[Cite as Ruslan, Inc. v. Toledo-Lucas Cty. Health Dept., 2014-Ohio-3853.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Ruslan, Inc.                                               Court of Appeals No. L-13-1144

        Appellant                                          Trial Court No. CI0201204527

v.

Toledo-Lucas County Health Department                      DECISION AND JUDGMENT

        Appellee                                           Decided: September 5, 2014

                                                  *****

        Eric Allen Marks, for appellant.

        Julia R. Bates, Lucas County Prosecuting Attorney, Kevin A.
        Pituch and Karlene D. Henderson, Assistant Prosecuting
        Attorneys, for appellee.

                                                  *****

        JENSEN, J.

        {¶ 1} This is an appeal of a judgment by the Lucas County Court of Common

Pleas affirming a decision by the Toledo-Lucas County Health Department that ordered

appellant to remove part of a concrete patio. For the reasons that follow, we reverse and
remand this matter to the lower court with the instruction that it conduct a hearing

pursuant to R.C. 2506.03(A)(5) and 2506.03(B).

                      Statement of Facts and Procedural History

       {¶ 2} This matter concerns an appeal of a “revised public health order” issued by

the health commissioner of the Toledo-Lucas County Health Department (hereinafter the

“health district”). The order was issued following an administrative hearing before the

health district’s environmental issues committee.

       {¶ 3} The facts relevant to this appeal are not in dispute.

       {¶ 4} Appellant, Ruslan, Inc., has owned the commercial property located at

11535 West Central Avenue, in Swanton, Ohio since 1995. The president and sole

shareholder of Ruslan, Inc. is Russell M. Kadri. Situated on appellant’s property is a bar

and restaurant known as Russ’ Roadhouse.

       {¶ 5} Over a period of many years, appellant renovated the property several times.

In 2003, appellant expanded the kitchen and relocated the septic tank. Appellant

requested authorization from the health district by way of a “pink slip,” which was

granted. Pink slips assure the health district that any proposed new construction or

remodeling on a property does not infringe on the isolation distance, mandated by Ohio

law, for septic systems and wells.

       {¶ 6} In 2004, appellant erected a concrete patio at the rear of the building. In

2007, appellant extended the patio into the shape of an “L,” so as to avoid covering the

area over the septic system. In 2008, appellant extended the patio once again. This time,




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the extension covered the underground septic tank, lift station, distribution box and part

of the leach field. Appellant did not seek authorization for the 2008 addition.

       {¶ 7} In March of 2010, appellant applied for a “pink slip” to pour additional

concrete and extend the patio yet again. Alan Ruffell, the then-director of environmental

health for the health district, visited the property. According to appellant, “Mr. Ruffell

indicated that he could live with what he saw, but that he was going to deny the

[proposed 2010] additional expansion.” On April 15, 2010, appellant’s request was

formally denied. Appellant did not appeal the decision.

       {¶ 8} On January 5, 2012, a representative from the health district visited

appellant’s property on another matter when she observed the concrete patio, now

covering the septic system and part of the leach field. On January 25, 2012, the health

district issued a “public health order” wherein it directed appellant to remove that part of

the patio covering the septic tank, lift station, distribution box, and leach field.

       {¶ 9} Appellant requested a variance from the order. By order dated April 12,

2012, the health district granted appellant a conditional variance, permitting the concrete

slab at issue to remain but ordering appellant to remove all structures atop the concrete

and to prohibit any items, people or activity on or near the area.

       {¶ 10} Appellant continued to allow patrons to congregate on the patio. On

May 25, 2012, the health district suspended the variance.




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       {¶ 11} A hearing was held on June 27, 2012, before the environmental issues

committee. Several witnesses testified, including Mr. Kadri, who appeared on behalf of

appellant, and Eric Zgodzinski, the director of environmental health services.

       {¶ 12} Two days after the hearing, on June 29, 2012, the health commissioner for

the district, who did not attend the hearing, issued a “revised public health order,”

notifying appellant that the previous public health order was being “re-issued.”

Appellant was once again ordered to remove the unauthorized portion of concrete.

