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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2003-Ohio-6940. (1981). Chapter 119. Since the act was not a licensing function. or denying the issuance or renewal of a license or registration of a licensee. v. duties. the university was also bound by Chapter 119 in the exercise of those powers. b. may appeal from the order of the agency to the court of common pleas. 119. revoking. The conduct at issue was authorized by R. Inc. 151-52. Ohio Dept. 10th Dist No. of Trustees of Ohio State Univ. 3 . 68 Ohio St. the Supreme Court of Ohio held that the Ohio State University was not itself an “agency” for purposes of Chapter 119. Entities exercising derivative power a. entity exercising derivative power must be a state agency. para. "any party adversely affected by any order of an agency issued pursuant to an adjudication denying the applicant admission to an examination. 1 (emphasis added). which then authorized state universities to exercise the powers.” R. v.12. The court held that to the extent that the university was exercising powers derived from the Department of Administrative Services. Not Ministerial Acts 1.01(B). C. para. which was an agency subject to Chapter 119. a. Serv.. 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. of Trustees. (1963). (1) In Bd. Chapter 119 provides certain rights in relation to adjudications.06. 124. 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. or canceling of a license. 174 Ohio St. the act is a licensing function because it does not fall under the exemption included in R. Chapter 119 Applies to Adjudications. paragraph two of the syllabus).14(G). was not appealable pursuant to R.3 (citing Karrick v. at ¶ 24. 2d at 152 n.C. (2) Municipal body exercising derivative power does not constitute an “agency” for purposes of Chapter 119.C. 4. 2d 149.C. the refusal was not an agency decision and therefore. 119. 03AP-330." R. suspending. 467.C. Where an entity exercises power derived from another agency that is covered by Chapter 119. 119.12. Board of Edn. Bd. of Commerce.C. 119. and functions of the Department of Administrative Services with respect to civil service employees. the entity is also subject to Chapter 119. or revoking or suspending a license .01 to 119. 68 Ohio St.13. Right to an appeal: Pursuant to R. of Admin.. (4) The Tenth District Court of Appeals held in Springfield Fireworks. of Findlay School Dist.C.Therefore. 1 (emphasis added). Dept.

69 Ohio St. 1994). 3d 612. but does not include the issuance of a license in response to an application with respect to which no question is raised. Creasy. No. The Ohio Supreme Court ruled in Ohio Boys Town. State ex rel. 119. 69 Ohio St. of Human Servs. pursuant to R. 3.” b. or legal relationships of a specific person. 3d 612. duties. In re Seltzer (1993). at ¶ 16. of Natural Res. A ministerial act has been defined as an act that. one must determine whether the act of the agency constituted an adjudication. the act of denying his transfer application was a ministerial act to which no right to appeal attached. “Adjudication” defined a. 1993). The Supreme Court held that the rejection of the application for renewal was an adjudication by the highest or ultimate authority of an agency. 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. Brown (1982). Id. Thus.. 2d 1. An “adjudication” is defined by R. 70 Ohio App. “Ministerial Act” defined a. 618. (6th Dist. v. New London Hosp. Id. (10th Dist. Inc. Ohio State Racing Comm. 67 Ohio St. Trauger v. Ministerial acts involve no discretion (1) In Koch v.2. Chapter 119. v. 2002-Ohio-6838. a person performs in a prescribed manner. cited in Ohio Boys Town v. Nash (1902). without regard to or the exercise of that person’s own judgment upon the propriety of the act being done. 88. 762. 2d 1 that. the licensee was entitled to a hearing prior to being forced to cease bingo operations. Brown (1982). Ohio Dept. LEXIS 12569. benefits. Odita v. of Ohio Non-Profit Corp. at 12. c. 88 Ohio App. 616. therefore. 612. 4 . of Health (10 Dist. v. 96 Ohio App. 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. 3d 702. 80AP-208. v. 3d 220. 614. (10th Dist. Koch v. Bayside Nursing Ctr. 150 Ohio App. 70 Ohio App.). nor other acts of a ministerial nature.C. Raceway Park. 3d 754.C. privileges. Inc. 1980 Ohio App. of Natural Res. State Dept. given a certain state of facts. 3d 82. Ohio Dept. 1990). Ohio Dept. b. 66 Ohio St. or was merely a ministerial act. in obedience to the mandate of legal authority. in order to determine whether Chapter 119 applies. 224. at *8.01(D) as: “* * * the determination by the highest or ultimate authority of an agency of the rights. 10th Dist.

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

2006Ohio-2171. The Action of the agency rejecting the application shall not be effective prior to 15 days after the notice of rejection was mailed to the licensee. Orders suspending a license where a statute specifically permits the suspension of a license without a hearing. Orders Effective Without a Hearing 1. c. Chiropractic board. 4.06. Orders revoking a license where an agency is required by statute to revoke a license pursuant to a judgment of a court. When an agency denies a renewal or registration. Board of examiners of architects. No. If a licensee timely files for renewal or registration.06(C).06. 119. another agency.C. 05AP-1079. A hearing must be held following suspension. Exception: When a statute permits the suspension of a license without a prior hearing. Ohio occupational therapy. and give the appellant a right to hearing on appeal. Board of landscape architect examiners. R. 2.C. b. physical therapy. the licensee shall not be required to discontinue the licensed business or profession merely because the agency fails to act on the application.062. of Ohio. C. R. 10th Dist.06(B). R. The agency must provide a hearing unless a hearing was held prior to the denial. 119. 6 . Bd. or to the board of tax appeals. 5. and athletic trainers board.C. This is often called a “summary suspension.C. R. 119. at ¶ 14. Suspensions Without A Prior Hearing (“Summary Suspensions”) 1. State Med.C.C. provides: a. D. 2. 119.” a. R. 119. 3. Doriott v. Certain orders canceling or suspending a driver’s license. (1) Failure to provide an opportunity for a hearing following the suspension violates due process. para.06(A). 9. 119. General rule: Agency must provide an opportunity for a hearing BEFORE issuing an adjudication order. R.(2) No hearing is required for the following boards if the applicant failed a licensing examination: (a) (b) (c) (d) (e) Medical board. 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.

(3) Fiscal or administrative burden that additional or substitute procedures would require. if the Mackey test is met. at ¶ 12. Notice of suspension must state: (1) Reasons for the agency’s action. CA-2885. 05AP-1079. Mackey v. (2) However. (1) Wagers v. 17.07. The Ohio Supreme Court adopted the Mackey test in Doyle v. The court ruled that the state may impose a summary suspension of a horse racing license pending a prompt hearing afterward to determine any unresolved issues. Ohio State Racing Comm. and (3) Opportunity for hearing if requested within thirty days of the mailing of the notice. Supreme Court has ruled that summary suspensions are generally constitutionally permitted to protect the public.07. at *7. 2d 3. Notice requirements for pre-hearing suspensions pursuant to R. 3. then the due process rights of the individual are not violated. in which the court found that strict adherence to the judicial model of due process was not mandated for administrative hearings.S. Montrym (1979). b. 10th Dist. 5. (2) Copy of the notice must be mailed to the attorney or other representative of record. Three-Step Analysis (Mackey) (1) Nature and importance of the private interest affected by the official state action. 71 Ohio Misc. Ohio Bureau of Motor Vehicles (1990). Bd. 4. not later than the business day next succeeding such order. 119. b. of Ohio. Doriott v. (2) Risk of erroneous deprivation of the private interest through the procedures used. 2006-Ohio-2171. Due process concerns a.C. 1995).C. c. The U. the Wadsworth Municipal Court found that the state did not 7 . Service of the Notice (1) Notice must be sent to the party by registered mail. 52. 51 Ohio St. 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. LEXIS 556. (2) Law or rule directly involved. Ct. 443 U. 3d 46. State Med. to require the board to provide notice of opportunity for hearing subsequent to the suspension. 5th Dist..S. a. of Motor Vehicles (Wadsworth Mun. 1992 Ohio App. 119. in Meadows v. No. Rather. 1. (Massachusetts DUI case). Ohio Bur. return receipt requested.

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

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

paragraph 3 of the syllabus. 1 year after the expungement of his convictions. of Pharmacy. Fairhill Mental Health Center (1986). 2009-Ohio-6325. 140. Excessive delays may violate due process (1) A respondent was deprived of due process when a board issued a suspension based on a citation that was issued 5 years after the agency’s investigations. f. the interest of all citizens in obedience to the rule of law is undermined. Ohio Real Estate Comm. 186 Ohio App. 4th Dist. 3d 38. If a government agency is not permitted to enforce the law because the conduct of its agents has given rise to estoppel. Wightman v.. c. Boggs v. (1) The government cannot be estopped from its duty to protect public welfare. 3d at 146. Frantz (1990). No. is exempt from the operation of a generally worded statute of limitation. (10th Dist. 11th Dist. As a general rule. LEXIS 4414. 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. and after the agency had continuously renewed the licensee’s license in spite of knowledge of his convictions. Ohio State Bd. at ¶ 28. Journey v. 10 . 3d 143.). at ¶ 27. 10AP-699. laches is generally not a defense to a suit by the government to enforce a public right or to protect a public interest. 3d 96. No. 51 Ohio St. 51 Ohio St. Sullivan (1988). 96-G2005. Frantz. 51 Ohio St. State v. fraud or injustice. at *8-10. 3d 137. The Supreme Court of Ohio has held that the state. Ohio State Bd. Sekerak v. (2) The purpose of equitable estoppel is to prevent actual or constructive fraud and to promote the ends of justice. Estoppel does not apply against the state in the exercise of a government function. Mowery v. 2 ½ years after his criminal discharge. 3d at 146. Ohio Real Estate Comm. (2) Failure to meet time period is not reversible error if the appellant cannot show prejudice resulting from the delay. To hold otherwise would be to grant defendants the right to violate the law. d. 3 ½ years after the agency was notified of the licensee’s convictions. Frantz. 39. 2002-Ohio-413. 1997 Ohio App. 38 Ohio St.. 25 Ohio St. e. No. (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. of Pharmacy v. It is available only in defense of a legal or equitable right or claim made in good faith and should not be used to uphold crime. 01CA2780. absent an express statutory provision to the contrary.b. 2011-Ohio-1816. 10th Dist. Ohio Motor Vehicle Salvage Dealers Licensing Bd.

