As used in this section "stenographic record" means a record provided by stenographic means or by the use of audio electronic recording devices, as the agency determines.
For the purpose of conducting any adjudication hearing required by sections 119.01 to 119.13 of the Revised Code, the agency may require the attendance of such witnesses and the production of such books, records, and papers as it desires, and it 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, and for that purpose the agency may, and upon the request of any party receiving notice of the hearing as required by section 119.07 of the Revised Code shall, issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records, or papers, directed to the sheriff of the county where such witness resides or is found, which shall be served and returned in the same manner as a subpoena in a criminal case is served and returned. The fees and mileage of the sheriff and witnesses shall be the same as that allowed in the court of common pleas in criminal cases. 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.
An agency may postpone or continue any adjudication hearing upon the application of any party or upon its own motion.
In any case of disobedience or neglect of any subpoena served on any person or the refusal of any witness to testify to any matter regarding which he may lawfully be interrogated, the court of common pleas of any county where such disobedience, neglect, or refusal occurs or any judge thereof, on application by the agency shall compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from such court, or a refusal to testify therein.
At any adjudication hearing required by sections 119.01 to 119.13 of the Revised Code, the record of which may be the basis of an appeal to court, a stenographic record of the testimony and other evidence submitted shall be taken at the expense of the agency. Such record shall include all of the testimony and other evidence, and rulings on the admissibility thereof presented at the hearing. This paragraph does not require a stenographic record at every adjudication hearing. In any situation where an adjudication hearing is required by sections 119.01 to 119.13 of the Revised Code, if an adjudication order is made without a stenographic record of the hearing, the agency shall, on request of the party, afford a hearing or rehearing for the purpose of making such a record which may be the basis of an appeal to court. The rules of an agency may specify the situations in which a stenographic record will be made only on request of the party; otherwise such a record shall be made at every adjudication hearing from which an appeal to court might be taken.
The agency shall pass upon the admissibility of evidence, but a party may at the time make objection to the rulings of the agency thereon, and if the agency refuses to admit evidence, the party offering the same shall make a proffer thereof, and such proffer shall be made a part of the record of such hearing.
In any adjudication hearing required by sections 119.01 to 119.13 of the Revised Code, the agency may call any party to testify under oath as upon cross-examination.
The agency, or any one delegated by it to conduct an adjudication hearing, may administer oaths or affirmations.
In any adjudication hearing required by sections 119.01 to 119.13 of the Revised Code, the agency may appoint a referee or examiner to conduct the hearing. The referee or examiner shall have the same powers and authority in conducting the hearing as is granted to the agency. Such referee or examiner shall have been admitted to the practice of law in the state and be possessed of such additional qualifications as the agency requires. The referee or examiner shall submit to the agency a written report setting forth his findings of fact and conclusions of law and a recommendation of the action to be taken by the agency. A copy of such written report and recommendation of the referee or examiner shall within five days of the date of filing thereof, be served upon the party or his attorney or other representative of record, by certified mail. The party may, within ten days of receipt of such copy of such written report and recommendation, file with the agency written objections to the report and recommendation, which objections shall be considered by the agency before approving, modifying, or disapproving the recommendation. The agency may grant extensions of time to the party within which to file such objections. No recommendation of the referee or examiner shall be approved, modified, or disapproved by the agency until after ten days after service of such report and recommendation as provided in this section. The agency may order additional testimony to be taken or permit the introduction of further documentary evidence. The recommendation of the referee or examiner may be approved, modified, or disapproved by the agency, and the order of the agency based on such report, recommendation, transcript of testimony and evidence, or objections of the parties, and additional testimony and evidence shall have the same effect as if such hearing had been conducted by the agency. No such recommendation shall be final until confirmed and approved by the agency as indicated by the order entered on its record of proceedings, and if the agency modifies or disapproves the recommendations of the referee or examiner it shall include in the record of its proceedings the reasons for such modification or disapproval.
