[Cite as Ohio Am. Health Care, Inc. v. Ohio Bd. of Nursing, 2014-Ohio-2422.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Ohio American Health Care, Inc., : 

Practical Nursing Program, 

 : 

 Appellant-Appellant/ 

 Cross-Appellee, : 

 No. 13AP-1020 

v. : (C.P.C. No. 12CVF-9723) 

Ohio Board of Nursing, : (REGULAR CALENDAR) 

 

 Appellee-Appellee/ : 

 Cross-Appellant. 

 : 

Ohio American Health Care, Inc., 

Registered Nursing Program, : 

 

 Appellant-Appellant/ : 

 Cross-Appellee, No. 13AP-1021 

 : (C.P.C. No. 12CVF-9722)

v. 

 : (REGULAR CALENDAR) 

Ohio Board of Nursing, 

 : 

 Appellee-Appellee/ 

 Cross-Appellant. : 

 

D E C I S I O N 

Rendered on June 5, 2014 

 

Ronald B. Noga, for appellant/cross-appellee. 

Michael DeWine, Attorney General, and Henry G. Appel, for 

appellee/cross-appellant. 

 

APPEALS from the Franklin County Court of Common Pleas 
Nos. 13AP-1020 and 13AP-1021 2 

LUPER SCHUSTER, J. 

{¶ 1} Appellant-appellant/cross-appellee, Ohio American Health Care, Inc., 

Practical Nursing Program, and Registered Nursing Program ("the School"), appeals from 

a judgment of the Franklin County Court of Common Pleas affirming two orders of 

appellee-appellee/cross-appellant, Ohio Board of Nursing ("the Board"), withdrawing 

conditional approval and denying full approval of the School's status to operate nurse 

education programs. The Board cross-appeals from the court's modification of its orders 

removing the permanency of the imposed sanctions. Because the trial court did not err 

either in affirming the Board's orders or in removing the permanent condition from the 

sanctions, we affirm. 

I. Facts and Procedural History 

{¶ 2} In October 2009, the School applied to the Board for approval of a new 

nursing education program and included a detailed plan for how it proposed to conduct 

its program and a proposed organizational structure. The School sought to operate both a 

registered nurse ("RN") program and a licensed practical nurse ("PN") program. The 

Board issued conditional approval of both the RN and PN programs in January 2010. On 

May 17, 2010 the School admitted its first cohort of students.

{¶ 3} On March 22, 2011, the Board conducted an unannounced survey visit to 

the School in response to complaints the Board had received from students, former 

employees, and clinical agencies regarding both the RN and PN programs. Following the 

initial unannounced survey visit, the Board conducted further survey visits announced in 

advance: the RN survey visit occurred May 25, 2011 while the PN survey visits occurred 

June 22, September 8, and October 12, 2011. These visits revealed administrative 

compliance violations and discrepancies in the tuition and fee amounts in the students' 

enrollment agreements as compared to the School's proposal for its nursing program 

presented to the Board. The two education regulatory surveyors who conducted the 

survey visits generated reports detailing the findings of their visits and subsequently sent 

the survey visit reports to the School for response.

{¶ 4} After reviewing the survey visit reports and the School's responses, the 

Board issued a July 28, 2011 notice of opportunity for hearing to the School related to the 

RN program, charging it with numerous violations of the rules governing nurse education 
Nos. 13AP-1020 and 13AP-1021 3 

programs. As the investigation into the School proceeded, the Board issued a second and 

third notice of opportunity for hearing alleging additional violations. Similarly, on 

November 18, 2011, the Board issued a notice of opportunity for hearing to the School 

related to alleged violations found in the PN program followed by a second notice of 

opportunity for hearing related to additional violations in the PN program. The School 

timely requested hearings for all notices received by both programs. The Board assigned 

a single hearing examiner to both cases.

{¶ 5} The School moved for consolidation of the three RN program notices into a 

single hearing, and the hearing examiner approved the consolidation. The hearing 

examiner also granted two continuances to the School. Several weeks before the 

scheduled start of the consolidated hearing, the School moved for another continuance on 

the grounds that the School's program administrator had suddenly resigned and that the 

School had retained new counsel. The hearing examiner denied the School's third request 

for a continuance, and the hearing occurred from April 30 to May 4, 2012. Both the 

School and the Board presented witness testimony and documentary evidence and had 

the opportunity to cross-examine each other's witnesses.

{¶ 6} Similarly, the School moved for consolidation of both PN notices into a 

single hearing and the hearing examiner conducted the consolidated hearing on May 29 

and 30, 2012. Again, both the School and the Board presented witness testimony and 

documentary evidence and had the opportunity to cross-examine each other's witnesses. 

The parties also agreed to incorporate the record of the RN hearing into the record of the 

PN hearing as many of the issues in the cases were interrelated. 

{¶ 7} Following the hearings, the hearing examiner issued lengthy decisions in 

the RN case on June 13, 2012 and the PN case on June 25, 2012. In each decision, the 

hearing examiner determined there was ample reliable and probative evidence to support 

the violations charged against the School, and the hearing examiner recommended 

permanent withdrawal of the School's conditional approval to operate a nurse education 

program.

{¶ 8} The School timely objected to the hearing examiner's two decisions, and the 

Board conducted a consolidated hearing as to both the RN and PN programs on July 27, 

2012. That same day, the Board issued adjudication orders in both cases adopting the 
Nos. 13AP-1020 and 13AP-1021 4 

hearing examiner's report and recommendation from each case in full. The Board 

imposed a penalty of permanent withdrawal of the School's conditional approval status 

and permanent denial of full approval status. 

