Brisker v. Ohio Dept. of Ins.

[Cite as Brisker v. Ohio Dept. of Ins., 2021-Ohio-3141.]

Released 09/03/21
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY

FREDERICK BRISKER, :
:
Plaintiff-Appellant, : Case No. 20CA3925
:
v. :
:
OHIO DEPARTMENT OF : DECISION AND JUDGMENT
INSURANCE, : ENTRY
:
Defendant-Appellee. :

APPEARANCES:

John A. Izzo, Graff & McGovern, LPA, Columbus, Ohio, and Michael H. Mearan,
Portsmouth, Ohio, for Appellant.

Dave Yost, Ohio Attorney General, Crystal R. Richie, Principal Assistant Attorney
General, Health and Human Services Section, for Appellee.
__________________________________________________________________

PER CURIAM.

{¶1} Frederick Brisker appeals the August 4, 2020 judgment entry of the

Scioto County Court of Common Pleas which affirmed the Ohio Department of

Insurance’s order revoking his insurance license. Having reviewed the record, we

find Mr. Brisker’s assignments of error lack merit and are hereby overruled. Thus,

we affirm the judgment of the trial court.

FACTS
Scioto App. No. 20CA3925 2

{¶2} Frederick Brisker, “Appellant,” an independent insurance broker

licensed since 1976, owns Fred Brisker Financial Advisors. He sold stocks, bonds,

and annuities through his insurance business in Portsmouth, Ohio. Appellant had

business relationships with Midland National Life Insurance Company, “MNLIC,”

and Parkland Securities, “Parkland.”

{¶3} In 2019, Appellant was notified that the Ohio Department of Insurance,

the “Department,” had conducted an investigation of his activities and had

concluded that he was not suitable to be licensed as an insurance agent in the State

of Ohio due to two violations of R.C. 3905.14(B). Appellant was alleged to have

impersonated an insured in the conduct of his insurance business, a violation of

R.C. 3905.14(B)(9). Appellant was also alleged to have submitted a forged

document in the conduct of his insurance business, a violation of R.C.

3905.14(B)(26). Appellant was provided notice of opportunity for a hearing on the

matter.

{¶4} The Department eventually conducted its administrative hearing

regarding the two allegations on August 14, 2019. Carrie Roe, John Murphy,

Angel Bowers, Appellant, and several character witnesses on Appellant’s behalf

testified. At the beginning of the hearing, Appellant stipulated to one of the

violations, impersonating one of his clients, Edwin Dyer.
Scioto App. No. 20CA3925 3

{¶5} Regarding the allegation that Appellant submitted a forged

document, Carrie Roe testified she worked for Appellant from 2009 to 2018

as his office manager and assistant. She resigned from Appellant’s

employment on good terms. Ms. Roe identified State’s Exhibit D, an

employment verification form submitted in support of Appellant’s disability

claim.1 The form indicates it is from UNUM.2 The form contains four

pages of requested general information as to Appellant’s employment,

including work hours, travel required, job duties, and various occupational

requirements. The answers to the questions on the form are printed in the

blanks provided. The first page of the form demonstrates it is addressed to

“Jack Murphy” at Appellant’s business address. The last page of the form

required a signature and phone number. The name “Jack Murphy” is

handwritten on the signature line and is printed on the line below.

{¶6} Roe testified that while she was employed by Appellant she

received a call from John Murphy requesting a copy of Exhibit D, the

employment verification form. John Murphy is a regional sales director

employed by MNLIC. Roe found an original on Appellant’s desk. Roe also

found a fax confirmation form. As Roe reviewed Exhibit D, she testified

that the printing appeared to be Appellant’s. Ms. Roe also testified that on
1
Appellant claimed disability as a result of a 2016 car accident.
2
According to UNUM’s website, it is a Fortune 500 international company, helping customers gain access to, among
other benefits, disability benefits. See https://careers.unum/global/en.
Scioto App. No. 20CA3925 4

the day she returned Appellant’s office keys, Appellant advised that he had

been terminated from Parkland because of “the form that he signed Jack’s

name to.” On cross-examination, Ms. Roe acknowledged that she now

works for one of Appellant’s competitors.

{¶7} John Murphy testified his nickname is “Jack.” Mr. Murphy also

identified Exhibit D. Mr. Murphy testified he first learned of Exhibit D

when he was contacted by UNUM. UNUM’s representative wanted to ask

him questions about the form he had submitted in support of Appellant’s

disability claim. Murphy testified he knew nothing about this form at the

time he was contacted by UNUM.

