[Cite as In re Avon Skilled Nursing & Rehab., 2019-Ohio-3790.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

In re: : No. 18AP-863 

 (O.D.H. File No. 9106-01-17A)

Avon Skilled Nursing and Rehabilitation. : 

 (REGULAR CALENDAR) 

 : 

 

D E C I S I O N 

Rendered on September 19, 2019 

 

On brief: Dave Yost, Attorney General, and Henry G. Appel, 

for appellee Ohio Department of Health. Argued: Henry G. 

Appel.

On brief: Webster & Associates Co., LPA, and Geoffrey E. 

Webster, for appellee/cross-appellant Avon Realty Holding, 

LLC. Argued: Geoffrey E. Webster.

On brief: Rolf Goffman Martin Lang, LLP, Ira S. Goffman, 

and Joseph F. Petros, for appellants/cross-appellees Main 

Street Care Center Ltd., Avon Healthcare Center, Inc., and 

R & J Investment Company, Inc. Argued: Ira S. Goffman.

 

APPEAL from the Ohio Department of Health 

LUPER SCHUSTER, J. 

{¶ 1} Appellants, Main Street Care Center, Ltd., Avon Healthcare Center, Inc., and 

R & J Investment Company, Inc., appeal, and cross-appellant, Avon Realty Holding, LLC 

("Avon Realty Holding"), cross-appeals from the October 19, 2018 adjudication order of 

appellee Director of the Ohio Department of Health ("ODH") granting Avon Realty 

Holding's certificate of need ("CON") application. For the following reasons, we affirm.

I. Factual and Procedural Background 

{¶ 2} On October 30, 2015, Avon SNF Realty, LTD, filed a CON application with 

ODH to construct and operate a new long-term care facility, to be known as Avon Skilled 

Nursing and Rehabilitation, in Avon, Ohio, in Lorain County. The applicant proposed the 
No. 18AP-863 2 

relocation of 82 long-term care beds from Golden Acres Lorain County Home ("Golden 

Acres"), a facility formerly operated in Lorain County by the Lorain County Board of 

Commissioners (a "county nursing home" as defined in R.C. 5155.31)1, to a newly 

constructed nursing facility in Lorain County on the Avon Health Campus. Golden Acres 

last provided long-term care services to a resident in October 2015. The director denied 

this CON application in May 2016, reasoning that he was without authority to approve the 

application because it proposed the relocation of long-term care beds that were no longer 

located in a county nursing home and therefore were no longer existing beds. 

{¶ 3} On July 13, 2016, the 131st General Assembly enacted Amended Substitute 

House Bill 483 ("Am.Sub.H.B. No. 483"), which became effective on October 12, 2016. The 

application and constitutionality of this legislation is at issue in this case.

{¶ 4} On January 9, 2017, the County Commissioners Board of Lorain County and 

Avon Realty Holding entered into an agreement for the transfer and sale of the right to 

operate Golden Acres' 82 nursing home beds to Avon Realty Holding. The next day, Avon 

Realty Holding2 filed a CON application with ODH to construct and operate the nursing 

home facility to be known as Avon Skilled Nursing and Rehabilitation, in Avon, Ohio, in 

Lorain County. Like Avon SNF Realty, LTD's October 30, 2015 CON application, Avon 

Realty Holding sought ODH's approval for the relocation of 82 long-term care beds from 

Golden Acres to a proposed new facility on the Avon Health Campus. 

{¶ 5} After Avon Realty Holding submitted its CON application, ODH requested 

additional information, which was provided. On July 20, 2017, ODH declared Avon Realty 

Holding's CON application to be complete. On August 31, 2017, ODH staff submitted a 

report to the director of ODH recommending approval of the relocation of long-term care 

beds from Golden Acres to the proposed long-term care facility. On September 15, 2017, 

the director of ODH informed Avon Realty Holding that its CON application, involving the 

"[i]ntra-county relocation of 82 long-term care (LTC) beds from Golden Acres Lorain 

 

1 R.C. 5155.31 uses the terms "county home" and "county nursing home" interchangeably, without any 

distinction between the two terms. See R.C. 3721.01 (defining "home" to include a "nursing home"). Thus, 

Golden Acres also may be considered a "county home." 

2 Avon Health Realty, LLC, was initially identified as the applicant, but Avon Realty Holding was later 

identified as the correct name of the applicant. 
No. 18AP-863 3 

County Home, to a newly constructed nursing facility," had been approved. (Joint Ex. at 

407.)

{¶ 6} Pursuant to R.C. 3702.60(B), appellants, which operate long-term care 

facilities in the service area where the long-term care services would be provided under 

Avon Realty Holding's CON, filed an appeal of the director's decision and requested an 

adjudication hearing. 

{¶ 7} A hearing examiner held a four-day hearing on the matter in January and 

February 2018. In August 2018, the hearing examiner issued a report and recommendation 

recommending that the director grant Avon Realty Holding's CON application. Appellants 

filed objections to the report and recommendation. In October 2018, the director issued an 

adjudication order, adopting the hearing examiner's findings of fact, conclusions of law, 

and recommendation. The director accordingly granted Avon Realty Holding's CON 

application.

{¶ 8} Pursuant to R.C. 119.12, appellants appeal, and Avon Realty Holding crossappeals, from the director's adjudication order.

II. Assignments of Error 

{¶ 9} Appellants assign the following errors for our review: 

[1.] The director erred by refusing to apply and enforce 

Administrative Code Section 3701-12-23.2(E). 

[2.] The director's decision to approve the applicant's CON 

application is in error because Section 737.10 of the Amended 

Substitute House Bill No. 483, upon which the director's 

decision relies, violates the one-subject rule under Article II, 

Section 15(D) of the Ohio Constitution. 

[3.] The director's decision to approve the applicant's CON 

application is in error because Section 737.10 of the Amended 

Substitute House Bill No. 483, upon which the director's 

decision relies, violates the uniformity clause under Article II, 

Section 26 of the Ohio Constitution. 