{¶ 9} Pursuant to R.C. Chapter 119, the School timely appealed to the common 

pleas court. In reviewing the entire record, the common pleas court determined there was 

reliable, probative, and substantial evidence to support each of the charged violations 

against the School. However, the common pleas court determined the Board lacked 

statutory authority to permanently withdraw conditional approval and permanently deny 

full approval to the school. To that extent, the common pleas court modified the Board's 

adjudication orders to remove the permanent nature of the penalties imposed. The 

School and the Board both timely appeal.

II. Assignments of Error 

{¶ 10} The School assigns the following three assignments of error for our review: 

[1.] The trial court erred as a matter of law in failing to reverse 

the Adjudication Order pertaining to the RN Program on the 

ground that the Order is based entirely on patently irrelevant, 

inadmissible and prejudicial evidence. 

[2.] The trial court erred as a matter of law in failing to reverse 

the Adjudication Order pertaining to the PN Program on the 

ground that the Order is based entirely on patently, irrelevant, 

inadmissible and prejudicial evidence. 

[3.] The statutory scheme governing the regulation of 

prelicensure nursing schools is violative of Due Process in that 

the basis for withdrawal of approval is unconstitutionally 

vague [and] results in an arbitrary and unreasonable Order 

withdrawing [the School's] approval to operate a prelicensure 

nursing school. 

{¶ 11} The Board assigns the following cross-assignment of error for our review: 

1. The [trial court] improperly concluded that the Ohio Board 

of Nursing lacks power to permanently withdraw approval to 

nursing programs under R.C. 4723.28(K). 
Nos. 13AP-1020 and 13AP-1021 5 

III. Standard of Review 

{¶ 12} In reviewing an order of an administrative agency under R.C. 119.12, a 

common pleas court must consider the entire record to determine whether reliable, 

probative, and substantial evidence supports the agency's order and whether the order is 

in accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110-11 (1980). 

The common pleas court's "review of the administrative record is neither a trial de novo 

nor an appeal on questions of law only, but a hybrid review in which the court 'must 

appraise all the evidence as to the credibility of the witnesses, the probative character of 

the evidence, and the weight thereof.' " Lies v. Veterinary Med. Bd., 2 Ohio App.3d 204, 

207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280 

(1955). The common pleas court must give due deference to the administrative agency's 

resolution of evidentiary conflicts, but "the findings of the agency are by no means 

conclusive." Conrad at 111. On questions of law, the common pleas court conducts a de 

novo review, exercising its independent judgment in determining whether the 

administrative order is "in accordance with law." Ohio Historical Soc. v. State Emp. 

Relations Bd., 66 Ohio St.3d 466, 471 (1993). 

{¶ 13} An appellate court's review of an administrative decision is more limited. 

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). The appellate court is to 

determine only whether the common pleas court abused its discretion. Id.; Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 218 (1983). On review of purely legal questions, however, 

an appellate court has de novo review. Big Bob's, Inc. v. Ohio Liquor Control Comm., 151 

Ohio App.3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.). 

IV. Appellant's First Assignment of Error – Evidence Supporting RN 

Program Violations 

{¶ 14} In its first assignment of error, the School argues the common pleas court 

erred in affirming the violations in the Board's adjudication order for the RN program. 

{¶ 15} In its adjudication order, the Board adopted the hearing examiner's findings 

of fact which found 16 separate proven violations of the Board's rules. These violations 

were wide ranging. The hearing examiner found, with respect to the RN program, that 

the School: (1) did not implement an orientation policy for faculty members in violation of 

Ohio Adm.Code 4723-5-09(B)(4); (2) did not implement student policies as they were 
Nos. 13AP-1020 and 13AP-1021 6 

written in the School's proposal for its program in violation of Ohio Adm.Code 4723-5-12; 

(3) did not implement its curriculum as written at the time of the first notice, including 

having students watch a movie instead of teaching a psychology course and failing to 

provide clinical experience to the students in violation of Ohio Adm.Code 4723-5-13; 

(4) had no systematic plan of evaluation it could use to evaluate and improve the program 

in violation of Ohio Adm.Code 4723-5-15; (5) did not provide students with a syllabus for 

each course in violation of Ohio Adm.Code 4723-5-19(A); (6) did not provide the ten 

weeks of clinical experience with appropriate supervision that students were supposed to 

have received in violation of Ohio Adm.Code 4723-5-20; (7) did not maintain required 

faculty records and retained unqualified instructors in violation of Ohio Adm.Code 4723-

5-21; (8) submitted false progress reports to the Board in violation of Ohio Adm.Code 

4723-5-25; (9) charged students a total of $18,520 in tuition when the School's written 

policies for student fees indicated it would charge students $14,048, in violation of Ohio 

Adm.Code 4723-5-12(A)(6); (10) allowed unqualified individuals other than the program 

administrator to have authority over aspects of the program in violation of Ohio 

Adm.Code 4723-5-09(B); (11) at the time of the third notice, had faculty members who 

were not qualified for their positions in violation of Ohio Adm.Code 4723-5-10; (12) at the 

time of the third notice, continued to fail to provide adequate documentation of student 

admission prerequisites, allowed students to progress from one course to the next without 

completing the first course, and certified completion of courses for two students who 

never completed the necessary lab and clinical experience of the course, in violation of 

Ohio Adm.Code 4723-5-12(A); (13) failed to provide the 16 clinical hours for the 

medical/surgical course the School had stated in its curriculum plan it would provide, and 

failed to provided clinical evaluations for all 6 students in the gerontology course in 

violation of Ohio Adm.Code 4723-5-13; (14) at the time of the third notice, still did not 

have a systematic plan of evaluation to evaluate and improve the program in violation of 

Ohio Adm.Code 4723-5-15; (15) at the time of the third notice, continued to fail to provide 

appropriate clinical experience for students, including completely failing to provide 

clinical evaluations to some students and inadequately providing clinical experience to 

other students by providing clinical experience that was not connected to the course the 

students were taking and using unqualified instructors as supervisors in violation of Ohio 
Nos. 13AP-1020 and 13AP-1021 7 

Adm.Code 4723-5-20; and (16) failed to implement a records retention plan for student 

and faculty records, including the complete failure to document that 15 students had met 

admission requirements, no record of clinical experience evaluations for 4 students, no 

academic transcripts for instructors, and certification that 2 students had completed the 

program but their files had no transcripts of coursework, in violation of Ohio Adm.Code 

4723-5-21. (RN Program Report and Recommendation, 80-83.) 

