Just Like Home 1 v. Ohio Dept. of Health
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[Cite as Just Like Home 1 v. Ohio Dept. of Health, 2010-Ohio-3362.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO JUST LIKE HOME 1, Appellant, : OPINION : CASE NO. 2010-T-0006 - vs - : OHIO DEPARTMENT OF HEALTH, : Appellee. : Administrative Appeal from the Trumbull County Court of Common Pleas, Case No. 2009 CV 2330. Judgment: Affirmed. James J. Leo, 10350 Sage Creek Drive, Galena, OH 43021 (For Appellant). Richard Cordray, Attorney General, and Kristen Duff Starr, Assistant Attorney General, State Office Tower, 26th Floor, 30 East Broad Street, Columbus, OH 43215 (Appellee). DIANE V. GRENDELL, J. {¶1} Appellant, Just Like Home 1 (JLH1), appeals the Judgment Entry of the Trumbull County Court of Common Pleas, in which the trial court upheld the order of appellee, Ohio Department of Health (ODH), revoking and not renewing the license of JLH1 pursuant to R.C. 3722.05 and Ohio Admin. Code Chapter 3701-20. following reasons, we affirm the decision of the trial court. For the {¶2} JLH1 is an adult care facility, located in Warren, Ohio, that had been licensed by the State of Ohio through ODH since 1998. A Complaint Survey of the facility was conducted on August 28, 2008, alleging that the facility was severely out of compliance with certain rules and regulations. {¶3} The survey listed that JLH1 was deficient in the following: failing to have a staff member present in the facility; manager qualifications; staff testing for tuberculosis; staff training; staff first aid training; personal care and service training; minimum annual continuing education requirements; record storage; medications administration; prescription storage; repackaging of medications; timing of initial health assessments; resident admission tuberculosis testing; safe, healthy, clean environment; and courtesy, respect, and dignity toward residents. {¶4} The Revised Code provides, [i]f an adult care facility fails to comply with any requirement ***, the director of health may do any one or all of the following: (A) *** deny, revoke, or refuse to renew the license of the facility; (B) Give the facility an opportunity to correct the violation ***; (C) Issue an order suspending the admission of residents to the facility ***; (D) Impose a civil penalty ***; (E) Petition the court of common pleas for injunctive relief ***. R.C. 3722.05. Further, R.C. 3722.06 provides except in cases of violations that jeopardize the health and safety of any of the residents, if the director determines that a licensed adult care facility is in violation of this chapter or of rules adopted pursuant to this chapter, the director shall give the facility an opportunity to correct the violation. {¶5} After an inspection, ODH sent a letter to JLH1 proposing to revoke its license, rather than renew, based on numerous violations of R.C. Chapter 3722 and 2 OAC Chapter 3701-20. Due to the severity of the violations, JLH1 was not provided with a Plan of Correction or an opportunity to correct the deficiencies. {¶6} JLH1 filed an appeal and requested a hearing. A hearing was held and various documents were admitted into evidence. Social worker, Kristine Moses, testified at the hearing on behalf of the ODH. She testified regarding the 15 violations that were identified in the survey of JLH1. The owner and operator of JLH1, Eugenia Mihas, also testified regarding the deficiencies and findings in the survey. {¶7} Additionally, at the hearing, JLH1 raised an argument involving a residential group home known as Stimmel Elderly Care. The ODH conducted a survey of Stimmel, finding numerous violations, some similar or identical to the violations found in the instant case. The ODH entered into a settlement agreement with Stimmel, allowing the facility to remain in operation if the deficiencies were corrected.1 {¶8} The Hearing Officer issued a Report and Recommendation2, recommending that the ODH revoke and not renew the license to operate JLH1. The Hearing Officer found that [b]ased on the arguments of counsel and the testimony of all the witnesses as well as the documents that were admitted into evidence, and given the weight that must be accorded to the evidence, ODH has proven, by a preponderance of the evidence, multiple deficiencies and violations of R.C. Chapter 3721 and OAC Chapter 3701-20. {¶9} An order was subsequently issued by the ODH, adopting the Hearing Officer s Report and Recommendation and revoking JLH1 s license. 