[4.] The director's decision to approve the applicant's CON 

application is not supported by reliable, probative, and 

substantial evidence and is not in accordance with Sections 

3702.51 to 3702.62 of the Revised Code or the rules adopted 

under those sections. 
No. 18AP-863 4 

{¶ 10} In its cross-appeal, Avon Realty Holding assigns the following errors for our 

review: 

[1.] Whether the hearing examiner erred by failing to issue the 

findings of fact and conclusion of law that Lorain County's 

Golden Acres Home was an open, operating facility and was an 

existing health care facility as defined in R.C. 3702.51(J). 

[2.] Whether the hearing examiner improperly granted 

appellants' motion to quash Avon's subpoena request for 

appellants' financial documentation. 

[3.] Whether the hearing examiner improperly used the term 

"special legislation" in reference to Am. Sub. H.B. 483 (131st 

General Assembly) thereby creating the bases for a potential 

appealable issue for appellants Main Street Care Center, Ltd., 

Atrium Retirement Centers, LLC, Avon Healthcare Center, 

Inc., and R & J Investment Co., Inc. 

III. Discussion 

 A. Appellants' First and Fourth Assignments of Error – Application 

 Approval 

{¶ 11} We address together appellants' first and fourth assignments of error. In 

appellants' first assignment of error, they contend the director erred in refusing to apply 

Ohio Adm.Code 3701-12-23.2(E). They argue this regulation prohibited the director from 

granting Avon Realty Holding's January 10, 2017 CON application. Appellants' fourth 

assignment of error more generally asserts the director's adjudication order granting Avon 

Realty Holding's January 10, 2017 CON application is not supported by reliable, probative, 

and substantial evidence and is not in accordance with law, namely R.C. 3702.51 to 3702.62 

and the administrative rules adopted thereunder. These assignments of error lack merit. 

{¶ 12} Pursuant to R.C. 3702.60(B), "the [CON] applicant or another affected 

person may appeal to the director in accordance with Chapter 119. of the Revised Code a 

decision issued by the director to grant or deny a certificate of need application, and the 

director shall provide an adjudication hearing in accordance with that chapter." At the 

adjudication hearing, the appellant must prove by a preponderance of the evidence that the 

director's decision is not in accordance with R.C. 3702.52 through 3702.62 and the rules 
No. 18AP-863 5 

adopted thereunder. In re LTC Tallmadge, LLC, 10th Dist. No. 18AP-282, 2019-Ohio-225, 

¶ 17. 

{¶ 13} The director's decision following the adjudication hearing may be appealed 

to the Tenth District Court of Appeals under R.C. 3702.60(B). In considering an appeal of 

a CON adjudication order, this court "shall affirm the director's order if it finds, upon 

consideration of the entire record and any additional evidence admitted under division 

(F)(2) of this section, that the order is supported by reliable, probative, and substantial 

evidence and is in accordance with law. In the absence of such a finding, it shall reverse, 

vacate, or modify the order." R.C. 3702.60(F)(3). 

{¶ 14} 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." Our 

Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992). Probative 

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

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

have importance and value." Id. 

{¶ 15} The "[a]nalysis of whether the evidence supports the director's decision is 

essentially a question of the absence or presence of the requisite quantum of evidence." In 

re Wedgewood Health Care Ctr., LLC, 176 Ohio App.3d 554, 2008-Ohio-2950, ¶ 7 (10th 

Dist.). "Although this court may engage in a very limited weighing of the evidence upon an 

appeal of this nature, we may not substitute our judgment for that of the [ODH] as to the 

credibility of witnesses and the weight to be given the testimony." In re Knolls of Oxford, 

10th Dist. No. 02AP-514, 2003-Ohio-270, ¶ 13. "A reviewing court must give due deference 

to the administrative resolution of evidentiary conflicts." In re Progressive Macedonia 

Real Estate, LLC, 10th Dist. No. 16AP-71, 2017-Ohio-8374, ¶ 10, citing In re Manor Care, 

10th Dist. No. 05AP-398, 2005-Ohio-5703, ¶ 9. "With respect to factual findings, it is 

incumbent upon appellant to demonstrate they are not supported by reliable, probative, 

and substantial evidence." In re Certificate of Need Application for Parkside Villa, 10th 

Dist. No. 04AP-1232, 2005-Ohio-5699, ¶ 14. 

{¶ 16} " 'Courts must afford due deference to an agency's interpretation of the rules 

it is required to administer, but only so long as the agency's interpretation is reasonable and 

consistent with the plain language of the rules.' " In Re Certificate of Need Application of 
No. 18AP-863 6 

Countryside Health Care Ctr., 10th Dist. No. 14AP-411, 2014-Ohio-5861, ¶ 13, quoting In 

re 4307 Care, L.L.C., Certificate of Need, 10th Dist. No. 05AP-672, 2006-Ohio-2071, ¶ 12. 

" 'Deference to an agency's interpretation "may be disregarded or set aside when judicial 

construction makes it imperative to do so." ' " Countryside Health Care Ctr. at ¶ 13, quoting 

4307 Care at ¶ 12, quoting Glassco v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 

03AP-871, 2004-Ohio-2168, ¶ 11. 

{¶ 17} At issue in this case is the application of the governing law pertaining to the 

relocation of long-term care beds from a closed county nursing home to a proposed longterm care facility. R.C. 3702.52 provides that the director "shall administer a state 

certificate of need program in accordance with sections 3702.51 to 3702.62 of the Revised 

Code and rules adopted under those sections." To facilitate the implementation of this 

program, R.C. 3702.57(A) empowers the director to "adopt rules establishing procedures 

and criteria for reviews of applications for certificates of need and issuance, denial, or 

withdrawal of certificates." A "certificate of need" is a "written approval granted by the 

director of health to an applicant to authorize conducting a reviewable activity." R.C. 

3702.51(C). A CON application must be submitted on the forms and in the manner 

prescribed by the director. R.C. 3702.52(B)(1). If the proposed project meets all the 

applicable CON criteria under R.C. 3702.51 to 3702.62 and the rules adopted under those 

sections, the director must grant the CON for all or part of the proposed project. R.C. 

