Inn v. Ohio Dep't Of Health
| Decision Date | 24 December 2009 |
| Docket Number | No. 09AP-67.,09AP-67. |
| Citation | 924 N.E.2d 898,2009 Ohio 6836,185 Ohio App.3d 524 |
| Parties | DEER PARK INN, Appellant,v.OHIO DEPARTMENT OF HEALTH et al., Appellees. |
| Court | Ohio Court of Appeals |
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Sirkin, Pinales & Schwartz L.L.P., H. Louis Sirkin, and Scott Ryan Nazzarine, Cincinnati, for appellant.
Richard Cordray, Attorney General, and Angela M. Sullivan, Assistant Attorney General, for appellees.
{¶ 1} Appellant, Deer Park Inn, appeals from a judgment of the Franklin County Court of Common Pleas appealing from an administrative determination rendered by appellee, the Hamilton County General Health District.
{¶ 2} This case involves a purported violation of Ohio's SmokeFree Act, R.C. Chapter 3794, which prohibits smoking in many public places and places of employment. As the matter now stands, this appeal concerns only questions of law, and the facts are largely uncontroverted.
{¶ 3} Deer Park is a public bar located in Hamilton County, Ohio. Acting upon a telephone tip, the health district sent inspectors to the premises to check for violations of the SmokeFree Act. The investigators observed such violations, including two patrons smoking inside the building and an absence of mandated “no smoking” signs. When informed of the violations, the owner of the premises was uncooperative.
{¶ 4} The health district then sent a letter to Deer Park notifying it of the observed smoking violation (the letter omitted any mention of the missing signage) and informing Deer Park of its right to contest the findings in writing. Deer Park responded with a general factual denial of the alleged violation and asserted various constitutional and procedural defenses. The health district then conducted an internal departmental review of the evidence by a three-person panel, including the two original investigators who had observed the violations, and confirmed its prior conclusion that Deer Park had violated the SmokeFree Act. The health district accordingly sent a letter of warning based on violations consisting of patrons smoking on the premises and failure to post “no smoking” signs, despite the fact that this latter allegation had not been listed in the notice of proposed violations.
{¶ 5} Deer Park then filed an appeal to the Franklin County Court of Common Pleas pursuant to R.C. 119.12. The court of common pleas upheld the health district's determination, finding that there was reliable, probative, and substantial evidence supporting the finding that Deer Park had permitted patrons to smoke indoors on the premises. The court of common pleas did not address the discrepancy between the original notice of violation and the subsequent finding of violation regarding the absence of “no smoking” signs. The court of common pleas also rejected all constitutional challenges to the SmokeFree Act, most significantly addressing the procedural due process claim that the absence of a right to a hearing before issuing a warning letter deprived Deer Park of the opportunity to meaningfully challenge the alleged violations.
{¶ 6} Deer Park timely appealed and brings the following two assignments of error:
{¶ 7} Pursuant to R.C. 3794.09(C), Deer Park's appeal to the court of common pleas, as well as the subsequent appeal to this court, are administrative appeals governed by R.C. 119.12. Under the standard of review set forth in that section, the court of common pleas will affirm the administrative agency's determination if the court finds, based upon the record and any additional evidence allowed by the court, that the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Upon further appeal to this court, our standard of review is limited to the consideration of whether the court of common pleas abused its discretion in finding that there was reliable, probative, and substantial evidence supporting the agency's order and that it was in accordance with law.
{¶ 8} Deer Park's first constitutional argument under its first assignment of error asserts a denial of procedural due process in the course of the investigation and determination rendered by the Health District.
{¶ 9} “Before the state may deprive a person of a property interest, it must provide procedural due process consisting of notice and a meaningful opportunity to be heard.” Ohio Assn. of Pub. School Emps., AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. of Edn. (1994), 68 Ohio St.3d 175, 176, 624 N.E.2d 1043, citing Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494. “Determining the adequacy of predeprivation procedures requires consideration of the Government's interest in imposing the temporary deprivation, the private interests of those affected by the deprivation, the risk of erroneous deprivation through the challenged procedures, and the probable value of additional or substitute procedural safeguards.” Brock v. Roadway Express, Inc. (1987), 481 U.S. 252, 262, 107 S.Ct. 1740, 95 L.Ed.2d 239.
