[Cite as Copley v. Ohio Dept. of Health , 2010-Ohio-5416.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

PHYLLIS A. COPLEY, : 

 : 

Plaintiff-Appellant, : Case No. 09CA31 

 : 

vs. : Released: November 3, 2010

: 

OHIO DEPARTMENT OF : DECISION AND JUDGMENT

HEALTH, : ENTRY

 : 

Defendant-Appellee. : 

_____________________________________________________________ 

APPEARANCES:

Richard F. Bentley, Wolfe & Bentley, LLP, Ironton, Ohio, for Appellant. 

Richard Cordray, Ohio Attorney General, and Lisa M. Eschbacher, Senior 

Assistant Ohio Attorney General, Health and Human Services Section, 

Columbus, Ohio, for Appellee. 

_____________________________________________________________ 

Per Curiam: 

{¶1} Appellant, Phyllis A. Copley, owner of an adult care facility 

known as Home Sweet Home 2, appeals decision of the Lawrence County 

Court of Common Pleas revoking and not renewing the license of Home 

Sweet Home 2 pursuant to R.C. 3722.05, after multiple violations were 

identified. On appeal, Appellant contends that 1) the trial court abused its 

discretion in finding there is sufficient reliable, probative and substantial 

evidence to support upholding revocation and non-renewal of Appellant’s 
Lawrence 09CA31 2

license; 2) Appellee failed to comply with all administrative regulations in 

conducting inspections and revocation and non-renewal of Appellant’s 

license; 3) Appellee failed to comply with OAC 3701-20-05(H)(2) and R.C. 

3722.06; and 4) Appellee failed to comply with OAC 3701-20-08 to give 

notice of violation and provide the facility an opportunity to correct. 

{¶2} In our view, the trial court’s decision was supported by reliable, 

probative and substantial evidence, and was in accordance with the law, we 

find the trial court did not abuse its discretion in affirming the director of the 

Ohio Department of Health’s decision. As such, Appellant’s first 

assignment of error is overruled. Further, because OAC 3701-20-05(H)(1), 

OAC 3701-20-08(A), and R.C. 3722.06 all permit the director of the 

Department of Health to revoke an adult care facility license upon 

identifying violations that jeopardize the health and safety of any of the 

residents, which finding was present herein, we cannot conclude that the trial 

court erred or abused its discretion in affirming the revocation and nonrenewal of Appellant’s license. Thus, Appellant’s second, third and fourth 

assignments of error are overruled. 

{¶3} Accordingly, the decision of the trial court is affirmed. 
Lawrence 09CA31 3

FACTS 

{¶4} Appellant, Phyllis Copley, is the owner/operator of an adult care 

facility known as Home Sweet Home 2, (hereinafter HSH 2), located in 

Chesapeake, Ohio. In order to operate the facility, Appellant obtained a 

license from the Ohio Department of Health, (hereinafter ODH), which 

permitted her to house three to five residents in the facility. The record 

indicates that an ODH surveyor, Pam Gaston1

, came to HSH 2 on November 

3, 2008, to conduct a “Bureau of Regulatory Compliance Pre-Hearing 

Inspection,” which was a follow-up visit to an annual inspection that had 

previously been conducted. As a result of the follow-up survey, the 

surveyor issued a report alleging twenty-two rule violations. 

{¶5} On December 2, 2008, the director of ODH sent a letter to 

Appellant notifying her that ODH was proposing to revoke and not renew 

her adult care facility license, based upon the violations identified during the 

survey, which ODH stated “jeopardized the health and safety of the 

residents” at the facility. As a result, Appellant requested a hearing on the 

proposed action, which was held on April 17, 2009. Pam Gaston, registered 

nurse and ODH surveyor, testified on behalf of ODH as to the rule violations 

 

1

 Pam Gaston testified that she had been a registered nurse for 28 years and had been working as a surveyor 

with ODH for 4 years at the time of the survey. She further testified that she had been to the facility on 

prior occasions to conduct surveys. 
Lawrence 09CA31 4

and deficiencies noted during the November 3, 2008, survey. Appellant also 

testified at the hearing, along with two employees of HSH 2. 