{¶8} Murphy testified that thereafter, he contacted Appellant’s office,

spoke with Carrie Roe, and requested a copy of the form. When he received

Roe’s fax, he noticed his name was forged on the document. Murphy denied

signing the form, supervising Appellant, or ever using Appellant’s address

or phone. Earlier, Roe had also testified that Mr. Murphy never worked

from Appellant’s office. Murphy testified he had known Appellant for 15

years and the printing on the claim form looked like Appellant’s printing.3

{¶9} Angel Bowers testified she is employed as an investigator with

the Department. She received information that Appellant was terminated
3
Murphy further testified that by coincidence, the day he received the form, he had a compliance review. He
showed the form to his compliance officer and the compliance department. About a week later in March 2018,
Parkland terminated Appellant.
Scioto App. No. 20CA3925 5

from Parkland due to the employment verification form. She also learned

about the impersonation from MNLIC. Bowers obtained a recording of the

impersonation phone call. Ms. Bowers testified that she interviewed Edwin

Dyer. Mr. Dyer told her that he gave Appellant permission to request

information but not to impersonate him. She characterized Mr. Dyer as

being “concerned” about the impersonation.

{¶10} Ms. Bowers interviewed Appellant in February 2019.

Appellant initially denied making the phone call. After the recorded

impersonation phone call was played, Appellant apologized and said he did

not recall making the call.

{¶11} Appellant testified his clients, Edwin and Susan Dyer, lived a

distance of six hours away from his insurance office. They were having

difficulty getting information from MNLIC so they authorized him to

contact the company on their behalf. Appellant was getting ready to see the

Dyers for a yearly review and needed to have full information from MNLIC

before traveling six hours to meet them. Although admitting the

impersonation, Appellant viewed it as for a laudable purpose―fulfilling his

obligation to assist his clients.
Scioto App. No. 20CA3925 6

{¶12} Appellant also admitted Mr. Murphy never worked for him.4

As to Exhibit D, the claim form, Appellant admitted the hand printing on the

form was his, but he denied signing Mr. Murphy’s name to the last page.

Appellant testified he did not know how the claim form reached UNUM.

Appellant did not recall telling Ms. Roe he signed Mr. Murphy’s name.

UNUM ultimately paid Appellant $60,000 in disability benefits.

{¶13} The following Department’s exhibits were admitted into

evidence: Exhibit A, the Notice of Opportunity for Hearing; Exhibit B,

Appellant’s request for a hearing; Exhibit C, Notice and Order to Continue

Formal Hearing; and Exhibit D, documents from Parkland which contained

the forged disability claim form; Exhibit E, affidavit from Ethan Jones; and

Exhibit F, messages on a CD.5 Appellant’s exhibits admitted into evidence

were: Exhibit 1, affidavit of Edwin Dyer; Exhibit 2, affidavit of Susan Dyer;

Exhibit 3, Affidavit of Curt Baggett; and Exhibit 4, summary of cases

reviewed by Mr. Baggett. Generally, the Dyers averred that they would

continue to use Appellant’s services.

{¶14} After hearing the testimony and reviewing the exhibits, the

hearing officer found impersonation was proven through the testimony and

4
Murphy testified that although one of his job duties was recruiting agents for MNLIC, he did not recruit Appellant.
Appellant was already working as an agent when Murphy became employed with MNLIC. They typically saw each
other four times a year at meetings.
5
Ethan Jones’ affidavit averred that he worked for MNLIC and actually received the phone call from Appellant
pretending to be a client, Edwin Dyer. Jones immediately recognized Appellant’s voice.
Scioto App. No. 20CA3925 7

exhibits, as well as admitted by Appellant. The hearing officer also found

forgery was proven through the testimony and exhibits. On December 20,

2019, the Superintendent of the Department adopted the report and

recommendation of the administrative hearing officer and issued an order

revoking Appellant’s insurance license.

{¶15} This administrative appeal was filed on December 27, 2019.

On January 28, 2020, the parties through counsel agreed to have a complete

record of proceedings filed under seal. The court issued a scheduling order,

and the matter was set for oral hearing on April 10, 2020.

{¶16} Appellant filed his brief on February 28, 2020. The Department filed

its brief on March 30, 2020. Appellant filed a reply brief on April 6, 2020. On

August 4, 2020, the trial court filed its judgment entry affirming the Department’s

order.6 This timely appeal followed.

{¶17} In this appeal, Appellant argues that the common pleas court abused

its discretion in finding that the order was based on reliable, probative, and

substantial evidence and in accordance with the law. Appellant requests that his

license be reinstated.

ASSIGNMENTS OF ERROR

6
Appellant has moved the common pleas court and this Court for a stay of enforcement of the Department’s order
revoking his insurance license pending the outcome of the proceedings. Appellant has argued he would suffer an
unusual hardship if the order was not stayed. At all times, the Department has opposed Appellant’s motions. This
court and the common pleas court have denied these motions and have also denied Appellant’s subsequent motions
for reconsideration.
Scioto App. No. 20CA3925 8

I. THE COMMON PLEAS COURT ABUSED ITS
DISCRETION WHEN IT DETERMINED THE
DEPARTMENT’S ORDER WAS BASED UPON
RELIABLE, PROBATIVE, AND SUBSTANTIAL
EVIDENCE.

