BSI Sec. Servs. v. Ohio Dept. of Pub. SafetyBSI Sec. Servs. v. Ohio Dept. of Pub. Safety
MICHAEL DeWINE, Atty. Reg. #0009181, by CHERYL R. HAWKINSON, Atty. Reg. #0055429, Office of the Ohio Attorney General, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215 Attorney for Defendant-Appellee
CANNON, J., sitting by assignment.
{¶ 1} This administrative appeal is submitted to this court on the record and the briefs of the parties. Appellant, BSI Security Services, appeals the judgment entered by the{¶ 2} BSI is a security firm. Appellee is charged with regulating security firms such as BSI. On January 2, 2009, appellee sent a notice of intent to revoke or suspend license or to impose a civil penalty to BSI, via registered mail. However, this notice was returned as undelivered due to an incorrect address. On February 6, 2009, appellee sent a second notice of intent to revoke or suspend license to BSI. The record does not indicate where this second notice was sent. In addition, the record does not contain a certified mail receipt of the service card. However, the record contains admissions from BSI that it actually received the February 2009 notice. The notices alleged that BSI employees were not properly registered.
{¶ 3} BSI did not request an administrative hearing within 30 days of receiving the notice of intent to revoke license. Appellee issued an adjudication order finding BSI in violation of
{¶ 4} Appellee filed a motion to dismiss the appeal, arguing that BSI had not exhausted its administrative remedies. The basis of appellee‘s motion was that BSI did not request a hearing within 30 days of receiving the February 2009 notice of intent to revoke or suspend license. BSI filed a response in opposition to appellee‘s motion to dismiss. Therein, BSI acknowledged that appellee sent the notices of intent to revoke or suspend license. BSI asserted that its counsel had contacted appellee in an attempt to obtain the
{¶ 5} The trial court granted appellee‘s motion to dismiss, finding that BSI had failed to exhaust its administrative remedies.
{¶ 6} BSI has timely appealed the trial court‘s judgment entry to this court and raises the following assignment of error:
{¶ 7} “The common pleas court abused its discretion by finding that BSI failed to exhaust its administrative remedies and failed to perfect its appeal as required by
{¶ 8} At the appellate level, we note there is a highly-deferential standard of review in an
{¶ 9} There are two primary issues for this appeal: (1) the adequacy of the notices sent to BSI and (2) the sufficiency of the record submitted to the trial court by appellee.
{¶ 10} BSI argues that
{¶ 11} “The doctrine of exhaustion requires a person to exhaust administrative remedies before seeking redress from the judicial system.” Jain v. Ohio State Med. Bd., Franklin App. 09AP-1180, 2010-Ohio-2855, at ¶10, citing Basic Distrib. Corp. v. Ohio Dept. of Taxation, 94 Ohio St.3d 287, 290, 2002-Ohio-794, citing Noernberg v. Brook Park (1980), 63 Ohio St.2d 26. The doctrine of exhaustion of administrative remedies is intended to permit administrative agencies the opportunity to exercise their expertise in resolving the matter prior to a party seeking involvement from the courts. Jain v. Ohio State Med. Bd., at ¶10. (Citations omitted.) “Allowing a claimant to raise an issue for the first time in an appeal to the court of common pleas would frustrate the statutory system for having issues raised and decided through the administrative process.” Id. (Citations omitted.)
{¶ 12} In this matter, BSI has waived the issue of whether the notice sent by appellee was proper, since BSI did not exhaust its administrative remedies by raising this issue at the administrative level.
{¶ 13} Further, a party generally waives the right to appeal an issue that could have been, but was not, raised in earlier proceedings. Jain v. Ohio State Med. Bd., at ¶10, citing MacConnell v. Ohio Dept. of Commerce, Franklin App. No. 04AP-433, 2005-Ohio-1960, at ¶21. See, also, Staschak v. State Med. Bd. of Ohio, Franklin App. No. 03AP-799, 2004-Ohio-4650, at ¶33-35; Grill v. Ohio Dept. of Job & Family Servs., Medina App. No. 03CA0029-M, 2003-Ohio-5780, at ¶19. Any procedural errors in the administrative review process should be argued and disposed of during the initial appeal, and may not be raised for
{¶ 14} Moreover, in addition to being waived, BSI‘s argument fails on its merits as the record demonstrates that BSI received the notice of intent to revoke or suspend its license. In BSI‘s notice of appeal to the trial court, its counsel, David Stenson, asserted the following: “[p]rior to the adjudication order the undersigned counsel spoke with [appellee] in February of 2009 based on a notice of intent to revoke or suspend BSI license.” Also, in its response to appellee‘s motion to dismiss, BSI asserted:
{¶ 15} “Appellee did in fact send Appellant two notices of intent to revoke or suspend Appellant‘s license consistent with
{¶ 16} Accordingly, at the trial court level, BSI specifically acknowledged receiving the notice of intent to revoke or suspend license. Also, it conceded that it did not request a hearing, which appears to have been a strategic decision. BSI concluded that “no additional meeting or hearings were necessary” since appellee had not provided the requested names of the employees. BSI‘s counsel determined that a hearing would have been “totally useless.”
{¶ 17} BSI also asserts that an agency is required to file a complete record with the trial court in an
{¶ 18} BSI‘s assignment of error is without merit.
{¶ 19} The judgment of the Montgomery County Court of Common Pleas is affirmed.
GRADY, P.J., and FROELICH, J., concur.
(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Lawrence J. White
Michael DeWine
Cheryl R. Hawkinson
Hon. Timothy N. O‘Connell