 {¶6} After hearing evidence presented by both parties, on June 1, 

2009, the hearing examiner issued a forty-five (45) page report and 

recommendation to ODH upholding the surveyor’s findings on all twentytwo alleged violations, and stating that the violations “were violations that 

jeopardized the health and safety of residents at this facility.” Further, the 

hearing examiner’s recommendation was as follows: 

“Based on the Findings of Fact and Conclusions of Law presented in this 

report, the hearing examiner recommends to the Director of the Ohio 

Department of Health that the Director’s proposed actions, to revoke the 

adult care facility license held by Home Sweet Home 2, and to not renew the 

adult care facility license of Home Sweet Home 2, be affirmed, under Ohio 

Revised Code section 3722.05(A)(1).” 

{¶7} Although Appellant filed objections to the report and 

recommendation of the hearing examiner, on June 17, 2009, the director of 

ODH issued an adjudication order revoking and not renewing Appellant’s 

adult care facility license. In support of its decision, the director adopted the 

report and recommendation of the hearing examiner, noting the examiner’s 

finding that “[t]he violations have been substantiated by a preponderance of 

the evidence and are sufficiently egregious and of sufficient duration to 

support the Director’s proposed actions to revoke and not renew Home 

Sweet Home 2’s adult care facility license.” 
Lawrence 09CA31 5

{¶8} Thereafter, Appellant appealed the decision to the Lawrence 

County Court of Common Pleas. On May 20, 2009, the trial court found 

that 

“[m]any of the citations issued during the on-site inspection this court would 

find superfluous and not warrant the action as taken by the Ohio Department 

of Health. However, this court does find certain citations are supported by 

reliable, probative, and substantive evidence which would support the 

revocation and/or nonrenewal of the license as issued to Home Sweet Home 

2.” 

Of importance, the trial court upheld the following violations: 1) violation 1 

(exceeding the number of allowed residents; 2) violation 2 (failing to 

provide proof of liability insurance); 3) violation 4 (failing to insure nonambulatory individuals reside on the ground floor); 4) violations 12 and 13 

(failing to maintain prescription medications in a locked storage and 

repackaging of medication); 5) violation 20 (requirement that all bedroom 

locks are capable of being opened from the inside without using a key). 

{¶9} It is from this final, appealable order that Appellant now brings 

her timely appeal, assigning the following errors for our review. 

ASSIGNMENTS OF ERROR 

I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING 

THERE IS SUFFICIENT RELIABLE, PROBATIVE AND 

SUBSTANTIAL EVIDENCE TO SUPPORT UPHOLDING 

REVOCATION AND NON-RENEWAL OF APPELLANT’S 

LICENSE. 
Lawrence 09CA31 6

II. APPELLEE FAILED TO COMPLY WITH ALL 

ADMINISTRATIVE REGULATIONS IN CONDUCTING 

INSPECTIONS AND REVOCATION AND NON-RENEWAL OF 

APPELLANT’S LICENSE. 

III. APPELLEE FAILED TO COMPLY WITH OAC §3701-20-05(H)(2) 

AND ORC §3722.06. 

IV. APPELLEE FAILED TO COMPLY WITH OAC §3701-20-08 TO 

GIVE NOTICE OF VIOLATION AND PROVIDE THE FACILITY 

AN OPPORTUNITY TO CORRECT. 

STANDARD OF REVIEW 

{¶10} “R.C. 119.12 sets forth a specific standard of review for 

administrative appeals; namely, a court of common pleas must affirm the 

decision of an administrative agency when that decision is supported by 

reliable, probative, and substantial evidence and is in accordance with the 

law.” Ruckstuhl v. Ohio Dept. of Commerce, Geauga App. No. 2008-G2873, 2009-Ohio-3146, at ¶ 19 (citation omitted); see, also Just Like Home 2 

v. Ohio Dept. of Health, Trumbull App. No. No. 2010-T-0007, 2010-Ohio3358, ¶ 17. 

