557 N.E.2d 1224 | Ohio Ct. App. | 1988
This controversy arose when, pursuant to R.C.
"If a contractor has not commenced his work within a reasonable time, or does not carry the same forward with reasonable progress, or is improperly performing his work, or has abandoned, or fails or refuses to complete a contract * * *, the director of transportation shall make a finding to that effect and so notify the contractor in writing, and the rights of the contractor to control and supervise the work shall immediately cease. * * *"
Contesting the director's decision, appellant filed an administrative appeal pursuant to R.C. Chapter 119. The Franklin County Court of Common Pleas dismissed the appeal for lack of jurisdiction over the subject matter of the action. Appellant now brings the matter before this court on the following assignment of error:
"The court below erred in dismissing appellant's administrative appeal for want of jurisdiction in that the default determination rendered by the director of the Ohio Department of Transportation against appellant is appealable under the Ohio Administrative Procedure Act, and to hold otherwise would deprive appellant of its constitutionally protected property interest without due process of law and would constitute an impermissible delegation of discretion to the director of the Ohio Department of Transportation in violation of both the Federal and Ohio Constitutions."
The narrow issue presented by this appeal is whether a decision, by the Director of ODOT, to remove the contractor from a job is subject to the Administrative Procedure Act, R.C. Chapter 119. A court of common pleas has the power to review proceedings of administrative officers and agencies only when granted by law. Section
The court of common pleas does not have jurisdiction unless it is granted by R.C.
"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 * * *." (Emphasis added.)
The key words in R.C.
"`Agency' means * * * the licensing functions of any administrative or executive officer, department, division, bureau, board, or commission of the government of the statehaving the authority or responsibility of issuing, suspending, revoking, or canceling licenses. * * *" (Emphasis added.)
Thus, it is specifically the licensing functions of any department having the authority of issuing, suspending, revoking or canceling licenses which fall within the definition of an "agency."
R.C.
While ODOT does have licensing authority, not all of its decisions involve a licensing function. The decision at issue did not involve a licensing function. The decision was to hold the contractor in default on the contract. It was unrelated to the certification process. Since ODOT was not performing a licensing function, it does not fall within the definition of "agency," and its decision was not an adjudication. "Adjudication" is defined in R.C.
"`Adjudication' means the determination by the highest or ultimate authority of an agency * * *." (Emphasis added.)
Therefore, the decision to hold the contractor in default was not made by an "agency" nor was it an "adjudication." As a result, the decision is not subject to the Administrative Procedure Act.
Appellant has made the argument that it would be deprived of a constitutionally protected property interest without due process of law if the director's decision at issue is found to be not appealable under the Administrative Procedure Act. The property interest identified by appellant is its continued certification with ODOT.
Appellant's argument is premature. The action taken by ODOT was pursuant to its statutory remedy for protecting its contract rights. ODOT has not attempted to revoke the certification that will allow appellant to bid on future contracts. If, in the future, that certification is revoked, the statutes provide for a hearing and appeal. *48
For the foregoing reasons, appellant's assignment of error is overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
STRAUSBAUGH and BROGAN, JJ., concur.
JAMES A. BROGAN, J., of the Second Appellate District, sitting by assignment.