L. 89CV-01-64 and 88CV12-8615 (July 3. (10th Dist. 111-12. When an item is sent by certified mail. 119. 67 Ohio App. 290. D. 119. Franklin C. 10 A. 3d 332. return receipt requested. To party by certified mail: Notice of opportunity for hearing must be sent to the party by registered mail. Bd. 119. No. Tripodi v. To attorney by regular mail: “A copy of the notice shall be mailed to attorneys or other representatives of record representing the party.R. Kellough v. Ohio State Med.L. State Med.02(G). 2011-Ohio-431. 10th Dist. Amon v. 1970). 21 Ohio App. State v. (2) Service at a place of business. (7th Dist.062.C.P.L. b. R. Sufficiency of notice or hearing required prior to termination of welfare benefits. Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine. a. ¶ 35 (1) No requirement that the notice to counsel be sent by registered /certified mail. Nos. (2) No requirement that the agency search anything other than its own files to find out if the party is represented by counsel.. return receipt requested. E. 339.C. 10AP-419. registered mail is not required.07. R. a rebuttable presumption of delivery to the addressee is established.R. Gilbo (2nd Dist.3d 361. Liquor Control Comm.. (1) Note: registered mail and certified mail are interchangeable. Ohio State Bd.C.R.07. Service of Notice 1. 1990).3d 277. and thereafter a signed receipt is returned to the sender. Angerman v. 1989). 1. 96 Ohio App. Necessity of notice and hearing before revocation or suspension of motor vehicle driver’s license. Initial service of notice a.(2) A board’s issuance of a summary suspension one year after it had knowledge of the licensee’s practice violations was unconstitutional.5th 1.” R. 3. R. 60 A. (3) Driver’s license: In a case involving revocation or suspension of a driver’s license. 2. Annotations 1. Bd. 3d 287. 2d 110. of Edn.C. 11 . 47 A. 1994).

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

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

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

” Kellough v. Bd.C. at *5-6. 8th Dist. 10AP-419. (10th Dist. the agency need not hold full-blown R. d. 54292.28(D)) amended their statutes in response to the Goldman decision. 10th Dist. or present other evidence. Bd. 2011-Ohio-431. to provide that no hearing must be held if one is not requested.07. No. Evidentiary review in lieu of hearing a. LEXIS 3977. Cannot testify.. 2. Ohio State Med. “…nothing in the Board’s enabling statutes or R. 67 Ohio App.may or may not be implicated when prisoners request a hearing.” Goldman v. in 1996. No.C. C. as well as a more considered review of the circumstances of the case. 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. including the sworn testimony of the investigator. 15 . LEXIS 9961. No. b. 1989 Ohio App.. would be needed to fulfill the requirement for a hearing . however. Note: Many agencies (e. call witnesses.C.. Ohio State Medical Bd. 596-97. 119. 2001). Chapter 119 sanctions [plaintiff’s] participation in the hearing . Ohio State Bd. 3d 124. 3d 287. at *8-9 (appeal following remand). but some sort of reliable evidentiary review. State Med. 145 Ohio App. The notice must be received by the agency within the thirty day time period. 98AP-238. in the interest of due process. Nursing Board. 4731. Alcover v. of Edn. because of public nature. 3d 589. Ohio State Med. Loss of party’s right to participate. No right to make argument. Chirila v. 1987 Ohio App. 10th Dist. 10th Dist.. . Bd. . Goldman v. The “prison-mail rule” – which states that the date of filing for inmates is the date of delivery to prison authorities . If respondent fails to timely request a hearing. Hsueh v.b. b. (10th Dist. 291 (court declined to decide issue)..g. . Medical Board. however. agencies generally perform an evidentiary review prior to taking action. . Chapter 119 hearing.C. May attend hearing. of Ohio (10th Dist. R. State Med. c. 4123. 1998 Ohio App. 1990). the Board lacked any statutory authority to permit [plaintiff’s] participation. at *7.22(J). Effect of Failure to Timely Request a Hearing within Thirty (30) Days 1. R.C. 110 Ohio App. a. Ohio State Chiropractic Bd. No. . the Tenth District Court of Appeals held that the agency must review some evidence in support of the notice even if the licensee fails to request a hearing: “[T]he procedural safeguards which would make any hearing meaningful may not require a full adversarial and evidentiary proceeding. 2. 129. Bd. 88AP-276. LEXIS 4918. See Amon v. 1996).

The date set must be seven to fifteen days from the time the party requested a hearing.C. see Section IX APPEALS. 10th Dist. Kash (8th Dist. Initial scheduling is mandatory (1) The agency was not permitted to continue the hearing on its own motion after first scheduling the hearing 19 days after the request for hearing.07. 40 Ohio App. 3. The agency will often set the initial hearing date. para. 119. but may then continue the hearing to a later date. 1991 Ohio App.07. para. (1) In In re Application of Milton Hardware Co. 119. b. (2) Thus. 3d 111. 16 . date and place for the hearing. CA2867. Bd. 8th Dist. V. See In re Application of Milton Hardware Co. R. of Edn. 2d 157. v. in the same notice. the court said that two (2) years was an unreasonable delay. Yoder v.C. LEXIS 6173. at *4-5. Once a party requests a hearing.3. No. 3. at *7-8. 3d 201. 1988). 113. 1986). at *7. and then. 3d 256. unless otherwise agreed upon by both the agency and the party. 19 Ohio App. Id. Practical Note. 119. inform the party of the continuance. No. 1969). The agency may postpone or continue a scheduled hearing upon its own motion or the motion of any party. Vild. 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. 61 Ohio App. 166. the agency shall immediately schedule the time. LEXIS 2034. and forthwith notify the party. not mandatory. SCHEDULING OF THE HEARING A. b. 92AP-1430.09. 1988). Requirement to hold hearing within fifteen days is directory. B. Id. 5th Dist. Sahely v. Kizer v. (10th Dist. of Commerce v. (9th Dist. LEXIS 2713. 1993 Ohio App. Continuances 1. infra. 1991 Ohio App. McCullion. Initial Scheduling 1. the agency must initially schedule the hearing for seven to fifteen days from the date of the request.. R. a. A hearing cannot be continued for an unreasonable amount of time. because the agency has the authority to continue a hearing upon its own motion. 60858. Ohio State Racing Comm. Effect on appeal rights (split in decisions). 3. a. 31 Ohio App. In re Barnes (10th Dist. No. Ohio State Racing Comm.C. 262. Ohio Dept.. R. Ohio St. 2.

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

” b. LEXIS 3290. 10th Dist. 119. . Ohio State Bd. For the purpose of conducting an adjudication hearing. Chapter 119 Does Not Provide for Discovery Under Civil or Criminal Rules of Procedure 1. Wayne S. discovery rules do not apply. 9. 119. Nichols (1984). at *9. No. the agency . Gipe v. 4. Froug v. . 1(A) limits the Civil Rules to “all courts of this state in the exercise of civil jurisdiction at law or in equity . Ohio Board of Nursing. Agency law or rules may set guidelines for consideration of motions for continuance of hearing. 7th Dist. ¶ 43. LEXIS 305.C. Chapter 119 provides for depositions in lieu of hearing. 2 (emphasis added). 3d 7.C. No. of Psychology. including discovery rules. OBTAINING EVIDENCE AND SECURING WITNESSES FOR HEARING A. 00 CA 264. Similar to the civil rules. 5th Dist. Dist. of Pharmacy. the Criminal Rules of Procedure do not apply to proceedings conducted pursuant to R. 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 . Finally. The Ohio Rules of Civil Procedure. Bd. S-32-92.C. Casey v. Civ. Dept. See Moffett v. The agency's own law and rules may provide protection to certain records. . 00AP-523.C. R. of Human Serv. 2012-Ohio-1002. 2003 CO 7. .. 6th Dist. 10th Dist. 1993 Ohio App.c. Bd. 7th Dist. Chapter 119.13 of the Revised Code. VI. B. 11-CA-9. No. Miller v.C. Salem City Sch. a. 15 Ohio St. Mahoning Cty. .01 to 119. 02AP-1315. are not applicable to the administrative hearing procedure. the deposition may be used at 18 . No. ¶ 24 and 32. 3. . State Med. According to R. 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. Leake v. of Ed. b. ¶ 40. para. R. No.” White Consolidated Industries v. The agency’s own law and rules may provide for a discovery-like exchange of information. an administrative agency may allow testimony by deposition for witnesses who will not be available at the time of the hearing. 2003-Ohio-7007..09. . Depositions 1. R. a. . 2002-Ohio-606 at * 10.” R. 2. 2003-Ohio-4061. Ohio State Bd.09: “For the purpose of conducting any adjudication hearing required by sections 119. 2001 Ohio App. “The formulation of procedural rules of administrative agencies is basically left to the discretion of the agencies. The courts have held that because the Civil Rules are not applicable to administrative hearings. at *10. of Ohio.

b.” State Med. 119. Method of delivery 19 . Burneson v. 119. 2001 Ohio App. 48 Ohio App.09 is satisfied when the agency subpoenas records to be delivered at the commencement of the hearing. Id. Chapter 119 provides that a party may request the issuance of a subpoena duces tecum for the purpose of conducting a hearing. and served and returned in the same manner as a subpoena in a criminal case is served and returned.C. of Pharmacy v. of Pharmacy v. R.C. Proper service and fees a. The agency violates R.C. 51 Ohio St. 119. 3d 143. Ohio State Bd. R.09 does not provide for prehearing discovery depositions by a party to an adjudication hearing. Parties cannot obtain prehearing discovery depositions regardless of whether the depositions are described as “depositions” or “prehearing discovery depositions. 3d 222.C. 08AP-794. Bd. at *11. 00AP-523. the agency may. b. Ohio State Bd. 145. In re Heath (10th Dist. The subpoena shall be directed to the sheriff of the county where the witness resides or is found. 10th Dist. Frantz (1990).C. 535. Subpoenas for Purposes of a Hearing 1. Ohio State Racing Comm. however.C. issue a subpoena for any witness or subpoena duces tecum to compel the production of records. 10th Dist. b. For the purpose of conducting an adjudication hearing.09 (emphasis added).09 pertains to securing the attendance of witnesses and the production of records and documents for the purpose of conducting an adjudication hearing.hearing against a party who was present or represented at the taking of the deposition. at ¶ 24. Poppe (12th Dist. at *9-12. R. a.. No. 2. (2) The court further indicated that Froug could have requested a continuance if more time was necessary to review the records. 119. 1988). 80 Ohio App. Chapter 119 does not provide for discovery depositions. 119. C. Ohio Board of Nursing. of Ohio v. Id. R. 1992). 3d 605. 3d 527. and upon request of any party shall. 28-29. Murray (1993). 2009-Ohio-1103.09 by not issuing a subpoena when requested by the respondent.C. See Froug v. 66 Ohio St. reversal of the agency’s final order is not necessary where the respondent fails to show prejudice. (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. 2. No. The mandatory language in R. LEXIS 305. a. 611-12. Because R.