After such order is entered on its journal, the agency shall serve by certified mail, return receipt requested, upon the party affected thereby, a certified copy of the order and a statement of the time and method by which an appeal may be perfected. A copy of such order shall be mailed to the attorneys or other representatives of record representing the party.
HISTORY: GC § 154-70; 120 v 358; 121 v 578; Bureau of Code Revision, 10-1-53; 138 v H 102 (Eff 5-29-79); 144 v H 298. Eff 7-26-91.
Cross-References to Related Sections
Accountants, procedure for revocation or suspension of certificates, RC § 4701.16.
Athletic trainers, RC § 4755.60 et seq.
Barber, action on certificate of registration and shop license, RC § 4709.13.
Building standards -
Automatic sprinkler system designers, RC § 3781.10.5.
Board of building appeals; members, RC § 3781.19.
Issuance of adjudication and stop work orders, RC § 3781.03.1.
Local boards, certification of, RC § 3781.20.
Submission of plans; licensing; prohibitions, RC § 3791.04.
Chiropractic board, RC § 4734.02.
Consumer finance, division of -
Denial by superintendent of license to operate check-cashing business, RC § 1315.23.
Credit union guaranty corporations, cease-and-desist orders, RC § 1761.18.
Credit unions -
Cease-and-desist orders, RC § 1733.32.4.
Notice of intention to remove a director, officer, RC § 1733.18.1.
Crematory review board hearings, RC § 4717.03.
Dental board -
Disciplinary actions, RC § 4715.30.
Duties defined for qualified personnel, RC § 4715.39.
Organization; investigations, RC § 4715.03.
Dietetics, Ohio board of -
Rulemaking powers, RC § 4759.05.
Suspension, revocation, reinstatement of license, RC § 4759.07.
Waiver of certain fees, RC § 4759.08.
Director of commerce -
Minimum fair wage standards, RC § 4111.05.
Engineers, professional -
Certificate of authorization requirements for firm, partnership or association, RC § 4733.16.
Revocation and suspension; hearing, RC § 4733.20.
Environmental protection -
Board of review, hearings, RC §§ 3745.05, 3745.07.
Emergency planning -
Adjudication hearing; jurisdiction, RC § 3750.19.
Pollution control law, violations of, RC § 3745.08.
Water pollution, agency proceedings, RC § 6111.06.
Hazardous waste -
Solid waste disposal facility, modification of; hearings, RC § 3734.05.
Health, department of -
Certificate of need program; denial of application, RC § 3702.52.
Health department hearing on license application, RC § 3710.06.
Public health council -
Public swimming pool, rules, RC §§ 3749.02, 3749.05.
Public swimming pool plans, approval, RC § 3749.03.
Insurance -
Cease and desist order, RC § 3901.22.1.
Grounds for disciplinary action; procedure; actions by attorney general, RC § 3905.49.
Late payment by third-party payer, RC § 3901.38.
Property and casualty insurance guaranty association, RC § 3955.10.
Suspension, revocation, refusal to renew license, RC § 3901.37.
Unfair and deceptive acts, RC § 3901.22.
Viatical settlement provider or broker; disciplinary actions, RC § 3916.15.
Violations of contract of independent agency, RC § 3905.50.
Landscape architects -
Certificate of authorization requirement, RC § 4703.33.1.
Examiners, state board, RC §§ 4703.33, 4703.44.
Medical board, state -
Attorney hearing examiner, RC § 4731.23.
Medicine, illegal practice of, injunction proceedings, RC § 4731.34.1.
Rules; adjudication proceedings, RC § 4731.05.
Natural resources, department of -
Lake Erie drainage basin; permit denial, RC § 1501.32.
Lake Erie erosion hazard area; beach structure permit denials, RC § 1521.22.
Nursing -
Board of nursing, RC § 4723.02.
License -
Displinary actions, RC §§ 4723.28, 4723.28.1.
