[Cite as Crawford-Cole v. Lucas Cty. Dept. of Job & Family Servs., 121 Ohio St.3d 560, 2009-
Ohio-1355.]




   CRAWFORD-COLE, APPELLEE, v. LUCAS COUNTY DEPARTMENT OF JOB &
                           FAMILY SERVICES, APPELLANT.
       [Cite as Crawford-Cole v. Lucas Cty. Dept. of Job & Family Servs.,
                       121 Ohio St.3d 560, 2009-Ohio-1355.]
Administrative procedure – R.C. Chapter 5104 – Child day-care – Time for
        appeal of agency decision revoking certification of type B family day-care
        home is set forth in Ohio Adm.Code 5101:2-14-40 – Type B family day-
        care homes receive certification from county agency, not state – Deadline
        in R.C. 119.07 does not apply, as R.C. Chapter 119 applies only to state
        agency decisions.
  (No. 2008-0462 — Submitted January 13, 2009 — Decided March 31, 2009.)
                APPEAL from the Court of Appeals for Lucas County,
               No. L-07-1188, 174 Ohio App.3d 617, 2008-Ohio-359.
                                 __________________
                               SYLLABUS OF THE COURT
R.C. 119.07, which establishes a 30-day time period in which to request a hearing
        on an agency determination, applies only to state agencies.                   Ohio
        Adm.Code 5101:2-14-40, which sets forth a 10-day period in which to
        request a hearing on a county’s action concerning the certification of a
        type B family day-care home, applies to county agencies.
                                 __________________
        O’DONNELL, J.
        {¶ 1} The Lucas County Department of Job & Family Services
(“LCDJFS”) appeals from a decision of the Sixth District Court of Appeals that
reversed the trial court’s order dismissing Patricia Crawford-Cole’s administrative
appeal from the agency’s revocation of her certificate to operate a type B family
                             SUPREME COURT OF OHIO




day-care home. The issue presented concerns which time period applies for a
type B day-care home provider to request administrative review of a county’s
order revoking the provider’s certificate. According to the trial court, a 10-day
period applies pursuant to Ohio Adm.Code 5101:2-14-40, while the court of
appeals held that a 30-day period applies pursuant to R.C. 119.07.
       {¶ 2} After review, we conclude that R.C. 119.07, which establishes a
30-day time period in which to request a hearing on an agency determination,
applies only to state agencies. Ohio Adm.Code 5101:2-14-40, which sets forth a
10-day period in which to request a hearing on a county’s action concerning the
certification of a type B family day-care home, applies to county agencies.
                          Facts and Procedural History
       {¶ 3} In July 2006, Crawford-Cole and LCDJFS entered into a contract
authorizing Crawford-Cole to operate a type B family day-care in her home.
Shortly after the effective date of the contract, on July 20, 2006, LCDJFS
conducted an unannounced inspection of Crawford-Cole’s home, and the
investigator found ten violations of state day-care regulations.
       {¶ 4} On July 24, 2006, LCDJFS sent Crawford-Cole a letter by certified
mail notifying her that the agency had decided to revoke her certificate as of
August 3, 2006, based on the violations. The letter also informed Crawford-Cole
that she could request a hearing on the decision pursuant to Ohio Adm.Code
5101:2-14-40, which requires the request to be filed within 10 days of the date of
the revocation letter. Someone in Crawford-Cole’s household signed for the
certified mail receipt, although the date of receipt is not clear from the record.
       {¶ 5} Crawford-Cole did not, however, file a timely request pursuant to
the Administrative Code. Rather, she wrote LCDJFS a letter dated August 10,
2006, claiming that she had not received notice until August 9, 2006. She also
called the agency, which advised her that she had missed the deadline and that her
request for a hearing would not be granted.




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                                January Term, 2009




