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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

as well as other activities specifically mentioned in R. Asphalt Specialist Inc.01(A). 3d 45. Chapter 119. 2 . The courts define an agency’s licensing authority based on the involvement an entity has with the processing of licenses. 96 Ohio App. 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.C. (10th Dist. commission. suspending. Genoa Banking Co. 1994). b. Code Ann. it is not an arrangement whereby a person.S. (3) Controlling Board.C. (5) Actions of the Industrial Commission or Bureau of Worker’s Compensation brought under R. 119. 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. 42 U.C. 95CVF064466 (Aug. Entity has authority for issuing. Relations Bd. v. 119. Ohio Expositions Comm.P. 2d 115. 119. a. State Emp. Boesch (1975). 41 Ohio St.C. institution. Mills (1981).” 49 Stat. or entity furnishes Medicaid services under a provider agreement with Ohio Department of Human Services. 620 (1935). 3.01(B). institution. as amended. the Tenth District Court of Appeals held that certification of a health care provider by the Ohio Department of Health for compliance with federal Medicaid requirements constitutes a license for purposes of Ohio Rev. v. (3) In Bayside Nursing Ctr.94.C. No. The mere approval of a savings and loan branch location application was not a licensing function. 67 Ohio St. 3d 224. Ohio Dept. Entity’s own law specifically makes it subject to R. v. 111. 1995).12. South Community. 10. of Transp. Assn. There must be a clear legislative intent to make an entity’s functions subject to R.C. 53 Ohio App. § 301. & L. The Revised Code defines “license” as: [a]ny license. 4123. 3d 754.(2) Utility Radiological Safety Board. 47. a. R. Ohio Dept. 38 Ohio St.. Home S. (4) Actions of the superintendent of financial institutions and the superintendent of insurance regarding the taking possession. 1988). v. of Health (10th Dist.C. rehabilitating or liquidating businesses. § 119. [but not] any arrangement whereby a person. permit. or charter issued by any agency…. Examples: (1) Decision to hold contractor in default of contract is not a licensing function. McEldowney v. 2d 106. (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.01-4123. Franklin C. (1988). Inc. certificate. v. 759. Chapter 119 without restriction to rulemaking. b. 2. Chapter 119. revoking or canceling licenses.

. Entities exercising derivative power a. (4) The Tenth District Court of Appeals held in Springfield Fireworks. at ¶ 24. paragraph two of the syllabus). Chapter 119 Applies to Adjudications. of Commerce. (1) In Bd. para.01 to 119. 119. the university was also bound by Chapter 119 in the exercise of those powers. 2003-Ohio-6940.C. Where an entity exercises power derived from another agency that is covered by Chapter 119. 151-52. b. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119. the refusal was not an agency decision and therefore.C.13. Not Ministerial Acts 1. was not appealable pursuant to R.” R. 03AP-330.C. the act is a licensing function because it does not fall under the exemption included in R. 4. of Findlay School Dist. 68 Ohio St. of Admin. 2d at 152 n. 119. v. Since the act was not a licensing function. v. 3 . 1 (emphasis added). 68 Ohio St.C..12. which then authorized state universities to exercise the powers. or canceling of a license. and functions of the Department of Administrative Services with respect to civil service employees.C. The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services. para. Dept. Right to an appeal: Pursuant to R. 467. The conduct at issue was authorized by R. the entity is also subject to Chapter 119. Inc. of Trustees. revoking.Therefore. "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination. 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.06.01(B).12. a. 124. Chapter 119 provides certain rights in relation to adjudications.C. or denying the issuance or renewal of a license or registration of a licensee. 174 Ohio St. of Trustees of Ohio State Univ. suspending. 1 (emphasis added). C. entity exercising derivative power must be a state agency. (1963). Board of Edn. or revoking or suspending a license ." R. (1981). 119. 119. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119. which was an agency subject to Chapter 119. duties. Serv. may appeal from the order of the agency to the court of common pleas.14(G). 2d 149. 10th Dist No. 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. Chapter 119. Ohio Dept.3 (citing Karrick v. Bd.

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

held in part that where the termination of a provider agreement in a given situation is mandated by the Revised Code. B. the Tenth District Court of Appeals held that the Ohio Department of Human Services’ (ODHS) compliance with the coordinator’s order to award the claimant a position at the division chief level. 119. When an agency refuses to issue new license. 762-63. 618). No.C. 3d 82 (citing State ex rel. c.C. Trauger v. Ohio Dept. 3. Except as provided in R. Instead. of Health (10th Dist. Ohio Bur. of Ohio Non-Profit Corp. RIGHT TO HEARING A. When a statute permits suspension of a license without a prior hearing. a. 88 Ohio App.” II. Franklin C. 88 (quoting State ex rel. 2007).06 specifically enumerates certain cases where a hearing must be afforded upon request. 130 Ohio St. 4. 5 . 160).P. R. 612. at *9.06. 3d 754. 07CVF07-9225 (Aug. 119.'" See also. New London Hosp. along with back pay and retroactive benefits was not an executive act dependent upon the judgment or discretion of the Director of ODHS. 20. State Dept. See also. of Human Servs. When an individual is refused admittance to an examination. without regard to or the exercise of [his/her] judgment upon the propriety of the act being done. 1. Nash. such termination amounts to a ministerial act to which no appeal right attaches. When an agency asserts that an individual must obtain a license and the individual claims the law does not impose such a requirement. of Motor Vehicles. (3) In Odita v. 3d 82.C. the Director must act “in obedience to the mandate of legal authority. v. the Tenth District Court of Appeals in Bayside Nursing Ctr. 1994). 2.(2) Citing Koch. LEXIS 12569. 88 Ohio App. 66 Ohio St. 96 Ohio App. which is a pre-requisite to the issuance of a license. v. 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.. Davey (1935). Brown v. Armstrong v. of Human Servs. State Dept. Exceptions (1) If a hearing was held prior to such refusal. Chapter 119. (1) In Odita v. no adjudication order is valid unless an opportunity for hearing is afforded in accordance with R.. Creasy. Mandamus may be used to compel performance of purely ministerial acts. 1980 Ohio App.

Orders suspending a license where a statute specifically permits the suspension of a license without a hearing. b. Certain orders canceling or suspending a driver’s license.06(A).C. the licensee shall not be required to discontinue the licensed business or profession merely because the agency fails to act on the application. 119. When an agency denies a renewal or registration.C. R. The agency must provide a hearing unless a hearing was held prior to the denial. physical therapy.06(B). c.C. another agency. para. and give the appellant a right to hearing on appeal. Ohio occupational therapy. R. 119. 3. Board of examiners of architects. Orders revoking a license where an agency is required by statute to revoke a license pursuant to a judgment of a court. 119. R. or to the board of tax appeals. C. Suspensions Without A Prior Hearing (“Summary Suspensions”) 1. A hearing must be held following suspension.062. 6 . Doriott v. 2. provides: a. Bd. Chiropractic board. Board of landscape architect examiners. 9. R. and athletic trainers board. 10th Dist.06.06(C).(2) No hearing is required for the following boards if the applicant failed a licensing examination: (a) (b) (c) (d) (e) Medical board. 119. (1) Failure to provide an opportunity for a hearing following the suspension violates due process. of Ohio. Orders Effective Without a Hearing 1. 5. State Med. R. Exception: When a statute permits the suspension of a license without a prior hearing. 119. 4. 119.C. 2006Ohio-2171.06. R. 05AP-1079. at ¶ 14. No. If a licensee timely files for renewal or registration. 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. 2. This is often called a “summary suspension. General rule: Agency must provide an opportunity for a hearing BEFORE issuing an adjudication order.” a. D. The Action of the agency rejecting the application shall not be effective prior to 15 days after the notice of rejection was mailed to the licensee.C.C.

1992 Ohio App. Notice of suspension must state: (1) Reasons for the agency’s action. No. 1. b. in Meadows v. of Ohio. Rather. Mackey v. a. (2) Copy of the notice must be mailed to the attorney or other representative of record. 71 Ohio Misc.07. at ¶ 12.S. the Wadsworth Municipal Court found that the state did not 7 . return receipt requested. (2) Risk of erroneous deprivation of the private interest through the procedures used. not later than the business day next succeeding such order. 51 Ohio St. CA-2885.07. Montrym (1979). at *7. Ohio State Racing Comm. b. Doriott v. if the Mackey test is met. 05AP-1079. (1) Wagers v. then the due process rights of the individual are not violated. Three-Step Analysis (Mackey) (1) Nature and importance of the private interest affected by the official state action. 5.. 2006-Ohio-2171.C. 10th Dist. The U. 119. (2) However. Bd.S. Ct. 1995). LEXIS 556. 443 U. Supreme Court has ruled that summary suspensions are generally constitutionally permitted to protect the public. (3) Fiscal or administrative burden that additional or substitute procedures would require. 2d 3. to require the board to provide notice of opportunity for hearing subsequent to the suspension. in which the court found that strict adherence to the judicial model of due process was not mandated for administrative hearings. 119. Ohio Bur. State Med. c. 4. and (3) Opportunity for hearing if requested within thirty days of the mailing of the notice. (2) Law or rule directly involved. Notice requirements for pre-hearing suspensions pursuant to R. (Massachusetts DUI case). Service of the Notice (1) Notice must be sent to the party by registered mail. Ohio Bureau of Motor Vehicles (1990). 3d 46. Due process concerns a. The Ohio Supreme Court adopted the Mackey test in Doyle v. 17. No.(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. 52. 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. 5th Dist.C. 3. of Motor Vehicles (Wadsworth Mun.

C. of Job & Family Servs. The charges or other reasons for the proposed action. Pursuant to R. at ¶ 31. The Tenth District Court of Appeals held that timeframes are directory.follow the statutory scheme for an administrative license suspension when it did not afford the defendant a post-suspension hearing within five days. No. 10CVF-3027 (Aug. The law or rule directly involved. 1. Although proper notice of the opportunity for hearing is mandatory. 24. Dusty Drilling Co. 10th Dist. Finley v. 09AP-1050. 2010-Ohio-3842. 1981). 2012-Ohio-3506. of Ohio (10th Dist. LTV Steel Co. and that. as a result. (10th Dist.. 2. Industrial Comm. Content of Notice 1. Notice of the party’s right to a hearing. Franklin C. Failure to give proper notice invalidates any order entered pursuant to the hearing. Ohio State Dept. 8 . c.P. 119. Ohio Real Estate Comm. an appellant must demonstrate prejudice from any failure to meet the timeframes. d. 3d 323. R. 2011-Ohio-1816.07. Barlow v. 102 Ohio App. 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. Div. Wightman v. Lucas Cty. Dept.C. The Meadows court ruled that the state’s failure to follow the statute deprived the defendant of his rights to due process. 4. No. State ex rel. 5. b. Even though there is no specific statutory requirement. Crawford-Cole v. 2010). No. 1995). ¶ 16 and 17. the party has a right to a reasonable notice of hearing and a reasonable opportunity to be heard. 119. R. of Commerce. para. 3.07. v. No. 10th Dist. 3d 100. time frame for filing the notice is discretionary. Id. State ex rel.07. not mandatory. Mandatory Requirement 1. L-11-1177. The agency is subject to a reasonable standard. Ohio Real Estate Commission. III. Cunningham v. b.. B. 10AP-699. in all cases in which an agency must afford an opportunity for a hearing prior to issuing an order. a. absence of instructions of how to appeal and the deadlines involved violated due process requirements. 119. para. NOTICE REQUIREMENTS A. 6th Dist. of Real Estate and Professional Licensing. If a party has a right to a hearing. 103-04. the notice of hearing must include: a. the agency must give proper notice of the opportunity for hearing. 2 Ohio App.C. 325.

