as the agency may be called upon in subsequent hearings to apply the facts in a similar fashion. 9. Franklin Cty. of Emp. In the Brown case. 3. Trout v. 32 Ohio St. the agency should give due deference to the recommendations of the hearing examiner. 119. then the mitigating factors warranting the lesser penalty should be specifically set forth. Amherst Village Bd. (1987). as the ultimate factfinder. 293. 3d at 2. Blinn v. In re Certificate of Need Application of Providence Hosp. H. Sheriff (1990). 10th Dist. 1999 U.. 3d 391. 70 Ohio St. 2. Serv.S. e. Serv. Suspensions 56 . of Edn. it must include in the record the reasons for such modification or disapproval. (1994). c. R. 29 Ohio App. (citing Jones v. it should be able to demonstrate the conclusions it draws from the facts. of Emp. and what the agency considered to be facts supported by the record. 398. 02AP-783. of Emp. 3d 289. See Brown v. the Supreme Court of Ohio has held that where the findings are based upon assessments of credibility driven by observance of witnesses’ demeanor. then the exacerbating factors should be stated with particularity. Disciplinary Actions 1.09. S. (1994). 70 Ohio St. If the converse is true.09.D. may make de novo findings of fact and conclusions of law.a. LEXIS 22065 (Mar. Dist. b. If the agency modifies or disapproves the recommendation of the examiner. (1994).

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

2007Ohio-2877. The notice of appeal may.C.C. 119. The order modifying or disapproving the Report and Recommendation must state the reasons for the modification or disapproval. that tracks the language of R.” R. The order must include or have attached a statement of the time and method by which an appeal may be perfected. and substantial evidence and is not in accordance with law. at ¶ 14-15. 3d 47. b. Ohio Dept. para.12 of the Ohio Revised Code. para. J. 114 Ohio St. The order approving the Report and Recommendation should state that the recommendation is “confirmed and approved. at ¶ 16. 2. 10. a. 119. R. The agency may incorporate by reference the entire Report and Recommendation.09. but need not. set forth the specific grounds of the party’s appeal beyond the statement that the agency’s order is not supported by reliable. 58 .I. and should attach a copy of the same to its final order. Content and Issuance of the Order 1. 10.12.C. b. R. R. of Commerce. certified as an exact reproduction by the officer responsible for keeping the original. para. Ohio Dept. R. 119. 3. The Notice of Appeal shall also be filed by the appellant with the [appropriate court of common pleas]. para. para. 2007-Ohio-2877. The agency must maintain the original order in its files. Such notices of appeal shall be filed within fifteen (15) days after the mailing of the notice of the [Agency’s/ Board’s/Commission’s] Order as provided in Section 119.C. 119. 9. was found sufficient to put a party on notice as to how to file an appeal of an agency’s order. A certified copy is a duplicate of an original.C. Hughes v.09. 119. 119.09.C. Hughes v. 4. R. The following language is recommended for the general statement of time and method: Any party desiring to appeal shall file a Notice of Appeal with the [Agency/ Board/ Commission] [address].09. Service of the Order 1. 5. 119. 9. probative. para.C. The party must be served with a certified copy of the order. of Commerce. 10. 10. Language. a. and substantial evidence and is not in accordance with law. probative. The order must be entered on the agency’s journal.09.09. setting forth the order appealed from and stating that the agency’s order is not supported by reliable.

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

395. the doctrine of collateral estoppel may be used to bar litigation of issues in a second administrative proceeding. 60 . 3d 392. 394. Res judicata/collateral estoppel applies to administrative decisions of a judicial nature.a. Moitie (1981). Identity of the issues (1) A judgment or decree in a former action does not bar a subsequent action when the causes of action are not the same. or issue preclusion. syllabus. Goodson v. 62 Ohio St. (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment. and (4) the issue must have been identical to the issue involved in the prior suit. (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue. Inc. State Emp. 81 Ohio St. 2d 133. 3d 193. from subsequently relitigating the identical issue raised in the prior action. syllabus. A judgment. or a person in privity with him. Ft. (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. 452 U. e. where an administrative proceeding is of a judicial nature and where the parties have had an adequate opportunity to litigate the issues involved in the proceeding. A prior judgment estops a party. the general rule is that mutuality of parties is a requisite to collateral estoppel. Federated Dept.” Superior's Brand Meats. c. OEA/NEA v. b. A final. As a general principle. even though each action relates to the same subject matter. Stores. in order to preclude either party from relitigating an issue. To determine whether a second action was barred by this rule of law. (1983). 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. Relations Bd. (1) “Ordinarily. 2 Ohio St. Frye Teachers Assn.. 398. McDonough Power Equip.S. one of the primary considerations is the identity of the evidence necessary to sustain the action. v. In order to prevail on the defense of collateral estoppel. Inc. collateral estoppel operates only where all of the parties to the present proceeding were bound by the prior judgment. must be preclusive upon both. Mutality of the parties (1) In Ohio. v. d. Lindley (1980).