Subpoena of witnesses or records, RC § 4723.29.
Ohio ambulance licensing board, RC § 4766.02 et seq.
Ohio rail development commission franchise agreements, RC § 4981.31.
Oil and gas -
Accidental releases of petroleum; claims for payment or reimbursement, RC § 3737.92.
Pharmacy, board of, RC § 4729.66.
Suspension or revocation of registration of terminal distributor, RC § 4729.57.
Psychology, state board of -
Denial, suspension or revocation of license, RC § 4732.17.
Removal of board member, RC § 4732.02.
Unlicensed practice, limitations on prohibitions against, RC § 4732.23.
Radon testing and mitigation, RC § 3723.01 et seq.
Real estate appraisal board, RC §§ 4763.03, 4763.09-4763.11.
Real estate brokers -
Appointment of hearing examiners, RC § 4735.10.
Continuing education; suspension or revocation of license for noncompliance, RC § 4735.14.1.
Investigation of complaint; hearing, RC § 4735.05.1.
Real estate commission -
Appeal, RC § 4735.19.
Sanitarian registration, board of -
Removal of board member by governor, RC § 4736.02.
Savings and loan associations -
Exercise of trust powers, RC § 1151.34.8.
Removal of officer or director, RC § 1151.18.
Unauthorized loans to service corporation, rules, RC § 1151.34.4.
Violations or unsound practices; proceedings, RC § 1155.02.
Securities; take-over bids, RC § 1707.04.1.
Skiing safety -
Passenger tramways construction and operation, RC § 4169.02.
Suspension of tramway certificate to operate; procedure, RC § 4169.06.
State employment relations board, RC § 4117.02.
State racing commission, RC § 3769.03.
Superintendent of savings banks -
Cease and desist orders, RC § 1163.03.
Removal of director or officer, RC § 1161.22.
Therapists -
Occupational; license renewal and suspension, RC §§ 4755.09, 4755.10.
Occupational therapy and physical therapy board, RC § 4755.41.
Physical; license renewal fee, RC § 4755.46.
Veterinary medical board, removal of member by governor, RC § 4741.02.
Ohio Rules
Declaratory judgment, CivR 57.
Discovery, CivR 26-37.
Magistrates, CivR 53.
Subpoena, CivR 45.
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.
Text Discussion
Procedure under the APA; notice of appeal. 6 Ohio Civ. Prac. § 314.03
Research Aids
Agency as speaking through record:
Am-Jur2d: Admin L §§ 118, 120
Hearing:
O-Jur3d: Admin L §§ 97, 101, 104, 107, 112, 113, 120
Am-Jur2d: Admin L §§ 294-297, 302
Notice of order:
Am-Jur2d: Admin L § 391
Objections to report:
O-Jur3d: Admin L § 90
Am-Jur2d: Admin L § 371
Rules of evidence:
O-Jur3d: Admin L § 93
Am-Jur2d: Admin L §§ 345-354
Subpoenas:
O-Jur3d: Admin L § 96
ALR
Administrative decision by officer not present when evidence was taken. 18 ALR2d 606.
Administrative decision or finding based on evidence secured outside of hearing, and without presence of interested party or counsel. 18 ALR2d 552.
Comment note on hearsay evidence in proceedings before state administrative agencies. 36 ALR3d 12.
Ex parte communication made in connection with administrative proceeding by interested party or by member or employer of agency (5 USCS § 557(d)(I)), propriety of. 58 ALRFed 834.
Perjury, determination of materiality of allegedly perjurious testimony in prosecution under 18 USCS §§ 1621, 1622. 22 ALRFed 379.
Power of administrative agency in investigation of nonjudicial nature, to issue subpoenas against persons not subject to agency's regulatory jurisdiction. 27 ALR2d 1208.
Power of administrative agency to reopen and reconsider final decision as affected by lack of specific statutory authority. 73 ALR2d 939.