3702.52(C)(1). For the purpose of R.C. 3702.51 through 3702.62, a "county nursing home" 

has the same meaning as in R.C. 5155.31, which defines the term to mean "a facility that is 

owned and operated by the county * * * and that is used for the reception and care of 

individuals who by reason of illness or physical or mental impairment require skilled 

nursing care and of individuals who require personal assistance." R.C. 3702.51(Q). 

{¶ 18} R.C. 3702.592(A) provides that the director "shall accept, for review under 

section 3702.52 of the Revised Code, certificate of need applications for any of the following 

purposes if the proposed increase in beds is attributable to a replacement or relocation of 

existing beds from an existing long-term care facility within the same county." One of the 

delineated purposes is the "[a]pproval of beds in a new long-term care facility or an increase 

of beds in an existing long-term care facility if the beds are proposed to be licensed as 

nursing home beds under Chapter 3721. of the Revised Code." R.C. 3702.592(A)(1). 
No. 18AP-863 7 

{¶ 19} Ohio Adm.Code 3701-12-23.2(A) provides: "In addition to review under 

other applicable provisions of the Administrative Code, the director shall not approve an 

application for a certificate of need to replace an existing long-term care facility or to 

relocate existing long-term care beds from one site to another unless the application meets 

all of the criteria prescribed by this rule." Among the criteria prescribed by this rule is the 

requirement that the "facility being replaced or from which beds are being relocated is a 

long term care facility, as defined in paragraph (P) of rule 3701-12-01 of the Administrative 

Code, and an existing long-term care facility, as defined in paragraph (I) of rule 3701-12-01 

of the Administrative Code." Ohio Adm.Code 3701-12-23.2(E). 

{¶ 20} Ohio Adm.Code 3701-12-01(P) defines "long-term care facility" to mean any 

of the following: 

(1) A nursing home licensed under section 3721.02 of the 

Revised Code or by a political subdivision certified under 

section 3721.09 of the Revised Code; 

(2) The portion of any facility, including a county home or a 

county nursing home, that is certified as a skilled nursing 

facility or a nursing facility under Title XVIII or XIX of the 

Social Security Act; or 

(3) The portion of any hospital that contains beds registered 

under section 3701.07 of the Revised Code as skilled nursing 

beds or long-term care beds. 

See R.C. 3702.51(N) (same definition for "long-term care facility" for the purpose of R.C. 

3702.51 to 3702.62). 

{¶ 21} Ohio Adm.Code 3701-12-01(I) defines "existing long-term care facility" to 

mean either of the following: 

(1) A long-term care facility that is licensed or otherwise 

authorized to operate in this state in accordance with 

applicable law, including a county home or a county nursing 

home that is certified under Title XVIII or Title XIX of the 

Social Security Act, 49 Stat. 620 (1935), 42 U.S.C. 301, as 

amended (1981), that is staffed and equipped to provide longterm care services, and is actively providing long-term care 

services; or 
No. 18AP-863 8 

(2) A long-term care facility that is licensed or otherwise 

authorized to operate in this state in accordance with 

applicable law, including a county home or a county nursing 

home that is certified under Title XVIII or Title XIX of the 

Social Security Act, 49 Stat. 620 (1935), 42 U.S.C. 301, as 

amended (1981), or has beds registered under section 3701.07 

of the Revised Code as skilled nursing beds or long-term care 

beds and has provided long-term care services for at least three 

hundred sixty-five consecutive days within the twenty-four 

months immediately preceding the date a certificate of need 

application is filed with the director of health. 

See R.C. 3702.51(J) (same definition for "existing long-term care facility" for the purpose 

of R.C. 3702.51 to 3702.62). 

{¶ 22} In July 2016, the General Assembly enacted Am.Sub.H.B. No. 483, which 

included a temporary provision pertinent to a CON applicant requesting the construction 

of a new long-term care facility.3 Uncodified section 737.10 of Am.Sub.H.B. No. 483 states 

as follows: 

(A) As used in this section: 

(1) "Existing long-term care facility" has the same meaning as 

in section 3702.51 of the Revised Code. 

(2) "Long-term care bed" has the same meaning as in section 

3702.51 of the Revised Code, except that it also means a bed 

that is located in a former county home or former county 

nursing home and was part of the county home's or county 

nursing home's authorized maximum certified capacity for 

purposes of the Medicare and Medicaid programs before the 

effective date of this section. 

(B) The Director of Health shall accept for review under section 

3702.52 of the Revised Code a certificate of need application to 

which all of the following apply: 

(1) The application is for the establishment, development, or 

construction of a new long-term care facility. 

 

3 The parties disagree as to the basis for the director's denial of the first CON application seeking to construct 

the long-term care facility to be known as Avon Skilled Nursing and Rehabilitation. They analyze whether 

Am.Sub.H.B. No. 483 remedied the basis for that denial. This analysis is unnecessary and inconsequential. 

The issue here is whether the director erred in granting Avon Realty Holding's January 10, 2017 CON 

application, not whether Am.Sub.H.B. No. 483 addressed any deficiency in Avon SNF Realty LTD's 

October 30, 2015 CON application. 
No. 18AP-863 9 

(2) The new long-term care facility's long-term care beds are to 

be long-term care beds that are relocated from a former county 

home or former county nursing home to which both of the 

following apply: 

(a) The former county home or former county nursing home 

was an existing long-term care facility on or before October 1, 

2015. 

(b) The operator of the former county home or former county 

nursing home, in accordance with section 5155.38 of the 

Revised Code, certified to the Director the number of long-term 

care beds that were in operation in the home on July 1, 1993. 

(3) The application is submitted to the Director during the 

period beginning October 1, 2015, and ending ninety days after 

the effective date of this section. 

(C) In reviewing a certificate of need application authorized by 

this section, the Director shall not deny the application on the 

grounds that the former county home or former county nursing 

home from which the long-term care beds are being relocated 

has closed and ended its participation in the Medicare and 

Medicaid programs. 