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

10th Dist. under R.C. No. 3d 147. Professionals Guild of Ohio (1989). 13-0215.C. 2d 91.01(F). association. 74 Ohio App. 1991). Akron City School Dist. 3d 113. 46 Ohio St. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R. 3d 99. Hamilton Cty. 387. 2002-Ohio-1318. v. State ex rel. of Mental Retardation & Developmental Disabilities v. Wells Community School. 114. Dept. (1938). 119. Compare Seneca County Bd. paragraph one of the syllabus. and has standing. nor its director was a “party” within the meaning of R.01.12. the State is not a proper party to an appeal pursuant to 119.C.” R. 3rd Dist. 62 . 1111. Bd. 1984). (2) When the State acts merely as an adjudicator. of Edn. 2002-Ohio-4235. Ohio State Bd.01(G).C. e. d. 62 Ohio St. Osborn. 119. 21 Ohio App. 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. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency. 3d 48. Bd. 46 Ohio St. Ratchford (10th Dist. 1970). Jackson (1976). Haig v. 49. firm.C. 47-50. Relations Bd. 119. B. 46 Ohio St. 102. of Mental Retardation & Developmental Disabilities v.” R. c. Unless a statute provides otherwise. State Emp.. (1992). Siesel.C. 2d 41. 385. Serv. of Admin. 119. Harrison v. 119.01(G). Government entities as parties for purposes of R. Broadview Developmental Ctr. Chapter 119). without an independent interest in the matter. rev’d on other grounds. In re Job Abolishment of Jenkins (10th Dist.C. v. Public Utilities Comm. 119. 3d 507.12 (1) Neither the state. State ex rel. 346. corporation. Blue Cross of Northeast Ohio v. 54 Ohio St. Edwards (10th Dist. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party. 47.02 of a hearing on an application for the establishment of a new branch by an applicant bank is a “party adversely affected” under R. 150-51. 120 Ohio App. Osborn v. (10th Dist. or partnership. 134 Ohio St. 1963). Clermont Natl. Other Parties 1. a state agency. of Edn. 347. Parents of Students Attending Edge Academy of Akron & Ida B.C. ”Person” is defined as “a person.12. Bank v. 27 Ohio App. A bank that receives notice pursuant to R. to appeal an order by the superintendent of banks granting the application. Collyer v. 2d 41. 510. (1990).b. 01AP-786. No.12.C. 119. (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.

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. Lucas Cty. of Industrial Relations. as they are not parties under R. Community residents had no right to appeal. 119. c. at ¶ 12. 74AP-231. at ¶ 6. para. C. R. finding that “any requirement to make a written statement of the standard of review in the 63 .12. but need not set forth the specific grounds of the party’s appeal. State Bd. Only the local school board could bring the appeal. The notice of appeal must set forth the order appealed from and state that the order is not supported by reliable. 10AP-421. (2) The notice may. Notice of Appeal 1. at *6. Ohio State Bd.C. 05CVF066560 (June 15. (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. 119. No. probative. para. Setting forth the order appealed from: attach OR sufficiently describe.12. beyond the statement that the agency’s order is not supported by reliable. (ii) The Seventh District Court of Appeals disagreed. 119. and substantial evidence.P. Statement of grounds/required language (1) The notice of appeal must state that the order is not supported by reliable.C. para. Franklin C. 6. 189 Ohio App. Pinkney v.12. and is not in accordance with law. 1976 Ohio App. and substantial evidence and is not in accordance with law. 2005) at ¶ 10.C.. Ohio Dept. Ferguson-Ramos. a certificate of plan approval granted to a real estate developer for the construction of a mall complex. 10th Dist. LEXIS 3041. No. and substantial evidence and is not in accordance with law. (1) Attaching a copy of the order satisfies the requirement to set “forth the order appealed. b. Johnson v. No. R. 76AP-423.12.12. No. 2010-Ohio-4731. 119. probative. Siegler v. 10th Dist. probative. pursuant to R.. 119. of Edn. R.2. 4. 2006). (2) The party need not attach a copy of the order as long as the appellant sufficiently describes the order appealed from. 10th Dist. Barnes v. of Nursing. Court of Common Pleas.” Hunnewell v.C. 4. at *4-5. Ohio State Univ. 1974 Ohio App. 3d 678. 3. 2011-Ohio-2485. 4. See Foreman v.C. LEXIS 8150. Content of Notice of Appeal a. No. 10th Dist. 05AP-511 (Dec.