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

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

Ohio State Med.P. of Edn. 1989). return receipt requested. 119. 3d 287. Angerman v.R. a rebuttable presumption of delivery to the addressee is established. 290. 21 Ohio App. 3d 332. Sufficiency of notice or hearing required prior to termination of welfare benefits. Gilbo (2nd Dist. (10th Dist. 2011-Ohio-431. R. 111-12. Annotations 1. Service of Notice 1. and thereafter a signed receipt is returned to the sender. (7th Dist. (2) No requirement that the agency search anything other than its own files to find out if the party is represented by counsel. When an item is sent by certified mail. R.062. E. R. return receipt requested. 339. b. Liquor Control Comm.07.C. State v. Nos.L. Franklin C. 67 Ohio App.02(G). No.3d 277.3d 361.L. 1994). Ohio State Bd.(2) A board’s issuance of a summary suspension one year after it had knowledge of the licensee’s practice violations was unconstitutional. State Med. 89CV-01-64 and 88CV12-8615 (July 3. 119. 60 A. (2) Service at a place of business. Kellough v. 2. To party by certified mail: Notice of opportunity for hearing must be sent to the party by registered mail. Amon v. 2d 110. 10th Dist.5th 1. 10AP-419.07. a. Initial service of notice a. D. Bd. 3. registered mail is not required.” R. Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine. 96 Ohio App. (1) Note: registered mail and certified mail are interchangeable. Tripodi v.R.. 10 A. ¶ 35 (1) No requirement that the notice to counsel be sent by registered /certified mail. (3) Driver’s license: In a case involving revocation or suspension of a driver’s license. 119.R..C.L.C. 11 .C. Necessity of notice and hearing before revocation or suspension of motor vehicle driver’s license. 1990). 1. 1970). Bd. 47 A. To attorney by regular mail: “A copy of the notice shall be mailed to attorneys or other representatives of record representing the party.

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

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

1. Licensee sent a letter proposing an informal settlement.C. But see Alcover v. Agency erred by failing to timely set a hearing date and time as mandated by R. Bd.” IV.14. B. the act may be done on the next succeeding day that is not Sunday or a legal holiday”. Chapter 119 does not specifically provide that a request for hearing must be in writing.C.9.C.C. Standard Oil Co. is it clear which alleged facts violate each statute or rule stated in the notice? H. HEARING REQUESTS A. which letter also stated that licensee was not waiving his right to a hearing. 1995).C. The court found this was sufficient notification because licensee had expressly reserved the right to adjudication. 1987 Ohio App. 14 . No. at *9 (telephone request to assistant attorney general insufficient. 3d 317.C. Method of Requesting a Hearing 1. Reserving right to hearing shows intent to request. v. Computing Time Pursuant to R. 119. 103 Ohio App.14. a. 1. (10th Dist. 10th Dist. Bd. a.14 states that when a public office is closed to the public and it is the last day to do a required act. Harrison v. 8th Dist. where attorney advised the licensee that request must be made in writing to the board). when the last day falls on Sunday or a legal holiday. In writing a. 54292. 2. 318. The thirty days provided by R. 78AP860.C. 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. Does the notice indicate the method of service to be utilized? 10.C. R. Ohio State Med. Ohio State Med. Timing of Request (R. If multiple violations. 1979 Ohio App. No.07 begins to run on the date the agency or board mails the notice by certified mail. 1. Chapter 119.07) 1. The time computations set forth in R. Chapter 119. LEXIS 9961. 2. showing intent to request hearing. at *9. A party must request a hearing within thirty days of the date of mailing the notice.14 apply to proceedings conducted pursuant to R. 1. except that. 119. R. LEXIS 11662. Williams. “the act may be performed on the next succeeding day that is not a Sunday or a legal holiday. 1..

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

the agency shall immediately schedule the time. Continuances 1. not mandatory. date and place for the hearing. Once a party requests a hearing. Practical Note. inform the party of the continuance. Bd. Sahely v. McCullion. 3d 111. The date set must be seven to fifteen days from the time the party requested a hearing.. see Section IX APPEALS.. because the agency has the authority to continue a hearing upon its own motion. but may then continue the hearing to a later date. 10th Dist. 92AP-1430. the agency must initially schedule the hearing for seven to fifteen days from the date of the request. 2. Ohio State Racing Comm. 262. 119. B. 2d 157. SCHEDULING OF THE HEARING A. Ohio Dept. LEXIS 2034. Yoder v. at *7-8. Ohio St. 1991 Ohio App. the court said that two (2) years was an unreasonable delay. at *7. 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. 1969). R. 1991 Ohio App. a.C. 16 . CA2867.C. (10th Dist. R. Kizer v. A fair hearing by an administrative agency requires that such hearing and determination be had in as expeditious and timely manner as possible under the circumstances. A hearing cannot be continued for an unreasonable amount of time. 3. b. V. 8th Dist. unless otherwise agreed upon by both the agency and the party. No. and then. The agency may postpone or continue a scheduled hearing upon its own motion or the motion of any party. 5th Dist. para.3. 119.09. Kash (8th Dist. para. a. Effect on appeal rights (split in decisions). (1) In In re Application of Milton Hardware Co. infra. b. 3d 256. 166. LEXIS 6173. LEXIS 2713. 113. 1993 Ohio App. v. Requirement to hold hearing within fifteen days is directory. (9th Dist.07. 61 Ohio App. In re Barnes (10th Dist. 1988). and forthwith notify the party. (2) Thus. at *4-5. 3. in the same notice. 3. 1988). No. R. Id. The agency will often set the initial hearing date. of Edn.07. 119. See In re Application of Milton Hardware Co. Id. 19 Ohio App. Ohio State Racing Comm. Initial Scheduling 1. 3d 201. No. 31 Ohio App. 40 Ohio App. of Commerce v. 1986).C. Vild. 60858.

(4) A delay in holding hearing is not reversible error unless the party can show prejudice from the delay. Ohio Bur. Ohio Liquor Control Comm.. (3) Whether previous requests for continuances have been granted. presents a risk of danger to the public. Gourmet Bev. Other considerations (1) Whether the licensee retains an active license. (4) Complexity of case and adequacy of time for counsel to prepare a defense. (5) The need for additional time for active settlement negotiations. Inc. Merits of request for continuance a. No. v. (2) Health or medical issues preventing counsel or licensee from attending hearing. Inc. but agencies often consider the following reasons for requesting a continuance: (1) Conflict of counsel due to priority matter. of Motor Vehicles. 10th Dist. Chapter 119 does not set forth guidelines for continuances. 05AP-1179. 2006-Ohio-4227. and resulting delay in agency action. Requests should not be made ex parte. of Motor Vehicles. at ¶ 20. c. including prior scheduling of trial or other court date. v. a party can request a continuance upon motion to the hearing examiner.C. Ohio Bur. v. the party should request the continuance directly from the agency or board. Cntr. If a hearing examiner has been appointed. Requesting a continuance a. (3) Availability of key witnesses. 2006-Ohio-4227. 2002-Ohio-3338. Immke Circle Leasing. 10th Dist. at ¶ 14. (2) Whether the delay of the hearing. (3) Disputes over preliminary procedural/jurisdictional issues that delay a hearing on the merits are not unreasonable delays. 3. 01AP-1217. b. No. 2. Inc. b.(2) The Tenth District held that a 283-day continuance of hearing was permissible when the party did not object and delay was at least partially explained. R. If no hearing examiner has been appointed. Immke Circle Leasing. 17 . Agency law and rules may further delineate the process for requesting a continuance..

. The courts have held that because the Civil Rules are not applicable to administrative hearings. 2003-Ohio-4061. LEXIS 305. . . 119.C.C. Wayne S. Froug v. No. The taking of the deposition shall be in the same manner as is prescribed by law for the taking of depositions in civil actions. a.” White Consolidated Industries v. According to R. Ohio State Bd. 6th Dist. of Psychology. Salem City Sch. State Med. Leake v. 7th Dist. Bd. 2001 Ohio App. Bd. Nichols (1984). b. See Moffett v. . “The formulation of procedural rules of administrative agencies is basically left to the discretion of the agencies. of Ed.13 of the Revised Code. 2003-Ohio-7007. 2.C. No. 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 . of Human Serv. 2 (emphasis added). R. LEXIS 3290. 2012-Ohio-1002. S-32-92. 02AP-1315. 10th Dist. Casey v. 1(A) limits the Civil Rules to “all courts of this state in the exercise of civil jurisdiction at law or in equity . 1993 Ohio App. VI. the agency . 3. 11-CA-9. 119. The Ohio Rules of Civil Procedure. OBTAINING EVIDENCE AND SECURING WITNESSES FOR HEARING A. ¶ 24 and 32. discovery rules do not apply. .” R. No. Civ. of Pharmacy. 2002-Ohio-606 at * 10. of Ohio. at *10. Dist. .” b. Ohio Board of Nursing. are not applicable to the administrative hearing procedure. B. R. ¶ 40. . Mahoning Cty. Similar to the civil rules. Dept. 4. 00AP-523. 7th Dist. an administrative agency may allow testimony by deposition for witnesses who will not be available at the time of the hearing. Chapter 119 provides for depositions in lieu of hearing. No. 3d 7. The agency’s own law and rules may provide for a discovery-like exchange of information.09.09: “For the purpose of conducting any adjudication hearing required by sections 119. 5th Dist. R.01 to 119.. Finally. at *9. para.c. Chapter 119 Does Not Provide for Discovery Under Civil or Criminal Rules of Procedure 1. For the purpose of conducting an adjudication hearing. a. No. Ohio State Bd. 10th Dist. No. 00 CA 264. . Depositions 1. Chapter 119. 9. 15 Ohio St. Miller v. Agency law or rules may set guidelines for consideration of motions for continuance of hearing. the Criminal Rules of Procedure do not apply to proceedings conducted pursuant to R. the deposition may be used at 18 ..C. 2003 CO 7. The agency's own law and rules may provide protection to certain records. Gipe v. ¶ 43. including discovery rules.C.

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

Crim. or by leaving it at his usual place of residence. 3.08 for current amount. (a) A witness living in the same county as the agency waives the right to fees if not demanded upon services. 2004-Ohio-4041. Smith Corp. R. if tendered prior to the time appearance is compelled. b. 734. 17(D) provides that the return may be forwarded through the postal service. Fees (1) Witness residing within county: Crim. Castle (9th Dist. R. See R. Perfection Corp. 10th Dist. the fees for one day’s attendance and the mileage fees allowed by law.C. OAG Opinion.09. 92 Ohio App. OAG Opinion. 119. (2) Witness outside the county: Crim.. No. at ¶ 26. Must be returned in the same manner as a subpoena in a criminal case.09. error could be cured by subsequently tendering the fees. 03AP-266. witness fees and mileage fees must be attached to the subpoena and tendered without demand or the witness is not obligated to appear. para. v. or otherwise. R. R. R. upon demand. (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. 2. (a) Where a witness lives outside the county where the agency is located. 1994). (b) When the fees were not tendered with subpoena.C. State v. 17(D) provides that if the witness resides outside the county where the agency is located. A. 119.O. 86-066. 2335. fees shall be tendered without demand. valid service is completed. 17(D) provides that proper service is effected by tendering to the witness. 86-066. (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. 20 . and the witness may not later refuse to appear solely because the fees were not tendered upon service.C. c. Return of subpoena a.(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. 3d 732. (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.

Carratola v.. (d) Court shall compel compliance as in cases of disobedience of court subpoena.09. failure to do so does not require reversal of the agency’s decision unless the appellant shows prejudice resulting from the failure. 220. Ohio Motor Vehicle Dealers Bd. 8 Ohio St. Carratola. 119. Failure to obey subpoena/sanctions a. 2317. (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. (2) Attachment proceedings for contempt are set forth in R. Western Reserve Psychiatric Habilitation Center (9th Dist. 2317. 1998 Ohio App. such as limiting testimony of other witnesses. (3) Requirement to Enforce if Requested. (c) The writ will only issue for disobedience of a subpoena “personally served” on the witness. v. subject only to proper privilege assertion by the witness.21.C. 3d 26. 18658. 2317. at *13. No. the court shall compel obedience by attachment proceedings for contempt. Ohio State Dental Bd. (b) Although the agency is required to seek enforcement of subpoena.C.4.21. (c) If the matter is one in which the witness may be subject to lawful questioning.21. 3d 218. (a) This statute is inapplicable if proper fees are not paid to the witness. (a) The agency is required to seek enforcement if asked by the party who requested the subpoena.” R. R. him to show cause why such writ should not issue against him" if the witness was served with the subpoena in some other fashion. (c) A court of common pleas has a mandatory duty to compel attendance by attachment proceedings when a witness refuses to testify in an administrative hearing. (4) An agency is limited to the statutory attachment procedures to sanction contempt of its subpoenas. LEXIS 2020. Green v. and may not resort to other forms of punishment. Remlinger (1983). But the court "by a rule. at *13.C.C. 3 Ohio App. 21 . 1981). 27. Contempt proceedings. (b) The application is filed in the court of common pleas where the disobedience occurred. 9th Dist. R. LEXIS 2020. 1998 Ohio App. (1) Upon failure to comply: (a) Agency must file an application to enforce the subpoena if requested. may order.