Privilege as to communications between lay representative in judicial or administrative proceedings and client. 31 ALR4th 1226.
Right of witness to refuse to answer, on ground of self-incrimination, as to membership in or connection with party, society, or similar organization or group. 19 ALR2d 400.
Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine. 10 ALR5th 1.
Surveys of polls of public or consumer's opinion, recognition, preference, or the like, weight of evidence. 76 ALR2d 633.
Use of affidavits to substantiate federal agency's claim of exemption from request for documents under Freedom of Information Act (5 USCS § 552). 55 ALRFed 266.
Law Review
Administrative res judicata in Ohio: a suggestion for the future. Comment. 37 Clev. St. L. Rev. 595 (1989).
Administrative review and the Ohio modern courts amendment. Ivan Cate Rutledge. 35 Ohio St. L.J. 41 (1974).
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).
The right of appeal by administrative authority from adverse judicial rulings. Ervin H. Pollack, Harriet S. Martin. 14 Ohio St. L.J. 408 (1953).
CASE NOTES AND OAG
Analysis
Admissibility of evidence.
Amendment of regulation.
Appeal by agency.
Authority of court.
Compelling testimony.
Continuances.
Cross-examination.
Declaratory judgment.
Discovery depositions.
Disqualification of board members.
Driver's license suspension.
Due process.
Duty of board.
Effect of other laws.
Evidence sufficient.
Filing objections.
Findings by examiner.
Findings of agency.
Hearing official.
Implied administrative powers.
Legislative acts.
Modification of recommendation.
Notice.
Rules of Civil Procedure.
Scope and construction.
Subpoena powers.
Tampering with witness.
Time for appeal.
Time for holding hearing.
Administrative agencies are not bound by the Rules of Evidence: Petrilla v. Ohio State Bd. Of Pharmacy, 153 Ohio App. 3d 428 (2003).
The state medical board hearing examiner properly allowed use of a witness' deposition at the hearing where the witness would apparently be unavailable and the opposing party had an opportunity to cross-examine at the deposition: In re Heath, 80 Ohio App. 3d 605, 609 N.E.2d 1346 (1992).
There is no specific requirement in RC § 119.09 that the hearing examiner's report and recommendation be based on live testimony, nor is there a requirement that the same hearing examiner must conduct all hearings or review all evidence in the same matter: In re Christian Care Home of Cincinnati, Inc., 74 Ohio App. 3d 453, 599 N.E.2d 342 (1991).
Revised Code § 119.09 permits a board to review the evidence independently and to make its own findings and draw its own conclusions from the evidence. A board may appeal a trial court's finding that it lacks such authority: In re Certificate of Need Application of Providence Hosp., 67 Ohio App. 3d 391, 587 N.E.2d 326 (1990).
Administrative boards are permitted some leeway in admitting hearsay consistent with due process. Revised Code § 119.09 provides that agencies must pass upon the admissibility of evidence but no attempt is made to formulate standards of admissibility. General standards applicable to specific agencies are provided by particular statutes. These range from provisions that the agency shall not be bound by common-law or statutory rules of evidence to provisions that the evidence shall be submitted as in the trial of civil actions: Day Lay Egg Farm v. Union Cty. Bd. of Revision, 62 Ohio App. 3d 555, 577 N.E.2d 84 (1989).
The hearsay rule is relaxed in administrative proceedings, but the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner: Erdeljohn v. Ohio State Bd. of Pharmacy, 38 Ohio Misc. 2d 1, 526 N.E.2d 117 (CP 1987).
The hearsay rule is relaxed in administrative proceedings, but the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner: Haley v. Ohio State Dental Bd., 7 Ohio App. 3d 1, 7 Ohio B. 1, 453 N.E.2d 1262 (1982).
