COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59755 STANLEY GORLITSKY, DVM, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : OHIO VETERINARY MEDICAL BOARD : OPINION : : DEFENDANT-APPELLEE DANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 165,653. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: David H. Davies, Esq. Interstate Square, Bldg. I 4230 State Rte. 306 Willoughby, OH 44094 For Defendant-Appellee: Cheryl D. Minsterman, Esq. 30 East Broad Street Columbus, OH 43266 -2- MATIA, C.J.: Plaintiff-appellant, Stanley Gorlitsky, D.V.M., appeals from the judgment of the Cuyahoga County Court of Common Pleas which modified the decision of the defendant-appellee Ohio Veterinary Medical Board, to suspend the appellant's license to practice veterinary medicine in the state of Ohio. The appellant's appeal is not well taken. I. THE FACTS A. ALLEGATIONS OF APPELLANT'S IMPROPER TREATMENT OF ANIMALS Between the months of December, 1987 to April, 1988, the appellee-Ohio Veterinary Medical Board received four separate complaints concerning the appellant's alleged improper care and treatment of one dog and five cats. Upon investigation, the appellee-Ohio Veterinary Medical Board determined that the appellant may have violated R.C. 4741.22, providing for revocation or suspension of license, as a result of unsanitary facilities and the employment of unregistered animal technicians. B. NOTICE OF IMPROPER TREATMENT SENT TO APPELLANT On August 16, 1988, the appellee-Ohio Veterinary Medical Board mailed a notice of the pending violations to the appellant which provided the appellant with the opportunity to request an oral hearing. Pursuant to the notice, the appellant did request a hearing before the appellee-Ohio Veterinary Medical Board. -3- C. HEARING HELD BEFORE APPELLEE-OHIO VETERINARY MEDICAL BOARD On November 9, 1988, a hearing was conducted before the appellee-Ohio Veterinary Medical Board with regard to the charged violations of improper care and treatment of animals and the employment of unregistered animal technicians. D. APPELLANT FOUND TO HAVE PROVIDED IMPROPER TREATMENT TO ANIMALS On February 17, 1989, the appellee-Ohio Veterinary Medical Board determined that sufficient evidence was adduced at the oral hearing to support a violation of R.C. Chapter 4741; the Veterinary Practice Act. The appellee-Ohio Veterinary Medical Board specifically found that: 1) the appellant did not employ proper sanitary and hygienic methods in the care and treatment of animals as required by R.C. 4741.22(A); 2) the appellant did not use reasonable care or discrimination in the administration of drugs and also failed to employ acceptable scientific methods in the selection of drugs for the treatment of disease or surgery as required by R.C. 4741.22(A) and O.A.C. 4741- 1-03; 3) the appellant permitted unregistered animal technicians to engage in the treatment and care of animals in violation of R.C. 4741.22(Q); 4) the treatment and care provided by the appellant to Truffaut (dog), Max (cat), Mittens (cat), Topaz (cat) -4- and Misty (cat) constituted "gross incompetence" in violation of R.C. 4741.22(R); and 5) the appellee-Ohio Veterinary Medical Board ordered that the appellant's license to practice veterinary medicine be suspended for a period of two concurrent one year periods of suspension. The appellee-Ohio Veterinary Medical Board, however, suspended eight months of each of the two concurrent one year periods of suspension thus resulting in the effective suspension of the appellant's license to practice veterinary medicine for a period of four months. In addition, the appellant was issued two written reprimands. E. APPELLANT'S APPEAL TO COURT OF COMMON PLEAS On March 1, 1989, the appellant filed a notice of appeal, from the decision of the appellee-Ohio Veterinary Medical Board to suspend the appellant's license, with the Cuyahoga County Court of Common Pleas. On April 20, 1990, the trial court affirmed the decision of the appellee-Ohio Veterinary Medical Board in part and also reversed the decision of the appellee-Ohio Veterinary Medical Board in part. The trial court held that: 1) the appellee-Ohio Veterinary Medical Board failed to provide the appellant with adequate notice concerning the unreasonable administration of drugs to animals and gross incompetency with regard to the care and treatment of two cats named Max and Mittens thus -5- necessitating the dismissal of these found violations; and 2) the appellees finding that the appellant had violated R.C. Chapter 4741 with regard to sanitary conditions, the employment of unlicensed animal technicians and gross incompetency in the treatment of one dog and two cats was supported by reliable, probative and substantial