45(E) may be granted...C. Bd. 4723. paragraph 4 of the syllabus. Hildebrant (1915).29). Specified authority (1) Some agencies have specific statutory procedures for enforcement of these subpoenas. Enforcement a. See State ex rel.C.C. 2000). Franklin C.. See discussion re: Health Insurance Portability and Accountability Act (“HIPAA”). R.24. Board of Nursing. Thompson. Investigative Subpoenas 1. prior to hearing. 1707.. Chiropractic Board. (1) Absent specific statutory authority or a pending case or appeal. Some agencies have statutory authority to issue investigative subpoenas.22(F)(3).20(H). In re Investigation of Laplow (9th Dist. 108 Ohio App. 3d 59.C.. Board of Nursing. the court of common pleas has no jurisdiction to entertain a motion to quash an administrative subpoena. Bd. Implied power. 1993). 61.20(H). Dept. of Securities. Investigatory subpoenas are those to compel testimony or the production of records.g. The Medical Board’s statutory authority to subpoena patient records is not dependent upon patient consent. below. of Aging. State Med. for purposes of investigation. Chapter 119.C. 173. 390-91. 1707. (2) If the statute grants enforcement according to the Civil Rules. Div. the only avenue available to a witness is to defend an action to compel.C. 93 Ohio St.C. R. 1996).C. However.C. 87 Ohio App.C. since the legislature has empowered them to issue subpoenas. R. for general principle of implied power to perform duty. Other agencies. 1. 3. No. 4. Chapter 119 does not provide statutory authority for a motion to quash. (2) Thus. (e. 3d 305.g.48(A)(2). R. 4734. In re David E. because R. Polen. v. 4731. 00MS000041 (July 24. (E. 4731. b. 96 Ohio App. State Med. Dept. e.22(F)(3).P.C. 1994). Div. of Securities. D. R. it is reasonable to argue that the sanctions permitted by Civ. 2. 173. there is an implied power to enforce them through the court. Chiropractic Bd. Hunt v. 22 .. (10th Dist. R. 4723. Ombudsman. Ombudsman.24. of Aging. Medical Bd. Motions to Quash not authorized by R. R. do not have specific statutory procedures for enforcement of investigative subpoenas. R.C. In re Investigation of Laplow (10th Dist. b. R.g. 307. D. R.29). 3d 386.b. Medical records a.

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

SERB (1992). information in a prosecutor’s files is deemed to be trial preparation material. 1993-Ohio-192. Yant v. Martin (1988). University of Akron (1980). 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. 309. Conrad. State ex rel. crime victims. (iv) Specific investigatory techniques and procedures. the work product exemption appears to be more comprehensive in the context of a criminal 24 . (ii) Identity of an information source or witness to whom confidentiality has been reasonably promised. Confidential Law Enforcement Investigatory Records (“CLEIR” Exception). 3d 420. 3d 155. State ex rel. 149. Steckman v.e. R. 2d 392 (routine techniques not protected). witnesses or information sources. reversed on other grounds. (v) Specific investigatory work product. 3d 681. 64 Ohio St. (a) Step 1: Does the record pertain to a law enforcement matter of a criminal. (1) As with the trial preparation exemption. of Psychology (1989). probable cause determination or investigation into wrongdoing. 63 Ohio St. State ex rel. quasi-criminal. 37 Ohio St. 29-30. Martin v. Steckman. 3d 28. Beacon Journal v. (iii) Information creating a serious danger to law enforcement personnel. v. 49 Ohio St. the administrative agency’s investigative file may be trial preparation if criminal prosecution was anticipated by the AAG. 67 Ohio St. 502.43(A)(1)(h) and (2).C. i. City of Cleveland. Franklin County Sheriff’s Dept. Shupe (1988). Barton v. 1996-Ohio-234. 156. Ohio State Bd. 3d 498. (2) The application of this exemption appears to be more limited in the civil and administrative context. State ex rel. State ex rel. 47 Ohio St. 70 Ohio St. 74 Ohio St. 682. 3d 420. State ex rel. McGee v. Jackson (1994). 60-61.(1) In the criminal context. 3d 308. 3d 59. Inc. (1) Two-step analysis for determining applicability of this exemption. requiring a showing that the information was not gathered for some purpose other than litigation. Thompson Newspapers. 431-32. 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.. 70 Ohio St. State ex rel. (3) Dicta contained in State ex rel. v.

C. 74 Ohio St. Polovishack v. City of Akron (1994). R. R. (b) Student Education Records. e. R. State ex rel. 3d 516. 360. State ex rel. 1996-Ohio-204. L-99-1143.C.C. 1333. 3d 420. 50 Ohio St. 75 Ohio St. (1990). of Human Serv. discusses the applicability of this exception to administrative investigation files. 3d 185. There are also general state statutes. (4) Once applicable. Beacon Journal v. 2151. 3d 440. Toledo. Records the release of which is prohibited by state or federal law. 70 Ohio St. 3d 605. (a) Many state administrative clients have statutes making specific information confidential.65. 27 (child abuse investigation reports). WLWT-TV5 v. R. 1997-Ohio-273.22 (Long term care ombudsman investigative files).20 and 3309. 3307. State ex rel. (b) The legislative language used to create confidentiality may be phrased in different ways. (1) Agency confidentiality provisions. 89 Ohio St. Toledo Police Patrolman’s Assn. Mentor.17 (Director of Commerce Investigations). 54 Ohio St. No. 6th Dist. Be sure to check the agency’s own statutes. not related to any one specific agency. This is far from an exhaustive list. 3d 25. (a) Social Security Numbers. the statute likely qualifies as an exemption under this statute. 3d 51. White. Jackson (1994). Steckman v. State ex rel.21 (Client records of rehabilitation services). 1996-Ohio234. f. 77 Ohio St.proceeding than in the context of a civil or administrative proceeding.C. 149.27 (PERS member information). State ex rel. The following are a few examples: R. One particularly noteworthy exemption premised on federal law is the exemption of social security numbers. Yant v. (2) The following line of cases illustrates the volatility of this area of the law. based on a federal privacy interest. State ex rel.22 (STRS and SERS member information). See State ex rel. v.C. Renfro v. the confidential law enforcement investigatory record exemption remains applicable until all proceedings are complete. (2) General confidentiality provisions. See. 2000-Ohio-214. 70 Ohio St.C. Local 10 v.421 (Child abuse and neglect investigation records). R.43(A)(1)(v). LEXIS 875. 72 Ohio St. State ex rel. Conrad. 1995-Ohio-19. (3) Federally protected information.C. 173. The Family Education Rights and Privacy Act 25 . 612. Leonard v. that create confidentiality. 3d 681. Mayfield (1990). Cuyahoga County Dept. 3304. 5153. for example the Trade Secrets Act.g. 3d 357. R. Lashutka. So long as the statute can be read to prohibit general release. Leis. 2000 Ohio App. Police Officers for Equal Rights v. Ohio Patrolmen’s Benevolent Assn. (5) State ex rel.C. R. 145.

but must provide the requestor with an opportunity to revise the request.43 provides: (1) Upon request.43(B)(1).3d 416. the agency may deny the request.S. b. R. (2) Upon request. (4) If information within a public record is exempt. Niesen-Pennycuff.C.C.C. 149. (3) If the requestor makes an overly broad or an ambiguous request. § 1232g(b)(1). records made confidential in the hands of an agency of the federal government are usually not exempt when in the hands of the state agency. the agency shall make copies available at cost and within reasonable time.C. 2953. R. Mechanics of making and responding to a public records request. Exemptions under the Federal Freedom of Information Act. 2953. or to impose a waiting period before the record is sealed pursuant to R.C. 132 Ohio St. unless the state agency is acting for the federal agency in some substantial respect. 2951.041(E). all responsive records must be promptly prepared and available for inspection at all reasonable times during regular business hours. A pending administrative proceeding involving a conviction or intervention in lieu of conviction may be affected. Access to court record sealed or expunged under R. Protected Information regarding privileged information. The Supreme Court of Ohio in State v. remember. 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. do not generally act to exempt records in the hands of a state agency. in most instances. (c) When determining whether a federal exemption applies.C. 20 U. The agency may ask that the request be put in writing to assist it in responding to the request. protects the release of educational records without written consent of the student or the student’s parents.43(B)(1). 3. R. Consult FERPA for requirements and exceptions. R. 149.43(B)(2).S.C.C. the agency must provide a redacted copy. a.C.52(A)(1).(“FERPA”). § 552. (a) Redaction must be plainly visible. but the Public Records Act does not require that the request be put in writing. 2012Ohio-2730. 5 U. the trial court has discretion either to grant the motion immediately under R. 149. 2953. 149. g.52(A)(1).C.32(A)(1). 26 . Section F. (4) Privileged information (a) See discussion below.

C. 149. R.43. 621-26. R. (2) The public office cannot charge for inspection. the party is entitled to the copy at cost.43. that party cannot obtain the documents at cost under the Public Records Act. the agency must provide an explanation for denial. in whole or in part.43(B) are to be interpreted.C. (5) If the request is denied. State ex rel.C. Slagle v.C. 4. Warren Newspapers v. 149. indicating legal authority for denial. Liabilities (1) Civil penalties: (a) Statutory damages: $100/day after filing of mandamus action. (1) At cost does not include employee labor time. Enforcing Public Records Act a. Anyone aggrieved by an agency’s failure to release a public record may bring a mandamus action to compel release.e.(b) Redaction is considered a denial. 70 Ohio St. (c) Only awarded if the requestor transmits a written request via hand delivery or certified mail. provides insight into how the operative terms in R. However. c. The specific statute trumps 149. 149. Hutson. therefore. (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. rather than a transcript of the audiotape. (b) Maximum $1000. (3) Regular business hours for a police department which is open 24 hours a day are normal administrative hours (i. (ii) The custodian of the public records failed to comply with the party’s request. 1994-Ohio-5. if a party only seeks a copy of an audiotape of court proceedings. 149. 103 Ohio St. 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.43(C).43. R.43(B)(3).C. the party must pay the court reporter to get a copy of the court transcripts in common pleas court. at ¶ 15-17. Rogers (2004). 27 . d. 3d 89. 2004-Ohio-4354. 3d 619. b. 9-4). 149.

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

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

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

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

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

2. Held before the agency, or an appointed referee or examiner, R.C. 119.09. 3. Recorded a. A stenographic record should be made of any hearing for which there is a right to appeal to court. R.C. 119.09, para. 5. b. “Stenographic record” means a record provided by stenographic means or by the use of audio electronic recording devices. R.C. 119.09, para. 1. B. Legal Representation 1. Representation of the agency: The agency must be represented by the attorney general or special counsel who has been designated by the attorney general. R.C. 119.10. 2. Representation of the respondent a. Respondent may be represented by an attorney at law licensed to practice in Ohio or other person lawfully permitted to practice before the agency in question. R.C. 119.13. b. Most cases, must be an attorney at law licensed to practice in Ohio. (1) Only attorney at law may represent a party at a hearing at which a record is taken that may be the basis of an appeal to court. R.C. 119.13. See Office of Disciplinary Counsel v. Molnar (Ohio Bd. Unauth. Prac. 1990), 57 Ohio Misc. 2d 39. (2) Exception: hearings before the state personnel board of review under R.C. 124.03. R.C. 119.13. c. Representation of corporate licensee (1) Only an attorney licensed to practice law may represent a corporation. A corporation cannot be represented by officers, directors, or shareholders. Bd.of Edn. of Worthington v. Bd. of Revision, 85 Ohio St. 3d 156, 160, 1999-Ohio-449; Harvey v. Austinburg Dev. Corp., 11th Dist. No. 2006-A-0044, 2007-Ohio-3025, at ¶ 4-5; K & Y Corp. v. Ohio State Liquor Control Comm., 10th Dist. No. 01AP-219, 2001 Ohio App. LEXIS 3591, at *4; Sheridan Mobile Village, Inc. v. Larson (4th Dist. 1992), 78 Ohio App. 3d 203, 205; But see Dayton Supply & Tool Company, Inc. v. Montgomery County Board of Revisions, 111 Ohio St. 3d 367, 2006-Ohio5852, at ¶ 29 (limits holding of Bd. of Edn. of Worthington v. Bd. of Revision, 85 Ohio St. 3d 156, 160, 1999-Ohio-449 to hold that it is not necessary for a corporation to hire an attorney to file a complaint with the board of revision unless legal issues exist or arise in the case). (2) In Dayton Supply & Tool Company, Inc. v. Montgomery County Board of Revisions, the court held that a corporate officer does not engage in the unauthorized practice of law by preparing or filing a complaint with a board of revision and by presenting the claimed value as long as the corporate officer does not make legal arguments,

