OHIO REVISED CODE

TITLE I STATE GOVERNMENT

CHAPTER 119 ADMINISTRATIVE PROCEDURE

§ 119.12. Appeal by party adversely affected.

Any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination, or denying the issuance or renewal of a license or registration of a licensee, or revoking or suspending a license, or allowing the payment of a forfeiture under section 4301.252 [4301.25.2] of the Revised Code, may appeal from the order of the agency to the court of common pleas of the county in which the place of business of the licensee is located or the county in which the licensee is a resident, except that appeals from decisions of the liquor control commission, the state medical board, state chiropractic board, and board of nursing shall be to the court of common pleas of Franklin county. If any such party is not a resident of and has no place of business in this state, the party may appeal to the court of common pleas of Franklin county.

Any party adversely affected by any order of an agency issued pursuant to any other adjudication may appeal to the court of common pleas of Franklin county, except that appeals from orders of the fire marshal issued under Chapter 3737. of the Revised Code may be to the court of common pleas of the county in which the building of the aggrieved person is located.

This section does not apply to appeals from the department of taxation.

Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and the grounds of the party's appeal. A copy of such notice of appeal shall also be filed by the appellant with the court. Unless otherwise provided by law relating to a particular agency, such notices of appeal shall be filed within fifteen days after the mailing of the notice of the agency's order as provided in this section. For purposes of this paragraph, an order includes a determination appealed pursuant to division (C) of section 119.092 [119.09.2] of the Revised Code.

The filing of a notice of appeal shall not automatically operate as a suspension of the order of an agency. If it appears to the court that an unusual hardship to the appellant will result from the execution of the agency's order pending determination of the appeal, the court may grant a suspension and fix its terms. If an appeal is taken from the judgment of the court and the court has previously granted a suspension of the agency's order as provided in this section, such suspension of the agency's order shall not be vacated and shall be given full force and effect until the matter is finally adjudicated. No renewal of a license or permit shall be denied by reason of such suspended order during the period of the appeal from the decision of the court of common pleas. In the case of an appeal from the state medical board or state chiropractic board, the court may grant a suspension and fix its terms if it appears to the court that an unusual hardship to the appellant will result from the execution of the agency's order pending determination of the appeal and the health, safety, and welfare of the public will not be threatened by suspension of the order. This provision shall not be construed to limit the factors the court may consider in determining whether to suspend an order of any other agency pending determination of an appeal.

The final order of adjudication may apply to any renewal of a license or permit which has been granted during the period of the appeal.

Notwithstanding any other provision of this section, any order issued by a court of common pleas or a court of appeals suspending the effect of an order of the liquor control commission issued pursuant to Chapter 4301. or 4303. of the Revised Code that suspends, revokes, or cancels a permit issued under Chapter 4303. of the Revised Code, or that allows the payment of a forfeiture under section 4301.252 [4301.25.2] of the Revised Code, shall terminate not more than six months after the date of the filing of the record of the liquor control commission with the clerk of the court of common pleas and shall not be extended. The court of common pleas, or the court of appeals on appeal, shall render a judgment in that matter within six months after the date of the filing of the record of the liquor control commission with the clerk of the court of common pleas. A court of appeals shall not issue an order suspending the effect of an order of the liquor control commission that extends beyond six months after the date on which the record of the liquor control commission is filed with a court of common pleas.

Notwithstanding any other provision of this section, any order issued by a court of common pleas suspending the effect of an order of the state medical board or state chiropractic board that limits, revokes, suspends, places on probation, or refuses to register or reinstate a certificate issued by the board or reprimands the holder of such a certificate shall terminate not more than fifteen months after the date of the filing of a notice of appeal in the court of common pleas, or upon the rendering of a final decision or order in the appeal by the court of common pleas, whichever occurs first.

Within thirty days after receipt of a notice of appeal from an order in any case in which a hearing is required by sections 119.01 to 119.13 of the Revised Code, the agency shall prepare and certify to the court a complete record of the proceedings in the case. Failure of the agency to comply within the time allowed, upon motion, shall cause the court to enter a finding in favor of the party adversely affected. Additional time, however, may be granted by the court, not to exceed thirty days, when it is shown that the agency has made substantial effort to comply. Such record shall be prepared and transcribed and the expense of it shall be taxed as a part of the costs on the appeal. The appellant shall provide security for costs satisfactory to the court of common pleas. Upon demand by any interested party, the agency shall furnish at the cost of the party requesting it a copy of the stenographic report of testimony offered and evidence submitted at any hearing and a copy of the complete record.

Notwithstanding any other provision of this section, any party desiring to appeal an order or decision of the state personnel board of review shall, at the time of filing a notice of appeal with the board, provide a security deposit in an amount and manner prescribed in rules that the board shall adopt in accordance with this chapter. In addition, the board is not required to prepare or transcribe the record of any of its proceedings unless the appellant has provided the deposit described above. The failure of the board to prepare or transcribe a record for an appellant who has not provided a security deposit shall not cause a court to enter a finding adverse to the board.

Unless otherwise provided by law, in the hearing of the appeal, the court is confined to the record as certified to it by the agency. Unless otherwise provided by law, the court may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency.

The court shall conduct a hearing on such appeal and shall give preference to all proceedings under sections 119.01 to 119.13 of the Revised Code, over all other civil cases, irrespective of the position of the proceedings on the calendar of the court. An appeal from an order of the state medical board issued pursuant to division (G) of either section 4730.25 or 4731.22 of the Revised Code, the state chiropractic board issued pursuant to section 4734.37 of the Revised Code, or the liquor control commission issued pursuant to Chapter 4301. or 4303. of the Revised Code shall be set down for hearing at the earliest possible time and takes precedence over all other actions. The hearing in the court of common pleas shall proceed as in the trial of a civil action, and the court shall determine the rights of the parties in accordance with the laws applicable to such action. At such hearing, counsel may be heard on oral argument, briefs may be submitted, and evidence introduced if the court has granted a request for the presentation of additional evidence.

The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. The court shall award compensation for fees in accordance with section 2335.39 of the Revised Code to a prevailing party, other than an agency, in an appeal filed pursuant to this section.

The judgment of the court shall be final and conclusive unless reversed, vacated, or modified on appeal. Such appeals may be taken either by the party or the agency, shall proceed as in the case of appeals in civil actions, and shall be pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction, or interpretation of statutes and rules of the agency, and in such appeal the court may also review and determine the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative, and substantial evidence in the entire record.

The court shall certify its judgment to such agency or take such other action necessary to give its judgment effect.

HISTORY: GC § 154-73; 120 v 358; 121 v 578; 124 v 202; Bureau of Code Revision, 10-1-53; 125 v 488 (Eff 10-21-53); 128 v 1116 (Eff 11-4-59); 130 v 16 (Eff 9-2-63); 134 v S 89 (Eff 8-31-72); 137 v H 634 (Eff 8-15-77); 137 v H 590 (Eff 7-1-79); 138 v H 102 (Eff 7-1-79); 139 v H 317 (Eff 8-27-82); 140 v H 260 (Eff 9-27-83); 140 v H 67 (Eff 10-10-83); 140 v H 37 (Eff 6-22-84); 140 v S 102 (Eff 4-11-85); 141 v H 412 (Eff 3-17-87); 141 v H 769 (Eff 3-17-87); 141 v H 428 (Eff 12-23-86); 142 v H 529 (Eff 6-14-88); 142 v H 708 (Eff 4-19-88); 143 v H 282 (Eff 5-31-90); 144 v S 359 (Eff 12-22-92); 147 v H 606 (Eff 3-9-99); 147 v H 402 (Eff 3-30-99); 148 v H 506. Eff 4-10-2001.

The provisions of § 8 of HB 506 (148 v - ) read as follows:

SECTION 8. Section 119.12 of the Revised Code is presented in this act as a composite of the section as amended by both Am. Sub. H.B. 402 and Sub. H.B. 606 of the 122nd General Assembly, with the new language of neither of the acts shown in capital letters. This is in recognition of the priniciple stated in division (B) of section 1.52 of the Revised Code that such amendments are to be harmonized where not substantively irreconcilable and constitutes a legislative finding that such is the resulting version in effect prior to the effective date of this act.

Cross-References to Related Sections

Agriculture department -

Apiaries; revocation of certificate or permit, RC § 909.13.

Concentrated animal feeding facilities; civil penalties, RC §§ 903.16-903.18.

Dairy products; licensing of producer or handler, RC § 917.02.

Enforcement of license requirements for operation of concession, RC § 1711.11.

Meat inspection license revocation appeal, RC § 918.42.

Appeal from denial or reduction of award of compensation for attorney fees incurred in administrative hearings, RC § 119.09.2.

Athletic trainers, RC § 4755.60 et seq.

Attorney fees to be awarded eligible prevailing party incurred in civil action against state or appeal of agency order, RC § 2335.39.

Barber, action on certificate of registration and shop license, RC § 4709.13.

Board of building appeals; members, RC § 3781.19.

Boiler inspection certificate, appeal from revocation, RC § 4104.09.

Building standards -

Local boards, certification of, RC § 3781.20.

Submission of plans; licensing; prohibitions, RC § 3791.04.

Bureau of services for visually impaired; administrative hearings, RC § 3304.32.

Child day-care center licensing procedures, appeal from refusal to or revocation of license, RC §§ 5104.03, 5104.04.

Chiropractic board may suspend certificate without prior hearing, RC §§ 4734.36, 4734.37.

Classified employees -

Layoff, RC § 124.32.8.

Reduction, suspension, removal and demotion, RC § 124.34.

Consumer finance, division of -

Premium finance company, RC § 1321.75.

County board of MR/DD; mediation and arbitration procedures concerning service contract disputes, RC § 5126.03.6.

Credit unions -

Cease-and-desist orders, RC § 1733.32.4.

Credit union guaranty corporations, cease-and-desist orders, RC § 1761.18.

Removal from board of directors, RC § 1733.18.1.

Crematory review board hearings, RC § 4717.03.

Disciplinary actions; suspension by operation of law, RC § 4717.14.

Notice of violation, RC § 4717.15.

Director of commerce -

Minimum fair wage standards, RC § 4111.05.

Director of development -

Rescinding designation of new agency, RC § 122.70.1.

Division of parole and community services -

Jails, denial of variance from minimum standards, RC § 5120.10.

Education -

Handicapped children; guaranteed procedural safeguards, RC § 3323.05.

Investigations; determinations by superintendent; hearings; consent agreements; grounds for automatic suspension; suspension orders, RC § 3319.31.1.

Engineers, professional -

Certificate of authorization requirements for firm, partnership or association, RC § 4733.16.

Revocation and suspension; hearing, RC § 4733.20.

Environmental protection -

Water pollution, agency proceedings, RC § 6111.06.

Fire marshal; hotels, violation of fire code, RC § 3731.06.

Health, department of -

Medicare beneficiaries, balance billing; violations, costs of adjudication, RC § 4769.08.

Rules for department of health program for medically handicapped children, RC § 3701.02.1.

Horse racing; collection and settlement agent for simulcast fees, RC § 3769.08.10.

Housing finance agency, mortgage loan, right to appeal denial of application, RC § 175.05.

Insurance agents -

Grounds for disciplinary action; procedure; actions by attorney general, RC § 3905.49.

Insurance, department of -

Appeal of cease and desist order by superintendent, RC § 3901.22.1.

Credit life insurance, judicial review of superintendent's order, RC § 3918.13.

Domestic mutual life insurance company converted to stock company, policyholder appeal, RC § 3913.13.

Fair plan underwriting association, RC §§ 3929.43, 3929.47.

Life insurance policy, RC § 3911.01.1.

Mutual insurance company, RC § 3941.40.

Mutual insurance company converted to stock company, policyholder appeal, RC § 3913.23.

Policies to be filed with superintendent, RC § 3918.07.

Property and casualty insurance guaranty association, RC §§ 3955.09, 3955.10.

Suspension, revocation or non-renewal of license, third-party administrator, RC § 3959.12.

Suspension, revocation, refusal to renew license, RC § 3901.37.

Title insurance agent's license, RC § 3953.23.

Violations of contract of independent agency, RC § 3905.50.

Job and family services, department of; appeals by applicant, RC § 5101.35.

License expiration involved in an appeal; procedure, RC § 119.12.1.

Liquor control commission, appeal to, RC § 4301.28.

Forfeiture in lieu of suspension, RC § 4301.25.2.

Manufactured home parks, development plans, RC § 3733.02.1.

Permits, RC §§ 3733.02.2, 3733.02.5.

Medical board, state -

Anesthesiologist assistants; disciplinary authority of board, RC § 4760.13.

Disciplinary grounds for adjudicatory hearing; procedures, RC §§ 4731.22, 4731.22.3.

Hearings, RC § 4731.23.

Rules; adjudication proceedings, RC § 4731.05.

Motor vehicle dealers board; rule-making powers; hearings, RC § 4517.32.

Natural resources -

Lake Erie drainage basin; permit denial, RC § 1501.32.

Shore erosion, notice-of-disapproval adjudication hearing to be conducted by chief engineer, RC § 1521.22.

Net worth for attorney fee purposes to be defined by attorney general rule, RC § 119.09.3.

Nursing homes; licensing; revocation, RC §§ 3721.03, 3721.07.

Resident's rights, RC § 3721.10 et seq.

Ohio ambulance licensing board, RC § 4766.02 et seq.

Ohio elections commission; time limits for filing complaint; withdrawal; dismissal; hearing procedure, RC § 3517.15.7.

Ohio rail development commission franchise agreements, RC § 4981.31.

Ohio respiratory care board powers, RC § 4761.09.

Oil and gas -

Accidental releases of petroleum; claims for payment or reimbursement, RC § 3737.92.

Orders of chief regulating transportation and disposal of brine by vehicle deemed adjudication orders, when, RC § 1509.03.

Optometrists -

Continuing education requirements, RC § 4725.16.

Summary suspension, RC § 4725.24.

Orthotists, prosthetists, pedorthists, license suspension, RC § 4779.29.

Pharmacy, board of, RC § 4729.66.

Suspension or revocation of registration of terminal distributor, RC § 4729.57.

Physician assistant; grounds for disciplinary action against; appeal from suspension, RC § 4730.25.

Private investigator, appeal from license suspension, RC § 4749.04.

Public health council; adult foster care facility, revocation of license, RC § 3722.10.

Radon testing and mitigation, RC § 3723.01 et seq.

Real estate -

Appeal from refusal of superintendent of real estate to qualify foreign real estate, RC § 4735.26.

Real estate appraisal board, RC §§ 4763.03, 4763.09 to 4763.11.

Real estate commission -

Appeal from order, RC § 4735.19.

Savings and loan associations -

Exercise of trust power, RC § 1151.34.8.

Involvement in violation of rules or in unsafe or unsound practice, RC § 1155.02.

Security services -

Appeal from license suspension, RC § 4749.04.

Skiing safety -

Passenger tramways construction and operation, RC § 4169.02.

Suspension of tramway certificate to operate; procedure, RC § 4169.06.

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.

Tanning facilities; board of cosmetology, RC § 4713.25.

Transportation, department of -

Airport operation, RC § 4561.11.

Tourist-oriented directional sign program, RC § 4511.10.2 et seq.

Withdrawing contractor bids made in error, RC § 9.31.

Ohio Rules

Additional time after service by mail, CivR 6(E).

Text Discussion

Appeal under the Administrative Procedure Act. 6 Ohio Civ. Prac. § 312.02

Civil service. 1 Ohio Sch. Law § 8.30

Civil service appeals. 6 Ohio Civ. Prac. § 312.10

New trial. McCormac § 13.23

Procedure under the APA; further appeal. 6 Ohio Civ. Prac. § 314.07

Procedure under the APA; hearing. 6 Ohio Civ. Prac. § 314.05

Procedure under the APA; notice of appeal. 6 Ohio Civ. Prac. § 314.03

Procedure under the APA; record of the proceedings. 6 Ohio Civ. Prac. § 314.04

Procedure under the APA; scope of review. 6 Ohio Civ. Prac. § 314.06

Procedure under the APA; venue of the appeal. 6 Ohio Civ. Prac. § 314.02

Procedure under the APA; who may appeal. 6 Ohio Civ. Prac. § 314.01

Withdrawal of bids. 1 Ohio Sch. Law § 6.28

Research Aids

Court review of administrative action:

O-Jur3d: Admin L §§ 188, 190, 196, 200-203, 206-209, 214, 216, 218, 221-225, 229; Intox L §§ 173-179; Phys & S § 159

Am-Jur2d: Admin L §§ 415, 647; Intox L §§ 187, 388

ALR

Appealability under "collateral order" doctrine of order staying or dismissing, or refusing to stay or dismiss, proceedings in United States District Court pending federal or state administrative determination. 40 ALRFed 740.

Applicability of stare decisis doctrine to decisions of administrative agencies. 79 ALR2d 1126.