{¶11} “The evidence required by R.C. 119.12 can be defined as 

follows: (1) ‘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. (2) ‘Probative’ evidence is evidence that tends to prove the 
Lawrence 09CA31 7

issue in question; it must be relevant in determining the issue. (3) 

‘Substantial’ evidence is evidence with some weight; it must have 

importance and value.” Our Place, Inc. v. Ohio Liquor Control Comm.

(1992), 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (footnotes omitted); Just 

Like Home 2 v. Ohio Dept. of Health at ¶ 18. 

{¶12} “We review the court of common pleas decision for an abuse of 

discretion. * * * Where issues of law are involved, however, ‘we exercise a 

plenary power of review.’ * * * ‘That is, issues of law require an 

“independent determination of the law to be applied to the facts found by the 

agency and held by the common pleas court to be supported by reliable, 

probative and substantial evidence.” ‘ “ Ruckstuhl at ¶ 22 (citations omitted). 

{¶13} “Appellate review is limited to determining whether the trial 

court abused its discretion in finding the board's decision was supported by 

reliable, probative and substantial evidence.” Id. at ¶ 51 (citation omitted). 

Furthermore, “[u]nder this standard of review, we cannot reverse the 

common pleas court's decision if it contains a mere error in judgment; 

instead, a reversal can only occur when the lower court's ruling was based 

upon a ‘perversity of will, passion, prejudice, partiality, or moral 

delinquency.’ “ Id., quoting Chlysta v. Ohio State Dental Bd., 174 Ohio 

App.3d 465, 2007-Ohio-7112, 882 N.E.2d 935, at ¶ 27 (citation omitted). 
Lawrence 09CA31 8

{¶14} These requirements are based on the “long-accepted principle 

that considerable deference should be accorded to an agency's interpretation 

of rules the agency is required to administer.” State ex rel. Celebrezze v. 

Natl. Lime & Stone Co., 68 Ohio St.3d 377, 382, 1994-Ohio-486, 627 

N.E.2d 538; see, also Just Like Home 2 v. Ohio Dept. of Health at ¶ 22. 

ASSIGNMENT OF ERROR I 

{¶15} In her first assignment of error, Appellant contends that the trial 

court abused its discretion in finding there is sufficient reliable, probative 

and substantial evidence to support upholding revocation and non-renewal of 

Appellant’s license. In this assignment of error, Appellant challenges the 

trial court’s findings with respect to the six violations that were upheld. 

Bearing in mind the above standard of review, we will consider each 

violation upheld by the trial court. 

Violation 1: (exceeding the number of allowed residents) 

{¶16} This violation was identified by the surveyor as being in 

violation of OAC 3701-20-02(B) “General prohibitions” which provides that 

“[n]o person shall admit to an adult care facility more residents than the 

number authorized by the facility’s license.” Appellant possessed a license 

for an adult family home, which R.C. 3722.01(A)(7) defines as “a residence 

or facility that provides accommodations and supervision to three to five 
Lawrence 09CA31 9

unrelated adults, at least three of whom require personal care services.” On 

appeal, Appellant challenges this violation and also argues that the surveyor 

based this violation on the hearsay statements of resident #5, who did not 

testify at the hearing 

{¶17} With respect to this violation, surveyor Gaston testified that 

while she initially counted only five residents in the facility, resident #5 told 

her that a sixth resident had been sleeping at the facility on Friday and 

Saturday nights. Surveyor Gaston testified that she confirmed this fact with 

Appellant, who admitted a sixth resident had been staying on weekends. 