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examine witnesses, or undertake any other tasks that can only be performed by an attorney. Dayton, 111 Ohio St. 3d 367, 2006-Ohio-5852, syllabus. (3) In Steelton Village Market, Inc. v. Liquor Control Commission, 10th Dist. No. 03AP920, 2004-Ohio-5260, at ¶ 13, the appellate court stated that an admission of fact does not necessarily constitute the practice of law. Admissions by a corporation are only admissible if made by an authorized agent of the corporation, i.e., admissions by the president of a corporation or an agent authorized by the board of directors may be admissible against a corporation. (4) The Tenth District Court of Appeals has held that it is not the practice of law or legal representation of a corporation when a permit holder makes admissions of violations and requests that his/her permit be revoked in front of the commission. The court further held that nothing prohibits the commission from considering these statements before the commission. S & P Lebos, Inc. v. Liquor Control Comm., 10th Dist. No. 03AP-447, 2004-Ohio-1613, at ¶ 18. Please note that the appellate court did not consider whether the permit holder had authority to bind the corporation. d. Attorneys not licensed in Ohio (1) May not represent a respondent in an administrative hearing unless admitted pro hoc vice. (a) Some agencies have a statute or rule addressing who may represent an individual before a particular state agency. See, e.g., Ohio Admin. Code 473113-01(B). (State Medical Board of Ohio administrative rule stating that only Ohio licensed attorneys may represent an individual appearing before the Board); Ohio Admin. Code 4715-15-02(B) (Dental Board); Ohio Admin. Code 4723-16-02(A) (Board of Nursing). (2) Supreme Court regulation of the practice of law. (a) The body responsible for regulating the practice of law in Ohio is the Supreme Court of Ohio. The Supreme Court has exclusive original jurisdiction of admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law. See Section 2(B)(1)(g), Article IV, Ohio Constitution; Gov. Bar R. I, § 9; Royal Indemnity Co. v. J.C. Penney (1986), 27 Ohio St. 3d 31, 34. (3) Beginning Jan. 1, 2011, out-of-state attorneys seeking permission to appear pro hoc vice in an Ohio proceeding must first register with the Supreme Court Office of Attorney Services. Online pro hoc vice registration is now available. After an out-ofstate attorney completes the registration requirements and receives a Certificate of Pro Hoc Vice Registration, the attorney must file a Motion for Permission to Appear Pro Hoc Vice with the tribunal. If the out-of-state attorney receives permission to appear pro hoc vice in an Ohio proceeding, the attorney must notify the Office of Attorney Services. The Notice of Permission to Appear Pro Hoc Vice may be filed through the online registration system.” Gov. Bar R. XII.

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(a) Pursuant to the rules of the Supreme Court, the pro hoc vice registration requirements apply in proceedings involving any adjudicative matter pending before a tribunal. Gov. Bar. R. XII, Section 2. (b) A tribunal is defined to include an administrative agency, or other body acting in an adjudicative capacity. An administrative agency acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interest in a particular matter. Gov Bar R. XII Section 1. (c) Requirements for permission to appear pro hoc vice are set forth in Section 2 of Gov. Bar R. XII: http://www.supremecourt.ohio.gov/LegalResources/Rules/govbar/govbar.pdf #Rule12 . C. Burden of Proof 1. Generally, the agency has the burden of proof. a. The agency has the burden of proof when it suspends or revokes an existing license. In re Scott (10th Dist. 1990), 69 Ohio App. 3d 585, 590; Sanders v. Fleckner (1950), 59 Ohio L. Abs. 135; Buckeye Bar, Inc. v. Liquor Control Comm. (10th Dist. 1972), 32 Ohio App. 2d 89, 89-91. 2. Burden in cases involving applications for licensure. a. An applicant for a license has the initial burden of producing facts sufficient to demonstrate satisfaction of the minimum requirements for issuance of the license. See St. Augustine Catholic Church v. Attorney General (1981), 67 Ohio St. 2d 133, 138. See also, In re Application of Gram (1948), 39 Ohio Op. 477 (person who claims he passed a licensing examination that the agency maintains he failed, has the burden of proving he passed the examination). b. The agency then has the burden of proving the basis for denying a license to an applicant. See R.C. 1707.163(D) (agency “shall” issue a license if the applicant has met specific qualifications. The inference is that the agency must articulate the qualification the applicant has failed.) c. The agency’s enabling statute may assign the burden of proof with regard to specific issues. See Clermont Co. Auditor v. Schregardus, Ohio Environmental Bd. of Rev. No. EBR 132753, EBR 132761 (June 10, 1993). d. For example, the Financial Responsibility Act provides that drivers have the burden to establish defenses to the act by clear and convincing evidence. R.C. 4509.101(L). 3. Burden of production

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32 Ohio App. Inc. EBR 132753. Accordingly. Standards for Consideration of Evidence 1.P. 83 Ohio St. 3d 79.” R. 59 Ohio L. VFW Post 8586 v. Sanders v.C. R. below.C. Bur. Fleckner (1950).C. 135.09 states agencies “shall pass on the admissibility of evidence” presented at the hearing. Abs. c. 1987). EBR 132761 (June 10. probative and substantial evidence a. In application cases.P. Chiero v. Auditor v. b. Schregardus. 81. of Rev. Statutes or rules 36 . Note – An agency’s enabling act may specify which party maintains the burden of production with respect to specific issues. but R. See Pang v. d. b. the applicant may have the burden to produce evidence of qualification for licensure. b. The party attempting to establish that the averments in the notice of hearing are correct has the burden of going forward with the evidence. v. para. No. 1998-Ohio-181. Reliable. 1972). Preponderance of the evidence standard a. The standard of “clear and convincing” evidence has been rejected as inappropriate. probative and substantial evidence. Weinstein (Hamilton C. On appeal of an agency’s order. R. for definitions of reliable. See discussion. 13. 2d 89. 135. so the agency will usually present its case-in-chief first. 53 Ohio St. 27. (10th Dist. 119. 22. all agency orders should be based upon reliable. Sanders v. Ohio Environmental Bd. 3d 186. Preponderance of evidence means that agency has burden to show that it is more likely than not that the events charged occurred. Typically. 197. 33 Ohio Misc. of Pharmacy v. 91. 1977).a. See also. See Clermont Co. 119. c. E. 59 Ohio L. this will be the agency. Ohio State Bd. D. Buckeye Bar. c. Fleckner (1950). 2. Section IX APPEALS. Liquor Control Comm.. 55 Ohio Misc.09 does not incorporate the Ohio Rules of Evidence. 2d 25. Minch (1990).12.C. probative and substantial evidence. 1993). Abs. 24. Ohio Liquor Control Comm. a court may reverse the agency’s order if it finds that the order was not supported by “reliable. Chapter 119 does not explicitly define the burden of proof required. and may therefore present such evidence first. of Motor Vehicles (Franklin C. 119. if contested. Standard of Proof Required 1. probative and substantial evidence. but the Supreme Court of Ohio has held that the standard for administrative cases is a preponderance of the evidence.

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

General procedure. (2nd Dist.09. 7 Ohio App. 9th Dist. (4) the agency shall pass upon the admissibility of evidence. 299. 6. It is not always unreasonable. at *12. Ohio State Dental Bd. the party must proffer the evidence into the record. R. (2) In addition. a. No. 9. Relatively little statutory guidance. 6th Dist. at ¶26. 11CA-9. but the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner. Green v. 2011-Ohio-431.C.07 and 119. Invacare Corp.e. 38 . 10AP-419. Bur. Miller v. 1984). Taylor v. b. Kellough v. Ohio State Bd. at *17.. and (6) upon the agency’s refusal to admit evidence offered by a party. R. 1st Dist. 92CA5451. 20 Ohio App. 2004-Ohio-2185.” This section is silent regarding the manner in which evidence is to be presented. LEXIS 2687.4. Haley v. but by sworn testimony of several live witnesses who testified on behalf of appellee. witness credibility. 119. (5) a party may make evidentiary objections to the evidentiary rulings of the agency.” i. Mason v. L-98-1105. of Job & Family Serv. 2000 Ohio App. and appellant’s testimony was contradicted not only by appellee’s hearsay evidence.C. No. . The only references to hearing procedures appear in R. c.. Ohio Dept. stating that Taylor is not applicable where both parties were permitted to present hearsay evidence at the hearing. LEXIS 5887. 2d 1.C. 1998 Ohio App. 1987). 2012-Ohio-1002. (1) See Valdez v. Limits on use of hearsay evidence. C-990573. The hearsay rule is relaxed in administrative proceedings. [the party] may . 3d 1. LEXIS 1524. No. Bd. at *5. 4th Dist.P. “and it would be inappropriate to disregard his findings simply because they are partially based on admissible hearsay testimony. Servs. (3) the agency may ask any party to testify under oath as upon cross-examination. of Pharmacy. Ohio State Bd. 119. 10th Dist. of Emp. however. 03CA2894. to consider hearsay evidence that is in conflict with sworn testimony.07 provides that “at the hearing. 1993 Ohio App. of Pharmacy (Hamilton C. a. Hearing Procedure 1.09 sets forth the basic parameters of a hearing: (1) a stenographic record may be made of the hearing.” F. Spud’s Auto Parts. in Todd v. 38 Ohio Misc. Ohio State Bd. 1982). No. b. 119. 5th Dist. the Fourth Appellate District concluded that it is “required to give great deference to the hearing officer’s findings of fact. (2) the agency or hearing examiner may administer oaths or affirmations. No. Erdeljohn v. of Review (8th Dist. of Edn.. 3d 297. No.. Chapter 119 says very little about the procedure to be followed during an administrative hearing. . present evidence and examine witnesses appearing for and against him. 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.

Gray (1926). Closing arguments may be oral or written. 1969). 270. 3. G. Accordingly. 19 Ohio App. (10th Dist. Generally speaking.” b. R. when complicated factual and legal questions are at issue in the case. exhibits should be offered for identification purposes and should be introduced and the admission of such made a part of the record. Mayers v. The respondent may choose to present an opening argument after the agency concludes presentation of its case-in-chief.” c. of Health (1929). 120 Ohio St. 2d 157.2. State Dept. at *6 (quoting Bucyrus (1929). 4th Dist. “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. 165: “It is our feeling that basic evidentiary procedures should be followed in administrative hearings. (10th Dist. LEXIS 3363. 430: “While the technical rules of a hearing by a court are not required to be strictly observed in hearings before administrative bodies. and then the respondent. should be introduced. 2. and in this regard. it is the duty of such bodies to permit a full hearing upon all subjects pertinent to the issue. 275. In re Application of Milton Hardware Co.  The agency. Courts have consistently held that a proper hearing bears a substantial adherence to courtroom procedures. 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. 702. In re Application of Milton Hardware Co. Remy v. Limbach. Bucyrus v. holding that when determining the qualifications necessary for a person to testify as an expert. at 430).  The agency presents its case-in-chief and submits evidence into the record. 161. and to base their conclusion upon competent evidence. 114 Ohio St. and such result can better be accomplished by a substantial adherence to the rules observed in hearings in court. and 39 . State ex rel.g. No. present closing arguments. 426. 2d 157. Introduction of Evidence 1. 1969). Practical notes: The following is an overview of the suggested procedure for the typical administrative hearing. In some cases it may also be advisable to file post-hearing briefs. the administrative agency properly adhered to the language of Evid. 120 Ohio St. and strict rules of a judicial hearing do not govern in administrative hearings. procedures to be followed before administrative agencies are not those that are required in ordinary civil actions. e. 88-CA-5. 1989 Ohio App. see: a.  Hearing convenes with opening statements.  The respondent presents its/his/her case-in-chief and submits evidence into the record.  The agency presents any rebuttal case and submits evidence into the record. 19 Ohio App.

