Except when a statute prescribes a notice and the persons to whom it shall be given, in all cases in which section 119.06 of the Revised Code requires an agency to afford an opportunity for a hearing prior to the issuance of an order, the agency shall give notice to the party informing him of his right to a hearing. Notice shall be given by registered mail, return receipt requested, and shall include the charges or other reasons for the proposed action, the law or rule directly involved, and a statement informing the party that he is entitled to a hearing if he requests it within thirty days of the time of mailing the notice. The notice shall also inform the party that at the hearing he may appear in person, by his attorney, or by such other representative as is permitted to practice before the agency, or may present his position, arguments, or contentions in writing and that at the hearing he may present evidence and examine witnesses appearing for and against him. A copy of the notice shall be mailed to attorneys or other representatives of record representing the party. This paragraph does not apply to situations in which such section provides for a hearing only when it is requested by the party.
When a statute specifically permits the suspension of a license without a prior hearing, notice of the agency's order shall be sent to the party by registered mail, return receipt requested, not later than the business day next succeeding such order. The notice shall state the reasons for the agency's action, cite the law or rule directly involved, and state that the party will be afforded a hearing if he requests it within thirty days of the time of mailing the notice. A copy of the notice shall be mailed to attorneys or other representatives of record representing the party.
Whenever a party requests a hearing in accordance with this section and section 119.06 of the Revised Code, the agency shall immediately set the date, time, and place for the hearing and forthwith notify the party thereof. The date set for the hearing shall be within fifteen days, but not earlier than seven days, after the party has requested a hearing, unless otherwise agreed to by both the agency and the party.
When any notice sent by registered mail, as required by sections 119.01 to 119.13 of the Revised Code, is returned because of failure of delivery, the agency either shall make personal delivery of the notice by an employee of the agency or shall cause the notice to be published once a week for three consecutive weeks in a newspaper of general circulation in the county where the last known place of residence or business of the party is located. When notice is given by publication, a copy of the newspaper, with the first publication of the notice marked, shall be mailed to the party at the last known address and the notice shall be deemed received as of the date of the last publication.
The failure of an agency to give the notices for any hearing required by sections 119.01 to 119.13 of the Revised Code in the manner provided in this section shall invalidate any order entered pursuant to the hearing.
HISTORY: GC § 154-68; 120 v 358; 121 v 578; Bureau of Code Revision, 10-1-53; 143 v H 615. Eff 3-27-91.
Cross-References to Related Sections
Actions against county agencies, RC § 5101.24.
Adjudication hearing, RC § 119.09.
Building standards -
Board of building appeals, RC § 3781.19.
Submission of plans, RC § 3791.04.
Chiropractic board may suspend certificate without prior hearing, RC §§ 4734.36, 4734.37.
Cosmetology board; sanctions for violations, RC § 4713.17.
Dental board, state; disciplinary actions, RC § 4715.30.
Department of health; nursing facility deficiencies; remedies subject to appeal, RC § 5111.60.
Department of job and family services; medical assistance programs; adjudication order, RC § 5111.06.
Door-to-door sales registration, RC § 4109.21.
Embalmers and funeral directors, board of; disciplinary actions; suspension by operation of law, RC § 4717.14.
Environmental protection; coal mining and reclamation general permits, RC § 6111.03.5.
Environmental review appeals commission hearings, RC § 3745.07.
Nursing board; disciplinary actions against licensees, RC § 4723.28.
Summary suspension, RC § 4723.28.1.
Ohio respiratory care board powers, RC § 4761.09.
Optometrist, summary suspension, RC § 4725.24.
Physician assistant; grounds for disciplinary action, RC § 4730.25.
Revocation or suspension of driver's license without hearing; notice of order, RC § 119.06.2.
Second mortgage lenders, RC §§ 1321.53, 1321.54.
Small loan lenders, RC §§ 1321.04, 1321.08.
State board of education, investigations; determinations by superintendent; hearings; grounds for automatic suspension, RC § 3319.31.1.
State lottery commission, powers, RC § 3770.03.
State medical board -
Acupuncturists; suspension, RC § 4762.13.
Anesthesiologist assistants; suspension, RC § 4760.13.
Physicians -
Hearings, RC § 4731.23.
Revocation of certificate, RC §§ 4731.22, 4731.22.3.
Suspension of licensee addicted to or improperly distributing controlled substances, RC § 3719.12.1.
Third-party administrator, suspension or revocation of license, RC § 3959.12.
Unfair labor practice list, hearing to remove name from list, RC § 121.23.
Ohio Adminstrative Code
Department of job and family services -
Hearing rights and procedures. OAC ch. 5101:6-1 et seq.
