      [Cite as Horsley v. Ohio Dept. of Job & Family Servs., 2019-Ohio-3553.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                                 SCIOTO COUNTY

JOSEPH HORSLEY,                                     :            Case No. 18CA3860
                                                    :
      Appellant-Appellant,                          :
                                                    :
      vs.                                           :            DECISION AND JUDGMENT
                                                    :            ENTRY
OHIO DEPARTMENT OF JOB &                            :
FAMILY SERVICES,                                    :
                                                    :
      Appellee-Appellee.                            :            Released: 08/29/19

                                        APPEARANCES:

Joseph Horsley, Franklin Furnace, Ohio, Pro Se Appellant.

Dave Yost, Ohio Attorney General, and Justin T. Radic, Senior Assistant Ohio
Attorney General, Health and Human Services Section, Ohio Attorney General’s
Office, Columbus, Ohio, for Appellee.


Per Curiam.

      {¶1} This is an appeal from a Scioto County Court of Common Pleas

judgment entry affirming an Ohio Department of Job and Family Services

(ODJFS) decision that determined Appellant’s request for a state hearing to contest

the denial of certain benefits was properly dismissed. Because we find the trial

court properly affirmed the decision by ODJFS, the judgment of the trial court is

affirmed.
Scioto App. No. 18CA3860                                                         2

                                                    FACTS

          {¶2} Appellant filed for a request for a state hearing with ODJFS alleging

that his food stamp benefits and Medicaid coverage were “wrongfully withheld.”

In a box on Appellant’s request for a hearing that asked if the applicant needed “an

interpreter, a signer, or other assistance, at [the] state hearing,” Appellant wrote:

“My right to a hearing in writing.” In a letter accompanying his appeal, Appellant

reiterated: “Please take notice, the Appellant is exercising his right to have a fair

hearing in writing, not orally.”

          {¶3} ODJFS sent a notice that Appellant’s hearing was scheduled for

September 25, 2017 at Scioto CDJFS1, 710 Court St. Portsmouth, Ohio 45662-

1347. The notice stated: “If you do not come to this hearing, you will receive a

dismissal notice * * *.”

          {¶4} On September 23, 2017, Appellant drafted a letter to ODJFS requesting

a postponement of his hearing because he was unable to have the necessary

subpoenas ready by the hearing date.

          {¶5} ODJFS sent a new notice to Appellant that a hearing was scheduled for

October 16, 2017 at the Scioto CDJFS, 710 Court St. Portsmouth, Ohio 45662-

1347. The notice again stated: “If you do not come to this hearing, you will

receive a dismissal notice * * *.”


1
    County Department of Job and Family Services.
Scioto App. No. 18CA3860                                                       3

      {¶6} On October 16, 2017, Appellant faxed a letter to ODJFS indicating

that he was “exercising his right to have a fair hearing in writing, not orally.” The

letter also indicated that he was seeking information from ODJFS by subpoena.

      {¶7} On October 17, 2017, ODJFS sent a notice to Appellant that his appeal

had been dismissed as abandoned because neither he nor his representative came to

the October 16, 2017 hearing. The notice included instruction on how to appeal.

      {¶8} Appellant appealed the dismissal to ODJFS. ODJFS affirmed the

dismissal finding that Appellant’s request for a hearing was dismissed as

abandoned because he failed to attend the scheduled hearing. ODJFS also found

there is “no procedure to provide an appeal in writing and forgo the state hearing

process.”

      {¶9} Appellant appealed the decision by ODJFS to the Scioto County Court

of Common Pleas continuing to insist that he had a right to participate in a state

hearing “in writing.” The court affirmed the ODJFS decision that dismissed

Appellant’s request for a state hearing. It is from this judgment that Appellant

appeals to this court, asserting two assignments of error.