Doctrine of sovereign immunity as precluding or limiting application of judicial review provisions of Administrative Procedure Act (5 USCS §§ 701 et seq.). 30 ALRFed 714.

Effect of court review of administrative decision. 79 ALR2d 1141.

Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting administrative appeal or review. 61 ALR2d 484.

Hobbs Act, who is "party aggrieved," so as to be entitled to petition court of appeals for review of final order of administrative agency, under 28 USCS § 2344. 88 ALRFed 341.

Judicial review of administrative ruling affecting conduct or outcome of publicly regulated horse, dog, or motor vehicle race. 36 ALR4th 1169.

Right of one governmental subdivision to challenge annexation proceedings by another such subdivision. 17 ALR5th 195.

Right of signer of petition or remonstrance to withdraw therefrom or revoke withdrawal, and time therefor. 27 ALR2d 604.

Right to statement of reasons, under Administrative Procedure Act (5 USCS § 555(e)), for denial of written application, petition, or other request of interested person made in connection with agency proceeding. 57 ALRFed 765.

"State court," what constitutes for purposes of 28 USCS § 1441(a), providing for renewal of civil actions generally. 48 ALRFed 738.

Statute providing for judicial review of administrative order revoking or suspending automobile driver's license as providing for de novo trial. 97 ALR2d 1367.

Law Review

Administrative adjudications: an overview of the existing models and their failure to achieve uniformity and a proposal for a uniform adjudicatory framework. Comment. 46 Ohio St. L.J. 355 (1985).

Administrative review and the Ohio modern courts amendment. Ivan C. 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).

Due process and the Ohio administrative procedure act: the central panel proposal. Christopher B. McNeil. 23 Ohio N.U.L. Rev. 783 (1997).

ORC Chapter 2506. - Judicial review of administrative rulings. Marshall J. Wolf, Donald M. Robiner. 22 Clev. St. L. Rev. 229 (1973).

The right of appeal by administrative authority from adverse judicial rulings. Ervin H. Pollack, Harriet S. Martin. 14 Ohio St. L.J. 408 (1953).

Young v. Community Nutrition Institute: the scope of judicial review of administrative determinations of law following Chevron v. NRDC. Note. 14 NoKyLRev 139 (1987).

CASE NOTES AND OAG








Analysis

Constitutionality.

Action by third party.

Adjudication.

- "Agency" construed.

"Agency" construed.

Agency findings of fact.

Amendment of record.

Appeal.

- Notice.

Appeal by agency.

Appealability.

- Final order.

Applicability.

Attorney fees.

Authority of court.

Authority of court of appeals.

Award of fees.

Certification of record.

- Omissions.

Charter provisions.

Civil service.

Construction.

Criminal proceedings.

Denial of stay of order.

Driver's license.

Due process.

Effect of other laws.

Evidence.

- Liquor control.

- Substantial.

Exhaustion of remedies.

Failure to file briefs.

"File" construed.

Findings.

Findings, conclusions of court.

Findings of hearing official.

Forfeiture of property.

Hearing by court.

Interpretation of administrative rules.

Intervention.

Intoxicating liquors.

"License" construed.

Jurisdiction.

Liquor control.

Mandamus.

Ministerial acts.

Modification of decision.

Notice.

Notice of appeal.

- Constitutionality.

- Jurisdiction of agency.

Notice of hearing.

Oral arguments.

Parties.

Pawnbrokers.

Presumptions.

Prohibition.

Reconsideration by agency.

Record on appeal.

Rehabilitation and correction department.

Rehearing by court.

Remand to agency.

Res judicata.

Revocation supported.

Right of appeal.

Rules of Civil Procedure.

Schools.

- Territory transfers.

Scope of review.

- Court of appeals.

- Standard of review.

Security deposit.

Standard of appellate review.

Standard of review.

- Court of appeals.

Stay of license suspension.

Suspension of order of agency.

Time for appeal.

Venue.

Violation of ambiguous administrative order.

Waiver of right to appeal.

Waiver of rules by agency.

Zoning.

Constitutionality

In an appeal to the Court of Common Pleas from the decision of a state agency, if the appellant presented evidence before the state agency in the administrative hearing, concerning the constitutionality of the statute at issue, as applied to the appellant, he is then entitled to have the Court of Common Pleas determine the constitutionality of the statute, as applied to him. However, where the appellant has not presented such evidence before the agency, he is precluded by the terms of RC § 119.12 from raising the constitutional issue by introducing new evidence before the Court of Common Pleas, unless such evidence was "newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency": Zieverink v. Ackerman, 1 Ohio App. 3d 10, 1 Ohio B. 51, 437 N.E.2d 319 (1981).

The liquor control commission has no authority to pass on the constitutionality of a statute, and a party need not raise such a question before the commission in order to be entitled to present it in the common pleas court: Rahal v. Liquor Control Commission, 1 Ohio App. 2d 263, 30 Ohio Op. 2d 287, 204 N.E.2d 535 (1965).

Action by third party

Adjudication under the administrative procedure act (RC §§ 119.01 to 119.13) must be sought by third party seeking the revocation of a license granted by the Ohio department of insurance: State ex rel. Ohio Assn. of Insurance Agents v. Ohio Department of Insurance, 29 Ohio St. 2d 188, 58 Ohio Op. 2d 401, 281 N.E.2d 9 (1972).

Adjudication

To constitute an "adjudication" for purposes of RC § 119.12, a determination must be (1) that of the highest or ultimate authority of an agency which (2) determines the rights, privileges, benefits, or other legal relationships of a person: Russell v. Harrison Twp., 75 Ohio App. 3d 643, 600 N.E.2d 374 (1991).

The determination, by letter, of the Director of Transportation, pursuant to RC Chapter 5516., to deny a permit to advertise off-premise businesses on a billboard outside an urban area is an "adjudication" within the meaning of RC § 119.01(D), and may be appealed to the proper court of common pleas pursuant to RC § 119.12: Liberty Bell, Inc. v. Ohio Dept. of Transp., 34 Ohio App. 3d 267, 518 N.E.2d 32 (1986).

A resolution by the state board of education, pursuant to RC §§ 3313.90 and 3313.91.1, assigning a school district to membership in a joint vocational school district is quasi-judicial in nature and, consequently, subject to review, under RC § 119.12, as an adjudication: In re Assignment of New Riegel Local School Dist., 8 Ohio App. 3d 306, 8 Ohio B. 414, 456 N.E.2d 1245 (1982).

The granting or withholding of consent by the superintendent of banks to the establishment of a branch bank is an act of "adjudication" under RC § 119.12: Clermont Nat. Bank v. Edwards, 27 Ohio App. 2d 91, 56 Ohio Op. 2d 258, 273 N.E.2d 783 (1970).

- "Agency" construed

The Ohio Department of Mental Retardation and Developmental Disabilities is not an agency for purposes of Chapter 119. of the Revised Code, and its decisions are not subject to the Administrative Procedure Act: CBM Homes v. Ohio Dep't of Mental Retardation and Dev. Disabilities, No. 92AP-1524 1993 Ohio App. LEXIS 2015 (10th Dist. 1993).

The Ohio Department of Rehabilitation and Correction is not an agency whose decisions are subject to judicial review by appeal pursuant to RC § 119.12: City of Augustine v. Ohio Dept. of Rehab., 3 Ohio App. 3d 398, 3 Ohio B. 464, 445 N.E.2d 706 (1981).

"Agency" construed

The civil service commission is an "agency" as defined by RC § 119.01 and its orders are appealable to the court of common pleas under authority of RC § 119.12: State ex rel. Oliver v. State Civil Service Comm., 168 Ohio St. 445, 7 Ohio Op. 2d 275, 155 N.E.2d 897 (1959).

Agency findings of fact

Amendment of record

Appeal

- Notice

Appeal by agency

An agency cannot appeal under RC § 119.12 where the common pleas court's judgment is based entirely upon the evidence. However, there was a right of appeal where the court misconstrued its standard of review: Garwood v. State Med. Bd. of Ohio, 127 Ohio App. 3d 530, 713 N.E.2d 468 (1998).

An agency may appeal from a common pleas court's review of an agency decision only upon questions of law. Therefore, where it is clear that the common pleas court's judgment was made entirely upon the evidence, the agency cannot appeal. Furthermore, when the trial court has made no specific determination as to the meaning of a statute, rule, or regulation, the court of appeals is without jurisdiction to review that court's judgment: Ladd v. Ohio, 76 Ohio App. 3d 323, 601 N.E.2d 617 (1991).

The Superintendent of Insurance of Ohio has no right to appeal a judgment rendered by a court of common pleas which reverses a decision of the Superintendent: In re Blue Cross, 60 Ohio App. 2d 245, 14 Ohio Op. 3d 226, 396 N.E.2d 792 (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).

The director of a state department does not have a right of appeal to the court of common pleas of Franklin county from an order of the state personnel board of review disaffirming the director's layoff order of an employee for alleged lack of work (RC §§ 119.01 and 119.12). (Corn v. Board of Liquor Control, 160 OS 9, 50 OO 479; Lindblom v. Board of Tax Appeals, 151 OS 250, 39 OO 66, paragraph two of the syllabus, approved and followed): State ex rel. Osborn v. Jackson, 46 Ohio St. 2d 41, 75 Ohio Op. 2d 132, 346 N.E.2d 141 (1976).

The liquor control commission may appeal from a judgment of the court of common pleas when the court's journal entry merely recites that the decision of the board of liquor control is not supported by reliable, probative and substantial evidence, when with violation of the regulation having been stipulated the finding of the court of common pleas had to involve the lower court's interpretation of the regulation of the commission: Rrawu, Inc. v. Liquor Control Comm., 46 Ohio St. 2d 436, 75 Ohio Op. 2d 494, 349 N.E.2d 304 (1976).

The Ohio liquor control commission has a right of appeal from a judgment of the court of common pleas, where all the essential elements of the violation in question were stipulated at the hearing before the commission and where the court of common pleas reverses the order of the liquor control commission upon the basis of a question of law interpreting the application of a regulation of the commission: A.B. Jac., Inc. v. Liquor Comm., 29 Ohio St. 2d 139, 58 Ohio Op. 2d 342, 280 N.E.2d 371 (1972).

The right of an administrative agency to appeal to the court of appeals from an adverse judgment of the common pleas court is, under the provisions of RC § 119.12 limited to an appeal on questions of law "relating to the constitutionality, construction, or interpretation of the statutes and rules and regulations of the agency." Where, in such an appeal, the trial court has made no specific determination as to the meaning or application of a particular statute, rule or regulation, the court of appeals is without jurisdiction to review the judgment of the common pleas court: Mentor Marinas, Inc. v. Board of Liquor Control, 1 Ohio App. 2d 219, 30 Ohio Op. 2d 252, 204 N.E.2d 404 (1964).

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": In re Job Abolishment of Jenkins, 120 Ohio App. 385, 29 Ohio Op. 2d 247, 202 N.E.2d 634 (1963).

The board of liquor control cannot appeal pursuant to RC § 119.12 from a judgment of a common pleas court reversing a decision of such board, where no question of law was before such common pleas court which merely held in its journal entry that "the decision of the board of liquor control is not sustained by substantial, probative and reliable evidence and is not in accordance with law": Zarachowicz v. Board of Liquor Control, 119 Ohio App. 133, 26 Ohio Op. 2d 331, 197 N.E.2d 370 (1963).

Under the provisions of RC § 119.12, being part of the administrative procedure act, the department of liquor control and governmental agencies are authorized to appeal only upon questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency, and it is only when such a question of construction is involved that the reviewing court also may consider and determine the sufficiency of the evidence: Trianon Bowling Lanes, Inc. v. Department of Liquor Control, 118 Ohio App. 255, 22 Ohio Op. 2d 438, 190 N.E.2d 34 (1962).

Pursuant to the provisions of RC § 119.12, an order of the common pleas court reversing a decision of the board of liquor control as not supported by reliable, probative and substantial evidence may not be appealed by the board of liquor control: Cranwood Steak House, Inc. v. Board of Liquor Control, 115 Ohio App. 463, 21 Ohio Op. 2d 79, 185 N.E.2d 576 (1961).

Where the court of common pleas reverses an order of the board of liquor control, such board may appeal to the court of appeals for Franklin county, which court may affirm or reverse the judgment of the court of common pleas, in accordance with the provisions of RC § 119.12, but in doing so must be guided by the nature and scope of the appellate jurisdiction of the court of common pleas under such section: Andrews v. Board of Liquor Control, 164 Ohio St. 275, 58 Ohio Op. 51, 131 N.E.2d 390 (1955).

Although neither the director of liquor control nor the board of liquor control nor the department of liquor control had authority to prosecute an appeal from a judgment of the common pleas court with respect to the issuance or renewal of liquor permits, at the time such an appeal was taken, nevertheless, where such appeal was prosecuted by the board of liquor control and no objection was raised to the prosecution of such appeal in the court of appeals, and the appeal was heard and judgment was rendered by the court of appeals, such judgment was valid and cannot thereafter be set aside or vacated on the ground of lack of jurisdiction of the court of appeals: Corn v. Board of Liquor Control, 160 Ohio St. 9, 50 Ohio Op. 479, 113 N.E.2d 360 (1953); Mantho v. Bd. of Liquor Control, 162 Ohio St. 37, 54 Ohio Op. 1, 120 N.E.2d 730 (1954).

Appealability

The state employee relations board's determination to dismiss a charge of unfair labor practice for lack of probable cause is not a quasi-judicial adjudication and thus not reviewable under RC Chapter 119. and RC § 4117.02(M): Ohio Assoc. of Public School Employees v. Dayton City School Dist. Bd. of Educ., No. 12560 1991 Ohio App. LEXIS 3300 (2nd Dist. 1991).

Before an appeal can successfully be brought under RC Chapter 119., the proceedings of the administrative agency must have been quasi-judicial in nature: Ohio Assn. of Pub. School Emp., AFSCME, AFL-CIO v. Lorain Cty. Bd. of Mental Retardation & Dev. Disabilities, 72 Ohio App. 3d 74, 593 N.E.2d 452 (1991).

The act of the State Board of Education disapproving a transfer of territory request pursuant to RC § 3311.06 is a quasi-judicial act and, as such, is appealable under RC § 119.12, where the affected parties are provided with notice, a hearing, and the opportunity to present evidence pursuant to OAC 3301-89 (Bd. of Edn. of Marion v. Bd. of Edn. of Elgin :1981], 66 OS2d 152, 20 OO3d 165, 420 NE2d 990, syllabus, distinguished and limited.): Union Title Co. v. State Bd. of Edn., 51 Ohio St. 3d 189, 555 N.E.2d 931 (1990).

An order of the State Employment Relations Board must comply with RC § 2505.02 to be appealable: Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio, 46 Ohio St. 3d 147, 545 N.E.2d 1260 (1989).

An appeal may be taken to the court of common pleas pursuant to RC § 119.12 from an order of the State Board of Education resulting from a hearing or adjudication pursuant to a request for transfer of territory pursuant to RC § 3311.24: Rossford Exempted Village School Dist. v. State Bd. of Edn., 45 Ohio St. 3d 356, 544 N.E.2d 651 (1989).

The fact that there was no hearing held prior to the issuance of an adjudication order nor request by the person adversely affected by the order does not change the fact that the order is an adjudication order, or deprive the common pleas court of jurisdiction to determine such an adjudication order: Liberty Bell, Inc. v. Ohio Dept. of Transp., 34 Ohio App. 3d 267, 518 N.E.2d 32 (1986).

Revised Code § 119.12 does not confer a remedy of appeal from a decision of the school employees retirement board denying an application for disability retirement: Fair v. School Employees Retire. System, 44 Ohio App. 2d 115, 73 Ohio Op. 2d 101, 335 N.E.2d 868 (1975).

An order of the state personnel board of review issued on appeal from a final decision of an appointing authority relative to layoff is not appealable to the court of common pleas of the county in which the employee resides, under RC § 143.27 [now RC § 124.34], but is appealable exclusively to the court of common pleas of Franklin county pursuant to the provisions of RC § 119.12: In re Zeigler, 1 Ohio App. 2d 336, 30 Ohio Op. 2d 344, 204 N.E.2d 692 (1965).

An order of the state personnel board of review classifying employees in the attorney general's office is appealable, pursuant to the provisions of RC Chapter 119. and RC § 143.01.1 [now RC § 124.02]: Graul v. Board of Review, 117 Ohio App. 108, 23 Ohio Op. 2d 216 (1962), 191 N.E.2d 188.

A determination made by the commissioners of the sinking fund pursuant to OConst art VIII, § 2j, concerning an applicant's eligibility for compensation from the Vietnam conflict compensation fund, is not appealable pursuant to RC § 119.12: OAG No. 75-027 (1975).

- Final order

A determination by the State Employment Relations Board that a strike is not authorized is a final adjudication order which may be appealed by a proper party to the Court of Common Pleas of Franklin County under RC § 119.12: Groveport-Madison Local Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 62 Ohio St. 3d 501, 584 N.E.2d 700 (1992).

