594 N.E.2d 119 | Ohio Ct. App. | 1991
On June 16, 1986, the Alexander Rand Alzheimer's Center (appellant) filed with the Ohio Department of Health ("ODH") a certificate of need ("CON") project application to construct a one-hundred bed nursing home facility in Stark County, Ohio. This application was filed pursuant to Am.Sub.S.B. No. 256, effective June 7, 1986.
On July 9, 1986, ODH requested additional information to enable it to declare the application complete.
In the meantime, Am.H.B. No. 301 was enacted and became effective September 28, 1987. Section 1 of Am.H.B. No. 301 amended Section 3 of Am.Sub.S.B. No. 256, and Section 2 of Am.H.B. No. 301 repealed the existing Section 3 of Am.Sub.S.B. No. 256.
On October 19, 1988, appellant responded with the information requested by ODH on July 9, 1986. On August 29, 1988, ODH requested additional information and this information was furnished January 10, 1989. *163
On January 25, 1989, ODH declared the application complete, evaluating the application under the criteria established under Am.H.B. No. 301 effective at the time the application was declared complete.
Appellant, pursuant to R.C.
Part (A) of assignment of error number one asserts the following:
"The CON Review Board order adopts ODH's erroneous interpretation of the effect of Am.H.B. 301 on Am.Sub.S.B. 256, which interpretation is incorrect, contrary to law and constitutes a retroactive application of law in violation of both the United States and Ohio Constitutions."
Appellant premises this assignment of error on what it perceives to be a retroactive application of the criteria of Am.H.B. No. 301 to its CON application contra to the mandates of R.C.
The appellant urges that in applying for a CON under Am.Sub.S.B. No. 256, the appellant relied upon its understanding that the ODH would continue to use the special review criteria contained in Am.Sub.S.B. No. 256 to evaluate its application, and that ODH's application of Am.H.B. No. 301 without notifying appellant of its intention to do so was a retroactive application of that law.
It appears that appellant's position is that the policy of ODH, at an earlier date, was to permit applications to pend indefinitely. While this procedure was subsequently modified by a rule limiting the period, appellant argues that what was the law in existence at the time of filing the application should govern regardless of when the application was declared complete since no cut-off date existed for declaring an application complete.
This court does not agree. Section 3(B), Am.Sub.S.B. No. 256, reads as follows: *164
"The procedure for determining applications to be approvedpursuant to this section shall be based upon the original datesuch application was declared complete * * *." (Emphasis added.)
Section 3(C), Am.Sub.S.B. No. 256 as amended, was unchanged and still provided that the procedure for determining applications to be approved was determined by the original date the application was declared complete. The appellant cannot be heard to say that it was unaware of this criterion for determining approval of the application since it was the original criterion under Am.Sub.S.B. No. 256 and unchanged by Am.H.B. No. 301.
However, the fact that Am.H.B. No. 301 became effective in September 1987 (and it is presumed that appellant is aware of the legislative changes that affect the CON applications) deprives appellant of any basis to rely upon the prior statute which was repealed. Since Section 3 of Am.Sub.S.B. No. 256 no longer existed after September 28, 1987, any reliance by appellant upon that section would be misplaced.
The parties have agreed that if Am.Sub.S.B. No. 256 controls the evaluation of appellant's application, then the decision of the ODH must be reversed. Conversely, if Am.H.B. No. 301 controls, said order must be affirmed.
This court finds that the controlling element in this case is the statutory requirement of the date that the application was declared complete. That date, January 25, 1989, fell within the special criteria required by Am.H.B. No. 301 and, admittedly, appellant's application was deficient in two significant aspects of complying with that statute and the ODH necessarily was required to deny the application.
Both appellant and appellee cite Anderson v. Blum (1981),
Part (A) of assignment of error number one is overruled.
Part (B) of assignment of error number one states: *165
"The provisions of R.C. §
Appellant claims that R.C.
It is a well-established rule that courts will not decide constitutional questions unless absolutely necessary to dispose of the cases before them. State, ex rel. Herbert, v. Ferguson
(1944),
Further, a reviewing court should not decide a constitutional question if a decision can be reached without reference to the question. Cleveland v. Scott (1983),
Assignment of error number two states:
"The decision of the director of ODH to deny the CON to Alexander Rand was based on unarticulated, unwritten, unannounced ODH policy and is unsupported by reliable, probative and substantial evidence."
This assignment of error by appellant simply stated is that ODH, as a matter of policy, followed the special criteria in Am.H.B. No. 301 as the *166 controlling statute in denying the approval of appellant's application. The hearing transcript reveals that the current view of ODH is that if the law controlling applications changes during the pendency of an application, then the new law would be applied to pending applications. Appellant asserts that this view constituted a policy change in that apparently, at some previous time, that was not ODH's policy to apply to filed and pending applications. The transcript does not indicate what the precise prior policy of ODH has been. Regardless, ODH's policy cannot contravene statutory mandates. In this respect, this assignment of error by appellant is the same as that previously addressed by this court. ODH is required to comply with the statute. The statute spells out the approval date by which an application may be evaluated. ODH's policy cannot vary or contravene the statute. Complying with the statute and evaluating the applications on the basis of the criteria contained in the new statute is not causing the decision to be based on unannounced or unwritten ODH policies.
Assignment of error number two is overruled.
Accordingly, this court, pursuant to R.C.
Decision affirmed.
STRAUSBAUGH and PEGGY BRYANT, JJ., concur.
JAMES J. HOOPER, J., of the Miami County Common Pleas Court, sitting by assignment. *167