       {¶ 6} In September 2006, Crawford-Cole filed an administrative appeal
in the Lucas County Common Pleas Court.           LCDJFS moved to dismiss the
appeal, contending that Crawford-Cole had not exhausted her administrative
remedies, because she had failed to request a hearing within 10 days as required
by Ohio Adm.Code 5101:2-14-40.          The trial court granted the motion and
dismissed the appeal for lack of subject matter jurisdiction.
       {¶ 7} Crawford-Cole appealed to the Sixth District Court of Appeals,
arguing that the administrative rule is invalid because it conflicts with R.C.
119.07, that LCDJFS did not follow the administrative rule, and that the
administrative rule violates due process. The court of appeals held that the 10-day
filing period set forth in the Administrative Code is invalid because it conflicts
with R.C. 119.07, which sets forth a 30-day period in which to appeal a decision
by an agency. Crawford-Cole v. Lucas Cty. Dept. of Job & Family Servs., 174
Ohio App.3d 617, 2008-Ohio-359, 883 N.E.2d 1118, ¶ 24. Thus, the appellate
court reversed and remanded to the agency for further proceedings. The court of
appeals did not review her remaining assignments of error, finding that its
decision rendered them moot. Id. at ¶ 25, 26.
       {¶ 8} In its memorandum in support of jurisdiction filed in this court,
LCDJFS presented one proposition of law:           “The Appellate Court erred in
applying the R.C. 119.07 thirty-day period to appeal a Certificate revocation by
[LCDJFS] instead of the ten-day period under OAC 5101:2-14-40 because
although the rule may have been adopted in accordance with R.C. Chapter 119,
R.C. Section 5101.09 specifically exempts the rule from the requirements of R.C.
Sections 119.06 to 119.13, which include the 30-day limit.” In its merit brief,
LCDJFS presents two additional propositions that essentially raise the same issue:
whether a 10-day filing period applies to Crawford-Cole’s hearing request
pursuant to the Administrative Code, or whether a 30-day filing period applies
pursuant to the Revised Code.




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       {¶ 9} LCDJFS concedes that R.C. 119.07 sets forth a 30-day period in
which to request a hearing from an agency’s administrative decision, but it asserts
that R.C. 5101.09 specifically exempts county agencies from this requirement.
The state of Ohio has filed an amicus brief in support of LCDJFS in which it
argues that R.C. Chapter 119 applies only to state agencies. Crawford-Cole, on
the other hand, claims that R.C. 119.07 applies in this instance and that she should
have been provided 30 days in which to request a hearing from the county.
                        Type B Family Day-Care Homes
       {¶ 10} This case concerns the procedure for seeking a hearing on the
decision of a county department of job and family services to revoke the
certification for a type B family day-care home. R.C. 5104.01(SS) defines “Type
B family day-care home” as “a permanent residence of the provider in which
child care is provided for one to six children at one time and in which no more
than three children are under two years of age at one time.” Furthermore, R.C.
5104.01(F) defines a “certified type B family day-care home” as “a type B family
day-care home that is certified by the director of the county department of job and
family services pursuant to section 5104.11 of the Revised Code to receive public
funds for providing child care pursuant to this chapter and any rules adopted
under it.”
       {¶ 11} R.C. 5104.11 sets forth the specific requirements for type B homes
and authorizes the county departments of job and family services to conduct
inspections and to issue and revoke certifications.           For example, R.C.
5104.11(A)(1) states that “[e]very person desiring to receive certification for a
type B family day-care home to provide publicly funded child care shall apply for
certification to the county director of job and family services * * *.” R.C.
5104.11(B) then states, “If the county director of job and family services
determines that the type B family day-care home complies with this chapter and
any rules adopted under it, the county director shall issue to the provider a




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certificate to provide publicly funded child care, which certificate is valid for
twelve months, unless revoked earlier. The county director may revoke the
certificate after determining that revocation is necessary.”
        {¶ 12} A critical distinction exists between type B homes and all other
day-care facilities, such as type A homes, in that a type B home receives
certification from a county department of job and family services, while all other
facilities receive licensure from the state department of job and family services.
R.C. 5401.11(B) (county director of job and family services is responsible for
issuing certificate to type B facilities, i.e., facilities for one to six children); R.C.
5401.02(A) (director of state department of job and family services is responsible
for licensing facilities for more than six children, including type A homes).
        {¶ 13} The General Assembly has authorized the director of job and
family services to “adopt rules pursuant to Chapter 119 of the Revised Code
governing the certification of type B family day-care homes.” R.C. 5104.011(G).
According to R.C. 5104.011(G)(2):
        {¶ 14} “The rules * * * shall include the following:
        {¶ 15} “* * *
        {¶ 16} “(g) Procedures for issuing, renewing, denying, refusing to renew,
or revoking certificates.”
        {¶ 17} Pursuant to this statutory mandate, the Ohio Department of Job &
Family Services promulgated Ohio Adm.Code 5101:2-14-40, which provides:
        {¶ 18} “(A) An applicant, certified professional type B or limited home
provider, and professional or limited certified in-home aide shall be informed in
writing of the right to request a county appeal review when questioning the
actions of the county department of job and family services (CDJFS) with respect
to their certification.
        {¶ 19} “(B) The following actions of the CDJFS are subject to appeal:
        {¶ 20} “* * *