{¶ 23} According to appellants, Avon Realty Holding's January 10, 2017 CON 

application failed to meet all of the requirements of Ohio Adm.Code 3701-12-23.2(E), and, 

therefore, pursuant to Ohio Adm.Code 3701-12-23.2(A), the director was not permitted to 

approve the application. We are unpersuaded. 

{¶ 24} As set forth above, Ohio Adm.Code 3701-12-23.2(E) requires that a facility 

being replaced or from which beds are being relocated must be a "long-term care facility," 

as defined in Ohio Adm.Code 3701-12-01(P), and an "existing long-term care facility," as 

defined in Ohio Adm.Code 3701-12-01(I). Appellants concede that Golden Acres was a 

"long-term care facility" as defined in Ohio Adm.Code 3701-12-01(P). However, they 

contend that, at the time Avon Realty Holding filed its CON application, Golden Acres was 

not an "existing long-term care facility," as defined in Ohio Adm.Code 3701-12-01(I), 

because it was not actively providing long-term care services and had not provided longterm care services for 365 consecutive days over the 24 months immediately preceding the 

filing of the application. 
No. 18AP-863 10 

{¶ 25} The director agreed with appellants' assertion that, at the time Avon Realty 

Holding filed its CON application on January 10, 2017, Golden Acres was closed and had 

not provided long-term care services for 365 consecutive days over the 24 months 

immediately preceding the filing of the application. And the evidence supports this finding. 

However, this does not end the analysis. 

{¶ 26} As to section 737.10(B)'s applicability, the director found that Avon Realty 

Holding's January 10, 2017 CON application proposes the establishment, development, or 

construction of a new long-term care facility; the new long-term care facility's long-term 

care beds are to be long-term care beds that are relocated from a former county home or 

former county nursing home that was an existing long-term care facility on or before 

October 1, 2015; and the operator of that home certified to the director, in accordance with 

R.C. 5155.38, the number of long-term care beds that were in operation in the home on 

July 1, 1993. Further, the director found that Avon Realty Holding's January 10, 2017 CON 

application was submitted within the 90-day window set forth in section 737.10(B)(3) of 

Am.Sub.H.B. No. 483. Therefore, the director found that all of the requirements of section 

737.10(B) were established, and appellants do not challenge this finding. 

{¶ 27} Appellants essentially argue that even though the criteria of section 737.10(B) 

was met, this circumstance did not eliminate the requirement that Golden Acres constitute 

an "existing long-term care facility," as set forth in Ohio Adm.Code 3701-12-23.2(E). We 

disagree. Because Avon Realty Holding's CON application met all the elements of section 

737.10(B), the director was required to accept the application for review, despite Golden 

Acres not qualifying as an "existing long-term care facility" at the time of Avon Realty 

Holding's CON application. Unlike Ohio Adm.Code 3701-12-23.2(E), section 737.10(B) 

does not mandate any limitation on the length of time between the closure of a county home 

or county nursing home and the proposed relocation of beds from the closed facility. And 

to the extent there is any uncertainty as to this issue, section 737.10(C) expressly precludes 

the director from denying such an application on the basis that a formerly open and 

operating county home or county nursing home has closed. Thus, Ohio Adm.Code 3701-

12-23.2(E)'s limitation on when an applicant may seek to relocate long-term care beds from 

a closed county home or county nursing home was effectively eliminated by section 737.10 

for CON applications meeting the requirements of that law. 
No. 18AP-863 11 

{¶ 28} Appellants assert that this conclusion that section 737.10 altered the 

circumstances under which a CON applicant may request the relocation of beds from a 

closed county nursing home is inconsistent with section 737.10(A)(1), which states that 

"[a]s used in this section[,] * * * '[e]xisting long-term care facility' has the same meaning as 

in section 3702.51 of the Revised Code." We disagree. The only reference to an "existing 

long-term care facility" in section 737.10, other than in section 737.10(A)(1), is the provision 

referring to a county facility that "was an existing long-term care facility on or before 

October 1, 2015." Thus, to qualify under section 737.10, the closed facility (which may or 

may not be an "existing long-term care facility" at the time of filing the CON application, 

depending on whether long-term care services had been provided for 365 consecutive days 

over the 24 months immediately preceding the filing) must have been an existing long-term 

care facility on or before October 1, 2015. Our analysis does not change the meaning of 

"existing long-term care facility." 

{¶ 29} Because appellants' first assignment of error lacks merit, we overrule it. 

{¶ 30} In support of its fourth assignment of error, appellants argue that the director 

should have denied Avon Realty Holding's CON application because of its flaws and 

deficiencies. In particular, appellants contend Avon Realty Holding failed to demonstrate 

control over one of the two parcels of land for the proposed facility, failed to document the 

necessary working capital or financial feasibility in financial statements, and failed to 

provide the required primary and secondary service area information by zip code. 

Essentially, appellants argue that based on these flaws and deficiencies the adjudication 

order was not supported by reliable, probative, and substantial evidence and is not in 

accordance with law. We are unpersuaded. 

{¶ 31} Ohio Adm.Code 3701-12-20(A) provides: 

An applicant for a certificate of need shall provide sufficient 

information to enable the director to perform a thorough 

review of the application in relation to each relevant criterion 

established by this chapter of the Administrative Code by 

completely responding to each applicable portion of the 

application form and attachments prescribed by the director 

and by attaching the necessary supporting documentation. 
No. 18AP-863 12 

Pursuant to this rule, "the director of ODH is not required to disapprove a CON application 

with omissions, mistakes, or inconsistencies where the director has sufficient information 

to perform a thorough review of the application." Tallmadge, supra, at ¶ 24. 