Castle (9th Dist. 10th Dist. error could be cured by subsequently tendering the fees. and the witness may not later refuse to appear solely because the fees were not tendered upon service. See R. 86-066. b. 119. or by leaving it at his usual place of residence. 92 Ohio App. State v.. 03AP-266. 17(D) provides that proper service is effected by tendering to the witness. (a) Where a witness lives outside the county where the agency is located. 1994). the fees for one day’s attendance and the mileage fees allowed by law.(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. 2335. Perfection Corp. c. 2.O. 119. at ¶ 26. or otherwise. fees shall be tendered without demand. No. if tendered prior to the time appearance is compelled. 20 .C. R. R. 734. upon demand. Return of subpoena a. A. 2004-Ohio-4041. R. Fees (1) Witness residing within county: Crim.09. Crim. (a) A witness living in the same county as the agency waives the right to fees if not demanded upon services. 3d 732. R. (2) When a subpoena was sent via regular mail to the witness’s usual place of residence and the witness has actual knowledge of the subpoena and of the consequences for failing to comply with the subpoena. para. OAG Opinion. 17(D) provides that the return may be forwarded through the postal service. OAG Opinion. 86-066. 17(D) provides that if the witness resides outside the county where the agency is located.C. (b) When the fees were not tendered with subpoena. valid service is completed. v. Must be returned in the same manner as a subpoena in a criminal case.09.08 for current amount. Smith Corp. (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. R. 3. (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.C. (2) Witness outside the county: Crim. witness fees and mileage fees must be attached to the subpoena and tendered without demand or the witness is not obligated to appear.

2317.4. at *13. such as limiting testimony of other witnesses.21. Ohio Motor Vehicle Dealers Bd. 8 Ohio St. 220. (2) Attachment proceedings for contempt are set forth in R. 1998 Ohio App. (b) The application is filed in the court of common pleas where the disobedience occurred. the court shall compel obedience by attachment proceedings for contempt. 3 Ohio App. (b) Court issues a “writ of attachment” to the sheriff or constable to bring the witness before the Court “to give his testimony and answer for the contempt.21.C. (a) This statute is inapplicable if proper fees are not paid to the witness.C. (c) The writ will only issue for disobedience of a subpoena “personally served” on the witness. 1981). 27.09. 2317. (c) If the matter is one in which the witness may be subject to lawful questioning. 3d 218. LEXIS 2020. v. at *13. and may not resort to other forms of punishment.” R. (c) A court of common pleas has a mandatory duty to compel attendance by attachment proceedings when a witness refuses to testify in an administrative hearing. 3d 26. (3) Requirement to Enforce if Requested. Failure to obey subpoena/sanctions a. Contempt proceedings. Green v.C. may order. No. 9th Dist. R. 119. subject only to proper privilege assertion by the witness. (1) Upon failure to comply: (a) Agency must file an application to enforce the subpoena if requested. Ohio State Dental Bd. Carratola. 2317. failure to do so does not require reversal of the agency’s decision unless the appellant shows prejudice resulting from the failure. 21 . him to show cause why such writ should not issue against him" if the witness was served with the subpoena in some other fashion. (a) The agency is required to seek enforcement if asked by the party who requested the subpoena. (d) Court shall compel compliance as in cases of disobedience of court subpoena. LEXIS 2020. Western Reserve Psychiatric Habilitation Center (9th Dist. Carratola v. (4) An agency is limited to the statutory attachment procedures to sanction contempt of its subpoenas. 1998 Ohio App. R. But the court "by a rule. Remlinger (1983). (b) Although the agency is required to seek enforcement of subpoena.21. 18658..C.

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

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

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

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

R.43(B)(1).52(A)(1). g. R. but must provide the requestor with an opportunity to revise the request. (4) Privileged information (a) See discussion below. 5 U.041(E). A pending administrative proceeding involving a conviction or intervention in lieu of conviction may be affected.C. 149. Section F.C. R. the trial court has discretion either to grant the motion immediately under R. Mechanics of making and responding to a public records request. (4) If information within a public record is exempt. but the Public Records Act does not require that the request be put in writing.C. 132 Ohio St.3d 416. 149.43(B)(1). do not generally act to exempt records in the hands of a state agency.C. in most instances. § 552.(“FERPA”). (3) If the requestor makes an overly broad or an ambiguous request. b. the agency shall make copies available at cost and within reasonable time.43 provides: (1) Upon request. (2) Upon request. 149. Protected Information regarding privileged information. 3. the agency may deny the request. 2951.C. 2953. a.43(B)(2). the agency must provide a redacted copy. Niesen-Pennycuff. 2953.C. 26 . held that when a criminal defendant who has successfully completed a program of intervention in lieu of conviction moves for an order sealing his or her record under R.52(A)(1).C. all responsive records must be promptly prepared and available for inspection at all reasonable times during regular business hours. § 1232g(b)(1). The agency may ask that the request be put in writing to assist it in responding to the request. Consult FERPA for requirements and exceptions.S. 149. 20 U.C. R. 2953.C. Exemptions under the Federal Freedom of Information Act.C. (a) Redaction must be plainly visible. Access to court record sealed or expunged under R. protects the release of educational records without written consent of the student or the student’s parents.S. unless the state agency is acting for the federal agency in some substantial respect. remember.32(A)(1). The Supreme Court of Ohio in State v. 2012Ohio-2730. 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. (c) When determining whether a federal exemption applies. or to impose a waiting period before the record is sealed pursuant to R.

C. 3d 619. 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. therefore. 621-26. (b) Maximum $1000. the agency must provide an explanation for denial.e. the party must pay the court reporter to get a copy of the court transcripts in common pleas court. R. 149. c. 149. Slagle v. 70 Ohio St. 2004-Ohio-4354.43. (1) At cost does not include employee labor time. The specific statute trumps 149. d. 3d 89.43(B)(3). R. 4. (2) The public office cannot charge for inspection. the party is entitled to the copy at cost.C.C.43(B) are to be interpreted. 103 Ohio St. (c) Only awarded if the requestor transmits a written request via hand delivery or certified mail.C. Anyone aggrieved by an agency’s failure to release a public record may bring a mandamus action to compel release. Enforcing Public Records Act a. 1994-Ohio-5. However. Hutson. 9-4). Liabilities (1) Civil penalties: (a) Statutory damages: $100/day after filing of mandamus action. R. rather than a transcript of the audiotape.43.(b) Redaction is considered a denial.43(C). 149. (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. if a party only seeks a copy of an audiotape of court proceedings. b. at ¶ 15-17. indicating legal authority for denial. that party cannot obtain the documents at cost under the Public Records Act. 27 . State ex rel. (ii) The custodian of the public records failed to comply with the party’s request. in whole or in part. 149. 149. (5) If the request is denied. Rogers (2004). Warren Newspapers v.43. (3) Regular business hours for a police department which is open 24 hours a day are normal administrative hours (i.C. provides insight into how the operative terms in R.

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

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

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

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

A. quoting In re Sealed Case (C. 81 Ohio St. 61. (1975). c. v. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Dann v. and (2) it must be deliberative. 352 (hearing public pursuant to Chapter 119. (10th Dist. Bd. 40 F. v.” and are not subject to the Open Meetings Act. quoting Carl Zeiss Stiftung v. 737. Taft. Sections 824-847. The privilege allows the government to withhold documents and other materials that would reveal advisory opinions. 2006Ohio-1825. b. See State ex rel. 1983). 81 Ohio St. citing Natl.D. State Med.01(E). Evidence (4th Ed. 1998-Ohio-445 (“sunshine law” does not apply to adjudication proceedings at the Board of Tax Appeals because its adjudication is quasi-judicial.5. 3d 58. v. Id. 318.B. b. 121 F. 3d 346. Hamilton County Bd. THE CONDUCT OF HEARINGS A. Unless an agency has a specific law to the contrary. 70 Ohio App. Id.. 10th Dist. 1990). 3d 729. Sears. 11-12. 44 Ohio Jurisprudence 3d. 2001-Ohio-8766. Rice (1993). 119. TBC Westlake. Inc. at 383-384. 1966). 109 Ohio St. c. Liquor Control Comm. Jones v. Deliberative Process Privilege a.E. Paul R. Standard to be met in order to establish the privilege and the reason for the privilege: (1) the material must be pre-decisional. Carl Zeiss. 01AP-344. Angerman v. 421 U. of Revision. See also.D. 8 Wigmore. b. 52 Ohio App. No.C. Treatises a. Attorney-Client Privilege in the United States.C. 32 .R. but deliberations need not be in open meeting). Jena (D. Nature of Proceeding 1. 1998-Ohio-445. 87-91. In re Petition for Annexation (10th Dist. Hamilton County Bd. Roebuck & Co. 3d 8. at 383.383-385. TBC Westlake. 3d 58. and therefore should be held in “executive session”). 132 at 151.D. 6. 324. 1997). all administrative hearings are open to the public. However. Open to the public a. quasi-judicial hearings are not “meetings. V.C. Evidence and Witnesses. at P. 3d 364. The Ohio Supreme Court has recognized the common law tenets of the deliberative process privilege.S. 61. 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. Inc. of Revision. 1988). VII. Labor Relations Bd. R.

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

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

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

35

VFW Post 8586 v. See also. See discussion. EBR 132761 (June 10. Standards for Consideration of Evidence 1. 53 Ohio St. 1993). 32 Ohio App. but the Supreme Court of Ohio has held that the standard for administrative cases is a preponderance of the evidence. 13. a court may reverse the agency’s order if it finds that the order was not supported by “reliable. b. Sanders v. this will be the agency.C. Buckeye Bar. Schregardus. 33 Ohio Misc.12.. Section IX APPEALS. Fleckner (1950). No.a. 2. R. para. probative and substantial evidence. 135. Chiero v. Standard of Proof Required 1. probative and substantial evidence a. c. Note – An agency’s enabling act may specify which party maintains the burden of production with respect to specific issues. D. and may therefore present such evidence first. of Motor Vehicles (Franklin C. 197. Weinstein (Hamilton C. Minch (1990).09 does not incorporate the Ohio Rules of Evidence. See Clermont Co. (10th Dist. Bur. The party attempting to establish that the averments in the notice of hearing are correct has the burden of going forward with the evidence. of Rev. 119.P. 27. The standard of “clear and convincing” evidence has been rejected as inappropriate. Preponderance of the evidence standard a. 91.C. 3d 79. Chapter 119 does not explicitly define the burden of proof required.P. v. so the agency will usually present its case-in-chief first. Ohio Liquor Control Comm. but R. 2d 25. Liquor Control Comm. Abs. if contested. R. 1998-Ohio-181. 83 Ohio St. b. of Pharmacy v. Typically. Inc. On appeal of an agency’s order. Statutes or rules 36 .” R. 81. Ohio State Bd. probative and substantial evidence. 119. 1987). Sanders v. See Pang v. 22. Ohio Environmental Bd. 2d 89. 3d 186.09 states agencies “shall pass on the admissibility of evidence” presented at the hearing. 24. for definitions of reliable. 1972). 55 Ohio Misc. 1977). c. Fleckner (1950). Reliable. below. E. 135.C.C. c. all agency orders should be based upon reliable. Accordingly. 119. Preponderance of evidence means that agency has burden to show that it is more likely than not that the events charged occurred. 59 Ohio L. b. d. Auditor v. probative and substantial evidence. EBR 132753. 59 Ohio L. In application cases. Abs. the applicant may have the burden to produce evidence of qualification for licensure.

