[Cite as Payton v. Ohio Dept. of Ins., 2012-Ohio-4826.]

 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98330

ALBERTA PAYTON 

 

PLAINTIFF-APPELLANT 

vs. 

 

OHIO DEPARTMENT OF INSURANCE 

 

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

 Cuyahoga County Common Pleas Court 

Case No. CV-765879 

BEFORE: Boyle, P.J., Sweeney, J., and Rocco, J. 

 RELEASED AND JOURNALIZED: October 18, 2012 
 

 

 

 

ATTORNEY FOR APPELLANT

Loren Gordon 

850 Euclid Avenue 

Suite 1013 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Michael DeWine 

Attorney General of Ohio 

Scott Myers 

Assistant Attorney General 

Health & Human Services Section 

30 East Broad Street, 26th Floor 

Columbus, Ohio 43215 
MARY J. BOYLE, P.J.: 

{¶1} Plaintiff-appellant, Alberta Payton, appeals a common pleas court judgment 

affirming an order of defendant-appellee, Ohio Department of Insurance (“Department”), 

denying her application to be licensed as an insurance agent in the state of Ohio. Finding no 

merit to her appeal, we affirm. 

Procedural History

{¶2} In March 2011, Payton applied for a license with the Department to sell 

insurance. In her application, she stated that she had been convicted of a felony offense. 

As required, she attached certified copies of her conviction to her application, showing that 

she had been convicted in 2004 of four counts of complicity in the commission of attempted 

felonious assault. 

{¶3} In a “Notice of Opportunity for Hearing,” the Department denied Payton’s 

application, informing her that it had conducted an investigation and determined that she was 

“not suitable to be a licensed insurance agent.” It notified Payton that it intended to “refuse 

to issue her any license and/or take any other action * * * authorized pursuant to R.C. 

3905.14(D) including civil penalties and/or administrative costs.” It further notified Payton 

that the grounds for such action were: 
COUNT ONE

On or about April 1, 2004, in the Cuyahoga County Court of Common Pleas, 

Payton was convicted of four counts of Complicity in Commission of Attempt 

[sic] Felonious Assault, each count being a felony of the third degree. 

Pursuant to section 3905.14(B)(6) of the Revised Code, the Superintendent 

may refuse to issue a license to a person convicted of a felony. 

{¶4} Payton requested a hearing. Subsequent to the hearing, the hearing officer 

issued his report and recommendation, finding (1) that Payton had “committed violations of 

the laws and regulations” of the state of Ohio, and (2) that she was “not suitable to be 

licensed as an insurance agent.” 

{¶5} In his findings of fact, the hearing officer found that Payton had been 

convicted in 2004 of four counts of complicity in the commission of attempted felonious 

assault. She was sentenced to three years in prison. She appealed her sentence to this 

court. See State v. Payton, 8th Dist. No. 84562, 2005-Ohio-3572. The Department 

submitted several exhibits into the record, including certified copies of Payton’s conviction, 

as well as this court’s decision of her appeal. 

{¶6} In Payton, this court explained that Payton’s charges arose “in connection with 

allegations that she had hired a hit man to harm various family members and others.” Id. at 

¶ 2. A summary of the case follows. 

[Payton] pled not guilty and was referred to the Court Psychiatric Clinic 

for competency and sanity reports. In the July 29, 2003, Competency Report, 

Dr. Otto Kausch informed the court that defendant was not capable of assisting 

in her defense because she was suffering from paranoid schizophrenia. By 
September 2003, Dr. Jonathan Sirkin informed the court that defendant was 

suffering from paranoid schizophrenia, was preoccupied with paranoid 

delusion, was noncompliant in taking her medication, but her symptoms 

improved when she took prescribed medication. In October 2003, the court 

was notified that defendant was restored to competency. 

In a competency evaluation dated December 11, 2003, Dr. Michael 

Arnoff of the Court Psychiatric Clinic advised the court that defendant had a 

history of traits and behavior characteristic of a diagnosis of paranoid 

personality disorder, and that it was possible that defendant’s problems with 

the victims identified in the indictment were the result of her delusional beliefs. 

 He also opined that defendant could understand the court proceedings and 

assist in her defense, however. 