II. THE COMMON PLEAS COURT ABUSED ITS
DISCRETION WHEN IT DETERMINED THE
DEPARTMENT’S ORDER WAS IN ACCORDANCE
WITH LAW.

A. STANDARD OF REVIEW

{¶18} In a R.C. 119.12 administrative appeal, a common pleas court

must affirm the agency's decision if it is supported by “reliable, probative,

and substantial evidence and is in accordance with law.” See Hinton Adult

Care Facility v. Ohio Department of Mental Health and Addiction Services,

4th Dist., Ross No.16CA3566, 2017-Ohio-4113, at ¶ 17. See also, Pons v.

Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993); In re

Williams, 60 Ohio St.3d 85, 86, 573 N.E.2d 638 (1991). “ ‘Reliable’

evidence is dependable or trustworthy; ‘probative’ evidence tends to prove

the issue in question and is relevant to the issue presented; and ‘substantial’

evidence carries some weight or value.” Hinton, supra, quoting Ohio Civ.

Rights Comm. v. Case W. Res. Univ., 76 Ohio St.3d 168, 178, 666 N.E.2d

1376 (1996), citing Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio

St.3d 570, 571, 589 N.E.2d 1303 (1992). Thus, when a common pleas court

reviews the agency's finding, it must “appraise all the evidence * * * ‘and, if
Scioto App. No. 20CA3925 9

from such a consideration it finds that the * * * [agency's] order is not

supported by reliable, probative, and substantial evidence and is not in

accordance with law, the court is authorized to reverse, vacate, or modify the

order * * *.’ ” See Hinton, supra, at ¶ 18, quoting Univ. of Cincinnati v.

Conrad, 63 Ohio St.2d 108, 110, 407 N.E.2d 1265 (1980), quoting Andrews

v. Bd. of Liquor Control, 164 Ohio St. 275, 131 N.E.2d 390 (1955),

paragraph one of the syllabus.

[W]hether an agency order is supported by reliable, probative
and substantial evidence essentially is a question of the absence
or presence of the requisite quantum of evidence. Although this
in essence is a legal question, inevitably it involves a
consideration of the evidence, and to a limited extent would
permit a substitution of judgment by the reviewing Common
Pleas Court.

Id. at 111. Furthermore, while “a Court of Common Pleas ‘must give due

deference to the administrative resolution of evidentiary conflicts,’ [id.], [d]ue

deference * * * does not contemplate uncritical acquiescence to administrative

findings.” Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ.

Rights Comm., 66 Ohio St.2d 192, 200, 421 N.E.2d 128 (1981).

{¶19} Although a common pleas court may not try the issues de novo or

substitute its judgment for the administrative agency, see Kisil v. Sandusky, 12

Ohio St.3d 30, 34, 465 N.E.2d 848 (1984), and Conrad at 110, it may decide

purely legal questions de novo. See Hinton, supra, at ¶19. See also Ohio
Scioto App. No. 20CA3925 10

Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 470-471, 613

N.E.2d 591 (1993); Joudah v. Ohio Dept. of Human Servs., 94 Ohio App.3d 614,

616-617, 641 N.E.2d 288 (9th Dist.1994). Thus, “[t]o the extent that an agency's

decision is based on construction of the state or federal Constitution, a statute, or

case law, the common pleas court must undertake its R.C. 119.12 reviewing task

completely independently.” Ohio Historical Soc. at 471.

{¶20} In contrast to the common pleas court's standard of review, an

appellate court's review of an administrative agency's order is more limited. See

Hinton, at ¶ 19; Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd.,

40 Ohio St.3d 257, 260-261, 533 N.E.2d 264 (1988). It is incumbent on a common

pleas court to examine the evidence. See Pons, 66 Ohio St.3d at 621, 614 N.E.2d

748. Such is not the charge of an appellate court. Id. Instead, an appellate court

must determine whether the trial court has abused its discretion. Id. Thus, absent

an abuse of discretion on the part of the trial court, a court of appeals must affirm

the trial court's judgment. See id. An abuse of discretion constitutes more than an

error of law or judgment; rather, it implies that the trial court's attitude was

unreasonable, arbitrary, or unconscionable. See, e.g., Landis v. Grange Mut. Ins.

Co., 82 Ohio St.3d 339, 342, 695 N.E.2d 1140 (1998); Malone v. Courtyard by

Marriott L.P., 74 Ohio St.3d 440, 448, 659 N.E.2d 1242 (1996).
Scioto App. No. 20CA3925 11

{¶21} Additionally, an appellate court must not substitute its judgment for

that of an administrative agency or a common pleas court. See Hinton, at ¶ 20;

Pons, 66 Ohio St.3d at 621, 614 N.E.2d 748. The fact that the court of appeals

might have arrived at a different conclusion than did the administrative agency is

immaterial. “With respect to purely legal questions, however, the court is to

exercise independent judgment.” VFW Post 8586 v. Ohio Liquor Control Comm.,

83 Ohio St.3d 79, 82, 697 N.E.2d 655 (1998); see also Nye v. Ohio Bd. of

Examiners of Architects, 165 Ohio App.3d 502, 2006-Ohio-948, 847 N.E.2d 46,

¶ 11 (10th Dist.) (stating that appellate court has plenary review of legal questions).

