[Cite as Small World Early Childhood Ctr. v. Ohio Dept. of Job & Family Servs., 2017-Ohio-8336.]




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

 SMALL WORLD EARLY CHILDHOOD                          :
 CENTER                                               :
                                                      :    C.A. CASE NO. 27448
         Plaintiff-Appellant                          :
                                                      :    T.C. NO. 16-CV-5982
 v.                                                   :
                                                      :    (Civil Appeal from
 OHIO DEPT. OF JOB & FAMILY                           :     Common Pleas Court)
 SERVICES                                             :
                                                      :
         Defendant-Appellee                           :
                                                      :

                                              ...........

                                              OPINION

                           Rendered on the 27th day of October, 2017.

                                              ...........

JOHNNA M. SHIA, Atty. Reg. No. 0067685 and ANTHONY S. VanNOY, Atty. Reg. No.
67052, 130 W. Second Street, Suite 1624, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

REBECCA L. THOMAS, Atty. Reg. No. 0066650, Assistant Attorney General, Health and
Human Services Section, 30 E. Broad Street, 26th Floor, Columbus, Ohio 43215
     Attorney for Defendant-Appellee

                                             .............
                                                                                       -2-


FROELICH, J.

      {¶ 1} Small World Early Childhood Center appeals from a judgment of the

Montgomery County Court of Common Pleas, which dismissed, pursuant to Civ.R.

12(B)(1), Small World’s administrative appeal of two decisions by the Ohio Department

of Jobs and Family Services (ODJFS).        For the following reasons, the trial court’s

judgment will be affirmed.

                        I. Background and Procedural History

      {¶ 2} Small World is a child daycare provider that had a contract with ODJFS to

provide publicly-funded child care. In the spring of 2015, ODJFS received allegations

that Small World was improperly in possession of Ohio Electronic Child Care (ECC) swipe

cards and that Small World’s staff was using the cards to check children into the center

when they were not actually in attendance. ODJFS conducted an investigation.

      {¶ 3} According to the termination decision on appeal, ODJFS personnel

conducted a timed observation on April 23, 2015 and counted 62 children entering the

center between 6:00 a.m. and 7:00 a.m. During the same time, Ohio ECC records

showed 170 children were swiped in as having arrived at the center. ODJFS personnel

returned on May 21, 2015, and performed another timed observation between 6:00 a.m.

and 8:15 a.m. and observed 105 children arriving. Ohio ECC transactions for that same

period showed that Small World had 217 children swiped in as arriving and receiving care.

ODJFS staff entered the building and conducted a head-count; 108 children were present.

      {¶ 4} ODJFS staff identified themselves to Small World staff, spoke to the owner,

and asked for permission to search the facility. ODJFS located 99 Ohio ECC swipe

cards. Interviews with Small World staff indicated that the center’s owner, administrator,
                                                                                         -3-


and office managers used the swipe cards. ODJFS collected billing and attendance

records from Small World.      ODJFS concluded that it had overpaid Small World by

$442,963.67.

       {¶ 5} On April 15, 2016, ODJFS provided Small World with a written Child Care

Provider Investigative Report, recommending suspension and termination of the Provider

Agreement, as well as a Proposed Suspension and Termination of Provider Agreement

and Overpayment Collection Notice. (The investigative report and the notice are not part

of the record.) On April 20, 2016, Small World filed an appeal of the suspension and

termination decision with ODJFS. The same day, it sought reconsideration by ODJFS

of the overpayment calculation.

       {¶ 6} On November 16, 2016, ODJFS sent two decision letters to Small World, one

of which denied Small World’s appeal of the suspension and termination decision and the

other denying reconsideration of the overpayment calculation.         The reconsideration

decision expressly stated that the “reconsideration decision is final and not subject to

further review by the department.” The letter informing Small World of the suspension

and termination decision similarly stated, “This appeal decision is final and not subject to

further review by the department.” Both determinations were made by the bureau chief

of ODJFS’s Office of Fiscal and Monitoring Services, Monitoring and Consulting Services

Division.

       {¶ 7} On November 22, 2016, Small World filed a notice of appeal, pursuant to

R.C. 119.12 and R.C. 5101.35, in the Montgomery County Court of Common Pleas.

Small World claimed that both ODJFS decisions were “not supported by reliable,

probative, and substantial evidence and [were] not in accordance with law.” Small World
                                                                                               -4-


filed motions to stay the ODJFS decisions and for court-ordered mediation. The court

denied both motions.