{¶ 16} Despite the long and detailed list of violations, the School on appeal does 

not challenge the bulk of these violations with any specificity. Rather, the School asserts 

the hearing examiner made an erroneous and unfounded finding of "blatant corruption 

and dishonesty," and because of that, the entire proceedings were tainted. (RN Program 

Report and Recommendation, 85.) Specifically, the School asserts three evidentiary 

errors were so significant as to warrant reversal of the Board's order. 

A. Witness Credibility 

{¶ 17} The School argues the hearing examiner erroneously concluded that Julia 

Wilson gave credible testimony that Dr. Yemi Oladimeji, the owner of the School, 

instructed her to change students' grades so they would pass a test or a course. According 

to the School, Wilson was not a credible witness and her testimony contained internal 

inconsistencies. Both the hearing examiner and the Board found Wilson's testimony to be 

credible. The common pleas court engaged in its own consideration of Wilson's 

credibility and similarly found Wilson's "testimony to be credible." (Nov. 5, 2013 

Judgment Entry, 8.) To the extent the School suggests we reweigh the credibility of the 

witnesses, "such an exercise is not appropriate for this court's role in reviewing the 

common pleas court's decision." Ohio Dept. of Rehab. & Corr. v. Price, 10th Dist. No. 

10AP-260, 2010-Ohio-5629, ¶ 21. 

B. Reasonable Inferences 

{¶ 18} The School asserts the hearing examiner, in support of her finding that the 

school wrongfully and willfully certified completion of the program for two students, 

completely fabricated her conclusion that Susan Walker Thomas was fired as program 

administrator because she refused to sign certificates of completion for the two students 

and that the newly hired program administrator "promptly signed the certificates" after 

Thomas was fired. (RN Program Report and Recommendation, 85.) The School argues 
Nos. 13AP-1020 and 13AP-1021 8 

there was no direct testimony that Thomas was fired for her refusal to falsely certify 

completion of clinical experience. Specifically, the School argues the hearing officer's 

conclusion was a fabrication because Thomas testified she intended to resign to pursue 

other employment before her termination while Dr. Oladimeji denied Thomas' refusal to 

sign the certificates was the basis for Thomas' dismissal from the School. 

{¶ 19} Given the timing of Thomas' termination, it was a reasonable inference that 

her termination was related to her refusal to comply with the falsification of records. 

State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio7089, ¶ 69 (stating "any factfinder in any administrative, civil, or criminal proceeding, 

may draw reasonable inferences and rely on his or her own common sense in evaluating 

the evidence"). The common pleas court also noted how quickly the newly-hired program 

administrator certified completion for these students. Further, the trial court reviewed all 

the evidence and did not find Dr. Oladimeji to be credible on this matter, so the trial court 

was free to discount his testimony, and we will not engage in a reweighing of the witness' 

credibility. Price at ¶ 21. Thus, the common pleas court did not abuse its discretion in 

concluding from this evidence that the School wrongfully and willfully certified 

completion of the program for two students. 

C. Prejudicial Evidence 

{¶ 20} Lastly under this assignment of error, the School asserts the hearing 

examiner erroneously determined that the involvement of Reverend Harold John, a 

member of the School's board, contributed to the presence of fraud and corruption at the 

School. The hearing examiner noted John had recently pled guilty to conspiracy to 

commit bank fraud and wire fraud. John then served as the School's "Interim Strategic 

and Financial Officer," although the evidence indicated that John was functionally in 

control of the entire program for a period of time. 

{¶ 21} The School argues the evidence of John's criminal convictions was 

irrelevant and blatantly prejudicial, and the hearing examiner, the Board, and the 

common pleas court all erred in relying on it. As a general rule, "administrative agencies 

are not bound by the strict rules of evidence applied in courts." Buckles v. Franklin Cty. 

Bd. of Revision, 10th Dist. No. 07AP-932, 2008-Ohio-1728, ¶ 23, citing Haley v. Ohio 

State Dental Bd., 7 Ohio App.3d 1, 6 (2d Dist.1982). 
Nos. 13AP-1020 and 13AP-1021 9 

{¶ 22} As the common pleas court noted, "the Board's adjudication order made no 

reference to Rev. John's conviction – or even his participation in the [S]chool's 

management on any level." (Nov. 5, 2013 Judgment Entry, 10.) Although the School 

argues the Board was prejudiced by the Board's attorney projecting information regarding 

John's conviction on a large screen as part of a slide presentation at the hearing, the 

common pleas court noted only one slide of the presentation related to John's criminal 

background. Further, the common pleas court explained that even if the hearing 

examiner should not have admitted the evidence of John's criminal convictions, the other 

evidence in the record "was so overwhelming" as to render the error harmless. (Nov. 5, 

2013 Judgment Entry, 11.) See Abunku v. State Med. Bd. of Ohio, 10th Dist. No. 11AP906, 2012-Ohio-2734, ¶ 20 (it is not an abuse of discretion for trial court to affirm an 

order of the state medical board where, even if the hearing examiner inappropriately 

admitted some evidence, the appellant "was not prejudiced because other reliable, 

probative, and substantial evidence in the record" proved the violations). Additionally, as 

the common pleas court noted, the issues with John's presence at the school were not 

limited to his criminal background but also the fact that he essentially served as the 

School's program administrator even though he did not have a nursing license and was 

therefore unqualified for that position. 

