John Ken Alzheimer's Ctr. v. Ohio Cert. of Need Review Bd., 89AP-976
| Decision Date | 24 October 1989 |
| Docket Number | No. 89AP-976,89AP-976 |
| Citation | 583 N.E.2d 337,65 Ohio App.3d 134 |
| Parties | JOHN KEN ALZHEIMER'S CENTER, Appellant, v. OHIO CERTIFICATE OF NEED REVIEW BOARD et al., Appellees. |
| Court | Ohio Court of Appeals |
Benesch, Friedlander, Coplan & Aronoff and Harry M. Brown, Cleveland, for appellant.
Anthony J. Celebrezze, Jr., Atty. Gen., and Lawrence D. Pratt, Columbus, for appellee Ohio Certificate of Need Review Bd.
Carlile, Patchen, Murphy & Allison, and Donald Antrim, Columbus, for appellee Twin Manor Nursing Home.
This matter is before the court upon the response of plaintiff-appellant, John Ken Alzheimer's Center, to a September 1, 1989 order of this court directing plaintiff to show cause why its appeal from an order of defendant-appellee Ohio Certificate of Need Review Board ("board") should not be dismissed for lack of jurisdiction. Plaintiff contends that this court has jurisdiction pursuant to the provisions of R.C. 3702.58 Am.Sub.H.B. No. 332, effective August 5, 1989.
Sometime prior to June 15, 1986, plaintiff applied for a certificate of need to construct a facility for the care and treatment of patients with Alzheimer's Disease. This application was ultimately denied by the assistant director of health on November 4, 1986, from which decision plaintiff timely appealed to the Certificate of Need Review Board on November 24, 1986. Following extensive proceedings before the board, including an adjudication hearing, the board upheld the November 4, 1986 decision denying plaintiff's application for a certificate of need. The order, dated July 25, 1989, was mailed to the parties on August 1, 1989.
Plaintiff then filed a notice of appeal to the Franklin County Court of Common Pleas on August 14, 1989, and filed a notice of appeal with this court on August 24, 1989. During the period between the August 1, 1989 mailing of the board's order to plaintiff and the date on which plaintiff filed its notices of appeal in the court of common pleas and in this court, Am.Sub.H.B. No. 332 became effective on August 5, 1989. One of the provisions of that bill amended R.C. 3702.58 such that certificate of need applicants may appeal the board's order directly to this court.
Prior to the amendment of R.C. 3702.58, effective August 5, 1989, that section provided in part:
"Any affected person or the director of health may appeal the board's order in the adjudication hearing to the court of common pleas of Franklin county. * * *"
Since this section did not prescribe the method or manner of taking such an appeal, the provisions of R.C. 119.12 apply. That section provides in part:
Following the amendment of R.C. 3702.58 on August 5, 1989, subsection (E) of that section now provides:
Also pertinent to the instant appeal is Section 31 of Am.Sub.H.B. No. 332, which states:
"All appeals pending before the Certificate of Need Review Board on which the hearing has been completed and any litigation pending in the Court of Common Pleas of Franklin County that pertains to the reviewability of a project on the effective date of this section shall be conducted and decided based on sections 3702.51 to 3702.60 and 3702.99 of the Revised Code as they were in effect on June 30, 1989."
Plaintiff contends that because the board mailed its final decision on August 1, 1989, plaintiff's appeal to the board from the decision of the director was no longer pending for purposes of Section 31 of Am.Sub.H.B. No. 332. Accordingly, plaintiff concludes that, because it did not file its appeal in this court until subsequent to the August 5, 1989 amendment of R.C. 3702.58, this court has jurisdiction pursuant to the amended provisions of that section. It is plaintiff's position that the General Assembly intended to give Am.Sub.H.B. No. 332 retrospective effect by including Section 31 of that Act which specifies that prior statutory provisions govern only the enumerated actions listed within that section.
In response to these contentions, defendant-appellee Ohio Department of Health ("department"), contends that this court does not have jurisdiction over the instant appeal and that only the Franklin County Court of Common Pleas has jurisdiction of this matter. The basis for this contention is the department's assertion, relying on In re Appeal of Bidlack (1982), 3 Ohio App.3d 351, 3 OBR 408, 445 N.E.2d 722, that the jurisdiction of the board did not end with the issuance of its adjudication order but, instead, continued...
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