CHARLES H. BURNESON, APPELLANT, v. OHIO STATE RACING COMMISSION, APPELLEE.
No. 08AP-794
Court of Appeals of Ohio, Tenth District, Franklin County
March 12, 2009
2009-Ohio-1108
McGRATH and TYACK, JJ., concur.
{¶ 1} Appellant, Charles H. Burneson, appeals from a judgment of the Franklin County Court of Common Pleas affirming the January 23, 2007 amended order of appellee, Ohio State Racing Commission (“OSRC“) which declared him ineligible to obtain any license from the OSRC for a one-year period beginning February 5, 2007, set a reinstatement requirement, imposed a fine of $1,000.00, and assessed costs of $1,376.25. For the following reasons, we affirm the trial court‘s judgment.
{¶ 2} In 2006, the OSRC issued appellant a license to train thoroughbred racehorses. By operation of law, appellant‘s license was to expire on December 31, 2006. On May 30, 2006, a Cuyahoga County Court of Common Pleas jury found appellant guilty of aggravated theft, in violation of
{¶ 3}
{¶ 4} The OSRC issued an amended notice of opportunity letter on October 5, 2006. The amended letter was substantially similar to the original letter, but did not
{¶ 5} An OSRC hearing officer held a hearing on December 8, 2006. Due to his incarceration on the felony conviction, appellant did not attend.2 Appellant was, however, represented by counsel.
{¶ 6} At the hearing, John Izzo, OSRC Deputy Director and Legal Counsel, testified on behalf of the OSRC. Izzo identified a certified copy of the September 15, 2006 entry journalizing appellant‘s felony conviction. Izzo testified that an OSRC investigator notified the OSRC of appellant‘s conviction after reading it in a local newspaper. Although Izzo did not verify all the facts contained in the newspaper article, he verified the conviction on the Cuyahoga County Common Pleas Court website.
{¶ 7} Izzo further testified that staffing problems make it difficult for the OSRC to keep apprised of all felony convictions for its 15,000 licensees. Accordingly, the OSRC relies upon complaints from investigators or racetrack employees. Izzo acknowledged that there were some licensees with felony convictions on their records who were granted or maintained licenses in 2006. However, Izzo stated that the OSRC would take action against any current licensee if the OSRC learned of a felony conviction. As an example, Izzo identified a July 2006 notice of opportunity letter sent by the OSRC to another licensee informing that licensee of its intention to revoke or suspend the licensee‘s license
{¶ 8} Steve Zaper, an OSRC investigator, testified on behalf of appellant. Zaper testified that he interviewed several persons regarding appellant‘s case but could not recall any of their names. He did not prepare a report following his investigation. He further testified that he investigated only one other felony conviction in 2006. He acknowledged that some licensees with felony convictions on their records obtained or maintained licenses in 2006.
{¶ 9} Thereafter, the hearing officer issued a report and recommendation on December 19, 2006, concluding the OSRC‘s proposed action to suspend appellant‘s license was supported by reliable, probative, and substantial evidence and was in accordance with law. In particular, the hearing officer noted that the OSRC provided proof of appellant‘s felony conviction via a certified judgment entry from the Cuyahoga County Court of Common Pleas and that appellant did not dispute the fact of the conviction. Accordingly, the hearing officer recommended that the OSRC suspend appellant‘s license for one year, fine him $1,000, set conditions regarding any future license applications, order appellant to pay the costs of the adjudication hearing, and order appellant to comply with the directives set forth by the trial court in the underlying criminal matter.
{¶ 10} Appellant timely filed objections to the hearing officer‘s report and recommendation. On January 18, 2007, the OSRC convened to consider the matter. On January 23, 2007, the OSRC issued an order adopting the hearing officer‘s recommendation. However, noting that appellant‘s license expired on December 31, 2006, the OSRC ordered that appellant be ineligible to obtain any license for a one-year period beginning February 5, 2007, and that he must appear before the OSRC prior to receiving any future license. The OSRC also imposed a fine of $1,000.00 and assessed costs of $1,376.25.
{¶ 11} Appellant filed a timely appeal, pursuant to
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND ABUSED ITS DISCRETION BY ITS ERRONEOUS INTERPRETATION OF
R.C. § 119.09 THAT SAID STATUTE REQUIRES THAT THE APPELLANT MUST DEMONSTRATE THAT HE SUFFERED BOTH ERROR AND PREJUDICE IN ITS APPLICATION.II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND ABUSED ITS DISCRETION BY HOLDING THAT THE IMPOSITION OF A FINE UPON THE APPELLANT BY THE OSRC DID NOT CONSTITUTE DOUBLE JEOPARDY IN VIOLATION OF THE APPELLANT‘S CONSTITUTIONAL RIGHTS.