{¶ 23} As the Board notes, the School does not challenge most of the allegations 

against it. The trial court reviewed the extensive record and carefully weighed the 

evidence before concluding the hearing examiner and the Board had reliable, probative, 

and substantial evidence to find the many violations. Based on the record before us, we 

find the common pleas court did not abuse its discretion in finding that reliable, 

probative, and substantial evidence supports the Board's order. Thus, we refuse to 

substitute our judgment for that of the Board or the common pleas court. 

{¶ 24} Accordingly, we overrule the School's first assignment of error. 

V. Appellant's Second Assignment of Error – Evidence Supporting PN 

Program Violations 

{¶ 25} In its second assignment of error, the School argues the common pleas 

court erred by affirming the violations in the Board's adjudication order for the PN 

program. More specifically, the School argues the common pleas court erred by relying 
Nos. 13AP-1020 and 13AP-1021 10 

on unduly prejudicial evidence by not considering that the Board's decision making 

process inherently lends itself to unreliable outcomes, and by imposing a penalty that was 

too severe for the nature of the offenses. 

A. Prejudicial Evidence 

{¶ 26} The School notes that the parties agreed that the testimony from the RN 

program hearing would be incorporated into the PN program hearing. The School argues 

that because the hearing examiner duplicated the errors she committed in the RN 

program case when she considered the evidence again in the PN program case, the 

common pleas court thus erred in relying on what the School deems "clearly inadmissible, 

prejudicial evidence." (The School's Brief, 21.) 

{¶ 27} The School reiterates in this argument its position that the evidence 

regarding the criminal background of John was so highly prejudicial to have tainted the 

entirety of the proceedings at every level. Having addressed and rejected this same 

argument in our resolution of the School's first assignment of error, we similarly dispose 

of this same argument here. The School's argument as to prejudicial evidence is not welltaken. 

B. Impartial Tribunal 

{¶ 28} The School next argues that because there is no requirement that any 

member of the Board have any legal or judicial training, the Board members are 

completely dependent on the representations of the Board's counsel. Unlike in a civil or 

criminal trial where lay jurors have an impartial judge to give instructions on matters of 

law, the Board members in an administrative adjudication hearing rely on the same 

attorney that represents the Board to explain the legal issues. According to the School, 

this renders the process unfair as the Board members are unlikely to ignore the 

instructions and characterization of the evidence of the very attorney it has retained to 

represent the Board's interests. 

{¶ 29} An individual in an administrative proceeding is entitled to a fair hearing 

before an impartial tribunal. Serednesky v. Ohio State Bd. of Psychology, 10th Dist. No. 

05AP-633, 2006-Ohio-3146, ¶ 21, citing In re Murchison, 349 U.S. 133, 136 (1955). An 

administrative agency's determination carries a presumption of validity, and the burden is 

on the appellant to establish bias. Id., citing Smith v. State Med. Bd., 10th Dist. No. 
Nos. 13AP-1020 and 13AP-1021 11 

00AP-1301 (July 19, 2001). This burden requires that the School prove, beyond merely 

stating that bias and prejudice exist, that the Board's members are "biased, partial or 

prejudiced to such a degree that [their] presence adversely affected" the Board's decision. 

West Virginia v. Hazardous Waste Facility Approval Bd., 28 Ohio St.3d 83, 86 (1986). 

{¶ 30} The School did not raise its argument regarding the perceived undue 

influence that an attorney can have in an administrative hearing either in its hearing 

before the Board or at the common pleas court and, thus, that argument is waived for 

purposes of appeal. ETB Corp. v. Ohio Liquor Control Comm., 10th Dist. No. 02AP-738, 

2003-Ohio-589, ¶ 22. 

C. Nature of the Offenses and Penalty 

{¶ 31} The School also argues that even if the evidence at the hearing supported a 

finding of the many violations, these violations were not so serious as to warrant the 

penalty of withdrawal of conditional approval and denial of full approval to operate its 

nursing education program. 

{¶ 32} The Board agreed in its adjudication order with the hearing examiner's 

findings of fact that the School was not in compliance with the following rules as they 

related to the PN program: Ohio Adm.Code 4723-5-09(B)(4); 4723-5-12(A)(1); 4723-5-

12(A)(4); 4723-5-12(A)(6); 4723-5-14; 4723-5-15; 4723-5-19(A); 4723-5-05(B) and (C); 

4723-5-09(B); 4723-5-11; 4723-5-12(A)(6); 4723-5-14(E)(12); 4723-5-14(F); 4723-5-15; 

4723-5-20(C)(6); and 4723-5-21. (PN Program Report and Recommendation, 56-59.) 

Many of these violations were substantially similar to the violations found in the RN 

program, including but not limited to failing to provide and evaluate clinical experience, 

using unqualified administrators and faculty members, charging inconsistent fee and 

tuition amounts, and failing to maintain a systematic plan of evaluation to evaluate and 

improve the program. Rather than challenge the merits of these violations, the School 

instead argues that although it did not necessarily refute these deficiencies, they "resulted 

primarily from the incompetence and negligence of the initial Program Administrator," 

Rosanna Bumgardner. (The School's Brief, 25-26.) The School characterizes many of 

these violations as mere paperwork errors and suggests the penalty of withdrawal of 

conditional approval and denial of full approval was too harsh of a penalty for the 

violations involved. 
Nos. 13AP-1020 and 13AP-1021 12 

{¶ 33} The School's attempt to shift the blame of the violations to Bumgardner 

does not mean that the violations did not occur; indeed, the School seems to admit as 

much. As the common pleas court noted, "to blame Dr. Bumgardner ignores the fact that 

the School and its board of governors hired her – even if she was not up to the task, those 

parties bear some responsibility for not recognizing that sooner and taking appropriate 

action." (Nov. 5, 2013 Judgment Entry, 21.) 