                           ASSIGNMENTS OF ERROR

I.    IT IS ASSIGNMENT OF ERROR [SIC] THE LOWER COURT
      “COPIED AND PASTED” FROM THE AGENCY DECISION
      (AND AGENCY APPEAL BRIEF FILED WITH THE COURT),
      INSTEAD OF REVIEWING THE RECORD, AT ANY TIME, TO
      DETERMINE IF THE DECISION IS CORRECT, BASED ON THE
      EVIDENCE IN THE RECORD. THE LOWER COURT
Scioto App. No. 18CA3860                                                      4

      WILLFULLY FAILED TO REVIEW THE RECORD AS
      REQUIRED BY LAW, TO EVALUATE IF THE DECISION OF
      THE AGENCY IS SUPPORTED BY FACTS AND RELIABLE,
      PROBATIVE AND SUBSTANTIAL EVIDENCE.

II.   IT IS ASSIGNMENT OF ERROR [SIC] THE LOWER COURT
      RESORTED TO “COPYING AND PASTING” FROM THE
      AGENCY DECISION (AND AGENCY APPEAL BRIEF FILED
      WITH THE COURT), INSTEAD OF REVIEWING THE RECORD,
      AT ANY TIME, TO DETERMINE IF THE DECISION IS IN
      ACCORDANCE WITH THE LAW, AND OTHERWISE
      UNCONSTITUTIONAL, ILLEGAL, ARBITRARY, CAPRICIOUS,
      AND UNREASONABLE. IN DOING SO, THE LOWER COURT
      WILLFULLY MISAPPLIED LAW BY RULING THAT THE OAC
      SUPERSEDES THE R.C. AND THAT A CONFLICT BETWEEN
      THE R.C. AND THE OAC SHOULD BE MADE IN FAVOR OF
      THE AGENCY ‘DESIRES.’ FURTHER, THE LOWER COURT
      ERRED IN IGNORING THE UNCONSTITUTIONAL, ILLEGAL,
      ARBITRARY, CAPRICIOUS, AND UNREASONABLE ACTIONS,
      ATTEMPTING TO ALLOW THEM TO ESCAPE JUDICIAL
      REVIEW. STILL FURTHER, THE LOWER COURT FAILED TO
      APPLY R.C. 1.11 TO THE AGENCY RULES, AND FOLLOW
      FEDERAL LAW.

                            STANDARD OF REVIEW

      {¶10} An appeal from an administrative appeal decision of the Director of

the Job and Family Services Agency may be taken in the court of common pleas

pursuant to R.C. 119.12. Under R.C. 119.12, the court of common pleas must

review an agency order to determine whether “the order is supported by reliable,

probative, and substantial evidence and is in accordance with law.” An appellate

court, on the other hand, is limited to determining whether the common pleas court

abused its discretion in reviewing the evidence in support of the administrative
Scioto App. No. 18CA3860                                                          5

order. Gruber v. Ohio Dep't of Job & Family Serv., 153 Ohio App.3d 6, 2003-

Ohio-2528, 790 N.E.2d 800 (6th Dist.) ¶ 12, Rossford Exempted Village School

Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d 705, 707, 590 N.E.2d 1240

(1992). “To establish an abuse of discretion, the result must be so palpably and

grossly violative of fact or logic that it evidences not the exercise of will but the

perversity of will, not the exercise of judgment but the defiance of judgment, not

the exercise of reason but instead passion or bias.” In re Jack Fish & Sons Co.,

Inc., 159 Ohio App.3d 649, 655-656, 2005-Ohio-545, 825 N.E.2d 171 (4th Dist.),

¶ 7-8.

         {¶11} Issues of law, however, are reviewed de novo. Gruber, at ¶ 12, citing

Sohi v. Ohio State Dental Bd., 130 Ohio App.3d 414, 421, 720 N.E.2d 187 (1st

Dist. 1998).

                             ASSIGNMENT OF ERROR I

         {¶12} Appellant argues that the trial court failed to determine the true facts

of the case, and instead only used the agency’s decision in affirming the dismissal

of his request for a state hearing. Appellant cites several instances in which he

claims that the trial court misstated certain facts in the case. For example,

Appellant asserts the trial court mistakenly stated that Appellant appealed a

decision from ODJFS. Appellant claims his appeal was from ODJFS and the Ohio
Scioto App. No. 18CA3860                                                       6

Department of Medicaid. In fact, ODJFS conducts hearings for Medicaid benefits.

The mere fact that the trial court did not mention both is a non sequitur.