7th Dist. But see Welsh Development Co. 2012. No. of Pharmacy v. 389 N. Which court of common pleas? a.C. 2011-Ohio-1604 (appeal under R.C. Zidian v Dept. 10th Dist. and a copy with the court. R. 10. No.12 governs appeals taken pursuant to R. Zidian v Dept. the notice that is filed may be either the original notice or a copy of the original notice. The notice of appeal need not contain the language specified by R. 119. County of place of business or county of residence 64 . 2009. 119. ¶ 39. of Job & Family Services. Evankovich. the notice of appeal must be filed with the agency and with a court of common pleas. No.O.Ohio-95. 3d 471. 2012-Ohio1499. of Commerce.P. 1. ¶ 43-44. Chapter 2505 governs the procedure for administrative appeals.3d 198.. v. The statute now provides that. 119.C. 11 MA 39. 11AP-259. 4.2d 202. 12-CVF-1835 (Apr. para.E. Dudukovich v. Under R. 204. 2. 11 MA 39. D. Effective May 8. 7th Dist. of Commerce. probative. of Job and Family Services.12 to remove the requirement to file the original notice of appeal with the agency.2d 1113.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). and substantial evidence and is not in accordance with law”)— the filing of the notice of appeal is an affirmative statement that the respondent believes that the underlying order is not supported by reliable. probative and substantial evidence and/or is not in accordance with law. 2012).C.v.notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction. 2. 128 Ohio St. State of Ohio Bd. Where to File R. 2011-Ohio-3172.12.C. Form of the Notice of Appeal a. Lorain Metropolitan Housing Authority (1979).C. the General Assembly revised R. Inc. 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. 10 MA 153. at ¶ 34. Chapter 119. Ohio Dept. ruled in accordance with the Tenth District Court of Appeals. 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. 119.C.12. 2012-Ohio-1499.C. 58 Ohio St. 12 O.. Ohio Dept. 2505. Deaconess Hosp. 7th Dist. No. 119. Warren County Regional Planning Comm. No.” R. “[i]n filing a notice of appeal with the agency or court.12 (that “the agency’s order is not supported by reliable. Russell v. Franklin C.

(1) In most cases. para. 2006-Ohio-502. No. No.12. 07-564 (July 30.. Altoff v. at ¶ 15. 12CVF7204 (October 17. (3) County of place of business (a) The county where the dentist worked four days per week. para. 04AP-619 and 04AP620. para.P. in the case of an appeal by the Department of Rehabilitation and Correction. b. R. para. 65 . revoke or suspend a license may be filed in Franklin County. 1. was the county of place of business.12. paras. 119. R. 2.C.C.C. not the county where the dentist worked one day per week. 2007). Appeals from the following agencies must be filed in the Franklin County Court of Common Pleas. Duchon v. If the party is not an Ohio resident. 119. Appeals of adjudications that do not deny an application. Dept. 1.C. and may not file notices of appeal in both counties. 119. Altoff. Ohio State Fire Marshal. Ohio State Dental Bd. and has no place of business in Ohio.C. 119. 04CA16. (2) The party must choose one. R.C. 10th Dist. not both. 2012).C. performing services not regulated by the Psychology Board. R. 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. of Psychology. Miami C. 1. Gallia County was not the county of place of business for purposes of an appeal of an order of the Psychology Board. to the Court of Common Pleas of Franklin County.P. the party may file an appeal in Franklin County.12. 119. 2. Chapter 3737 must be filed in the county in which the building of the aggrieved person is located. R. c.12. Appeals from the fire marshal pursuant to R. Peter Garg v.12. 2005-Ohio-1533.12. R. 3. No. at ¶ 12. para. Special designations a. (b) Where the psychologist worked twice per month in Gallia County. The party must choose whether to file a notice of appeal in the county of place of business or the county of residence. No. 4. v. 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. Inc. State of Ohio Bd. Franklin C. of Commerce. 2. 119. 4th Dist. 2006-Ohio-502. Franklin County Court of Common Pleas a. BP Exploration & Oil. 1: (1) (2) (3) (4) Liquor Control Commission Medical Board Chiropractic Board Board of Nursing b.

