*1 is overruled. error assignment of The affirmed. trial
Judgment affirmed. Reece, J., Baird, P.J., concur.
GEISERT, Appellee, BOARD, Appellant. DEALERS VEHICLE OHIO MOTOR 559.] 89 Ohio Bd. Dealers Motor Vehicle as Geisert [Cite Ohio, Appeals County. No. 92-L-111. 24,May
Decided *2 Hentemann,
Paul H. for appellee. Fisher, Lee I. Clouston, General, and David B. Attorney Assistant Attorney General, appellant. Judge.
Christley, Appellant, Ohio Board, Motor Vеhicle Dealers appeals a June 1992 judg- entry ment reversing appellant’s December order revoking James H. Geisert’s as motor status vehicle dealer. 9,1991,
Initially, August on appellee was notified he being afforded an opportunity to have a hearing pursuаnt Chapter 119 to determine whether his license as a motor vehicle dealer should be suspended or revoked. set, appellee’s but 10, 1991, hearing was request, a appellee’s September
On hearing granted and a continuance was The a continuance. attorney requested 26, 1991. for November was reset unrelated in an due to trial set another continuance requested
Appellee his which was denied. attorney, involving matter being forward on November hearing went by counsel. represented hearing: as a result of that findings of fact following issued vehicle the State as a motor dealer currently licensed
“1. Respondent Ohio. Pleas, 30, 1991, in May County the Lake
“2. On or about Common *3 [sic, in of Trafficking to guilty and was convicted plead pled] James Geisert of the Ohio of Section 2925.03 third in violation degree, Drugs, Revised Code. for applications 1991 renewal the 1989 and accompanied Checks which
“3. [sic ] of Motor to the Bureau license was returned North American’s dealer’s funds.” bank for insufficient Vehicles of law: following conclusions also made the Code 2925.03 of the Ohio Revised The violation of Section
“1. Section pursuant of the license grounds for denial returned checks are of 4517.12(A)(3) 4501:1-3-09 the Ohio and Section of the Ohio Revised Code Administrative Code. 4517.12(A)(3) Revised Code and Ohio of the Ohio of Section
“2. Violations for the revocation or grоunds Administrative Section 4501:1-3-09 constitute Code 4517.33 of pursuant vehicle Section suspension of the motor Ohio Revised Code.” conclusions, license be re- appellee’s ordered that appellant
Based on these 30, January as of 1992. voked 1992, County Court of Common 7, appealed to the January
On was appellant’s order Appellee 119.12. contended pursuant Pleas (1) afforded an opportunity in was not contrary respects: to law three denied; (2) arbitrarily and for a was counsel; request continuance for a one-time in of the evidence (3) against weight were the manifest findings by appellant 4501:l-3-09(B). in of Adm. Code they were violation Ohio into the record. No other evidence was entered briefs. parties Both submitted its judgment Pleas filed of Common the Lake Count Court On June order. court the triаl reversed entry. judgment, Appellant timely now two of appealed alleges assignments and error: “1. County The Lake Court of Common Pleas its discretion by that of in substituting appellant, its its own erroneous adopting 4517.33, interpretation of R.C. in neglecting Section and Section 4501:1- 3-09 оf the Administrative Code. Ohio
“2. of County The Lake Common Pleas abused in finding of Motor that the order Vehicle Dealers Board supported by reliable, probative, and substantial evidence.” preliminary matter,
As a R.C. 119.12 sets out the review standard of to be used by the court of сommon in part: states
“The court affirm of complained the order in the agency appeal it finds, upon consideration of entire such record and additional evidence as the admitted, reliable, has order supported by probative, is ” * * * See, also, substantial evidence and is in accordance with law. Cook v. 131, Maxwell Ohio similarly N.E.2d This court held Restaurant, (Nov. 2, Ravenna Liquor 1990), Inc. v. Control Comm. Portage 90-P-2173, 3, App. No. unreported, 170688: WL ‘ * * * role, 119.12, “The trial court’s under R.C. beyond the strict con ’ ‘ * * * straints of questions review rather its role hybrid exercise law and fact a trial short of de novo.’ Luxenberg Village Burton (June Zoning 1983), Appeal’s Board Geauga App. 5, No. unreported, at citing WL Andrews Board Liquor Control 164 Ohio St. *4 51, 390]; 275 131 [58 O.O. N.E.2d University (1980), Cincinnati v. Conrad of 65, Ohio St.2d [17 O.O.3d 1265].” N.E.2d appeal When an pleas court, is taken from the common appellate treats it would any as it civil appeal: other
“The of the court shall reversed, [trial] be final conclusive unless vacated, or on appeal. modified Such appeals may be taken by either the party or the agency, proceed actions, shall as in the case in of civil appeals and shall be pursuant and, to the Rules of Appellate to Procedure the extent not in conflict ” rules, Chapter those of 119.12; 2505. see, Revised Code. R.C. also, Ravenna Restaurant at 3-4. error, of appellant specifically that the alleges
County Court of Common Pleas abused by adopting its own interpretation erroneous of R.C. 4517.33 and by failing Ohio Adm.Code 4501:1-3-09.