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

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

1978). 18-19.C. Exhibits also may be admitted at the close of case-in-chief at which time the opposing party may object.such decision could not be justified by reliable. Bd. and substantial evidence. Cleveland (8th Dist. Under the Ohio Rules of Evidence. 7. (2) An agency’s refusal to accept testimony of more than two character witnesses is not an abuse of discretion. which may be used as a guide. 2. Evid. Id. b. 87. the Agency’s decision will not be reversed. 3d 79. The agency may call a party to testify under oath as upon cross-examination. Hearing officer and opposing counsel should be given a copy. 4. at 19. b. If the party does not object. R. J. Marked exhibits should be presented to the witness for identification and authentication. R. he/she should so move. 3. para. Practical Considerations 1. Kaufman v. R. 42 . Character Witnesses (1) In discussing the character or business reputation of a licensee. giving opposing counsel opportunity to voice objections. para. Zurow v. 6. Who can administer oaths: Chapter 119 grants the agency or anyone delegated to conduct the hearing with the power to administer oaths. and to speak audibly and clearly for the reporter. 119. the licensee may call witnesses who will vouch for his/her/its character. 1990). 61 Ohio App.C. (3rd Dist. 3. If a party desires to introduce marked exhibits into the record. 611. probative. Documentary Evidence. b. Direct examination a. 69 Ohio App. Exhibits should be marked. 119. (3) The failure to swear a witness is a waiveable error. 8.09. Ask witnesses to state and spell their name for the record after being sworn in. 2. 2d 14. Cross Examination a. Ohio Veterinary Med. 5. Marked exhibits should be shown to opposing counsel. cross-examination may concern any relevant area of inquiry even if beyond the scope of direct.09. The hearing examiner should rule on a motion to admit evidence after entertaining any objections to the introduction of evidence.

but nevertheless becomes part of the record on appeal. Ohio State Dental Bd. Div. 08AP-158. 10th Dist. 83 Ohio App. v. D. 137. or were agreed to by the parties.12. (1) In order to dismiss a complaint for failure to state a claim upon which relief can be granted. Although due process considerations would probably preclude an agency from dismissing a case on its merits before a full adjudication hearing is completed. Bessey. 2d 157. An administrative agency is precluded from dismissing a hearing once it has been requested by a respondent. Bd. of Edn. 2. (10th Dist. notice letter. Springfield Local School Dist. v. 2007-Ohio-3328. 136 Ohio App. Failure to state a claim with proper notice.E. 156 Ohio App. Executive Branch (9th Dist. of Ohio (10th Dist. 874 N. 1969). the court may reverse the agency’s action. 8. hearing request. proof of receipt. under Civ. No. Bd. a licensee may not bypass the special statutory proceedings in the guise of obtaining declatory relief. 1992). (1995). 2000). 19 Ohio App. of Reclamation (1986).C.2d 1256 (10th Dist.” Talwar v. at ¶ 14. 2004). Jurisdictional items should always be placed into the record: e. ¶ 25-27. 72 Ohio St. proof of mailing by certified mail. Williams v. 3.O. at ¶ 4 (citing State ex rel. The State Medical Board of Ohio. State of Ohio ex rel. No. Aust v. State Med. 12. of Ohio. Summit Cty. Doriott v. Fields v. any written memoranda in which continuances were granted.g. Bd. dismissals (without a hearing) based on procedural issues such as res judicata and subject matter jurisdiction have been upheld by the courts on appeal. Failure to provide opportunity for a hearing violates Due Process. 4. Can A Case Be Dismissed Prior to Hearing? 1. 172 Ohio App. 119.7. 72-73. 3d 68. Exceptions: a. Boggs v. 3d 485. Where the legislature has provided special statutory proceedings for the discipline of a licensee. respondent may not file a motion to quash (dismiss/summary judgment) a hearing once requested. 3d 677 at 683. 2009-Ohio5852. R.). (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. 165-67: if documentary evidence is not properly introduced and admitted into the record at the administrative hearing. 3d 131. 3d 94. including the right to appeal any agency decision pursuant to R. State ex rel. 3d 365. In re Application of Milton Hardware Co. 2006-Ohio-2171. 05AP-1079. 5. letter to Respondent scheduling hearing. Gary Charles Gelesh. it must appear beyond reasonable doubt from the complaint that the plaintiff/relator can prove no set of facts entitling him or her recovery. Dressler Coal Co. (10th Dist. State Med. In general. K. 43 . Agency/Board may not deny the right to a hearing. 10th Dist. 23 Ohio St..

1981). 170 Ohio St. Hairston. at *5. Agency may not rule on the constitutionality of a statute. R. syllabus.C. 2d 128. (1) Although the agency itself may not determine whether a statute has been applied in a manner that is unconstitutional. No. 24 Ohio St. 35 Ohio St. L. of South-Western City Schools v. 131 Ohio App. (3) In reviewing the complaint. Limbach (1994). Issues involving challenges to the validity of statute or its application. 91AP-1493. Bd. b. 68 Ohio St. 548)). 1992 Ohio App. State ex rel. Bd. Party should raise “as applied” constitutional challenges at hearing. LEXIS 4883. MCI Telecommunications Corp.06. of Commrs.. 595-96. Zieverink v. 3d 184. 10th Dist. and the expert commentary of the agency on the issue. Section 119. 3d 195.S. Bowers (1960). Withdrawal by respondent (1) Although respondent has the right to withdraw from his or her own hearing. 1991 Ohio App. (2) In at least one case. VFW Post 1238 Bellevue v. Inc. Ford Motor Co. (1992). 65 Ohio St. Guernsey Cty. v. Kosydar (1975). 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. 130. Kinney (1986). 3d 229.12. The prudent 44 . however. No. of Edn. the court must take all the material allegations as admitted and construe all reasonable inferences in favor of the non-moving party.95 (quoting State ex rel. Hanson. Hanson v. the Tenth District held that such challenges could be raised for the first time on appeal as long as the necessary evidence is admitted in the record. Skalsky v. 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. See Cleveland Gear Co. v. See In the Matter of: Hal Artz Lincoln-Mercury. 405. administrative agencies themselves are without jurisdiction to rule on the constitutionality of a statute. Addressing Constitutional Issues 1. 548. 3d 545. or whether the allegation is that the statute is unconstitutional as applied. 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. (6th Dist. at *24-25. Ohio Liquor Control Comm. v. Limbach (1988). As creatures of statute. Herrick v.C. 1 Ohio App. 3d 591. Such determinations are reserved to the courts alone. This is true whether the challenge is a facial challenge to the statute. See also. 406-07. 11. Kresge Co. v. Ackerman (1st Dist. S. 197-99. a. LEXIS 4932. 3d 10. at 231. 7th Dist. 3d 545. 44 Ohio St. 119. 65 Ohio St. 1998). b.

3d 150. Ohio 1972).S. 2721. Fletcher (10th Dist. Hodgson v. 35 Ohio St. 185. the legislative scheme ordinarily is not permissible.D. Pons v. Westlake (1951). declaratory relief has been allowed because the administrative agency could not provide the relief sought. v. Under certain circumstances parties may bypass the administrative hearing and raise constitutional challenges to a statute and/or its application directly in court by means of such collateral actions as declaratory judgment (R. 417. (2) When “a specialized statutory [administrative] remedy is available in the form of an adjudicatory hearing. 39 Ohio App. 621.” Arbor Health Care Co. (1975). 3d 229. Driscoll v. Austintown Assoc. v. Agencies with authority to administer and enforce legislative enactments may constitutionally determine the precise scope of their authority and the proper objects of their jurisdiction. 247. 3d 183. Due deference is ordinarily given to such interpretations. Buckeye Quality Care Centers v. 2d 263. and 42 U. Ct. Jackson (10th Dist. 3. b. however. Office of Consumer's Counsel v. 154. c. (4) Where a specialized statutory remedy is available in the form of an adjudicatory hearing. rather than supplement.C. 3d 244. Issues involving the construction of a statute. v. Supp. 3d 183. 154 Ohio St. a suit seeking a declaration of rights that would bypass. 39 Ohio App. 2.choice. R. 129. 186. Although an agency is precluded from passing upon the constitutional validity of a statute or its application. (S. Facial constitutional challenges may be raised for the first time on appeal because they are not dependent on a factual record. would be to raise the issue at hearing to ensure proper development of the record. Collateral challenges to the validity of a statute and/or its application. Hamilton Mun. Public Util. of Ohio (1993). Arbor Health Care Co. Lieux v. injunctive relief. 1125. a. 1133. 1988). 412. 44 Ohio St. a. 3d 619.47(A) (legislative intent is that statutes comply with constitutional requirements). Bd. 70 Ohio St. State Med. § 1983.C. Comm. 48 Ohio App. Kosydar. the legislative scheme ordinarily should not be allowed. 1. 66 Ohio St. a suit seeking a declaration of rights which would bypass. 2d 128. State of Ohio ex 45 . nothing precludes an agency from applying the constitution to properly construe a statute that is at issue. Cleveland Gear Co. 1987). b. Limbach (1988). 1987). 349 F. State ex rel. Declaratory judgment (1) Where the relief sought rests solely on a constitutional claim. 42 Ohio St. Herrick v. rather than supplement. (1994).03).C. Jackson (10th Dist. (3) The decision whether to allow a declaratory judgment collateral challenge lies within the sound discretion of the trial court.

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

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

47

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

48

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

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

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

(2) It has also been argued that although the state may not file objections itself. Objections to Report and Recommendation. Chapter 119 is silent on this issue. para. AGENCY ACTION A. Respondent may file objections to the Report and Recommendation. (1) Extension to file objections may be granted by the agency. The agency must consider the objections before approving. (1) Copy must be sent by certified mail within 5 days of filing with the agency. 119. Service of the Report and Recommendation. 119.01(G) as “the person whose interests are the subject of an adjudication by an agency.testimony”) (emphasis added) and State v. 714.C. may file objections to the hearing examiner’s report.09. 9. thus. 1993). a. (2) Serve upon the party or the party’s attorney or representative of record. 85 Ohio App. (2) Agency may not issue a final order without allowing ten days for objections to be filed. 2d 160 at 171-72 (decision reversed because only one board member reviewed evidence). 54 Ohio App. 9. (1) Note: R. Effect of Report and Recommendation (1) The hearing examiner’s Report and Recommendation is submitted to the appropriate agency representatives to be approved. 9. R. Ohio Rehabilitation Services Comm. Carroll (6th Dist. (2) Recommendation is not final until confirmed and approved by the agency. it is argued that only the respondent. 119. 119. “Party” is defined under R.09. para. d.C. para. modified or disapproved.C. 1977). 119. VIII. modifying. Objections must be filed within ten days of receipt of the Report and Recommendation. R. R. or disapproving the recommendation of the examiner. c. (10th Dist.09. b. not the State. c. 3d 701. Miller v. the state may file a response to the respondent’s objections.C. Hearings Held Before the Agency 52 .09 provides that “the party” may file objections.C. 8.

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

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

5.C. Some agencies’ statutes provide time limits for the issuance of orders following a recommendation. G. 67 Ohio App. Ohio Veterinary Licensing Bd. Best practice is for the agency to review the entire record of the proceedings. b. R. (10th Dist. transcript of testimony and evidence. it should indicate in its order that the R&R is “confirmed and approved. 398.C. to make its own findings. Under some statutes. 1993). shall have the same effect as if such hearing had been conducted by the agency.55. See. (1st Dist. No. 1981). 3d 204. and any additional testimony and evidence.” b. if the agency accepts the recommendations of the hearing examiner without any determination to modify the same. e.. and should not be modified upon the issuance of the final agency order. if the agency fails to act within a certain time period from the issuance of the R&R. 85 Ohio App. 3rd Dist. See.” Miller v. 210 (unclear whether each board member reviewed entire record). R. 2 Ohio App. e.C. Agency Review of the Report and Recommendation of the Hearing Examiner 1. 4731. R.09 provides that no recommendation shall be final “until confirmed and approved by the agency as indicated by the order entered in its record. or disapprove the recommendation of the examiner. 4517. The Agency may approve. modify. 3. Ohio Veterinary Med. Bd.g. Ohio Rehabilitation Services Comm. 2. 1990). R. 713-14. including the entire transcript.g. based on such report.23(D) (board must issue order within 60 days or within any time period agreed upon by the party). 15-2000-13.3. 2000-Ohio-1812 (board did not read entire transcript). or objections of the parties. See Lies v. (10th Dist. In re Certificate of Need Application of Providence Hosp.09.C. Accordingly. 3d 701. d. and draw its own conclusions from the evidence. 4. 3d 391. Failure to act promptly on a Report and Recommendation a. the hearing examiner’s R&R is deemed accepted. 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.. Vonderwell v. and to avoid charges that it rubber-stamped the recommendations of the hearing examiner. c. recommendation. The Agency is permitted to independently review the evidence. 119.. “[T]he order of the agency. Modifying or disapproving the recommendation of the examiner 55 .” These may be “magic words” that should be used in all orders that accept the recommendation of a hearing examiner. Approving the Report and Recommendation a. 119.