{¶ 10} Deer Park asserts that it was denied due process in this case for three reasons. First, despite the fact that the investigating officers formally charged Deer Park only with allowing smoking in a prohibited area, the warning letter issued after administrative proceedings also found Deer Park to be in violation of R.C. 3794.06(A), failing to post “no smoking” signs in appropriate areas. Second, Deer Park asserts that Ohio Adm.Code 3701-52-08(F)(1), which provides the administrative procedure here and does not provide for an actual administrative hearing for first offenses, violates the due process standards set forth above by failing to provide a meaningful opportunity to be heard. Third, Deer Park argues that even the limited and summary review conducted by the health district was flawed because a review was conducted by three health-district employees, two of whom were the investigating sanitarians who observed the purported violations and, thus, deprived Deer Park of any semblance of a detached and neutral decision maker in the administrative process.
{¶ 11} The Ohio SmokeFree Act, R.C. 3794.01 et seq., prohibits smoking in public places or places of employment with certain significant exceptions (private residences, designated smoking rooms in hotels, nursing homes, retail tobacco stores, outdoor patios, and private clubs). R.C. 3794.02 and 3794.03. R.C. 3794.07 authorizes the health district to promulgate rules for enforcement of the statute by the health district or its designees. R.C. 3794.09 provides that the sole enforcement response for a first reported violation of the act will be a warning letter issued to the proprietor or responsible individuals. R.C. 3794.09(A). Further violations will result in a civil fine against the proprietor or responsible individuals. R.C. 3794.09(B). The pertinent administrative code covering violations provides that upon receipt of a report of violation, the health district or its delegate shall provide the proprietor of an establishment with a written notice of the reported violation and provide the opportunity to submit in writing statements or evidence to contest the report. Ohio Adm.Code 3701-52-08(D). After reviewing the report, evidence submitted by the proprietor to contest the report, and other fruits of the investigation, such as interviews and on-site investigations, the health district will determine whether a violation has occurred and, if the violator has no prior findings of violations within the preceding two years, issue the warning letter under R.C. 3794.09(A). Ohio Adm.Code 3701-52-08(F)(1)(a). If the alleged violator, however, has a prior violation in the preceding two years, a more comprehensive administrative review is mandated, including a hearing providing the alleged violator with the opportunity to present its case and to confront and cross-examine adverse witnesses. Ohio Adm.Code 3701-52-08(F)(2).
{¶ 12} When Deer Park was apprised of the pending violation, it did not submit written evidence under the regulatory framework outlined above. The letter submitted by counsel for Deer Park, after incorrectly pointing out that there was “no evidence of smoking in prohibited areas on or about” the dates in question (despite the investigators' personal observations), then proceeded to assert that there was no indication that the proprietor had “permitted” smoking on the premises and thus violated the statute. The letter then addressed various constitutional deficiencies in the procedure set forth above, particularly the argument, raised again on appeal, that the absence of a hearing allowing an establishment charged with a violation of the SmokeFree Act to confront witnesses at a formal hearing constituted a denial of due process.
{¶ 13} With respect to the finding of a violation by failure to post signs, we agree with Deer Park that this violation was not properly noticed in the letter of proposed violations that was sent to Deer Park, which cited only “smoking in a prohibited area” as the basis of the violation. Nevertheless, the formal warning letter issued after confirmation of the violation cited Deer Park for both smoking in a prohibited area and failure to post signs. In this respect, at least, the actions of the health district are inappropriate, because no notice was given to the purported violator of these grounds for a finding of violation, and thus, no opportunity was given for the accused to avail itself of even the limited procedure afforded first-time violators.
{¶ 14} Regarding the procedural due process afforded an alleged violator under these circumstances, we...
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