{¶ 32} Here, the director adopted the hearing examiner's finding of fact that Avon 

Realty Holding's January 10, 2017 CON application "contained omissions, errors, and 

inconsistencies, but the information provided by the applicant through its certificate of 

need application nonetheless provided the Ohio Department of Health and the Ohio 

Director of Health with sufficient information to provide a thorough, reliable, and required 

review of the certificate of need application under the laws and rules of Ohio's certificate of 

need program." (Hearing Examiner Report & Recommendation at 98.) Thus, the director 

did not view those omissions, errors, and inconsistencies as significant enough to preclude 

its thorough review of the CON application. 

{¶ 33} We separately address the deficiencies appellants contend required the 

denial of Avon Realty Holding's CON application. Appellants first argue Avon Realty 

Holding did not demonstrate control over one of the two parcels of land where the project 

is proposed to be developed. 

{¶ 34} Ohio Adm.Code 3701-12-08(D) states that "[e]ach applicant shall submit an 

original of the application form and necessary attachments in a manner prescribed by the 

director and shall include, but not be limited to, the following: * * * (4) Identification of a 

specific site for the project designated by a street address or, if there is no street address, a 

plot or parcel number." 

{¶ 35} In its CON application, Avon Realty Holding indicated that the proposed 82-

bed facility would be located "on a parcel of land that is a portion of the new Avon Health 

Campus in Avon, Ohio, on Health Campus Boulevard (or an artery thereof), which is near 

Nagle Road by I-90. No address is yet assigned to this site which is the portion of 

permanent parcel numbers 04-00-028-101-114 [parcel 114] and 04-00-028-101-117 [parcel 

117], as identified on the attachment to page one of the application form pages." (Joint Ex. 

at 24.) The application continues, "It is possible the precise location may be adjusted based 

upon soil tests, and other topography requirements (such as water retention pond) and 

those tests will not be done unless and until this Application is granted; however the site 
No. 18AP-863 13 

identified is as close as possible to the desired location agreed to by the Seller and Applicant 

and will not materially change." (Joint Ex. at 24-25.) 

{¶ 36} Before the ODH hearing examiner, Avon Realty Holding's owner, Michael 

Francus, testified that his company is in contract to purchase parcels 114 and 117, but the 

precise location of the facility on those properties is subject to a "wetlands problem" and 

thus had not been finalized. (Tr. Vol. V at 626.) Avon Realty Holding submitted copies of 

two purchase and sale agreements in connection with its CON application. One agreement 

pertains to parcel 114, and the other purportedly pertains to parcel 117. As to the latter 

agreement, appellants argue this agreement does not support a finding that Avon Realty 

Holding has demonstrated control over parcel 117, in part because it does not include any 

address, plot, or parcel number identifying the property to which the agreement relates. 

This agreement states that the seller agreed to sell to Avon Realty Holding approximately 

5.28 acres of a "certain parcel of land located in Lorain County, Ohio, containing 38.377 

acres * * * located near the intersection of Interstate 90 and Nagel Road in the Avon 

Place/Avon Health Campus development." (Joint Ex. at 388.) The submitted tax map for 

the Interstate 90 and Nagel Road area contained no 38.377 acre parcel. Thus, the 

agreement did not identify the precise location of the property ultimately to be transferred, 

and there was inconsistency between the acreage identified in the agreement and that 

reflected on the tax map. However, while there was some uncertainty as to the precise 

location of the proposed facility, ODH employee Greg Glass testified that such uncertainty 

is not uncommon because the location of a newly constructed facility may not be finalized 

until after the application is approved considering construction realities. Further, Francus' 

testimony clarified that, while no 38-acre parcel is shown on the tax map, the 38-acre 

property discussed in the agreement, purported to relate to parcel 117, is now only 33 acres. 

The tax map shows a 33-acre parcel adjacent to what is indisputably parcel 114. 

{¶ 37} Based on our review of the record, we find that, even though the exact 

location of the proposed facility was uncertain, the director was provided with sufficient 

information from which to reasonably identify the location of the proposed facility and to 

reasonably conclude that the applicant had control over the land on which the facility would 

be constructed. Therefore, we find appellants' argument as to this issue to be unpersuasive. 
No. 18AP-863 14 

{¶ 38} Appellants next contend the director could not adequately consider the 

financial feasibility of the proposed project because of problems in Avon Realty Holding's 

financial statements. Appellants also argue that the documents Avon Realty Holding 

submitted do not demonstrate the existence of sufficient working capital for the project. 

We reject these arguments. 

{¶ 39} Ohio Adm.Code 3701-12-20(I) requires the director to "consider the shortterm and long-term financial feasibility and the cost effectiveness of the project and its 

financial impact upon the applicant, other providers, health care consumers and the 

medicaid program established under Chapter 5162. of the Revised Code." In considering 

these issues, the director must evaluate: 

(1) The availability of financing for the project, including all 

pertinent terms of any borrowing, if applicable; 

(2) The operating costs specific to the project and the effect of 

these costs on the operating costs of the facility as a whole 

based upon review of balance sheets, cash flow statements and 

available audited financial statements; 

(3) The effect of the project on charges and payment rates for 

the facility as a whole and specific to the project; 

(4) The costs and charges associated with the project compared 

to the costs and charges associated with similar services 

furnished or proposed to be furnished by other providers; and 

(5) The historical performance of the applicant and related or 

affiliated parties in providing cost-effective long-term care 

services. 

Ohio Adm.Code 3701-12-20(I). 

{¶ 40} Avon Realty Holding's CON application indicated the project cost was 

determined to be $17,921,250. Documentation submitted also indicated that Avon Realty 

Holding would finance the project with a loan in the amount of $15,571,250 and a cash 

contribution by the owner in the amount of $2,350,000. Avon Realty Holding also 

provided a projected balance sheet and cash flow statement for the three years following 

project completion. At the hearing before the hearing examiner, Avon Realty Holding's 

CPA, Russell Corwin, acknowledged there are discrepancies on the balance sheet and cash 
No. 18AP-863 15 

flow statement. However, he asserted that these must have been transcription errors. 