A SERB order finding the Ohio Historical Society to be a public employer is not a final appealable order, since it does not determine the action but only establishes a preliminary matter: Ohio Historical Society v. State Emp. Relations Bd., 48 Ohio St. 3d 45, 549 N.E.2d 157 (1990).

The order of the State Employment Relations Board dismissing an unfair labor practice charge, which order is not made pursuant to a quasi-judicial proceeding, is not a final order within RC §§ 2505.02, 4117.13(D) or 119.12: Ohio Assn. of Pub. School Emp. v. Cleveland Bd. of Edn., 37 Ohio App. 3d 126, 524 N.E.2d 532 (1987).

A "direction" by the State Employment Relations Board to hold a "re-run election" is a final appealable "adjudication order" and may be appealed to the Court of Common Pleas of Franklin County pursuant to RC § 119.12: Staples v. Ohio Civ. Serv. Emp. Assn.merican Fed. of State, Cty. & Mun. Emp. Local 11, AFL-CIO, 32 Ohio App. 3d 9, 513 N.E.2d 821 (1986).

Where the industrial relations department makes a determination without a hearing under RC § 4115.13 that an employer has paid less than the prevailing wage, creating a right to sue under RC § 4115.10, such determination is not a final adjudication subject to appeal: State ex rel. Harris v. Williams, 18 Ohio St. 3d 198, 18 Ohio B. 263, 480 N.E.2d 471 (1985).

A letter from an attorney-examiner indicating that the need for a hearing requested pursuant to RC § 3901.22(A) "is deemed moot" does not constitute a final order of an agency issued pursuant to an adjudication as required by RC § 119.12 and as defined in RC § 119.01: Ohio Academy of Trial Lawyers v. Dept. of Ins., 4 Ohio St. 3d 201, 4 Ohio B. 519, 448 N.E.2d 141 (1983).

The judgment of a court of common pleas dismissing a case or an appeal to that court for lack of jurisdiction is a final appealable order: Tiffin v. Bd. of Review, 3 Ohio App. 3d 467, 3 Ohio B. 548, 446 N.E.2d 207 (1982).

Where the board of liquor control, following a hearing at which permittee's preliminary motions are overruled, finds "the permittee in violation of charges set forth" and by subsequent order suspends permittee's license and recites the number of days for which such license is suspended, such findings of a "violation of charges" lacks the finality necessary pursuant to the provisions of RC § 119.12 and is not subject to appeal. In such instance, the board retains jurisdiction to continue hearings, and such subsequent order only provides the necessary basis for an appeal: Lakis v. Board of Liquor Control, 120 Ohio App. 163, 28 Ohio Op. 2d 423, 201 N.E.2d 605 (1963).

A decision of the state personnel board of review affirming an order of an appointing authority "laying off" an employee in the classified service of the state is a final appealable order, and, pursuant to the provisions of RC Chapter 119., such employee may appeal therefrom to the court of common pleas of Franklin county: State ex rel. Kendrick v. Masheter, 120 Ohio App. 168, 28 Ohio Op. 2d 426, 201 N.E.2d 707 (1963).

The overruling by the board of liquor control of a motion to make a departmental order definite and certain is not a final order within the provisions of RC § 119.12 and is not appealable: Roxy Musical Bar, Inc. v. Board of Liquor Control, 1 Ohio App. 2d 480, 30 Ohio Op. 2d 461, 205 N.E.2d 118 (1963).

There is no provision whereby the state medical board is empowered to reconsider an application seeking the reinstatement of a license after an order revoking a license has become final either on appeal or by reason of the failure of the licensee to appeal as provided by RC § 119.12: Welsh v. Ohio State Medical Board, 111 Ohio App. 79, 12 Ohio Op. 2d 267, 165 N.E.2d 658 (1960).

Applicability

Disciplinary orders issued by the self-insuring employers evaluation board pursuant to RC § 4123.35.2(C) are not subject to judicial review under RC § 119.12 of the administrative procedure act: Baltimore Ravens, Inc. v. Self-Insuring Emp. Evaluation Bd., 94 Ohio St. 3d 449, 764 N.E.2d 418 (2002).

Orders of the Administrator of the Bureau of Workers' Compensation, issued pursuant to RC § 4121.44(R), are not subject to judicial review under the Administrative Procedure Act, RC Chapter 119.: In re Seltzer, 67 Ohio St. 3d 220, 616 N.E.2d 1108 (1993).

A decision by the State Employment Relations Board whether or not to issue a complaint in an unfair labor practice case is not reviewable pursuant to RC Chapter 119. or RC §§ 4117.02(M) and 4117.13(D): Ohio Assn. of Pub. School Emp., Chapter 643, AFSCME, AFL-CIO v. Dayton City School Dist. Bd. of Edn., 59 Ohio St. 3d 159, 571 N.E.2d 436 (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).

The jurisdiction and authority of the common pleas court in an appeal from an order of the Ohio aviation board is defined by RC § 119.12: Hershberger v. Ohio Aviation Board, 40 Ohio Op. 25, 55 Ohio L. Ab. 374, 88 N.E.2d 285 (CP 1949).

Attorney fees

A purported RC § 119.12 appeal seeking to challenge the validity of an administrative rule in the common pleas court, when no RC § 119.12 appeal lies, qualifies as a "civil action" under RC § 2335.39(B): Collyer v. Broadview Dev. Ctr., 81 Ohio App. 3d 445, 611 N.E.2d 390 (1992).

Authority of court

Where a court of common pleas enters a judgment in an appeal under RC § 119.12, it does not have jurisdiction to reopen and modify its judgment: Garfield Hts. City School Dist. v. State Bd. of Edn., 85 Ohio App. 3d 117, 619 N.E.2d 429 (1992).

Where the court of common pleas in an RC § 124.34 appeal determines in its appraisal of the evidence that there exist legally significant reasons for discrediting certain evidence relied upon by the administrative body and necessary to its determination, the court may reverse, vacate, or modify the administrative order. (Univ. of Cincinnati v. Conrad :1980], 63 OS2d 108 [17 OO3d 65], followed.): Davis v. State Personnel Bd. of Review, 20 Ohio App. 3d 150, 20 Ohio B. 184, 485 N.E.2d 250 (1984).

A court of common pleas has no power to grant a new trial from a judgment rendered in an administrative appeal, under RC § 119.12: Shady Acres Nursing Home v. Board of Building Appeals, 50 Ohio App. 2d 391, 4 Ohio Op. 3d 393, 364 N.E.2d 44 (1976).

A rule of the common pleas court, authorizing the dismissal of an appeal for want of prosecution upon failure of the appellant to file his brief or his demand for a transcript of the record, is invalid insofar as it applies to an appeal from an order of an agency under the provisions of RC § 119.12: Grecian Gardens, Inc. v. Board of Liquor Control, 2 Ohio App. 2d 112, 31 Ohio Op. 2d 168, 206 N.E.2d 587 (1964).

Where the court of common pleas, pursuant to RC § 119.12, considers the whole record and evidence before it and determines that an order of the board of liquor control is supported by reliable, probative and substantial evidence, such court has no authority to modify a penalty imposed by the board: Evans v. Board of Liquor Control, 112 Ohio App. 264, 16 Ohio Op. 2d 167, 84 Ohio L. Ab. 597, 172 N.E.2d 336 (1960).

The common pleas court, on an appeal taken under RC § 119.12, from an order of the state board of real estate examiners revoking the license of a real estate broker for misconduct, may, where it finds that "the penalty imposed is unduly extreme and harsh," modify the order of the board and impose a lesser penalty: Jenkins v. Board of Real Estate Examiners, 106 Ohio App. 391, 7 Ohio Op. 2d 154, 152 N.E.2d 282 (1958).

The Ohio state racing commission is an administrative agency, possessing certain quasi-judicial powers, whose orders are not only subject to appeal under RC § 119.12, but the court thereunder may grant a suspension of such order, fix its terms and upon final determination may reverse, vacate or modify the order or make such other ruling as is supported by the evidence and the law and since an adequate remedy at law is provided thereby a writ of prohibition will not issue to restrain regular proceedings of such agency: Green v. Ohio State Racing Comm., 70 Ohio L. Ab. 485, 128 N.E.2d 762 (App 1954).

The word, "appeal," as used in this section, means the proceedings whereby a court reviews the action or decision of an administrative agency and affirms, reverses, vacates or modifies an order of the agency complained of in the appeal. The court may not substitute its judgment for that of the agency but is confined to determining the rights of the parties in accordance with the statutes and other law applicable: Farrand v. State Medical Board, 151 Ohio St. 222, 39 Ohio Op. 41, 85 N.E.2d 113 (1949).

Authority of court of appeals

The jurisdiction of the court of appeals, in an appeal by an administrative agency from a judgment of the common pleas court on appeal from an order of such agency, is limited and controlled by the provisions of RC § 119.12, a part of the administrative procedure act: In re Topper, 109 Ohio App. 289, 11 Ohio Op. 2d 49, 165 N.E.2d 19 (1959).

On appeal from a judgment of the court of common pleas entered on appeal from an order of the state board of real estate examiners and under authority of RC § 119.12, providing for appeal to that court by a party adversely affected by an order of any agency denying the issuance, or renewal of a license or revoking or suspending a license, the court of appeals has jurisdiction to reverse, vacate or modify the judgment, and where in such a case, the court of appeals is of the opinion that a penalty of revocation of a real estate salesman's license is entirely too harsh and severe under all the facts and circumstances shown by the record, it may reverse a judgment affirming the order revoking the license and modify the judgment to a suspension for a specified time, fixed by the court: Carpenter v. Sinclair, 106 Ohio App. 211, 6 Ohio Op. 2d 461, 149 N.E.2d 150 (1958).

The court of appeals does not have jurisdiction to hear an appeal filed by an administrative agency pursuant to RC § 119.12, where the question presented is limited to a review of the correctness of the judgment of the court of common pleas holding that the order of the administrative agency is not supported by reliable, probative and substantial evidence: Mangold v. Board of Liquor Control, 77 Ohio L. Ab. 457, 150 N.E.2d 461 (App 1957).

Award of fees

The only elections commission action appealable under RC § 119.12 is the actual imposition of a fine under RC § 3517.15(B)(1). A refusal to award attorney fees to a prevailing party is not appealable: State ex rel. Citizens for Van Meter v. Ohio Elections Comm., 78 Ohio App. 3d 289, 604 N.E.2d 775 (1992).

Revised Code § 2335.39 contemplates an award of fees to a prevailing eligible party who appeals on administrative order to the court of common pleas. The state has a right of appeal from an award of fees: Holden v. Ohio Bur. of Motor Vehicles, 67 Ohio App. 3d 531, 587 N.E.2d 880 (1990).

With respect to the denial of a motion by a prevailing eligible party under RC § 2335.39 for an award of attorney fees in an appeal of an adjudication order of an agency pursuant to RC § 119.12, the substantial justification language of RC § 2335.39(B)(2) requires the state to 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. "Substantially probable" in this context requires greater proof than a showing of probable cause; the state, to meet the substantial justification standard, must demonstrate that it had sufficient material and essential evidence in support of all of the necessary elements of the offense charged, and that based on that evidence it was reasonable to believe that it was more likely than not (i.e., substantially probable), and not just possible, that reasonable minds could make a finding of legal violation by a preponderance of that evidence: State Bd. of Pharmacy v. Weinstein, 33 Ohio Misc. 2d 25, 514 N.E.2d 1143 (CP 1987).

Certification of record

Registrar's failure to comply with RC § 119.12 by submitting to the court the record of administrative proceedings established plaintiff's right to default judgment: Henretta v. Caltrider, No. 99-P-0126 2001 Ohio App. LEXIS 2960 (11th Dist. 2001).

By excluding procedural documents from the certified record, the commission denied the trial court the ability to determine whether proper procedures were followed: Royer v. Ohio Real Estate Comm., 131 Ohio App. 3d 265, 722 N.E.2d 172 (1999).

A finding for appellant pursuant to RC § 119.12 was not mandated since the record certified by the Ohio medical board's secretary constituted the complete official record; even if appellant's counsel's remarks should have been part of the official record, appellant suffered no prejudice in such omission, since appellant's arguments and objections to the board proceedings were preserved on appeal: Goldman v. State Med. Bd. of Ohio, No. 98AP-238 1998 Ohio App. LEXIS 4918 (10th Dist. 1998).

A copy of an exhibit may be used to complete the record certified by a board for appeal as long as no party is prejudiced: Vogelsong v. Ohio State Bd. of Pharmacy, 123 Ohio App. 3d 260, 704 N.E.2d 28 (1997).

Revised Code § 119.12 does not require judgment against an agency for failure to certify the record where the record was inadvertently submitted without the proper case number or submitted in a consolidated action: State ex rel. Williams Ford Sales, Inc. v. Connor, 72 Ohio St. 3d 111, 647 N.E.2d 804 (1995).

When an administrative agency certifies a record to the court of common pleas, and it appears that the decision was reached without consideration of evidence submitted to it but not included in the record, and that evidence may reasonably affect the decision of the agency, the court must remand the matter to the agency to permit it to carry out its role as the finder of fact: Ray v. Ohio Unemp. Comp. Bd. of Rev., 85 Ohio App. 3d 103, 619 N.E.2d 106 (1993).

Where the agency inadvertently fails to certify the entire record within 30 days, the court should allow the agency an opportunity to supplement the record before granting judgment to the appellant on the basis of failure to certify the record: In the Matter of Lauer, No. 1-89-44 1990 Ohio App. LEXIS 4779 (3rd Dist. 1990).

The failure by an agency to certify its record timely in compliance with RC § 119.12 places a mandatory duty upon the court, upon motion, to enter a finding in favor of the party adversely affected: Queen City Terminals, Inc. v. Cincinnati, 67 Ohio App. 3d 734, 588 N.E.2d 870 (1990).

Court properly entered judgment for the appellee where the state board of psychology failed to certify the minutes of its meeting and such minutes were essential to determining the merits of appellee's appeal: Bergdahl v. Ohio State Bd. of Psychology, 70 Ohio App. 3d 488, 591 N.E.2d 399 (1990).

The total failure by an agency to timely certify its record in compliance with RC § 119.12 places a mandatory duty upon the court of common pleas, upon motion, to enter a finding in favor of the party adversely affected: Geroc v. Ohio Veterinary Medical Bd., 37 Ohio App. 3d 192, 525 N.E.2d 501 (1987).

In an administrative appeal pursuant to RC § 119.12, where the agency takes no action to certify the record to the court within the time limits of RC § 119.12, the court shall enter a finding in favor of the appellant, even in the absence of a showing of prejudice to the appellant resulting from the agency's failure: In re Troiano, 33 Ohio App. 3d 316, 515 N.E.2d 985 (1986).

Under RC § 119.12 where a record has been timely submitted to a court of common pleas, albeit with an unintentionally erroneous or omitted case number, in the absence of prejudice to the party appealing the administrative action, such submission shall not constitute a failure of certification: Arlow v. Ohio Rehab. Serv. Comm., 24 Ohio St. 3d 153, 24 Ohio B. 371, 493 N.E.2d 977 (1986).

In an appeal to common pleas court under RC § 119.12, a "finding in favor of the party adversely affected" for failure of the agency to certify a complete record within the time allowed constitutes a finding on procedural grounds and is not a disposition of the merits of the appeal: Jenneman v. Ohio State Bd. of Chiropractic Examiners, 21 Ohio App. 3d 225, 21 Ohio B. 241, 486 N.E.2d 1272 (1985).

Under RC § 119.12, if an administrative agency, in an appeal to common pleas court, fails to file any record whatsoever within the thirty-day period, the common pleas court must, on motion, enter a finding in favor of the party adversely affected. If, on the other hand, the administrative record is timely filed but not complete because parts of it are missing, then the appellant must show that he or she was prejudiced by the omission: Jenneman v. Ohio State Bd. of Chiropractic Examiners, 21 Ohio App. 3d 225, 21 Ohio B. 241, 486 N.E.2d 1272 (1985).

Where an appeal from an order of an administrative agency has been duly made to a court of common pleas pursuant to RC § 119.12 and the agency has not certified a complete record of the proceedings to the court, the court must, upon motion of the appellant, enter a finding in favor of the appellant and render a judgment for the appellant: Luther v. Bur. of Emp. Serv., 14 Ohio App. 3d 267, 14 Ohio B. 296, 470 N.E.2d 919 (1984).

A trial court errs when it grants an administrative agency's motion for relief from judgment when the agency failed to comply with the mandatory requirements of preparing and certifying to a court of common pleas a complete record of the proceedings from an order of an administrative agency: Luther v. Bur. of Emp.Serv., 14 Ohio App. 3d 267, 14 Ohio B. 296, 470 N.E.2d 919 (1984).