Ohio State Med. Bd. 24. Ohio Veterinary Med. 10th Dist. The filing of an appeal does not automatically operate to suspend or stay the agency’s order. 103. 04AP-748. 1993 Ohio App. 2006-Ohio-3436. 84 Ohio St. Evidence a. No. Morrison v. ¶ 28 (R. LEXIS 5647 (Nov. paragraph one of the syllabus.C. Ohio Dept. Ohio Dept. (10th Dist. a. 1993). 2012-Ohio-95. Geroc v. No. 321.C. of Commerce. 5..12. of Admin. Yeager v. Mansfield. A stay of execution of the agency’s order pending appeal is not automatic. Suspension (Stay) of Agency’s Order on Appeal 1.C. Bd. R. Proper service pursuant to R. 110. Chapter 2505 governs the manner for filing appeals under R. Colonial. R. Ohio Dept. No. Nibert. at ¶ 6. (8th Dist. 2d 48. at ¶ 13. 2. 119. 8th Dist.. 2012-Ohio-2908. of Job & Family Services. 02AP-1019. 3d 100. 10th Dist. 11AP-259.12.c. Pursuant to R.C. must be filed within 15 days of the mailing of the agency’s order. Liebold v. para. Hiddens. Williams. 1987). 3d at 102. 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. one to the agency and the other to the court. LEXIS 744. Ohio Dept.C. 3d 47. Inc. 51. The court held that R. 114 Ohio St. 2003-Ohio-3121. Harrison v. both notices of appeal. of Ins. 2. 2nd Dist.12. 119. 4th Dist. Scott (1955). 3d 192. 5th Dist. 3. 195. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R. Time for Filing the Notice of Appeal 1. v. App. 3. E. (Franklin C. The actual mailing date of the order is the event that triggers the appeal period. 119. State v. 119. of Rehabilitation & Correction (1998). 2007-Ohio-2972. No. 10th Dist. 1995). 1955 Ohio App.12 deprives the court of jurisdiction over the appeal and mandates dismissal. 189. 2505. 21487.07) Nibert v. 511. Dickson v. 2002-Ohio-5986. 2000). 4. Ohio Dept.C. No.42(C). v.P. at ¶ 14. Granting of suspension of the order 66 . Ball. 2007-Ohio-2877.C. b. 01CA13. No. 2011 CA 0085. Hughes v. Ohio Liquor Control Comm.12 is a condition precedent to the running of the time for appeal. 72 Ohio Law Abs. 114 Ohio Misc. 103 Ohio App. 3d 317. F. Deaconess Hosp. Bailey v. 4.C. Serv. 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. 84 Ohio St. 37 Ohio App. Arndt v. para.

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

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

The final adjudication order may apply to a license that was renewed during the appeal (regardless of stay/suspension of agency order). of Ohio. 265. and did not intend for the limit to be evaded with successive stays. City of Dayton v. State Med. at *24-25.C. 9951. Expiration of license shall not affect the appeal. b. R. 6.C. 69 . 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. 119. Haddix. R. (i) The stay does not continue on appeal to court of appeals. 63 Ohio App. (3) However. 119.12. any trial court order suspending an agency order will remain in effect until the appellate process is complete. c. 5. 2nd Dist. ¶ 8. 119. No. 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. LEXIS 5639.C. Bd. Ohio State Dental Board (7th Dist. para. 1991).(2) Generally where a timely appeal is taken from a trial court. (b) Fifteen-month limitation on suspension of agency order is constitutional and does not violate due process or equal protection rights. Giovanetti v. Plotnick v. LEXIS 10933.12. Exceptions (1) Liquor Control Commission. R. A license renewal cannot be denied by reason of an agency order that is on appeal and has been suspended by the court. para. 1987 Ohio App. R. 6.C. 119. 84AP-225 & 84AP-362. (c) The General Assembly set a definite time period for the duration of a suspension of the agency’s order.12. Nos. para.C.121. b. (b) The court is required to enter judgment within six months of filing of the record. 1984 Ohio App.12. at *6. (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. 10th Dist. R. 119. License renewal and suspended agency orders a. whichever occurs first. 3d 262. or upon a final decision of the common pleas court.