B. LEGAL ANALYSIS

{¶22} R.C. 119.09 governs adjudication hearings. The statute provides in

pertinent part:

In any adjudication hearing required by sections 119.01 to
119.13 of the Revised Code, the agency may appoint a referee
or examiner to conduct the hearing. The referee or examiner
shall have the same powers and authority in conducting the
hearing as is granted to the agency. * * * The referee or
examiner shall submit to the agency a written report setting
forth the referee's or examiner's findings of fact and conclusions
of law and a recommendation of the action to be taken by the
agency.

{¶23} R.C. 119.09 provides that at the adjudicatory hearing:

The agency shall pass upon the admissibility of evidence, but a
party may at the time make objection to the rulings of the
agency thereon, and if the agency refuses to admit evidence, the
Scioto App. No. 20CA3925 12

party offering the same shall make a proffer thereof, and such
proffer shall be made a part of the record of such hearing.

{¶24} It is apparent from the statute that the requirement that an

agency “pass” on the evidence means that the agency must determine what

evidence is admissible at the hearing. See Katz v. Ohio Dept. of Ins., 8th

Dist. Cuyahoga No. 80802, 2002-Ohio-3905, at ¶ 19. The requirement

relates to a determination of the admissibility of the evidence and not to a

consideration of the weight of the evidence in rendering a decision. Id. To

aid in our analysis of the first assignment of error, we also observe the

Supreme Court of Ohio has held that “ ‘Evid.R. 101(A) does not mention

administrative agencies as forums to which the Rules of Evidence apply.’ ”

Robinson v. Springfield Local School Dist. Bd. Of Educ., 144 Ohio App.3d

38, 48, 759 N.E.2d 444, (9th Dist.), quoting Orange City School Dist. Bd. of

Edn. v. Cuyahoga Cty. Bd. of Revision, 74 Ohio St.3d 415, 417, 659 N.E.2d

1223, 1224 (1995). The rules of evidence, including the hearsay rule, do not

control administrative hearings, but the agency may consult the rules for

guidance. See Healthsouth v. Testa, 132 Ohio St. 3d 55, 2012-Ohio-1871,

969 N.E.2d 232, at ¶ 13; Evid.R. 101(A); Plain Local Schools v. Franklin

Cty. Bd. of Revision, 130 Ohio St.3d 230, 2011-Ohio-3362, 957 N.E.2d 268,

¶ 20.

I. THE COMMON PLEAS COURT ABUSED ITS
Scioto App. No. 20CA3925 13

DISCRETION WHEN IT DETERMINED THE
DEPARTMENT’S ORDER WAS BASED UPON
RELIABLE, PROBATIVE, AND SUBSTANTIAL
EVIDENCE.

a. Did the Department prove a violation of R.C. 3905.14(B)(26)?

{¶25} Appellant argues that Exhibit D, the forged document, was not

submitted or used in the conduct of Appellant’s insurance business because

it concerned only his personal claim and because it was not faxed from his

office. Further, Appellant argues that no evidence presented indicated

Appellant knew or should have known Exhibit D contained a forged

signature. Appellant argues that evidence demonstrates only that Exhibit D

was submitted by his attorney’s office.

{¶26} The trial court’s decision cited the hearing transcript. Carrie

Roe testified Appellant told her he had been terminated from Parkland “over

the form he signed Jack’s name to.” On cross-examination, Appellant did

not recall this conversation with Roe. Additionally, Angel Bowers testified

that she learned from Parkland’s investigation that Appellant admitted that

he may have signed the form in order to “speed up the process.” By

contrast, Appellant testified that he did not recall making this statement to

Parkland’s representative.

{¶27} In this case, the trial court gave due deference to the hearing
Scioto App. No. 20CA3925 14

officer’s resolution of evidentiary conflicts. The trial court’s decision found

the agency’s order to be supported by reliable, probative, and substantial

evidence. We decline to substitute the agency’s or the trial court’s judgment

for our own. Based upon our own review of the evidence presented at the

administrative hearing, we find the trial court did not abuse its discretion in

affirming the agency’s order.

b. Did the hearing officer properly analyze the R.C. 3905.14(E)
factors when considering Appellant’s sanction?

{¶28} Appellant asserts that the hearing officer did not properly

analyze the R.C. 3905.14(E) factors and therefore the report was flawed.

The Department responds that the hearing officer’s report and

recommendation consists of four pages of analysis, impartially addressing

each of the twelve R.C. 3905.14(E) factors. In the common pleas court’s

decision, the court noted that the hearing officer relied upon evidence

presented at the hearing, drew reasonable conclusions from the evidence,

and construed the various factors for or against Appellant. Based upon our

review of evidence presented at the hearing and the hearing officer’s report,

we agree with the Department.

First factor - Whether the Person Acted in Good Faith.