The failure of the superintendent of banks to certify the record of administrative proceedings within thirty days after receipt of a notice of appeal to the court of common pleas does not require the court to render judgment for the adversely affected party unless the party demonstrates he was actually prejudiced: Genoa Banking Co. v. Mills, 9 Ohio App. 3d 237, 9 Ohio B. 410, 459 N.E.2d 584 (1983).

To demonstrate actual prejudice, the adversely affected party must show that the superintendent's failure to certify the record within thirty days prejudiced the party's presentation of his case or that the trial court made some prejudicial error as a direct result of the late certification: Genoa Banking Co. v. Mills, 9 Ohio App. 3d 237, 9 Ohio B. 410, 459 N.E.2d 584 (1983).

The Ohio Civil Rights Commission is not subject to the 30-day (formerly 20-day) record certification requirement of RC § 119.12: Plumbers & Steamfitters v. Ohio Civil Rights Comm., 66 Ohio St. 2d 192, 20 Ohio Op. 3d 200, 421 N.E.2d 128 (1981).

A classified employee who is reinstated on the basis that the city civil service commission failed to file its record with the court of common pleas within thirty days is entitled to a back pay award and to interest on the award. The employee is not entitled to credit for vacation and sick leave he would have earned: State ex rel. Crockett v. Robinson, 67 Ohio St. 2d 363, 21 Ohio Op. 3d 228, 423 N.E.2d 1099 (1981).

When the only copy of the adjudication order contained in the record of proceedings of an administrative board certified to a common pleas court in connection with an appeal to that court by a party adversely affected by such order is itself contained in an unsigned copy of a letter addressed to such person, certified in that copy to be such, the requirement of RC § 119.12, that the board prepare and certify a complete record of the proceedings in the case have not been complied with, and, upon motion, the common pleas court is required to enter a finding in favor of the party adversely affected by the adjudication order: Young v. Board of Review, 9 Ohio App. 2d 25, 38 Ohio Op. 2d 36, 222 N.E.2d 789 (1967).

Where no record of the hearing before the state board of landscape architect examiners was made and an applicant for a certificate filed his notice of an appeal but no transcript or record of any kind was filed in the court of common pleas as required by the mandatory provisions of RC § 119.12, the decision of the agency must be reversed upon motion of the appellant: Fahrenbruck v. State Board of Landscape Architect Examiners, 13 Ohio Misc. 39, 41 Ohio Op. 2d 58, 230 N.E.2d 691 (CP 1967).

Revised Code § 119.12 stating that "after receipt of notice of appeal from an order in any case... the agency shall prepare and certify to the court a complete record of the proceedings in the case," does not require that all members of a multimember agency, such as the racing commission, certify such record: McKenzie v. Ohio State Racing Comm., 5 Ohio St. 2d 229, 34 Ohio Op. 2d 463, 215 N.E.2d 397 (1966).

"A... record of the proceedings in the case" before an administrative agency may be "complete" within the meaning of RC § 119.12, even though it contains a certified copy of and not the original of the final order of the agency, which copy is taken from the original minutes of the meeting of the agency where such final order is recorded: McKenzie v. Ohio State Racing Comm., 5 Ohio St. 2d 229, 34 Ohio Op. 2d 463, 215 N.E.2d 397 (1966).

There is a sufficient certification by "the agency" under RC § 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., 5 Ohio St. 2d 229, 34 Ohio Op. 2d 463, 215 N.E.2d 397 (1966).

In an appeal from a decision of the board of liquor control to the common pleas court, the requirement of RC § 119.12 that "the agency shall prepare and certify to the court a complete record of the proceedings in the case," is satisfied by a certification of a complete record of the proceedings by the clerk of the board of liquor control: Tisone v. Board of Liquor Control, 1 Ohio App. 2d 126, 30 Ohio Op. 2d 153, 204 N.E.2d 82 (1964).

In an appeal from a decision of the Ohio real estate commission, to the common pleas court, the transmittal of a record filed in the common pleas court and consisting of a group of detached exhibits, none of which bears the filing stamp of the commission, 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 commission, is not a certification of a complete record of the proceedings in the case, as required by RC § 119.12: Board of Real Estate Examiners v. Peth, 4 Ohio App. 2d 413, 33 Ohio Op. 2d 501, 213 N.E.2d 188 (1964).

Where an appeal from an order of an administrative agency has been duly made to the common pleas court pursuant to RC § 119.12 and the agency has not prepared and certified to the court a complete record of the proceedings within twenty [now thirty] days after receipt of the notice of appeal and the court has granted the agency no additional time to do so, the court must, upon motion of the appellant, enter a finding in favor of the appellant and render a judgment for the appellant: Matash v. State, 177 Ohio St. 55, 29 Ohio Op. 2d 153, 202 N.E.2d 305 (1964).

Pursuant to RC § 119.12, that, within twenty [now thirty] days after receipt of notice of appeal in an applicable case, the state personnel board of review "shall prepare and certify to the court a complete record of the proceedings in the case," an appeal from such board will be dismissed where, in the papers forwarded by such board, there is no copy of any notice of appeal, no certificate of statement that all the original papers were forwarded, and no certificate authenticating the transcript of record of testimony: Minarik v. Board of Review, 118 Ohio App. 71, 24 Ohio Op. 2d 394, 193 N.E.2d 396 (1962).

The Ohio real estate commission, formerly denominated state board of real estate examiners, on an appeal from an order adversely affecting a licensee to the common pleas court is required by RC § 119.12 to prepare and certify to such court a complete record of the proceedings in the case by affixing the signatures thereto of the three commissioners of the Ohio real estate commission: Ohio Real Estate Comm. v. Evans, 119 Ohio App. 1, 26 Ohio Op. 2d 92, 196 N.E.2d 338 (1962).

In an appeal to the common pleas court from an order of the veterinary medical board suspending a license to practice veterinary medicine, where the board fails to prepare and certify to the court a complete record of the proceedings in the case within ten days [now fifteen], as required by RC § 119.12, the sustaining of the appellant's motion for judgment in his favor is not erroneous: Stephan v. State Veterinary Medical Board, 113 Ohio App. 538, 18 Ohio Op. 2d 177, 173 N.E.2d 389 (1960).

Since there is no provision in the administrative procedure act providing for the method of certification of records by administrative agencies to reviewing courts as required by RC § 119.12 such certification must be governed by the provisions of the appellate procedure act (RC § 2321.07): Allesandro v. Board of Liquor Control, 72 Ohio L. Ab. 528, 135 N.E.2d 795 (App 1955).

- Omissions

The mere omission of an item from the certified record of the proceedings of an administrative agency upon the appeal of one of its decisions does not require a reversal of the order pursuant to RC § 119.12, where that which has been omitted in no way prejudices the appellant in the presentation of his appeal: Checker Realty Co. v. Ohio Real Estate Comm., 41 Ohio App. 2d 37, 70 Ohio Op. 2d 46, 322 N.E.2d 139 (1974); Alban v. Ohio Real Estate Comm., 2 Ohio App. 3d 430, 2 Ohio B. 524, 442 N.E.2d 771 (1981).

An agency's omission of items from the certified record of an appealed administrative proceeding does not require a finding for the appellant, pursuant to RC § 119.12, when the omissions in no way prejudice him in the presentation of his appeal: Lorms v. State, 48 Ohio St. 2d 153, 2 Ohio Op. 3d 336, 357 N.E.2d 1067 (1976).

There is no provision in RC § 119.12, which authorizes either the common pleas court or the court of appeals to order a diminution of the record by an administrative agency to correct an omission or other deficiency in the record as certified, where the time within which to certify has expired: Brockmeyer v. Ohio Real Estate Comm., 5 Ohio App. 2d 161, 34 Ohio Op. 2d 301, 214 N.E.2d 265 (1966).

Charter provisions

A municipal charter which authorizes "an appeal to a court of law" if such appeal is made within thirty days of the date of the municipal civil service commission decision, cannot confer jurisdiction on the court of common pleas to hear an appeal not filed within the time limits prescribed by RC § 119.12: Silver v. Olmsted Falls, 20 Ohio App. 3d 361, 20 Ohio B. 466, 486 N.E.2d 852 (1984).

Civil service

Revised Code § 124.34 applies to cases of removal or reduction in pay for disciplinary reasons, but not to a non-disciplinary reduction in position. It does not preclude appeals pursuant to RC § 119.12: Hertzfeld v. Med. College of Ohio at Toledo, 145 Ohio App. 3d 616, 763 N.E.2d 1212 (2001).

A development specialist administrator is a "professional" or "technical" employee pursuant to RC § 122.11 where she possesses and utilizes skills that are predominantly mental or intellectual, and are the result of professed attainments in special knowledge as distinguished from mere skill: Suso v. Ohio Dept. of Dev., 93 Ohio App. 3d 493, 639 N.E.2d 117 (1993).

A common pleas court has no authority under RC § 119.12 to award back pay to a public employee whose period of suspension is reduced upon appeal from an order of the municipal civil service commission: Cook v. Maxwell, 57 Ohio App. 3d 131, 567 N.E.2d 292 (1989).

The State Employment Relations Board is an "agency" whose adjudications are made subject to judicial review pursuant to RC § 119.12, specifically by RC § 4117.02(M): South Community, Inc. v. State Emp. Relations Bd., 38 Ohio St. 3d 224, 527 N.E.2d 864 (1988).

The procedure for appeal from a decision of the municipal civil service commission to the court of common pleas is governed by RC Chapter 2505., the statutes governing general procedure on appeal: Jacobs v. Marion Civil Service Comm., 27 Ohio App. 3d 194, 27 Ohio B. 233, 500 N.E.2d 321 (1985).

Where a civil service employee who seeks to be reclassified to a higher classification meets all of the requirements of the lower classification but substantially performs additional job duties required only by the higher classification, he may be classified in the higher classification and a court of appeals may not reverse a finding designating the employee to the higher position unless there is a finding that the lower court abused its discretion: Hartzog v. Ohio State Univ., 27 Ohio App. 3d 214, 27 Ohio B. 254, 500 N.E.2d 362 (1985).

Mandamus is a proper remedy for reinstatement of members of the classified civil service who have tendered their resignations in settlement upon certain terms and conditions which the appointing authority is found to have violated: State ex rel. Carter v. Cleveland Bd. of Edn., 17 Ohio St. 3d 105, 17 Ohio B. 224, 477 N.E.2d 1134 (1985).

A municipal civil service commission is not an "agency" for purposes of an appeal to the court of common pleas under the provisions of RC § 119.12: Garfield Hts. Bd. of Edn. v. Gillihan, 17 Ohio App. 3d 86, 17 Ohio B. 147, 477 N.E.2d 681 (1984).

Although appellant could have properly claimed on appeal to the Supreme Court that his civil service action was considered by the lower court of the wrong county, he may not simply ignore such judgments and bring an action for back pay in the correct court: State ex rel. Witsamen v. Maumee Valley Guidance Center, Inc., 6 Ohio St. 3d 26, 6 Ohio B. 22, 450 N.E.2d 1180 (1983).

Appeals by laid off classified employees in the "state service" from orders of the State Personnel Board of Review are to be made to the Court of Common Pleas of Franklin County, and appeals by laid off classified employees of a municipal civil service commission are to be made to the court of common pleas of the county in which the employee resides: Ludwig v. Willoughby-Eastlake Bd. of Edn., 10 Ohio App. 3d 229, 10 Ohio B. 324, 461 N.E.2d 919 (1983).

A municipal civil service employee removed from his employment for disciplinary reasons has the right to appeal an adverse decision of the civil service commission to the court of common pleas under the authority of either RC § 119.12 or 2506.01: Beare v. Eaton, 9 Ohio App. 3d 142, 9 Ohio B. 207, 458 N.E.2d 895 (1983).

There is no express statutory right of appeal conferred upon the appointing authority of a municipal department from a decision of a municipal civil service commission reinstating a classified employee terminated for "lack of funds": Poole v. Maloney, 9 Ohio App. 3d 198, 9 Ohio B. 309, 459 N.E.2d 247 (1983).

Involuntary reductions in pay must comply with RC § 124.34. This statute provides that only reductions in pay for disciplinary reasons can be appealed, if at all, to the Court of Common Pleas in the county of the employee's residence. RC § 119.12 does not allow for an appeal instead of or in addition to the appeal disallowed by RC § 124.34: Harris v. Lewis, 69 Ohio St. 2d 577, 23 Ohio Op. 3d 485, 433 N.E.2d 223 (1982).

Where there is adequate evidence that a classified employee's failure to perform the duties required for a job is caused by a physical or mental disability, the appointing agency does not have the right to appeal a decision of the state personnel board of review to a court of common pleas. Removal on the basis of a disability is not a disciplinary action: Ohio Dept. of Taxation v. Ferguson, 22 Ohio Op. 3d 120 (App 1981).

There is no right of appeal from an order of a municipal civil service commission under RC § 119.12: Lewis v. Parkinson, 1 Ohio App. 3d 22, 1 Ohio B. 23, 437 N.E.2d 1215 (1981).

An order of the State Personnel Board of Review issued on appeal from a final decision of an appointing authority relative to job abolishments is appealable, pursuant to the provisions of RC § 119.12: Pitts v. Dept. of Transportation, 67 Ohio St. 2d 378, 21 Ohio Op. 3d 238, 423 N.E.2d 1105 (1981).

A state classified civil service employee may appeal his removal only in the courts of his own county, not in Franklin County: Davis v. Bd. of Review, 64 Ohio St. 2d 102, 18 Ohio Op. 3d 345, 413 N.E.2d 816 (1980).

A party adversely affected by an order of the State Personnel Board of Review may appeal the order of the board to the court of common pleas of the county in which the affected employee resides, and may, in that court, raise the issue of the board's jurisdiction to issue the order: In re Termination of Employment, 40 Ohio St. 2d 107, 69 Ohio Op. 2d 512, 321 N.E.2d 603 (1974).

An order of the state personnel board of review issued on appeal from a final decision of an appointing authority relative to layoff is appealable to the court of common pleas of Franklin county pursuant to the provisions of RC § 119.12: State ex rel. Kendrick v. Masheter, 176 Ohio St. 232, 27 Ohio Op. 2d 128, 199 N.E.2d 13 (1964).

An appeal to the common pleas court by a member of the police department of a city from an order of the municipal civil service commission is, under a specific provision of RC § 143.27 [now RC § 124.34] as contrasted with RC § 119.12, an appeal on questions of law and fact; in such a case where the appellant proceeds in the common pleas court on the record made before the commission he is presumed to have waived his right to a trial de novo: Fugate v. City of Columbus, 4 Ohio App. 2d 147, 33 Ohio Op. 2d 200, 211 N.E.2d 885 (1963).

A person who becomes chief of police of a city without taking the civil service examination required by law is not in the classified service, is not entitled to the benefits of the civil service law, and has no right of appeal to the municipal civil service commission from an order of removal by the mayor of the city or to the common pleas court from a decision of the municipal civil service commission affirming the mayor's removal order: In re Taylor, 172 Ohio St. 394, 16 Ohio Op. 2d 248, 176 N.E.2d 214 (1961).

Construction

The statute, RC § 119.12, in order to give meaning to all its provisions, must be interpreted as if the word, "licensee," is interchangeable with the words, "such party," where it relates to place of business or residence: Welsh v. Ohio State Medical Board, 168 Ohio St. 520, 522, 7 Ohio Op. 2d 389, 156 N.E.2d 740 (1959).

Criminal proceedings

Denial of stay of order

Driver's license

A municipal court has jurisdiction in a declaratory judgment action contesting the constitutionality of RC § 4507.16.9, since such action is not an appeal of the driver's license suspension governed by RC § 119.12: Wright v. Ohio Bur. of Motor Vehicles, 67 Ohio Misc. 2d 29, 644 N.E.2d 743 (MC 1994).

The exceptions, granted by RC § 4509.19, to the security and suspension requirements of RC § 4509.12 do not exempt a motorist claiming such from utilizing the administrative procedures of RC Chapter 119. before an appeal is taken to a court of common pleas: Babcock v. Bureau of Motor Vehicles, 46 Ohio App. 2d 34, 75 Ohio Op. 2d 32, 345 N.E.2d 625 (1975).

Where a party receives an adverse ruling in a trial court on a previous determination by the bureau of motor vehicles that his license be suspended, it is not error for the court to refuse to consider a subsequent request for an injunction prohibiting such suspension, and a declaratory judgment with regard to the merits of the suspension: Tootle v. Wood, 40 Ohio App. 2d 576, 69 Ohio Op. 2d 522, 321 N.E.2d 623 (1974).

Due process

Where a licensee was charged with selling alcohol to an underage individual in violation of RC § 4301.69(A) and the licensee's counsel was an hour late for the revocation hearing, but offered no explanation for the delay, the licensee received all the due process that was required by RC §§ 4301.04(B), 4301.27, 4731.22; the trial court correctly found that the liquor commission's decision was supported by substantial evidence in accordance with RC § 119.12. Dave's Drive Thru, Inc. v. Ohio Liquor Control Comm'n, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 3998 (Aug. 26, 2003).