       {¶ 8} On December 19, 2016, ODJFS moved to dismiss the appeal for lack of

jurisdiction, pursuant to Civ.R. 12(B)(1). ODJFS argued that the decisions on appeal

were not “adjudications” by an “agency” for purposes of R.C. Chapter 119, nor was this

the type of matter that triggered rights conferred or duties imposed under that chapter.

ODJFS further argued that R.C. 5101.35 provided no statutory authority for an appeal of

the two decisions. Small World opposed the motion.

       {¶ 9} On January 26, 2017, the trial court agreed with ODJFS and granted the

motion to dismiss for lack of jurisdiction. Small World appeals the trial court’s decision.

                II. Jurisdiction to Small World’s Administrative Appeal

       {¶ 10} In its sole assignment of error, Small World claims that “[t]he trial court erred

when it dismissed Small World’s Administrative Appeal because Small World was entitled

to judicial review pursuant to the Ohio Revised Code.”

       {¶ 11} A motion to dismiss for lack of subject matter jurisdiction, pursuant to Civ.R.

12(B)(1), challenges whether the complaint raises any cause of action cognizable by the

forum. State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315, 2016-

Ohio-478, 56 N.E.3d 913, ¶ 12. We review de novo the trial court’s dismissal of Small

World’s administrative appeal for lack of jurisdiction. See id.; Crawford v. United Dairy

Farmers, Inc., 2d Dist. Montgomery No. 25786, 2013-Ohio-5047, ¶ 8.

       {¶ 12} “It is well-settled law that a state is not subject to suit in its own courts unless

it expressly consents to be sued.” Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-

Ohio-4838, 873 N.E.2d 872, ¶ 7. Since 1913, the Ohio Constitution has provided that
                                                                                         -5-


“[s]uits may be brought against the state, in such courts and in such manner, as may be

provided by law.” Ohio Constitution, Article I, Section 16. However, this constitutional

provision “did not provide specific consent for every state entity to be sued in every state

court. Rather, it merely enabled the state to pass statutes consenting to be sued in

specific ways; unless an explicit statutory waiver exists, the presumption of sovereign

immunity applies.” (Citations omitted.) Proctor at ¶ 8.

        {¶ 13} Article IV, Section 4(B) of the Ohio Constitution grants the Ohio legislature

exclusive authority to define the jurisdiction of the courts of common pleas. Article IV,

Section 4(B) provides, in relevant part, that courts of common pleas have “such powers

of review of proceedings of administrative officers and agencies as may be provided by

law.”

        A. R.C. Chapter 5104

        {¶ 14} We begin with a review of the relevant portions of R.C. Chapter 5104, the

chapter under which Small World contracted with ODJFS to receive public funds for child

daycare.    (Pursuant to R.C. 5101.30, ODJFS was designated as the state agency

responsible for administration and coordination of federal and state funding for publicly

funded child care in Ohio.)

        {¶ 15} Certain provisions governing publicly funded child care required the

creation of a process for applying for publicly funded child care, as well as procedures for

determining whether the applicant is eligible to receive publicly funded child care. See

R.C. 5104.33 and R.C. 5104.34.         R.C. 5104.34(A)(1) expressly provides that “[a]n

applicant aggrieved by a decision or delay in making an eligibility determination may

appeal the decision or delay to the department of job and family services in accordance
                                                                                           -6-


with section 5101.35 of the Revised Code. The due process rights of applicants shall be

protected.”

       {¶ 16} R.C. 5104.31 specifies what entities may provide publicly funded child care,

and R.C. 5104.32(A) requires that “all purchases of publicly funded child care shall be

made under a contract entered into by a licensed child day-care center * * * and the

department of job and family services.” R.C. 5104.32(B) sets forth specific terms that

are required to be included in each contract for publicly funded child care.             R.C.

5104.32(A) further provides, in part:

       To the extent permitted by federal law and notwithstanding any other

       provision of the Revised Code that regulates state contracts or contracts

       involving the expenditure of state or federal funds, all contracts for publicly

       funded child care shall be entered into in accordance with the provisions of

       this chapter and are exempt from any other provision of the Revised Code

       that regulates state contracts or contracts involving the expenditure of state

       or federal funds.