{¶ 34} Further, we do not agree with the School that these violations were of an 

administrative, recordkeeping nature. The evidence at the hearing that the trial court 

found credible included testimony that PN students had 0 clinical hours in the 

medical/surgical nursing and IV therapy course while they were supposed to receive 72 

hours of clinical training in those areas. Similarly, one cohort of students completed only 

16 of the 40 clinical hours for the maternal and child health nursing course, and the 

School's proposal initially called for 72 hours of clinical training for that course. 

Additional testimony showed only one student had the opportunity to insert an IV in a 

clinical setting. Despite the lack of required clinical hours, the School would still send 

students on to more advanced courses. These violations go beyond mere paperwork 

errors. 

{¶ 35} Regardless of the School's characterization of the seriousness of these 

offenses, withdrawal of conditional approval and denial of full approval are undoubtedly 

penalties within the range of penalties allowed by the Board's rules and the Board has the 

discretion to impose those penalties. R.C. 4723.06; Ohio Adm.Code 4723-5-04(B). The 

School argues it should have been offered a consent agreement as contemplated in Ohio 

Adm.Code 4723-5-04(B)(5) rather than the withdrawal of conditional approval and denial 

of full approval. Setting aside the permanency of the penalty, which we will address in our 

resolution of the Board's cross-assignment of error, the Board's decision as to penalty 

cannot be disturbed on appeal if it is supported by reliable, probative, and substantial 

evidence. Little v. State Med. Bd. of Ohio, 10th Dist. No. 10AP-220, 2010-Ohio-5627, 

¶ 14, citing Miller v. Columbus City Pub. Schools, 10th Dist. No. 08AP-1082, 2009-Ohio2756, ¶ 11, citing State ex rel. Ogan v. Teater, 54 Ohio St.2d 235, 246-47 (1978). Because 

reliable, probative, and substantial evidence supports the Board's order finding 16 
Nos. 13AP-1020 and 13AP-1021 13 

separate violations for the PN program, neither the common pleas court nor this court can 

modify the statutorily authorized penalty the Board imposed. 

{¶ 36} The School's second assignment of error is overruled. 

VI. Appellant's Third Assignment of Error – Constitutional Challenges 

{¶ 37} The School argues in its third and final assignment of error that the 

statutory scheme "is violative of Due Process in that the basis for withdrawal of approval 

is unconstitutionally vague [and] results in arbitrary and unreasonable Order 

withdrawing [the School's] approval. " (The School's Brief, ii.) 

A. Waiver 

{¶ 38} The Board asserts the School did not raise its void-for-vagueness argument 

in the common pleas court. An administrative appellant who fails to raise the issue of the 

constitutionality of a statute or its application, which is apparent at the time of trial, 

waives those arguments for purposes of appeal. Bailey v. Ohio State Dept. of Transp., 

10th Dist. No. 07AP-849, 2008-Ohio-1513, ¶ 15, citing State v. Awan, 22 Ohio St.3d 120 

(1986), syllabus (stating the "[f]ailure to raise at the trial court level the issue of the 

constitutionality of a statute or its application, which issue is apparent at the time of trial, 

constitutes a waiver of such issue and a deviation from this state's orderly procedure, and 

therefore need not be heard for the first time on appeal"). Thus, the Board argues that 

because the School failed to raise its constitutional challenge to the administrative scheme 

at the trial court level, it has waived that argument and we need not address it. 

{¶ 39} While the Board is correct that the School did not explicitly raise a void-forvagueness argument in the common pleas court, the School raised various, generalized 

arguments containing constitutional issues. As relevant here, the School stated in its 

notice of appeal to the common pleas court that "[t]he statutory scheme for regulating 

nursing schools * * * is unconstitutional as there are no statutory or other standards 

establishing the circumstances under which conditional approval should be withdrawn 

rendering the action of [the] Board arbitrary, unreasonable and contrary to law." (Aug. 1, 

2012 Notice of Appeal, 2.) Although the School did not use the exact phrase "void for 

vagueness" to describe its argument, this language approximates the language of a typical 

vagueness challenge. 
Nos. 13AP-1020 and 13AP-1021 14 

{¶ 40} Still, the School did not elaborate on the substance of this objection in its 

briefing to the common pleas court, and the common pleas court did not address whether 

the statutory scheme was unconstitutionally vague in its judgment entry. The Board asks 

us to find waiver on this basis. See Williams v. Ohio Dept. of Job & Family Servs., 3d 

Dist. No. 8-11-18, 2012-Ohio-4659, ¶ 41 (noting an administrative appellant arguably 

waives constitutional challenge based on equal protection grounds where the appellant 

failed to include any authority in support of that argument in her merit brief to the trial 

court); Davis v. Cleveland, 8th Dist. No. 99187, 2013-Ohio-2914, ¶ 16 (an appellate court 

could find an appellant has waived an argument on appeal where, although appellant 

made reference to an argument in her complaint with the trial court, she did not develop 

the argument in her brief submitted before the trial court). While we agree with the 

Board that the School did not fully develop the vagueness argument in the common pleas 

court, the School throughout the proceedings has consistently advanced some version of 

its argument that the consent agreements offered to other nursing education programs 

demonstrate there is no objective standard as to when the Board will impose a certain 

penalty for a given violation. Though it is unclear whether the School fully argued its 

constitutional claims in the common pleas court, this does not present a case of clear 

waiver of a constitutional argument, regardless, an appellate court has discretion to 

consider constitutional challenges to the application of statutes even where the waiver is 

clear. In re M.D., 38 Ohio St.3d 149 (1988), syllabus. Thus, we will address the merits of 

the School's vagueness argument. 