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

Hearing Procedure 1. (2) the agency or hearing examiner may administer oaths or affirmations. It is not always unreasonable. 9. b. 92CA5451. “and it would be inappropriate to disregard his findings simply because they are partially based on admissible hearsay testimony. but by sworn testimony of several live witnesses who testified on behalf of appellee. Erdeljohn v. 3d 297. Green v. The hearsay rule is relaxed in administrative proceedings. No.C. Bur. to consider hearsay evidence that is in conflict with sworn testimony. Taylor v. 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. and (6) upon the agency’s refusal to admit evidence offered by a party. 1987). 1984). of Edn. a. 10th Dist.. Ohio State Bd. 1st Dist. No. 11CA-9. LEXIS 5887. 6. (2nd Dist. 2d 1. b. of Job & Family Serv. the Fourth Appellate District concluded that it is “required to give great deference to the hearing officer’s findings of fact. (1) See Valdez v. at *12.09. 1993 Ohio App. and appellant’s testimony was contradicted not only by appellee’s hearsay evidence. C-990573. [the party] may .C.C. 9th Dist. Bd. of Emp. Miller v. 119. Relatively little statutory guidance. 38 . . R. (4) the agency shall pass upon the admissibility of evidence. L-98-1105. Haley v. General procedure. of Pharmacy (Hamilton C. . of Review (8th Dist. 5th Dist. but the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner. stating that Taylor is not applicable where both parties were permitted to present hearsay evidence at the hearing. 7 Ohio App. No.” i. Limits on use of hearsay evidence. Ohio State Bd. R. Chapter 119 says very little about the procedure to be followed during an administrative hearing. a. however. 2012-Ohio-1002. Spud’s Auto Parts. at *5. Ohio State Dental Bd. 4th Dist. at *17. in Todd v. 119. c. at ¶26. (5) a party may make evidentiary objections to the evidentiary rulings of the agency. 119. 03CA2894.. Ohio State Bd. (3) the agency may ask any party to testify under oath as upon cross-examination. 20 Ohio App. the party must proffer the evidence into the record. No. LEXIS 1524. Kellough v. 38 Ohio Misc. 10AP-419. Servs. No.07 and 119. 1998 Ohio App. 2004-Ohio-2185.e. 3d 1. No. (2) In addition.. Ohio Dept.4.. 2011-Ohio-431. 6th Dist. 1982). LEXIS 2687. Mason v.09 sets forth the basic parameters of a hearing: (1) a stenographic record may be made of the hearing. witness credibility. 2000 Ohio App. The only references to hearing procedures appear in R. Invacare Corp.” F. 299.07 provides that “at the hearing. of Pharmacy.P. present evidence and examine witnesses appearing for and against him.” This section is silent regarding the manner in which evidence is to be presented.

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

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

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

Bd. Cross Examination a. R. Documentary Evidence. (3rd Dist. 611. 87.09. 1990). 119. b. b. 5. the licensee may call witnesses who will vouch for his/her/its character. Character Witnesses (1) In discussing the character or business reputation of a licensee. 6. Cleveland (8th Dist. Kaufman v. 4. J.such decision could not be justified by reliable. Zurow v. Who can administer oaths: Chapter 119 grants the agency or anyone delegated to conduct the hearing with the power to administer oaths. (3) The failure to swear a witness is a waiveable error. 3d 79. (2) An agency’s refusal to accept testimony of more than two character witnesses is not an abuse of discretion. Exhibits also may be admitted at the close of case-in-chief at which time the opposing party may object. 2. probative. giving opposing counsel opportunity to voice objections. para. Ask witnesses to state and spell their name for the record after being sworn in. Exhibits should be marked. If a party desires to introduce marked exhibits into the record. 119. Under the Ohio Rules of Evidence. cross-examination may concern any relevant area of inquiry even if beyond the scope of direct. 3. 3. If the party does not object. para. Marked exhibits should be presented to the witness for identification and authentication. The hearing examiner should rule on a motion to admit evidence after entertaining any objections to the introduction of evidence. he/she should so move. which may be used as a guide.C. Evid. and to speak audibly and clearly for the reporter. Hearing officer and opposing counsel should be given a copy. 42 . 61 Ohio App. 7. Ohio Veterinary Med. the Agency’s decision will not be reversed. 18-19.09. R. Practical Considerations 1. b. 8. Marked exhibits should be shown to opposing counsel. R. 69 Ohio App. 2d 14. Direct examination a.C. at 19. 1978). 2. The agency may call a party to testify under oath as upon cross-examination. and substantial evidence. Id.

O. 12.g. State ex rel. Fields v. 172 Ohio App. No.. (1995). 3d 485. Summit Cty. 2006-Ohio-2171. 3d 68. 119. 2d 157. a licensee may not bypass the special statutory proceedings in the guise of obtaining declatory relief. 3. No. Exceptions: a. 43 . Where the legislature has provided special statutory proceedings for the discipline of a licensee. 165-67: if documentary evidence is not properly introduced and admitted into the record at the administrative hearing. 23 Ohio St. 05AP-1079. (10th Dist. Jurisdictional items should always be placed into the record: e. any written memoranda in which continuances were granted. (1) In order to dismiss a complaint for failure to state a claim upon which relief can be granted. Bd. 136 Ohio App. 156 Ohio App. 08AP-158.7. In re Application of Milton Hardware Co. or were agreed to by the parties. Div. 1992). State of Ohio ex rel. of Ohio. Ohio State Dental Bd. (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. In general. Although due process considerations would probably preclude an agency from dismissing a case on its merits before a full adjudication hearing is completed. Failure to state a claim with proper notice. notice letter. R. Bd. (10th Dist. 4. 10th Dist. 137. 2000). of Reclamation (1986). proof of mailing by certified mail. 5. of Edn. 2009-Ohio5852. 10th Dist. Doriott v. An administrative agency is precluded from dismissing a hearing once it has been requested by a respondent. Boggs v. at ¶ 14. Bessey. Bd.12. hearing request. of Ohio (10th Dist. 1969). 3d 677 at 683. 83 Ohio App. 72 Ohio St. State Med. at ¶ 4 (citing State ex rel. Executive Branch (9th Dist. letter to Respondent scheduling hearing.E.2d 1256 (10th Dist. ¶ 25-27. 2004). Can A Case Be Dismissed Prior to Hearing? 1. v. including the right to appeal any agency decision pursuant to R. under Civ. 2007-Ohio-3328. v. Failure to provide opportunity for a hearing violates Due Process. 874 N. 2. Gary Charles Gelesh. 19 Ohio App. it must appear beyond reasonable doubt from the complaint that the plaintiff/relator can prove no set of facts entitling him or her recovery. 3d 94. the court may reverse the agency’s action. Agency/Board may not deny the right to a hearing. State Med. respondent may not file a motion to quash (dismiss/summary judgment) a hearing once requested. 3d 131. Springfield Local School Dist. dismissals (without a hearing) based on procedural issues such as res judicata and subject matter jurisdiction have been upheld by the courts on appeal.” Talwar v. Williams v. Dressler Coal Co.C. K.). but nevertheless becomes part of the record on appeal. The State Medical Board of Ohio. 8. D. 3d 365. 72-73. proof of receipt. Aust v.

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

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

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

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

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

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

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

Taking of Additional Evidence 1. 2. 9. (9th Dist. 246-47.09 permits.09.. the agency may order the taking of additional testimony.2d 833 (10th Dist. 1998-Ohio-380. 1992) 2. but does not require.C. agencies to appoint a hearing examiner to conduct the hearing. 72. In such cases..C.. OAC 4723-16-12 (Nursing Board).2d 625 (9th Dist. 106 Ohio App. 119. Personal Appearances Before the Agency 1. 3d 562. Western Reserve Psychiatric Habilitation Center. 99 Ohio St. R. R. E. State ex rel. 119. depending on agency rules. Id. Administrative powers are only implied when clearly necessary to effect an express power. Washington v.09. 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. Comm. 53 . OAC 4731-31-15(G) (Medical Board).1. para. Ohio State Racing Commission. paragraph two of the syllabus. Implied remand a. Util. Jonathan R. See.C. See also. 70. Retirement Bd. B.E. Mallory v. Accordingly. Green v.091. Prior to issuance of a final order. some agencies conduct hearings without a hearing examiner. 119. R. 614 N. Remand to Hearing Examiner 1.C. Some agencies permit parties to personally appear before the agency prior to the agency’s deliberations. and the agency can issue an order following deliberations on the case. R. 3d 235.E. Agencies sometimes remand cases to the hearing examiner for the taking of additional evidence. 3d 208. D. e. C. 3. para. an administrative agency or board has no greater power than that expressly conferred upon it by the enabling statute. 2. The party may appear on his or her own or through counsel. Failure to Hold Hearing Prior to Expiration of License/Surrender of License 1. 3d 218. 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. Ohio Motor Vehicle Dealers Board. (1918). 2. Pub. 666 N. Haehn v. 211-212. 1981) 3 Ohio App. 82 Ohio St. 119. 567. 83 Ohio App. or the introduction of further documentary evidence. (1) Generally. 1995). Wise v. no report and recommendation is needed. Public Emp.g. 9.