The provisions of RC § 119.09, a part of the administrative procedure act, govern the board of liquor control in the matter of admitting evidence in a hearing before it, and it is not error for the board, in a hearing before it, to deny a permittee the right to examine a witness of the board under the provisions of RC § 2317.52, which section is not controlling in such hearing: Lakis v. Board of Liquor Control, 120 Ohio App. 163, 28 Ohio Op. 2d 423, 201 N.E.2d 605 (1963).
Under the provisions of RC § 119.09, the board of liquor control is given the authority to pass on the admissibility of the evidence; an objection based on hearsay is waived by failure to make timely objection: Di Matteo v. State, 71 Ohio L. Ab. 97, 130 N.E.2d 351 (App 1955).
Where, during an appeal of a decision of an administrator of a stage agency concerning a regulation, the regulation is amended in a manner not material to the substance of the objection, the issue has not become moot: United States Steel Corp. v. Williams, 61 Ohio App. 2d 155, 15 Ohio Op. 3d 288, 400 N.E.2d 1358 (1978).
Where a Court of Common Pleas alludes to but does not interpret RC § 119.09, and predicates its reversal of an order of the State Personnel Board of Review on a lack of reliable, probative and substantial evidence, the employing state agency has no right of appeal: In re Lauderbach, 63 Ohio App. 2d 157, 17 Ohio Op. 3d 362, 410 N.E.2d 773 (1978).
When the Ohio Real Estate Commission modifies a recommendation of its hearing examiner by changing the duration of a disciplinary suspension of a real estate broker's license from seven days to sixty days without stating its reasons for the increase of penalty, a court of common pleas is without authority under RC § 119.12 to modify the penalty if it is within the scope of the authority granted to the commission: Conners v. Ohio Dept. of Commerce, 7 Ohio App. 3d 237, 7 Ohio B. 300, 455 N.E.2d 9 (1982).
The court of common pleas must fulfill the mandatory duty imposed upon it by RC § 119.09 to compel obedience by attachment proceedings when a witness refuses to testify to matters relevant in an RC § 119.09 administrative hearing, limited only by the right of the witness to refuse to testify at such hearing based upon his fifth amendment privilege against criminal self-incrimination, or any other applicable privilege the witness may assert: Ohio Motor Vehicle Dealers Bd. v. Remlinger, 8 Ohio St. 3d 26, 8 Ohio B. 337, 457 N.E.2d 309 (1983).
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).
A witness, appearing in an adjudicatory hearing conducted by an administrative agency, who testifies on direct examination to visiting a doctor under assumed names for the purpose of obtaining drugs, cannot, on cross-examination, refuse to testify concerning the details of the visits by raising the privilege against self-incrimination. In these circumstances, the privilege against self-incrimination is waived: Ohio State Medical Bd. v. Zwick, 59 Ohio App. 2d 133, 13 Ohio Op. 3d 178, 392 N.E.2d 1276 (1978).
No person in attendance at a public rule hearing, conducted by the public health council pursuant to RC § 119.03, has the right to cross-examine any witness, but the public health council may, in its sound discretion, adopt procedures permitting cross-examination during such hearings: OAG No. 73-125 (1973).
Where a party to an adjudication hearing under RC § 119.09 et seq. presents his position in writing and does not testify in his own behalf, the administrative agency conducting the hearing has the right under RC § 119.09, to call such party to testify under oath as upon cross-examination: 1960 OAG No. 1573 (1960).
In appeals of nonadjudication matters to the environmental board of review, there may be no appeal to a court of appeals. The final orders relating to "actions" or "acts" of the director do not relate to the determination in a vacuum of the merits of a regulation of the director, but relate to a determination of the rights of a specific person as related to the questioned regulation. Thus the remedy for those seeking further review of the validity of a regulation is by way of a declaratory judgment action: Cincinnati Gas & Electric Co. v. Whitman, 11 Ohio Op. 3d 192 (App 1974).