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        {¶ 21} “(3) The CDJFS has notified the provider that his or her certificate
has been or will be revoked.”
        {¶ 22} Former Ohio Adm.Code 5101:2-14-40(C) then stated, “The
request for a county appeal review shall be submitted in writing to the CDJFS no
later than ten calendar days after the mailing date of the CDJFS notification that
there will be an adverse action taken on his/her application for certification or
his/her certification.”1
        {¶ 23} Thus, as it existed in 2006, Ohio Adm.Code 5101:2-14-40(C)
required a type B family day-care provider to request a review hearing from the
county department of job and family services within 10 days of the mailing date
of the department’s notification. In this case, Crawford-Cole did not file a request
within this period, and the trial court concluded that she had failed to exhaust her
administrative remedies. On appeal, however, the Sixth District held that the 10-
day period set forth in Ohio Adm.Code 5101:2-14-40 is invalid because it
conflicts with the 30-day appeals period in R.C. 119.07.
      Whether Ohio Adm.Code 5101:2-14-40 conflicts with R.C. 119.07
        {¶ 24} The appellate court based its decision on the fact that R.C.
5104.011(G) obligates the Ohio Department of Job and Family Services to “adopt
rules pursuant to Chapter 119 of the Revised Code governing the certification of
type B family day-care homes.”          According to the court of appeals, this
requirement demonstrates that the legislature intended the rules promulgated
under R.C. 5104.011(G)(2)(g) to comply with the notice and hearing requirements
for agency decisions set forth in R.C. Chapter 119.
        {¶ 25} R.C. 119.07 states, “Notice [of the agency’s action] shall be given
by registered mail, return receipt requested, and shall include the charges or other
reasons for the proposed action, the law or rule directly involved, and a statement

1. This provision was amended on August 14, 2008, and now provides 15 days in which to
request a hearing from the department.




                                          6
                                 January Term, 2009




informing the party that the party is entitled to a hearing if the party requests it
within thirty days of the time of mailing the notice.” (Emphasis added.)
        {¶ 26} Thus, because R.C. 119.07 sets forth a 30-day period in which to
request a hearing, the court of appeals held that Ohio Adm.Code 5101:2-14-40
cannot provide a shorter period in which to request a hearing on the county’s
decision to revoke Crawford-Cole’s type B certificate.
        {¶ 27} The appellate court, however, overlooked two important aspects of
these statutes.
        {¶ 28} First, R.C. Chapter 119 focuses on two distinct sets of procedures:
one, the procedures governing administrative rulemaking, and two, the procedures
governing administrative decisions by agencies. The first part of the chapter, R.C.
119.02 to 119.04, deals with rulemaking and requires agencies to give public
notice of proposed rules, R.C. 119.03(A), to submit proposed rules to the Joint
Committee on Agency Rule Review, R.C. 119.03(H), and to submit rules to the
Legislative Service Commission for publication in the Ohio Register, R.C.
119.03(B). These statutes establish procedures for the adoption, amendment, and
rescission of administrative rules. See Condee v. Lindley (1984), 12 Ohio St.3d
90, 93, 12 OBR 79, 465 N.E.2d 450 (“The rulemaking requirements set forth in
R.C. Chapter 119 are designed to permit a full and fair analysis of the impact and
validity of a proposed rule”).
        {¶ 29} It is the second part of the chapter, R.C. 119.06 to 119.13, that
concerns agency adjudications and the procedures for notice, hearing, and appeal
of those decisions.
        {¶ 30} Here, the mandate in R.C. 5104.011(G) for the Ohio Department of
Job and Family Services to “adopt rules pursuant to Chapter 119 of the Revised
Code governing the certification of type B family day-care homes” clearly refers
to the part of R.C. Chapter 119 that concerns the rulemaking process, not to the
part that concerns notice, hearing, and appeal of decisions by an agency.




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       {¶ 31} Had the General Assembly intended for the notice and hearing
requirements set forth in R.C. 119.06 to 119.13 to apply to the revocation of a
type B day-care certificate, it could have specified that in the statute, just as it did
with respect to type A and other day-care facilities.             For example, R.C.
5104.011(F) requires the director of job and family services to “adopt rules
pursuant to Chapter 119 of the Revised Code governing the operation of type A
family day-care homes,” but it further states:
       {¶ 32} “The rules shall include the following:
       {¶ 33} “* * *
       {¶ 34} “(9) Procedures for issuing, renewing, denying, and revoking a
license that are not otherwise provided for in Chapter 119 of the Revised Code.”
(Emphasis added.)
          {¶ 35} In contrast to R.C. 5104.011(F)(9), R.C. 5104.011(G)(2)(g), the
section at issue in this case, requires the rules to include “[p]rocedures for issuing,
renewing, denying, refusing to renew, or revoking certificates” without any
reference to R.C. Chapter 119.        Reading these statutes in pari materia, we
conclude that the General Assembly’s reference to R.C. Chapter 119 in R.C.
5104.011(G)(2) relates to the statutes governing agency rule making, R.C. 119.02
to 119.04, not to the statutes governing agency decision making, R.C. 119.06 to
119.13.
       {¶ 36} Additional evidence for this legislative intent is found in R.C.
5101.09(B), which states: “Except as otherwise required by the Revised Code,
the adoption of a rule in accordance with Chapter 119 of the Revised Code does
not make the department of job and family services, a county family services
agency, or a workforce development agency subject to the notice, hearing, or
other requirements of sections 119.06 to 119.13 of the Revised Code.” (Emphasis
added.) And pursuant to R.C. 307.981(A)(1)(a)(ii), a “county family services
agency” includes “[a] county department of job and family services.”




