Hart v. Board of Liquor Control
| Decision Date | 16 October 1953 |
| Citation | 96 Ohio App. 128,54 O.O. 217,121 N.E.2d 257 |
| Parties | , 54 O.O. 217 HART v. BOARD OF LIQUOR CONTROL |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. In perfecting an appeal from a decision of the Board of Liquor Control to the Common Pleas Court pursuant to Section 154-73, General Code, it is mandatory that the notice of appeal be filed within 15 days from the mailing of the board's decision.
2. The provision of Section 9 of Regulation 65 of the Board of Liquor Control for application for rehearing within 30 days after the board's decision does not extend the 15-day period provided by Section 154-73, General Code, for filing notice of appeal to the Common Pleas Court from an order of an administrative agency.
DiSalle, Green & Haddad, Toledo, for appellant.
C. William O'Neill, Atty. Gen., Robert B. Rady, Sandusky, Kiehner Johnson, Columbus, for appellee.
This is an appeal on questions of law from an order of the Common Pleas Court affirming an order of the Board of Liquor Control after the court dismissed the appeal on the ground that it was not perfected as provided by the fourth paragraph of Section 154-73, General Code, in that the notice of appeal was not filed within 15 days after the mailing of the notice of the agency's order.
The order appealed from was a suspension for 30 days of the class D-1 and D-2 permits of appellant.
The chronology of the proceedings here under review is as follows:
The Board of Liquor Control on September 15, 1952, made its order affirming an order of the Department of Liquor Control holding adversely to the appellant on a citation against her. Notice of this order was mailed to the appellant on September 19, 1952. On September 24, 1952, within the time provided by Regulation 65 of the Board of Liquor Control, appellant filed an application for rehearing with the Board of Liquor Control. The board acted adversely to the appellant on the application for rehearing on September 30, 1952, and notice of such decision was mailed to the appellant on or about October 2, 1952. On October 8, 1952, appellant filed notice of appeal with the Board of Liquor Control.
The errors assigned are numbered one to five, but are fully encompassed in the fifth, namely:
'Does the filing of a timely application for rehearing, in accordance with the provisions of Regulation No. 65 of the Board of Liquor Control, amount to a waiver of the right to appeal to the Court of Common Pleas if the Board of Liquor Control does not pass upon such application in sufficient time to permit the filing of an appeal within fifteen days of its original decision?'
It is the claim of the appellant that the time within which the notice of appeal shall be filed with the Board of Liquor Control begins as of the date of the order denying appellant's application for rehearing. It is the claim of the board that the order appealed from is the action of the board on appellant's appeal and that the notice of appeal must be given within 15 days after the mailing of notice of this order to appellant.
We have been favored with exceptionally complete and comprehensive briefs particularly on the part of appellant. We believe that it would serve no good purpose to pursue all the contentions in appellant's brief and will content ourselves by briefly discussing what we deem to be the controlling factors.
It must be conceded that the final order sought to be appealed from here was the action of the Board of Liquor Control on appellant's appeal from the order of the department. There is no provision in the regulations of the board or by statute which recognizes an appeal from the overruling of an application for rehearing.
Section 12223-3, General Code, provides in part:
'Every final order, judgment or decree of a court and, when provided by law, the final order of any administrative officer, tribunal, or commission may be reviewed as hereinafter provided, unless otherwise provided by law * * *.'
Section 154-73, General Code, a part of the Administrative Procedure Act, contains subject matter as to review which may be characterized as 'otherwise provided by law'. This section is specific in its provision that the notice of appeal shall be filed within 15 days after the mailing of the notice of the agency's order. This requirement admittedly was not met by appellant, but it is contended that the board by section 9 of Regulation 65 has made provision for a rehearing application for which may be filed with...
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...in Zier v. Ohio Bur. of Unemp. Comp. (1949), 151 Ohio St. 123, 38 O.O. 573, 84 N.E.2d 746, and Hart v. Ohio Bd. of Liquor Control (1953), 96 Ohio App. 128, 54 O.O. 217, 121 N.E.2d 257, to be more persuasive. See, also, In re Claim of King (1980), 62 Ohio St.2d 87, 16 O.O.3d 73, 403 N.E.2d A......
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