In a sanity report from the same week, Dr. Arnoff indicated that “the 

core issue related to defendant’s mental state at the time of the acts involves 

the determination of whether, due to a delusional process, Ms. Payton believed 

that her life was endangered by the targeted victims and hired an individual to 

harm them for purposes of self-protection, secondary to this potentially 

delusional misperception.” Dr. Arnoff noted that defendant suffers from a 

paranoid personality disorder, but it was “unclear as to whether these rise to a 

psychotic level.” He concluded, however, that in connection with the alleged 

offenses, but nonetheless knew the wrongfulness of her actions. 

In a mitigation of penalty report, Dr. Arnoff stated: 

“Given that she is diagnosed with a psychotic-spectrum mental illness, 

Delusional Disorder, and is being treated with antipsychotic medication, if 

granted probation by the Court, Ms. Payton would be appropriate for 

supervision through the Mentally Disordered Offenders (MDO) Program.”

Finally, in January 2004, Dr. John Fabian opined that defendant suffers 

from a delusional disorder, persecutory type, but knew the wrongfulness of her 

actions. He also advised the court that the court’s Mentally Disordered 

Offenders Program may be appropriate for her. 

Id. at ¶ 2-7. 
{¶7} This court explained that after Payton was restored to competency, she entered 

her guilty plea. The trial court sentenced Payton to three years in prison, stating that it had 

two options: “community control supervision by the court, or incarceration.” Id. at ¶ 21. 

This court reversed Payton’s sentence, however, because we determined that the record was 

“unclear” as to “whether the trial court considered other options [such as residential sanctions 

set forth in R.C. 2929.16] for dealing with [a] defendant whose offenses appear to be the 

result of her mental illness, and her failure to take her prescribed medication.” Id. at ¶ 27. 

{¶8} Upon remand, the trial court sentenced Payton to three years of community 

control sanctions. The hearing officer found that Payton violated the terms of her 

community control four times, which extended the length of her supervision by ten months. 

{¶9} The hearing officer noted that before the hearing, Payton had sent the 

Department 31 pages of correspondence in “longhand” regarding her “contentions as to why 

the Department should disregard her previous felony conviction in considering whether she 

should be granted an Ohio insurance license.” The correspondence was entered into 

evidence. 

{¶10} The hearing officer found that Payton testified at length concerning her 

criminal conviction. The hearing officer quoted several portions of the transcript where 

Payton claimed that she was innocent of the 2004 charges. When asked why she pleaded 

guilty, she blamed her brother, her mother, the system, the trial court judge, and her public 
“pretender.” She testified that she pleaded guilty under duress. She further denied that she 

had any mental health issues, claiming that she was only diagnosed with mental illness 

because her brother told her psychologist that she was mentally ill so that he would not go to 

prison. With regard to her appeal, Payton testified that “basically [she] was wrongfully 

accused so they worked up an appeal and I was released.” When asked “so you were guilty 

of the offense; you didn’t just go to jail, you served probation,” Payton replied, “[n]o, I was 

not guilty and I was given probation.”

{¶11} The hearing officer noted that Payton had a bachelor’s degree in interior design 

from Mount St. Joseph College in Cincinnati and was working toward a master’s degree in 

social work during the time leading up to her conviction. 

{¶12} Payton introduced a copy of a petition for a civil protection order that she filed 

against her brother in 2001, where she alleged that her brother assaulted her by hitting her on 

the head and pushing her. An attached police report indicated that Payton and her brother 

got into another altercation that same year. 

{¶13} The hearing officer concluded his findings of fact, stating “the evidence does 

not support that [Payton] is of good reputation and character, is honest and trustworthy, and is 

otherwise suitable to be licensed as an insurance agent in the State of Ohio.” 

{¶14} In his conclusions of law, the hearing officer concluded that in March 2004, 

Payton was convicted of four counts of complicity in the commission of attempted felonious 
assault. The hearing officer concluded that under R.C. 3905.14(B)(6), the superintendent 

“may refuse to issue a license to a person convicted of a felony.” The hearing officer 

further concluded that based on R.C. 3905.06(A)(1)(h), an applicant for an Ohio insurance 

license must “be of good character, [be] honest and trustworthy and otherwise suitable to be 

licensed.” The hearing officer concluded that the evidence did not support that Payton met 

the criteria under R.C. 3905.06(A)(1)(h). The hearing officer recommended that Payton’s 

application be denied. 

{¶15} Payton appealed the hearing officer’s report and recommendation to the 

superintendent of insurance. The superintendent accepted the recommendation of the 

hearing officer and ordered that Payton’s application to become a licensed insurance agent 

be denied. Payton appealed the superintendent’s order to the common pleas court. 

