[Cite as Groves v. Ohio State Racing Comm., 2020-Ohio-1250.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Paul Groves, : 

 Appellant-Appellant, : No. 19AP-577 

 (C.P.C. No. 19CV-1608)

v. : 

 (REGULAR CALENDAR) 

Ohio State Racing Commission, : 

 Appellee-Appellee. : 

 

D E C I S I O N 

Rendered on March 31, 2020 

 

On brief: Graff & McGovern, LPA, and John A. Izzo, for 

appellant. Argued: John A. Izzo.

On brief: Dave Yost, Attorney General, and Anthony Garcia, 

for appellee. Argued: Charles Febus. 

 

APPEAL from the Franklin County Court of Common Pleas 

LUPER SCHUSTER, J. 

{¶ 1} Appellant, Paul Groves, appeals from a judgment of the Franklin County 

Court of Common Pleas affirming an order of appellee, Ohio State Racing Commission 

("commission"), suspending his owner's license for one year and fining him $1,000 for 

violating certain commission rules. For the following reasons, we affirm.

I. Facts and Procedural History 

{¶ 2} In April 2018, the Mahoning Valley Race Course stewards issued ruling No. 

2018-057, suspending Groves' license as a race horse owner for one year and fining him 

$1,000. This ruling was based on his misconduct relating to an Ohio State Department of 

Agriculture ("OSDA") ordered quarantine at the Mahoning Valley Race Course on 

March 27, 2018. The stewards found that Groves engaged in conduct that was against the 
No. 19AP-577 2 

best interest of racing, in violation of Ohio Adm.Code 3769-2-26(10). In this regard, the 

stewards determined that Groves failed to properly follow the Mahoning Valley Race 

Course security procedures concerning the signing horses in and out of the track property. 

The stewards also found that Groves failed to answer correctly under oath to the best of his 

knowledge all questions asked by the commission, or its representatives, pertaining to a 

racing matter, in violation of Ohio Adm.Code 3769-2-26(12). 

{¶ 3} Groves appealed the stewards' ruling to the commission, which appointed a 

hearing officer to the matter. The hearing officer held an administrative hearing in 

September 2018. As pertinent to this appeal, the following evidence was presented.

{¶ 4} In mid-March 2018, one of the horses Groves owned, Mixed Colors, died 

unexpectedly in Barn 8 at the Mahoning Valley Race Course. A necropsy of the horse 

revealed a positive test for equine herpes, a highly contagious and deadly disease for horses. 

This positive test was immediately reported to the OSDA, which issued a 14-day quarantine 

order for Barn 8 on March 27, 2018. During the quarantine, no horses were permitted to 

leave that barn. The quarantine was lifted after one day because it was determined that, 

while Mixed Colors was carrying equine herpes, the disease was not active at the time of the 

horse's death. 

{¶ 5} Commission investigator Mark Peters testified that, at approximately 

1:30 p.m. on March 27, 2018, he personally notified everyone in Barn 8, including Groves, 

that all horses in that barn were quarantined until further notice. Later that day, two horses 

owned by Groves, Raven About Richie and Axis Mundi, were not present in Barn 8 as 

expected. The next day, racetrack security personnel informed Peters that within two hours 

of the Barn 8 quarantine taking effect, a truck and trailer, owned by Groves, had violated 

security protocol by proceeding through the security checkpoint without stopping. The 

truck was driven by a jockey affiliated with Groves. This jockey explained to Peters that he 

did not stop at the gate because he had trouble operating the truck. Security guard John 

King informed Peters that Groves' trailer "rode heavy" and was "pretty confident the trailer 

was loaded." (Record of Proceedings at E3020-N28, Tr. at 28.) When Groves was 

interviewed under oath on April 7, 2018, he stated that the horses in question were not on 

the grounds at the time of the quarantine. He indicated that Axis Mundi had never been 

on the grounds and that Raven About Richie had been removed from the grounds sometime 
No. 19AP-577 3 

before the quarantine went into effect. Rich Vickers, who trained Axis Mundi and Raven 

About Richie until approximately March 23, 2018, told Peters that those horses were 

trained and stabled in Barn 8. Upon reviewing the racetrack records, namely the "in and 

out sheets," regarding the movement of horses, it was clear to Peters that the horses at issue 

were on the grounds when the quarantine was implemented. (Record of Proceedings at 

E3020-N25, Tr. at 25.) Peters acknowledged at the hearing that mistakes do occur 

regarding documenting the movement of horses. 