Consideration of the Record 1. (3) Power will not be implied when the agency has the means to decide the issue within the confines of its express authority. 10th Dist. 2000-Ohio-1812. See Lally v. deliberate. not a final order). 3d 204.09 provides that an agency’s order must be “based on” the evidence. 93APE09-1216. Ohio Veterinary Licensing Bd.. in the absence of any showing that the findings of fact are defective.’” State ex rel. American Isuzu Motors. 326-27. 2 Ohio App. at *7. Bd. 1997). 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. (10th Dist. 3d 235. 33 Ohio App. LEXIS 6035. 8th Dist. No. 2004-Ohio-2981. 54 . Some agency rules provide that the agency may remand a case back to a hearing examiner for the purpose of taking additional evidence. 1998-Ohio-380. Inc. Slain Ford. 1981).C. b. Chapman v. d. Green. 3d at 220. Inc. No. Ohio State Racing Comm. Ohio State Dental Board (9th Dist. Slain Ford. a. 3d 522. 3d 324. 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. Retirement Bd. and additional testimony and evidence. 91AP-354. These “implied powers . Urella v. v. Lies v. this language does not necessarily require agencies to read the entire transcript of the proceeding. 137 Ohio App. e. (10th Dist. Bentley & Sons Co.09. Courts have implicitly. at *5-6 (holding that remand was an interlocutory decision. Bd. at *5-6. non-appealable order.” R. Zak v Ohio State Dental Bd. LEXIS 3665. 47). F. 118 Ohio App.. are limited to those that ‘may reasonably be necessary to make the express power effective. Ford Motor Co. Marion Ob/Gyn v.C. 560 (remand for briefing of legal issue).. 1998-Ohio-380 (quoting State ex rel. The agency’s order must be “based on such report.. 2006-Ohio-3315. . c. State Med. at ¶ 98 (remand to consider previously excluded testimony). 05AP1137. No. 3 Ohio App. Mallory. b. A.. at ¶ 9 (remand for purpose of determining attorney’s fees). 96 Ohio St. 1991 Ohio App. recognized the power of agencies to remand cases to the examiner. LEXIS 3665. Inc. recommendation. McCall v. 3rd Dist. . 15-2000-13. para. Mallory v. Ohio Veterinary Med. An agency’s decision to remand to the examiner is an interlocutory. Several courts have held that while R. Vonderwell v. transcript of testimony and evidence. 2000). No. 82692. 119. 9. (1st Dist. 10th Dist. 2. 1986).(2) Such implied power can be no greater than the express power and must be exercised subject to the same express power limitations. Pierce (1917). 82 Ohio St.. Bd. 10th Dist. 1993 Ohio App. 3d 555. 2. Public Emp. 44. and independent conclusions about the issues”). 525 (remand to consider additional evidence). 1991 Ohio App. 246-47.. No. if not explicitly. 119. or objections of the parties. v. State of Ohio Med.

it should indicate in its order that the R&R is “confirmed and approved. to make its own findings.g. Under some statutes. See.23(D) (board must issue order within 60 days or within any time period agreed upon by the party). 85 Ohio App. and to avoid charges that it rubber-stamped the recommendations of the hearing examiner. 3d 701.g.3. 1993). recommendation. 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. G.09. or objections of the parties. Modifying or disapproving the recommendation of the examiner 55 .” b.. 713-14. The Agency is permitted to independently review the evidence. e. 1981). e. 119. Accordingly.55.09 provides that no recommendation shall be final “until confirmed and approved by the agency as indicated by the order entered in its record. 398. shall have the same effect as if such hearing had been conducted by the agency. including the entire transcript. The Agency may approve. 3rd Dist. 3d 204. R. 5. 4731. R.” Miller v. “[T]he order of the agency. 1990). and should not be modified upon the issuance of the final agency order. or disapprove the recommendation of the examiner. Ohio Rehabilitation Services Comm. 119. No. modify. Agency Review of the Report and Recommendation of the Hearing Examiner 1. and draw its own conclusions from the evidence. 210 (unclear whether each board member reviewed entire record).C. 2 Ohio App. (10th Dist. 2.. Approving the Report and Recommendation a. 4.C. the hearing examiner’s R&R is deemed accepted. Failure to act promptly on a Report and Recommendation a. In re Certificate of Need Application of Providence Hosp. if the agency accepts the recommendations of the hearing examiner without any determination to modify the same. b. Vonderwell v. Ohio Veterinary Licensing Bd. (10th Dist.. if the agency fails to act within a certain time period from the issuance of the R&R. transcript of testimony and evidence. based on such report. d. Some agencies’ statutes provide time limits for the issuance of orders following a recommendation. c. (1st Dist. 67 Ohio App. Best practice is for the agency to review the entire record of the proceedings. 4517.” These may be “magic words” that should be used in all orders that accept the recommendation of a hearing examiner. Bd. R.C. See Lies v. 2000-Ohio-1812 (board did not read entire transcript). 15-2000-13. R.C. and any additional testimony and evidence. Ohio Veterinary Med. 3d 391. 3. See.

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

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

probative. The agency may incorporate by reference the entire Report and Recommendation. 10. that tracks the language of R. and should attach a copy of the same to its final order. b. para. 2007-Ohio-2877. 114 Ohio St. The party must be served with a certified copy of the order. 58 .12. Service of the Order 1. 2.C. 10. Hughes v. para.09. Language. R. of Commerce. The Notice of Appeal shall also be filed by the appellant with the [appropriate court of common pleas].09. a. 9. The order must include or have attached a statement of the time and method by which an appeal may be perfected. 10. J. a. was found sufficient to put a party on notice as to how to file an appeal of an agency’s order.C. para. R. 119. and substantial evidence and is not in accordance with law. 3. probative. 2007Ohio-2877.C. b. A certified copy is a duplicate of an original. at ¶ 14-15.09. The order approving the Report and Recommendation should state that the recommendation is “confirmed and approved. 119. 5. para. 119. 9. Content and Issuance of the Order 1. Hughes v. 10. 4.I. 3d 47.09. at ¶ 16. The notice of appeal may.09. 119. The agency must maintain the original order in its files. R. The following language is recommended for the general statement of time and method: Any party desiring to appeal shall file a Notice of Appeal with the [Agency/ Board/ Commission] [address]. but need not. certified as an exact reproduction by the officer responsible for keeping the original. 119. setting forth the order appealed from and stating that the agency’s order is not supported by reliable. 119. 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 119.12 of the Ohio Revised Code. Ohio Dept.09. R.C. and substantial evidence and is not in accordance with law. para. of Commerce. Ohio Dept. The order modifying or disapproving the Report and Recommendation must state the reasons for the modification or disapproval.C. R. para. The order must be entered on the agency’s journal. 119.” R.C. set forth the specific grounds of the party’s appeal beyond the statement that the agency’s order is not supported by reliable.C.

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

A final. Lindley (1980). Mutality of the parties (1) In Ohio. Goodson v. State Emp. Frye Teachers Assn. even though each action relates to the same subject matter. A judgment. and (4) the issue must have been identical to the issue involved in the prior suit. the doctrine of collateral estoppel may be used to bar litigation of issues in a second administrative proceeding. syllabus. or a person in privity with him. (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue. must be preclusive upon both. To determine whether a second action was barred by this rule of law. A prior judgment estops a party. Moitie (1981). Identity of the issues (1) A judgment or decree in a former action does not bar a subsequent action when the causes of action are not the same. 395. b. one of the primary considerations is the identity of the evidence necessary to sustain the action. the general rule is that mutuality of parties is a requisite to collateral estoppel. Relations Bd. McDonough Power Equip. 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. 2 Ohio St. collateral estoppel operates only where all of the parties to the present proceeding were bound by the prior judgment. Federated Dept. 81 Ohio St. 398. from subsequently relitigating the identical issue raised in the prior action. (1998). 2d 133.” Superior's Brand Meats. e. 60 .a. or issue preclusion. v. 3d 392. (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment. 3d 193. 62 Ohio St. Inc. v. Inc. (1983). As a general principle. syllabus. 394. (1) “Ordinarily. 452 U. Stores. 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. In order to prevail on the defense of collateral estoppel. in order to preclude either party from relitigating an issue. c.S.. OEA/NEA v. d. 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. Res judicata/collateral estoppel applies to administrative decisions of a judicial nature. Ft.

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

Hamilton Cty.01(F). a state agency. association. 119. 54 Ohio St. 114. Haig v. of Edn. v. 385. 119. 62 . Dept. Osborn. 47.C.01(G). (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. nor its director was a “party” within the meaning of R. d.C. Siesel. (1938). Ratchford (10th Dist. 1963).C.” R. No. 13-0215.b. Clermont Natl. No. under R. B. 74 Ohio App.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. Chapter 119). 10th Dist. 119. without an independent interest in the matter. of Mental Retardation & Developmental Disabilities v. ”Party” is defined as “the person whose interests are the subject of an adjudication by an agency. 120 Ohio App. of Admin. Compare Seneca County Bd. corporation. no person may appeal from an adjudicatory order of an administrative agency to which he was not a party. Akron City School Dist. 2d 41. v. 1111. 119. Collyer v.C.12. A bank that receives notice pursuant to R.12. Jackson (1976). Ohio State Bd. 3rd Dist. Unless a statute provides otherwise. 2d 41. Blue Cross of Northeast Ohio v. 387. Harrison v. 2002-Ohio-4235.C. Serv. 119.01(G). Parents of Students Attending Edge Academy of Akron & Ida B. of Mental Retardation & Developmental Disabilities v. (10th Dist. Bank v. 1984).01. 62 Ohio St. 510. paragraph one of the syllabus. 1970).” R. firm. (3) County governmental units were persons and therefore parties entitled to appeal within the meaning of R.12 (1) Neither the state. Osborn v. 3d 147. Broadview Developmental Ctr. 2002-Ohio-1318. (2) When the State acts merely as an adjudicator. 49. 347. Government entities as parties for purposes of R. 1991). State ex rel.C. 119. 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. (1992). rev’d on other grounds. c. State ex rel. 150-51. 346. 3d 48. 01AP-786.12. 46 Ohio St. e. to appeal an order by the superintendent of banks granting the application. State Emp. 3d 99. 119. 46 Ohio St. Public Utilities Comm. Bd. Edwards (10th Dist. In re Job Abolishment of Jenkins (10th Dist. ”Person” is defined as “a person. of Edn.C. 27 Ohio App. (1990). Other Parties 1. 2d 91. Bd. 21 Ohio App. Professionals Guild of Ohio (1989). Relations Bd. 102. 3d 113. Wells Community School. 46 Ohio St.. 134 Ohio St. or partnership. 3d 507.C. the State is not a proper party to an appeal pursuant to 119. and has standing. 47-50.C.

probative. Siegler v. 3d 678.C. 10th Dist. 1976 Ohio App. R. 05CVF066560 (June 15. The notice of appeal must set forth the order appealed from and state that the order is not supported by reliable. 10th Dist. 119. probative. Community residents had no right to appeal. and substantial evidence and is not in accordance with law. a certificate of plan approval granted to a real estate developer for the construction of a mall complex. No. Franklin C. 10th Dist. para.P.. c. beyond the statement that the agency’s order is not supported by reliable. LEXIS 8150. 4. Content of Notice of Appeal a. probative. but need not set forth the specific grounds of the party’s appeal. R. finding that “any requirement to make a written statement of the standard of review in the 63 . R. (ii) The Seventh District Court of Appeals disagreed. No. No. 10AP-421. No. (a) Split in appellate authority as to whether requirement is jurisdictional: (i) The Tenth District Court of Appeals has held that the failure to include the required language is a jurisdictional defect requiring dismissal of the appeal. para. 2011-Ohio-2485. C. 2006). para. Ohio State Bd.C.C.12. (2) The party need not attach a copy of the order as long as the appellant sufficiently describes the order appealed from. 119. No. pursuant to R. 119. (1) Attaching a copy of the order satisfies the requirement to set “forth the order appealed. Ohio Dept. at ¶ 12. and is not in accordance with law. at *6. Pinkney v. of Nursing. Only the local school board could bring the appeal. 3. at *4-5. 189 Ohio App. b. 4.12. LEXIS 3041.2. as they are not parties under R. at ¶ 6. 76AP-423.12..C. Barnes v. 10th Dist. 119.” Hunnewell v.12. 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. 2010-Ohio-4731.C.12. Ferguson-Ramos. (2) The notice may. Notice of Appeal 1. of Industrial Relations. Setting forth the order appealed from: attach OR sufficiently describe. State Bd. 1974 Ohio App. Ohio State Univ. 6. 74AP-231. of Edn. Lucas Cty. 05AP-511 (Dec. and substantial evidence. Court of Common Pleas. See Foreman v. 119. and substantial evidence and is not in accordance with law. 2005) at ¶ 10. 4. Statement of grounds/required language (1) The notice of appeal must state that the order is not supported by reliable. Johnson v.