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

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

setting forth the order appealed from and stating that the agency’s order is not supported by reliable.09. The order must be entered on the agency’s journal. Language. 119. 2.12. probative. R. para. The agency must maintain the original order in its files. The notice of appeal may.C. Hughes v.12 of the Ohio Revised Code. and substantial evidence and is not in accordance with law. 119.C. 9. 10.I. a. and should attach a copy of the same to its final order. was found sufficient to put a party on notice as to how to file an appeal of an agency’s order.09. The Notice of Appeal shall also be filed by the appellant with the [appropriate court of common pleas]. of Commerce. Service of the Order 1. 119. 10. 2007Ohio-2877. 58 . 119.C.09. R. 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. and substantial evidence and is not in accordance with law. A certified copy is a duplicate of an original. Content and Issuance of the Order 1. 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]. Hughes v. 9.C.C. at ¶ 14-15. para.09.C. probative. a. 10. of Commerce. R. 119. that tracks the language of R. R.09. 119.C. The order must include or have attached a statement of the time and method by which an appeal may be perfected. 3.09. Ohio Dept. para. para. 114 Ohio St. 10. Ohio Dept. 5. R. 119. b. b. 3d 47. 2007-Ohio-2877. certified as an exact reproduction by the officer responsible for keeping the original. The party must be served with a certified copy of the order. J. 4. The agency may incorporate by reference the entire Report and Recommendation. but need not. at ¶ 16.” R. para. para. The order approving the Report and Recommendation should state that the recommendation is “confirmed and approved. The order modifying or disapproving the Report and Recommendation must state the reasons for the modification or disapproval. set forth the specific grounds of the party’s appeal beyond the statement that the agency’s order is not supported by reliable.

and the attorney may be served with an uncertified copy by regular mail. 114 Ohio St. Brennan (1987). Nos. Issue preclusion/collateral estoppel precludes the relitigation of an issue actually and necessarily litigated and determined in a prior action. CA99-07-082. of Edn. The following language is recommended for the certification: State of Ohio County of _________________. of Zoning Appeals (1987). 12th Dist. a. 2007-Ohio-2877.. There is no requirement that the copy to be sent to the attorney be certified. 2. 10AP-419. LEXIS 2268. the party must be served with a certified copy by certified mail. K. 3d 47. supra. R. Application of collateral estoppel/issue preclusion 59 . No. 31 Ohio St. Ohio State Bd. Effect of Orders – Claim/Issue Preclusion 1. SS I. entered on its journal on the ___ day of _____. the agency may use other methods of service as provided. A report and recommendation must be sent by certified mail to the party OR the party’s attorney. If delivery fails. 2011-Ohio-431. 31 Ohio St. ¶ 35 4. 3d 260. at *7. 3d 306. Sun Refining Marketing Co. b. 200? ___[signature]___________ Name Title Date (seal) 2. of Commerce.c. [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. Bainbridge Twp. Kellough v. For the order. of Workers’ Compensation. both the party and the attorney must be served. Inc. 5. CA99-09-108. 3. 119. Cooper v. See failure of delivery of notice. 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. Note: There are differences between the service requirements for an order and for a report and recommendation. The agency must send a certified copy of the order to the party 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. 3. The agency must also mail a copy of the order to the party’s attorney.C. 308. 263.07. Bd. Ohio Dept. However. 2000 Ohio App. 10th Dist. Set Products. v. Administrator of Ohio Bur. Hughes v. v.

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

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

nor its director was a “party” within the meaning of R. Chapter 119). 62 Ohio St. Other Parties 1. 134 Ohio St.C. corporation. Osborn v. 46 Ohio St. State Emp. 120 Ohio App. Clermont Natl. (2) When the State acts merely as an adjudicator. paragraph one of the syllabus. 1970). 119. Bd. 119.01(G). association. Parents of Students Attending Edge Academy of Akron & Ida B. 54 Ohio St. A bank that receives notice pursuant to R. Siesel. 3rd Dist. In re Job Abolishment of Jenkins (10th Dist. 2d 91. 119.C. without an independent interest in the matter. of Edn. 510. c. 2d 41. Relations Bd. 3d 99. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party. of Admin. 119. 1111. Ratchford (10th Dist. 119. No. (1990). Jackson (1976). No. ”Person” is defined as “a person. 119.. 2002-Ohio-4235. 13-0215. 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.” R. 150-51.12 (1) Neither the state. the State is not a proper party to an appeal pursuant to 119. and has standing. to appeal an order by the superintendent of banks granting the application. 27 Ohio App. 1984). e.C. Bank v. Compare Seneca County Bd. 2d 41. 1991). 2002-Ohio-1318.” R. 385. of Mental Retardation & Developmental Disabilities v.01.C. (10th Dist.b. (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. State ex rel. Hamilton Cty. v. Collyer v.C. v. 10th Dist. 347. 47.01(G). a state agency. 49. 46 Ohio St. Edwards (10th Dist.C. Osborn. Serv. 21 Ohio App. Wells Community School. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R. Bd. firm. 119. 3d 507. Dept. or partnership. Unless a statute provides otherwise. 346. 3d 113. 74 Ohio App. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency. under R. 62 . B. of Mental Retardation & Developmental Disabilities v. 3d 147. State ex rel. 102. 387.C. Broadview Developmental Ctr. Government entities as parties for purposes of R.12. 01AP-786. 1963).12. Haig v. 46 Ohio St. Harrison v. rev’d on other grounds.C. 3d 48. Akron City School Dist.C.12. 47-50. d. Ohio State Bd.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.01(F). Public Utilities Comm. of Edn. (1938). Professionals Guild of Ohio (1989). Blue Cross of Northeast Ohio v. 114. (1992).

R. 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. Johnson v. 3. 119. probative. 119. 2010-Ohio-4731. (2) The party need not attach a copy of the order as long as the appellant sufficiently describes the order appealed from. Lucas Cty. c. (ii) The Seventh District Court of Appeals disagreed. 05AP-511 (Dec.C. at ¶ 6. 2011-Ohio-2485. Setting forth the order appealed from: attach OR sufficiently describe. para. 10th Dist. 2006). but need not set forth the specific grounds of the party’s appeal. C. 05CVF066560 (June 15. No. and substantial evidence and is not in accordance with law. at *4-5. The notice of appeal must set forth the order appealed from and state that the order is not supported by reliable. 4. See Foreman v. of Industrial Relations. State Bd. para. R.12. LEXIS 3041. Notice of Appeal 1.12.. R. 119. beyond the statement that the agency’s order is not supported by reliable. Siegler v. Pinkney v. No. Community residents had no right to appeal. probative. b. Court of Common Pleas. 119.C. 10th Dist. 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.C. Ohio State Bd. Only the local school board could bring the appeal. 4.12. 1974 Ohio App. 1976 Ohio App. probative. Statement of grounds/required language (1) The notice of appeal must state that the order is not supported by reliable. 3d 678.” Hunnewell v. 10th Dist. No. No. of Edn.C. (2) The notice may. para. 6. as they are not parties under R.. of Nursing.12. and is not in accordance with law.12.C. No. a certificate of plan approval granted to a real estate developer for the construction of a mall complex. Ohio Dept. pursuant to R. 76AP-423. Content of Notice of Appeal a. and substantial evidence. finding that “any requirement to make a written statement of the standard of review in the 63 . 119. 74AP-231. at *6. 2005) at ¶ 10. (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. LEXIS 8150. Ohio State Univ. Barnes v. 4.2. 10th Dist. 189 Ohio App.P. 10AP-421. at ¶ 12. Ferguson-Ramos. Franklin C.

128 Ohio St.E.notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction. 119. Zidian v Dept. Dudukovich v.12. County of place of business or county of residence 64 . Franklin C.. No. and a copy with the court. 11AP-259.2d 1113. Which court of common pleas? a.12. No. 2011-Ohio-3172. 12 O.P. of Job and Family Services. 2012). Evankovich.Ohio-95. 7th Dist. 2011-Ohio-1604 (appeal under R. “[i]n filing a notice of appeal with the agency or court. 11 MA 39. Warren County Regional Planning Comm. 1. Effective May 8. D. 58 Ohio St. ruled in accordance with the Tenth District Court of Appeals.C.C. 11 MA 39. Chapter 119. 2. the notice of appeal must be filed with the agency and with a court of common pleas. Lorain Metropolitan Housing Authority (1979). Ohio Dept. probative. Ohio Dept. 4. ¶ 43-44. 119. the notice that is filed may be either the original notice or a copy of the original notice. of Commerce.12 to remove the requirement to file the original notice of appeal with the agency. of Commerce. 119.2d 202.C. 7th Dist. No. 2. 2505.C. of Job & Family Services. 389 N. The statute now provides that. 12-CVF-1835 (Apr. the General Assembly revised R.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). 10th Dist. 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. Russell v. of Pharmacy v. at ¶ 34. 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. Inc. No. The notice of appeal need not contain the language specified by R. 7th Dist. Zidian v Dept. R. Form of the Notice of Appeal a. 10. Chapter 2505 governs the procedure for administrative appeals. 204.12 governs appeals taken pursuant to R. State of Ohio Bd. Under R.v. para. 2012-Ohio1499. 119. 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. v.C.” R. 2012.. 2009. probative and substantial evidence and/or is not in accordance with law. 3d 471. Where to File R. Deaconess Hosp. No.C. 2012-Ohio-1499. 119.C.3d 198.C. ¶ 39.12 (that “the agency’s order is not supported by reliable. But see Welsh Development Co. 10 MA 153.O.

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

2nd Dist. LEXIS 744. A stay of execution of the agency’s order pending appeal is not automatic. No. 02AP-1019. 110. State v. 11AP-259. 3d 192. 3. 72 Ohio Law Abs.C.C. Colonial. Williams.P. 5.12. 3d 100. Bd.C.42(C). 3.C. App. E. (8th Dist. No. Ohio State Med. No. 84 Ohio St. both notices of appeal. 103. Liebold v. Hiddens. 119.12 deprives the court of jurisdiction over the appeal and mandates dismissal. Harrison v. v. 4. Ohio Dept. No. 2007-Ohio-2877. 5th Dist. 3d 47. 01CA13. Ohio Veterinary Med. ¶ 28 (R. Inc. Time for Filing the Notice of Appeal 1. of Admin. 2000). Hughes v. Ohio Dept. 1987). 1995). Mansfield. Yeager v. Granting of suspension of the order 66 .. 1993). of Ins. 2011 CA 0085. No. R. one to the agency and the other to the court.12 is a condition precedent to the running of the time for appeal. 119. Serv. 1955 Ohio App. v. 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. Ohio Liquor Control Comm. at ¶ 13. Ohio Dept. Ohio Dept. (10th Dist. 511. Evidence a. 2012-Ohio-95. No. 195. 21487. 2.C. of Commerce.C. 10th Dist. Dickson v.12. LEXIS 5647 (Nov. Scott (1955). at ¶ 14. F. (Franklin C. must be filed within 15 days of the mailing of the agency’s order. 103 Ohio App. Morrison v. at ¶ 6. 2012-Ohio-2908.07) Nibert v. 189. Pursuant to R. 4. 4th Dist. 2007-Ohio-2972. 2002-Ohio-5986. 114 Ohio Misc. Chapter 2505 governs the manner for filing appeals under R.. Ohio Dept. 37 Ohio App. 119. 114 Ohio St. Proper service pursuant to R. 1993 Ohio App. 2505. of Job & Family Services. The court held that R. Nibert. 10th Dist. a. para. Geroc v. 2d 48. 24. 84 Ohio St. 2006-Ohio-3436. 3d 317. Deaconess Hosp. 51. 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. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R. 3d at 102. Bailey v. paragraph one of the syllabus.C. 2003-Ohio-3121. para. Suspension (Stay) of Agency’s Order on Appeal 1. b. 2. 321.c. Ball. 8th Dist. 119. The filing of an appeal does not automatically operate to suspend or stay the agency’s order.C. 04AP-748.12. Bd. of Rehabilitation & Correction (1998). Arndt v. The actual mailing date of the order is the event that triggers the appeal period. 10th Dist. R.