The administrative board's delay in processing a complaint did not violate due process: Riffe v. Ohio Real Estate Appraiser Bd., 130 Ohio App. 3d 46, 719 N.E.2d 587 (1998).

The court violated pharmacist's due process rights when it affirmed the state pharmacy board's indefinite suspension of pharmacist's identification card despite its correct finding that the board's order was callous, dilatory, and utterly unsupportable: Mowery v. Ohio State Bd. of Pharmacy, No. 96-G-2005 1997 Ohio App. LEXIS 4414 (11th Dist. 1997).

From a due process standpoint, something more than reliance on preliminary investigative reports must be shown by the state medical board before it may revoke a limited practitioner's license where the practitioner fails to respond to the notice of a hearing: Goldman v. State Med. Bd. of Ohio, 110 Ohio App. 3d 124, 673 N.E.2d 677 (1996).

Due process is violated where a newly appointed member of an administrative board votes on a claim without having in any manner considered the evidence presented at the hearing: State ex rel. Ormet Corp. v. Indus. Comm., 54 Ohio St. 3d 102, 561 N.E.2d 920 (1990).

Effect of other laws

Evidence

Denial of an insurance license application on the ground that it contained a misrepresentation was supported by reliable, probative, and substantial evidence in accordance with RC § 119.12; contrary to the applicant's claim, former RC § 3905.49(B)(1) did not require the applicant intentionally to make a misrepresentation. Piatko v. State, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 3580 (July 28, 2003).

Newly discovered evidence was in existence at the time of the administrative hearing but was incapable of discovery by due diligence; on appeal from an administrative decision, the trial court properly refused to admit evidence that was not new. Cvs/pharmacy # 3131 v. Ohio State Bd. of Pharm., - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 3439 (July 17, 2003).

Substantial, reliable, and probative evidence was presented in support of an emergency order to demolish a homeowner's garage, despite her contention that her home was within an historical district, where said garage had been destroyed by fire and only its shell remained, as such posed a substantial risk to the public's safety; thus, the trial court did not err in affirming the same. Smith v. City of Columbus, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 2944 (June 24, 2003).

Newly discovered evidence under RC § 119.12 is evidence that was in existence at the time of the administrative hearing. It is not newly created evidence: Golden Christian Academy v. Zelman, 144 Ohio App. 3d 513, 760 N.E.2d 889 (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).

The trial court's refusal to admit additional evidence was not an abuse of discretion. The Civil Rules concerning discovery do not apply to RC § 119.12: Baughman v. Dept. of Pub. Safety Motor Vehicle Salvage, 118 Ohio App. 3d 564, 693 N.E.2d 851 (1997).

Under RC § 119.12, a common pleas court may admit additional evidence only if it is newly discovered and could not have been discovered with reasonable diligence prior to the administrative hearing: N.R., Inc. v. Ohio Liquor Control Comm., 113 Ohio App. 3d 198, 680 N.E.2d 703 (1996).

The limitation on additional evidence under RC § 119.12 applies only where a hearing was available before the administrative agency. However, an administrative appeal is not the forum in which to collaterally attack an otherwise valid civil judgment: Hudson v. Brown, 75 Ohio Misc. 2d 4, 662 N.E.2d 99 (CP 1995).

Although some of the applicant's statements concerning her prior license suspension and restoration in West Virginia were technically inaccurate, there was no evidence of intent to mislead the medical board. While she could have aided in the presentation of her case by appearing at the various hearings, she was not required to do so: In re Wolfe, 82 Ohio App. 3d 675, 612 N.E.2d 1307 (1992).

The evidence required by RC § 119.12 can be defined as follows: (1) "reliable" evidence is dependable, that is, it can be confidently trusted, and there must be a reasonable probability that the evidence is true; (2) "probability" evidence is evidence that tends to prove the issue in question, it must be relevant in determining the issue; (3) "substantial" evidence is evidence with some weight, it must have importance and value: Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St. 3d 570, 589 N.E.2d 1303 (1992).

The trial court did not err by stating that it was "not free to engage in a redetermination of the evidence if there is reliable, substantial and probative evidence to support the board's conclusion": Asad v. Ohio State Med. Bd., 79 Ohio App. 3d 143, 606 N.E.2d 1064 (1992).

The very nature of the duties of a judge often require him to have knowledge of inadmissible evidence. Every time the judge makes a ruling determining evidence inadmissible, he has to know what the inadmissible evidence consists of, and if he is the fact finder, he must eliminate same from his consideration in determining the facts: Hawkins v. Marion Corr. Inst., 62 Ohio App. 3d 863, 577 N.E.2d 720 (1990).

When a common pleas court in its appraisal of the evidence determines that there exist legally sufficient reasons for discrediting certain evidence relied upon by the state personnel board of review and necessary to its determination, the court may reverse, vacate or modify the administrative order: Beeler v. Franklin Cty. Sheriff, 67 Ohio App. 3d 748, 588 N.E.2d 879 (1990).

The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of a hearing examiner at a later adversary hearing: Berezoski v. Ohio State Medical Bd., 48 Ohio App. 3d 231, 549 N.E.2d 183 (1988).

In an appeal to the court of common pleas, under RC § 119.12, from a denial of a nursing home license, the court is limited, generally, to the evidence presented at the administrative hearing. Evidence of events subsequent to the hearing, i.e., that appellant has made further efforts to correct building code violations, is not admissible as "newly discovered evidence": In re Lane Nursing Home, 5 Ohio Op. 3d 146 (CP 1976).

The existence of some reliable, probative, and substantial evidence (although disputed) adduced in support of a finding of an administrative agency is sufficient to support such finding: Lakis v. Department of Liquor Control, 1 Ohio Misc. 109, 30 Ohio Op. 2d 547, 205 N.E.2d 613 (CP 1964).

Where, on appeal by the board of liquor control from a decision of the court of common pleas reversing a ruling of the board suspending a liquor permit, it appears that the trial court found insufficient evidence of an element necessary to be proved, and only a question of fact is presented on such appeal, a motion to dismiss such appeal will be sustained: Swallow Bar, Inc. v. Board of Liquor Control, 111 Ohio App. 279, 14 Ohio Op. 2d 201, 170 N.E.2d 747 (1960).

Under the provisions of RC § 119.12 the court of common pleas may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency from which an appeal to such court is taken: In re Topper, 109 Ohio App. 289, 11 Ohio Op. 2d 49, 165 N.E.2d 19 (1959).

A motion in the appellate court for an order granting the right to admit additional evidence other than that shown by the record as certified to the appellate court by the board of liquor control, to meet evidence offered before the board, which evidence, it is alleged, did not concern the original charges and resulted in unfair surprise which appellant was not prepared to meet will be overruled where there is no showing of a demand before the board that appellant be given further opportunity to meet the evidence offered before the board and where a study of the record convinces the court that there is no basis for the admission of evidence claimed to be newly discovered: Chudde v. Board of Liquor Control, 66 Ohio L. Ab. 324, 117 N.E.2d 60 (CP 1953).

- Liquor control

- Substantial

Decision of the liquor control commission to revoke the licensee's liquor permits pursuant to R.C. § 4301.25(A)(1) because of the felony conviction of an alleged employee was not supported by substantial evidence as required under R.C. § 119.12; the record did not establish that the convicted felon was employed by the licensee at the time of the conviction, as the record did not contain the date of the convicted felon's termination. Waterloo, Inc. v. Liquor Control Comm'n, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 2988 (June 26, 2003).

Exhaustion of remedies

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).

Revised Code § 119.12 requires that an appellant first exhaust all of his administrative remedies on any hearings provided therein, before appeal can be perfected to the common pleas court; this includes an appeal from the Ohio bureau of motor vehicles under RC Chapter 4509. (Ohio financial responsibility act), suspending the appellant's driver's license and license plates: Sommerville v. State, 43 Ohio Misc. 42, 72 Ohio Op. 2d 336, 334 N.E.2d 552 (CP 1974).

Failure to file briefs

Dismissal of an appeal where briefs have not been filed violates RC § 119.12's requirement that the court examine the record to determine whether the order is supported by reliable, probative and substantial evidence: Red Hotz, Inc. v. Liquor Control Comm., No. 93AP-87 1993 Ohio App. LEXIS 4032 (10th Dist. 1993).

"File" construed

The term "file," as used in RC § 119.12, means actual receipt of the notice of appeal by the agency: Boomershine v. Bureau of Motor Vehicles, 39 Ohio Misc. 103, 68 Ohio Op. 2d 367, 315 N.E.2d 842 (CP 1973).

Findings

Findings, conclusions of court

When no factual determinations are made by the court of common pleas in an RC § 119.12 proceeding, Civ.R. 52 is not applicable: Mofu v. State Medical Bd., 21 Ohio App. 3d 182, 21 Ohio B. 194, 486 N.E.2d 1169 (1984).

Findings of hearing official

Forfeiture of property

Hearing by court

An appellant in an RC § 119.12 appeal to the court of common pleas is entitled to a hearing and that hearing is mandatory. However, the court may, in its discretion, limit the hearing to a review of the record, the acceptance of briefs, oral argument and newly discovered evidence: Geroc v. Ohio Veterinary Medical Bd., 37 Ohio App. 3d 192, 525 N.E.2d 501 (1987).

Where no evidence is to be adduced, a hearing can involve either an oral or a written presentation, or both. RC § 119.12 requires at a minimum a hearing at which written argument may be presented, although it also refers to oral argument: Gil Lieber Buick Oldsmobile, Inc. v. Motor Vehicle Dealers Bd., 16 Ohio App. 3d 124, 16 Ohio B. 131, 474 N.E.2d 691 (1984).

Revised Code § 119.12 does not require the court of common pleas to hear oral argument as part of the hearing: Ohio Motor Vehicle Dealers Bd. v. Central Cadillac Co., 14 Ohio St. 3d 64, 14 Ohio B. 456, 471 N.E.2d 488 (1984).

In an appeal from the order of an administrative agency to the common pleas court, the hearing contemplated by RC § 119.12 consists of a consideration of the record as certified to it by the agency, the briefs and oral arguments of counsel, and, if the court has granted a request for it, newly discovered evidence: City Products Corp. v. Board of Liquor Control, 106 Ohio App. 494, 7 Ohio Op. 2d 225, 153 N.E.2d 153 (1958).

The provision of RC § 119.12 for hearing in the court of common pleas on an appeal from an administrative agency, is mandatory; and the right to a hearing implies that the appellant is entitled to notice of the time at which the hearing will be held: Contris v. Board of Liquor Control, 105 Ohio App. 287, 6 Ohio Op. 2d 91, 152 N.E.2d 327 (1957).

Interpretation of administrative rules

Intervention

Neither RC § 119.12 nor CivR 24 confer a right to intervene in an administrative proceeding: Johnson's Island Prop. Owners' Assn. v. Ohio Dept. of Natural Resources, 103 Ohio Misc. 2d 52, 725 N.E.2d 374 (CP 2000).

Intoxicating liquors

"License" construed

Certification of a health care provider by ODH for compliance with federal Medicaid requirements constitutes a "license" for purposes of RC § 119.12; it is not an arrangement whereby a person, institution, or entity furnishes Medicaid services under a provider agreement with ODHS: Bayside Nursing Center v. Ohio Dept. of Health, 96 Ohio App. 3d 754, 645 N.E.2d 1314 (1994).

The approval of an application by a building and loan association to operate a branch office pursuant to RC § 1151.05 is not a licensing function within the provisions of the administrative procedure act (RC Chapter 119.): Home Sav. & Loan Assn. v. Boesch, 41 Ohio St. 2d 115, 70 Ohio Op. 2d 204, 322 N.E.2d 878 (1975).

Jurisdiction

Pursuant to RC § 119.12, a state employee was required to appeal the rejection of her appeal by the State Personnel Board of Review (SPBR) to a the court of common pleas of a particular county, and another court's reversal and remand of the order lacked jurisdiction; its judgment was vacated. Woodward v. Dept. of Mr/dd, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 4427 (Sept. 17, 2003).

Liquor control

Whether the provisions of RC Chapter 4303. preclude the Department of Liquor Control from issuing more than one liquor permit to separate applicants for the same location is a question of interpretation of state statutes, and rules and regulations of the Liquor Control Commission, and is within the perimeters of the appellate jurisdiction of the Court of Appeals pursuant to RC § 119.12: Painesville Raceway, Inc. v. Dept. of Liquor Control, 70 Ohio App. 2d 219, 24 Ohio Op. 3d 298, 436 N.E.2d 543 (1980).

The board of liquor control may appeal from a decision of a court of common pleas which interprets a regulation of such board and finds such regulation and the enactment thereof to be an abuse of discretion and invalid: Zarachowicz v. Board of Liquor Control, 117 Ohio App. 173, 23 Ohio Op. 2d 364, 191 N.E.2d 736 (1963).

Under RC § 119.12 in an appeal from an order of the liquor control commission, the hearing before the court of common pleas is not a true trial de novo but the issue before the court is whether or not the finding of the commission is supported by reliable, probative and substantial evidence: Liquor Control Comm. v. Bartolas, 10 Ohio Misc. 225, 39 Ohio Op. 2d 343, 225 N.E.2d 859 (CP 1963).

The mere allegation by the board of liquor control that the court of common pleas erred in its "interpretation and application of regulation 53" of the board, does not confer authority upon the board to prosecute an appeal under RC § 119.12, authorizing the board to prosecute an appeal from an adverse decision of the court of common pleas, on questions of law relating to the constitutionality, construction, or interpretation of statutes and rules and regulations of the agency, where the record does not support such conclusion but shows only a ruling based upon facts: Mogavero v. Board of Liquor Control, 82 Ohio L. Ab. 25, 163 N.E.2d 72 (App 1959).

Under RC § 119.12 the department of liquor control may appeal from a ruling of the court of common pleas, only on questions of law relating to the "constitutionality, construction or interpretation of statutes and rules and regulations of the" department, and is not authorized to appeal where the only error complained of is a ruling by the court of common pleas on the defense of entrapment: Gay v. Board of Liquor Control, 106 Ohio App. 59, 6 Ohio Op. 2d 313, 151 N.E.2d 686 (1958).

An appeal to the court of appeals from a judgment of the common pleas court in a cause appealed thereto from an order of the board of liquor control, as provided for by RC § 119.12, is not one of those classes of actions enumerated in RC § 2501.02 as being appealable on questions of law and fact, and, therefore, the appeal is limited to questions of law only: Arvay v. Board of Liquor Control, 104 Ohio App. 208, 4 Ohio Op. 2d 365, 148 N.E.2d 81 (1957).

Under RC § 119.12 of the administrative procedure act any party adversely affected by any order of the board of liquor control issued pursuant to an adjudication denying the issuance or renewal of a liquor license may appeal to the court of common pleas of Franklin county, and such court may affirm the order of the agency complained of if it finds, upon consideration of the entire record, that the order is supported by reliable, probative and substantial evidence and is in accordance with law or in the absence of such finding may reverse, vacate or modify the order or make such other ruling as is supported by reliable, probative and substantial evidence and is in accordance with law, and the decision of the court shall be final and conclusive unless reversed, vacated, or modified on appeal: Fernberg v. Board of Liquor Control, 71 Ohio L. Ab. 166, 130 N.E.2d 717 (App 1954).

An appeal to the court of common pleas from an order of the board of liquor control will be dismissed, when an action involving the same subject matter, the same parties and seeking the same relief, is pending on appeal in the court of appeals: In re Socotch, 66 Ohio L. Ab. 232, 116 N.E.2d 455 (CP 1953).

The department of liquor control may prosecute an appeal from a decision of the court of common pleas: Tuma v. Board of Liquor Control, 73 Ohio L. Ab. 397, 137 N.E.2d 788 (App 1953).

The administrative procedure act, in RC § 119.12, permits any person adversely affected by any order, issued pursuant to an adjudication and denying the issuance of a license, to appeal from the decision of the board of liquor control to the court of common pleas of Franklin county: State ex rel. Stein v. Sohngen, 147 Ohio St. 359, 34 Ohio Op. 283, 71 N.E.2d 483 (1947).

Mandamus

Mandamus is not available to compel an agency to provide certain information in a disciplinary proceeding where RC § 119.12 provides an adequate remedy: State ex rel. Sohi v. Williams, 80 Ohio St. 3d 492, 687 N.E.2d 454 (1997).

Where an agency does not follow the statutory requirements of notice and of holding a hearing prior to issuing an adjudication order, an adverse party is not required to bring an action in mandamus to compel the agency to do that which it was aware it should do but elected not to do. The agency is estopped to assert error based on its own violations and a court of common pleas has subject matter jurisdiction over an appeal from an order made pursuant to RC § 1509.08.1: Ohio Liquid Disposal, Inc. v. Dawe, 46 Ohio App. 2d 197, 75 Ohio Op. 2d 344, 347 N.E.2d 541 (1975).