III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND ABUSED ITS DISCRETION BY REFUSING TO HOLD THAT THE REGULATION OF THE OHIO STATE RACING COMMISSION WITH RESPECT TO THE UNBRIDLED DISCRETIONARY AUTHORITY TO REFUSE TO GRANT, REVOKE OR SUSPEND A LICENSE
IS A DELEGATION OF LEGISLATIVE POWER AND THEREFORE UNCONSTITUTIONAL.
{¶ 12} In an administrative appeal, pursuant to
{¶ 13} This court‘s standard of review is more limited than that of the trial court. In reviewing the trial court‘s determination that the commission‘s order was supported by reliable, probative, and substantial evidence and was in accordance with law, this court‘s role is limited to determining whether the trial court abused its discretion. Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261. “`The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.‘” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157. Absent an abuse of discretion, this court may not substitute its judgment for that of the administrative agency or the trial court. Provisions Plus v. Ohio Liquor Control Comm., 10th District No. 03AP-670, 2004-Ohio-592, ¶ 8, citing Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 1993-Ohio-122.
{¶ 14} By his first assignment of error, appellant contends the trial court abused its discretion in interpreting
{¶ 15} By letter dated November 21, 2006, appellant requested that the OSRC issue a subpoena requiring Sam Zonak, OSRC‘s Executive Director, to appear as a witness at the hearing. Appellant also requested that the OSRC issue a subpoena duces tecum to Izzo to compel production of all records and applications for the year 2006 pertaining to current and potential licensees who had been convicted of a felony in the preceding ten years.
{¶ 16} The transcript of the hearing indicates that the parties met with the hearing officer prior to the hearing to discuss the subpoenas. At that meeting, counsel for appellant argued that he required Zonak‘s testimony, as well as the information sought by the subpoena duces tecum, to establish that the OSRC selectively enforced its administrative rules against appellant. The OSRC argued that the Zonak subpoena should be denied on grounds that Zonak should not and could not be subpoenaed to testify in every OSRC case simply because he is the executive director. As to the subpoena duces tecum, the OSRC argued that it does not categorize licensed applicants in a database allowing easy access to the information sought by appellant‘s counsel; accordingly, it would be unduly burdensome to review over 15,000 applications by hand
{¶ 17} At the hearing, the hearing officer noted that appellant‘s counsel had declined to review the OSRC‘s records and declined to enter into the stipulation proposed by the OSRC. The hearing officer found the information sought in the subpoena duces tecum to be of marginal relevance, given that
{¶ 18}
[T]he agency may, and upon the request of any party receiving notice of the hearing as required by section
119.07 of the Revised Code, shall issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records, or papers, directed to the sheriff of the county where such witness resides or is found, which shall be served and returned in the same manner as a subpoena in a criminal case is served and returned.
No adjudication order of an agency shall be valid unless the agency is specifically authorized by law to make such order. No adjudication order shall be valid unless an opportunity for a hearing is afforded in accordance with sections
119.01 to119.13 of the Revised Code. Such opportunity for a hearing shall be given before making the adjudication order except in those situations where this section provides otherwise.
{¶ 20} Appellant contended in the trial court that OSRC‘s failure to issue the subpoenas as mandated by
{¶ 21} Appellant contends the trial court erred in interpreting
{¶ 22} Ohio case law supports the trial court‘s interpretation of
{¶ 23} In The Career Plaza v. State Dept. of Commerce (June 30, 1980), 11th District No. 7-186, the licensees argued that they should have been permitted to depose certain witnesses. The court stated that “[o]ur understanding of Chapter 119.09 [is] that it provides for the subpoena of witnesses by the [licensees] at the hearing. Further, appellants have not shown prejudice.” Id. Similarly, in Carratola v. Ohio State Dental Bd. (May 6, 1998), 9th District No. 18658, the licensee argued that the dental board erred in failing to enforce a subpoena issued to a potential witness to appear at the administrative hearing. The court rejected the licensee‘s argument, finding that, in addition to his failure to request that the board enforce the subpoena, the licensee failed to demonstrate how he was prejudiced by the failure of the witness to appear at the hearing.
{¶ 24} In accordance with the foregoing cases, the trial court properly found that, under
{¶ 25} As noted, appellant sought Zonak‘s testimony and the documentary evidence requested in the subpoena duces tecum to support his selective enforcement defense. The OSRC informed appellant‘s counsel prior to the hearing that he could
{¶ 26} Appellant fails to offer anything more than mere speculation that the evidence he sought would establish that the OSRC granted or permitted a similarly situated trainer, that is, one who was convicted of stealing racehorses and selling them to a slaughterhouse, to maintain a trainer‘s license. Appellant provides no compelling rationale why the evidence was required in support of his defense to the charge in this case or how he was prejudiced when denied the evidence. The first assignment of error is overruled.