When a statute provides for appeal of an administrative agency’s decision but does not reference the statute pursuant to which the appeal must be taken. 119.3d 198. ¶ 39. Which court of common pleas? a. No. 2012.” R. 2012-Ohio-1499. para. at ¶ 34. 7th Dist. Lorain Metropolitan Housing Authority (1979). the notice of appeal must be filed with the agency and with a court of common pleas.12 to remove the requirement to file the original notice of appeal with the agency. 119. No.P.. State of Ohio Bd.C. and a copy with the court. 2012-Ohio1499. 10th Dist. 3d 471. probative. 2011-Ohio-3172. The notice of appeal need not contain the language specified by R. Dudukovich v. 119.C. of Job & Family Services. 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.C. ¶ 43-44. 12 O. the notice that is filed may be either the original notice or a copy of the original notice. Under R. 2009.C. Chapter 2505 governs the procedure for administrative appeals.12..E. 11 MA 39.12 governs appeals taken pursuant to R. 2011-Ohio-1604 (appeal under R. 2505. But see Welsh Development Co. 12-CVF-1835 (Apr. Russell v. 128 Ohio St. Evankovich. Deaconess Hosp. 119. 11 MA 39.2d 1113. 7th Dist. Zidian v Dept. 389 N. County of place of business or county of residence 64 . 10.04 perfected when the court served the agency with a copy of notice of appeal within the time allowed for appeal). Warren County Regional Planning Comm. Ohio Dept. Franklin C. No. 2012). 11AP-259.12.2d 202. 2. Inc. 119. Zidian v Dept. of Commerce. The statute now provides that. Chapter 119. probative and substantial evidence and/or is not in accordance with law. R. Ohio Dept. 1. 2. 58 Ohio St.O. ruled in accordance with the Tenth District Court of Appeals. of Pharmacy v. 10 MA 153. of Commerce. Form of the Notice of Appeal a. v. 204. No. No.v.notice of appeal would have been superfluous” and does not deprive the common pleas court of jurisdiction. Effective May 8.C.C.Ohio-95. D. 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. “[i]n filing a notice of appeal with the agency or court.12 (that “the agency’s order is not supported by reliable.C. of Job and Family Services.C. 4. the General Assembly revised R. Where to File R. 7th Dist.

10th Dist. 2006-Ohio-502. Duchon v. 1. revoke or suspend a license may be filed in Franklin County.12. in the case of an appeal by the Department of Rehabilitation and Correction. 119. Inc. para. Special designations a. was the county of place of business.12. 119. Gallia County was not the county of place of business for purposes of an appeal of an order of the Psychology Board. 2. R. the party may file an appeal in Franklin County. Dept. (3) County of place of business (a) The county where the dentist worked four days per week. at ¶ 12. The party must choose whether to file a notice of appeal in the county of place of business or the county of residence. para. Altoff.C. R. Chapter 3737 must be filed in the county in which the building of the aggrieved person is located. of Psychology.C. 1: (1) (2) (3) (4) Liquor Control Commission Medical Board Chiropractic Board Board of Nursing b. paras. Miami C. State of Ohio Bd.C. 119. of Commerce. to the Court of Common Pleas of Franklin County. 2. not both.P. para. Appeals from the following agencies must be filed in the Franklin County Court of Common Pleas. b.12.. (b) Where the psychologist worked twice per month in Gallia County.C. para. 12CVF7204 (October 17. 2. 119. R.12. and may not file notices of appeal in both counties. No. 07-564 (July 30. Altoff v. 2006-Ohio-502. Ohio State Fire Marshal. 119. R.C. BP Exploration & Oil. 04CA16.C. performing services not regulated by the Psychology Board. 2005-Ohio-1533. Peter Garg v. No. para. 2012). v. 4. Franklin County Court of Common Pleas a. 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. R. (2) The party must choose one. and has no place of business in Ohio. Appeals from the fire marshal pursuant to R. Franklin C. 65 . Ohio State Dental Bd. 1. Appeals of adjudications that do not deny an application. No. at ¶ 15.12. 3. 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. 119. 04AP-619 and 04AP620. 2007). If the party is not an Ohio resident. c.(1) In most cases. not the county where the dentist worked one day per week. R.C. No. 4th Dist.12.P. 1.

2012-Ohio-2908. a. para. (10th Dist.12. 8th Dist. paragraph one of the syllabus. Time for Filing the Notice of Appeal 1. 114 Ohio St.C. Nibert. 1955 Ohio App. State v. 195. Serv. The filing of an appeal does not automatically operate to suspend or stay the agency’s order. 4. 84 Ohio St. Granting of suspension of the order 66 . 24. of Job & Family Services. 321. Chapter 2505 governs the manner for filing appeals under R. one to the agency and the other to the court.. para. of Ins.12 deprives the court of jurisdiction over the appeal and mandates dismissal. Ohio Dept. ¶ 28 (R. 4th Dist. 511. (8th Dist. Bd. Colonial. No. v. Yeager v. 119. App. No. 114 Ohio Misc. 110. Williams. 72 Ohio Law Abs.12. at ¶ 6. Harrison v. of Commerce. R. Suspension (Stay) of Agency’s Order on Appeal 1. 1995).C. 2006-Ohio-3436. b. The actual mailing date of the order is the event that triggers the appeal period. Scott (1955). 5th Dist. 3d 100. Geroc v. Bailey v. LEXIS 5647 (Nov. 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. 2002-Ohio-5986. Ohio Dept. 01CA13. 2012-Ohio-95. both notices of appeal. 2007-Ohio-2877. 119. Failure to file the notice of appeal with the appropriate agency within the fifteen-day limit provided for in R. must be filed within 15 days of the mailing of the agency’s order. of Rehabilitation & Correction (1998). 2d 48.C. Evidence a. 2011 CA 0085. 2000). 04AP-748. 11AP-259.. 10th Dist.C.12 is a condition precedent to the running of the time for appeal. 10th Dist. 3d at 102. 119. 3d 317. Mansfield. 84 Ohio St. 1993 Ohio App. 1993). Ball. 2007-Ohio-2972. 2003-Ohio-3121. Arndt v. 1987). 51. 103. A stay of execution of the agency’s order pending appeal is not automatic. E. 5. at ¶ 13. 3.42(C). Hughes v. 189. 4. Bd. 119.C.P. Liebold v.c. Morrison v. 2nd Dist.12. Ohio Dept. The court held that R.C. 103 Ohio App. 02AP-1019. 3d 192. at ¶ 14. R. Dickson v. of Admin. F. Ohio Veterinary Med.C. Normal practice is for the appellant to file a motion for stay or suspension of the agency’s order after filing the notice of appeal. 10th Dist. Ohio State Med. 3. No. 2. Hiddens. No. 2505. No. LEXIS 744. Ohio Liquor Control Comm. Inc. Deaconess Hosp. (Franklin C. No. Proper service pursuant to R. 21487. 2. 37 Ohio App.07) Nibert v.C. Ohio Dept. Ohio Dept. 3d 47. Pursuant to R. v.

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

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

R. (b) The court is required to enter judgment within six months of filing of the record.C. Expiration of license shall not affect the appeal. Giovanetti v. any trial court order suspending an agency order will remain in effect until the appellate process is complete.C.121. whichever occurs first. R.(2) Generally where a timely appeal is taken from a trial court. City of Dayton v. 1984 Ohio App. 6.12. para. 119. No. 3d 262.C. R. 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. A license renewal cannot be denied by reason of an agency order that is on appeal and has been suspended by the court. and did not intend for the limit to be evaded with successive stays.12. 1991). 1987 Ohio App. of Ohio. (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. 119. 265. Exceptions (1) Liquor Control Commission. The final adjudication order may apply to a license that was renewed during the appeal (regardless of stay/suspension of agency order).C. (3) However. 69 . 5. or upon a final decision of the common pleas court. b. LEXIS 5639. b. para. LEXIS 10933. R. (b) Fifteen-month limitation on suspension of agency order is constitutional and does not violate due process or equal protection rights. Haddix.12. at *6. (i) The stay does not continue on appeal to court of appeals. 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.C. 9951. 119.12. Bd. State Med. Nos. (c) The General Assembly set a definite time period for the duration of a suspension of the agency’s order. para. at *24-25. 84AP-225 & 84AP-362. Ohio State Dental Board (7th Dist. 10th Dist. c. License renewal and suspended agency orders a. ¶ 8. 63 Ohio App. Plotnick v. 6. R. 2nd Dist. 119.

121. If appellant wins on appeal. Civ.C. LEXIS 8285. at *6) (administrative appeal pursuant to R. See D-1 Liquor Permit Filed with the Ohio Dept. 1985 Ohio App.12 is a special statutory proceeding to which the rules of civil procedure do not apply). of Liquor Control by Stover v. Commrs. The Civil Rules will be applicable to special statutory proceedings that are adversarial in nature. however. G. of Cty. Giovanetti v. R. Westinghouse (1982). the Civil Rules should apply unless they are “clearly inapplicable. v. 56 Ohio St. R. 70 . a. R. Applicability of Civil Rules to Administrative Appeals 1. then there is no reason not to apply the Civil Rules.C. (1990). b. 27. This question must be decided on a case-by-case basis. and attorneys should look to the statute granting the right of appeal to determine whether the rules guide the procedure. 2d 131. 119. Courts have looked to Civ. LEXIS 3871. shall not apply . 10th Dist No. Ohio State Dental Bd. Civil Rule 1 is clearly a rule of inclusion rather than exclusion. 45 (determinations made on a “rule-by-rule” basis). 383.12. (11th Dist. 8th Dist. 66 Ohio App. (7) in all other special statutory proceedings ..” An administrative appeal is a special statutory proceeding. 2. Ramsdell v. and the court held that Rule 60(B) was inapplicable to such proceedings. Liquor Control Comm. 2d 42. 1990). at *4-5 (citing Sweetbriar Co. The 11th District has held that when the common pleas court must decide questions of law and fact. 119. 3. R. 3d 24. 33089. unless there is a good and sufficient reason not to apply the rules.C. but not in Chapter 119 appeals. Bd. . Warner (Cleveland Mun. 70 Ohio St. R. 1 provides that the Civil Rules are to be followed in all courts in Ohio in the exercise of civil jurisdiction at law or in equity. the court is limited to the record below. . 3d 381. To the extent that the issue in question is procedural in nature. The Civil Rules are not categorically inapplicable to appeals from administrative orders. 84AP1085. d.d.” The Civil Rules should be held to be clearly inapplicable only when their use will alter the basic statutory purpose for which the specific procedure was originally provided in the special statutory action. the court held that in an appeal under 119. such as when an appeal requires a trial de novo. as in appeals under R. 1974 Ohio App. . Ct. Decisions on particular civil rules. 133. 1(C) states that the Civil Rules “to the extent that they would by their nature be clearly inapplicable. Civ. 99 Ohio Misc. court shall order agency to renew license upon payment of fee. the Rules apply unless by their nature they are clearly inapplicable. Civil Rules may apply when the common pleas court conducts a trial de novo. 2506. 1 for guidance. c. Price v. . Ohio Civil Rights Comm. Talley v. Under Civ. No. . 1(C). 1999). Administrative appeals are special statutory proceedings. Case-by-case determination for special statutory proceedings.. 4.