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

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

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

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

New evidence of constitutional issues (1) If an appellant presents evidence before a state agency concerning the constitutionality of a statute as applied.12. 60(B)(2).” Holden v. Duryee (9th Dist. 3d 278. Ohio State Bd. If the appellant does not present such evidence before the agency. b. 288. of Pharmacy. 11.12 relating to newly discovered evidence is analogous to language in Civil Rule 60(B)(2).” Steckler v. courts have held that the moving party has the burden of demonstrating: (a) that the evidence was actually “newly discovered”. and that a new trial would probably produce a different result. cases interpreting Rule 60(B)(2) may therefore be helpful in interpreting R. 82215. Ohio Bur. it must have been discovered subsequent to the trial. and (c) that the evidence is material. State Bd. Newly discovered evidence and Civil Rule 60 (B)(2) (1) Language in R. (b) that the movant exercised due diligence. Duryee. 3d at 502. 1990). No. 8th Dist. 2003-Ohio-3806. of Pharmacy. of Registration for Professional Engineers & Surveyors (9th Dist.C. 3.C. not merely impeaching or cumulative. 540 (citations omitted). 1997).12. 67 Ohio App. R. and b. Could not with reasonable diligence have been ascertained prior to the hearing before the agency. c. 119. 83 Ohio App. at ¶ 36. then the trial court may also determine the constitutionality of the statute as applied. newly discovered evidence does not refer to newly created evidence. (2) In interpreting Civ.C. 3d 33. Ohio State Bd. CVS/Pharmacy #3131 v. Clark v. CVS/Pharmacy #3131 v. Newly discovered evidence a. of Psychology (8th Dist. 3d 495. 2003-Ohio-3806. of Motor Vehicles (9th Dist. 502. however. Unless otherwise provided by law. Newly discovered. 2. at ¶ 36. 121 Ohio App. 101 Ohio App. R. 1995). 119. that is. Diversified Benefit Plans Agency v. 119. 1992). 38. Ohio State Bd. 101 Ohio App. para. “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. he or she cannot then raise the constitutional issue by introducing new evidence before the trial court unless the evidence is newly 76 . 3d 531.1. the court is confined to the record as certified to it by the agency. The court may grant a request for the admission of additional evidence when it is satisfied that such additional evidence is: a.

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

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

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

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

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

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

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

Kisil v. probative and substantial evidence and is in accordance with law. Bd. 11AP-544. Westerville City Schools v. b. 1975). 319. 2012-Ohio-1416. 1980). Bingham v. (7) As long as the administrative agency’s order is supported by reliable. rest on improper inferences. may have reached a different conclusion. 3d at 528. 2d 108 at 111. 236. if it were the original trier of fact. Miami-Jacobs Career College v. Ohio Bd. 2011-Ohio6089. of Edn.¶ 42. 2d 120. No. Licensing Bd. State Med. (5) A reviewing court should not substitute its judgment for that of an administrative board. Therefore. (8) The court must defer to the factual findings unless the findings are internally inconsistent. where it is clear that the common pleas court’s judgment was made entirely upon the evidence. 9th Dist. Ohio State Liquor Control Comm. 3d 79. Sandusky (1984). VFW Post 8586 v. but. 10th Dist. 1991). R. 1998 Ohio App. it can only affirm and cannot reverse. 11AP-174. Agency may appeal only on questions of law relating to the constitutionality. the agency cannot appeal. 328-29. 84 . ¶ 14. Inc. (10th Dist. a. vacate or modify an order of an agency unless it finds that the order is supported by reliable. Crumpler v. 3d 30. at *6-7. rule. Furthermore. probative and substantial evidence. 06AP-1055. A reviewing court has no power to review penalties meted out by the agency. 46 Ohio App. 12 Ohio St. when the trial court has made no specific determination as to the meaning of a statute.of Cincinnati v. Griffin v. v. vacate or modify. d. 71 Ohio App. 1 Ohio B. Conrad (1984). No. No. (6th Dist. 81. Ladd v. 63 Ohio St. Café Napoli Partnership v. 119. 34. State of Ohio. Ohio Counselor and Social Worker Bd. (10th Dist. 312. 10th Dist.. the agency’s findings are not conclusive. Appeal from the Common Pleas Court to the Court of Appeals 1. Ohio Veterinary Med. Civil Rights Comm. No. it is immaterial that the reviewing court. Farrao v. 170 Ohio St.. 83 Ohio St. 1998-Ohio-181.12. L. (6) Although the common pleas court should afford due deference to the factual findings of the agency. or are otherwise insupportable. where it makes such a finding. Bureau of Motor Vehicles (5th Dist. 2007Ohio-3210. at ¶ 16. 10th Dist. An agency may appeal from a common pleas court’s review of an agency decision only upon questions of law. the court of appeals is without jurisdiction to review that court’s judgment. A reviewing court has no power to review penalties (1) The Court of Common Pleas may reverse. construction or interpretation of statutes and rules of the agency. of Nursing. Board of Liquor Control (1959). 3d 323. 122-23. of Ohio.C. State Bd. 18510. Ohio Liquor Control Comm. 233. LEXIS 532.” Henry's Cafe. Appeals from common pleas court by the agency are limited. Rep. or regulation.. 76 Ohio App. 1991).