Small World was a licensed child daycare provider that contracted with ODJFS to provide

publicly funded child care, pursuant to R.C. 5104.32.

       {¶ 17} Finally, R.C. 5104.37 provides that ODJFS may withhold any money due

and may recover any money erroneously paid to an eligible provider of publicly funded

child care if evidence exists that the provider did not fully comply with the statutory

requirements or any rules promulgated under the statute. This statutory section reads,

in part:

       (D) Subject to the notice and appeal provisions of divisions (G) and (H) of
                                                                                  -7-


this section, the department may suspend a contract entered into under

section 5104.32 of the Revised Code with an eligible provider if the

department has initiated an investigation of the provider for either of the

following reasons:

(1) The department has evidence that the eligible provider received an

improper child care payment as a result of the provider’s intentional act.

(2) The department receives notice and a copy of an indictment,

information, or complaint charging the eligible provider or the owner or

operator of the provider with committing [certain offenses].

(E)(1) Except as provided in division (E)(2) of this section, the suspension

of a contract under division (D) of this section shall continue until the

department completes its investigation * * *.

(2) If the department initiates the termination of a contract that has been

suspended pursuant to division (D) of this section, the suspension shall

continue until the termination process is completed.

(F) An eligible provider shall not provide publicly funded child care while the

provider’s contract is under suspension pursuant to division (D) of this

section. * * *

(G) Before suspending an eligible provider’s contract pursuant to division

(D) of this section, the department shall notify the eligible provider. * * *

(H) An eligible provider may file an appeal with the department regarding

any proposal by the department to suspend the provider’s contract pursuant

to division (D) of this section. The appeal must be received by the
                                                                                          -8-

      department not later than fifteen days after the date the provider receives

      the notification described in division (G) of this section. The department

      shall review the evidence and issue a decision not later than thirty days after

      receiving the appeal.       The department shall not suspend a contract

      pursuant to division (D) of this section until the time for filing the appeal has

      passed or, if the provider files a timely appeal, the department has issued a

      decision on the appeal.

(Emphasis added.) R.C. 5104.37(D)-(H). Nothing in R.C. 5104.37 provides for an appeal

to the court of common pleas of a suspension or termination of an eligible provider’s

contract or of an order for repayment of any money erroneously paid to an eligible

provider.

      {¶ 18} R.C. 5104.38 states that the director of ODJFS shall adopt rules, in

accordance with R.C. Chapter 119, governing financial and administrative requirements

for publicly funded child care.    The statute enumerates 13 areas which were to be

addressed by rule, none of which related to appeal procedures for eligible providers

whose contracts were suspended or terminated or who were found to have wrongfully

received payments. R.C. 5104.38(N) allowed for “[a]ny other rules necessary to carry

out sections 5104.30 to 5104.43 of the Revised Code.”

      {¶ 19} The rules for publicly funded child care are located in Ohio Adm.Code Ch.

5101:2-16.   Ohio Adm.Code 5101:2-16-44 states that “[t]he provider agreement as

entered into with ODJFS may be suspended and/or terminated if ODJFS determines

misuse of publicly funded child care or Ohio ECC,” and that “[t]he provider agreement as

entered into with ODJFS, [sic] may be terminated in accordance with the terms contained
                                                                                      -9-

in the agreement.” Id. at (N), (O). However, this administrative rule does not provide

any appeal rights.

      {¶ 20} Ohio Adm.Code 5101:2-16-71 relates to improper payments to providers or

misuse of publicly funded child care. The rule addresses what is a “provider improper

child care payment,” what is misuse of publicly funded child care or Ohio ECC by a

provider, what are the repayment procedures for an improper payment or an overpayment

due to misuse of Ohio ECC, how a provider can request a review of the identified

overpayment, and what is provider fraud. With respect to the review provision, Ohio

Adm.Code 5101:2-16-71(D) states:

      (D) Can a child care provider request a review of an identified overpayment?

      (1) A child care provider may request in writing to ODJFS that a

      reconsideration review be conducted for any identified overpayment that is

      subject to recoupment.

      (2) The written request must be received by ODJFS no later than fifteen

      days after the date the provider receives the overpayment notice.

      {¶ 21} Finally, Ohio Adm.Code 5101:2-16-72 addresses “program integrity

reviews” of the publicly funded child care program, which include reviews, audits,

investigations, and other activities to ensure that the program is limited to eligible

participants and that “payments to providers are for actual services provided and conform

to program rules.” The rule states, in part:

      (F) What happens if ODJFS determines misuse of publicly funded child care

      or Ohio electronic child care (Ohio ECC) * * *?