{¶ 6} Daryl Parker testified that he was a steward at Mahoning Valley Race Course 

at the time of the investigation. Stewards help conduct fact-finding meetings as part of 

investigations into possible violations of commission rules. At such a meeting, the person 

who is the subject of the investigation is sworn in by a steward and given an opportunity to 

have legal counsel present. Soon after the Barn 8 quarantine, the commission initiated an 

investigation concerning Groves because it was reported that two of his horses were not in 

Barn 8 during the quarantine when they should have been. At the investigative meeting, 

Groves denied that either Raven About Richie or Axis Mundi were treated by a veterinarian 

or even on the grounds of Mahoning Valley Race Course on March 27, 2018. He told the 

investigators that the horses at issue were at his farm during the quarantine. 

{¶ 7} Dr. Scott Shell, a veterinarian with an equine specialty, testified that he 

treated Raven About Richie and Axis Mundi in Barn 8 at the Mahoning Valley Race Course 

sometime during the morning of March 27, 2018. When Dr. Shell was asked at the 

administrative hearing whether there was a chance he did not treat those two horses that 

day, he stated that "mistakes do happen," but that "after 30 years of practice, we try to have 

our routine down so we don't make mistakes." (Record of Proceedings at E3020-N95, Tr. 

at 94.) Additionally, horse trainer Chad Skelton testified that he trained Raven About 

Richie at Mahoning Valley Race Course a few days before the quarantine was implemented. 

While Skelton did not train Axis Mundi at that time, both horses were stabled at that 

racetrack. Skelton was not at Mahoning Valley Race Course on either March 26 or 27, 2018, 

but Groves was there on those days. 

{¶ 8} On October 20, 2018, the commission hearing officer issued her report and 

recommendation recommending that the ruling of the stewards be affirmed in its entirety 

and that Groves be assessed a one-year license suspension and a $1,000 fine. The 
No. 19AP-577 4 

commission accepted the hearing officer's report and recommendation and upheld the 

Mahoning Valley Race Course stewards' ruling. Thus, the commission fined Groves $1,000 

and suspended his owner's license for one year. Pursuant to R.C. 119.12, Groves appealed 

the commission's decision to the Franklin County Court of Common Pleas. The trial court 

affirmed the commission's order suspending Groves' owner's license for one year and fining 

him $1,000, based on its finding that the order was supported by reliable, probative, and 

substantial evidence and was in accordance with law. 

{¶ 9} Groves timely appeals. 

II. Assignments of Error 

{¶ 10} Groves assigns the following errors for our review: 

[1.] The Commission Order is not based upon reliable, 

probative, and substantial evidence. 

[2.] The Commission Order is not in accordance with law. 

III. Standard of Review 

{¶ 11} R.C. Chapter 3769 governs horse racing in Ohio and establishes the 

commission and its attendant powers. R.C. 3769.03 provides that "[w]ith respect to the 

issuance, denial, suspension, or revocation of a license to a participant in horse racing, the 

action of the commission shall be subject to [R.C.] Chapter 119." 

{¶ 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 (1980). 

"Reliable" evidence is dependable; that is, it can be confidently trusted. In order to be 

reliable, there must be a reasonable probability that the evidence is true. "Probative" 

evidence is evidence that tends to prove the issue in question; it must be relevant in 

determining the issue. "Substantial" evidence is evidence with some weight; it must have 

importance and value. Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 

571 (1992). 

{¶ 13} 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 
No. 19AP-577 5 

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

of the evidence, and the weight thereof.' " Lies v. Ohio 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). 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), quoting R.C. 119.12. As to questions of fact, 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. The common pleas 

court usually is "confined to the record as certified to it by the agency" and to "newly 

discovered" evidence that could not reasonably have been adduced before the agency. R.C. 

119.12(K). 

{¶ 14} 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). While the common pleas court 

must examine the evidence, "[s]uch is not the charge of the appellate court." Rossford 

Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d 705, 707 

(1992). 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, including whether the common pleas court applied the proper 

standard of review, 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.); Univ. Hosp., Univ. 

of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343 

(1992) ("it is the prerogative and the responsibility of the court entertaining the appeal to 

investigate whether the lower court accorded due deference to the factfinder"). 