The mandatory language of RC § 119.09 pertains to securing attendance of witnesses and production of books, records, or papers at the request of a party for the purpose of conducting an adjudication hearing; it does not provide for prehearing discovery depositions by a party to an adjudication hearing: Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St. 3d 143, 555 N.E.2d 630 (1990).
Disqualification of board members
There is a presumption of honesty and integrity on the part of an administrative body unless there is a showing to the contrary, and the party alleging a disqualifying interest bears the burden of demonstrating that interest to a reviewing court: Ohio State Bd. of Pharmacy v. Poppe, 48 Ohio App. 3d 222, 549 N.E.2d 541 (1988).
The Revised Code contains no provision for the disqualification of administrative board members. In light of the lack of statutory authority for a pre-hearing motion to disqualify an administrative board member, the complaining party's remedy is reduced to a claim of a denial of due process based upon the manner in which the questioned member conducted or participated in the board's decision-making process: Ohio State Bd. of Pharmacy v. Poppe, 48 Ohio App. 3d 222, 549 N.E.2d 541 (1988).
The pre-suspension procedures included in RC §§ 4509.19 and 119.09 are designed to provide a complete legal remedy at the administrative level for an uninsured motorist whose license is suspended: Babcock v. Bureau of Motor Vehicles, 46 Ohio App. 2d 34, 75 Ohio Op. 2d 32, 345 N.E.2d 625 (1975).
Where the hearing officer did not act as investigator and where there were no special facts or circumstances present that increased the risk of unfairness, no due process violations occurred: Kick v. Dailey, No. CA-528 1995 Ohio App. LEXIS 4650 (5th Dist. 1995).
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).
Revised Code § 119.09 does not create a mandatory duty on behalf of an administrative board to read the transcript of testimony and evidence of the proceedings held before a hearing examiner: Chapman v. Ohio State Dental Bd., 33 Ohio App. 3d 324, 515 N.E.2d 992 (1986).
Revised Code § 3702.58 adopts the time frame in RC § 119.09 for the filing of objections to a certificate of need review board decision, but it does not explicitly adopt RC Chapter 119.'s definition of "party": In re Christian Care Home of Cincinnati, Inc., 64 Ohio App. 3d 461, 581 N.E.2d 1157 (1989).
When the Ohio State Medical Board conducts an adjudicatory hearing pursuant to RC § 4731.23, the affected party enjoys the procedural safeguards contained in RC §§ 119.06 to 119.10 during the hearing, but does not have the right to notice of the findings or order of the hearing officer, pursuant to RC § 119.09, or the opportunity to file written objections thereto: Ohio State Medical Bd. v. Zwick, 59 Ohio App. 2d 133, 13 Ohio Op. 3d 178, 392 N.E.2d 1276 (1978).
Revised Code § 3745.05 requires the environmental board of review to conduct a hearing de novo in an appeal from an order of the director of environmental protection, except where such order results from an adjudication hearing conducted by the director in accordance with RC §§ 119.09 and 119.10. (RC § 3745.05, construed): Union Camp Corp. v. Whitman, 42 Ohio St. 2d 441, 71 Ohio Op. 2d 414, 329 N.E.2d 690 (1975).
As to complaints filed against licenses 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).
Secondary evidence is sufficient to support a decision of the board of tax appeals: Gennaro Pavers v. Kosydar, 42 Ohio St. 2d 491, 71 Ohio Op. 2d 496, 330 N.E.2d 665 (1975).
Although RC § 119.09 allows a party to file written objections to the report and recommendation, it does not indicate that a party must file such objections or that failure to do so operates as a waiver of certain issues on appeal: Harrison v. Ohio Veterinary Med. Licensing Bd., No. 00AP-254 (10th Cir.), 2000 Ohio App. LEXIS 5943 (2000).