      ODJFS may do any of the following:
                                                                                      -10-


      (1) Suspend the provider agreement entered into with ODJFS pursuant to

      rule 5101:2-16-44 of the Administrative Code and in accordance with

      section 5104.37 of the Revised Code.

      (2) Terminate the provider agreement entered into with ODJFS pursuant to

      rule 5101:2-16-44 of the Administrative Code.

Ohio Adm.Code 5101:2-16-72 does not address rights to appeal the ODJFS action.

      {¶ 22} In summary, no provision in R.C. Chapter 5104 or administrative rule related

to the publicly funded child care authorizes an appeal to the court of common pleas from

an ODJFS decision suspending or terminating a contract entered pursuant to R.C.

5104.32 or a decision regarding an identified overpayment.

      B. R.C. 119.12

      {¶ 23} Small World sought judicial review of ODJFS’s decision under R.C. 119.12.

R.C. Chapter 119, the Ohio Administrative Procedure Act, focuses on two distinct sets of

procedures: (1) the procedures governing administrative rulemaking (R.C. 119.02 to

119.04), and (2) the procedures governing administrative decisions by agencies (R.C.

119.06 to 119.13). Crawford-Cole v. Lucas Cty. Dept. of Job & Family Servs., 121 Ohio

St.3d 560, 2009-Ohio-1355, 906 N.E.2d 409, ¶ 28. “[T]he second part of the chapter,

R.C. 119.06 to 119.13, * * * concerns agency adjudications and the procedures for notice,

hearing, and appeal of those decisions.” Id. at ¶ 29.

      {¶ 24} R.C. 119.12 specifies who may pursue an administrative appeal in the

common pleas court. Specifically, R.C. 119.12(A)(1) states:

      Except as provided in division (A)(2) or (3) of this section, any party

      adversely affected by any order of an agency issued pursuant to an
                                                                                        -11-

      adjudication denying an applicant admission to an examination, or denying

      the issuance or renewal of a license or registration of a licensee, or revoking

      or suspending a license, or allowing the payment of a forfeiture under

      section 4301.252 of the Revised Code may appeal from the order of the

      agency to the court of common pleas of the county in which the place of

      business of the licensee is located or the county in which the licensee is a

      resident.

(Emphasis added.) Alternatively, R.C. 119.12(B) provides, “Any party adversely affected

by any order of an agency issued pursuant to any other adjudication may appeal to the

court of common pleas of Franklin county * * *.” (Emphasis added.)

      {¶ 25} R.C. 119.01 provides definitions for relevant terms. The term “agency” is

defined as:

      “Agency” means, except as limited by this division, [1] 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, [2] 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 [3] 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.
                                                                                           -12-


R.C. 119.01(A)(1). With respect to the ODJFS, R.C. 119.01(A)(2) further provides:

       (2) “Agency” also means any official or work unit having authority to

       promulgate rules or make adjudications in the department of job and family

       services, but only with respect to both of the following:

       (a) The adoption, amendment, or rescission of rules that section 5101.09 of

       the Revised Code requires be adopted in accordance with this chapter;

       (b) The issuance, suspension, revocation, or cancellation of licenses.

R.C. 119.01(A) also exempts certain named agencies from its coverage.

       {¶ 26} “Adjudication” means “the determination by the highest or ultimate

authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a

specified person, but does not include the issuance of a license in response to an

application with respect to which no question is raised, nor other acts of a ministerial

nature.”   R.C. 119.01(D).     “License” is defined as “any license, permit, certificate,

commission, or charter issued by any agency.” R.C. 119.01(B).

       {¶ 27} Small World argues that it was aggrieved by a decision of ODJFS and that

it has a right to appeal that decision pursuant to R.C. 119.12. Small World complains

that ODJFS should have promulgated rules providing for a state hearing and judicial

review. Small World’s arguments are unavailing.