Further, ODH's initial reviewer of Avon Realty Holding's CON application, Taylor 

Gustavson, testified that, while there were discrepancies, "based on the information in this 

application as a whole the financial feasibility of the project doesn't seem to be a question 

to me." (Tr. Vol. II at 327.) Concerning the working capital issue, Francus explained how 

the short-term obligations of the project would be met, including through the use of 

noncash contributions from associated businesses, the minimization of initial expenses, 

and the deferral of expense payments. Corwin also noted that the financial statements 

submitted with the CON application indicated significant projected revenue that would be 

received from residents. In sum, appellants have failed to demonstrate that Avon Realty 

Holding submitted insufficient information to enable ODH to analyze whether there was 

adequate financing for the proposed project, or that the submitted information did not 

reasonably show the financial feasibility of that project. 

{¶ 41} Lastly, appellants argue that Avon Realty Holding's failure to provide certain 

zip code information precluded the director from making the necessary considerations in 

reviewing the CON application. In support, appellants cite Ohio Adm.Code 3701-12-20(D), 

which requires the director to "consider the need that the population served or proposed to 

be served has for the services to be provided upon implementation of the project." This 

includes examining the "[c]urrent and projected patient origin data, by zip code." Ohio 

Adm.Code 3701-12-20(D)(3). 

{¶ 42} Avon Realty Holding's CON application contained zip code data regarding 

the projected service area for the proposed facility and the service area for the source 

facility. However, in providing this data, Avon Realty Holding duplicated three of the zip 

codes in the projected service areas for the proposed facility. That is, three zip codes are 

listed as both projected primary and secondary service areas for the proposed facility. 

Gustavson testified that, in reviewing Avon Realty Holding's application, he noted the 

duplication of certain zip codes in the listed primary and secondary service areas. However, 

he did not view this duplication as an impediment to ODH's review of the current and 

projected patient origin data because he realized it was a mistake and determined that 

further information was unnecessary on this issue. Because appellants fail to show ODH 

was unable to examine current and projected patient origin data by zip code pursuant to 
No. 18AP-863 16 

Ohio Adm.Code 3701-12-20(D)(3), we reject appellants' argument regarding the zip code 

information. 

{¶ 43} Accordingly, appellants' fourth assignment of error lacks merit, and is 

overruled. 

 B. Appellants' Second and Third Assignments of Error – Constitutional 

 Challenge 

{¶ 44} Appellants' second and third assignments of error challenge the 

constitutionality of section 737.10 of Am.Sub.H.B. No. 483. Their second assignment of 

error asserts the director erred in granting Avon Realty Holding's January 10, 2017 CON 

application because section 737.10 of Am.Sub.H.B. No. 483 violates the one-subject rule 

under Article II, Section 15(D) of the Ohio Constitution. They contend the inclusion of 

section 737.10 in Am.Sub.H.B. No. 483 is an example of impermissible "log-rolling." And 

their third assignment of error asserts the director erred in granting Avon Realty Holding's 

January 10, 2017 CON application because section 737.10 of Am.Sub.H.B. No. 483 violates 

the Uniformity Clause in Article II, Section 26 of the Ohio Constitution. Appellants argue 

section 737.10 was impermissibly tailored to benefit only one particular nursing home 

provider. We are unpersuaded. 

{¶ 45} Legislative enactments are entitled to a strong presumption of 

constitutionality. Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 

¶ 25; Reading v. Pub. Util. Comm., 109 Ohio St.3d 193, 2006-Ohio-2181, ¶ 25. A party only 

rebuts that presumption by establishing beyond a reasonable doubt that the enactment is 

unconstitutional. Dayton v. State, 151 Ohio St.3d 168, 2017-Ohio-6909, ¶ 12; State v. Mole, 

149 Ohio St.3d 215, 2016-Ohio-5124, ¶ 11. Thus, any doubt as to the constitutionality of an 

enactment will be resolved in favor of its validity. State v. Mason, 153 Ohio St.3d 476, 2018-

Ohio-1462, ¶ 5. The constitutionality of an enactment is a question of law, which appellate 

courts review de novo. Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-7760, 

¶ 16; Fowler v. Ohio Dept. of Pub. Safety, 10th Dist. No. 16AP-867, 2017-Ohio-7038, ¶ 7. 

{¶ 46} The one-subject rule of the Ohio Constitution provides that "[n]o bill shall 

contain more than one subject, which shall be clearly expressed in its title." Article II, 

Section 15(D) of the Ohio Constitution. The purpose of this provision is to prevent "logrolling," "the practice by which several matters are consolidated in a single bill for the 
No. 18AP-863 17 

purpose of obtaining passage for proposals which would never achieve a majority if voted 

on separately." Hoover v. Bd. of Cty. Commrs., 19 Ohio St.3d 1, 6 (1985). 

{¶ 47} The one-subject rule is mandatory and may result in the invalidation of 

legislation. In re Nowak, 104 Ohio St.3d 466, 2004-Ohio-6777, ¶ 54. Where a court 

determines that legislation contains more than one subject, it may determine which subject 

is primary and which is an unrelated addition. The court may then sever the unrelated 

provisions and preserve the portions of the bill relating to a single subject. State ex rel. 

Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 500 (1999); State ex rel. 

Hinkle v. Franklin Cty. Bd. of Elections, 62 Ohio St.3d 145, 149 (1991). Because there is a 

strong presumption supporting the constitutionality of a legislative enactment, however, 

only "a manifestly gross and fraudulent violation" of the one-subject rule will cause this 

court to invalidate a legislative enactment. State ex rel. Dix v. Celeste, 11 Ohio St.3d 141, 

142, 145 (1984). 