1. The Hearing Officer noted in his report that he did not have the authority or discretion to recommend a settlement agreement. The Hearing Officer further commented that the discretion to enter into a settlement agreement is within the Director of ODH s statutory authority. 2. The Report and Recommendation was amended on August 27, 2009, to correct an error that was discovered. 3 {¶10} JLH1 appealed the decision to the trial court. {¶11} The trial court found that the decision of the ODH was not unlawful, unreasonable, or against the manifest weight of the evidence. Further, the court found that the decision affirming the recommendations of the hearing officer in this matter were based on probative, reliable, and substantial evidence and were in accordance with law. Accordingly, the trial court affirmed the decision of the ODH to revoke the license of JLH1. Additionally, the trial court placed a stay on the judgment, to remain in effect pending any appeal. {¶12} JLH1 timely appeals and raises the following assignments of error: {¶13} [1.] The lower court erred in concluding that procedural due process only requires that agencies follow procedures and, if such procedures are followed, arbitrary results are irrelevant. {¶14} [2.] The lower court erred when it essentially found that the outcome for JLH1 was an arbitrary one, but failed to conclude that JLH1 s due process rights were violated. {¶15} R.C. 119.12 sets forth a specific standard of review for administrative appeals; namely, a court of common pleas must affirm the decision of an administrative agency when that decision is supported by reliable, probative, and substantial evidence and is in accordance with the law. Ruckstuhl v. Ohio Dept. of Commerce, 11th Dist. No. 2008-G-2873, 2009-Ohio-3146, at ¶19 (citation omitted). {¶16} The evidence required by R.C. 119.12 can be defined as follows: (1) Reliable evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) Probative 4 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. (1992), 63 Ohio St.3d 570, 571 (footnotes omitted). {¶17} We review the court of common pleas decision for an abuse of discretion. *** Where issues of law are involved, however, we exercise a plenary power of review. *** That is, issues of law require an independent determination of the law to be applied to the facts found by the agency and held by the common pleas court to be supported by reliable, probative and substantial evidence. Ruckstuhl, 2009-Ohio- 3146, at ¶22 (citations omitted). {¶18} Appellate review is limited to determining whether the trial court abused its discretion in finding the board s decision was supported by reliable, probative and substantial evidence. Id. at ¶51 (citation omitted). {¶19} Furthermore, [u]nder this standard of review, we cannot reverse the common pleas court s decision if it contains a mere error in judgment; instead, a reversal can only occur when the lower court s ruling was based upon a perversity of will, passion, prejudice, partiality, or moral delinquency. Id., quoting Chlysta v. Ohio State Dental Bd., 174 Ohio App.3d 465, 2007-Ohio-7112, at ¶27 (citation omitted). {¶20} These requirements are based on the long-accepted principle that considerable deference should be accorded to an agency s interpretation of rules the agency is required to administer. State ex rel. Celebrezze v. Natl. Lime & Stone Co. (1994), 68 Ohio St.3d 377, 382, 1994-Ohio-486. 5 {¶21} As JLH1 s assignments of error both interrelated, they will be addressed together. {¶22} JLH1 first argues that because JLH1 was given the ultimate penalty and because Stimmell received no penalty, despite committing most of the same violations, the ultimate outcome for JLH1 was arbitrary and, therefore, violated due process. Further, JLH1 claims that [p]rocedural due process requires the avoidance o[f] arbitrary results and thereby limits ODH s discretionary authority such that ODH may not treat similarly situated entities differently, as JLH1 and Stimmell were treated differently. {¶23} The Due Process Clause of the Fourteenth Amendment to the United States Constitution is applicable, to some extent, in most administrative hearings. State ex rel. B.F. Goodrich Co. v. Indus. Comm. of Ohio (1991), 73 Ohio App.3d 271, 274 (citation omitted). Procedural due process, as it applies to administrative hearings ***, includes the right to a reasonable notice of hearing as well as a reasonable opportunity to be heard. Id. at 275 (citation omitted). {¶24} However, due process is a flexible concept and calls for such procedural safeguards as the particular situation demands. *** The United States Supreme Court and Ohio Supreme Court both use the