{¶29} Appellant disputes the hearing officer’s determination that

Appellant did not act in good faith and asserts that his impersonation of Mr.
Scioto App. No. 20CA3925 15

Dyer was only to help the Dyers and was not for Appellant’s own personal

gain. Black’s Law Dictionary, Abridged Sixth Edition, 1991, defines good

faith, in common usage, as “that state of mind denoting honesty of purpose,

freedom from intention to defraud, and, generally speaking, * * * being

faithful to one’s obligation.” While, arguably, Appellant was attempting to

fulfill an obligation to the Dyers, he was not honest in doing so.

{¶30} Furthermore, while Appellant claims that he “took ownership”

of his act when he heard the telephone recording and remembered what he

had done, we disagree. The evidence demonstrates Appellant initially

denied impersonating his client and made no admission until after the

recorded call was played for him. Similarly, Appellant denied knowing

about the forged signature on his disability claim form while Carrie Roe’s

testimony provided contrary evidence. We agree with the hearing officer

that these actions do not demonstrate good faith.

Second factor - The Actual or Potential for Harm to Others.

{¶31} The hearing officer’s report indicated “it is unclear of the direct

harm done, but the indirect harm is clients potentially not being able to trust

an insurance agent.” Appellant provided contrary evidence indicating the

Dyers’ intent to continue to use Appellant’s services. Appellant further

disputes the hearing officer’s comment that it was “unclear” as to how the
Scioto App. No. 20CA3925 16

forged signature concerning Appellant’s own disability claim affected the

application.

{¶32} In our view, while the Dyers may trust Appellant, his other

clients or potential clients may not. Furthermore, Appellant received a

$60,000.00 payment on his disability claim, supported by a forged

document. While the hearing officer commented only that the potential

harm was indirect and unclear, there is legitimate concern of actual and

potential harm to others.

Fourth factor - The Degree of Trust Placed in the Person by, and the
Vulnerability of, Persons Who Were or Could Have Been Adversely
Affected by the Person’s Actions.

{¶33} The hearing officer wrote in the report that Brisker was acting

as an agent when he committed both violations, without further elaboration.

Again, Appellant admitted the impersonation. The hearing officer

concluded that Appellant knew or should have known about the forgery,

based on her resolution of the conflicting evidence. These acts are

dishonest. In Vogelsong v. Ohio State Bd. of Pharmacy, 123 Ohio App. 3d

260, 269, 704 N.E.2d 28 (4th Dist. 1997), this Court noted that some acts are

self-explanatory. See also, Workman v. Ohio Dept. of Ins., 5th Dist.

Richland No. 2012-CA-21, 2012-Ohio-4809, at ¶ 23. It should also be self-
Scioto App. No. 20CA3925 17

explanatory that such acts would affect the degree of trust others place in

Appellant.

Sixth factor - The Number of Individuals Adversely Affected by the
Person’s Acts or Omissions.

{¶34} Our review of the evidence before the hearing officer suggests

three people were affected by Appellant’s actions. At the least, neither the

Dyers nor John Murphy likely enjoyed being part of the Department’s

investigations. Moreover, Murphy, himself a regional sales director in the

insurance industry, was likely unhappy to find his name provided on a

forged document. In the report, the hearing officer discussed the evidence

that these three people were adversely affected.

Seventh factor - Whether the Person Voluntarily Reported the
Violation and the Extent of the Person’s Cooperation and Acceptance
of Responsibility.

{¶35} While Appellant claims that the hearing officer had no basis to

conclude that impersonating a client over the phone should be a “significant

recollection,” the Department responds that the following facts are not in

dispute: (1) Appellant did not voluntarily report his violations; (2) he

admitted his actions at the hearing; (3) he failed to take ownership of his

actions during the investigation interview which occurred only two months

after the impersonation occurred and yet claimed memory loss. Based on

our review of the record, as found by the hearing officer and the common
Scioto App. No. 20CA3925 18

pleas court, we find no documented expert medical evidence of memory

loss. Furthermore, we find it is difficult to construe Appellant’s actions as

voluntary reporting and the fullest cooperation and acceptance of

responsibility.

Tenth factor - Remedial Efforts to Prevent Future Violations.

{¶36} We agree with the Department’s characterization that a person

stating he or she “will not do it again” does not constitute a remedial effort.

The hearing officer found this statement to be an “unclear” remedial effort.

Twelfth factor - Such Other Factors as the Superintendent/Department
Determines to be Appropriate Under the Circumstances.

{¶37} Appellant asserts his memory loss was not addressed or fully

considered. However, the report demonstrates otherwise. The witness

testimony was conflicting but the report indicates Appellant was not

diagnosed with memory impairment issues and is not on medication for said

issues.

{¶38} Our review of the hearing officer’s discussion of the factors is

set forth above. Additionally, the hearing officer noted the factors which

were favorable to Appellant as well as his record of community service and

character recommendations. However, just because the hearing officer did

not balance the factors more favorably to Appellant does not indicate

improper analysis.
Scioto App. No. 20CA3925 19

{¶39} Based upon the foregoing, we find no merit to Appellant’s first

assignment of error. Our review indicates the Department’s order was based

upon reliable, probable, and substantial evidence. Thus, the trial court did

not abuse its discretion in finding the R.C. 3905.14(B)(26) violation,

forgery, was proven. Furthermore, the common pleas court also did not

abuse its discretion in finding the hearing officer properly analyzed the R.C.