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                               January Term, 2009




       {¶ 37} Thus, the 30-day period set forth in R.C. 119.07 does not apply to
the county’s decision to revoke Crawford-Cole’s type B certificate and does not
conflict with the 10-day period set forth in Ohio Adm.Code 5101:2-14-40.
       {¶ 38} Secondly, R.C. Chapter 119 applies only to state agencies. R.C.
119.01 provides:
       {¶ 39} “As used in sections 119.01 to 119.13 of the Revised Code:
       {¶ 40} “(A)(1) ‘Agency’ means, except as limited by this division, any
official, board, or commission having authority to promulgate rules or make
adjudications in the civil service commission, the division of liquor control, the
department of taxation, the industrial commission, the bureau of workers'
compensation, the functions of any administrative or executive officer,
department, division, bureau, board, or commission of the government of the state
specifically made subject to sections 119.01 to 119.13 of the Revised Code, and
the licensing functions of any administrative or executive officer, department,
division, bureau, board, or commission of the government of the state having the
authority or responsibility of issuing, suspending, revoking, or canceling
licenses.”
       {¶ 41} All of the entities enumerated in R.C. 119.01(A)(1) are arms of
“the government of the state,” and the words “county,” “municipality,” or
“political subdivision” do not appear anywhere in the statute. Furthermore, we
reviewed R.C. 119.01(A)(1) in Karrick v. Findlay School Dist. Bd. of Edn.
(1963), 174 Ohio St. 467, 469, 23 O.O.2d 114, 190 N.E.2d 256, and stated that
“[a] careful reading of the above-quoted statutory language [in R.C. 119.01(A)]
clearly indicates that only agencies at the state level of government are covered by
[R.C. Chapter 119].” (Emphasis added.) Id. at 468-469. We explained that the
Administrative Procedure Act “was originally enacted in 1943 following a study
by the Administrative Law Commission of state departments, commissions,
boards and bureaus.      Such commission made no attempt to examine the




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procedures and processes of local government boards, commissions, or
departments.” Id.
       {¶ 42} In other contexts, the General Assembly has manifested its intent
to include both state agencies and counties in the scope of a statute; for example,
R.C. 4117.01(B) defines a “public employer” as including both a “county” and a
“state agency.”     Here, the legislature could have expressly included county
agencies in the definition of “agency” under R.C. 119.01(A)(1), but it did not.
And as this court stated in Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-4353,
852 N.E.2d 1176, ¶ 24, “[t]he canon expressio unius est exclusio alterius tells us
that the express inclusion of one thing implies the exclusion of the other.”
       {¶ 43} Moreover, a separate statute in the Revised Code expressly
governs appeals from final decisions by political subdivisions such as counties.
R.C. 2506.01(A) states that “every final order, adjudication, or decision of any
officer, tribunal, authority, board, bureau, commission, department, or other
division of any political subdivision of the state may be reviewed by the court of
common pleas of the county in which the principal office of the political
subdivision is located as provided in Chapter 2505 of the Revised Code.”
(Emphasis added.)
       {¶ 44} Based on the foregoing, we conclude that the 30-day period set
forth by R.C. 119.07 does not apply to a request for a hearing on the decision of a
county agency or conflict with the 10-day period set forth in Ohio Adm.Code
5101:2-14-40. Accordingly, we reverse the decision of the court of appeals and
remand the cause to the court of appeals for consideration of the remaining
assignments of error.
                                                                 Judgment reversed
                                                               and cause remanded.
       MOYER,       C.J.,   and   PFEIFER,    LUNDBERG    STRATTON,     O’CONNOR,
LANZINGER, and CUPP, JJ., concur.




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                               January Term, 2009




                             __________________
       Terry J. Lodge, for appellee.
       Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell
and Karlene D. Henderson, Assistant Prosecuting Attorneys, for appellant.
       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Stephen P. Carney, Deputy Solicitor, Rebecca L. Thomas, Assistant Solicitor, and
Henry G. Appel, Assistant Attorney General, urging reversal for amicus curiae,
state of Ohio.
                           ______________________




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