evidence. Thus, the trial court affirmed the order of the appellee- Ohio Veterinary Medical Board which ordered a suspension of the appellant's license to practice veterinary medicine for a period of four months and further ordered an official reprimand. F. APPELLANT'S APPEAL TO COURT OF APPEALS Thereafter, the appellant timely brought the instant appeal from the judgment of the trial court which ultimately suspended the appellant's license to practice veterinary medicine for a period of four months. II. FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: "WHEN THE TRIAL COURT IS PROVIDED WITH A NOTICE OF APPEAL FROM THE ADMINISTRATIVE BOARD'S HEARING SETTING FORTH ELEVEN ASSIGNMENTS OF ERROR, IT IS ERROR FOR THE REVIEWING COURT NOT TO ADDRESS EACH OF THOSE ISSUES IN ITS DECISION REGARDING THE APPEAL." -6- A. ISSUE RAISED: TRIAL COURT FAILED TO ADDRESS EACH "ASSIGNMENT OF ERROR" AS RAISED BY THE APPELLANT The appellant, in his initial assignment of error, argues that the judgment of the trial court which affirmed the decision of the appellee-Ohio Veterinary Medical Board was defective. Specifically, the appellant argues that the trial court failed to address the "eleven reasons or assignments of error" as raised by the appellant through his appeal from the judgment of the appellee-Ohio Veterinary Medical Board. The appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW TO BE APPLIED BY COURT OF COMMON PLEAS IN AN ADMINISTRATIVE APPEAL R.C. 119.12, which defines the standard of review to be applied by the Court of Common Pleas to an appeal from an order of a state agency, provides in pertinent part that: "Within thirty days after receipt of a notice of appeal from an order in any case in which a hearing is required by sections 119.01 to 119.13 of the Revised Code, the agency shall prepare and certify to the court a complete record of the proceedings in the case. Failure of the agency to comply within the time allowed, upon motion, shall cause the court to enter a finding in favor of the party adversely affected. Additional time, however, may be granted by the court, not to exceed thirty days, when it is shown that the agency has made substantial effort to comply. Such record shall be prepared and transcribed and the expense of it shall be taxed as a part of the costs on the appeal. The appellant shall provide security for costs satisfactory to the court of common pleas. Upon demand by any interested party, the agency shall furnish at the cost of the party requesting it a copy of the stenographic report of testimony offered and evidence -7- submitted at any hearing and a copy of the complete record. "Unless otherwise provided by law, in the hearing of the appeal the court is confined to the record as certified to it by the agency. Unless otherwise provided by law, the court may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency. "The court shall conduct a hearing on such appeal and shall give preference to all proceedings under sections 119.01 to 119.13 of the Revised Code, over all other civil cases, irrespective of the position of the proceedings on the calendar of the court. An appeal from an order of the state medical board issued pursuant to division (D) of section 4731.22 of the Revised Code or the chiropractic examining board issued pursuant to section 4734.101 [4734.10.1] of the Revised Code shall be set down for hearing at the earliest possible time and take precedence over all other actions. The hearing in the court of common pleas shall proceed as in the trial of a civil action, and the court shall determine the rights of the parties in accordance with the laws applicable to such action. At such hearing, counsel may be heard on oral argument, briefs may be submitted, and evidence introduced if the court has granted a request for the presentation of additional evidence. "The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, 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 may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. The court shall award compensation for fees in -8- accordance with section 2335.39 of the Revised Code to a prevailing party, other than an agency, in an appeal filed pursuant to this section." (Emphasis added.) C. A TRIAL COURT IS NOT REQUIRED TO ADDRESS INDIVIDUAL ASSIGNMENTS OF ERROR IN THE REVIEW OF AN ADMINISTRATIVE APPEAL Contrary to the argument raised by the appellant, the trial court was not required to address individual assignments of purported error as raised in the appellant's appeal of the order of the appellee-Ohio Veterinary Medical Board. The trial court was required, through the application of R.C. 119.12, to determine whether the order of the appellee-Ohio Veterinary Medical Board was supported by