IV. Discussion 

{¶ 15} Groves' first assignment of error asserts the trial court erred in affirming the 

commission's order because it was not based on reliable, probative, and substantial 

evidence. In support of this contention, Groves argues that the commission improperly 

relied on hearsay evidence and that the hearing officer did not include pertinent facts in her 

report and recommendation, which caused the commission to overlook certain testimony. 

We are unpersuaded. 
No. 19AP-577 6 

{¶ 16} As to hearsay evidence, we note that Groves did not object at the 

administrative hearing to the admission of certain evidence because it was hearsay. 

"Generally, a party waives the right to appeal an issue that could have been but was not 

raised in earlier proceedings. * * * This principle has been applied in appeals from 

administrative agencies." MacConnell v. Ohio Dept. of Commerce, 10th Dist. No. 04AP433, 2005-Ohio-1960, ¶ 21 (when license applicant failed to object to evidentiary defects 

before the administrative tribunal, those defects could not be asserted as grounds for 

appeal). Thus, Groves has waived his hearsay argument. And even if not waived, this 

argument fails on the merits. 

{¶ 17} Hearsay is "a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted." Evid.R. 801(C). Ohio Rule of Evidence 802 provides that hearsay is generally 

not admissible. However, the rules of evidence do not bind administrative agencies. Bd. of 

Edn. v. Cuyahoga Cty. Bd. of Revision, 74 Ohio St.3d 415, 417 (1996). Unless it is inherently 

unreliable, hearsay evidence is admissible in administrative hearings, and it can constitute 

reliable, probative, and substantial evidence. Westlake v. Ohio Dept. of Agriculture, 10th 

Dist. No. 08AP-71, 2008-Ohio-4422, ¶ 19. See Simon v. Lake Geauga Printing Co., 69 Ohio 

St.2d 41, 44 (1982) ("evidence which might constitute inadmissible hearsay where stringent 

rules of evidence are followed must be taken into account in proceedings such as 

[commission hearings] where relaxed rules of evidence are applied."). 

{¶ 18} When evidence is admitted despite being hearsay, a trier of fact must evaluate 

its reliability and the weight to give that evidence. In re Petition for Annexation, 52 Ohio 

App.3d 8, 15 (10th Dist.1988). While the hearsay rule is relaxed in administrative 

proceedings, the discretion to consider hearsay evidence cannot be exercised in an arbitrary 

manner. H.K. Trading Ctr., Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 09AP-293, 

2010-Ohio-913, ¶ 41. Thus, the commission was permitted to consider and give weight, as 

it deemed appropriate, to hearsay evidence in its review of the matter, provided that it did 

not exercise that discretion arbitrarily and that the evidence was not inherently unreliable. 

{¶ 19} Groves asserts the hearing officer and the commission improperly considered 

hearsay evidence regarding the presence and removal of Raven About Richie and Axis 

Mundi at Mahoning Valley Race Course before and after the quarantine because there was 
No. 19AP-577 7 

no independently corroborating evidence and the hearsay evidence was inherently 

unreliable. He reasons that, in the absence of this hearsay evidence, there was no reliable, 

probative, and substantial evidence supporting the rule violation findings. 

{¶ 20} Groves does not explain how the challenged hearsay evidence was inherently 

unreliable, and we disagree with his assertion that there was no corroborating non-hearsay 

evidence. At the administrative hearing, commission investigator Peters testified that even 

though he personally notified Groves about the quarantine on March 27, 2018, he learned 

that two of Groves' horses, Raven About Richie and Axis Mundi, were not in Barn 8 soon 

after the quarantine, as expected. Peters also testified that the track's horse inbound and 

outbound logs indicated that both of the horses at issue had been delivered to the track 

before the quarantine, but that no log shows their removal before they arrived back at the 

track on March 30, 2018 (after the quarantine had been lifted). Peters was informed that 

within two hours after he told Groves and others of the quarantine, a truck and trailer, 

owned by Groves, was driven by a jockey through a security checkpoint without stopping 

when the gate had been lifted for another vehicle. The security guards did not actually see 

horses in the trailer, but the trailer appeared to be transporting something heavy. Further 

testimony at the hearing indicated that Groves was a very involved owner and was at 