Surveyor Gaston testified that she also observed an extra bed in bedroom #4 

where resident #5 resides. Appellant, however, testified that there are only 

five residents at the facility and that at the time of the survey, the additional 

person visited during the day on weekends, but did not spend the night. She 

further testified that she was simply storing the extra bed in the facility. She 

denied admitting to surveyor Gaston that the other person stayed the night 

on weekends. 

{¶18} As stated by the hearing examiner who conducted the hearing: 

“Some of the deficiencies cited in the survey were met with denials by Ms. 

Copley, such as Resident #6 sharing Resident #5’s bedroom on Friday and 

Saturday night * * *. The hearing examiner finds a preponderance of the 

evidence indicating that from July, 2008 through November 3, 2008, Home 

Sweet Home 2 on Friday and Saturday nights had six residents residing 

within the facility in violation of Ohio Administrative Code rule 3701-20-
Lawrence 09CA31 10

02(B) * * *. Ms. Copley’s explanation of an unused, surplus bed, stored in 

Resident #5’s bedroom, that had sheets, a blanket and a comforter arranged 

on the bed to look like that bed was slept in, is not credible.” 

{¶19} Regarding Appellant’s argument that the reliance upon hearsay 

statements of resident #5 was in error, we note that “the hearsay rule is 

relaxed in administrative proceedings.” Hayes v. State Medical Board of 

Ohio (2000), 138 Ohio App.3d 762, 742 N.E.2d 238 (discretionary appeal to 

the Supreme Court of Ohio was not allowed). Additionally, R.C. 119.09 

“Adjudication hearing” provides that: 

“[t]he agency shall pass upon the admissibility of evidence, but a party may 

at the time make objection to the rulings of the agency thereon, and if the 

agency refuses to admit the evidence, the party offering the same shall make 

a proffer thereof, and such proffer shall be made a part of the record of such 

hearing.” 

A review of the transcript from the evidentiary hearing reveals that 

Appellant failed to object to the testimony relating the hearsay statements of 

resident #5 and in fact, elicited more detailed information regarding resident 

#5 on cross examination. Further, as will be discussed in more detail, infra, 

Appellant admitted to certain other violations that alone were sufficient to 

warrant the revocation of her license. 

{¶20} Thus, based upon the above testimony presented at the hearing 

coupled with the hearing examiner’s careful consideration and rejection of 

Appellant’s testimony, we cannot conclude that the trial court abused its 
Lawrence 09CA31 11

discretion in determining that ODH’s decision regarding violation 1 was 

supported by reliable, probative and substantial evidence. 

Violation 2: (failing to provide proof of liability insurance) 

{¶21} This violation was identified by the surveyor as being in 

violation of OAC 3701-20-03(B)(3) “License application and renewal 

procedures” which provides that 

“[a] person seeking a license to operate an adult care facility shall submit to 

the director an application, on a form prescribed and provided by the 

director, which shall include the following items: * * * Proof of liability 

insurance in an amount not less than one hundred thousand dollars. * * *.” 

Appellant concedes this violation but contends that because she cured this 

violation prior to the appeal to the trial court that the trial court abused its 

discretion in upholding the violation. ODH points out that not only did 

Appellant concede this violation during the survey, she had still failed to 

obtain insurance at the time of the hearing. 

{¶22} As stated by the hearing examiner in his report, “[t]here is no 

dispute that Home Sweet Home 2 does not possess proof of insurance as 

required by Ohio Administrative Code rule 3701-20-03(B)(3) and had never 

held such insurance since its opening in 2004.” Further, as reasoned by the 

director of ODH in his adjudication order: 

“several of the Objections state that violations are now ‘cured’ because of 

changes that have been made in the facility. Such changes, however, do not 

alter the fact that violations existed at the time of the survey. As an 
Lawrence 09CA31 12

example, the Objections state that the owner now has liability insurance. 

However, the owner did not have insurance at the time of the November, 

2008, survey and is submitting it in June, 2009, for the first time.” 

