Ohio Boys Town, Inc. v. Brown

Krupansky, J.,

dissenting. I respectfully dissent for the following reasons: (1) the rejection of applications for charitable bingo licenses is a ministerial act not subject to the prior hearing requirements found in R. C. 119.06; and (2) a requirement that a bingo licensee terminate operations under an expired license prior to a hearing on the rejection of its application for a new license does not conflict with due process.

R. C. 119.06 provides in relevant part:

“No adjudication order shall be valid unless an opportunity for a hearing is afforded in accordance with sections 119.01 to 119.13, inclusive, of the Revised Code. * * * ” (Emphasis added.)

*9Furthermore, R. C. 119.01(D) defines “adjudication” to mean,11 * * * the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a specified person, but does not include the issuance of a license in response to an application with respect to which no question is raised, nor other acts of a ministerial nature.”

Relying upon these two statutes the majority concludes appellant’s review of bingo license renewal applications constitutes an “adjudication” subject to the hearing requirements of R. C. 119.06. The majority also denies appellant’s action falls within the “acts of a ministerial nature” exception of R. C. 119.06, since the procedure used by appellant in considering the applications “involved judgment and deliberation.” It is difficult to visualize any conduct which is totally devoid of the elements of “judgment” and “deliberation,” however, appellant’s actions in the instant case appear to come as close as possible to the definition of “ministerial act” found in the majority opinion. In examining a bingo license renewal application the appellant simply consults the mandates of R. C. Chapter 2915 to see if the applicant qualifies for a license. The applicant is either entitled to a license or it is not; the reviewer’s “own judgment” can not alter this outcome. I see no difference in the procedure in a license renewal as compared to the initial review in granting or rejecting a license.

The majority predicated its holding upon the provisions of R. C. 119.06, and therefore, does not reach the issue of whether due process requires a hearing for these charities prior to the mandatory termination of their operations. The Court of Appeals, however, repeatedly emphasized 11 * * * once a license is issued, the holder of such license has a valuable private interest, and whether it is viewed as a right or a privilege, it is the nature of the interest that entitles the licensee to adequate procedural due process prior to the termination of such interest.” I strongly disagree. These licenses are granted for a period of one year only. Once that license has expired its prior holder has no vested right which must be protected by due process. An organization whose license for renewal has been rejected stands in the same position as an *10organization which has never held a license. I admit due process dictates the following of certain procedures when appellant revokes a license prior to its expiration, however, the same procedural safeguards do not apply in the case of a license renewal.

The judgment expressed by the majority will allow applicants whose license renewals are rejected to continue operating indefinitely with no license, i.e., until an adjudicatory hearing is completed. The unsuccessful applicant is able to request postponements and continuances in the proceedings, thus greatly extending its time of operation and greatly hindering the Attorney General in his attempts to terminate illegal bingo. The majority opinion has tremendously reduced the effectiveness of the Attorney General to regulate bingo operations throughout the state. In my opinion this is contrary to the intent of the General Assembly. The courts should not foster a system which contains such an obvious opportunity for abuse.

Appellees are entitled to a hearing on appellant’s decision to deny the renewal of their charitable bingo licenses, but there is nothing to indicate any requirement that a pretermination hearing be held. Therefore, I would reverse the Court of Appeals.