[Cite as BSI Sec. Servs. v. Ohio Dept. of Pub. Safety , 2011-Ohio-4866.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY BSI SECURITY SERVICES : : Appellate Case No. 24050 Plaintiff-Appellant : : Trial Court Ca se No. 09-CV-4228 v. : : OHIO DEPARTMENT OF : (Civil Appeal from PUBLIC SAFETY : ( Common Pleas Court) : Defendant-Appellee : :

. . . . . . . . . . . O P I N I O N Rendered on the 23 rd day of September, 2011.

. . . . . . . . . LAWRENCE J. WHITE, Atty. Reg. #0062363, 2533 Far Hills Avenue, Dayton, Ohio 45419 Attorneys for Plaintiff-Appellant MICHAEL DeWINE, Atty. Reg. #0009181, by CHERYL R. HAWKINSON, Atty. Reg. #0055429, Office of the Ohio Attorney Ge neral, 30 East Broad Street, 26 th Floor, Columbus, Ohio 43215 Attorney for Defendant-Appellee

. . . . . . . . . CANNON, J., sitting by assignment. {¶ 1} This administrative appeal is submitted to this court on the record and the briefs of the parties. Appella nt, BSI Security Services, appeal s the judgment entered by the 2

 Montgomery County Court of Common Pleas. Th e trial court granted a motion to dismiss filed by appellee, Ohio Depa rtment of P ublic Safety. {¶ 2} BSI is a security firm. Appellee is charged with regulating security firms such as BSI. On January 2, 2009, appellee sent a notice of intent to revoke or suspend license or to impose a civil penalty to BSI, via registered mail. However, this notice was returned as undelivered due to an incorrect address. On February 6, 2009, appellee sent a second notice of intent to revoke or suspend license to BSI. The record doe s not indicate where this second notice was sent. In addition, the record does not contain a certified mail receipt of the service card. However, the record contains admissions from BSI that it actually received the February 2009 notice. The notices alleged that BSI employees were not properly registered. {¶ 3} BSI did not request an administrative hearing within 30 days of receiving the notice of intent to revoke license. Appellee issued an adjudication order finding BSI in violation of R.C. 4749.06 and companion secti ons of the Ohio Administrative Code. Appellee revoked BSI’s license. As an alternative to losing its license, the adjudication order provided BSI the option to pay a civil pena lty of $35,200. BSI appealed the adjudication order, pursuant to R.C. Chapter 119, to th e Montgomery County Court of Common Pleas. {¶ 4} Appellee filed a motion to dismiss th e appeal, arguing that BSI had not exhausted its administrative remedies. The ba sis of appellee’s motion was that BSI did not request a hearing within 30 days of receiving the February 2009 notice of intent to revoke or suspend license. BSI filed a response in opposition to appellee’s motion to dismiss. Therein, BSI acknowledged that appellee sent th e notices of intent to revoke or suspend license. BSI asserted that its counsel had c ontacted appellee in an attempt to obtain the 3

 names of the employees at issu e, but appellee had not provided that information. Since the names had not been provided, BS I concluded that “no additiona l meeting or hearings were necessary.” {¶ 5} The trial court granted appellee’s motion to dismiss, finding that BSI had failed to exhaust its administrative remedies. {¶ 6} BSI has timely appealed the trial court’s judgment entry to this court and raises the following assignment of error: {¶ 7} “The common pleas court abused its disc retion by finding that BSI failed to exhaust its administrative remedi es and failed to perfect its appeal as required by ORC 119.12 when there is no evidence in the record that BSI was ever even served with the notice of intent to revoke license in the first place to initiate [its] administrative reme dies by timely filing a notice request for hearing. Mere assertion without any evidence should not be enough to satisfy summary judgment [sic].” {¶ 8} At the appellate level, we note there is a highly-deferential standard of review in an R.C. 119 appeal regardin g factual determinations. See Royer v. Ohio Real Estate
Comm. (1999), 131 Ohio App.3d 265, 268. (Citations omitte d.) However, we review issues of law under a de novo standard of review. Sohi v. Ohio St. Dental Bd. (1998), 130 Ohio App.3d 414, 421. {¶ 9} There are two primary issues for this a ppeal: (1) the adequacy of the notices sent to BSI and (2) the sufficiency of the record submitted to the trial court by appellee. {¶ 10} BSI argues that R.C. 119.07 requires noti ces regarding the suspension of an administrative license to be sent via registered mail. “[T]he failure of an agency to provide 4