RC Chapter 119. hearings. OAC ch. 5101:6-50.
Notice and requesting a hearing. OAC 5101:6-50-03.
Research Aids
Notice of hearing:
O-Jur3d: Admin L §§ 83-86, 123
Am-Jur2d: Admin L § 294; Notice §§ 32-40
ALR
Attorney-client exception under state law making proceedings by public bodies open to the public. 34 ALR5th 591.
Exemptions under 5 USCS § 552(c), to open meeting requirement of Sunshine Act. 82 ALRFed 465.
Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine. 10 ALR5th 1.
Validity and construction of state statutory provision forbidding court to stay, pending review, judgment or order revoking or suspending professional, trade, or occupational license. 42 ALR4th 516.
What constitutes "good cause" under provision of Administrative Procedure Act (5 USCS § 533(d)(3)) allowing agency rule to become effective less than 30 days after publication. 55 ALRFed 880.
What constitutes "interpretive rule" of agency so as to exempt such action from notice requirements of Administrative Procedure Act (5 USCS § 553(b)(3)(A)). 126 ALRFed 347.
"Willfulness" and "public health, interest, or safety" exceptions to notice and opportunity for compliance provisions of Administrative Procedure Act (5 USCS § 558(c)) dealing with withdrawal, suspension, revocation, or annulment of license. 46 ALRFed 560.
Law Review
Administrative review and the Ohio modern courts amendment. Ivan Cate Rutledge. 35 Ohio St. L.J. 41 (1974).
Appellate review of administrative rule making in Ohio - prospects for revival. Robert L. Brubaker, David E. Northrop. 37 Ohio St. L.J. 471 (1976).
The continued viability of Ohio's procedure for legislative review of agency rules in the post-Chadha era. Comment. 49 Ohio St. L.J. 251 (1988).
Due process and the Ohio administrative procedure act: the central panel proposal. Christopher B. McNeil. 23 Ohio N.U.L. Rev. 783 (1997).
The Federal APA and state administrative law. Earl Bonfield. 72 VirginiaLRev 297 (1986).
Legislative control over administrative rule making. Charles H. Melville. 32 CinLRev 33 (1963).
Legislative veto in Ohio: the "twilight zone of distinction." Note. 9 UDayLRev 557 (1984).
CASE NOTES AND OAG
Analysis
Administrative rules generally.
Continuances.
Due process.
Effect of agency's noncompliance.
Evidence insufficient.
Finding of violation not charged.
Hearing.
Issuance of subpoenas.
Mailing of notice.
Notice provisions.
- Waiver of defect.
Unemployment compensation.
Administrative rules generally
Administrative rules and regulations adopted following observance of due notice and hearing opportunity procedures provided by RC Chapter 119. have the force and effect of law, and constitute a part of the law of the state: Adams v. Ohio Department of Health, 5 Ohio Op. 3d 148, 356 N.E.2d 324 (CP 1976).
Revised Code § 119.07 must be read in pari materia with RC § 119.09, which permits an agency to continue a hearing. Thus the fifteen-day limit is directory, rather than mandatory, for jurisdictional purposes: Vogelsong v. Ohio State Bd. of Pharmacy, 123 Ohio App. 3d 260, 704 N.E.2d 28 (1997).
The state dental board violated procedural due process by sanctioning a dentist for misconduct against patients who were not named before the hearing. The dentist was effectively denied the ability to present a defense without this crucial information: Sohi v. Ohio State Dental Bd., 130 Ohio App. 3d 414, 720 N.E.2d 187 (1998).
Notice and hearing are necessary to comply with due process in an administrative proceeding which revokes an individual's license to practice a profession: Korn v. Ohio State Medical Bd., 61 Ohio App. 3d 677, 573 N.E.2d 1100 (1988).
As to complaints filed against licensees subject to regulation by the Ohio Division of Real Estate, the provisions of RC Chapter 4735. specifically governing Division of Real Estate proceedings prevail over any conflicting general hearing requirements of RC Chapter 119. In proceedings held pursuant to RC Chapter 4735., the more specific time provisions of RC § 4735.05.1, as they apply to time of hearing and submission of hearing examiner reports, prevail over those articulated in RC Chapter 119.; however, the due process protections of RC Chapter 119. regarding the contents of the letter providing notice of a right to a hearing and the filing and consideration of objections to the hearing examiner's report and recommendations are applicable, since RC Chapter 4735. does not speak specifically to those matters: OAG No. 80-92 (1980).