       {¶ 28} R.C. 119.12 does not provide for judicial review of all decisions of all state

agencies. See, e.g., Baltimore Ravens, Inc. v. Self-Insuring Emp. Evaluation Bd., 94

Ohio St.3d 449, 452, 764 N.E.2d 418 (2002); Plumbers & Steamfitters Joint

Apprenticeship Commt. v. Ohio Civil Rights Comm., 66 Ohio St.2d 192, 194, 421 N.E.2d

128 (1981). ODJFS constitutes an “agency” for purposes of R.C. 119.01(A) only if “it is
                                                                                          -13-


described by one or more of the three branches of the definition of ‘agency’ and not

otherwise excluded.” Id. Again, those branches consist of (1) the agencies enumerated

in the statute, (2) “functions * * * specifically made subject to R.C. 119.01 to R.C. 119.13,”

and (3) agencies with the authority to issue, suspend, revoke or cancel licenses.

       {¶ 29} Here, ODJFS is not one of the agencies specifically identified in R.C.

119.01(A)(1), and this matter does not concern licenses.              R.C. 5104.38 grants

rulemaking power to ODJFS regarding financial and administrative requirements for

publicly funded child care and required the rules to be adopted in accordance with R.C.

Chapter 119. However, R.C. Chapter 5104 did not make decisions relating to contracts

with publicly funded child care providers subject to R.C. 119.12 (the right to appeal

adjudications). Accordingly, ODJFS does not fall within the definition of an agency, as

set forth in R.C. 119.12(A)(1).

       {¶ 30} R.C. 119.01(A)(2) specifically addresses ODJFS.           The decisions that

Small World attempted to appeal to the trial court did not concern “the adoption,

amendment, or rescission of rules” and “the issuance, suspension, revocation, or

cancellation of licenses.”    Consequently, ODJFS also is not an agency within the

meaning of R.C. 119.01(A)(2).

       {¶ 31} Because the two decisions on appeal are not decisions of an “agency,” as

defined by R.C. 119.01(A), Small World had no right to appeal the two decisions to the

court of common pleas pursuant to R.C. 119.12.

       {¶ 32} Small World further asserts that it can appeal the two ODJFS decisions,

pursuant to R.C. 119.12, because R.C. 5101.46 (governing of the administration of Title

XX social service funding through grants to ODJFS) grants ODJFS rule-making authority,
                                                                                         -14-


in accordance with R.C. Chapter 119, regarding publicly funded child care. R.C. 5101.46

states, in part: “Rules governing eligibility for services, program participation, and other

matters pertaining to applicants and participants shall be adopted in accordance with

Chapter 119. of the Revised Code.” (We note that R.C. 5104.38 also gave rulemaking

authority to the director of ODJFS regarding publicly funded child care.)

       {¶ 33} The Supreme Court of Ohio has noted that many statutes incorporate R.C.

Chapter 119 for limited purposes that did not include judicial review. E.g., Baltimore

Ravens at 456-457 (discussing R.C. 4123.352(C), R.C. 4112.05, and other statutes as

examples where R.C. Chapter 119 was incorporated for rulemaking, but did not provide

a right of judicial review). We find nothing in R.C. Chapter 5101 and R.C. Chapter 5104

to indicate that a provider of publicly funded child care was granted a right of judicial

review, pursuant to R.C. 119.12.

       {¶ 34} To the extent that Small World argues that ODJFS’s decision to terminate

the provider’s contract is invalid, because ODJFS failed to promulgate additional rules

involving Title XX funding, that issue is not properly before us.

       C. R.C. 5101.35

       {¶ 35} Small World further claims that it was entitled to appeal to the court of

common pleas pursuant to R.C. 5101.35, the general appeal provision for ODJFS.

Under R.C. 5101.35(B), “an appellant who appeals under federal or state law a decision

or order of an agency administering a family services program shall, at the appellant’s

request, be granted a state hearing by the department of job and family services.” R.C.

5101.35(C) further provides:

       Except as provided by division (G) of this section, an appellant who
                                                                                      -15-


      disagrees with a state hearing decision may make an administrative appeal

      to the director of job and family services in accordance with rules adopted

      under this section. This administrative appeal does not require a hearing,

      but the director or the director’s designee shall review the state hearing

      decision and previous administrative action and may affirm, modify,

      remand, or reverse the state hearing decision. An administrative appeal

      decision is the final decision of the department and, except as provided in

      section 5160.31 of the Revised Code, is binding upon the department and

      agency, unless it is reversed or modified on appeal to the court of common

      pleas.

      {¶ 36} R.C. 5101.35(E) expressly provides for judicial review. It states, in part:

“An appellant who disagrees with an administrative appeal decision of the director of job

and family services or the director’s designee issued under division (C) of this section

may appeal from the decision to the court of common pleas pursuant to section 119.12

of the Revised Code.”