Ministerial acts

The racing commission's denial of a request to include debt service as part of the costs incurred in connection with a minor tax abatement, pursuant to RC § 3769.08, constituted a ministerial act from which there was no right of appeal pursuant to RC § 119.12: Raceway Park, Inc. v. Ohio State Racing Comm., 150 Ohio App. 3d 702, 2002-Ohio-6838, 782 N.E.2d 1205 (2002).

Where the division of wildlife had no discretionary authority and was obligated by law to deny the request for transfer of the fishing license, its action was ministerial, not subject to appeal: Koch v. Ohio Dept. of Natural Resources, 70 Ohio App. 3d 612, 591 N.E.2d 847 (1990).

Modification of decision

Notice

Where the licensee complained that the licensee did not receive notice from the clerk of court when the Ohio Department of Commerce, Division of Real Estate and Professional Licensing, filed the transcript of the record of the proceedings and inadvertently missed a filing deadline as a result, the clerk of court had no obligation under RC § 119.12 to provide notice of the filing of the transcript of the record. Maggard v. Ohio Doc, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 3645 (Aug. 1, 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).

Notice of appeal

RC § 119.12 requires that the original notice of appeal is to be filed with the agency and a copy of the notice of appeal is to be filed with the trial court. Faxing the notice of appeal to the agency was not sufficient: Campbell v. Ohio Bur. of Motor Vehicles, 156 Ohio App. 3d 615 (2004).

Failure to file the original notice of appeal with the agency deprived the court of jurisdiction under RC § 119.12: Carter v. Ohio Dept. of Adm. Serv., 114 Ohio Misc. 2d 60, 759 N.E.2d 498 (CP 2001).

Despite defendant's failure to file the motion to dismiss within the time specified in the scheduling order, the court was required to address the merits of the motion and dismiss plaintiff's appeal where the deficiency of plaintiff's notice of appeal deprived the court of jurisdiction: Smith v. State Dept. of Commerce, No. 00AP-1342 2001 Ohio App. LEXIS 3660 (10th Dist. 2001).

Where plaintiff failed to file an original notice of appeal with the board as required by RC § 119.12 but instead filed a copy of such notice, the court lacked jurisdiction to hear the appeal and properly dismissed it: Buchler v. State Dept. of Commerce, Div. of Real Estate, No. 78401 2001 Ohio App. LEXIS 3103 (8th Dist. 2001).

Despite its having been mailed before the deadline, notice of appeal was not timely filed where it was mailed to the wrong address and did not reach its proper address until after the deadline: Robinson v. Department of Liquor Control, No. 98-P-0118 2000 Ohio App. LEXIS 2769 (11th Dist. 2000).

Failure to file a timely notice of appeal is a jurisdictional defect under RC § 119.12, and the court has no power or discretion to consider the matter: Serenity Recovery Homes, Inc. v. Somani, 126 Ohio App. 3d 494, 710 N.E.2d 789 (1998).

An appellant's failure to file a copy of the notice of appeal with the court within fifteen days constitutes a jurisdictional defect: In re Namey, 103 Ohio App. 3d 322, 659 N.E.2d 372 (1995).

Failure to file a timely copy of the notice of appeal with the court of common pleas is not a jurisdictional defect in an appeal under RC § 119.12: Hayes v. Montgomery Cty. Bd. of Commrs, 94 Ohio App. 3d 597, 641 N.E.2d 277 (1994).

The return receipt card signed by the BMV agent conclusively proved that the notice of appeal was timely filed: Carrothers v. Ohio Bur. of Motor Vehicles, 81 Ohio App. 3d 826, 612 N.E.2d 419 (1992).

An RC § 119.12 timely filed notice of appeal to the court of common pleas from an administrative order may be amended to set forth the specific grounds for the appeal: Powers v. Ohio State Racing Comm., 60 Ohio Misc. 2d 4, 572 N.E.2d 262 (CP 1989).

The notice of appeal required to be filed with a state agency in an appeal of an adjudication order pursuant to RC § 119.12 is presumptively timely delivered when it is shown to have been mailed within sufficient time for it to have arrived at the agency before the fifteen-day time limit. In other words, it is presumed that once the notice of appeal timely enters the ordinary course of the mails, the notice will be timely delivered: Gingo v. Ohio State Medical Bd., 56 Ohio App. 3d 111, 564 N.E.2d 1096 (1989).

The party contesting the timeliness of an RC § 119.12 notice of appeal has the burden of proof of rebutting the presumption resulting from the timely mailing of the notice. An administrative agency may not overcome this presumption by merely introducing the agency's time-stamped date of reception of the notice of appeal: Gingo v. Ohio State Medical Bd., 56 Ohio App. 3d 111, 564 N.E.2d 1096 (1989).

The depositing of a notice of appeal in the U.S. mail is not the equivalent of filing a notice of appeal with the agency whose order is being appealed, pursuant to RC § 119.12: Townsend v. Board of Building Appeals, 49 Ohio App. 2d 402, 3 Ohio Op. 3d 461, 361 N.E.2d 271 (1976).

The timely filing of the notice of appeal with the court does not comply with the provisions of RC § 119.12 for the purpose of establishing jurisdiction to hear an appeal from the order of the bureau of motor vehicles suspending the appellant's driving privileges and right of registration of a motor vehicle; the statute requires that the notice must be filed with the agency whose order is appealed from within 15 days after the mailing of the notice of the agency's order and that the notice of appeal actually must be received by said bureau not later than the 15th day: Bolt v. Bureau of Motor Vehicles, 41 Ohio Misc. 139, 70 Ohio Op. 2d 355, 324 N.E.2d 802 (CP 1974).

The fact that appellant did not receive a copy of the order of the state fire marshal in time to file her notice of appeal, due to the fact that she was out of the state, did not excuse her from filing such notice of appeal within the statutory period: Arndt v. Scott, 72 Ohio L. Ab. 189, 134 N.E.2d 82 (App 1955).

In perfecting an appeal from a decision of the board of liquor control to the common pleas court pursuant to RC § 119.12, it is mandatory that the notice of appeal be filed within fifteen days from the mailing of the board's decision: Hart v. Board of Liquor Control, 96 Ohio App. 128, 54 Ohio Op. 217, 121 N.E.2d 257 (1953).

- Constitutionality

The requirement of RC § 119.12 that a notice of appeal be filed within fifteen days after the mailing of the notice of the agency's order is constitutional: Townsend v. Board of Building Appeals, 49 Ohio App. 2d 402, 3 Ohio Op. 3d 461, 361 N.E.2d 271 (1976).

- Jurisdiction of agency

Notice of hearing

Oral arguments

Parties

When the State Board of Education decides (pursuant to RC § 3327.01) to confirm a local board of education's determination that it is impractical to provide actual transportation for students attending nonpublic schools, the decision by the state board does not make the state board a proper party to an RC § 119.12 appeal: Haig v. Ohio State Bd. of Edn., 62 Ohio St. 3d 507, 584 N.E.2d 704 (1992).

A state agency is not a "party" under RC § 119.01 with a right of appeal under RC § 119.12: Collyer v. Broadview Developmental Ctr., 74 Ohio App. 3d 99, 598 N.E.2d 75 (1991).

If a "person," as defined in RC § 119.01(F), is statutorily granted specific rights or interests which are the subject of an administrative proceeding, then such "person" has standing under RC § 119.12 to appeal if that person is also provided the opportunity by statute to assert those interests in an administrative hearing. A public employer lacks standing under RC § 119.12 to appeal from a decision of SERB dismissing a decertification petition filed by a public employee pursuant to RC § 4117.07(A)(1): Miami Univ. v. State Emp. Relations Bd., 66 Ohio App. 3d 251, 583 N.E.2d 1111 (1990), 583 NE2d 1111 70 OApp3d 514, 591 N.E.2d 415.

A county board of mental retardation and developmental disabilities is a "person" entitled to appeal an order of the state employment relations board pursuant to RC § 119.12: Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio, 46 Ohio St. 3d 147, 545 N.E.2d 1260 (1989).

(Former) RC § 1739.05.1 does not require anyone to be made a party to the administrative proceedings concerning applications for rate increases by a hospital service association. It is only the rights, privileges and pecuniary interests of the hospital service association which are the subject of the adjudication by the Superintendent of Insurance. Thus, a person or party, other than a hospital service association, may not use RC § 119.12 to appeal an order issued by the Superintendent of Insurance pursuant to (former) RC § 1739.05.1: Blue Cross of Northeast Ohio v. Ratchford, 21 Ohio App. 3d 113, 21 Ohio B. 120, 487 N.E.2d 339 (1984).

A public employee who requests an investigation of a department head for certain civil service violations, in accordance with RC § 124.56, is not a party to the investigation and thus has no right of appeal under RC § 119.12: Singh v. State, 7 Ohio App. 3d 269, 7 Ohio B. 349 (1982), 455 N.E.2d 522.

A bank which receives notice pursuant to RC § 1111.02 of a hearing conducted in accordance with RC § 1111.03 on an application for the establishment of a new branch by an applicant bank is a "party adversely affected" under RC § 119.12, and has standing, under RC § 119.12, to appeal an order by the superintendent of banks granting the application: Clermont Nat. Bank v. Edwards, 27 Ohio App. 2d 91, 56 Ohio Op. 2d 258, 273 N.E.2d 783 (1970).

Where amendments to the Ohio building code allow the restricted use of previously prohibited material, the sole fact that an installer of such material is thereafter permitted to partially do that which he was totally prevented from doing before does not preclude him from being a person adversely affected by the amendments: Jamison Plumbing & Heating Co. v. Rose, 14 Ohio App. 2d 47, 43 Ohio Op. 2d 136, 236 N.E.2d 561 (1967).

Pawnbrokers

Revised Code § 4727.16, when properly construed in relation to RC §§ 119.12 and 4727.03, does not require a revocation of a pawnbroker's license automatically upon the mere assertion of two convictions for violations of any of the sections of the pawnbroker's law: Handler v. Dept. of Comm., 14 Ohio Misc. 9, 42 Ohio Op. 2d 198, 233 N.E.2d 147 (CP 1967).

Presumptions

Prohibition

When a court patently and unambiguously lacks jurisdiction to consider a matter, because the Office of Collective Bargaining is not a "person" and only persons may appeal under RC § 119.12, a writ of prohibition will issue to prevent assumption of jurisdiction regardless of whether the lower court has ruled on the question of its jurisdiction. State ex rel. Mansfield Tel. Co., v. Mayer (1966), 5 OS2d 222, 34 OO2d 428, 215 NE2d 375, and State ex rel. Osborn v. Jackson (1976), 46 OS2d 41, 75 OO2d 132, 346 NE2d 141, overruled to the extent that they are inconsistent with this opinion: Ohio Dept. of Adm. Serv., Office of Collective Bargaining v. State Emp. Relations Bd., 54 Ohio St. 3d 48, 562 N.E.2d 125 (1990).

Reconsideration by agency

Record on appeal

The court of common pleas, in conducting its review of the administrative record under RC § 119.12, has a mandatory duty to examine and consider the record in its entirety including the transcript of the proceedings before the hearing examiner: Lies v. Veterinary Medical Bd., 2 Ohio App. 3d 204, 2 Ohio B. 223, 441 N.E.2d 584 (1981).

The hearing envisioned by RC § 119.12 on an appeal from the State Personnel Board of Review requires a close consideration by the Court of Common Pleas of the record as certified to it by the board, the written briefs, and the oral argument of counsel: In re Bronkar, 53 Ohio Misc. 13, 7 Ohio Op. 3d 261, 372 N.E.2d 1345 (CP 1977).

On an appeal to the common pleas court from an order of the motor vehicle dealers' and salesmen's licensing board sustaining an order of the registrar of motor vehicles rejecting the application of a licensed motor vehicle salesman to transfer his license from a former employer to a new employer, where the record before the court is not a complete record of the proceedings in the case, as required by RC § 119.12, a judgment of affirmance, based upon a finding that the order is supported by reliable, probative and substantial evidence, is against the manifest weight of the evidence: Blankenship v. Braden, 114 Ohio App. 200, 19 Ohio Op. 2d 91, 181 N.E.2d 275 (1961).

Rehabilitation and correction department

The department of rehabilitation and correction is not an agency whose decisions are subject to judicial review pursuant to RC § 119.12: State v. Brown, 156 Ohio App. 3d 120 (2004).

Rehearing by court

Where both a party and her counsel knew of the existence of certain evidence more than eight months prior to the hearing of her appeal from the decision of the board of liquor control in the court of common pleas, and failed to request admission of such evidence on the appeal, which under the provisions of RC § 119.12 she had the right to do, the court of common pleas did not abuse its discretion in overruling a motion for a rehearing based on such evidence as being newly discovered: Dinardo v. Board of Liquor Control, 80 Ohio L. Ab. 253, 158 N.E.2d 899 (App 1958).

Remand to agency

Even in the absence of specific language in RC § 119.12 conferring the power, a reviewing court has the authority to remand a case to an administrative body where the board's action does not conform with applicable law. Such a remand affords the board an opportunity to reconcile its order with the law as defined by the judgment and decision of the court: Chapman v. Ohio State Dental Bd., 33 Ohio App. 3d 324, 515 N.E.2d 992 (1986).

Res judicata

Under Ohio law, a discharged public employee's failure to perfect an appeal in administrative proceedings involving discharge, as prescribed by RC §§ 124.34 and 119.12, was "otherwise than on the merits," thus, his federal civil rights claim arising out of such discharge was not barred by the doctrine of res judicata: Loudermill v. Cleveland Bd. of Education, 721 F.2d 550, (6th Cir. 1983).

When an order of the state racing commission is appealed and is vacated by a court of common pleas because the commission failed to certify a complete record to the court and the cause is returned to the commission which again issues an order, the doctrine of res judicata is inapplicable to an appeal of the second order because the judgment entered by the court in the first appeal was based on technical rather than substantive grounds: Sayler v. Ohio State Racing Comm., 7 Ohio App. 3d 189, 7 Ohio B. 236, 454 N.E.2d 982 (1982).

Revocation supported

Right of appeal

A utility which is denied reimbursement of relocation expenses pursuant to RC § 163.51 et seq. has a right of appeal under RC § 119.12: Columbia Gas Transm. Corp. v. Ohio Dept. of Transp., 104 Ohio App. 3d 1, 660 N.E.2d 1225 (1995).

Denial of a utility's application for relocation assistance under RC § 163.53 is clearly appealable under OAC 5501:2-5-02: Columbus Southern Power Co. v. Ohio Dept. of Transp., No. 93APE09-1280 1994 Ohio App. LEXIS 860 (10th Dist. 1994).

Unless an actual denial or revocation of license or permit is at issue, an order under RC § 5515.02 to remove a highway obstruction is not appealable under RC § 119.12: Brown v. Ohio Dept. of Transp., 83 Ohio App. 3d 879, 615 N.E.2d 1126 (1992).

SERB's dismissal of a petition for a representation election under RC § 4117.07 is appealable under RC § 119.12: Springfield City School Support Personnel v. State Emp. Relations Bd., 84 Ohio App. 3d 294, 616 N.E.2d 983 (1992).

The Superintendent's decision to hold a hearing pursuant to RC § 3901.22 is an executory, non-judicial function and thus, not subject to appeal under RC § 119.12: Hanson, M.D. v. Fabe, Supt. Ohio Dept. of Ins., No. 91AP-435 1991 Ohio App. LEXIS 6013 (10th Dist. 1991).

A dental license suspension ordered pursuant to a consent agreement is not appealable to the court of common pleas pursuant to RC § 119.12: Stahl v. Ohio State Dental Bd., 44 Ohio App. 3d 26, 540 N.E.2d 755 (1988).

Even where an administrative board enters an order remanding the cause to the state agency for further consideration or action, the order is, nevertheless, appealable to the court of common pleas pursuant to RC § 119.12 if the order affects a substantial right. (Former RC § 3702.58[B], applied): Christian Care Home of Cincinnati, Inc. v. Ohio State Certificate of Need Review Bd., 48 Ohio App. 3d 158, 548 N.E.2d 981 (1988).

A decision by the Director of the Ohio Department of Transportation to remove a contractor from a job for failure to correct deficient work is not appealable pursuant to RC Chapter 119.: Asphalt Specialist, Inc. v. Ohio Dept. of Transp., 53 Ohio App. 3d 45, 557 N.E.2d 1224 (1988).

A party aggrieved by a final order of an administrative agency may appeal that order to the court of common pleas, pursuant to RC Chapter 119., if the order was rendered in the course of a quasi-judicial proceeding. A quasi-judicial proceeding requires notice, a hearing, an opportunity to introduce testimony, and a finding or decision made in accordance with statutory authority: Christian Care Home of Cincinnati, Inc. v. Ohio State Certificate of Need Review Bd., 48 Ohio App. 3d 158, 548 N.E.2d 981 (1988).