Courts have held an that agency given administrative must be due in interpreting deference its own statutes. See Lorain Cty. Bd. Edn. v. State of 266; 264, 257, 260, (1988), 533 N.E.2d Bd. 40 Ohio St.3d Emp. Relations Council, Twp. Trustees Police, Inc. Hubbard v. Ohio Labor Order Fraternal of 1386, 1389; Twp. Hydeck 589 N.E.2d Ohio Suffield 91-P-2319, 1992 WL (Mar. 1992), 6, unreported, Portage App. No. Bd. Zoning of 190164. not defer to pleas of did that the court common contends
Appellant of own its statutes. appellаnt’s interpretation part: in 4517.33 states or if the licensee or permit any or revoke license may suspend
“The board sections pursuant issued violated the rules any has manner permittee Code, section 4501.02 or has violated to 4517.65 of the Revised 4517.01 any or law committing viоlating Code, has convicted of or been Revised sales of or selling, taxing, licensing, regulation any way relates that motor vehicles.” only be this mean that interpreted pleas court of common taxing, licensing regulation to the
revoked if the also related vеhicles. sales of motor noted that: interpretation, its the trial court support of ‘felony’is statute reveals that the word language
“An examination It violating any law.’ following phrase, a comma from the ‘or not separated any way ‘that in subsequent phrase logiсal to conclude that therefore vehicles,’ of motor modifies of sales selling, taxing, licensing, word, ‘felony’ as well. law1 but phrase, the ‘or only extent concluded that to the analysis, pleas the court common Based on trafficking in his was based on conviction liсense revocation had its discretion. drugs, appellant any felony suffices its that a conviction argues interpretation
Appellant control. First, should not punctuation asserts for revocation. 16, 1 N.E. St. Payne Albright common court’s convincingly argues that then more *5 beginning “any if of the sentence portion would be redundant the interpretation * * * ** modify “felony.” etc. was meant relating] selling law felonies, the words, law” was meant include beginning “any if the clause other could legislature redundant. The “felony” unnecessary was and therefore word “felony” “or has using by saying the word have the same result without achieved any way the law that been convicted vehicles.” of sales motor licensing, Such a construction was not used and we must presume usage “felony” was intentional.
Moreover, Ohio Adm.Code 4501:1-3-09 states: “(A) The registrar deny application any person shall for a motor vehicle license, dealer’s distributor’s license or auction owner’s license or for the renewal license, of a motor vehicle dealer’s distributor’s license or auction owner’s license rеgistrar that the applicant has been convicted a felony, except as if finds provided below.