{¶23} Thus, in light of the foregoing testimony and Appellant’s 

concession that she was not in compliance with this rule at the time of the 

survey or the hearing, we cannot conclude that the trial court abused its 

discretion in determining that ODH’s decision regarding violation 2 was 

supported by reliable, probative and substantial evidence. 

Violation 4: (failing to insure non-ambulatory individuals reside 

on the ground floor) 

{¶24} This violation was identified by the surveyor as being in 

violation of OAC 3701-20-10(C)(6)2

 “Fire protection standards for adult 

family homes” which provides that “[e]ach adult family home shall comply 

with the following fire protection standards: * * * (6) Each home shall 

locate non-ambulatory individuals’ bedrooms on a floor that exits to ground 

level. * * *.” Surveyor Gaston testified that on the day of the survey she 

found resident #2, who after observation she determined to be nonambulatory, in bedroom #3 on the second floor. Further, although Appellant 

initially denied that resident #2 was on the second floor, on cross-

 

2

 The record indicates that the surveyor mistakenly labeled this a violation of OAC 3701-20-10(C)(5), 

which was an error and should have stated (C)(6). 
Lawrence 09CA31 13

examination she admitted that resident #2 lived on the second floor of the 

facility. 

{¶25} As locating a non-ambulatory patient on the second floor 

clearly jeopardized the health and safety of that resident, especially in the 

event of a fire situation, we cannot conclude that the trial court abused its 

discretion in determining that ODH’s decision regarding violation 4 was 

supported by reliable, probative and substantial evidence. The fact that 

Appellant remedied that situation by moving the resident after the survey is 

irrelevant as such precautions should have been taken in the first instance. 

Violations 12 and 13: (failing to maintain prescription 

medications in locked storage and repackaging of medications) 

 {¶26} These violations were identified by the surveyor as being in 

violation of OAC 3701-20-17(G)(1) and (2) “Personal care services; resident 

medications; home health care” which provide as follows, respectively: 

“(G) In addition to the requirements of paragraph (C) of this rule, ACFs 

shall handle residents’ medications in accordance with this paragraph. 

(1) The facility shall ensure that residents’ prescription medications are 

kept in locked storage areas, except that medications requiring refrigeration 

shall be refrigerated. All prescribed medications shall be clearly labeled 

with the resident’s name, the name and strength of the medication and the 

prescription number, if any, the date dispensed, the name of the physician, 

and the instructions for use. 

(2) The facility shall not remove and repackage medication from the 

pharmacy-dispensed container.” 
Lawrence 09CA31 14

{¶27} At the hearing, surveyor Gaston testified with regard to the 

locked storage requirement that Appellant’ practice consisted of utilizing 

color coded medication sets for each resident, whereby each resident had a 

large med set that was kept locked and was properly labeled. However, 

within the larger med sets there were smaller med sets, that although were 

color coded, were not individually labeled. Also, resident #5’s individual 

med sets were delivered to his room for self- administration, where they 

were not kept in any kind of locked storage and were accessible to anyone 

else who may have entered the room. Appellant did not deny these facts, but 

instead testified that she was unaware her practice and procedure violated 

the rules. Bearing in mind the importance of preventing medication 

administration errors and controlling access to medication, and in light of 

Appellant’s outright admission to this rule violation, we cannot conclude 

that the trial court abused its discretion in determining that ODH’s decision 

regarding violation 12 was supported by reliable, probative and substantial 

evidence. 

{¶28} Further, with respect to violation 13, repackaging of 

medications, surveyor Gaston testified that, based upon interviews of 

Appellant, another staff member and one resident, Appellant was 
Lawrence 09CA31 15

repackaging3 medications at the facility. Although Appellant denied 

repackaging of the medications when she testified at the hearing, surveyor 

Gaston testified that during the survey Appellant had admitted she 

repackaged the medications, and that there was no evidence that the 

resident’s family members did the repackaging, which would have been 

permissible. 