3905.14(E) factors when considering Appellant’s sanction. Accordingly, the

first assignment of error is hereby overruled.

II. THE LOWER COURT ABUSED ITS DISCRETION WHEN
IT FOUND THAT THE DEPARTMENT’S ORDER WAS IN
ACCORDANCE WITH LAW.

{¶40} Appellant’s second assignment of error raises several due

process concerns. In civil proceedings, due process requires notice and a

meaningful opportunity to be heard. See Farm Supply Center, Inc. V.

Pelanda, 5th Dist. Muskingum No. CT2020-0039, 2021-Ohio-741, at ¶ 20;

State v. Hayden, 96 Ohio St.3d 211, 773 N.E.2d 502 (2002); Shell v. Shell,

5th Dist. Stark No. 2010CA00026, 2010-Ohio-5813, citing Matthews v.

Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976). “An elementary and

fundamental requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and
Scioto App. No. 20CA3925 20

afford them an opportunity to present their objections.” Howard v. Ohio

State Racing Comm., 2019-Ohio-4013, 145 N.E.3d 1254 at ¶ 26 (10th Dist.

2019); Mullane v. Cent. Hanover Bank & Trust Co., 70 S. Ct. 652, 339 U.S.

306, 314 (1950). “ ‘ “ The right to a hearing embraces not only the right to

present evidence, but also a reasonable opportunity to know the claims of the

opposing party and to meet them.” ’ ” Payton v. Ohio Dept. of Ins., 8th Dist.

Cuyahoga No. 98330, 2012-Ohio-4826, at ¶ 22; quoting Althof v. Ohio State

Bd. Of Psychology, 10th Dist. Franklin No. 09AP-1169, 2007-Ohio-1010, at

¶19; quoting Gonzales v. United States, 75 S. Ct. 409, 348 U.S. 407, 414, fn.

5 (1955). Procedural due process is not a technical concept but, rather,

concerns fundamental fairness. See Gross v. State Med. Bd. of Ohio, 10th

Dist. No. 08AP-437, 2008-Ohio-6826, at ¶ 20.

a. The hearing officer’s failure to admit Exhibits 3 and 4.

{¶41} Appellant challenges the hearing officer’s refusal to admit his

proffered Exhibits 3 and 4.7 Appellant emphasizes that John Murphy, the

Department’s witness, gave lay testimony that “it looked like [Appellant]

signed his name to the document.” Therefore, Appellant should have been

allowed to refute the allegation by using Exhibits 3 and 4, respectively, the

7
The hearing transcript reflects that the hearing officer stated she would not consider Exhibits 3 and 4 but she would
“attach” and “allow” them in case there was an appeal.
Scioto App. No. 20CA3925 21

affidavit of Curt Baggett, a handwriting expert, and a summary of the cases

in which he had rendered expert opinions. We disagree.

{¶42} As indicated above, the hearing officer has the discretion to

resolve evidentiary conflicts. The hearing officer may look to the

evidentiary rules for guidance. The record demonstrates the hearing officer

made a distinction between affidavits from fact witnesses and affidavits

from expert witnesses and reasoned that an affidavit from an expert without

the ability to cross-examine would be inappropriate. The hearing officer

allowed Appellant to submit two affidavits from fact witnesses and refused

to allow the affidavit from the expert witnesses. Even if the hearing officer

had allowed the exhibits, she would be free to believe or disbelieve their

contents. Based upon our review, we find Appellant was not denied due

process due to the failure to admit Exhibits 3 and 4.

b. The alleged inconsistency of Appellant’s penalty by revoking his
license.

{¶43} Appellant points out that R.C. 3905.14(B) is permissive. The

superintendent “may” suspend or revoke any license of an insurance agent.

Appellant directs our attention to past instances in which the Superintendent

of Insurance has not revoked an agent’s license for impersonating a

consumer to an insurance company and it is therefore not a consistent

penalty. Further, Appellant emphasizes the R.C. 3905.14(E) factors
Scioto App. No. 20CA3925 22

favorable to him: (1) that there was no pecuniary loss in his case; (2) that he

had not previously been the subject of an administrative action; (3) that he

took ownership of his actions; (4) that he did not obstruct or impede the

Department’s investigation; (5) that he did not try to conceal his misconduct;

and (6) that he has no criminal convictions. Appellant concludes that upon

considering all of the above, the superintendent should not have concluded

that revocation of his license was the appropriate sanction.