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

(b) No prejudice when items omitted did not appear to be outcome determinative. City of Cleveland. 1987 Ohio App. Gourmet Bev.” R. Ohio St. the party is entitled to judgment only if the party is “adversely affected” as provided in R. (1) Motion required (a) Court may enter a finding based upon failure to certify record only upon a party’s motion.12.12. Bd. 2002-Ohio-3338. at ¶ 12. LEXIS 5492. v. 48 Ohio St. at ¶ 10. No. 2003-Ohio3261. of Psychology (4th Dist. LEXIS 1704.C. 1st Dist. Ohio State Dept. Lorms v. Ohio Dept. 10th Dist. 74 . Div. 119. McDonald v.. and Nurse Registration. 3d 488 at 491-92. in other circumstances. (2) “Failure requires reversal. Distinction between complete failure to file the record and omission from record. Cntr. State Bd. Comm. (b) An appellant must object or otherwise take affirmative action before a court may grant him judgment due to the agency’s failure to timely certify a complete record. Ohio Liquor Control Comm. Serv. 10th Dist. Inc. LEXIS 6439. Prejudice required for incomplete record (1) When an agency timely files the record. 82135. but the record is not complete. at *7. the judgment is mandatory. 24 Ohio St. (1986). 1987 Ohio App.. 155. at *4. 119. 119. 2. R. 4th Dist. (3) Showing of prejudice (a) Failure to file minutes was prejudicial when the issue in the case was whether agency based its decision upon one if its administrative rules. 24 Ohio St. (2) “Adversely affected” requires a showing of prejudice resulting from the item being omitted from the record. Linbaugh Corp. 1990). the party is required to show prejudice. Ohio Rehab. para. Comm.12 provides that “[f]ailure of the agency to comply within the time allowed. No. shall cause the court to enter a finding in favor of the party adversely affected. at * 6-7. 9.a. 3d 225. See Arlow v. upon motion. (c) If a party neglects to file a motion. 1985). 532. Ohio State Bd. Ohio Liquor Control Comm. 2d 153. See Wolf v. Arlow v. No. Serv.” Jordan v. 01AP-1217. C-860124.. 09AP-1050. Ohio Rehab. 70 Ohio App. n. (1) In a total failure to timely certify. c. of Commerce (1976). 1996 Ohio App. omission requires correction. 3d 153. 8th Dist. 21 Ohio App. Hamilton County Welfare Dept..C. of Commerce. 155. of Nursing Edn. 3d at 155. of Real Estate and Professional Licensing. 2010-Ohio-3842. of Chiropractic Examiners (1st Dist. v.C. Bergdahl v. 227. No. b. (1986). the party waives the right to object to failure to certify the complete record. No. Barlow v. Jennemen v.

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

Ohio State Bd. and b. Newly discovered evidence a. Newly discovered. CVS/Pharmacy #3131 v. and that a new trial would probably produce a different result. at ¶ 36. courts have held that the moving party has the burden of demonstrating: (a) that the evidence was actually “newly discovered”. The court may grant a request for the admission of additional evidence when it is satisfied that such additional evidence is: a. 119.C. and (c) that the evidence is material. 3d 495. not merely impeaching or cumulative. Ohio State Bd. 3d 531. 3d 33. of Pharmacy. Duryee.” Holden v. para. cases interpreting Rule 60(B)(2) may therefore be helpful in interpreting R. 1997).12. New evidence of constitutional issues (1) If an appellant presents evidence before a state agency concerning the constitutionality of a statute as applied. (2) In interpreting Civ. 121 Ohio App. 11. (b) that the movant exercised due diligence.C. 540 (citations omitted). No. 3. If the appellant does not present such evidence before the agency. 2003-Ohio-3806. the court is confined to the record as certified to it by the agency. of Pharmacy. 38. Clark v. Ohio State Bd. 8th Dist. 1995). 3d 278. Could not with reasonable diligence have been ascertained prior to the hearing before the agency. newly discovered evidence does not refer to newly created evidence.C. Ohio Bur. 2.12 relating to newly discovered evidence is analogous to language in Civil Rule 60(B)(2). “Newly discovered evidence refers to evidence that was in existence at the time of the administrative hearing but which was incapable of discovery by due diligence. of Registration for Professional Engineers & Surveyors (9th Dist. 67 Ohio App. 288. 2003-Ohio-3806. of Motor Vehicles (9th Dist. State Bd. c. Newly discovered evidence and Civil Rule 60 (B)(2) (1) Language in R. 502.” Steckler v. R. 119. at ¶ 36. 1990). Unless otherwise provided by law. 101 Ohio App. it must have been discovered subsequent to the trial. Duryee (9th Dist. b. 1992). he or she cannot then raise the constitutional issue by introducing new evidence before the trial court unless the evidence is newly 76 .12. 119. Diversified Benefit Plans Agency v. of Psychology (8th Dist. 83 Ohio App. that is. 60(B)(2). CVS/Pharmacy #3131 v. 82215. 3d at 502. 101 Ohio App. however. then the trial court may also determine the constitutionality of the statute as applied.1. R.

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

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

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

2005-Ohio5575.(declaratory judgment action). State Med. of Commerce. 3d 76. Some cases have held that a failure to timely request a hearing constitutes a waiver of hearing. 8th Dist. 07AP-261. Ohio State Med. 3d 76. 6. 3d 277. Ohio Dept. (10th Dist. of Ohio. 1987 Ohio App. 1993 Ohio App. No. 2001 Ohio App. Ohio State Med. LEXIS 4367. 2010-Ohio-416. Baycliffs Corp. (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. 2005). 2007-Ohio-5802. No adverse affect on right to appeal. Fiorica. 3d 317. 1988 Ohio App.. No..). of Rehabilitation and Correction. Clagg v. See Camrack v. LEXIS 1194. 1988 Ohio App. LEXIS 4367. 2005-Ohio-5575. Worker Bd. at *6-7. Alcover. 82 Ohio St. Reichart-Spaeth v. 10th Dist. Bd. 3d at 319-20. 2nd Dist. Blackburn Sec. 86AP-767. See Harrison. 54292. Reichart-Spaeth. 319-20. at *3). No. at ¶ 6. v. at *6-7. b. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies. b. 10th Dist. LEXIS 9961. 10th Dist. v. v. Inc. Bd. Harrison v. No. which deprives the common pleas court of jurisdiction over the merits of a 119.12 appeal. Caltrider (2nd Dist. 164 Ohio App. not a jurisdictional defect). 13660. Failure to request hearing as failure to exhaust (split in authority) a. Bd. Ohio Counselor & Soc. 103 Ohio App. LEXIS 9961. State Med. 103 Ohio App. Ohio State Med. State Med. 88AP-516. LEXIS 2665. 2nd Dist. 1987 Ohio App. Some courts have held that a failure to request a hearing within the 30-day limit constitutes a failure to exhaust administrative remedies.. 1987 Ohio App. but does not deprive a person of the right to appeal. LEXIS 1194. LEXIS 9961. Caltrider (2nd Dist. Bd. No. Harrison v. of Human Services. No. 2001 Ohio App. Alcover v.. Fiorica. 18521. 164 Ohio App. 1995). See also. 3d at 319-20. Camrack v. No. 1987 Ohio App. at *4. 10th Dist. Ohio Dept. Bd. LEXIS 5729. 2001-Ohio-4113 (citing In re Turner Nursing Home. 09AP-78. (2) Jurisdiction to consider constitutional challenges 80 . But see Derakhshan v. No. 10th Dist. *4. which deprives the common pleas court of jurisdiction over the merits of the appeal. No right to consideration of merits on appeal. Limited jurisdiction (1) Jurisdiction to determine timeliness of request (a) Courts holding that failure to timely request a hearing precludes consideration of the merits on appeal have held that the court retains jurisdiction to determine timeliness of the hearing request. Alcover. v. 01AP-71 and 01AP-72. 103 Ohio App. Bd. 1998-Ohio-414. See Oak Grove Manor. the agency can rebut the presumption with evidence that the request was never received. Inc. at *8-9. Ohio Dept. See Thompson v. at ¶ 6. c. at ¶ 24 (holding that failure to exhaust is an affirmative defense that can be waived. at *10-11..

C. (6th Dist. accordingly. Ohio Motor Vehicle Dealers Bd. Ohio Transp. 132 Ohio St. Derakhshan v.” DBM Enterprises. submit briefs. ¶ 13. Avery v. of Ohio. and therefore exhaustion is not required for a facial constitutional challenge. Inc. Zidian v. Bd. 2001). 00-CA-99. para. 2001 Ohio App. it will be impossible to develop the record supporting the challenge. Bd. "[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. However. 14 Ohio St. Central Cadillac Co. but rather authorizes the court to admit and consider new evidence if permitted and to weigh evidence on the whole record.12. “…injunctive and declaratory relief are inappropriate if they act to by-pass special statutory proceedings. (c) Injunctive Relief.C. v. of Twp. (b) Exhaustion required for “as applied” constitutional challenge. No. 10th Dist. b. K. at ¶ 26. Role of the Common Pleas Court on Administrative Appeal 1. irrespective of the position of the proceedings on the calendar of the court. 2012-Ohio-1499. R. v. at ¶ 28-29. 7. 3d 92. and/or introduce newly discovered evidence. LTD v. 119.03's language. Lynch (2000). No. raising such a challenge in an administrative action would be futile. plaintiff must exhaust administrative remedies if available). R. of Commerce. Constitutional challenges must be raised at the first opportunity. Conduct a “hearing” on the appeal a. 11 MA 39. if such challenges are not raised in an administrative proceeding. of Ohio. See also. It is within the discretion of the trial court to allow the parties to present oral argument.(a) Exhaustion not required for facial constitutional challenge. 2012-Ohio-1975. No. 3d 155 (holding that in order to seek injunctive relief. Rossford. Improvement Dist. 81 . 3d 64. 2506. 07AP-261. Chapter 119 proceedings over all other civil cases. 145 Ohio App. 2. State Med. The respondent is limited to questions of law.. 7th Dist. Id. The trial court may allow further evidence or arguments. The “hearing” may consist solely of a review of the record certified to the court. 67. failure to request a hearing bars an as applied constitutional challenge on appeal. LEXIS 2030 (Court lacks jurisdiction to be consider injunctive relief when statutory administrative remedies were not first pursued). Administrative appeals take precedence: The court shall give preference to R. AT&T Communs. (1984). hearing an action de novo. accordingly. c.C. Failure to appear at the hearing does not constitute failure to exhaust administrative remedies. 5th Dist. The administrative agency does not have authority to declare its statutes unconstitutional. Dept. 2007-Ohio-5802. failure to participate in the hearing waives any issue with the factual determination made by the agency. 12. Trustees of Etna Twp. Id.