{¶16} The common pleas court found that the superintendent’s order was supported 

by reliable, probative, and substantial evidence, and was in accordance with law. It is from 

this judgment that Payton appeals, raising a sole assignment of error for our review, namely, 

that “[t]he trial court erred when it affirmed the order of the Ohio Department of 

Insurance[.]” 

Standard of Review

{¶17} A common pleas court, in reviewing an order of an administrative agency 

under R.C. 119.12, must consider the entire record to determine whether reliable, probative, 
and substantial evidence supports the agency’s order and the order is in accordance with law. 

Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110-111, 407 N.E.2d 1265 (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, 441 N.E.2d 584 

(1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280, 131 

N.E.2d 390 (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. The common pleas court conducts a de novo review of 

questions of law, exercising its independent judgment in determining whether the 

administrative order is “in accordance with law.” Oh io Historical Soc. v. State Emp. 

Relations Bd., 66 Ohio St.3d 466, 471, 613 N.E.2d 591 (1993). 

{¶18} An appellate court’s review of an administrative decision is more limited than 

that of a common pleas court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 

N.E.2d 748 (1993). The appellate court is to determine only whether the common pleas 

court abused its discretion. Id. Absent an abuse of discretion, a court of appeals may not 

substitute its judgment for that of an administrative agency or the common pleas court. Pons

at 621. It is axiomatic, however, that an appellate court reviews purely legal questions de 
novo. Big Bob’s, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003- 

Ohio-418, 784 N.E.2d 753, ¶ 15 (10th Dist.). 

{¶19} Payton asserts that this appeal presents only questions of law. We disagree. 

Accordingly, we review the trial court’s decision for abuse of discretion. 

Due Process

{¶20} The only issue Payton raises in this appeal is whether the trial court abused its 

discretion in affirming the Department’s denial of her insurance license “even though the 

Department’s notice of a right to a hearing did not fully inform [her] of all the charges against 

her, thereby depriving her of fair opportunity to defend herself at the hearing.” She claims 

that the Department “based its decision on charges that it did not identify in the statutory 

notice.”

{¶21} R.C. 119.07 provides that when an administrative agency takes action against a 

party, it must give notice to the party. The rule prescribes how the notice must be given, 

and states that it “shall include the charges or other reasons for the proposed action, the law 

or rule directly involved, and a statement informing the party that the party is entitled to a 

hearing if the party requests it within thirty days of the time of mailing the notice.” Id.

{¶22} Payton cites to Pruneau v. Ohio Dept. of Commerce, 191 Ohio App.3d 588, 

2010-Ohio-6043, 947 N.E.2d 900 (10th Dist.), in support of her argument. In Pruneau at ¶ 

31, the court explained: 
“The fundamental requirement of procedural due process is notice and 

hearing, that is, an opportunity to be heard.” Korn v. Ohio State Med. Bd., 61 

Ohio App.3d 677, 684, 573 N.E.2d 1100 (1988), citing Luff v. State, 117 Ohio 

St. 102, 157 N.E. 388 (1927). “An elementary and fundamental requirement 

of due process in any proceeding which is to be accorded finality is notice 

reasonably calculated, under all the circumstances, to apprise interested parties 

of the pendency of the action and afford them an opportunity to present their 

objections.” Althof v. Ohio State Bd. of Psychology, 10th Dist. No. 

05AP-1169, 2007-Ohio-1010, ¶ 19, quoting Mullane v. Cent. Hanover Bank 

& Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L. Ed. 865 (1950) 

(internal quotation marks omitted). “‘The right to a hearing embraces not 

only the right to present evidence, but also a reasonable opportunity to know 

the claims of the opposing party and to meet them.’” Id., quoting Gonzales v. 

United States, 348 U.S. 407, 414, fn. 5, 75 S.Ct. 409, 413, 99 L. Ed. 467 

(1955), quoting Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 

L. Ed. 1129 (1938). 

{¶23} In Pruneau, the Ohio Department of Commerce (“Commerce Department”) 

sent notice to American Glass Services, Inc. and Dorsey Construction Company (“Dorsey”) 

informing them they were in violation of the Ohio’s Prevailing Wage Law, specifically R.C. 

4115.13(H)(1). After a hearing, the hearing examiner issued a report finding that the 

Commerce Department did not prove that Dorsey violated R.C. 4115.13(H)(1). But the 

hearing examiner did find that the Department presented sufficient evidence to establish that 

Dorsey violated R.C. 4115.13(H)(4). 