{¶ 48} Ohio courts must accord "the General Assembly 'great latitude in enacting 

comprehensive legislation by not construing the one-subject provision so as to 

unnecessarily restrict the scope and operation of laws, or to multiply their number 

excessively, or to prevent legislation from embracing in one act all matters properly 

connected with one general subject.' " State ex rel. Ohio Civ. Serv. Emps. Assn. v. State 

Emp. Relations Bd., 104 Ohio St.3d 122, 2004-Ohio-6363, ¶ 27, quoting Dix at 145. Given 

the wide latitude owed to the General Assembly, courts liberally construe the term "subject" 

for purposes of the rule. Ohio Civ. Serv. Emps. Assn. at ¶ 27. Thus, "[t]he mere fact that a 

bill embraces more than one topic is not fatal, as long as a common purpose or relationship 

exists between the topics." Id. at ¶ 28; accord Dix at 146 (holding that "the one-subject 

provision is not directed at plurality but at disunity in subject matter"). There is no violation 

of the one-subject rule if there exists any "practical, rational or legitimate reason for 

combining provisions in one Act." Ohio Civ. Serv. Emps. Assn. at ¶ 28. 

{¶ 49} Appellants argue that section 737.10 of Am.Sub.H.B. No. 483 has no 

discernable rational relationship to the rest of the legislation. We disagree. 

{¶ 50} Am.Sub.H.B. No. 483 contains multiple provisions concerning residential 

care facilities. For example, this legislation directs the Ohio Department of Developmental 

Disabilities ("DODD") to prepare a report evaluating the progress of efforts to relocate the 
No. 18AP-863 18 

residents of closing developmental centers (section 751.20), and it permits intermediate 

care facilities for individuals with intellectual disabilities ("ICF/IID"), in addition to nursing 

home and residential care facilities, to use one or more medical aides to administer 

prescription medications to its residents, subject to certain conditions (section 101.01 

amending R.C. 4723.64). Further, this legislation contains other provisions directly 

affecting ODH. For example, it decreased funding for ODH by approximately $11 million 

(section 289.10); transferred the "part C early intervention services program" from ODH to 

the DODD (section 101.01 amending R.C. 3701.61 and R.C. 5123.02, and section 751.10); 

and amended a statute requiring the director to adopt administrative rules defining and 

classifying hospitals and dispensaries and providing for the reporting of information by 

hospitals and dispensaries (section 101.01 amending R.C. 3701.07). Thus, multiple 

provisions in Am.Sub.H.B. No. 483 address residential care facility issues, and multiple 

provisions in the legislation alter the authority of ODH as to particular healthcare issues. 

The challenged provision, section 737.10, aligns with a common purpose of Am.Sub.H.B. 

No. 483—to make legislative changes concerning facilities that provide institutional care. 

{¶ 51} Because appellants cannot show beyond a reasonable doubt that the General 

Assembly's inclusion of section 737.10 in Am.Sub.H.B. No. 483 violated the single-subject 

rule, we overrule their second assignment of error. 

{¶ 52} We also reject appellants' claim that section 737.10 violates the Uniformity 

Clause of the Ohio Constitution, which provides that "[a]ll laws, of a general nature, shall 

have a uniform operation throughout the state." Article II, Section 26 of the Ohio 

Constitution. The purpose of the Uniformity Clause is "to prohibit the enactment of special

or local legislation." (Emphasis sic.) Austintown Twp. Bd. of Trustees v. Tracy, 76 Ohio 

St.3d 353, 356 (1996). 

{¶ 53} Courts apply a two-part test in determining whether legislation violates the 

Uniformity Clause. First, the court must determine whether the statute is a law of a general 

or a special nature. Desenco, Inc. v. Akron, 84 Ohio St.3d 535, 541 (1999). This part of the 

Uniformity Clause test concerns the subject matter of the legislative enactment, not its 

geographical application. Id. at 542. "A law is general if the subject does or may exist in, 

and affect the people of, every county in the state." Cuyahoga Cty. Veterans Servs. Comm. 
No. 18AP-863 19 

v. State, 159 Ohio App.3d 276, 2004-Ohio-6124, ¶ 17 (10th Dist.), citing Simmons-Harris 

v. Goff, 86 Ohio St.3d 1, 12 (1999). 

{¶ 54} Second, the court must determine whether the statute operates uniformly 

throughout the state. Desenco, Inc. at 541. This means " 'universal operation as to 

territory; it takes in the whole state. And, as to persons and things, it means universal 

operation as to all persons and things in the same condition or category. When a law is 

available in every part of the state as to all persons and things in the same condition or 

category, it is of uniform operation throughout the state.' " Austintown Twp. Bd. of 

Trustees at 356, quoting State ex rel. Wirsch v. Spellmire, 67 Ohio St. 77, 86 (1902). A law 

does not operate uniformly throughout the state when "it seeks to create artificial 

distinctions where no real distinction exists" and is narrowly tailored in its application. 

State ex rel. Stanton v. Powell, 109 Ohio St. 383, 385 (1924); Cuyahoga Cty. Veterans 

Servs. Comm. at ¶ 21. A law is " 'equally valid if it contains provisions which permit it to 

operate upon every locality where certain specified conditions prevail.' " Descenco at 542, 

quoting Stanton at 385. 

{¶ 55} Section 737.10 pertains to the relocation of long-term care beds. A law 

pertaining to this subject matter is considered a law of a general nature as it affects the 

people of every county in the state. Gallipolis Care, L.L.C. v. Ohio Dept. of Health (In re 

Holzer Consol. Health Sys.), 10th Dist. No. 03AP-1020, 2004-Ohio-5533, ¶ 24. Thus, the 

law meets the first part of the Uniformity Clause test. 

{¶ 56} Section 737.10 also satisfies the second part of the Uniformity Clause test. 

Appellants argue this case is indistinguishable from Holzer wherein this court found a 

legislative enactment, section 26 of Am.Sub.S.B. No. 261, to violate the Uniformity Clause. 

