[Cite as BSI Sec. Servs. v. Ohio Dept. of Pub. Safety, 2011-Ohio-4866.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

BSI SECURITY SERVICES                               :
                                                    :       Appellate Case No. 24050
        Plaintiff-Appellant                         :
                                                    :       Trial Court Case No. 09-CV-4228
v.                                                  :
                                                    :
OHIO DEPARTMENT OF                                  :       (Civil Appeal from
PUBLIC SAFETY                                       :       (Common Pleas Court)
                                                    :
        Defendant-Appellee                 :
                                                  :
                                               ...........

                                               OPINION

                            Rendered on the 23rd day of September, 2011.

                                                .........

LAWRENCE J. WHITE, Atty. Reg. #0062363, 2533 Far Hills Avenue, Dayton, Ohio 45419
    Attorneys for Plaintiff-Appellant

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
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Montgomery County Court of Common Pleas. The trial court granted a motion to dismiss

filed by appellee, Ohio Department of Public Safety.

        {¶ 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 R.C. 4749.06 and companion sections of the Ohio Administrative Code.

Appellee revoked BSI’s license. As an alternative to losing its license, the adjudication order

provided BSI the option to pay a civil penalty of $35,200. BSI appealed the adjudication

order, pursuant to R.C. Chapter 119, to the Montgomery County Court of Common Pleas.

        {¶ 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
                                                                                              3


names of the employees at issue, but appellee had not provided that information. Since the

names had not been provided, BSI concluded that “no additional meeting or hearings were

necessary.”

       {¶ 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 ORC 119.12

when there is no evidence in the record that BSI was ever even served with the notice of intent

to revoke license in the first place to initiate [its] administrative remedies by timely filing a

notice request for hearing. Mere assertion without any evidence should not be enough to

satisfy summary judgment [sic].”

       {¶ 8} At the appellate level, we note there is a highly-deferential standard of review

in an R.C. 119 appeal regarding factual determinations. See Royer v. Ohio Real Estate

Comm. (1999), 131 Ohio App.3d 265, 268. (Citations omitted.) However, we review issues

of law under a de novo standard of review. Sohi v. Ohio St. Dental Bd. (1998), 130 Ohio

App.3d 414, 421.

       {¶ 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 R.C. 119.07 requires notices regarding the suspension of an

administrative license to be sent via registered mail. “[T]he failure of an agency to provide
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notice in the manner specified in R.C. 119.07 invalidates any subsequent order issued by the

agency.” Chirila v. Ohio State Chiropractic Bd. (2001), 145 Ohio App.3d 589, 594.

       {¶ 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
                                                                                              5


the first time on appeal from the trial court ruling. BSI did not raise the issue of improper

service, in any manner, at the trial court level. Obviously, since it did not raise it below, the

trial court was not given an opportunity to address any issues regarding service of the notice.

Thus, BSI has waived this issue on appeal.

       {¶ 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 R.C. Chapter 119, on January 2, 2009, and February 6,

2009. Appellant never requested a hearing on either occasion, however according to previous

counsel of Appellant, two call[s] were made to Appellee in February and March 2009, prior to

the Adjudication Order of Appellee. Said Counsel spoke to Appellee and requested the

information on three employees. The names of the employee[s] were never given to said

counsel.”

       {¶ 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.”
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These assertions contradict BSI’s current position, that it “could not have requested an

administrative hearing within 30 days” due to a lack of notice. The record refutes BSI’s

argument that it did not receive the notice of intent to suspend or revoke its license.

       {¶ 17} BSI also asserts that an agency is required to file a complete record with the

trial court in an R.C. 119.12 appeal. See Royer v. Ohio Real Estate Comm., 131 Ohio App.3d

at 268. It argues that the record was not complete because it did not contain the certified mail

receipt card. However, even though a complete record is required, “unintentional omissions

may be excused.” Id. at 269. In Royer, the Third Appellate District reversed because there

was no evidence in the record that Royer received proper notice. Id. at 270. However, in

this matter, the record contains specific admissions from BSI that the notices were sent.

Finally, we note that BSI did not raise the issue of an incomplete record at the trial court level.

 See McGee v. Ohio State Bd. of Psychology (1993), 82 Ohio App.3d 301, 305. For this

additional reason, its argument is unpersuasive.

       {¶ 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
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