B. Constitutionality of Statutory and Regulatory Scheme 

{¶ 41} Even though we conclude the School did not waive this issue, the School's 

void-for-vagueness argument lacks merit. The "[v]agueness doctrine is an outgrowth not 

of the First Amendment, but of the Due Process Clause of the Fifth Amendment." United 

States v. Williams, 553 U.S. 285, 304 (2008). "Due process demands that the law give 

sufficient warning of what conduct is proscribed so that people may conduct themselves 

so as to avoid that which is forbidden." Columbus v. Bahgat, 10th Dist. No. 10AP-943, 

2011-Ohio-3315, ¶ 20, citing Rose v. Locke, 423 U.S. 48, 50 (1975). When a party 

challenges a statute or rule under the void-for-vagueness doctrine, "the court must 

determine whether the enactment (1) provides sufficient notice of its proscriptions to 
Nos. 13AP-1020 and 13AP-1021 15 

facilitate compliance by persons of ordinary intelligence and (2) is specific enough to 

prevent official arbitrariness or discrimination in its enforcement." Norwood v. Horney, 

110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 84, citing Kolender v. Lawson, 461 U.S. 352, 357 

(1983). 

{¶ 42} "The void-for-vagueness doctrine 'does not require statutes to be drafted 

with scientific precision.' " Buckley v. Wilkins, 105 Ohio St.3d 350, 2005-Ohio-2166, ¶ 19, 

quoting Perez v. Cleveland, 78 Ohio St.3d 376, 378 (1997). Courts should indulge every 

reasonable interpretation in favor of finding the statute constitutional. Perez at 378-79. 

"A civil statute that does not implicate the First Amendment is unconstitutionally vague 

only if it is so vague and indefinite that it sets forth no standard or rule or if it is 

substantially incomprehensible." Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 

122, 2008-Ohio-511, ¶ 46. Administrative regulations similarly do not require the same 

degree of specificity as criminal statutes. Serednesky at ¶ 16. 

{¶ 43} R.C. 4723.06 governs the powers of the Board in approving and supervising 

the operation of nursing education programs. In turn, R.C. 4723.07(B) grants the Board 

the authority to adopt rules that establish the "[m]inimum standards for nursing 

education programs that prepare graduates to be licensed under this chapter and 

procedures for granting, renewing, and withdrawing approval of those programs." 

Pursuant to its rulemaking authority, the Board has promulgated various rules to aid in it 

supervision of nursing education programs. 

{¶ 44} Ohio Adm.Code 4723-5-02 provides in part: 

(A) A program must meet and maintain the requirements set 

forth in this chapter in order to maintain approval by the 

board. 

(B) The board shall evaluate whether a program is meeting 

and maintaining the requirements of this chapter, and shall 

determine a program's approval status in accordance with this 

chapter. The board shall have the authority to review all 

documents retained by the program that are required by this 

chapter. 

(C) Failure to meet and maintain a requirement of this 

chapter shall be considered noncompliance and may affect a 
Nos. 13AP-1020 and 13AP-1021 16 

program's approval status, upon action by the board in 

accordance with rule 4723-5-04 of the Administrative Code. 

{¶ 45} Further, Ohio Adm.Code 4723-5-04 states in pertinent part: 

(A) The board shall grant full approval status to programs 

holding: 

(1) Full approval, if a program demonstrates to the board that 

it continues to meet and maintain the requirements of this 

chapter; 

(2) Conditional approval, at the first board meeting following 

completion of the survey process required by division (A)(5) 

of section 4723.06 of the Revised Code, provided the program 

demonstrates to the board that it meets and maintains the 

requirements of this chapter; 

(3) Provisional approval, if the program demonstrates to the 

board that it meets and maintains the requirements of this 

chapter. 

(B) The following procedures shall be followed by the board 

when a program does not meet and maintain the 

requirements of this chapter: 

(1) For a program with conditional approval, the board shall 

propose to withdraw conditional approval pursuant to an 

adjudication under Chapter 119. of the Revised Code. The 

adjudication may result in the continuance of conditional 

approval, continuance of conditional approval based on 

compliance with the terms and conditions of a board order or 

consent agreement, or withdrawal of conditional approval; 

(2) For a program with full approval, the board shall place the 

program on provisional approval in accordance with this 

chapter. When a program is placed on provisional approval, 

the board shall specify the requirements the program has not 

met and maintained and shall establish the time period 

during which the program will be on provisional approval. 

The board shall reconsider the program's approval status 

when the program demonstrates to the board that it meets 

and maintains the requirements of this chapter; 

(3) If a program on provisional approval continues to fail to 

meet and maintain the requirements of this chapter at the end 
Nos. 13AP-1020 and 13AP-1021 17 

of the time period established for provisional approval, the 

board may propose to continue provisional approval for a 

period of time specified by the board or may propose to 

withdraw approval pursuant to an adjudication under Chapter 

119. of the Revised Code. The adjudication may result in the 

continuance of provisional approval, withdrawal of approval, 

or granting of full approval; 

(4) If a program on provisional approval in accordance with 

this chapter demonstrates that an additional requirement is 

not being met and maintained, the board shall propose to 

withdraw approval pursuant to an adjudication under Chapter 

119. of the Revised Code. The adjudication may result in the 

continuance of provisional approval, withdrawal of approval, 

or granting of full approval; 

(5) The board may enter into a consent agreement in lieu of 

conducting an adjudication under this rule that addresses the 

requirements of this chapter not met and maintained. 