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

092. in an amount not to exceed $75 per hour. d.092(F)(2) would not bar recovery of fees. 2335.).39. “Fees” means reasonable attorney fees.C.C. 124. which allows a prevailing party on appeal to move the court for attorney fees in accordance with R. Moody (1st Dist. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R.092(F)(1). R.C.C. R.C. 124. 2.C.C. and 2.12. ATTORNEY FEES A.092(F)(4). An adjudication hearing was held by the state personnel board of review pursuant to R. 119.092(A)(2).34 (involving removals or reductions for disciplinary reasons). 3d 600. An adjudication hearing was held to establish or fix a rate. A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. or local government. 119. e. (1) NOTE: There is a split of authority concerning the scope of R. syllabus. state. Chapter 119 contains two attorney fee provisions: 1. and R.C. Recovery of Attorney Fees by Party Prevailing at Hearing (R. R. 1. the First District has held that attorney fees may be recovered after hearings under R. 119.C. b.C. 119. The fees of the prevailing eligible party were one hundred dollars or less. 86 . 152 Ohio App.C.C. but not R.C.C.C. 119. R.092(F)(4). Haghighi v.C. Non-recoverable fees a. 124.092). 119. 124.03 (involving discharges or layoffs) and those arising R.34. allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level. 2003-Ohio2203.092(F)(3). 119. 119.092(F)(2).C. R. R. 119. What are “fees”? a. 119.092(B)(2)(c).X. c. Relying on the plain language of R. R. (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits. 119.03. unless the agency has established a higher hourly rate by rule that is applicable under the circumstances. B. An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits.092(F)(4) as it pertains to the state personnel board of review.C. 119. R.

Ohio Civil Rights Comm. 43. 119. Hamilton Cty. f. A motion to the agency is the only mechanism for recovering fees. Licensing Bd. Chapter 4117. 4. 1999 Ohio App. (1st Dist. 98CA00025.C.after hearings under R. A prevailing party is entitled to attorney fees.092 does not permit an eligible prevailing party to file a separate action for fees in common pleas court. O’Connor (10th Dist. (3) The Tenth District Court of Appeals has held that all lawful hearings before the SPBR are necessarily in accordance with R. The Ohio Civil Rights Commission is not an “agency” for purposes of R. 119. 3d 723. Nos. at *37. Juvenile Div.12 b. Ohio Veterinary Med. the award is not automatic. Estate of Kirby v. 78 Ohio App. LEXIS 4813.C. at *7-8. Carruthers v. See discussion below re: “prevailing party” under R. State ex rel. 3d 39. Ct. 401-02. of Common Pleas. or an organization that had a net worth exceeding five million dollars at the time the party received notification of the hearing. 5th Dist. No. 3d 397.03. Discount Fireworks. An “Eligible party” means a party to an adjudication hearing other than the following: (1) The agency. 1997). (3) A sole owner of an unincorporated business. 725. R. R. 119. (1995). LEXIS 3536. R. (2) An individual whose net worth exceeded one million dollars at the time he received notification of the hearing. 119. 3. 1999CA00055.C. 73 Ohio St. 124. 5th Dist.C.092. 121 Ohio App.092(A)(1). Who can recover fees: prevailing eligible party? a. shall not be excluded as an eligible party because of its net worth. 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. Stetz. Wilde v.092(F)(4). 124.. 1999 Ohio App. b. Auglaize Mercer Community Action Comm. and (4) An employer that employed more than five hundred people at the time the party received notification of the hearing.03 -. however.C.C.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. Inc. g. An adjudication hearing was held by the state employment relations board pursuant to R.C. Procedure for requesting fees from the agency a. 87 . v. 119. 98CA00138.C. 1992). v.

