(A) This rule prescribes procedures for
appealing the proposed denial, suspension or revocation of a retail food
establishment license and appealing the suspension of a license for a violation
presenting a clear and present danger to the public health. An appeal of a
proposed denial, suspension or revocation of an endorsement on a retail food
establishment license and appeal of the suspension of an endorsement on a
license for a violation presenting a clear and present danger to the public
health shall be conducted in the same manner.
(B) In the case of a proposal to deny,
suspend, or revoke a retail food establishment license, the licensor shall
provide the license holder with written notice of the proposed action and the
cause for the action. The notice shall describe the procedure for appealing the
proposed denial, suspension, or revocation.
(1) The licensor shall provide written notice
by certified mail, return receipt requested, or by hand delivery. If the notice
is returned because of failure of delivery, the licensor shall send the notice
by regular mail to the retail food establishment location listed on the license
or conspicuously post the notice at an entrance of the operation, and posting
or mailing constitutes notice.
(2)
After receiving the notice, to obtain a hearing, the license holder must submit
a written request that the licensor receives within fifteen days.
(3) The licensor shall schedule a hearing
before the licensor or a hearing officer designated by the licensor. If the
licensor provides a hearing officer, he or she shall be licensed to practice
law in Ohio and shall not have participated in any manner in the decision to
take the action against the license holder.
(4) The licensor shall mail or hand-deliver
notice of the date, time, and place of the hearing to the license holder no
less than ten days before the scheduled date.
(5) At the hearing, the license holder shall
have the opportunity to present its case orally or in writing and to confront
and cross-examine witnesses. The license holder may be represented by counsel
and may review the case record before the hearing. If the licensor is a board
of health of a city or general health district or the authority having the
duties of the board of health under section
3709.05 of the Revised Code, and
a hearing officer has been designated, a member of that board does not have to
be present at the hearing.
(6) If
the hearing is before a hearing officer, he or she shall prepare a written
recommendation as to the validity of the licensor's action, which shall rest
solely on the evidence presented at the hearing and the statutory and
regulatory provisions governing the licensor's action. The hearing officer
shall describe the basis for his or her recommendation, but need not prepare a
full opinion or formal findings of fact and conclusions of law. The hearing
officer shall mail by certified mail, return receipt requested, or hand-deliver
the recommendation to the licensor and the license holder. Either party may
file objections to the recommendation provided that the objections are received
by the licensor within five days of receiving a copy of the recommendation from
the hearing officer.
(7) After
reviewing any timely objections, the licensor may by motion take additional
evidence or approve, modify, or disapprove the hearing officer's recommendation
and shall enter an order in the record of its proceedings.
(8) If the licensor does not receive a timely
request for a hearing, the licensor may immediately enter an order as proposed
in the notice.
(C) In
the case of a suspension of a license issued for a violation presenting clear
and present danger to the public health, the licensor shall provide the license
holder with written notice of the action, the cause for the action, and the
effective date of the action. The written notice shall specify the procedure
for appealing the suspension and shall list the address to which a hearing
request shall be sent or delivered. The license holder may appeal the
suspension by mailing or hand-delivering a written request for a hearing to the
address specified in the notice. If a hearing is requested, it shall be heard
not later than two business days after the request is received by the licensor.
At the hearing, the license holder shall have the opportunity to present its
case orally or in writing and to confront and cross-examine witnesses. The
license holder may be represented by counsel and may review the case record
before the hearing. At the hearing, the licensor shall determine whether the
clear and present danger to the public health continues to exist.
(D) Any determination made or order entered
by the licensor pursuant to this rule shall be made as follows:
(1) If the licensor is a board of health of a
city or general health district or the authority having the duties of the board
of health under section
3709.05 of the Revised Code, by
majority vote of the members of the board or authority present at a meeting at
which there is a quorum;
(2) If
the
director of agriculture is acting as the licensor pursuant to section
3717.11 or
3717.111 of the Revised Code, by
decision of the
director.
If the licensor conducts the hearing, the licensor may
immediately render a decision denying, suspending, or revoking a license, or
render a decision removing or continuing a license suspension. If the licensor
is a board of health of a city or general health district or the authority
having the duties of the board of health under section
3709.05 of the Revised Code, the
determination or order may be considered and made at a meeting without
publication or advertisement, and may become effective without such publication
or advertisement, recording or certifying. An order is not effective until it
is recorded in the licensor's record of its proceedings.
Notes
Ohio Admin. Code 901:3-4-08
R.C.
119.032 review dates:
07/01/2014 and
06/01/2019
Promulgated
Under: 119.03
Statutory
Authority: 3717.33
Rule
Amplifies: 3717.29,
3717.30
Prior
Effective Dates: 2/1/2001, 6/16/2003
R.C. 119.032 review dates:
06/10/2010 and
06/10/2014
Promulgated
Under: 119.03
Statutory Authority: 3717.33
Rule
Amplifies: 3717.29, 3717.30
Prior Effective Dates: 2-1-01; 6-16-03