{¶ 46} The School asserts that, based on the plain language of the statutes and 

accompanying rules, the Board does not have specific criteria for when it will impose 

which sanction. Because the sanctions vary in their severity, the School argues the lack of 

guidelines as to when each sanction is appropriate renders the statutory and regulatory 

scheme unconstitutionally vague. 

{¶ 47} A party "who engages in some conduct that is clearly proscribed cannot 

complain of the vagueness of the law as applied to the conduct of others." Village of 

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). See also

State v. Ferguson, 57 Ohio St.3d 176, 177 (1991). Here, the School does not argue that it 

did not violate certain provisions of Chapter 4723-5 of the Ohio Administrative Code, nor 

does it argue that it did not know certain conduct was prohibited; rather, the School 

disagrees with the amount of discretion afforded the Board to impose the penalty of 

withdrawal of conditional approval under Ohio Adm.Code 4723-5-04(B). 

{¶ 48} The School argues that because there is not an articulable standard as to 

when the Board will impose the more severe penalty of withdrawal of approval versus the 

less severe approach of entering into a consent agreement, the rule results in ad-hoc and 

arbitrary enforcement and is, thus, unconstitutionally vague. In support of its argument, 
Nos. 13AP-1020 and 13AP-1021 18 

the School points to consent agreements between the Board and other nursing programs 

found to be in violation of some of the same rules as the School here. 

{¶ 49} What the School ignores in its argument is that the consent agreements 

between the Board and the other nursing education programs do not indicate the Board is 

arbitrarily enforcing the statute and rule; rather, they indicate that the Board consistently 

takes some disciplinary action against nursing education programs found to be in 

violation of the Board's rules. As we noted in our resolution of the School's second 

assignment of error, the Board has available to it a wide range of possible penalties to 

impose, including entering into a consent agreement or withdrawal of conditional 

approval and denial of full approval. The School does not assert that the Board was 

without authority to impose any one of these penalties; it just disagrees with the precise 

sanction the Board chose. 

{¶ 50} Moreover, the School's argument ignores the important role the Board must 

play in considering the specific factual circumstances of each case before selecting the 

appropriate penalty. By way of analogy, we look to the discretion given to trial court 

judges in criminal sentencing. "[I]n imposing sentence, the assessment of and weight 

given to mitigating evidence are within the trial court's discretion." State v. Powell, 132 

Ohio St.3d 233, 2012-Ohio-2577, ¶ 230, citing State v. Lott, 51 Ohio St.3d 160, 171 (1990). 

" '[T]he weight, if any, to assign a given factor is a matter for the discretion of the 

individual decisionmaker.' " Id., quoting State v. Fox, 69 Ohio St.3d 183, 193 (1994). 

{¶ 51} Here, there is little dispute as to whether the School committed these 

violations, and the School does not argue the Board lacked the authority to impose the 

sanctions of withdrawal of conditional approval or denial of full approval. 

{¶ 52} Although the School argues the Board treated it differently from other 

nursing education programs found to have violated the same administrative code 

provisions by offering consent agreements to those programs rather than withdrawal of 

approval to operate, the School does not suggest those violations included the same 

flagrant conduct at issue here. The factual findings of the hearing examiner, as affirmed 

by the Board and the common pleas court, show the sometimes egregious conduct on the 

part of the School and an inability to improve the situation throughout the numerous 

survey visits. The fact that other nursing education programs received different penalties 
Nos. 13AP-1020 and 13AP-1021 19 

than the School does not render the statutory and regulatory scheme vague where the 

factual record is distinct for each nursing education program. The School points to no 

authority to suggest it received constitutionally intolerable treatment from the Board 

when the Board withdrew the School's conditional approval and denied the School's full 

approval as authorized by R.C. 4723.06 and Ohio Adm.Code 4723-5-04. 

{¶ 53} Generally, where the sanction imposed by an administrative agency is 

within the range of permissible sanctions provided by law, we are without authority to 

modify that sanction. Little at ¶ 23. Even where an administrative appellant alleges some 

sort of disparate treatment and produces evidence of other cases where the party received 

a less serious penalty for a more serious offense, the trial court does not err in affirming 

the penalty imposed by the agency so long as the agency's findings merit the imposed 

penalty. Graor v. State Med. Bd., 10th Dist. No. 04AP-72, 2004-Ohio-6529, ¶ 34-36, 

discussing Urban v. State Med. Bd., 10th Dist. No. 03AP-426, 2004-Ohio-104, ¶ 22. 

{¶ 54} The statute and rules governing the Board appropriately accord discretion 

to the Board in determining various penalties. That scheme is not unconstitutionally 

vague, nor does it suffer any other less-specific constitutional infirmity the School may 

allege. The possible penalties of withdrawal of conditional approval and denial of full 

approval are clearly stated in the statute and accompanying rule, and, as stated above, 

were warranted here. Thus, we overrule the School's third assignment of error. 

VII. Appellee's Cross-Assignment of Error – Permanency of Sanction 

{¶ 55} In its sole cross-assignment of error, the Board argues the common pleas 

court erred in modifying its imposed penalties to remove the permanent nature of the 

penalties. 

{¶ 56} As a preliminary matter, the Board asserts the School did not specifically 

object to the permanent nature of the penalty imposed by the Board. Because the School 

did not object, the Board argues the school waived any error with regard to permanency of 

penalty and the trial court erred in sua sponte modifying the penalty. In reviewing an 

administrative order under R.C. Chapter 119, the common pleas court is charged with 

ensuring the administrative order is in accordance with law. Conrad at 110-11. 

{¶ 57} The common pleas court reviewed the Board's orders and considered 

whether the Board had the statutory authority to impose a permanent penalty. Thus, we 
Nos. 13AP-1020 and 13AP-1021 20 

do not agree with the Board that the School waived this issue, nor do we agree that the 

trial court erred in addressing whether the Board had the statutory authority to impose its 

chosen sanction. 