{¶44} As noted above, R.C. 3905.14 (E) provides that the

superintendent may consider various factors in denying a license, imposing

suspensions, revocations, fines, or other penalties, and issuing orders. By

using the term “may,” the General Assembly has given the superintendent

discretion to apply mitigating factors. Peterson v. Ohio Department of Ins.,

162 Ohio App.3d 407, 2005-Ohio-4002, 833 N.E.2d. 798, 801 (8th Dist.). If

the General Assembly wanted to require the superintendent to consider

mitigating factors before imposing an order, the statute would have been

drafted to reflect that desire. R.C. 3905.49(E) is clear and does not require

the superintendent to consider mitigating factors before imposing an order.8

Id. The pertinent factors for consideration have been discussed at length

above.
8
The Ohio legislature recodified and renumbered R.C. 3905.49(E) as R.C. 3905.14(E). Both the previous and newly
recodified statutes are identical in all respects. See Peterson v. Ohio Dept. of Ins., 162 Ohio App.3d 407, 2005-
Ohio-4002, 833 N.E.3d 798, at fn 1 (8th Dist.).
Scioto App. No. 20CA3925 23

{¶45} We find no merit to Appellant’s argument. The Department

considers all enforcement matters on a case by case basis, after reviewing

the evidence. There is nothing that prohibits the Department from imposing

different sanctions upon individuals found in violation of similar provisions

of the statute. Our own review of the cases emphasized by Appellant

indicates most of the other individuals entered consent orders. Nevertheless,

in this case, the Department’s order indicates that the hearing officer

considered all the factors. The hearing officer’s report discusses each factor,

construing some for and some against Appellant.

{¶46} Even if we found Appellant’s argument concerning his sanction

to be valid, nothing raised herein has constituted reversible error. The trial

court found that the Department’s order was supported by reliable,

probative, and substantial evidence. We have found no abuse of the trial

court’s discretion in so finding. Under Ohio law, if the common pleas court

concludes that an order is supported by reliable, probative, and substantial

evidence, the court is then precluded from modifying the penalty imposed if

the penalty was authorized by law. See Angerbauer v. State Medical Board,

2017-Ohio-7420, 96 N.E.3d 1100, at ¶ 46 (10th Dist.), citing Demint v. State

Med. Bd., 2016-Ohio-3531, 70 N.E.3d 21, ¶ 63, (10th Dist.), citing Henry’s

Café, Inc., v. Bd. Of Liquor Control, 170 Ohio St. 233, 163 N.E.2d 678
Scioto App. No. 20CA3925 24

(1959), paragraphs two and three of the syllabus. See also, Zollinger v. Ohio

State Racing Comm., 1133 Ohio App. 3d 708, 714, 729 N.E.2d 808 (4th

Dist. 1999). Appellant’s sanction was within the statutory authority. We

find the common pleas court did not abuse its discretion when it found no

denial of due process with regard to the Department’s order to revoke

Appellant’s license.

c. The Department failed to comply with R.C. 119.09 with regard to the
issuance of the order.

{¶47} Concerning the Department’s order revoking his license,

Appellant directs us to R.C. 119.09, in pertinent part:

After such order is entered on its journal, the agency shall serve
by certified mail, return receipt requested, upon the party
affected thereby, a certified copy of the order and a statement of
the time and method by which an appeal may be perfected. A
copy of such order shall be mailed to the attorneys or other
representatives of record representing the party.

{¶48} Appellant asserts that despite the above requirements, the

Department did not mail a copy of the order to Appellant’s attorney until

December 24, 2019, four days after the order was purportedly mailed to

Appellant. Based on the record, this appears to be accurate.

{¶49} According to Appellant’s interpretation, the statute clearly

reads that the order is to be mailed to the respondent as well as his or her

attorneys or other representatives of record at the same time―not four days
Scioto App. No. 20CA3925 25

apart. Appellant argues that the word “shall” is mandatory and the order

must be mailed to a party and his representative at the same time. Appellant

also cites R.C. 119.07, which states in part that “[t]he failure of an agency to

give the notice for any hearing required by sections 119.01 to 119.13 of the

Revised Code in the manner provided in this section shall invalidate any

order entered pursuant to the hearing.” We observe that in Hughes v. Ohio

Department of Commerce, 114 Ohio St. 3d 47, 2007-Ohio-2877, 868 N.E.2d

246, the Supreme Court of Ohio found that there must be strict compliance

with Chapter 119 in the administrative hearing process. Id. at ¶ 19.

{¶50} Appellant in essence asks us to interpret the meaning of the

statute. “ ‘A court's primary goal when determining the meaning of “a

statute is to give effect to the legislature's intent.’ ” See Saber Health Care

v. Ohio Dept. of Job and Family Services., 4th Dist. Adams No. 20CA1107,

2020-Ohio-4044, at ¶ 19, quoting State v. Bryant, 160 Ohio St.3d 113, 2020-

Ohio-1041, 154 N.E.3d 31, ¶ 12. “ ‘ “To discern legislative intent, we first

consider the statutory language, reading all words and phrases in context and

in accordance with rules of grammar and common usage.” ’ ” Hayslip v.