119. b. the agency may consider the motion. 119. (1st Dist.C. and the rate at which the fees were calculated. 5. Consideration of the motion for fees a. State ex rel. R. the actual time expended. 3d 723. 1998) 130 Ohio App. d.C. (2) that special circumstances make the award unjust. Burden on the agency a. 119. 6. Indicate that the party is the prevailing eligible party and is entitled to receive an award of compensation for fees. c. and e. R. Ohio Civil Rights Comm. 7. This itemization shall include a statement from any attorney who represented the prevailing eligible party that indicates the fees charged. R. 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.092 requires only a “review” by the referee or examiner who conducted the adjudication hearing. Indicate the amount sought as an award.c. No hearing required. 119. Include a statement that the agency's position in initiating the matter in controversy was not substantially justified. State Dental Bd. that determination is not subject to review by the agency.092(B)(2). Identify the party. v. The agency has the burden to prove the following: (1) that its position in initiating the matter was substantially justified. Auglaize Mercer Community Action Comm. (1995).092(B)(1). 73 Ohio St. or 88 . Itemize all fees sought in the requested award. Reviewed by the examiner or agency (1) The request for attorney fees is reviewed by the hearing examiner who conducted the adjudication hearing. (2) If there was no hearing examiner. The motion shall do all of the following: a. Sohi v. R.C. 425. 726.092 does not require a hearing on the motion for attorney fees. (3) If the determination is made by the hearing examiner or referee.C. Instead. 3d 414. R. 119.C. b.092(B)(3).

and finds improvement in deficiencies.(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. of Health v. 119.C. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100.07. Sowald. 1992-Ohio-1. (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. Sowald.C. 9. 8. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. R. Merits of the motion: was the agency “substantially justified” in initiating the action? a.12’s provision for attorney fees. not its initiation. (2) Whether the position of the agency in initiating the matter was substantially justified..06 and 119.e. Sowald. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation. 1992-Ohio-1. (3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing. Ohio Dept. as found by the court of appeals. b. i. Initiating action (1) “Initiate” means to commence an action. issuance of the notice of opportunity for hearing. 342. 65 Ohio St. 3d 338. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. 119. State ex rel. Denial or reduction of fees requested 89 . testimony is taken. 119. b. (2) See cases below interpreting “substantially justified” language in R. if issue be one of fact. (2) Generally. 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. Id. not continue a proceeding that has already begun. Decision on the motion for fees a. Moreover. 1992-Ohio-1.C.092(B)(2). at 342-43.

119. State Dental Bd. 3d 465.(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. and Amount of the award. 119.C. (10th Dist. 119. b.C. R.C.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. (2) Must include specific information listed in R. a. 10. 119. the decision as to fees must be in writing and must state: (1) (2) (3) (4) Whether an award has been granted. 119.092. Eligible party appeal 90 . except no interest is paid. c. 119. because appeals are decided by the common pleas court. R. a. Payment of award a. May be paid by agency from any funds available for such compensation. 133 Ohio App. The agency must file a report to be filed with the general assembly. Ohio St. Reasons or bases for the findings and conclusions. 3d 414. 11.092(E). c.092(B)(2)(b). 1999). Findings and conclusions underlying the decision. d. (1st Dist. or special circumstances make an award unjust. 474. 1998) 130 Ohio App.092(B)(2).092(D). d. the award is treated as a judgment under R. (1) To be filed October 1 in the fiscal year following the fiscal year covered by the report. Appeal to common pleas court under R. Filing and service (1) Determination must be entered in the record. (b) If the fees do not exceed $100.C.092(B)(2)(c). not the board. (2) Copy must be mailed to the prevailing eligible party. Per R. 119. 425. (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. If no funds are available. Bd.C.C. Chapter 2743. Med.092(B)(2)(a).C.C. R. 119. if any. R. Sohi v.092(E).C. Gladieux v. R.