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

Franklin C. M. In granting a suspension of an agency’s order. 3d at 781-82. 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. 119. Standard of review of trial court decision on this issue is “abuse of discretion. (c) whether the issuance of a stay will cause harm to others.C. Terms of the suspension a. City of Cincinnati Civil Service Comm.” Hunter v. v. Generally. v. 2001). (b) whether the appellant has shown that it will suffer irreparable injury. para. Ohio State Med. 1st Dist. (1) If an appeal is taken from a common pleas court decision when the court previously granted a suspension of the agency order.P. R. No. suspension of the order remains in effect until the matter is “finally adjudicated”. R. 5. The Court may set terms during duration of suspension including restrictions on practice.P. LEXIS 13852. para. b. at *910. 1992).. 4. 5. 5. and (d) whether the public interest would be served by granting a stay. Duration of the stay/suspension of the agency’s order a.(2) Logical considerations: The Court of Appeals for the Tenth Appellate District has held that the following factors are “logical considerations” when determining whether to stay an administrative order pending appeal: (a) whether the appellant has shown a strong or substantial likelihood or probability of success on the merits. 783. until all appeals are exhausted and agency’s order becomes final.C. 5. General Motors Corp.12.12.C. Leo D'Souza. that is. Krihwan. 1981 Ohio App. (3) The court generally has broad discretion on what factors to consider in granting a suspension of the agency’s order. 119. See..12. No. 08CVF-05-7342 (June 12. Fattah v. Franklin C..D. 2008). c. the Court may fix the terms of the suspension order. then the suspension “shall not be vacated” and will continue until the matter is finally adjudicated. 68 . e. (10th Dist. See R. No. Deciding a motion for suspension of agency order is wholly within sound discretion of the trial court. 141 Ohio App. para. C-800651. Inc. The State Medical Board of Ohio. 141 Ohio App.g. Bob Krihwan Pontiac-GMC Truck. 119. 3d 777. Bd. 92CVF05-4202 (July 15.

6. R. 3d 262. 265. 119. State Med. No. para. 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. City of Dayton v. R. at *24-25. 84AP-225 & 84AP-362.C. R. R. 119. 63 Ohio App. ¶ 8. para.C. 5. b. LEXIS 10933. 1991). 2nd Dist. c.C. 10th Dist. 119. (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. at *6. (b) Fifteen-month limitation on suspension of agency order is constitutional and does not violate due process or equal protection rights. (c) The General Assembly set a definite time period for the duration of a suspension of the agency’s order. Ohio State Dental Board (7th Dist.C. The final adjudication order may apply to a license that was renewed during the appeal (regardless of stay/suspension of agency order). 69 .12. any trial court order suspending an agency order will remain in effect until the appellate process is complete. License renewal and suspended agency orders a. LEXIS 5639.12. Nos. b. (3) However.C. 1987 Ohio App. Expiration of license shall not affect the appeal.121. 1984 Ohio App. para. 7 (a) Stays of certain orders by the Liquor Control Commission must terminate no more than six months after the filing of the certified record in the common pleas court. 119. Giovanetti v.(2) Generally where a timely appeal is taken from a trial court. 119. 6. Plotnick v. R. of Ohio. A license renewal cannot be denied by reason of an agency order that is on appeal and has been suspended by the court. Bd. and did not intend for the limit to be evaded with successive stays. (b) The court is required to enter judgment within six months of filing of the record.12. 9951. Haddix.12. whichever occurs first. Exceptions (1) Liquor Control Commission. or upon a final decision of the common pleas court. (i) The stay does not continue on appeal to court of appeals.

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

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

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

Williams Ford Sales. Robinson (1981). No. of Chiropractic Examiners. 1999 Ohio App. 1985). e. of Agriculture. of Psychology (10th Dist. 119. untimely request for hearing. 3d at 227. (Court found that when the agency’s action was based upon procedure. is mandatory. 37 Ohio App. State Bd. judgment for the party. upon motion. para.C. LEXIS 863. Mandatory judgment if complete failure to file record by due date. State ex rel. LEXIS 465. 3d 153 at 155. 1987). 3d 111. 365. v. 24 Ohio St. judgment based upon a defect in the record on appeal is procedural. 3d 153 at 155. but filed them after they were approved and prior to the court’s decision. Prejudice required if the record was filed with a wrong or omitted case number. 3d 225 at 227-28. (1st Dist. Serv. Arlow v. 21 Ohio App. (a) Not to exceed 30 days. Ohio Dept. (4) The court may permit the agency to correct a defect by filing omitted evidence. Ohio Rehab. See Jordan v. McGee v. there was no prejudice. 2d 363. 114.g. 532. (2) Additional time may be granted. (b) Agency must show it has made substantial effort to comply. (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 301. Comm. 7th Dist. f. 21 Ohio App. Connor (1995). (1) No finding for party in absence of a showing of prejudice. State ex rel. Jennemen. 4th Dist. Inc. No. Bd. (1) No prejudice requirement. Geroc v. 82 Ohio App. Noble County. 234. 95APE09-1239. See Arlow. of Nursing Edn. (1986). 1993). No. Ohio Veterinary Med. 1996 Ohio App.McCauley v. Where the agency fails to file any record within the time allowed. not on the merits. 72 Ohio St. Sinha v. 67 Ohio St. Ohio St. the agency is therefore not barred by res judicata in a subsequent action. 9.12. at * 4.. I. e. 305. Crockett v. at *4. Record on Appeal/Submission of Additional Evidence 75 . items omitted were unlikely to have altered the trial court’s decision on appeal). LEXIS 6439. 1987 Ohio App. (8th Dist. Bd. Jennemen v. d. and Nurse Registration. at *14. R. Ohio State Bd. 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. (2) For res judicata purposes. 3d 192 at 197. 10th Dist. 24 Ohio St.

of Pharmacy. Newly discovered. (b) that the movant exercised due diligence. 3d at 502. of Pharmacy. Ohio State Bd. If the appellant does not present such evidence before the agency.12 relating to newly discovered evidence is analogous to language in Civil Rule 60(B)(2). 83 Ohio App. 540 (citations omitted). of Registration for Professional Engineers & Surveyors (9th Dist. at ¶ 36. Ohio State Bd. 502. R.” Steckler v. 3d 278. 1990).C. 101 Ohio App. b. and that a new trial would probably produce a different result. CVS/Pharmacy #3131 v. 119. not merely impeaching or cumulative. 3d 531. he or she cannot then raise the constitutional issue by introducing new evidence before the trial court unless the evidence is newly 76 . Could not with reasonable diligence have been ascertained prior to the hearing before the agency. 38. 67 Ohio App. No. 1995). Ohio Bur. 2.C. 119. c. 3.1. Duryee. Newly discovered evidence a. 8th Dist. CVS/Pharmacy #3131 v. 2003-Ohio-3806. it must have been discovered subsequent to the trial. Duryee (9th Dist. 101 Ohio App. State Bd. 3d 33. however. (2) In interpreting Civ. 2003-Ohio-3806.12. 11. The court may grant a request for the admission of additional evidence when it is satisfied that such additional evidence is: a. cases interpreting Rule 60(B)(2) may therefore be helpful in interpreting R. 3d 495. at ¶ 36. the court is confined to the record as certified to it by the agency. Clark v. newly discovered evidence does not refer to newly created evidence. Newly discovered evidence and Civil Rule 60 (B)(2) (1) Language in R. and (c) that the evidence is material. 60(B)(2). courts have held that the moving party has the burden of demonstrating: (a) that the evidence was actually “newly discovered”. 1997). of Motor Vehicles (9th Dist. and b. 119. New evidence of constitutional issues (1) If an appellant presents evidence before a state agency concerning the constitutionality of a statute as applied. Ohio State Bd. Unless otherwise provided by law. 288. that is.C. then the trial court may also determine the constitutionality of the statute as applied. Diversified Benefit Plans Agency v. 82215.12. R. 121 Ohio App. “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.” Holden v. 1992). of Psychology (8th Dist. para.

(6th Dist. 10th Dist. L-03-1089.S. 395 U. 12th Dist. 797. No. 879. 185. No. 2012-Ohio-3506. No. CA2011-05-039.. (2012). 6th Dist. 2012-Ohio-996. Jaber (6th Dist. No. relief must be sought by exhausting this remedy before the courts will act. by failing to raise the issue as a defense at the administrative hearing. City of Toledo v.. provided the following reasons for the requirement: (1) the need for the litigant to allow the agency to build a factual record. 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. 1998 Ohio App. Lucas Cty. the respondent. BMV. b. 1 Ohio App. In other words. In re Henneke. State ex rel. 6th Dist. 2. 416-17 (must exhaust administrative remedies prior to mandamus action). 3d 874. 11AP-837. No. No. Ohio Liquor Control Comm. Because the statute in question was part of the statutory framework that the board should have applied in its analysis. 412. 111 Ohio App. ¶ 22.S. LEXIS 2964. (1969). Rationale a. U. Ctr. Noernberg v. American Legion Post 0046 Bellevue v. at *5. 77 . 3d 795. at ¶ 21. 132 Ohio St. the party must exhaust the available avenues of administrative relief through administrative appeal. 2012-Ohio-2187. 2012-Ohio-996. 29 (prior to seeking court action in an administrative matter. 2nd Dist. City of Brook Park (1980).C. 154 Ohio St. ¶79. c. 11. 2003-Ohio-7251. In re Henneke. 193. Ackerman (1st Dist. 119. CA2011-05-039. 63 Ohio St.3d 167. Covell v. ¶ 65. See Wymsylo v. a party challenging the constitutionality of a statute as applied must raise the challenge at the first available opportunity during the administrative proceedings. did not waive the issue on appeal. Ohio Dept. 1996). 2d 26. Lucas Cty. Crawford-Cole v. Educational Serv. Berning v. Dept. Exhaustion of Administrative Remedies Doctrine 1. Lieux v. Zieverink v. Al-Sadeq Islamic Educational Ctr. Definition a. of Job & Family Servs.. 2012-Ohio-2991. L-11-1177. The state could not have discovered the evidence in time no matter the diligence. Westlake (1951). J. Failure to timely request a hearing does not preclude a court's consideration of a due process violation. 113 Ohio App. 12th Dist.discovered and was not ascertainable with reasonable diligence prior to the hearing before the agency. at ¶ 5. (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. Inc. See also. 3d 10.12. Bartec. v. 1996). 1981). 16895. The doctrine of exhaustion of administrative remedies mandates that when an administrative remedy is provided by statute. of Transp. The United States Supreme Court in McKart v.

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

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

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

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

Bd. that is. A court of common pleas when reviewing an agency’s order need only find substantial. 10th Dist. there must be a reasonable probability that the evidence is true.C. and substantial evidence. R. 13.12. vacate. 63 Ohio St. ¶ 37. para. it must have importance and value. (c) “Substantial” evidence is evidence with some weight. (2) Reliable. 2011-Ohio-6089. Our Place. 3d 570 at 571. b. probative. 04AP-46. it must be relevant in determining the issue. 13 (emphasis added). or modify order. 63 Ohio St. 11AP-174. In order to be reliable. (1992). Id. Ohio Liquor Control Comm. or is not in accordance with law. para. 2004-Ohio-3726. at ¶ 11. 1998 Ohio App. 10th Dist. ¶ 37. of Ohio. 3d 570. probative and substantial evidence and is in accordance with law. Griffin v. 10th Dist. 4th Dist. reverse. Affirmance (1) “The court may affirm the order of the agency complained of in the appeal if it finds. Inc. Liquor Control Comm.12. 119. of Ohio. Griffin v. vacate or modify the agency’s order if the court finds that the agency order is not supported by reliable. 2011-Ohio6089. 4.. upon consideration of the entire record and such additional evidence as the court has admitted. Reverse. State Med. it can be confidently trusted. 82 . at *8. or other ruling (1) A court may reverse. Bd. Smith v.” R. No.3. probative. 98CA03. No. and (2) The agency’s decision is in accordance with law. Our Place. 11AP-174. or modify the agency’s order a. Mathews v. v.. No. c.C. LEXIS 6331. vacate. probative and substantial evidence (a) “Reliable” evidence is dependable. reliable and probative evidence supporting one ground for revocation in order to uphold the agency’s order. No. Affirm. State Med. and substantial evidence. (b) “Probative” evidence is evidence that tends to prove the issue in question. 571. Ohio State Liquor Control Comm. 119. that the order is supported by reliable. 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.