The provision of RC § 119.07 for giving notice to a party by registered mail, return receipt requested, informing him of his right to a hearing, prescribes adequate notice and is in compliance with due process of law: Tripodi v. Liquor Control Comm., 21 Ohio App. 2d 110, 50 Ohio Op. 2d 212, 225 N.E.2d 294 (1970).
Due process of law requires that a permit holder have a right to be heard at a hearing before the liquor control commission on an alleged violation of liquor regulations, wherein his right to continued operation under his liquor permit is in jeopardy; adequate notice of such hearing is a necessary part of this right: Tripodi v. Liquor Control Comm., 21 Ohio App. 2d 110, 50 Ohio Op. 2d 212, 255 N.E.2d 294 (1970).
Effect of agency's noncompliance
The notice of opportunity for hearing was ambiguous and violated due process where it merely stated that a hearing must be requested within thirty days without indicating that a hearing request must be received within thirty days. An agency's noncompliance with RC § 119.07 invalidates any subsequent order: Chirila v. Ohio State Chiropractic Bd., 145 Ohio App. 3d 589, 763 N.E.2d 1192 (2001).
A liquor permit suspension was not supported by reliable, substantial and probative evidence where the only evidence presented at the hearing was the citing agent's unsworn investigative report. Failing to appear at the original hearing waived the permit holder's right to appear at further proceedings: B & N Ent., Inc. v. Ohio Liquor Control Comm., 131 Ohio App. 3d 394, 722 N.E.2d 599 (1999).
Finding of violation not charged
Where an automobile dealer is charged with a violation of one section of the certificate of motor vehicle title law of which he is found not guilty, a finding of the motor vehicle dealers' licensing board suspending such dealer for alleged violation of another section of such law upon which he was not charged is not in conformity with RC § 119.07, a part of the administrative procedure act, and such order of suspension is invalid: Ohio Motor Vehicle Dealers' Board v. Memphis Auto Sales, 103 Ohio App. 347, 3 Ohio Op. 2d 377, 142 N.E.2d 268 (1957).
Under RC § 119.07, the date for the hearing "shall" be set within fifteen days after a request for a hearing: Royer v. Ohio Real Estate Comm., 131 Ohio App. 3d 265, 722 N.E.2d 172 (1999).
A doctor's failure to make a timely request for a hearing before the medical board, pursuant to RC § 119.07, constitutes a failure to exhaust administrative remedies where the lack of a timely request is undisputed: Harrison v. Ohio State Med. Bd., 103 Ohio App. 3d 317, 659 N.E.2d 368 (1995).
The fifteen-day deadline of RC § 119.07 within which time an agency is to hold a hearing after a party requests it, is directory and not mandatory: Korn v. Ohio State Medical Bd., 61 Ohio App. 3d 677, 573 N.E.2d 1100 (1988).
It is error for an agency to set the date for an administrative hearing more than fifteen days after a request for a hearing made in accordance with RC §§ 119.06 and 119.07: Geroc v. Ohio Veterinary Medical Bd., 37 Ohio App. 3d 192, 525 N.E.2d 501 (1987).
Revised Code § 119.09 gives the fifteen-day provision of RC § 119.07 the character of being directory, not mandatory: In re Barnes, 31 Ohio App. 3d 201, 31 Ohio B. 470, 510 N.E.2d 392 (1986).
The fact that a receiver of a liquor permit holder did not receive notice of the hearing before the board of liquor control, at which hearing such permit was revoked, does not invalidate such order where the record shows that the receiver was represented by attorney at the time of the hearing and thus submitted himself to the jurisdiction of the board, made no objection at the hearing to the jurisdiction of the board and in fact entered a plea of guilty: Meyer v. Board of Liquor Control, 69 Ohio L. Ab. 407, 119 N.E.2d 156 (CP 1954).
The Ohio State Medical Board's determination to suspend a physician's license is an adjudication and is, consequently, subject to RC § 119.09, issuance of subpoenas, pursuant to RC § 119.07: Korn v. Ohio State Medical Bd., 61 Ohio App. 3d 677, 573 N.E.2d 1100 (1988).
The mailing of such notice to a permit holder at the place of business for which the permit is issued by the liquor control commission is in compliance with RC § 119.07 and with due process of law: Tripodi v. Liquor Control Comm., 21 Ohio App. 2d 110, 50 Ohio Op. 2d 212, 255 N.E.2d 294 (1970).
Where a notice is sent by registered mail, with return receipt requested, and, thereafter, a signed receipt is returned, a prima facie case is established of the fact of delivery of such notice to such address: Tripodi v. Liquor Control Comm., 21 Ohio App. 2d 110, 50 Ohio Op. 2d 212, 255 N.E.2d 294 (1970).