b. 2003Ohio-3816. 119.C. (3) A copy of the decision must be certified to the agency and the eligible party.12.C. 3. 119. The agency must file a certified record as required in R. No.39 sets forth general rules governing the award of attorney fees in actions against the state.C.092(C).092(C). 1. R. 3d 556.C.12.(1) May appeal denial or reduction of award.092(C). 2335. 78 Ohio App.12 provides that the court shall award compensation for fees to a prevailing party. 02AP-955. Statutory framework: R.C. at ¶10.C. 2335.092(C). C. Harrison v. R. 4. 558. Common pleas court decision.12.C. 119. 2335. and (3) the state’s position in initiating the matter in controversy was not substantially justified. 119. R. Ability to receive fees: prevailing eligible party a. (2) he is financially eligible. R.092(C). not the agency itself. “Prevailing party” 91 .C. R.39 a. (1) The court may modify the decision of the examiner or the agency only if the failure to grant. (2) Decision is final and not appealable. 119. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order. d.39(B) provides that an individual may recover attorney fees if (1) he prevails. 2. c. (2) The agency’s appeal would be filed in the manner specified by R.12 for appeals. 10th Dist. 5. R. Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee. 119.C.C. 2335. 119. This attorney fee provision applies only to appeals brought pursuant to R. R.C. 119. (2) File in same court in which the party would appeal agency’s adjudication order. Licensing Bd. In re Williams (1992).39. 119. R.C.. Ohio Veterinary Med.C. or calculation involved an abuse of discretion. 119. R. in accordance with R.C.

3d 483 at 487. R. State Medical Bd. 1991).” Korn v. Motion for fees a. or a partnership. 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. (4) A sole owner of an unincorporated business that employed.e. 6. other than the following: (1) The state.(1) A party need not attain a complete victory. 3d 483. 71 Ohio App. a net worth exceeding five million dollars at the time the action or appeal was filed. c. (3) A sole owner of an unincorporated business that had. 3d 483 at 487. State Medical Bd. corporation. or organization that had. 119.C. 2335. association.. (3) The court may take the partial victory into account when determining the amount of the fees to be awarded. The motion may request both fees incurred in appeal and in the administrative hearing. 2335. R. Court review a. 71 Ohio App. “Eligible party” means a party to an action or appeal involving the state. 2335. or organization that employed. dismissal of all charges without remand.. See above. corporation. (2) An individual whose net worth exceeded one million dollars at the time the action or appeal was filed. Korn v. State Medical Bd. The motion must be filed within 30 days of the final judgment by the reviewing court in the action or appeal. R.. (10th Dist. b. Same requirements for content of motion as in R. i.39(B)(1). association. 92 . (2) A party who appeals an order or judgment and prevails to the extent of obtaining a new trial or a modification of the judgment is a “prevailing party.39(D). more than five hundred persons at the time the action or appeal was filed. or a partnership. 7.092.C. Korn v. to qualify as the prevailing party. b. The court must determine: (1) Whether the position of the state in initiating the matter in controversy was substantially justified.C.C.39(A)(2). 487. 71 Ohio App.

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

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

a.C. LEXIS 6174 (Feb. 1992-Ohio-1. When the eligible party’s attorney was paid pursuant to appropriation by federal. 65 Ohio St. 1990). 2335. 460. 1994) at *6-7. 95 . State ex rel. See also. or the calculation of the amount of an award. Morris (1992). 3d 458. 3d 531. 24. d.12 of the Revised Code. you may wish to consult the Ohio Administrative Law Handbook and Agency Directory in Baldwin’s Ohio Administrative Code. the agency may appeal an order granting an award. 3d 338. 65 Ohio St. Sowald.092(F).C.C. R. 2335. c.39(F)(3)(a).39(B)(2). No.C.39 a.2335. 2335. by a prevailing eligible party that is denied an award or receives a reduced award. 2335. c. where the state sought to take away a license already held by an individual. 11.C. Exemptions from R. State ex rel. 93AP-331. 2335. Appealing an award of attorney fees under R.C.C. attorney fees could be awarded in a proceeding where the state attempted to decertify a nursing home. b.C.39.39(F)(3)(c). Ohio Dept.39(B)(2). the court in In re Van Arsdel distinguished cases such as Holden v. b. 2335. Adjudication orders exempted under R. Inc. b. Pro se litigants may not be awarded attorney fees under R. 1994 Ohio App. 2335. where the court assumed (without deciding) that. Schregardus. 10th Dist. under the right circumstances. An administrative appeal decision under R. If the case is an appeal of the adjudication order of an agency pursuant to section 119. 119. Note: For additional information on administrative law. involved an abuse of discretion. An order of a court considering a motion under this section is appealable as in other cases. 67 Ohio App. R. of Motor Vehicles (9th Dist. or local government. state. of Health v.35.C.” This principle was reaffirmed in Thermal-Tron. R.39(F)(3)(b). v. R. 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. However. 5101. Ohio Bur.39(B). 10. Freeman v.

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