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

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

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

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

C. R.03 (involving discharges or layoffs) and those arising R. A prevailing eligible party was represented by an attorney paid pursuant to an appropriation by the federal. 86 . R. state. 2. 124. 2003-Ohio2203. but not R. An adjudication hearing was held by the state personnel board of review pursuant to R. 124. (1) A hearing to determine what information an agency may legally demand is not a hearing to determine eligibility for benefits. Recovery of Attorney Fees by Party Prevailing at Hearing (R.39. 152 Ohio App. Chapter 119 contains two attorney fee provisions: 1. B.C. 124. R.092(F)(4).C.092(A)(2). R.34 (involving removals or reductions for disciplinary reasons). Haghighi v. e. 119. R.C. the First District has held that attorney fees may be recovered after hearings under R. or local government. Relying on the plain language of R. unless the agency has established a higher hourly rate by rule that is applicable under the circumstances.092(F)(4). syllabus. 119.C. and 2. 119. 119.092. (1) NOTE: There is a split of authority concerning the scope of R. Moody (1st Dist. d. 119.C.C.092(F)(4) as it pertains to the state personnel board of review.C. in an amount not to exceed $75 per hour.C.092(F)(2). The fees of the prevailing eligible party were one hundred dollars or less.C. 1. which allows a prevailing party on appeal to move the court for attorney fees in accordance with R. c.092(F)(2) would not bar recovery of fees.12.C. Non-recoverable fees a. b.).C.092). and R. 119.34. 119. An adjudication hearing was held to establish or fix a rate. 119. What are “fees”? a.X. R.C. allowing “prevailing eligible parties” to move for compensation for attorney fees at the agency level. ATTORNEY FEES A. “Fees” means reasonable attorney fees.C.03.C. 3d 600.092(B)(2)(c). An adjudication hearing was held to determine eligibility or entitlement of any individual to benefits.C.C. 2335. 124. R. (2) The First District Court of Appeals has distinguished two categories of SPBR hearings: those that arise under R.C. 119. R.092(F)(3). 119.092(F)(1). 119. 119.

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

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

Denial or reduction of fees requested 89 . Merits of the motion: was the agency “substantially justified” in initiating the action? a. testimony is taken. not its initiation. 3d 338.. 1992-Ohio-1. 1992-Ohio-1. 1992-Ohio-1. b. State ex rel. i.C. The examiner or the agency must make the following determinations: (1) Whether the fees incurred by the prevailing eligible party exceeded $100. matter is initiated by issuing a notice of opportunity for hearing pursuant to R. (3) When an agency continues to investigate deficiencies following the issuance of notice of opportunity for hearing.06 and 119. 8. Id. issuance of the notice of opportunity for hearing. (2) Whether the position of the agency in initiating the matter was substantially justified. Initiating action (1) “Initiate” means to commence an action. Black’s Law Dictionary defines “matter in controversy” as “[s]ubject of litigation. and finds improvement in deficiencies. 65 Ohio St.C. as found by the court of appeals.C. not continue a proceeding that has already begun. Decision on the motion for fees a. b. 119. (2) Generally. at 342-43. Substantially justified (1) Whether the initiation of the action was substantially justified is evaluated at the time of initiating the action. if issue be one of fact.12’s provision for attorney fees.092(B)(2). (2) See cases below interpreting “substantially justified” language in R.07. Sowald. the decision to go forward with hearing is a continuation of the matter initiated by the notice of opportunity. 119. of Health v. Ohio Dept. Sowald. Moreover. matter on which action is brought and issue is joined and in relation to which.e. 119. R. 9. Sowald. 342.(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. (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.

Gladieux v.C. R. Filing and service (1) Determination must be entered in the record. except no interest is paid.C. 425. State Dental Bd. Payment of award a. (2) Copy must be mailed to the prevailing eligible party. the decision as to fees must be in writing and must state: (1) (2) (3) (4) Whether an award has been granted. 119. a. b. (b) If the fees do not exceed $100.C. 11.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. 3d 465. The agency must file a report to be filed with the general assembly. Sohi v.C. R. Ohio St. Appeal to common pleas court under R. (1st Dist. d.C. R. 119.(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.092(B)(2)(a). Reasons or bases for the findings and conclusions. 133 Ohio App. not the board. R.092(B)(2). (1) To be filed October 1 in the fiscal year following the fiscal year covered by the report. because appeals are decided by the common pleas court.C. R. 119.092.C. Bd.092(B)(2)(c).C. d. 3d 414. 10. c. 119. 474. a. Findings and conclusions underlying the decision. 119. 119. if any.092(D). Med. 119. May be paid by agency from any funds available for such compensation.092(B)(2)(b). 1998) 130 Ohio App. c. Eligible party appeal 90 .092(E). and Amount of the award.C. or special circumstances make an award unjust. (2) Must include specific information listed in R.092(E). 1999). (10th Dist. If no funds are available. Chapter 2743. 119. the award is treated as a judgment under R. (2) The examiner or the agency may reduce the fees requested if the prevailing eligible party engaged in conduct during the course of the hearing that unduly and unreasonably protracted the final resolution of the matter. Per R.

Ability to receive fees: prevailing eligible party a.C. No. c. d. 558. In re Williams (1992).C.12 provides that the court shall award compensation for fees to a prevailing party. 10th Dist.092(C).C. 5. Statutory framework: R. not the agency itself. 2003Ohio-3816.092(C). 2335. 2335.39(B) provides that an individual may recover attorney fees if (1) he prevails. 1. in accordance with R. 78 Ohio App.C. 2335. R. b.C. (1) The court may modify the decision of the examiner or the agency only if the failure to grant. R. Ohio Veterinary Med. 02AP-955.C. (2) he is financially eligible. at ¶10. (2) Decision is final and not appealable. R.12 for appeals. R. 3d 556. R. 2.C. and (3) the state’s position in initiating the matter in controversy was not substantially justified.39 sets forth general rules governing the award of attorney fees in actions against the state.. 119.092(C). 119.(1) May appeal denial or reduction of award.12. or calculation involved an abuse of discretion.12.092(C). 3. Licensing Bd. 119. Harrison v. 119. (2) The agency’s appeal would be filed in the manner specified by R. C.12. R. R.39. R. 119.C.092(C). The agency must file a certified record as required in R. 119. 4.C. 119. R. 119. Agency appeal (1) The agency may only appeal a fee award if the award was determined by a hearing examiner or referee.C. (2) File in same court in which the party would appeal agency’s adjudication order.C. Recovery of Attorney Fees by Prevailing Party in an Appeal of an Agency Order. (3) A copy of the decision must be certified to the agency and the eligible party. This attorney fee provision applies only to appeals brought pursuant to R.C.39 a.C. 119. “Prevailing party” 91 . 2335.C. Common pleas court decision. 119.

3d 483 at 487. 71 Ohio App. b. or a partnership. 92 .C. or a partnership. R. 71 Ohio App. dismissal of all charges without remand.” Korn v. State Medical Bd. “Eligible party” means a party to an action or appeal involving the state. corporation. The motion must be filed within 30 days of the final judgment by the reviewing court in the action or appeal.. i. more than five hundred persons at the time the action or appeal was filed. Korn v. 1991).092. b. 2335. association. State Medical Bd.C.(1) A party need not attain a complete victory. (3) A sole owner of an unincorporated business that had. association. See above. The motion may request both fees incurred in appeal and in the administrative hearing. 3d 483 at 487. State Medical Bd.. R. Motion for fees a. c. corporation. or organization that had. (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. or organization that employed. a net worth exceeding five million dollars at the time the action or appeal was filed. (3) The court may take the partial victory into account when determining the amount of the fees to be awarded.39(A)(2). 2335. 3d 483. to qualify as the prevailing party.C. other than the following: (1) The state. 71 Ohio App. 119.C.39(D). (2) An individual whose net worth exceeded one million dollars at the time the action or appeal was filed.e. Same requirements for content of motion as in R. (10th Dist.39(B)(1). (4) A sole owner of an unincorporated business that employed. except that an organization that is described in subsection 501(c)(3) and is tax exempt under subsection 501(a) of the Internal Revenue Code shall not be excluded as an eligible party under this division because of its net worth. The court must determine: (1) Whether the position of the state in initiating the matter in controversy was substantially justified.. 7. R. 6. Korn v. 2335. Court review a. 487.

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

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

b. If the case is an appeal of the adjudication order of an agency pursuant to section 119. b.C. of Motor Vehicles (9th Dist. 2335. 3d 458.C.39 a. LEXIS 6174 (Feb. No. See also. 2335. the court in In re Van Arsdel distinguished cases such as Holden v. state. An order of a court considering a motion under this section is appealable as in other cases.C. 2335.C. R.39(B)(2).39(B)(2). 1990). 3d 531. Adjudication orders exempted under R.39(F)(3)(b).C. 119.39(F)(3)(c). Schregardus. you may wish to consult the Ohio Administrative Law Handbook and Agency Directory in Baldwin’s Ohio Administrative Code. v. Exemptions from R. Ohio Bur.C. d. c. the agency may appeal an order granting an award. 460. State ex rel. 65 Ohio St. R.39(F)(3)(a).C. 2335. 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.C. 95 . Pro se litigants may not be awarded attorney fees under R.39. 1992-Ohio-1. Appealing an award of attorney fees under R. involved an abuse of discretion. under the right circumstances. 24. 1994 Ohio App. Note: For additional information on administrative law. or local government. An administrative appeal decision under R. b. When the eligible party’s attorney was paid pursuant to appropriation by federal. a. 10th Dist. c. However. where the state sought to take away a license already held by an individual.” This principle was reaffirmed in Thermal-Tron. 3d 338. attorney fees could be awarded in a proceeding where the state attempted to decertify a nursing home. of Health v. where the court assumed (without deciding) that.35. 2335. 11. 2335. 10.39(B). 93AP-331. 65 Ohio St. Freeman v. 2335. 1994) at *6-7. Ohio Dept. 67 Ohio App. Sowald. State ex rel. or the calculation of the amount of an award.092(F). 5101. by a prevailing eligible party that is denied an award or receives a reduced award.12 of the Revised Code. R.C. R. Inc. Morris (1992).2335.

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