Zieverink v. Ackerman , 1 Ohio App. 3d 10 ( 1981 )

This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County.

Appellant, Dorothy Zieverink, d.b.a. Colonial Acres Nursing Home, operates a nursing home. Her license for this home was revoked by the appellee, the Director of Health of the Ohio Department of Health, after a hearing, in which it was established that appellant had failed to install an automatic sprinkling system as required by R.C. 3721.071. Appellant appealed this license revocation to the Court of Common Pleas of Hamilton County. In that court appellant filed a motion to introduce evidence not presented at the Department of Health hearing. The evidence she wished to introduce related to the constitutionality of R.C. 3721.071. This motion was denied. The Court of Common Pleas subsequently affirmed the order of the Director of Health, revoking appellant's license, on the ground that such order was supported by reliable, substantial and probative evidence. Appellant timely filed her notice of appeal.

In her single assignment of error, appellant contends that the lower court erred in denying her motion to introduce evidence. Having reviewed the facts and the applicable law, we can only conclude that the lower court was entirely correct in denying appellant's motion.

Appellant's appeal to the Court of Common Pleas was brought pursuant to R.C. 119.12. That statute provides (at all times relevant herein), in pertinent part, as follows:

"Unless otherwise provided by law, in the hearing of the appeal the court is confined to the record as certified to it by the agency. Unless otherwise provided by law, the court may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency."

In accordance with this provision, the Court of Common Pleas was required to confine itself to a review of that record before the Department of Health. The court could have considered additional evidence only if it was established that such evidence was newly discovered and was not available prior to the Department of Health hearing. Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275 [58 O.O. 51].

Such facts were not even alleged in the court below. Appellant merely requested to submit additional evidence in order to prove that the statute was unconstitutional as applied to her. Whatever the merits of appellant's argument as to the constitutionality of the statute (R.C. 3721.071), the court was obliged to comply with the terms of the statute under which the appeal had been taken (R.C. 119.12). If appellant had presented evidence before the Department of Health relating to the constitutionality of the statute as applied to her, she would then have been entitled to have the court determine that question. However, not having presented such evidence before the agency, she is precluded by the terms of R.C. 119.12 from raising that question by introducing new evidence before the Court of Common Pleas,unless such evidence was newly discovered. Since appellant did not establish that the additional evidence which she wished to introduce was "newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency" (R.C.119.12), the trial court was entirely correct in denying her motion to introduce such evidence. The assignment of error is without merit.

The assignment of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, affirmed.

Judgment affirmed.

SHANNON, P.J., KEEFE and DOAN, JJ., concur.