      {¶13} Appellant also argues that “there is no evidence in the record

supporting that [a] dismissal occurred.” This argument is also meritless. Attached

to Appellant’s “notice of administrative appeal” of the dismissal of his request for

a state hearing is a “Notice of Abandoned Hearing,” which explained “[y]our state

hearing request will be dismissed as abandoned because you or your authorized

representative did not come to the hearing scheduled for 10/16/2017.”

      {¶14} Because we find that the trial court did not abuse its discretion in

holding the order by ODJFS affirming the dismissal of Appellant’s hearing request

was supported by reliable, probative, and substantial evidence, we overrule

Appellant’s first assignment or error.

                           ASSIGNMENT OF ERROR II

      {¶15} In his second assignment of error, Appellant appears to contend that

the trial court incorrectly applied the Ohio Administrative Code in affirming the

dismissal by ODJFS of Appellant’s request for a state hearing, and instead should

have applied R.C. 119, which Appellant claims permits applicants to attend a state

hearing in writing.

      {¶16} In seeking to challenge a denial of benefits, “[a]n Appellant is first

entitled to a state hearing by the ODJFS [pursuant to] R.C. 5101.35(B). That
Scioto App. No. 18CA3860                                                       7

decision may be appealed to the director of the ODJFS [pursuant to] R.C.

5101.35(C).” And the agency’s decision may be appealed “to the court of common

pleas, pursuant to R.C. 119.12. R.C. 5101.35(E).” Rodefer v. McCarthy, 2015-

Ohio-3052, ¶ 35, 36 N.E.3d 221, ¶ 16.

      {¶17} R.C. 5101.35, in pertinent part states:

      (B) Except as provided by divisions (G) and (H) of this section, 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. This state hearing shall be conducted in

      accordance with rules adopted under this section. The state hearing

      shall be recorded, but neither the recording nor a transcript of the

      recording shall be part of the official record of the proceeding.

      (Emphasis added.)

      ***

      (F) The department of job and family services shall adopt rules in

      accordance with Chapter 119 of the Revised Code to implement this

      section, including rules governing the following:

      (1) State hearings under division (B) of this section. The rules shall

      include provisions regarding notice of eligibility termination and the
Scioto App. No. 18CA3860                                                      8

      opportunity of an Appellant appealing a decision or order of a county

      department of job and family services to request a county conference

      with the county department before the state hearing is held.

      {¶18} R.C. 5101.35(B) addresses how state hearings are conducted, and (F)

states that ODJFS “shall adopt rules * * * to implement this section.” Therefore,

contrary to Appellant’s assertion, the only role of R.C. Chapter 119 regarding an

application for a state hearing appears in R.C. 5101.35(F), which is to provide

“procedures for the adoption, amendment, and rescission of administrative rules”

that ODJFS adopts to implement state hearings. (Emphasis added.) Crawford-Cole

v. Lucas Cty. Dep't of Job & Family Servs., 121 Ohio St.3d 560, 564, 2009-Ohio-

1355, 906 N.E.2d 409, ¶ 28. Appellant does not allege that the rules adopted by

ODJFS that are applicable to his case were out of compliance with rule-making

procedures.

      {¶19} Consistent with the dictates of R.C. 5101.35(F) (The department of

job and family services shall adopt rules * * * to implement this section), ODJFS

adopted Ohio Admin. Code 5101:6-5-03, which, in pertinent part, provides:

      ***

      (E) A request for a state hearing may be dismissed only for the

      following reasons:

      ***
Scioto App. No. 18CA3860                                                     9

     (2) The request is abandoned. A state hearing request is

     “abandoned” when the individual or authorized representative fails,

     without good cause, to attend the state hearing. A “state hearing” is

     defined as the initial state hearing, a hearing that has been

     rescheduled, or a hearing that has been continued.

     (a) When the hearing has been abandoned, the individual and

     authorized representative shall be notified that the hearing request

     will be dismissed if good cause for failing to attend is not shown

     within ten days of the mailing date of the notice.

     (b) The hearing shall be rescheduled if the individual or authorized

     representative contacts the hearing authority, in writing or by

     telephone, within the ten-day period and establishes good cause.

     (c) The request shall be dismissed as abandoned if the bureau does

     not receive a showing of good cause within the ten-day period. The

     date of dismissal is the day after the ten-day period ends.