{¶24} Dorsey appealed the decision, arguing that its due process rights were violated 

because it was not given sufficient notice that it had violated R.C. 4115.13(H)(4). The trial 

court affirmed the Commerce Department’s final orders against Dorsey because Dorsey’s 
“notice letter included a general reference to R.C. Chapter 4115,” and thus, was not 

prejudicial. Id. at ¶ 32. 

{¶25} The Tenth District reversed the decision of the trial court. Id. at ¶ 43. It 

pointed out that the Department’s notice letter did not allege a general violation of R.C. 

Chapter 4115; it alleged a very specific violation of R.C. 4115.13(H)(1) and failed to 

reference R.C. 4115.13(H)(4). Id. at ¶ 36. The Tenth District also noted that at the 

beginning of the hearing, the parties stipulated that “the only charges” they were addressing 

“was what [the Commerce Department] listed in [the notice] letter.” Id. at ¶ 37. The 

court reasoned that 

the parties’ stipulation confirms Dorsey’s expectation that it needed to defend 

against only the specific allegation of an intentional violation under R.C. 

4115.13(H)(1). Given the specificity of the notice letter and the stipulation 

before the hearing examiner, Dorsey did not receive adequate notice that it 

faced a potential violation of R.C. 4115.13(H)(4).

Id.

{¶26} The Tenth District concluded that Dorsey was prejudiced by the Commerce 

Department’s failure to provide adequate notice. Id. at ¶ 41. The court explained that it 

could not “ignore that had Dorsey known other potential charges were at issue, it may have 

presented additional or different evidence, or even used a different defense strategy, in light 
of the additional charge.” Id. at ¶ 40. Further, “[b]ecause of the undisputed assurance 

given to Dorsey that only a violation of R.C. 4115.13(H)(1) was at issue,” the court was 

“compelled to conclude [that] the notice to Dorsey was insufficient to alert Dorsey that 

charges under R.C. 4115.13(H)(4) were at issue.” Id.

{¶27} We find Pruneau to be distinguishable on its facts. In Pruneau, 191 Ohio 

App.3d 588, 2010-Ohio-6043, 947 N.E.2d 900, the hearing examiner found that the 

Commerce Department did not prove that Dorsey had violated R.C. 4115.13(H)(1) — the 

only subsection listed in the notice. Instead, the hearing examiner found that based upon the 

evidence, Dorsey actually violated a separate subsection of Ohio’s Prevailing Wage Law, 

namely, R.C. 4115.13(H)(4). 

{¶28} In the present case, however, the hearing examiner found that Payton was 

convicted of a felony. In Payton’s notice from the Department, this was the only allegation. 

 Thus, the Department proved its allegation at the hearing. Had the Department not proven 

this fact, and the hearing examiner still recommended denying Payton’s license for a separate 

reason, we would reach a different conclusion. 

{¶29} Payton argues that under R.C. 3905.14(D)(8) and 3905.14(E), the Department 

could have ordered corrective action “in lieu of” denying her a license, and could have 

considered various mitigating factors rather than deny her a license. We agree that it could
have. But it is fully within the Department’s discretion not to do so. See R.C. 

3905.14(D)(8) and 3905.14(E). 

{¶30} Payton further argues that she was materially prejudiced because if she had 

known that she was facing allegations that her reputation and character were at issue, she 

could have presented more evidence that may have led to a different outcome. Although 

that may be true in some cases, we disagree under the facts of this case. The hearing officer 

found that Payton was not truthful because she would not acknowledge she was guilty of the 

crimes that she pled to in 2004, nor would she acknowledge that she ever had any mental 

health issues. She adamantly testified that she was the victim — over and over — and 

claimed that she was innocent. She sent a 31-page correspondence to the Commerce 

Department declaring that same thing. It is highly doubtful that had Payton been on notice 

that her character might be at issue, she would have acknowledged her prior guilt and mental 

illness. 

{¶31} Accordingly, we conclude that the trial court did not abuse its discretion when 

it affirmed the Commerce Department’s order denying Payton a license to sell insurance in 

the state of Ohio. Payton’s sole assignment of error is overruled. 

{¶32} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

MARY J. BOYLE, PRESIDING JUDGE 

JAMES J. SWEENEY, J., and 

KENNETH A. ROCCO, J., CONCUR