       {¶ 13} Appellant appealed the decision to the Lucas County Court of Common

Pleas, and the lower court issued a briefing schedule. Appellant filed his brief, arguing

against the decision and proffering additional evidence for the trial court to consider. The

evidence consisted of eight proposed exhibits and an affidavit from Mr. Kadri.

       {¶ 14} In the affidavit, Mr. Kadri recounted a post-hearing conversation with

Naajy Abdullah from the Ohio EPA. The contents of the alleged conversation directly

contradict an email, allegedly written by Mr. Abdullah, that was admitted, without

objection, during the administrative hearing. In essence, appellant argued that Mr.

Abdullah, if he testified, would not support the health district’s case.

       {¶ 15} Appellee then filed its brief, along with an affidavit from Mr. Zgodzinski.

       {¶ 16} Next, appellant filed “Appellant’s reply brief and request for hearing.” In

the reply, appellant explained the relevance of Mr. Abdullah in this case. Appellant also

complained that a post-hearing ex parte communication may have taken place between

the committee and Alan Ruffell. At the time of the hearing, Mr. Ruffell was no longer




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employed by the health district, and he did not testify. Nonetheless, as the hearing was

concluding, the committee chairman said that a decision would be forthcoming

“depend[ing] on how available Mr. Ruffell is, I think that’s a pivotal part of this puzzle,

so, I’m not sure where he is, Ok.” Based upon this comment, appellant suggests that the

committee may have consulted with Mr. Ruffell in reaching a decision and complains

that it was denied an opportunity “to refute, test or explain that evidence.”

       {¶ 17} The reply memorandum concludes, “[a]ppellant respectfully requests a

hearing on all issues presented in this appeal.”

       {¶ 18} In its 26 page decision, the lower court notes that the health district failed

to provide conclusions of fact with the filing of the transcript. Given the absence of such

findings, the court admitted the parties’ respective exhibits and affidavits as “gap fillers,”

pursuant to R.C. 2506.03(A).

       {¶ 19} The court denied, however, appellant’s request for a hearing. It said,

“Simply put, the only issue before the Committee, at hearing, related to a 2012 violation

of a 2012 variance. Accordingly, the Court finds no basis to admit additional evidence,

not presently before the Court, relative to Ruffell.”

       {¶ 20} On July 2, 2013, appellant filed a notice of appeal with this court.

Appellant alleges two assignments of error:




5.
             I. Whether the lower court erred in denying Appellant’s request for

      a hearing.

             II. Whether the lower court erred in holding that there was a

      preponderance of competent, credible evidence that required an affirmation

      of the June 29, 2012 Revised Public Health Order.

                                 Law and Analysis

      {¶ 21} R.C. 2506.04 governs appellate review of administrative appeals. It

provides:

             If an appeal is taken in relation to a final order, adjudication, or

      decision covered by division (A) of section 2506.01 of the Revised Code,

      the court may find that the order, adjudication, or decision is

      unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported

      by the preponderance of substantial, reliable, and probative evidence on the

      whole record. Consistent with its findings, the court may affirm, reverse,

      vacate, or modify the order, adjudication, or decision, or remand the cause

      to the officer or body appealed from with instructions to enter an order,

      adjudication, or decision consistent with the findings or opinion of the

      court. The judgment of the court may be appealed by any party on

      questions of law as provided in the Rules of Appellate Procedure and, to the

      extent not in conflict with those rules, Chapter 2505 of the Revised Code.




6.
       {¶ 22} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147,

735 N.E.2d 433 (2000), the Ohio Supreme Court further explained how appellate review

of an administrative decision by a common pleas court differs from that by a court of

appeals. It said,

              Construing the language of R.C. 2506.04, we have distinguished the

       standard of review to be applied by common pleas courts and courts of

       appeals in R.C. Chapter 2506 administrative appeals. The common pleas

       court considers the “whole record,” including any new or additional

       evidence admitted under R.C. 2506.03, and determines whether the

       administrative order is unconstitutional, illegal, arbitrary, capricious,

       unreasonable, or unsupported by the preponderance of substantial, reliable,

       and probative evidence. See Smith v. Granville Twp. Bd. of Trustees, 81

       Ohio St.3d 608, 612, 693 N.E.2d 219 (1998), citing Dudukovich v. Lorain

       Metro. Hous. Auth., 58 Ohio St.2d 202, 206-207, 389 N.E.2d 1113 (1979).