{¶29} Based upon surveyor Gaston’s hearing testimony, we cannot 

conclude that the trial court abused its discretion in determining that ODH’s 

decision regarding violation 13 was supported by reliable, probative and 

substantial evidence. 

Violation 20: (requirement that all bedroom locks are capable of 

being opened from the inside without using a key) 

{¶30} This violation was identified by the surveyor as being in 

violation of OAC 3701-20-22(I)(12)(a) “Space, equipment, safety, and 

sanitation” which provides as follows: 

“I. Each facility shall meet the following safety and maintenance 

requirements: 

* * * 

(12) Any locks on bedroom doors shall meet both of the following 

requirements: 

 

3

 At this particular facility the “repackaging” essentially consisted of Appellant taking the prescription 

medications out of the pharmacy dispensed containers and filling the residents’ daily and/or weekly med 

sets. 
Lawrence 09CA31 16

(a) All locks to residents’ bedroom doors shall be capable of being 

opened from the inside without the use of a key, such as by pushing a panic 

bar, releasing a deadbolt, or using similar means. The locks also shall be 

capable of being opened by a key from the outside. * * *.” 

{¶31} Surveyor Gaston testified that during the survey, she found that 

the door lock on bedroom #1 would not release from the inside. On cross 

examination, Appellant admitted that this surveyor had made her aware of a 

problem with that particular door lock during a previous survey as well, but 

that she had forgotten to replace it. Appellant also testified that she had 

replaced the lock since the last survey. On appeal, ODH contends that 

Appellant had been in violation of this rule for over two years and the fact 

that this violation has been cured is irrelevant and does not alter the fact that 

the violation existed at the time of the survey. 

{¶32} The trial court apparently agreed with ODH, as do we. As 

such, we cannot conclude that the trial court abused its discretion in 

determining that ODH’s decision regarding violation 20 was supported by 

reliable, probative and substantial evidence. 

{¶33} Accordingly, because we have concluded, based upon our 

review of the record, that ODH’s revocation of Appellant’s license was 

supported by reliable, probative and substantial evidence, we cannot 

conclude that the trial court abused its discretion in upholding ODH’s 
Lawrence 09CA31 17

findings with respect to violations, 1, 2, 4, 12, 13 and 20. Thus, Appellant 

first assignment of error is overruled in its entirety. 

ASSIGNMENT OF ERROR II 

{¶34} In her second assignment of error, Appellant contends that 

Appellee failed to comply with all administrative regulations in conducting 

inspections and revocation and non-renewal of Appellant’s license. 

Specifically, Appellant argues that because she had cured most of the 

violations at the time of the hearing, with the exception of the liability 

insurance requirement, ODH should have considered a lesser penalty before 

it revoked her facility license. Appellant further argues that the trial court 

abused its discretion in not finding that OAC 3701-20-05(H)(2) required 

ODH to give her an opportunity to correct the violations before revoking her 

license. 

{¶35} OAC 3701-20-05(H)(1)-(5) “Issuance, renewal and denial of 

licenses” provides as follows: 

“(H) If any adult care facility fails to comply with any requirement of 

Chapter 3722. of the Revised Code or with any rule of this chapter or 

Chapter 3701-13 of the Administrative Code, the director may do any one or 

all of the following: 

(1) In accordance with Chapter 119. of the Revised Code, deny, revoke, or 

refuse to renew the license of the facility; 

(2) Give the facility an opportunity to correct the violation, in accordance 

with section 3722.06 of the Revised Code; 
Lawrence 09CA31 18

(3) Issue an order suspending the admission of residents to the facility, in 

accordance with section 3722.07 of the Revised Code; 

(4) Impose a civil penalty in accordance with section 3722.08 of the Revised 

Code; or 

(5) Petition the court of common pleas for injunctive relief in accordance 

with section 3722.09 of the Revised Code.” (Emphasis added). 