test expressed in Mathews v. Eldridge (1976), 424 U.S. 319, 335 ***, as the basis for due process analysis in administrative hearings. *** Under that test, the court must weigh the following three factors to determine whether the process granted in the administrative proceeding is constitutionally adequate: (1) the private interest at stake; (2) the risk of an erroneous deprivation of that interest and the probable value of additional procedural safeguards; and (3) the government s interest, including the function involved and the fiscal and administrative 6 burdens that the additional or substitute procedural requirements would entail. LTV Steel Co. v. Indus. Comm. of Ohio (2000), 140 Ohio App.3d 680, 688-689 (citations omitted). {¶25} JLH1 does not argue that it did not receive proper notice and/or a reasonable opportunity to be heard. JLH1 essentially argues that it was denied meaningful review, because Stimmell was accorded different treatment for similar violations. [A] violation of due process ensued when the decision maker did not consider evidence presented at the hearing in some meaningful manner. Aircraft Braking Sys. Corp. v. Ohio Civil Rights Comm., 9th Dist. No. 22841, 2006-Ohio-1304, at ¶27 (citation omitted). {¶26} [A] party had been sufficiently heard for due-process purposes when the decision maker in some meaningful manner, considered evidence obtained at [a] hearing. Id. at ¶29 (citations omitted); Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 12th Dist. No. CA91-01-009, 1991 Ohio App. LEXIS 5718, at *17 ( [t]here is nothing in the record to indicate that the members had not reviewed the matter thoroughly. Therefore, there was no due process violation. ). {¶27} In the instant situation, the record reflects evidence of violations that are serious in nature. Accordingly, there was no due process violation. {¶28} JLH1 next argues that the decision to revoke its license was not in accordance with the law. JLH1 argues that ODH may not treat some similarly situated entities vastly differently. {¶29} [T]he conscious exercise of some selectivity in enforcing a statute fair on its face does not in and of itself amount to a constitutional violation. Whitehall v. Moling 7 (1987), 40 Ohio App.3d 66, 69 (citation omitted). [T]he mere fact that a governmental agency applied a statute differently in one instance is not sufficient to establish selective enforcement. Instead, in order to establish a violation of the right to equal protection, a party must show that the agency purposely or intentionally discriminated in its application of the statute. Tsagaris v. Ohio Dept. of Commerce, 11th Dist. No. 95-T5256, 1996 Ohio App. LEXIS 2001, at *11-*12; Snowden v. Hughes (1944), 321 U.S. 1 (for selective enforcement to constitute a denial of equal protection, the defendants must demonstrate purposeful or intentional discrimination). {¶30} [A] defendant must demonstrate actual discrimination due to invidious motives or bad faith. Intentional or purposeful discrimination will not be presumed from a showing of differing treatment. State v. Freeman (1985), 20 Ohio St.3d 55, 58 (citation omitted); See State ex rel. Celebrezze v. Thermal-Tron, Inc. (1992), 71 Ohio App.3d 11, 19 ( The defendants presented evidence that other businesses *** were either not prosecuted or received lesser fines. *** Even assuming, arguendo, that Thermal-Tron demonstrated it was situated similarly to these other businesses, nothing in the record indicates the Ohio EPA acted with invidious motives or bad faith. *** Thus, we find no violation of the defendants equal protection rights. ). {¶31} There is nothing in the record to indicate actual discrimination due to invidious motives or bad faith. {¶32} Furthermore, although JLH1 and Stimmell were cited for some of the same deficiencies, various violations that jeopardized the residents health and safety were found at JLH1 while the violations were not found at Stimmell. JLH1 and Stimmell had different violations, circumstances, and procedural facts. 8 {¶33} Accordingly, the trial court did not abuse its discretion in finding that the ODH s decision was supported by reliable, probative and substantial evidence and was in accordance with the law. {¶34} JLH1 s assignments of error are without merit. {¶35} For the foregoing reasons, the Judgment Entry of the Trumbull County Court of Common Pleas, affirming the decision of the ODH revoking JLH1 s license, is affirmed. Costs to be taxed against appellant. MARY JANE TRAPP, P.J., COLLEEN MARY O TOOLE, J., concur. 9
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