The institutional decision made by an administrative board may properly be based on written findings of fact prepared by a hearing examiner appointed under RC § 119.09, so long as the findings of fact constitute a basis for making informed, deliberate, and independent conclusions about the issues, 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: Lies v. Veterinary Medical Bd., 2 Ohio App. 3d 204, 2 Ohio B. 223, 441 N.E.2d 584 (1981).
In conducting an adjudication hearing as required by RC §§ 119.01 to 119.13, an administrative agency is not required to formulate its own findings of fact but rather such agency must approve, modify or disapprove the recommendations of the referee or examiner: Erie Care Center, Inc. v. Ackerman, 5 Ohio App. 3d 102, 5 Ohio B. 216, 449 N.E.2d 486 (1982).
Revised Code § 119.09 does not require a state hearing officer to be an attorney: Albert v. Ohio Dept. of Human Services, 138 Ohio App. 3d 31, 740 N.E.2d 310 (2000).
Revised Code § 119.09 does not authorize the board of liquor control to appoint one of its members who is an attorney as its referee or examiner to conduct a hearing and report to the board his findings of fact, conclusions of law, and recommendation of board action, but such board is authorized by RC § 4301.04 to designate any member of such board to conduct a hearing and to make a record of the evidence, therein adduced, for review by the board as a whole: 1958 OAG No. 2609 (1958).
Administrative powers are only implied when clearly necessary to effect an express power. Such implied power can be no greater than the express power and must be exercised subject to the same express power limitations: Green v. Western Reserve Psych. Hab. Center, 3 Ohio App. 3d 218, 3 Ohio B. 248, 444 N.E.2d 442 (1981).
Legislative acts of state administrative agencies are not appealable under RC § 119.12. The state board of education's disapproval of a transfer of territory after an annexation proceeding is a legislative act: Board of Edn. of Marion v. Board of Edn. of Elgin, 66 Ohio St. 2d 152, 20 Ohio Op. 3d 165, 420 N.E.2d 990 (1981).
Modification of recommendation
Where the superintendent of the department of insurance deleting the imposition of administrative costs from the hearing officer's denial of a license application, this reduction of a penalty did not require an explanation by the superintendent under RC § 119.09. Piatko v. State, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 3580 (July 28, 2003).
Since R.C. § 119.12 requires that an original notice of appeal be filed with an agency within the statutory period, a corporation may not claim that its facsimile transmission was an appropriate substitute for an original notice of appeal that was not timely filed. Colonial, Inc. v. Ohio Liquor Control Comm'n, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 2772 (June 17, 2003).
An agency's adjudication order does not comply with RC § 119.09 unless it clearly and unambiguously indicates that the "original" notice of appeal must be filed with the agency and that a "copy" must be filed with the court: Rohr v. Ohio Dept. of Adm. Serv., 114 Ohio Misc. 2d 54, 759 N.E.2d 494 (CP 2001).
Revised Code § 119.09 requires an agency to serve a copy of its final order on the affected party as well as the party's attorney. The time for appeal under RC § 119.12 does not begin to run until the agency fully complies with RC § 119.09: Slone v. Ohio Bd. of Embalmers & Funeral Directors, 107 Ohio App. 3d 628, 669 N.E.2d 288 (1995).
Until the employer received certified mail notice of SERB's certification of the employee organization as the exclusive bargaining representative, pursuant to an election under RC § 4117.05, the employer had no duty to comply and engage in collective bargaining: Franklin Cty. Bd. of Commrs. v. State Emp. Relations Bd., 64 Ohio App. 3d 113, 580 N.E.2d 832 (1989).
The notice requirements of RC § 119.09 require no more than service of the report and recommendation of the hearing examiner upon a party or his counsel within five days of filing: Berezoski v. Ohio State Medical Bd., 48 Ohio App. 3d 231, 549 N.E.2d 183 (1988).
The Rules of Civil Procedure do not apply to adjudicatory proceedings before the State Board of Education: Yoder v. Ohio State Bd. of Edn., 40 Ohio App. 3d 111, 531 N.E.2d 769 (1988).