We disagree. In Holzer, the legislation at issue provided that "[n]otwithstanding section 

3702.68 of the Revised Code [which provided for a statewide moratorium on relocating 

nursing home beds across county lines], the Director of Health may accept for review under 

section 3702.52 of the Revised Code an application for a certificate of need approving the 

relocation of up to twenty-four existing nursing home beds in Jackson County to Gallia 

County." Section 26 of Am.Sub.S.B. No. 261. This court resolved that " 'an application' in 

[section 26 of Am.Sub.S.B. No. 261] is synonymous with one application, the specific 

application made by Holzer seeking to relocate home beds from Jackson to Gallia County." 
No. 18AP-863 20 

Holzer at ¶ 27. Thus, this court found that the statute at issue "did not operate in a uniform 

manner throughout the state because it did not have the potential to apply to any county in 

the state or any other nursing home operators other than the nursing home that was 

applying for the relocation of beds." Cuyahoga Cty. Veterans Servs. Comm. at ¶ 20, citing 

Holzer. 

{¶ 57} The law at issue here is not the type of "narrowly tailored" and geographically 

limited legislation that was invalidated in Holzer. By its terms, section 737.10 applies to 

any county home or county nursing home that had certified beds under R.C. 5155.38 and 

had operated on or before October 1, 2015. While section 737.10 refers to the director 

accepting "a certificate of need application" (emphasis added) that meets all delineated 

requirements, this does not reflect an intent for the section only to apply to one particular 

circumstance as was found in Holzer. According to appellants, no county home or county 

nursing home in Ohio other than Golden Acres could have satisfied section 737.10's 

requirements. They make this assertion based on the testimony of Glass, an in-house 

attorney for ODH, who testified that he was not aware of any other county home that had 

closed after May 2016. But Glass's testimony did not establish that no other county home 

or county nursing home in Ohio could have satisfied section 737.10's requirements. His 

statement did not address the existence of county homes or county nursing homes in Ohio 

that closed before May 2016 and had certified beds under R.C. 5155.38. Thus, Glass's 

testimony did not demonstrate that Golden Acres was the only former county home or 

county nursing home from which an applicant could have sought to relocate long-term care 

beds during the specified application period. And the language of section 737.10 is not 

limited to permitting the relocation of beds within Lorain County. 

{¶ 58} For these reasons, we reject appellants' argument that section 737.10 of 

Am.Sub.H.B. No. 483 violates the Uniformity Clause of the Ohio Constitution. Accordingly, 

we overrule appellants' third assignment of error. 

 C. Avon Realty Holding's Cross-Assignments of Error 

{¶ 59} In Avon Realty Holding's first cross-assignment of error, it argues the hearing 

examiner's findings of fact and conclusions of law, which were adopted by the director, fail 

to recognize that Golden Acres was open and operating when it filed its January 10, 2017 

CON application. Avon Realty Holding reasons that because Golden Acres was open and 
No. 18AP-863 21 

operating at that time it met the requirements of Ohio Adm.Code 3701-12-23.2(E) and R.C. 

3702.51(J) to demonstrate it was an "existing long-term care facility" at the time of the 

application. 

{¶ 60} According to Avon Realty Holding, the enactment of Am.Sub.H.B. No. 483 

was inconsequential to its January 10, 2017 CON application meeting the applicable 

requirements. In support of this contention, Avon Realty Holding cites a Lorain County 

prosecutor's testimony that Golden Acres "reopened on June 14, 2016." (Tr. Vol. IV at 434.) 

However, even though there was testimony that Golden Acres "reopened on June 14th, 

2016," the prosecutor also testified that Golden Acres did not provide nursing home 

services to anyone after October 30, 2015. It is uncontroverted that Golden Acres was not 

actively providing long-term care services at the time of Avon Realty Holding's CON 

application and had not provided long-term care services for at least three hundred sixtyfive consecutive days within the twenty-four months immediately preceding Avon Realty's 

filing of the CON application on January 10, 2017. Thus, at that time, Golden Acres was 

not an "existing long-term care facility." 

{¶ 61} Accordingly, we overrule Avon Realty Holding's first cross-assignment of 

error. 

{¶ 62} Avon Realty Holding's second cross-assignment of error alleges the ODH 

hearing examiner erroneously granted appellants' motion to quash its subpoena request for 

appellants' financial documents. Avon Realty Holding asserts that obtaining this 

information was essential for it to refute appellants' contention that the proposed project 

will adversely financially impact them. Avon Realty Holding further asserts that, if this 

court modifies or remands this matter to the director, appellants should be ordered to 

comply with Avon Realty Holding's subpoenas regarding appellants' financial documents. 

This cross-assignment of error is moot because we have determined the director did not err 

in granting Avon Realty Holding's January 10, 2017 CON application and therefore will 

affirm the director's adjudication order. 

{¶ 63} Avon Realty Holding's third cross-assignment of error alleges the ODH 

hearing examiner improperly used the term "special legislation" in reference to 

Am.Sub.H.B. No. 483. Avon Realty Holding contends that the hearing examiner's use of 
No. 18AP-863 22 

this term implied that it was enacted solely to enable the relocation of long-term care beds 

from Golden Acres to the proposed Avon Skilled Nursing and Rehabilitation facility. 

{¶ 64} In granting Avon Realty Holding's January 10, 2017 CON application, the 

director adopted the hearing examiner's findings of fact, conclusions of law, and 

recommendation that the director grant Avon Realty Holding's CON application. The 

hearing examiner's findings of fact, conclusions of law, and recommendation contain no 

reference to Am.Sub.H.B. No. 483 constituting "special legislation." Furthermore, we 

reject Avon Realty Holding's assertion that the hearing examiner's use of the term "special 

legislation" reflected a finding as to the legislation's constitutionality. The hearing 

examiner correctly, expressly, and repeatedly, noted it was not within the executive 

branch's authority to consider and rule on the constitutionality of the legislation. And even 

if the hearing examiner had expressed a position as to the legislation's constitutionality, we 

would give it no deference in our review of that issue. Because the hearing examiner's use 

of the term "special legislation" is inconsequential, we overrule Avon Realty Holding's third 

cross-assignment of error. 

IV. Disposition 

{¶ 65} Appellants' four assignments of error are overruled. Cross-appellant's first 

and third assignments of error are overruled, and its second assignment of error is moot. 

We affirm the adjudication order of the Director of the Ohio Department of Health. 

Order affirmed. 

BROWN and BRUNNER, JJ., concur.