Mahoning Valley Race Course on March 27, 2018, when he was personally informed of the 

quarantine. Additionally, Dr. Shell's testimony and his treatment records regarding the 

horses at issue indicated those horses were at the Mahoning Valley Race Course on March 

27, 2018. Despite Dr. Shell testifying that he treated the horses at issue in Barn 8 hours 

before the start of the quarantine, and it being undisputed that the horses at issue were not 

in Barn 8 soon after the quarantine, racetrack records did not document the removal of the 

horses on March 27, 2018. Groves told investigators that Raven About Richie and Axis 

Mundi were not at the race track immediately before the quarantine, which directly 

contradicted Dr. Shell's hearing testimony and documentary evidence that was consistent 

with Dr. Shell's testimony. 

{¶ 21} Thus, the evidence reasonably indicated that Groves did not comply with 

security procedures regarding the proper signing of horses in and out of track property and 

that he failed to answer correctly under oath to the best of his knowledge questions asked 

during the commission investigation into reports that two of his horses had been 
No. 19AP-577 8 

improperly removed during an OSDA ordered quarantine. Because we disagree with 

Groves' assertion that the commission relied entirely on hearsay evidence to reach its 

conclusions, and because Groves fails to identify any inherently unreliable hearsay evidence 

relied on by the commission, we reject his arguments as to the commission's consideration 

of hearsay evidence. 

{¶ 22} Groves' argument that the hearing officer did not include certain pertinent 

information in her report and recommendation essentially constitutes disagreement with 

her assessment of the evidence. He asserts the commission was not aware that Peters 

testified that he did not know what horses were in Barn 8 when it was quarantined, that the 

security guards did not tell Peters that there was a horse in Groves' trailer that was driven 

through the security checkpoint by a jockey, that Dr. Shell did not identify horses prior to 

treating them on March 27, 2018, that there was testimony that Groves is a good guy, and 

that a state steward did not know what happened to the horses on March 27, 2018. He 

argues the hearing officer's presentation of the facts unfairly precluded the commission 

from evaluating all of the evidence. According to him, the totality of the evidence showed 

he did not violate the rules of racing, and he suggests the commission did not duly consider 

his objections to the hearing officer's report and recommendation. We disagree. 

{¶ 23} In his objections to the hearing officer's report and recommendation, Groves, 

with references to the hearing transcript, cited to each of the facts listed above that he 

contends were not properly considered by the hearing officer. Contrary to Groves' 

suggestion, however, the commission's adjudication order expressly indicates that it 

considered Groves' objections as part of its review of the hearing officer's report and 

recommendation. Simply because the commission was not persuaded by Groves' 

objections, which reflected his view of the evidence, does not mean the commission did not 

consider the objections before it approved the hearing officer's report and 

recommendation, or that the order was not supported by reliable, probative, and 

substantial evidence. 

{¶ 24} Accordingly, we overrule Groves' first assignment of error. 

{¶ 25} In his second assignment of error, Groves contends the commission's order 

was not in accordance with law. Thus, he argues the trial court erred in not reversing the 

commission's order on this basis. This assignment of error also lacks merit. 
No. 19AP-577 9 

{¶ 26} Groves argues the commission's order was contrary to law because 

commission stewards do not have the authority to swear in witnesses. He reasons that he 

did not fail to answer correctly under oath to the best of his knowledge all questions asked 

in connection with a commission investigation because he was not properly placed under 

oath. 

{¶ 27} An administrative agency has no authority beyond the authority given to it by 

statute. State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency, 

88 Ohio St.3d 166, 171 (2000). See Burger Brewing Co. v. Thomas, 42 Ohio St.2d 377, 379 

(1975) (authority that is conferred by the General Assembly cannot be extended by the 

administrative agency). "A grant of such statutory power may be express or implied, but 

the implied power is limited to that which is reasonably necessary to make the express 

power effective." Ohio Fresh Eggs, LLC v. Boggs, 183 Ohio App.3d 511, 2009-Ohio-3551, 

¶ 28 (10th Dist.). 