{¶ 27} Appellant‘s second assignment of error contends the trial court abused its discretion in concluding that the OSRC‘s imposition of a fine did not constitute double jeopardy in violation of his constitutional rights. We disagree.
{¶ 28} In Foe Aerie 2347 v. Ohio State Liquor Control Comm., 10th District No. 01AP-675, 2001-Ohio-8853, this court held that: “[T]he Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, in common parlance, be described as punishment. * * * Rather, the clause protects against the imposition of multiple criminal punishments for the same offense. * * * Because the proceedings before the [Ohio State Liquor Control Commission] were civil, the double jeopardy clause is not invoked.” (Emphasis sic.) Id., citing State v. Gustafson, 76 Ohio St.3d 425, 435, 1996-Ohio-299. As in Foe Aerie 2347, the prohibition against double jeopardy is not implicated in this case because the proceedings before the OSRC and the sanctions imposed upon appellant were civil, not criminal, in nature. Further, as noted by the OSRC, FOE Aerie 2347 approves an administrative agency imposing a fine. “[N]othing suggests the penalty the [Ohio State Liquor Control Commission] imposed, a suspension or alternatively a forfeiture of a fixed sum of money, is punitive in form. Indeed, that such authority was granted to an administrative agency is some evidence the punishment is civil in nature. * * * Moreover, the payment of money is a common sanction in civil proceedings.” Id. Pursuant to FOE Aerie 2347, the OSRC‘s imposition of a fine upon appellant following his conviction in the underlying criminal matter did not constitute double jeopardy in violation of his constitutional rights. The second assignment of error is overruled.
{¶ 29} Appellant‘s third assignment of error contends the trial court abused its discretion in failing to find that
{¶ 30} In Midwestern College of Massotherapy v. Ohio Med. Bd. (1995), 102 Ohio App.3d 17, 22-23, this court discussed the criteria for determining the constitutionality of an administrative rule:
The General Assembly cannot delegate its legislative powers to an administrative body and any such delegation would be unconstitutional. Matz v. J.L. Curtis Cartage Co. (1937), 132 Ohio St. 271, 8 O.O. 41, 7 N.E.2d 220, paragraph six of the syllabus. However, the legislature may pass laws which delegate administrative powers to an administrative body. Id.
Generally, a law which confers discretion on a board without establishing any guidelines is a delegation of legislative power and is unconstitutional. Id., paragraph seven of the syllabus; Weber v. Bd. of Health (1947), 148 Ohio St. 389, 35 O.O. 351, 74 N.E.2d 331, at paragraph three of the syllabus. However, an exception to this general rule applies when a law concerns the state‘s exercise of its police powers. A law which delegates discretion without providing guidelines may nevertheless be valid and constitutional when the law relates to the protection of the public morals, health, safety, or general welfare, and guidelines would defeat the intended legislative objective. Matz, paragraph seven of the syllabus. In such a situation, the administrative body may issue rules and they will be a proper exercise of administrative power provided the rules are not unreasonable, discriminatory, or in conflict with the law. Weber at 396, 35 O.O. at 354, 74 N.E.2d at 335-336. A rule which is unreasonable, arbitrary, discriminatory, or in conflict with law is invalid and unconstitutional because it surpasses administrative powers and constitutes a legislative function. Id. at 398-400, 35 O.O. at 355-356, 74 N.E.2d at 336-337. Nor may an administrative body promulgate rules which add to its delegated powers. Carroll v. Dept. of Adm. Serv. (1983), 10 Ohio App.3d 108, 110, 10 OBR 132, 133-134, 460 N.E.2d 704, 706-707. An administrative body may only promulgate regulations consistent with and predicated upon an express or implicit statutory grant of authority. DDDJ, Inc. v. Ohio Liquor Control Comm. (1990), 64 Ohio App.3d 828, 831, 582 N.E.2d 1152, 1154. A rule that bears no reasonable relation to the legislative purposes of the authorizing statute improperly declares policy. Carroll, supra, at 110, 10 OBR at 133-134, 460 N.E.2d at 706-707.
{¶ 32} The OSRC has not established guidelines with respect to application of
{¶ 33} Allowing the OSRC discretion to take action against the license of a horse trainer who is a convicted felon clearly bears a reasonable relationship to the state‘s interests in maintaining the integrity of the horse-racing industry. The regulation is particularly relevant here, where the record indicates that the felony conviction against appellant arose from appellant‘s theft of racehorses. Consequently, we conclude that
{¶ 34} Having overruled appellant‘s three assignments of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
McGRATH and TYACK, JJ., concur.