              The standard of review to be applied by the court of appeals in an

       R.C. 2506.04 appeal is “more limited in scope.” (Emphasis added.) Kisil v.

       Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). “This statute

       grants a more limited power to the court of appeals to review the judgment

       of the common pleas court only on ‘questions of law,’ which does not

       include the same extensive power to weigh ‘the preponderance of

       substantial, reliable and probative evidence,’ as is granted to the common




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       pleas court.” Id. at fn. 4. “It is incumbent on the trial court to examine the

       evidence. Such is not the charge of the appellate court. * * * The fact that

       the court of appeals, or this court, might have arrived at a different

       conclusion than the administrative agency is immaterial. Appellate courts

       must not substitute their judgment for those of an administrative agency or

       a trial court absent the approved criteria for doing so.” Lorain City School

       Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261, 533

       N.E.2d 264 (1988).

       {¶ 23} With the above in mind, we consider the first assignment of error as to

whether the trial court erred when it denied appellant’s request for a hearing.

       {¶ 24} Pursuant to R.C. 2506.03, judicial review of an administrative appeal is

normally limited to a review of the complete transcript filed in the common pleas court.

The statute provides,

              2506.03 Hearing of appeal confined to transcript unless certain

       defects exist

              (A) The hearing of an appeal taken in relation to a final order,

       adjudication, or decision covered by division (A) of section 2506.01 of the

       Revised Code shall proceed as in the trial of a civil action, but the court

       shall be confined to the transcript filed under section 2506.02 of the

       Revised Code unless it appears, on the face of that transcript or by affidavit

       filed by the appellant, that one of the following applies:




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              ***

              (5) The officer or body failed to file with the transcript conclusions

       of fact supporting the final order, adjudication, or decision.

       {¶ 25} Thus, the right to a hearing is limited to those situations set forth in section

(A)(1)-(5) of R.C. 2506.03. When such “defects” exist, then the statute further directs,

              If any circumstance described in divisions (A)(1) to (5) of this

       section applies, the court shall hear the appeal upon the transcript and

       additional evidence as may be introduced by any party. At the hearing, any

       party may call, as if on cross-examination, any witness who previously

       gave testimony in opposition to that party. R.C. 2506.03(B).

       {¶ 26} In this case, no conclusions of fact were filed with the transcript. Appellant

argues that the trial court therefore erred when it denied its request for an evidentiary

hearing, pursuant to R.C. 2506.03(A)(5).

       {¶ 27} Appellant states that he would have called witnesses Ruffell, Abdullah, “or

other witnesses.” By denying his request, the trial court “denied a meaningful review

* * * when it refused to grant an evidentiary hearing * * *.” (Emphasis added.) While

not conceding the point, appellee argues that appellant was not entitled to a de novo

hearing.

       {¶ 28} We begin with the express language of the statute. R.C. 2506.03(B) states

that if “any” of the circumstances set forth in section (A)(1)-(5) exist, then additional

evidence “may be introduced by either party.” The second sentence, beginning with the




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words, “[a]t the hearing” clearly contemplates that the parties will be allowed to present

such evidence at a live hearing.

       {¶ 29} Moreover, those appellate courts in Ohio that have ruled on this issue have

found the right to introduce additional evidence under R.C. 2506.03(A) includes the right

to a hearing.

       {¶ 30} For example, in Price v. Margaretta Twp. Bd. of Zoning Appeals, 6th Dist.

Erie No. E-04-023, 2005-Ohio-1778, ¶ 30, we cited with approval a decision from the

Fourth District Court of Appeals finding,

                “[T]he long standing precedent in this state is that ‘where an

       appellant files an affidavit stating that there were deficiencies in the hearing

       on which the administrative decision is based, the court of common pleas

       must consider this and afford the appellant a hearing to correct the

       deficiencies outlined in R.C. 2506.03.’” (Emphasis added; citations

       omitted.) Bay v. Gallia-Vinton Educ. Serv. Ctr., 4th Dist. Gallia No.

       02CA9, 2003-Ohio-7335, ¶ 55.