      {¶ 37} Small World asserts that it is an “appellant” of a decision of an “agency”

administering a “family services program.” There is no question that the provision of

publicly funded child care is a “family services program.” R.C. 5101.35(A)(3)(a) includes

“[p]rograms that provide assistance under Chapter 5104. or 5115. of the Revised Code”

in the definition of a “family services program.” In addition, ODJFS is an “agency” under

R.C. 5101.35. R.C. 5101.35(A)(1)(a) defines an “agency” as any of several entities,

including ODJFS, that administer a family services program.

      {¶ 38} The parties dispute whether Small World constitutes an “appellant.” The
                                                                                          -16-


term “appellant” is defined as “an applicant, participant, former participant, recipient, or

former recipient of a family services program who is entitled by federal or state law to a

hearing regarding a decision or order of the agency that administers the program.” R.C.

5101.35(A)(2).

       {¶ 39} Small World asserts that it is an “appellant” under R.C. 5101.35(A)(2),

because it was a “participant” in the publicly funded child care program.           ODJFS

responds that a child care provider receiving public funds pursuant to a contract with

ODJFS is not a “participant” in the program. ODJFS further argues that R.C. 5101.35(E)

provides for an appeal from an “administrative appeal decision” issued in an appeal from

a “state hearing decision,” and that since Small World was not entitled to such a hearing,

R.C. 5101.35(E) is inapplicable.

       {¶ 40} We need not address whether Small World was a “participant” of a family

services program, because we find the more critical aspect of the definition of “appellant”

to be whether Small World was “entitled by federal or state law to a hearing regarding a

decision or order of the agency that administers the program.” As discussed above,

nothing in the provisions governing publicly funded child care or R.C. Chapter 119 entitled

Small World to a hearing. Consequently, in the absence of an entitlement to a hearing,

Small World cannot satisfy the definition of an “appellant” under R.C. 5101.35, nor did

Small World received the kind of decision that is subject to appeal under this statute.

       {¶ 41} Small World’s assignment of error is overruled.

       {¶ 42} We note that providers of publicly funded child care, such as Small World,

have a possible avenue for relief. The Ohio Supreme Court “has repeatedly determined

in a long line of cases in varying contexts that when an agency’s decision is discretionary
                                                                                           -17-


and, by statute, not subject to direct appeal, a writ of mandamus is the sole vehicle to

challenge the decision, by attempting to show that the agency abused its discretion.”

Ohio Academy of Nursing Homes v. Ohio Dept. of Job & Family Servs., 114 Ohio St.3d

14, 2007-Ohio-2620, 867 N.E.2d 400, ¶ 23. As explained by the Ohio Supreme Court:

             Two important competing concerns are implicated when a party

      wishes to challenge a particular state actor’s decision that expressly is not

      appealable.    The first concern is that the unavailability of an appeal

      indicates the clear intention that full discretion is to be entrusted to the state

      agency. The opposing concern is that if an agency’s discretionary decision

      were truly allowed to be absolutely unchallengeable, an aggrieved party

      would have no remedy whatsoever, giving the state agency unfettered

      discretion and raising fundamental due process concerns. See Section 16,

      Article I of the Ohio Constitution, which provides that a remedy shall be

      available “by due course of law.”

             In light of these very significant competing concerns, courts

      (including this court in many different situations) have determined that some

      level of review must be recognized. Furthermore, courts have determined

      that a writ of mandamus provides an appropriate balance between the

      extreme of allowing no challenge at all and the other alternative of

      completely ignoring the explicit directive that an agency’s particular

      determination is not meant to be appealable. In such a mandamus action,

      the aggrieved party can challenge the agency’s decision, but must

      demonstrate an abuse of discretion before relief can be provided.
                                                                                       -18-

Id. at ¶ 25-26.

       {¶ 43} Whether an original action in mandamus is available to Small World

specifically and whether it would be successful are not before us, and we state no opinion

on the merits of any such action.

                                      III. Conclusion

       {¶ 44} The trial court’s judgment will be affirmed.

                                         .............

HALL, P.J. and WELBAUM, J., concur.

Copies mailed to:

Johnna M. Shia
Anthony S. VanNoy
Rebecca L. Thomas
Hon. Mary Katherine Huffman