{¶ 58} Moving to the merits of the cross-appeal, the Board argues it had authority 

under R.C. 4723.28(K) to specify that its penalty was permanent. The Board has only 

those powers explicitly delegated by statute and must operate within the limitations 

contained within its enabling statutes. Shell v. Ohio Veterinary Med. Licensing Bd., 105 

Ohio St.3d 420, 2005-Ohio-2423, ¶ 32, citing Johnson's Mkts., Inc. v. New Carlisle Dept. 

of Health, 58 Ohio St.3d 28, 36 (1991). Further, if the Board imposes a sanction that is 

within its statutory authority, courts have no authority to reverse or modify it. ATS Inst. 

of Technology v. Ohio Bd. of Nursing, 10th Dist. No. 12AP-385, 2012-Ohio-6030, ¶ 41, 

citing Roy v. State Med. Bd., 80 Ohio App.3d 675, 683 (10th Dist.1992). 

{¶ 59} R.C. 4723.28(K) states: "When the [B]oard refuses to grant a license or 

certificate to an applicant, revokes a license or certificate, or refuses to reinstate a license 

or certificate, the [B]oard may specify that its action is permanent. An individual subject 

to permanent action taken by the [B]oard is forever ineligible to hold a license or 

certificate of the type that was refused or revoked and the [B]oard shall not accept from 

the individual an application for reinstatement of the license or certificate or for a new 

license or certificate." The Board argues that although R.C. 4723.06(A) does not use the 

term "license" to describe the authority of a nursing education program to operate, a 

"license" is clearly what the statute contemplates. 

{¶ 60} In concluding the Board lacked the authority to make its sanction 

permanent, the trial court relied on this court's decision in ATS Inst. of Technology. In 

that case, we concluded that while R.C. 4723.06(A) permits the Board to continue 

provisional approval, withdraw provisional approval, or grant full approval of a nursing 

education program, that statute does not "provide the [B]oard with authority to establish 

a period of time during which appellant can be barred from re-applying for approval of 

its" program. ATS Inst. of Technology at ¶ 42. 

{¶ 61} In ATS Inst. of Technology, the Board withdrew provisional approval and 

denied full approval and further imposed a two-year time limit before the nursing 

education program could reapply for approval. This court determined R.C. 4723.06(A) 
Nos. 13AP-1020 and 13AP-1021 21 

does not confer actual authority for a time limit, nor does it confer the implied authority 

to impose a time limit on when the nursing education program could reapply for 

approval. Id. at ¶ 43. 

{¶ 62} Here, the Board argues reliance on ATS Inst. of Technology is misplaced 

because that case did not contemplate the effect of R.C. 4723.28(K). The trial court 

concluded, however, that R.C. 4723.28(K) is inapplicable, and we agree. By its express 

terms, R.C. 4723.28(K) applies to individuals. It makes no mention of nursing education 

programs. Though the Board urges us to construe a nursing education program's 

authority to operate as an implicit license, the plain language of the governing statutes do 

not support such a conclusion. R.C. 4723.06 grants the Board the authority to regulate 

and grant approval to what it describes as "prelicensure nursing education programs" 

which "include, but are not limited to, diploma, associate degree, baccalaureate degree, 

master's degree, and doctor of nursing programs leading to initial licensure to practice 

nursing as a registered nurse and practical nurse programs leading to initial licensure to 

practice nursing as a licensed practical nurse." (Emphasis added.) R.C. 4723.06(A)(5). 

Further, R.C. 4723.07(B) grants the Board the authority to adopt rules that establish 

"[m]inimum standards for nursing education programs that prepare graduates to be 

licensed under this chapter." (Emphasis added.) Taken together, it is clear from the 

statutory scheme that individuals apply for nursing licenses after completing education at 

a prelicensure nursing education program. All other references to a "license," "licenses" 

or "certificates" refer to individuals as well. R.C. 4723.06(A)(2) and (3). 

{¶ 63} The Board nonetheless argues the School must have had a "license" because 

if it did not, then R.C. 119.06 would not provide the School with a right to a hearing. 

However, R.C. 4723.06(A)(6) expressly provides that if a nursing education program has 

conditional approval but does not receive full approval from the Board, then "the board 

shall hold an adjudication under Chapter 119. of the Revised Code." Thus, the Board's 

argument that the School had a "license" as that term is used in Chapter 119 of the Ohio 

Revised Code is unpersuasive. 

{¶ 64} Because the plain language of both R.C. 4723.06 and 4723.28(K) provides 

that the Board's authority to make a penalty permanent applies only to individuals and 

not to nursing education programs, the trial court did not err in concluding the Board 
Nos. 13AP-1020 and 13AP-1021 22 

lacked the authority to make its penalty permanent. We do not read the statutes 

governing nursing education programs as granting an implied "license" or "certificate" of 

operation to prelicensure nursing education programs subject to permanent revocation 

under R.C. 4723.28(K). To the extent the Board argues that if ever there was a case 

supporting permanent withdrawal of conditional approval and permanent denial of full 

approval it is this case, we note that unless and until the General Assembly grants the 

Board such authority, we are bound by our previous holding in ATS Inst. of Technology. 

Accordingly, we overrule the Board's sole cross-assignment of error. 

VIII. Disposition 

{¶ 65} Based on the foregoing reasons, the trial court did not err in affirming the 

Board's orders as to the violations and in modifying the penalties to remove the 

permanency condition. Having overruled the School's three assignments of error and the 

Board's sole cross-assignment of error, we affirm the judgment of the Franklin County 

Court of Common Pleas. 

Judgment affirmed. 

KLATT and CONNOR, JJ., concur.