       {¶ 31} In Price, we remanded the case back to the lower court for a hearing,

pursuant to R.C. 2506.03(A)(2)(d), because the appellants were barred from presenting

evidence as to the sole issue upon which the board’s decision was based. Id.; see also

CBS Outdoor, Inc. v. Cleveland Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 98141,

2013-Ohio-1173, ¶ 47.




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       {¶ 32} Likewise, the Eleventh District Court of Appeals has ruled,

              It is not a question of whether the conclusions of fact were filed in a

       “timely” manner pursuant to leave of court. The issue is whether they were

       “filed with the transcript.” Because in this case they were not, the transcript

       was deficient on its face, and an R.C. 2506.03 hearing was required.

       Arias’s Way, LLC v. Concord Twp. Bd. of Zoning Appeals, 173 Ohio

       App.3d 73, 2007-Ohio-4776, 877 N.E.2d 398, ¶ 23 (11th Dist.).

       {¶ 33} In Huang v. Kent City School Dist. Bd. of Ed., 11th Dist. Portage No. 2008-

P-0038, 2008-Ohio-5947, a case similar to the one at bar, appellant contested his five day

suspension by his public high school. A hearing was held, following which, the hearing

officer for the board of education wrote appellant to inform him that the suspension was

upheld. Id. at ¶ 10. No conclusions of fact were prepared. Id. at ¶ 11. Appellant

appealed to the Portage County Court of Common Pleas, where he filed a motion to

present additional evidence and requested an opportunity to further cross-examine the

witnesses. Id. The court denied the motion and affirmed the decision of the board. Id.

       {¶ 34} On appeal, the Eleventh District Court of Appeals reversed. It found that

“the trial court erred in denying appellant’s request for an evidentiary hearing since no

conclusions of fact were filed. On this basis, we reverse.” Id. at ¶ 21. The court

specifically rejected the board’s argument that the letter from the hearing officer,

notifying appellant that the board had upheld the suspension, was sufficient to satisfy the

requirement of filing conclusions of fact. Id. at ¶ 32. Likewise, in this case, the revised




11.
public health order, authored by the health commissioner, cannot be said to satisfy the

conclusions of fact requirement because the commissioner did not attend the hearing.

Moreover, the revised public health order merely restates the original order that was

prepared prior to the administrative hearing.

       {¶ 35} We stress that a hearing is not scheduled as a matter of right. Thus, in

Superior 24 HR Towing & Rd. Serv., L.L.C. v. Springfield Twp., 6th Dist. Lucas Nos.

L-10-1049, L-10-1050, 2010-Ohio 5895, ¶ 53, we found that the trial court did not err in

failing to hold a hearing because appellant never requested one.

       {¶ 36} Here, there is no dispute that appellant failed to obtain the necessary

authorization before constructing the 2008 patio extension or that he failed to adhere to

the conditions set forth in the 2012 variance. Moreover, we express no opinion with

regard to the relevance or persuasiveness of the proffered evidence by either party.

Indeed, if conclusions of fact had been prepared, the trial court may have had some

guidance as to what bearing, if any, Mr. Abdullah’s email or Mr. Ruffell’s hearsay

statements, including any ex parte statements, may have had on the health district’s

decision. Because the record contains no conclusions of fact, the lower court did not

have a complete record to allow it to properly weigh the evidence and determine if the

health district’s decision was supported by the preponderance of substantial, reliable, and

probative evidence.

       {¶ 37} Our role is limited to ruling on questions of law. Under these

circumstances, appellee’s failure to file conclusions of fact with the record rendered the




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record deficient under R.C. 2506.03(A)(5). Appellant’s proffer of evidence, through his

affidavit and request for a hearing, was proper, and the lower court erred in denying

appellant’s hearing request. Appellant’s first assignment of error is well-taken.

       {¶ 38} Because our ruling on appellant's first assignment of error is dispositive of

the appeal, we find appellant’s second assignment of error moot, and we decline to

address it. See App.R. 12(A)(1)(a) and (c).

       {¶ 39} For the foregoing reasons, the judgment is reversed and the cause is

remanded to the Lucas County Court of Common Pleas for further proceedings,

consistent with this decision. Pursuant to App.R. 24, costs are assessed to appellee.


                                                                        Judgment reversed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Stephen A. Yarbrough, P.J.
                                                _______________________________
James D. Jensen, J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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