An order of the Director of the Ohio Department of Transportation decertifying a minority-owned and controlled business from eligibility for contracts set aside for minority businesses under the Surface Transportation Assistance Act of 1982 is not appealable to the court of common pleas pursuant to RC Chapter 119.: Central Ohio Waterproofing Co. v. Smith, 36 Ohio App. 3d 195, 521 N.E.2d 1133 (1987).

When the decision to dismiss an unfair labor practice charge is not made pursuant to a quasi-judicial proceeding (which proceeding is not required by RC Chapter 4117.), appellant does not have a right to appeal under RC § 119.12: Ohio Assn. of Pub. School Emp. v. Cleveland Bd. of Edn., 37 Ohio App. 3d 126, 524 N.E.2d 532 (1987).

Neither RC §§ 4117.13(D) nor 119.12 provides an aggrieved party the right to appeal a determination by the State Employment Relations Board that no probable cause existed to issue a complaint on an unfair labor practice: Lorain Edn. Assn. v. Lorain City Bd. of Edn., 41 Ohio App. 3d 349, 535 N.E.2d 1383 (1987).

The right of administrative appeal under RC §§ 119.01 to 119.13 attaches to the Superintendent of Credit Unions' final decision to reverse his preliminary approval of, and disapprove proposed amendments to, articles of incorporation of a credit union. The superintendent may not be estopped to adhere to his preliminary approval where the discretion to make final decisions is predicated upon receipt of required documents and fees, and where preliminary approval places the credit union in no worse position than if it had relied on its own judgment: State ex rel. Telephone Credit Union, Inc. v. Sorin, 29 Ohio App. 3d 337, 29 Ohio B. 465, 505 N.E.2d 992 (1985).

Further appeal to the court of appeals is not available under RC § 119.12 where the trial court's ruling was based solely on the evidence and did not involve a question of law: Miller v. Dept. of Indus. Relations, 17 Ohio St. 3d 226, 17 Ohio B. 466, 479 N.E.2d 254 (1985).

The act of the Ohio state board of education disapproving a transfer of territory pursuant to RC § 3311.24 is similar to disapproval of a transfer pursuant to RC § 3311.06 and, as such, is a legislative act, which is not appealable pursuant to RC § 119.12. (Bd. of Edn. of Marion v. Bd. of Edn. of Elgin, 66 OS2d 152 [20 OO3d 165], applied): In re Transfer of Territory, 4 Ohio App. 3d 78, 4 Ohio B. 130, 446 N.E.2d 493 (1982).

Although a church, which wants to protest the issuance of a liquor permit, may be entitled to a hearing pursuant to RC § 4303.26, neither RC Chapter 4303. nor RC Chapter 119. authorize the church to appeal the subsequent decisions of the Director of Liquor Control concerning the liquor permit application to the Court of Common Pleas: Ninth Street Church v. Reich, 1 Ohio App. 3d 141, 1 Ohio B. 449, 439 N.E.2d 958 (1981).

The act of the Ohio State Board of Education disapproving a transfer of territory pursuant to RC § 3311.06 is a legislative act, and, as such, is not appealable pursuant to RC § 119.12 [Applied: In re Transfer of Territory, 4 OApp3d 78, 4 OBR 130, 446 NE2d 493 (1982)]: Bd. of Edn. of Marion v. Bd. of Edn. of Elgin, 66 Ohio St. 2d 152, 20 Ohio Op. 3d 165, 420 N.E.2d 990 (1981).

The action of the Superintendent of Banks approving a branch application constitutes an exercise by an agency of a licensing function and is appealable pursuant to RC Chapter 119. to the Court of Common Pleas of Franklin County: Genoa Banking Co. v. Mills, 67 Ohio St. 2d 106, 21 Ohio Op. 3d 67, 423 N.E.2d 161 (1981).

A notice that an examination would be held to determine the competency of the holder of a driver's license, pursuant to RC § 4507.20, absent an order of revocation or suspension, is not an adjudication or appealable order within the meaning of RC § 119.01: Davison v. Bureau of Motor Vehicles, 46 Ohio App. 2d 86, 75 Ohio Op. 2d 74, 345 N.E.2d 619 (1975).

Revised Code § 119.12 contemplates an appeal from four specific types of adjudication: (1) denial to an applicant of admission to an examination; (2) denial of the issuance or renewal of a license; (3) denial of the registration of a licensee; and (4) revocation or suspension of a license: Welsh v. Ohio State Medical Board, 168 Ohio St. 520, 522, 7 Ohio Op. 2d 389, 156 N.E.2d 740 (1959).

The administrative procedure act did not confer upon the director of education and the high school board, the right to appeal from a judgment of the court of common pleas rendered on appeal from an order of the department of education: In re Millcreek Local District High School, 160 Ohio St. 234, 52 Ohio Op. 91, 115 N.E.2d 840 (1953).

Neither a township board of zoning appeals nor any of its members as such have a right to appeal from the judgment of a court, rendered on appeal from a decision of such board and reversing and vacating that decision: DiCillo & Sons, Inc. v. Zoning Bd. of Appeals, 158 Ohio St. 302, 49 Ohio Op. 135, 109 N.E.2d 8 (1952).

Rules of Civil Procedure

Civil Rule 60(B) does not apply to administrative appeals under RC § 119.12: Buchler v. Ohio Dept. of Commerce, Div. of Real Estate, 110 Ohio App. 3d 20, 673 N.E.2d 611 (1996).

Civil Rule 60(B) was inapplicable to the administrative appeal in the instant case: Giovanetti v. Ohio State Dental Bd., 66 Ohio App. 3d 381, 584 N.E.2d 66 (1990).

Under RC § 119.12 the procedure before the board of liquor control is governed by the rules in civil rather than criminal actions: B.P.O. of Elks v. Board of Liquor Control, 105 Ohio App. 181, 5 Ohio Op. 2d 460, 151 N.E.2d 693 (1957).

Schools

- Territory transfers

Scope of review

In reviewing an order of the State Medical Board pursuant to RC § 119.12, the court of common pleas should, absent any clear reason for contrary conclusions, accept the board's resolution of conflicts between testimony before the board and the documentary evidence before the board: Mofu v. State Medical Bd., 21 Ohio App. 3d 182, 21 Ohio B. 194, 486 N.E.2d 1169 (1984).

Appeals under RC § 119.12 are lawful only to review an adjudication by an administrative agency: Walt's Friendly Tavern v. Dept. of Liquor Control, 11 Ohio App. 3d 277, 11 Ohio B. 457, 464 N.E.2d 610 (1983).

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).

An order of the state personnel board of review must be upheld if it is supported by the evidence and is in accordance with law: Western Reserve Psychiatric Hospital v. Knight, 69 Ohio App. 2d 108, 23 Ohio Op. 3d 140, 430 N.E.2d 967 (1980).

The court did not exceed its proper scope of review under RC § 119.12 by believing certain testimony and rejecting conflicting testimony: University of Cincinnati v. Conrad, 63 Ohio St. 2d 108, 17 Ohio Op. 3d 65, 407 N.E.2d 1265 (1980).

Under RC § 119.12 a court of appeals, in an appeal on questions of law from a decision of the court of common pleas affirming a decision of the state board of real estate examiners revoking a real estate broker's license, is confined in its jurisdiction on review to a consideration of the record made before such board and in the common pleas court and whether the common pleas court erred in sustaining the order of the board as being supported by reliable, probative and substantial evidence and as being in accordance with law: Quinn v. State Board of Real Estate Examiners, 104 Ohio App. 316, 4 Ohio Op. 2d 479, 137 N.E.2d 777 (1956).

- Court of appeals

Where an appeal on questions of law relating to the construction or interpretation of RC § 119.12, a part of the administrative procedure act, is perfected to the court of appeals from the common pleas court, the court of appeals is permitted to review and determine the correctness of the judgment of the common pleas court; and, in such review and determination, the court of appeals must follow the same procedure enjoined by RC § 119.12 on the common pleas court in arriving at its determination: In re Topper, 109 Ohio App. 289, 11 Ohio Op. 2d 49, 165 N.E.2d 19 (1959).

Where an appeal by an administrative agency from an adverse decision of the court of common pleas under authority of RC § 119.12 does not involve the constitutionality, construction or interpretation of a statute and the rules and regulations of the agency, there can be no review of the correctness of the judgment of the court of common pleas that the order of the administrative agency is not supported by reliable, probative and substantial evidence: Katz v. Department of Liquor Control, 76 Ohio L. Ab. 129, 145 N.E.2d 553 (App 1956); affirmed, 166 Ohio St. 229, 2 Ohio Op. 2d 54, 141 N.E.2d 294 (1957).

The court of appeals under RC § 119.12, relating to appeals under the administrative procedure act, may review and determine the correctness of a judgment of the court of common pleas, ordering the reinstatement of a police officer, and decide from the entire record whether the order of the municipal civil service commission, affirming an order of removal of the municipal safety director, is "supported by any reliable, probative and substantial evidence": Owens v. Ackerman, 72 Ohio L. Ab. 552, 136 N.E.2d 93 (App 1955).

- Standard of review

A common pleas court's scope of review of an administrative order includes an appraisal of all evidence and a determination of the absence or presence of the requisite quantum of evidence. When the evidence meets the standard set forth in RC § 119.12 or is uncontroverted, there is no statutory authority by which a trial court may reverse, vacate, or modify an agency's order. The reviewing court must give deference to the agency's interpretation of its own regulations. The court of appeals may reverse the common pleas court only upon a showing that the court abused its discretion by entering a judgment without a reasonable basis: Ladd v. Ohio, 76 Ohio App. 3d 323, 601 N.E.2d 617 (1991).

In reviewing an order of the State Medical Board pursuant to RC § 119.12, the functions of the court of common pleas are limited to determining whether the order is supported by reliable, probative and substantial evidence and is in accordance with law. Thus, the court may not reverse an order of the board which has support from reliable, probative and substantial evidence: Mofu v. State Medical Bd., 21 Ohio App. 3d 182, 21 Ohio B. 194, 486 N.E.2d 1169 (1984).

A court reviewing a decision of an administrative agency is confronted with the issue of whether the decision is against the manifest weight of the evidence and not whether the agency abused its discretion: Haley v. Ohio State Dental Bd., 7 Ohio App. 3d 1, 7 Ohio B. 1, 453 N.E.2d 1262 (1982).

The authority of a common pleas court in a review of an order of an administrative agency under RC § 119.12 is limited to a decision as to whether the order is "supported by reliable, probative and substantial evidence and is in accordance with law." Gross abuse of discretion is not one of the matters properly before the court in such review: In re Hennis, 7 Ohio Op. 3d 170 (App 1977).

Under RC § 119.12, where a court finds that an order of the bureau of motor vehicles is supported by reliable, probative and substantial evidence, it is without authority to reverse or modify it: Farrao v. Bureau of Motor Vehicles, 46 Ohio App. 2d 120, 75 Ohio Op. 2d 106, 346 N.E.2d 337 (1975).

Security deposit

The security deposit requirement of RC § 119.12 is a jurisdictional requirement and when an appellant fails to file such security deposit, he has failed to substantially comply with RC § 119.12: Noel v. Department of Transportation, No. 2140 1993 Ohio App. LEXIS 5976 (4th Dist. 1993).

Standard of appellate review

There was no abuse of discretion in the denial of a request for a variance by a motel owner to erect a sign more than seven times the permissible height of any new sign, as the trial court's analysis showed that the granting of the variance would not do substantial justice; the standard of review to be applied by the court of appeals in an R.C. § 2506.04 appeal was more limited in scope than the standard of review for the court of common pleas for an administrative appeal, under R.C. § 119.12, as the standard of review for appellate courts was whether the common pleas court abused its in finding that the administrative order was not supported by reliable, probative, and substantial evidence. Cross Country Inns, Inc. v. City of Westerville, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 2954 (June 24, 2003).

Standard of review

Court did not abuse its discretion under RC § 119.12 in affirming the revocation of a liquor permit under RC § 4303.29 where the presence of a manager who said he was buying the store reasonably implied that the licensee had transferred the permit without written consent. Proffitt v. Ohio Liquor Control Comm'n, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 4521 (Sept. 23, 2003).

The standard of review for a decision of the state medical licensing board requires the decision to be supported by reliable, probative, and substantial evidence; it was well within a state medical licensing board's discretion to determine that a doctor's misrepresentations on his application weighed in support of permanent denial of his application to practice medicine. Gipe v. State Med. Bd. of Ohio, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 3605 (July 31, 2003).

The validity of a criminal conviction which was the basis of a license suspension under the financial responsibility laws could not be collaterally attacked in an appeal under RC § 119.12. The suspension was not supported by reliable, probative and substantial evidence where proper evidence of the conviction was not submitted to the court by the agency: Jubb v. Ohio Bur. of Motor Vehicles, 113 Ohio Misc. 2d 43, 756 N.E.2d 779 (CP 2001).

Where in its judgment the common pleas court delineated both a correct and an incorrect statement of the standard of review provided in RC § 119.12, the court could not definitively determine whether the court utilized the correct standard of review on the issue of the reduction of the plaintiff' service hours, and the cause would be remanded to that court for application of the proper standard: Irons v. Ohio Dept. of Human Serv., No. L-97-1208 1998 Ohio App. LEXIS 3701 (6th Dist. 1998).

The preponderance of the evidence standard set forth in RC § 2506.04 is inapplicable to a common pleas court's review of an administrative order pursuant to RC § 119.12, because RC § 119.12 sets forth its own standard of review. Evidence is not "newly discovered" where the party did not use reasonable diligence to obtain it prior to the administrative hearing: Diversified Benefit Plans Agency, Inc. v. Duryee, 101 Ohio App. 3d 495, 655 N.E.2d 1353 (1995).

Under RC § 119.12, an agency decision must pass a two-prong test before the common pleas court is authorized to affirm: (1) the decision must be supported by reliable, probative and substantial evidence; and (2) the agency action must be in accordance with law: Arcuragi v. Miami Univ., 103 Ohio App. 3d 455, 659 N.E.2d 869 (1995).

Under RC § 119.12, an agency decision must pass a two-prong test in order to be affirmed: first, the order must be supported by reliable, probative, and substantial evidence; second, the agency action must be in accordance with the law: Kelly v. Accountancy Bd. of Ohio, 88 Ohio App. 3d 453, 624 N.E.2d 292 (1993).

An agency's findings of fact are presumed to be correct and must be deferred to by a reviewing court unless that court determines that the agency's findings are internally inconsistent, impeached by evidence of a prior inconsistent statement, rest upon improper inferences, or are otherwise unsupportable. To the extent that an agency's decision is based on construction of the state or federal Constitution, a statute, or case law, the common pleas court must undertake its RC § 119.12 reviewing task completely independently: Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St. 3d 466, 613 N.E.2d 591 (1993).

When reviewing a medical board's order, courts must accord due deference to the board's interpretation of the technical and ethical requirements of its profession: Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 614 N.E.2d 748 (1993).

The trial court abused its discretion in finding that the administrative order was supported by reliable, probative and substantial evidence when it did not have the record of the administrative proceedings before it to consider: Midwest Fireworks Mfg. Co., Inc. v. Hennosy, 71 Ohio App. 3d 490, 594 N.E.2d 725 (1991).

In determining if an agency order is supported by reliable, probative, and substantial evidence, a trial court must necessarily weigh the evidence presented to the agency and, to a limited extent, may reevaluate the credibility of the evidence. However, due deference must be given to the administrative determination of conflicting testimony: Crumpler v. State Bd. of Edn., 71 Ohio App. 3d 526, 594 N.E.2d 1071 (1991).

Revised Code § 119.12 does not provide for a manifest-weight standard of review in administrative appeals: Bottoms Up, Inc. v. Liquor Control Comm., 72 Ohio App. 3d 726, 596 N.E.2d 475 (1991).

Revised Code § 119.12 does not permit common pleas court to review all the evidence and make its own inferences therefrom without giving deference to agency's order. RC § 119.12 does not permit common pleas court to make a manifest weight of evidence review. Where elementary school principal was convicted of public indecency after being observed in sex act in public restroom, court of common pleas abused its discretion in finding that there was not substantial evidence to support board's finding that immoral conduct jeopardized teacher/principal's abilities and that such conduct was unbecoming to his position: Johnson v. State of Ohio, Board of Education, No. CA-8019 1990 Ohio App. LEXIS 1845 (5th Dist. 1990).

An appeal from a civil service commission's order under RC §§ 119.12 and 124.34 does not allow the common pleas court to try the issues de novo; the standard of review is instead whether the order is supported by reliable, probative and substantial evidence, and is in accordance with law: Cook v. Maxwell, 57 Ohio App. 3d 131, 567 N.E.2d 292 (1989).