OAC 3304-2-62, concerning appeals from actions of the rehabilitation services commission, incorporates the procedural and substantive criteria of RC § 119.09 into the regulatory scheme: Miller v. Ohio Rehab. Serv. Comm., 85 Ohio App. 3d 701, 621 N.E.2d 437 (1993).
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).
Revised Code § 119.09 gives an administrative agency the authority to issue subpoenas either upon its own request or upon the request of a party receiving notice of the hearing. However, the failure of the agency to issue the subpoena does, automatically, constitute prejudicial error: Ohio State Bd. of Pharmacy v. Poppe, 48 Ohio App. 3d 222, 549 N.E.2d 541 (1988).
Revised Code § 124.09(E) expressly permits the State Personnel Board of Review to enforce its subpoena power by bringing attachment proceedings in contempt. The statute does not include suppression of testimony as a sanction for refusal to comply with the board's subpoena. It is not necessary to imply a suppression power since the board has a means of effectuating its subpoena power under RC § 124.09(E). Thus, the board exceeds its authority when it suppresses testimony as a sanction for non-compliance with a subpoena duces tecum: Green v. Western Reserve Psych. Hab. Center, 3 Ohio App. 3d 218, 3 Ohio B. 248, 444 N.E.2d 442 (1981).
If a witness subpoenaed by the State Dental Board pursuant to RC § 119.09 accepts witness fees and mileage at the time of service and subsequently fails to obey the subpoena, the Board may, pursuant to RC § 119.09, apply to the court of common pleas of the county where the disobedience occurred to compel obedience by attachment proceedings for contempt. If, however, the Board chooses not to compel the attendance of the witness, the Board may request the Treasurer of State to stop payment on warrant which was issued in payment for the witness fees and mileage or, if such request is not timely made, shall initiate the procedure for collection of the moneys set forth in RC § 131.02: OAG No. 86-066 (1986).
When the State Dental Board issues a subpoena pursuant to RC § 4715.03(D) for purposes of conducting an investigation thereunder, a witness may not refuse to obey the subpoena on the basis that witness fees and mileage are not tendered to him at the time of service of the subpoena: OAG No. 86-066 (1986).
When the State Dental Board issues a subpoena pursuant to RC § 119.09 for purposes of an adjudicatory hearing conducted pursuant to RC Chapter 119. and RC Chapter 4715., a witness who lives outside of the county where the Board is located is not required to obey the subpoena if fees for one day's attendance and mileage are not tendered at the time of service of the subpoena, as provided in Ohio R. Crim. P. 17(D). A witness who lives in the county where the Board is located is not required to obey the subpoena if fees for one day's attendance and mileage are not tendered, upon demand, at the time of service of the subpoena, as provided in Ohio R. Crim. P. 17(D): OAG No. 86-066 (1986).
Where there is a finding against a permit holder that he tampered with or intimidated a witness subpoenaed by the department of liquor control to testify before it, and the evidence fails to disclose a violation of law or the regulations of the board, the charge should be dismissed and the cause remanded to such board for further proceedings incident to other charges made in the proceeding: Brenner v. Board of Liquor Control, 101 Ohio App. 550, 1 Ohio Op. 2d 456, 140 N.E.2d 626 (1955).
The time for appeal under RC § 119.12 did not begin to run where the agency gave the appellant erroneous directions as to how to appeal, thereby failing to comply with RC § 119.09: Bailey v. Ohio Dept. of Adm. Serv., 114 Ohio Misc. 2d 48, 759 N.E.2d 490 (CP 2000).
The fifteen-day appeal period provided in RC § 119.12 does not commence to run until the agency whose order is being appealed fully complies with the procedural requirements set forth in RC § 119.09: Sun Refining & Marketing Co. v. Brennan, 31 Ohio St. 3d 306, 31 Ohio B. 584, 511 N.E.2d 112 (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).