concurring separately.
{¶ 34} I agree with the majority’s conclusion that ERAC lacked jurisdiction to consider Ohio Fresh Eggs’ appeal from ODA’s denial of its motion for attorney fees. I write separately, however, because I reach that conclusion by way of a different analysis.
{¶ 35} The agency action underlying this appeal was an order issued by ODA that revoked Ohio Fresh Eggs’ permits to install and operate relating to its egg-production business. R.C. 903.09(F) allows the director of ODA to revoke permits to install or operate without the permittee or owner’s consent only if the director precedes the revocation with a proposed action stating the director’s intention, provides certain notices, allows comments, and, in some circumstances, holds a public hearing. R.C. 903.09(F) also precludes the director from issuing an order that makes the proposed action final until the permittee “has had an opportunity for an adjudication hearing in accordance with” R.C. Chapter 119, except that R.C. 119.12, which governs appeals from Chapter 119 hearings, “does not apply.” Instead, an order that finalizes a proposed revocation may be appealed to ERAC under R.C. 3745.04 to 3745.06.
{¶ 36} R.C. Chapter 119 sets out the process by which a state agency may promulgate rules, issue orders, and hold hearings. Important for our purposes, R.C. 119.06 through 119.13 relate to adjudication hearings.
{¶ 37} R.C. 119.092(B)(1) provides that, except in a few situations not relevant to this appeal, “if an agency conducts an adjudication hearing under this chapter, the prevailing eligible party is entitled, upon filing a motion in accordance with this division, to compensation for fees incurred by that party in connection with the hearing.” While the parties dispute whether Ohio Fresh Eggs is a “prevailing eligible party” for purposes of this section, no one disputes that the process for obtaining fees under R.C. 119.092 is open to parties in an adjudication hearing held pursuant to R.C. 903.09. In other words, no one disputes that the “opportunity for an adjudication hearing” granted in R.C. 903.09(F) includes the opportunity to ask for attorney fees under R.C. 119.092 if the conditions of that section are met. The question is whether a party may appeal from a denial (or reduction) of that request and, if so, to what entity.
{¶ 38} R.C. 119.092(C) provides that a party denied fees or granted reduced fees may appeal that determination “to the same court,” as determined by R.C. *522119.12, “as the party could have appealed the adjudication order of the agency had the party been adversely affected by it.” Appeals taken pursuant to R.C. 119.092(C) then proceed before the “court” in accordance with the procedures set out in R.C. 119.12. In my view, consideration of whether ERAC is a “court” for these purposes is unnecessary for determining whether ERAC had jurisdiction over Ohio Fresh Eggs’ appeal. Instead, we need only look to R.C. 903.09(F) to resolve this question.
{¶ 39} R.C. 903.09(F) expressly states that, while a permittee is entitled to an adjudication hearing under R.C. Chapter 119, R.C. 119.12 “does not apply.” Therefore, a permittee has no right of appeal under R.C. 119.12, and R.C. 119.092(C) cannot resurrect one. Nor does a right of appeal arise from any other source.
{¶ 40} First, R.C. 903.09(F) grants to a permittee a right to appeal only “[a]n order of the director that finalizes the proposed action or an order issuing a permit without a prior proposed action.” It does not grant a right to appeal an order denying attorney fees under R.C. 119.092.
{¶ 41} Second, R.C. 3745.04(E) grants to ERAC jurisdiction to hear appeals from actions of the director of ODA, but only “with respect to actions that are appealable to the commission under” R.C. Chapter 903, including permit-revocation orders under R.C. 903.09(F). R.C. 3745.04 does not grant, nor does any other section grant, to ERAC jurisdiction to hear appeals from other actions of the director of ODA, including orders denying attorney fees under R.C. 119.092.
{¶ 42} For these reasons, I agree with the majority’s conclusion that ERAC lacked jurisdiction to hear this appeal, and I would affirm ERAC’s dismissal of Ohio Fresh Eggs’ appeal.