3d 526. LEXIS 2533. 2006-Ohio4443. 279. 10th Dist.(2) Any other ruling is permitted as long as it is supported by reliable. LEXIS 532. 1984 Ohio App. (4th Dist.C. 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. 5th Dist. No. 119. the court should defer to the determination of the administrative body. Bd. University of Cincinnati v. Bainbridge Twp. of Ohio. (2) “For example. 11740. para. Wells v. of Jobs and Family Services. Cty. (10th Dist. when the evidence before the court consists of conflicting testimony of approximately equal weight. Ohio Veterinary Med. No. at *3. of Scioto Cty.. OBES. 2003-G-2505 and 2003-G-2513. 1992 Ohio App. Administrator. R. of Liquor Control (1955). at ¶ 11. 91AP-1235. De Novo Review on issues of law (1) The common pleas court conducts a de novo review on issues of law. Conrad. 1993).. Nos. 2d 108. 11th Dist.” University of Cincinnati v. Asad v. No. State Bd. c. Bd. 71 Ohio App. Conrad (1984). 63 Ohio St. Andrews v. 1991). with due deference given to the administrative resolution of evidentiary conflicts. State Med.” Herbert v. Appellate “hybrid” review (1) The statute directs the common pleas court to function as an appellate court. as the fact-finder. probative and substantial evidence and is in accordance with law. University 83 . Mitchell v. 164 Ohio St.. (4) The reviewing court may reevaluate the credibility of the evidence. (2) A de novo review means an appellate court must independently make a determination without giving deference to the lower court’s decision. See Brown v. Bingham v. Licensing Bd. 1998 Ohio App. 87 Ohio App. at *6-7. at ¶ 40. 18510.12. Mathews v. had the opportunity to observe the demeanor of the witnesses and weigh their credibility. 63 Ohio St. 275. Crumpler v. No. 10th Dist. 3d 704. (3) A common pleas court in such cases “should not weigh the evidence anew. See also. (2) An appeal to the trial court of an administrative order is not a trial de novo. No. 528. 111. Ohio Dept. Commrs. 9th Dist. 9th Dist. of Edn. LEXIS 12259. at ¶ 18. Standard of Review: Common Pleas Court a. 13. which. 711. 04AP-46. 2004-Ohio-3726. 2004-Ohio-3687. Due Deference on questions of fact (1) The reviewing court must give due deference to the administrative resolution of evidentiary conflicts. b. 5. but should simply see if there is credible evidence in the record to support the Board’s finding. 2005-CA-86. Ohio State Liquor Control Comm. 2d at 111.

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

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

R.C. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R. 119. “Fees” means reasonable attorney fees.C. in an amount not to exceed $75 per hour. d. (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits. A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. 124.092(F)(1).092).092(F)(2) would not bar recovery of fees.C.). 124. 119. 119.C. Chapter 119 contains two attorney fee provisions: 1. 2335. 119.092(F)(4) as it pertains to the state personnel board of review.092. 152 Ohio App.C.C.092(B)(2)(c). but not R. 2003-Ohio2203.092(F)(3).C. ATTORNEY FEES A. 119. R.C.C. Moody (1st Dist. 2. 1. b.092(F)(2). Haghighi v.34 (involving removals or reductions for disciplinary reasons). 119. An adjudication hearing was held to establish or fix a rate. Non-recoverable fees a.12.03. An adjudication hearing was held by the state personnel board of review pursuant to R.03 (involving discharges or layoffs) and those arising R.34. What are “fees”? a. 124. 86 . 119. (1) NOTE: There is a split of authority concerning the scope of R.C. and R. 119. the First District has held that attorney fees may be recovered after hearings under R. Recovery of Attorney Fees by Party Prevailing at Hearing (R.C. 3d 600.092(A)(2). R. 124. R. syllabus. R. allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level. 119. R.092(F)(4). which allows a prevailing party on appeal to move the court for attorney fees in accordance with R.092(F)(4).C.C.39. and 2. The fees of the prevailing eligible party were one hundred dollars or less.C.C. state.C. R. B. c. R. 119. 119. An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits. unless the agency has established a higher hourly rate by rule that is applicable under the circumstances. e.C.X. or local government. 119. Relying on the plain language of R.C.

C. (2) An individual whose net worth exceeded one million dollars at the time he received notification of the hearing. Carruthers v. at *7-8. 3. No. shall not be excluded as an eligible party because of its net worth. Chapter 4117. Juvenile Div. 1999CA00055. 5th Dist. 1999 Ohio App. 1992). R. 121 Ohio App.C. 119.. 119. 73 Ohio St. (3) The Tenth District Court of Appeals has held that all lawful hearings before the SPBR are necessarily in accordance with R. Hamilton Cty. 124. 43.03 -. v. 78 Ohio App. and (4) An employer that employed more than five hundred people at the time the party received notification of the hearing. Nos. R.after hearings under R. 4.092. Inc.C. v.092(A)(1). See discussion below re: “prevailing party” under R. 1999 Ohio App.C.C. f. Wilde v. 124. LEXIS 3536. A motion to the agency is the only mechanism for recovering fees. (1st Dist. Who can recover fees: prevailing eligible party? a. The Ohio Civil Rights Commission is not an “agency” for purposes of R. 98CA00138. O’Connor (10th Dist.12 b.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. 3d 723. Discount Fireworks. 87 . LEXIS 4813. b. 119.C. 98CA00025. 3d 39. Licensing Bd. 3d 397. An “Eligible party” means a party to an adjudication hearing other than the following: (1) The agency. Auglaize Mercer Community Action Comm.C. Stetz. State ex rel. or an organization that had a net worth exceeding five million dollars at the time the party received notification of the hearing.03. (1995). 119. 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. the award is not automatic.C.092(F)(4). (3) A sole owner of an unincorporated business. An adjudication hearing was held by the state employment relations board pursuant to R. 119. however. R. Ohio Veterinary Med. at *37.092 does not permit an eligible prevailing party to file a separate action for fees in common pleas court. Ohio Civil Rights Comm. 1997). 725. Ct. Estate of Kirby v. A prevailing party is entitled to attorney fees. 401-02. 5th Dist. of Common Pleas. Procedure for requesting fees from the agency a. g.

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

(2) Generally. not continue a proceeding that has already begun. 9. (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.C. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. Sowald.092(B)(2). 1992-Ohio-1. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. Substantially justified (1) Whether the initiation of the action was substantially justified is evaluated at the time of initiating the action. R. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation. 1992-Ohio-1.C. at 342-43. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100. Sowald. Merits of the motion: was the agency “substantially justified” in initiating the action? a. (2) Whether the position of the agency in initiating the matter was substantially justified. matter on which action is brought and issue is joined and in relation to which. Denial or reduction of fees requested 89 . testimony is taken.12’s provision for attorney fees. 1992-Ohio-1.06 and 119. b. (3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing. Initiating action (1) “Initiate” means to commence an action. (2) See cases below interpreting “substantially justified” language in R. Ohio Dept. as found by the court of appeals. if issue be one of fact.e. of Health v. and finds improvement in deficiencies. 119. b. 119.. 342. 119. Id. i. 8. Sowald.07. 3d 338.C. Decision on the motion for fees a. Moreover. issuance of the notice of opportunity for hearing.(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. not its initiation. 65 Ohio St. State ex rel.

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

12..C. (2) he is financially eligible.C. 119. 2335. 119. 2335. d. 119. In re Williams (1992).C.092(C). (3) A copy of the decision must be certified to the agency and the eligible party.39(B) provides that an individual may recover attorney fees if (1) he prevails. No. 1. R. R. 78 Ohio App.39 a. 119. R. (2) The agency’s appeal would be filed in the manner specified by R. R. 119. or calculation involved an abuse of discretion. Harrison v. R. 119.12 for appeals. Statutory framework: R.C. R.C. 2003Ohio-3816.12. R. Common pleas court decision. R.092(C).C. at ¶10.C. (2) File in same court in which the party would appeal agency’s adjudication order. and (3) the state’s position in initiating the matter in controversy was not substantially justified. Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee. “Prevailing party” 91 . C. 02AP-955. in accordance with R. 558.C. Ohio Veterinary Med. c. b. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order. Ability to receive fees: prevailing eligible party a. (1) The court may modify the decision of the examiner or the agency only if the failure to grant.092(C). 2.C.092(C). 119. 119. (2) Decision is final and not appealable. 3.12 provides that the court shall award compensation for fees to a prevailing party.(1) May appeal denial or reduction of award. Licensing Bd. 5.C.12.39.39 sets forth general rules governing the award of attorney fees in actions against the state. 3d 556. not the agency itself. 119. 119.C. 2335.092(C). 2335. 10th Dist. 4. The agency must file a certified record as required in R.C.C. R. This attorney fee provision applies only to appeals brought pursuant to R.C.

(3) The court may take the partial victory into account when determining the amount of the fees to be awarded. c. 3d 483 at 487.39(B)(1). (3) A sole owner of an unincorporated business that had. or organization that employed. (4) A sole owner of an unincorporated business that employed.092. (2) A party who appeals an order or judgment and prevails to the extent of obtaining a new trial or a modification of the judgment is a “prevailing party. R. 3d 483 at 487.e.C. Korn v. 3d 483. 1991). or a partnership. See above. 71 Ohio App. 71 Ohio App. (2) An individual whose net worth exceeded one million dollars at the time the action or appeal was filed.C.(1) A party need not attain a complete victory. b. corporation. 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. State Medical Bd.. 92 . 6.. The motion may request both fees incurred in appeal and in the administrative hearing. The court must determine: (1) Whether the position of the state in initiating the matter in controversy was substantially justified. Court review a. Korn v. i. more than five hundred persons at the time the action or appeal was filed. or organization that had. association. R. a net worth exceeding five million dollars at the time the action or appeal was filed. to qualify as the prevailing party.39(D). R. corporation.” Korn v. 487.C. other than the following: (1) The state. 2335. association. 2335.. b.39(A)(2). The motion must be filed within 30 days of the final judgment by the reviewing court in the action or appeal. 119. 7. Same requirements for content of motion as in R. 2335.C. State Medical Bd. dismissal of all charges without remand. or a partnership. “Eligible party” means a party to an action or appeal involving the state. State Medical Bd. (10th Dist. 71 Ohio App. Motion for fees a.

Burden of proof (1) The state has the burden of proving that its position in initiating the matter in controversy was substantially justified.C. The 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. f. 8. 2335.C.39(B)(2)(a).” R. The State’s failure to prevail on the merits does not create a presumption that its position was not substantially justified. knowledgeable in the area of the law. Fees may be denied if the position of the agency initiating the matter in controversy was “substantially justified. 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 ***. If a reasonable person. The order must be included in the record of the appeal. The court must issue its order in writing and include: (1) (2) (3) (4) An indication of whether the award is granted Findings and conclusions underlying the decision Reasons or bases for the findings and conclusions Amount of award. b. b. (2) The court may reduce or deny if the prevailing eligible party engaged in conduct during the course of the action or appeal that unduly and unreasonably protracted the final resolution of the matter in controversy. that special circumstances make an award unjust. if any e. 2335.39(B)(2). Denial of award: substantially justified standard a. c. d. or (b) special circumstances make an award unjust. The clerk of court shall mail a certified copy to the state and the prevailing eligible party. or that the prevailing eligible party engaged in conduct during the course of the action or appeal that unduly and unreasonably protracted the final resolution of the matter in controversy. believes that the state’s 93 . (3) Whether the prevailing eligible party engaged in conduct during the course of the action or appeal that unduly and unreasonably protracted the final resolution of the matter in controversy. R.(2) Whether special circumstances make the award unjust.

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

119.C. where the court assumed (without deciding) that.C. 2335. of Health v. state. Ohio Dept. 1992-Ohio-1. under the right circumstances. An order of a court considering a motion under this section is appealable as in other cases.C. a.35. of Motor Vehicles (9th Dist. or local government. 3d 458. When the eligible party’s attorney was paid pursuant to appropriation by federal. R.C. b. 2335. Adjudication orders exempted under R. b. Schregardus.092(F).39 a. 2335. If the case is an appeal of the adjudication order of an agency pursuant to section 119. Exemptions from R. R. R. c. or the calculation of the amount of an award.39(B).C.C. 10th Dist.C. State ex rel. 1994 Ohio App. However. R. d. b.39(B)(2). Morris (1992). Ohio Bur. attorney fees could be awarded in a proceeding where the state attempted to decertify a nursing home.39(F)(3)(c).39(F)(3)(a). 95 . 11. 5101.39. Pro se litigants may not be awarded attorney fees under R. 10. where the state sought to take away a license already held by an individual.2335.39(F)(3)(b). 2335. 93AP-331.C. Note: For additional information on administrative law. LEXIS 6174 (Feb. 3d 338. involved an abuse of discretion. Inc. 65 Ohio St. 3d 531. See also. An administrative appeal decision under R. v. by a prevailing eligible party that is denied an award or receives a reduced award. 24.C. State ex rel. 2335. No. Freeman v.12 of the Revised Code. c. you may wish to consult the Ohio Administrative Law Handbook and Agency Directory in Baldwin’s Ohio Administrative Code. Appealing an award of attorney fees under R. 460. the agency may appeal an order granting an award. 1990). the court in In re Van Arsdel distinguished cases such as Holden v. 1994) at *6-7. Sowald. 65 Ohio St. 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. 67 Ohio App. 2335.” This principle was reaffirmed in Thermal-Tron.39(B)(2). 2335.

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