“(B) (A) Paragraph of this rule shall if apply the conviction prior occurred to the effective date of this rule and was not related to the selling, taxing, vehicles, regulation of sales of motor held a applicant valid license, motor vehicle dealer’s distributor’s license or auction owner’s license (Em- within twelve immediately months preceding application.” date of the added.) phasis (B) exception
Herе the set out in and, thus, division is stated in the conjunctive requires presence of all three factors. words, excepted, other to be the offense has to relate taxing,
licensing, or regulation
vehicles,
of sales of motor
and be before the effective date
rule,
person
had to hold a valid motor vehicle dealer’s license
months;
within
compliance
twelve
with just one of the two requirements
is not
Here,
enough.
the appellee met
two of the factors but failed to meet
requirement
that the conviction hаd to occur
the effective date of the rule.
before
(B)
Thus, division
did not
and appellee
correctly
evaluated
the sole
(A)
standard set out in division
he been convicted of a felony.
—had
We do
disagree
that the cases cited seem to relatе to the selling, taxing,
licensing, or regulation
vehicles,
of sales of motor
e.g., Pioneer Chevrolet-
Cadillac, Inc. v.
Ohio Motor Vehicle
50, 17
Dealers Bd.
17 Ohio St.3d
OBR
(license
42,
Nevertheless, applying of case law R.C. there is a dearth although business, dicta to the motor vehicle relating than ones general felonies in rather at felony that the Supreme Court believed in Pioneer would indicate that to the not have to be related issue does vehicles.
sales motor
There the court stated: 4517.33, it must be a under R.C. impose
“In sanction order the board or a law either a that was convicted of appellee established added.) Pioneer, 17 Ohio (Emphasis motor vehicles.” relating selling to the N.E.2d at 17 OBR at St.3d one the statute to mean interpreted the court has
By using the word “either” as would be argument “felony” is Again, redundancy applicable, other. related to felonies which really including if the court mеant superfluous sales, of motor vehicles. etc. in Pioneer arguments Supreme Court’s dicta We find unrelated may revoked on the basis of be persuasive sales business. automobile
Therefore, assignment has merit. error, contends the court of appellant
In thе second finding not the order of the Motor pleas common reliable, and substantial by probative was supported Vehicle Dealers Board evidence. stated, affirm an administrative the court of common must previously As the “entire record order
agency’s order it finds from * * reliable, *.” R.C. 119.12. by and substantial evidence supported probative, not exactly properly it is which evidence was assignment, this clear fact, in its brief that appellant *7 order. The trial court did enough support appellant’s not substantial finding. in reversing aрpellant’s abuse its discretion without merit. assignment The second trial court is reversed per a motor vehicle dealer is revoking appellant’s status as
board’s reinstated.
Judgment accordingly. J., concurs. Nader,
Ford, P.J., separately. concurs Judge. Presiding
Ford, however, my I I write because foregoing opinion; separately concur founded, in part, upon dеcision is two additional factors. time,
First, Ohio Adm.Code 4501:1-3-09 became effective 1986. Since that legislature any steps indicating has not taken that it views such rule as statute, This, conflicting coupled with the R.C. 4517.33. the rule of recognized by majority, agency’s interpretation that an administrаtive of a courts, great weight by statute is to be afforded leads me to a conclusion that majority reading legislature the statute as the intended. 4501:l-3-09(A) Second, makes it clear that a dealer’s Ohio Adm.Code felony. shall not be renewed if the dealer commits a section does not Such contain the “that in modifying language way (A) Furthermore, of sales of motor vehicles.” division regulation to a applies only selling, taxing, licensing conviction related to the if such sales of motor vehicles conviction occurred after the rulе’s 4501:l-3-09(B). Thus, prior effective date. Ohio Adm.Code to his convic- tion, appellee provision was on notice virtue of this that it would lead to license, revocation of his it related to regardless whether etc., of motor vehicles. notes weighed by pleas. the court common opinion judgment entry. in the specific there is no reference trial conclusion that only argument that is court’s apparent habitually obligations. default on financial finding erred in did 4517.12(A)(3) be if the is found applicant R.C. states that a license denied obligations. habitually default on financial accompanying appellee’s of the checks Appellant found that return bank for of Motor Vehicles renewal to the Bureau applications in violation enough funds to constitute a habitual default insufficient 4517.12(A)(3). evidence, Thus, it was probative there was reliable and although