 notice in the manner specified in R.C. 119.07 inva lidates any subsequent order issued by the agency.” Chirila v. Ohio State Chiropractic Bd. (2001), 145 Ohio App.3d 589, 594. {¶ 11} “The doctrine of exhaustion requires a person to exhaust administrative remedies before seeking redress from the judicial system.” Jain v. Ohio State Med. Bd. , Franklin App. 09AP-1180, 2010- Ohio-2855, at ¶10, citing Basic Distrib. Corp. v. Ohio Dept. of Taxation , 94 Ohio St.3d 287, 290, 2002-Ohio-794, citing Noernberg v. Brook Park (1980), 63 Ohio St.2d 26. The doctrine of exhaustion of administrative remedi es is intended to permit administrative agencies the opportunity to exercise their expertise in resolving the matter prior to a party seeking involvement from the courts. Jain v. Ohio State Med. Bd ., at ¶10. (Citations omitted.) “Allowi ng a claimant to raise an i ssue for the first time in an appeal to the court of common pleas would frust rate the statutory syst em for having issues raised and decided through the administrative process.” Id. (Citations omitted.) {¶ 12} In this matter, BSI has waived the issue of whether the notice sent by appellee was proper, since BSI did not exhaust its administrative remedies by raising this issue at the administrative level. {¶ 13} Further, a party generally waives the righ t to appeal an issue that could have been, but was not, raised in earlier proceedings. Jain v. Ohio State Med. Bd. , at ¶10, citing MacConnell v. Ohio Dept. of Commerce , Franklin App. No. 04AP-433, 2005-Ohio-1960, at ¶21. See, also, Staschak v. State Med. Bd. of Ohio , Franklin App. No. 03AP-799, 2004-Ohio-4650, at ¶33-35; Grill v. Ohio Dept. of Job & Family Servs. , Medina App. No. 03CA0029-M, 2003-Ohio-5780, at ¶19. Any procedur al errors in the administrative review process should be argued and disposed of durin g the initial appeal, and may not be raised for 5

 the first time on appeal from the trial court ruling. BSI did not raise the issue of improper service, in any manner, at the trial court level. Obviously, since it did not raise it below, the trial court was not given an opportunity to address any issues regarding service of the notice. Thus, BSI has waived this issue on appeal. {¶ 14} Moreover, in addition to being waived, BSI’s argument fails on its merits as the record demonstrates that BS I received the notice of intent to revoke or suspend its license. In BSI’s notice of appeal to the trial court, its counsel, David Stenson, asserted the following: “[p]rior to the adjudication order the undersigned counsel spoke with [appellee] in February of 2009 based on a notice of intent to revoke or suspend BSI license.” Also, in its response to appellee’s motion to dismiss, BSI asserted: {¶ 15} “Appellee did in fact send Appellant two no tices of intent to revoke or suspend Appellant’s license consiste nt with R.C. Chapter 119, on January 2, 2009, and February 6, 2009. Appellant never requested a hearing on e ither occasion, however according to previous counsel of Appellant, tw o call[s] were made to Appellee in February and March 2009, prior to the Adjudication Order of Appellee. Said Counsel spoke to Appellee and requested the information on three employees. The names of the employee[s] were never given to said counsel.” {¶ 16} Accordingly, at the trial court level, BSI specifically acknowledged receiving the notice of intent to revoke or suspend license . Also, it conceded that it did not request a hearing, which appears to have been a strate gic decision. BSI concl uded that “no additional meeting or hearings were necessary” since a ppellee had not provided th e requested names of the employees. BSI’s counsel determined that a hearing would have been “totally useless.” 6

 These assertions contradict BSI’s current position, that it “c ould not have requested an administrative hearing within 30 days” due to a lack of notice. The record refutes BSI’s argument that it did not receive the notice of intent to suspend or revoke its license. {¶ 17} BSI also asserts that an agency is required to file a complete record with the trial court in an R.C. 119.12 appeal. See Royer v. Ohio Real Estate Comm. , 131 Ohio App.3d at 268. It argues that the record was not comp lete because it did not contain the certified mail receipt card. However, even though a complete record is required, “unintentional omissions may be excused.” Id. at 269. In Royer , the Third Appellate District reversed because there

was no evidence in the record that Royer receive d proper notice. Id. at 270. However, in this matter, the record contains specific admi ssions from BSI that the notices were sent. Finally, we note that BSI did not raise the issue of an incomplete record at the trial court level. See McGee v. Ohio State Bd. of Psychology (1993), 82 Ohio App.3d 301, 305. For this additional reason, its argu ment is unpersuasive. {¶ 18} BSI’s assignment of e rror is without merit. {¶ 19} The judgment of the Montgomery Count y Court of Common Pleas is affirmed.

. . . . . . . . . . . . . . GRADY, P.J., and FROELICH, J., concur. (Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment of the Chief Justice of the S upreme Court of Ohio.)
Copies mailed to: Lawrence J. White Michael DeWine Cheryl R. Hawkinson Hon. Timothy N. O’Connell 7