{¶ 28} Groves is correct that the General Assembly has not expressly authorized 

stewards to administer oaths. However, pursuant to R.C. 3769.091, the commission "may 

delegate to the stewards and judges of racing meetings under the jurisdiction of the 

commission the power to suspend licenses for not to exceed one year and to impose fines 

not to exceed one thousand dollars for any violation of the rules or orders of the 

commission." Commission rules prohibit a licensee from failing "to answer correctly under 

oath to the best of his/her knowledge all questions asked by the commission, or its 

representatives, pertaining to a racing matter." Ohio Adm.Code 3769-2-26(A)(12). In view 

of this statute and rule, the authority of a steward to administer an oath as part of an 

investigation into a possible commission rule violation is a necessarily implicit aspect of the 

statutory authority granted to the commission. Thus, we reject Groves' argument that he 

could not have violated Ohio Adm.Code 3769-2-26(A)(12) because the steward had no 

authority to place him under oath. 

{¶ 29} Groves also argues the commission's order was not in accordance with law 

because he did not receive due process during the administrative proceeding. He contends 

that a deputy director of the commission, Michael Rzymek, improperly participated at the 

commission hearing, preventing him from receiving a fair hearing. Rzymek did not 

formally make an appearance on behalf of the commission at the hearing, but he made a 
No. 19AP-577 10 

few advisory comments during witness testimony. In particular, Groves asserts Rzymek 

improperly interfered with witness testimony during the administrative hearing by telling 

witnesses to wait for a question before talking, to just answer a question, and to say yes or 

no instead of using a head nod. Groves argues these interjections prejudiced him because 

they effectively limited witness testimony that may have been favorable to him. 

{¶ 30} We are unpersuaded that Groves was prejudiced by Rzymek's statements at 

the administrative hearing. Rzymek's comments related to the procedural aspects of the 

hearing and did not substantively guide witness testimony. When Rzymek told a witness 

to just answer the question, the hearing officer admonished Rzymek not to speak during 

the witness testimony because the cross-examining attorney was entitled to lead the witness 

as he saw appropriate, and the questioning of that witness continued. Groves also argues 

Rzymek was not the appropriate person to interject to help ensure basic procedure 

compliance, but he does not explain how he was prejudiced by Rzymek advising a witness 

to verbalize his response and to wait for a question to be completed before answering. In 

sum, we disagree with Groves' contention that Rzymek's interjections during the hearing 

precluded him from receiving due process. 

{¶ 31} Groves further contends the commission improperly made inferences against 

him because he did not testify at the administrative hearing, resulting in the commission 

improperly relying on hearsay testimony as support for its order. The hearing officer's 

report and recommendation detailed the testimony and evidence presented at the hearing 

on behalf of the commission and noted that Groves did not testify, call any witnesses, or 

produce any exhibits at the hearing. But there is no indication that the commission made 

any adverse inference based on Groves deciding not to either testify or otherwise present 

evidence at the administrative hearing. Relatedly, insofar as Groves contends it was 

improper for the commission to rely on hearsay evidence, we reject that contention for the 

reasons discussed above. Therefore, contrary to Groves' argument, he was not denied due 

process. 

{¶ 32} Lastly, Groves argues the trial court applied the wrong standard in reviewing 

the commission's order. In reviewing the commission's order, the trial court rejected 

Groves' argument that the hearing officer and ultimately the commission improperly 

evaluated the evidence, and it indicated that it would not substitute its judgment for that of 
No. 19AP-577 11 

the commission. The trial court further declined Groves' request to find that the evidence 

the commission cited in support of its order was either legally insufficient or otherwise 

invalidated by contrary evidence. Groves asserts that, considering this evidentiary 

deficiency, it was not necessary for the trial court to substitute its judgment for that of the 

commission in order for it to invalidate the commission's order. Fundamentally, Groves' 

argument regarding the standard of review applied by the trial court is another challenge 

to the commission's evaluation of the evidence, including its reliance on hearsay evidence, 

to find he committed rule violations. For the reasons discussed above, we reject this 

argument. 

{¶ 33} Because the trial court did not err in finding the commission's order to be in 

accordance with law, we overrule Groves' second assignment of error. 

V. Disposition 

{¶ 34} Having overruled Groves' first and second assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

SADLER, P.J., and DORRIAN, J., concur.