{¶36} According to the plain language of the statute, the director of 

ODH had authority to revoke Appellant’s license based upon the identified 

rule violations. See, also Harris Group Home v. Ohio Dept. of Health, 

Summit App. No. 21033, 2002-Ohio-5034 (noting that R.C. 3722.05 also 

“provides that the director of health may deny, revoke, or refuse to renew the 

license of an adult care facility if the facility fails to comply with any 

requirement of R.C. Chapter 3722 or any rule adopted under that Chapter.”). 

There is no mandatory requirement that Appellant be given an opportunity to 

correct the violations before having her license revoked. Importantly, the 

specific code section relied upon by Appellant in support of her argument, 

OAC 3701-20-05(H)(2) references R.C. 3722.06, which contains an 

important exception, providing, in pertinent part, as follows: 

“except in cases of violations that jeopardize the health and safety of any of 

the residents, if the director determines that a licensed adult care facility is in 

violation of this chapter or of rules adopted pursuant to this chapter, the 

director shall give the facility an opportunity to correct the violation.” 

(Emphasis added). 
Lawrence 09CA31 19

 {¶37} As previously mentioned, the director of ODH specifically 

determined that the violations found at Appellant’s adult care facility 

jeopardized the health and safety of the residents. By making this argument, 

Appellant implicitly argues that the violations upheld by the trial court must 

not have jeopardized the health and safety of the residents. However, we 

find that violations relating to medication storage, labeling and 

administration, failing to locate non-ambulatory residents on the ground 

level and failing to ensure residents can release their door lock from the 

inside of their room, all directly jeopardized the health and safety of the 

residents. 

{¶38} Thus, we cannot conclude that Appellee, ODH, failed to 

comply with administrative regulations in revoking Appellant’s adult care 

facility license, rather than allowing her an opportunity to correct the 

violations first. It is important to note that several of these violations, 

specifically the door lock problem and the medication labeling problem had 

been identified in prior surveys but had failed to be corrected when given the 

opportunity to do so. Accordingly, Appellant’s second assignment of error 

is overruled. 
Lawrence 09CA31 20

ASSIGNMENT OF ERROR III 

{¶39} In her third assignment of error, Appellant contends that 

Appellee failed to comply with OAC 3701-20-05(H)(2) and R.C. 3722.06. 

As set forth above, we have already determined that ODH did not fail to 

comply with OAC 3701-20-05(H)(2) and R.C. 3722.06 in revoking 

Appellant’s adult care facility license. Thus, for the same reasons already 

discussed under Appellant’s first and second assignments of error, 

Appellant’s third assignment is overruled. 

ASSIGNMENT OF ERROR IV 

{¶40} In her fourth assignment of error, Appellant contends that 

Appellee failed to comply with OAC 3701-20-08 to give notice of violation 

and provide the facility an opportunity to correct. OAC 3701-20-08 

provides in pertinent part as follows: 

“(A) * * * except in cases of violations that jeopardize the health and 

safety of any of the residents, if the director determines that a licensed 

facility is in violation of Chapter 3722. of the Revised Code, Chapter 3701-

13 of the Administrative Code, or this chapter, he or she shall give the 

facility an opportunity to correct the violation.” (Emphasis added). 

The language contained in this rule mirrors the language contained in R.C. 

3722.06, which we have already determined to contain an exception for 

situations where residents’ health and safety are in jeopardy as a result of 

rule violations. Thus, for the same reasons expressed in our analysis of 
Lawrence 09CA31 21

Appellant’s first, second and third assignments of error, Appellant’s fourth 

assignment of error overruled. 

JUDGMENT AFFIRMED. 
Lawrence 09CA31 22

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of Appellant costs herein taxed. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Lawrence County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

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

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

McFarland, P.J., Harsha, J. and Abele, J.: Concur in Judgment and Opinion. 

 

 For the Court, 

 

BY: _________________________ 

 Matthew W. McFarland 

 Presiding Judge 

BY: _________________________ 

 William H. Harsha, Judge 

BY: _________________________ 

 Peter B. Abele, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.