     (d) If the individual contacts the hearing authority but fails to

     establish good cause, the individual shall be given written notice of

     that determination and of the right to and the method of obtaining an

     administrative appeal. Copies shall be sent to the local agency.
Scioto App. No. 18CA3860                                                        10

      (e) “Good cause” is defined as death in the immediate family, sudden

      illness or injury of the individual or a member of the individual's

      immediate family, or other circumstances that reasonably prevented

      attendance at the hearing.

      (f) The hearing authority shall have final authority to determine if

      good cause was timely shown. Verification of good cause may be

      required.

      {¶20} “The primary goal in construing an administrative rule is to ascertain

and give effect to the intent of the rule-making authority.” State v. Hairston, 101

Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 11. “Courts interpret

administrative rules in the same manner as statutes.” State v. Moore, 4th Dist.

Athens No. 12CA26, 2013-Ohio-5506, 5 N.E.3d 41, ¶ 9, citing McFee v. Nursing

Care Mgt. of Am., Inc., 126 Ohio St.3d 183, 2010-Ohio-2744, 931 N.E.2d 1069,

¶ 27. “If a statutory term is not defined, “ ‘it should be accorded its plain and

ordinary meaning.’ ” ” Denuit v. Ohio State Bd. of Pharmacy, 4th Dist. Jackson

Nos. 11CA11, 11CA12, 2013-Ohio-2484, 994 N.E.2d 15, ¶ 30, quoting State ex

rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131

Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 49, quoting Rhodes v. New

Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 17. “

‘Courts have used dictionary definitions to determine the plain and ordinary
Scioto App. No. 18CA3860                                                          11

meaning of a statutory term.’ ” Id, quoting State v. Jackson, 12th Dist. Butler No.

CA2011–06–096, 2012-Ohio-4219, 2012 WL 4056778, ¶ 34.

      {¶21} Under Ohio Admin. Code 5101:6-5-03(E)(2), a request for a state

hearing is deemed abandoned, and can eventually be dismissed, if the individual or

his or her representative “fails to attend” the state hearing absent good cause.

(Emphasis added) “Attend” is not defined in the rule, but its plain and ordinary

meaning is “to be present at : to go to” https://www.merriam-

webster.com/dictionary/attend. Being present at the hearing, in person or by

phone, is also consistent with the requirement that “[t]he state hearing shall be

recorded * * *.” R.C. 5101.35. Clearly, submitting a written document is not

attending the hearing within this definition, which requires a personal presence.

      {¶22} As recited in more detail in the facts section of this decision above,

the documentation from ODJFS stated that failure to attend the hearing could result

in abandonment, and eventually dismissal, of an applicant’s request for a state

hearing. And despite this, Appellant continued to insist that he had a right to

attend the hearing through a written document or documents. Ultimately,

Appellant failed to attend any scheduled hearing, and his request for a state hearing

was determined to be abandoned and eventually dismissed.

      {¶23} As such, Appellant’s argument that R.C. 119 permits a person to

attend a state hearing by submitting written documents is unsupported in the law
Scioto App. No. 18CA3860                                                       12

because R.C. 5101.35(B) and Ohio Admin. Code 5101:6-5-03 outline that process,

and they do not provide for an applicant to attend a state hearing through a written

document.

      {¶24} Because the trial court’s judgment affirming the dismissal by ODJFS

of Appellant’s application for a state hearing is supported by reliable, probative,

and substantial evidence and in accordance with law, we find that the trial court did

not abuse its discretion and we overrule Appellant’s second assignment of error.

                                  CONCLUSION

      {¶25} Because we find that the trial court did not abuse its discretion in

holding that the order by ODJFS was supported by reliable, probative, and

substantial evidence, and the ODJFS decision was otherwise in accordance with

law, we affirm the judgment of the trial court.

                                                        JUDGMENT AFFIRMED.
Scioto App. No. 18CA3860                                                       13

                               JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Smith, P.J., McFarland, J., Hess, J.: Concur in Judgment and Opinion.


                                       For the Court,


                                 BY: ______________________________
                                     Jason P. Smith, Presiding Judge


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge


                                 BY: ______________________________
                                     Michael D. Hess, Judge



                             NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