In reviewing an order of the State Veterinary Medical Board finding a licensee guilty of an infraction and imposing a sanction therefor, the court of common pleas has two responsibilities under RC § 119.12. First, the court must determine whether the board's finding that an infraction occurred is supported by "reliable, probative and substantial evidence." Second, the court must determine whether the sanction ordered for the infraction is a lawful sanction supported by reliable, probative and substantial evidence. In considering the appropriateness of the sanction, the trial court is limited to determining whether the sanction is within the range of acceptable choices for the particular infraction: Hale v. Ohio State Veterinary Medical Bd., 47 Ohio App. 3d 167, 548 N.E.2d 247 (1988).

Although a hearing before the court of common pleas pursuant to RC § 3781.03.1 is not de novo, it in fact resembles a de novo proceeding: Copeland v. Ohio Dept. of Indus. Relations, Div. of Factory & Bldg. Inspection, 53 Ohio App. 3d 23, 557 N.E.2d 813 (1988).

Revised Code § 119.12 provides the standard for review which the Court of Common Pleas of Franklin County must utilize in an appeal of an order of the Board of Building Standards denying an individual's application for approval as the chief building official for a municipal building department. The standard for review set forth in RC § 3781.10.1 is not applicable to an appeal of an adjudication order: Wahle v. Dept. of Indus. Relations, 14 Ohio App. 3d 101, 14 Ohio B. 105, 470 N.E.2d 200 (1983).

The existence of some reliable, probative, and substantial evidence in support of a finding of an administrative agency is sufficient to support such findings: Haley v. Ohio State Dental Bd., 7 Ohio App. 3d 1, 7 Ohio B. 1, 453 N.E.2d 1262 (1982).

As a "temporary" Court of Appeals under RC § 119.12 the Court of Common Pleas must view the evidence on appeal from the State Personnel Board of Review from an appellate perspective, and the findings of the board must be affirmed if supported by reliable, probative, and substantial evidence, and if in accordance with law: In re Bronkar, 53 Ohio Misc. 13, 7 Ohio Op. 3d 261, 372 N.E.2d 1345 (CP 1977).

Revised Code § 119.12 requires the court of common pleas, in reviewing an order of an agency, to determine whether such "is supported by reliable, probative and substantial evidence and is in accordance with law": In re Blue Cross, 44 Ohio App. 2d 375, 73 Ohio Op. 2d 418, 338 N.E.2d 775 (1975); affirmed, 44 Ohio St. 2d 78, 73 Ohio Op. 2d 323, 337 N.E.2d 783 (1975).

Where the holder of permits to sell alcoholic beverages is charged with the violation of law and regulations of the liquor control commission on the permit premises, his plea of guilty to such charges, knowingly and voluntarily made at the hearing thereon before the commission is equivalent to testimony on his part that the facts set forth in such charges are true, and a suspension of his permits for a prescribed length of time by the commission, acting within its powers, is authorized. On the permit holder's appeal to the court of common pleas under RC § 119.12 that court may properly determine, within the spirit and objectives of the statute, that the orders against him by the commission were supported by "reliable, probative and substantial evidence": Department of Liquor Control v. Santucci, 17 Ohio St. 2d 69, 46 Ohio Op. 2d 402, 246 N.E.2d 549 (1969).

On an appeal from an order of an agency revoking a license, the common pleas court may affirm that order only "if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law"; and this means that such evidence must not only exist but must be in the record in order to support an affirmance: Doelker v. Accountancy Board, 12 Ohio St. 2d 76, 41 Ohio Op. 2d 328, 232 N.E.2d 407 (1967).

A charge that a licensed race horse owner violated Ohio state racing commission Rule 65, which permits license revocation "for conduct detrimental to the best interests of racing" in that he "was on the premises of... race track without authorization in the stall of" a certain horse and that such "unauthorized presence" "constitutes improper practice on the part of a racing commission license holder," relates directly to the conduct of horse racing and is supported by reliable, probative and substantial evidence where witnesses testify to seeing him in the stable area and in the stable of such horse on the date alleged and he admits being in such stable area about the time in question: In re Cline, 3 Ohio App. 2d 345, 32 Ohio Op. 2d 461, 210 N.E.2d 737 (1964).

In an appeal from an order of the board of liquor control suspending a liquor permit, the common pleas court, finding that the order of the board is supported by reliable, probative and substantial evidence and is in accordance with law and affirming the order of the board, is without authority to recodify the penalty: Broadway Enterprise, Inc. v. Bd. of Liquor Control, 1 Ohio App. 2d 470, 30 Ohio Op. 2d 455, 205 N.E.2d 100 (1964).

Under RC § 119.12, on an appeal to the court from an order of an administrative agency, it is incumbent upon the court, as its statutory duty, to determine whether the order of the agency is supported by reliable, probative and substantial evidence, and is in accordance with law; these specific requirements of the statute are in the conjunctive and the question arises as to whether there is now in the case upon the evidence before the court reliable, probative and substantial evidence to support the agency's order, and if there is then such order would be presumed in accordance with law; and if not such evidence, then not in accordance with law: Ohio Real Estate Comm. v. Cohen, 90 Ohio L. Ab. 137, 25 Ohio Op. 2d 165, 187 N.E.2d 641 (CP 1962).

On appeal from an order of an agency (as defined in RC § 119.01) to the court of common pleas, the power of the court to modify such order is limited to the ground set forth in RC § 119.12, i.e., the absence of a finding that the order is supported by reliable, probative, and substantial evidence: Henry's Cafe, Inc. v. Board of Liquor Control, 170 Ohio St. 233, 10 Ohio Op. 2d 177, 163 N.E.2d 678 (1959).

Under the provisions of RC § 119.12 a reviewing court has the power to modify an order of the board of liquor control appealed from, only when it does not find that such order is supported by "reliable, probative, and substantial evidence"; and where such court finds that an order of the board of liquor control is supported by "reliable, probative and substantial evidence and is in accordance with law" it has no authority to modify the penalty imposed by such board: Buckeye Lake Hotel Co. v. Board of Liquor Control, 108 Ohio App. 417, 9 Ohio Op. 2d 381, 159 N.E.2d 632 (1958).

The court of common pleas on an appeal from an order of the board of liquor control affirming the action of the department of liquor control in rejecting appellant's application for a renewal of his liquor permit is not required to determine the issue as to advisability of issuing such permit; but only to find whether the order of the board, in the exercise of its discretion, upon consideration of the entire record, is supported by reliable, probative and substantial evidence and is in accordance with law: Khoury v. Board of Liquor Control, 74 Ohio L. Ab. 492, 141 N.E.2d 787 (CP 1957).

Under RC § 119.12, the hearing upon appeal from an agency shall proceed as in the trial of a civil action, and the court shall determine the rights of the parties in accordance with the laws applicable to such action. The court may affirm the order of the agency if it finds, upon consideration of the record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate or modify such order or make such other ruling as is supported by evidence and in accordance with law: In re Appeal from Board of Liquor Control, 103 Ohio App. 517, 520, 4 Ohio Op. 2d 21, 146 N.E.2d 309 (1957).

Where the court of common pleas, on an appeal from an order of the board of liquor control, under authority of RC § 119.12, finds that such order is supported by reliable, probative and substantive evidence and is in accordance with law, such court has no power under the statute to modify the penalty assessed by the order: Delmonte Cafe, Inc. v. Department of Liquor Control, 74 Ohio L. Ab. 459, 141 N.E.2d 889 (App 1956).

In an appeal from the board of liquor control the court of common pleas erred in hearing the appeal as on questions of law rather than de novo: Burger v. Board of Liquor Control, 74 Ohio L. Ab. 540, 141 N.E.2d 671 (App 1956).

Under RC § 119.12, the court of common pleas, in an appeal from an order of the superintendent of insurance revoking an insurance license, may reverse and vacate such order and restore such license where the order of the superintendent is not in accordance with law in that said order does not recite nor contain a finding of fact upon which said order is based as required by RC § 3905.18: Bretscher v. Robinson, 78 Ohio L. Ab. 386, 153 N.E.2d 163 (App 1956).

Under GC § 154-73, as amended in 1951 (RC § 119.12), in an appeal from the board of liquor control to the court of common pleas of Franklin county, that court must give consideration to the entire record before the board of liquor control, including all evidence offered before the board, and such additional evidence as the court may admit, and must appraise all such evidence as to the credibility of witnesses, the probative character of the evidence and the weight to be given it, and, if from such consideration it finds that the board's order is not supported by reliable, probative and substantial evidence and is not in accordance with law, the court is authorized to reverse, vacate, or modify the order of the board: Andrews v. Board of Liquor Control, 164 Ohio St. 275, 58 Ohio Op. 51, 131 N.E.2d 390 (1955).

The court of common pleas on an appeal from an order of the board of liquor control revoking appellant's liquor permits for the reason that he sold spirituous liquors not then and there being the holder of a proper permit which authorized such sale, is not called upon, in considering the charge against appellant, to weigh the evidence, but is required to determine first, whether there was reliable, probative and substantial evidence supporting the order of the board, and second, whether or not the board was guilty of an abuse of discretion: Miecznikewski v. State, 72 Ohio L. Ab. 422, 135 N.E.2d 641 (CP 1952).

In an appeal on law and fact from a decision of the state board of liquor control, pursuant to RC § 119.12, the common pleas court must give the action its independent judgment: Toth v. Board of Liquor Control, 38 Ohio Op. 422, 54 Ohio L. Ab. 22, 84 N.E.2d 256 (CP 1948).

- Court of appeals

Trial court correctly applied the de novo standard of review to a city employee's appeal from an adverse decision by a civil service commission regarding the employee's discharge for allegedly failing to comply with the city's residency requirement; the employee elected to prosecute the appeal pursuant to R.C. §§ 124.34 and 119.12. Wolf v. City of Cleveland, - Ohio App. 3d - , - N.E.2d - 2003 Ohio App. LEXIS 2918 (June 19, 2003).

Upon an appeal to the common pleas court from an order of an administrative agency, such court, in the absence of a finding that such order is not supported by reliable, probative and substantial evidence and is not in accordance with law, may not modify the penalty imposed by such agency; but the court of appeals, upon review of a judgment of the court of common pleas, made pursuant to RC § 119.12, has jurisdiction to consider and review the record of the proceedings before the agency and in the common pleas court to determine whether such court may have erred in finding that such order is supported by reliable, probative and substantial evidence and is in accordance with law: State Racing Comm. v. Robertson, 111 Ohio App. 435, 14 Ohio Op. 2d 456, 172 N.E.2d 628 (1960).

An appeal on questions of law by an administrative agency from a judgment of the court of common pleas finding that the action of the agency was arbitrary, capricious and unlawful because not supported by reliable, probative and substantial evidence, will be dismissed as not falling within the authorization contained in RC § 119.12, which authorizes an appeal by an administrative agency only on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency: Metropolitan Sav. Assn. v. Burdsall, 80 Ohio L. Ab. 327, 154 N.E.2d 754 (App 1958).

Under RC § 119.12, as amended in 1953 (125 v 488), an administrative agency may appeal from a judgment of the court of common pleas, rendered on appeal from a decision of such agency, only upon questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency, but when such appeal is perfected, the reviewing court has jurisdiction to review and determine the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record: Katz v. Department of Liquor Control, 166 Ohio St. 229, 2 Ohio Op. 2d 54, 141 N.E.2d 294 (1957).

In an appeal under RC § 119.12 from an order of the board of liquor control finding it inadvisable to issue liquor permits for permit premises within five hundred feet of a parcel of real estate having situated thereon a church and school, the appellate court does not determine the advisability of the order but only whether the order of the board, in the exercise of its discretion, is supported by reliable, probative and substantial evidence and is in accordance with law: Fawcett v. Board of Liquor Control, 67 Ohio L. Ab. 53, 118 N.E.2d 697 (CP 1953).

Stay of license suspension

Suspension of order of agency

Where, after revocation of a real estate broker's license, the broker appeals to the common pleas court and the court, pursuant to GC § 154-73 (RC § 119.12) enters an order suspending such revocation, such suspension order supersedes the order of revocation as of the date of the latter's issuance, and such broker is not, by force of such revocation order, deprived of his right to do business under his license: Lewis v. Anspon, 92 Ohio App. 78, 49 Ohio Op. 224, 109 N.E.2d 545 (1951).

Time for appeal

Service on the attorney representing an agency does not constitute timely filing with the agency under RC § 119.12. CivR 6(E) may not be used to extend the time for filing a notice of appeal with an agency because the time limitation is jurisdictional: Blasko v. Ohio State Bd. of Pharmacy, 143 Ohio App. 3d 191, 757 N.E.2d 846 (2001).

The running of the fifteen-day appeal period was not tolled by the board's having mistakenly indicated June 4, 1993 instead of June 4, 1998 as the deadline for filing a notice of appeal: Foster v. Cuyahoga Cty. Bd. of Commrs., No. 99AP-795 2000 Ohio App. LEXIS 1110 (10th Dist. 2000).

The execution of the administrative order triggers the right of appeal to court and is independent of the fifteen-day requirement which governs the time within which a cause of action may be brought: Tran v. Ohio State Bd. of Cosmetology, No. 2000-L-030 2000 Ohio App. LEXIS 5610 (11th Dist. 2000).

The failure to file a copy of the notice of appeal within the fifteen-day period as set forth in RC § 119.12 deprives the common pleas court of jurisdiction over the appeal: Nibert v. Ohio Dept. of Rehab. & Corr., 84 Ohio St. 3d 100, 702 N.E.2d 70 (1998).

A notice of appeal must be filed within fifteen days of mailing of notice of the adjudication order: Williams v. Drabik, 115 Ohio App. 3d 295, 685 N.E.2d 293 (1996).

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).

Appellate Rule 4(A) provides that, with respect to appeals in a civil case, the time for appeal does not commence until the service of the notice required by CivR 58(B) if not made within the three-day period set forth in such rule. The requirement added to RC § 119.12 in 1992 to require the filing of a deposit with the state personnel board of review based upon the anticipated cost of preparation of the transcript is not a jurisdictional requirement, since the obvious purpose is to relieve the board from the harsh sanction of reversal if it fails timely to file the transcript and record of proceedings in the common pleas court where the appellant has not made the requisite deposit: Lipscomb v. London Correctional Inst., 96 Ohio App. 3d 245, 644 N.E.2d 1079 (1994).

There was no evidence to contradict the division of real estate's time stamp showing the notice of appeal as untimely: Capparell v. Love, 99 Ohio App. 3d 624, 651 N.E.2d 484 (1994).

A motion for a new trial filed in the common pleas court in an appeal from an administrative agency is a nullity and does not extend the time to file a notice of appeal in the court of appeals: Ohio State Medical Bd. v. Pla, 42 Ohio App. 3d 239, 538 N.E.2d 125 (1988).

A trial court abuses its discretion in dismissing an administrative appeal due to the appellant's failure to timely file its assignments of error and brief, where the omission did not constitute a flagrant, substantial disregard for the rules of the court, where the appellant corrects the omission promptly after discovering it, and where the delay did not prejudice either the court or the opposing party: A.G. & G. Co. v. Cuyahoga Cty. Bd. of Revision, 47 Ohio App. 3d 117, 547 N.E.2d 403 (1988).

Because the actual mailing of the order is the event which triggers the fifteen-day appeal period set forth in RC § 119.12, the agency issuing the order bears the burden of establishing the actual date of mailing of the agency order: Geroc v. Ohio Veterinary Medical Bd., 37 Ohio App. 3d 192, 525 N.E.2d 501 (1987).

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).

That portion of Local Rule 47.02 of the Court of Common Pleas of Franklin County, General Division, which provides that "[w]here the time for filing is not fixed by statute or rule of the Supreme Court, the Appellant shall file a brief within twenty * * * days after the filing of the transcript of the record," is, by its very words, not applicable to an appeal filed pursuant to RC § 119.12. In an appeal to the court of common pleas from a decision of an administrative agency pursuant to RC § 119.12, the court of common pleas must set a date for hearing of the appeal, and the brief of the appellant may be filed at any time up until the time set for that hearing: Gil Lieber Buick Oldsmobile, Inc. v. Motor Vehicle Dealers Bd., 16 Ohio App. 3d 124, 16 Ohio B. 131, 474 N.E.2d 691 (1984).

Venue

The word "may" as used in RC § 119.12 does no more than preserve the right of appeal and establish convenient venue if the disaffected party shall choose to use that right of appeal, and where such party appeals to the common pleas court of a county other than the county in which the place of business of the licensee is located or the county in which the licensee is a resident, the appeal will be dismissed: Carr v. Department of Insurance, 26 Ohio Op. 2d 324, 90 Ohio L. Ab. 46, 187 N.E.2d 649 (CP 1962).

Violation of ambiguous administrative order

Waiver of right to appeal

A right to appeal under RC § 119.12 may be validly waived, but there must be consideration for the waiver: Bowling v. Ohio Real Estate Comm., 91 Ohio App. 3d 746, 633 N.E.2d 620 (1993).

Waiver of rules by agency

Zoning