Hanshaw, 2016-Ohio-3339, 54 N.E.3d 1272 at ¶ 13 (4th Dist.), quoting

Holland v. Gas Ents. Co., 4th Dist. Washington No. 14CA35, 2015-Ohio-

2527, at ¶ 14, quoting Ohio Neighborhood Finance, Inc. v. Scott, 139 Ohio
Scioto App. No. 20CA3925 26

St.3d 536, 2014-Ohio-2440, 13 N.E.3d 1115, ¶ 22, citing R.C. 1.42. “We

apply the statute as written * * *, and we refrain from adding or deleting

words when the statute's meaning is clear and unambiguous.” Risner v.

Ohio Dept. of Natural Resources, 144 Ohio St. 3d 278, 2015-Ohio-3731, 42

N.E.3d 718, at ¶ 12. Furthermore, “ ‘ “[t]he interpretation of statutes and

administrative rules should follow the principle that neither is to be

construed in any way other than as the words demand.” ’ ” Saber, supra, at

¶ 21, quoting State ex rel. Baroni v. Colletti, 130 Ohio St.3d 208, 2011-

Ohio-5351, 957 N.E.2d 13, ¶ 18, quoting Morning View Care Ctr.-Fulton v.

Ohio Dept. of Human Servs.,148 Ohio App.3d 518, 2002-Ohio-2878, 774

N.E.2d 300, ¶ 36 (10th Dist.). “If the statutory language is plain, we must

enforce it according to its terms.” Hayslip, supra, at ¶ 18; King v.

Burwell,135 S.Ct. 2480, 2489, 576 U.S. 473, (2015); Risner, supra, at ¶ 12.

{¶51} By the unambiguous language of the statute, it is clearly

mandatory that notices are to be sent to both the affected parties and their

attorneys or other representatives of record. However, there is simply no

support for Appellant’s contention that the plain language of R.C. 119.09

requires that the notices be mailed simultaneously. The language simply

states: “A copy of such order shall be mailed to the attorneys or other

representatives of record representing the party.” There is no further
Scioto App. No. 20CA3925 27

mandate. While it may be preferable that the notices be sent at the same

time, Appellant has provided no authority for this contention and our

research has found no authority to support Appellant’s argument. See e.g.

Calo v. Ohio Real Estate Comm., 10th Dist. Franklin No. 10AP-595, 2011-

Ohio-2413, at ¶ 19. See also, Diversified Benefit Plans Agency, Inc. v.

Duryee, 101 Ohio App. 3d 495, 500, 655 N.E.2d 1353 (9th Dist. 1995).

{¶52} We find the trial court did not abuse its discretion by rejecting

Appellant’s argument that the Department’s order was not issued in

accordance with R.C. 119.09 due to the failure to mail the notices to

Appellant and his attorneys simultaneously.

d. The failure to issue Findings of Fact and Conclusions of Law in
accordance with R.C. 119.09.

{¶53} Appellant asserts that the hearing officer provided no

independent findings of fact and merely reiterated the allegations contained

in the Notice for Opportunity for Hearing issued on May 14, 2019.

Appellant argues that without true findings of fact, the hearing officer’s

conclusions of law are inappropriate. Appellant argues the report does not

indicate what evidence was presented to support the hearing officer’s

findings of fact. Appellant concludes that the hearing officer’s failure to

explain the findings of fact and conclusions of law prejudiced him because

he cannot properly point out the errors of the process as these issues are
Scioto App. No. 20CA3925 28

hidden due to the deficient report. Furthermore, the common pleas court

abused its discretion by finding that the report was in accordance with the

law, given there were only two facts adduced at the hearing that led to the

decision to revoke Appellant’s license.

{¶54} In this case, the hearing officer clearly found Appellant

admitted to impersonating a client over the phone. The hearing officer also

clearly found it proven through testimony that Appellant should have known

he submitted a forged signature on his own disability claim. We have

discussed the issue of the forgery above. While Appellant denied forging

Murphy’s name and denied knowledge of the forgery altogether, Carrie Roe

presented evidence to the contrary. The hearing officer was charged with

resolving those evidentiary conflicts. The common pleas court and this

Court must accord her findings with due deference.

{¶55} The common pleas court found that “while the hearing officer’s

conclusions were contrary to those sought by Appellant, they were based on

the evidence presented at the administrative hearing * * * and the

conclusions reached were reasonable based on that evidence presented.” We

agree. Upon review of the evidence presented at the administrative hearing,

Appellant’s argument that the hearing officer’s findings of fact and

conclusions of law are not supported by the evidence is not persuasive.
Scioto App. No. 20CA3925 29

{¶56} Based on our review of the record, we find the common pleas

court did not abuse its discretion in finding that the Department’s order was

in accordance with the law. Accordingly, we find no merit to the second

assignment of error and it is hereby overruled.

{¶57} Having found no merit to either of Appellant’s assignments of

error, the judgment of the common pleas court is hereby affirmed.

JUDGMENT AFFIRMED.
Scioto App. No. 20CA3925 30

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.

For the Court,

____________________________
Jason P. Smith, Presiding Judge

____________________________
Peter B. Abele, Judge

____________________________
Kristy S. Wilkin, Judge

NOTICE TO COUNSEL
Scioto App. No. 20CA3925 31

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.