Receipt of a written notice by registered mail by an employee of a permit holder at his place of business raises a presumption of receipt of such notice by the permit holder: Tripodi v. Liquor Control Comm., 21 Ohio App. 2d 110, 50 Ohio Op. 2d 212, 255 N.E.2d 294 (1970).
The specific notice provisions listed in RC § 4509.10.1 are not applicable where no judgment had been entered concerning the accident and no accident report or financial responsibility statement was filed. Where RC § 119.07 is applicable, notice must comply with that section: State v. Cook, 73 Ohio App. 3d 80, 596 N.E.2d 578 (1991).
The decision of the liquor control commission suspending a permit holder's license will not be upheld where the record is devoid of any proof that notice of the suspension hearing was given by registered mail, return receipt requested, and where the permit holder was neither represented nor present at the hearing and asserts that it never received notice of the hearing: Houndcorp, Inc. v. Ohio Liquor Control Comm., 62 Ohio Misc. 2d 155, 593 N.E.2d 519 (CP 1991).
The state medical board violated RC § 119.07 by failing to send a copy of the notice to the licensee's attorney where it had no notice that the attorney was representing him in the disciplinary proceedings. The timeliness of the licensee's request for a hearing was uncertain where the request was delivered to prison authorities for mailing: Amon v. Ohio State Medical Bd., 67 Ohio App. 3d 287, 586 N.E.2d 1165 (1990).
Where a physician has notice of a hearing before the State Medical Board, the board may proceed with the hearing in his absence: Reed v. Ohio State Medical Bd., 40 Ohio App. 3d 124, 532 N.E.2d 189 (1988).
The notice sent to appellant-broker by the real estate commission was adequate under RC § 119.07 since it identified the transaction concerned and clearly set out the conduct of which appellant was accused: Keaton v. State, 2 Ohio App. 3d 480, 2 Ohio B. 606, 442 N.E.2d 1315 (1981).
Revised Code § 4509.04 requires and incorporates in toto the notice requirements of RC § 119.07: Wooster v. Pickett, 13 Ohio Op. 3d 407 (MC 1979).
Notice under RC § 4509.13 of a required security deposit and of license suspension for failure to deposit must comply with the Ohio Administrative Procedure Act, RC § 119.07, both as to content and as to manner of service: State v. Foreman, 54 Ohio Misc. 31, 7 Ohio Op. 3d 230, 376 N.E.2d 987 (MC 1978).
Revised Code § 4301.25, which provides that the board of liquor control may suspend or revoke a liquor permit for certain causes, has no application to a notice of the rejection of an application for renewal of a permit; it is sufficient under RC § 119.07 that such notice rejecting an application for renewal of a permit be in accord with the requirements of § 2 of Regulation 65 of the board of liquor control: Joseph v. Board of Liquor Control, 109 Ohio App. 477, 12 Ohio Op. 2d 19, 161 N.E.2d 543 (1959).
An order of the state medical board suspending a certificate to practice is not invalidated by reason of the board's failure to send a certified copy of such suspension order to the practitioner where the latter had full and complete notice of the board's action and was enabled to resort to all the remedies provided by law for the testing of the validity of the suspension order: Shearer v. State Medical Board, 91 Ohio App. 277, 44 Ohio Op. 480, 97 N.E.2d 688 (1950).
A horse trainer cited to appear before the Ohio state racing commission, who appears in person before such agency, expressly indicates he wants to proceed without counsel, specifically waives any defects in the notice of the alleged violation of a rule of such agency and consents to an amendment of the original citation to include an alleged violation of another rule of such agency, is estopped from thereafter denying the validity of such agency's order on the ground that the notice issued to him was defective in that it did not meet the requirements of RC § 119.07, a part of the administrative procedure act: Fogt v. Ohio State Racing Comm., 3 Ohio App. 2d 423, 32 Ohio Op. 2d 546, 210 N.E.2d 730 (1965).
Revised Code § 119.01 provides that the entire chapter does not affect unemployment compensation proceedings; moreover, RC § 119.07 is not applicable since this requirement of notice to counsel is only as to the results of hearings: Blanchard v. Bureau of Unemployment Compensation, 14 Ohio Misc. 181, 43 Ohio Op. 2d 414, 237 N.E.2d 923 (CP 1968).
Where the administrator of the bureau of unemployment compensation rejects a claim, it is desirable, but not mandatory under RC §§ 119.01 and 119.07, that a copy of this order be mailed to claimant's counsel, if known: Blanchard v. Bureau of Unemployment Compensation, 14 Ohio Misc. 181, 43 Ohio Op. 2d 414, 237 N.E.2d 923 (CP 1968).