reliable, probative, and substantial evidence and was in accordance of law. The appellant's reliance upon the decisions rendered by the Supreme Court of Ohio in Trauth v. Dunbar (1983), 5 Ohio St. 3d 68 and In re Palmer (1984), 12 Ohio St. 3d 194 are totally misplaced since these particular decisions dealt only with the duty of an appellate court to address each assignment of error that is properly raised by an appellant. Both Trauth v. Dunbar, supra, and In re Palmer, supra, are not applicable to the appeal of an administrative decision to the Court of Common Pleas. It should also be noted that R.C. 119.12 specifically provides that the Rules of Appellate Procedure shall apply only to the appeal of the judgment of the Court of Common Pleas to the Court of Appeals. "The judgment of the court shall be final and conclusive unless reversed, -9- vacated, or modified on appeal. Such appeals may be taken either by the party or the agency, shall proceed as in the case of appeals in civil actions, and shall be pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction, or interpretation of statutes and rules of the agency, and in such appeal the court may also review and determine the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative, and substantial evidence in the entire record. "The court shall certify its judgment to such agency or take such other action necessary to give its judgment effect." (Emphasis added.) D. JUDGMENT OF TRIAL COURT WAS SUPPORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE Finally, a review of the record before this court clearly demonstrates that the judgment of the Court of Common Pleas was supported by a preponderance of reliable, probative and substantial evidence. Thus, the Court of Common Pleas did not abuse its discretion in affirming decision of the appellee-Ohio Veterinary Medical Board. The appellant's first assignment of error is not well taken. III. THE SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: "THE PROSECUTION OF THE ALLEGATIONS AGAINST THE APPELLANT BY THE SAME ASSISTANT STATE'S ATTORNEY GENERAL WHO ALSO ADVISES AND REPRESENTS THE OHIO VETERINARY MEDICAL BOARD ON OTHER MATTERS DENIED THE APPELLANT HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AS -10- GUARANTEED UNDER THE OHIO AND UNITED STATES CONSTITUTION." A. ISSUE RAISED: APPELLANT DENIED DUE PROCESS OF LAW The appellant, in his second assignment of error, argues that he was denied due process of law as a result of the conduct of the Ohio State Attorney General's Office. Specifically, the appellant argues that he was denied a fair and impartial hearing as a result of the dual representation of the Ohio State Attorney General's Office in the capacity as both prosecutor and legal advisor to the appellee-Ohio Veterinary Medical Board. The appellant's second assignment of error is not well taken. B. APPELLANT HAS WAIVED CONSTITUTIONAL ARGUMENT A review of the record in the case sub judice reveals that the appellant has waived his right to appeal the constitutionality of the alleged dual representation as provided by the Ohio State Attorney General's Office. Initially, the Supreme Court of Ohio has established that the failure to raise the issue of the constitutionality of a statute or its application constitutes a waiver of such a claim upon appeal. "Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." State v. Awan (1986), 22 Ohio St. 3d 120, syllabus. -11- Although the appellant did initially challenge the dual representation of the Ohio State Attorney General's Office vis- a-vis the administrative hearing held before the appellee-Ohio Veterinary Medical Board, further review of the record demonstrates that the appellant effectively waived his claim of a denial of due process. By agreement of the parties, the briefs as filed by the appellant and the appellee with the Court of Common Pleas were used as a substitute for oral argument. The appellant's brief, however, failed to include any argument relating to the unconstitutionality of the dual representation as provided by the Ohio State Attorney General's Office. This waiver thus prevents this court from presently reviewing the appellant's claim of a denial of due process. State, ex rel. Specht v. Bd. of Edn. (1981), 66 Ohio St. 2d 28; State v. Childs (1968), 14 Ohio St. 2d 56; Clarington v. Althan (1930), 122 Ohio St. 608. C. APPELLANT HAS FAILED TO DEMONSTRATE DENIAL OF DUE PROCESS In addition, the appellant has failed to demonstrate to this court that the dual representation as provided by the Ohio State Attorney General's Office resulted in a denial of due process and was unconstitutional. See, Cleveland v. Huff (1984), 14 Ohio App. 3d 207. Thus, the appellant's second assignment of error is not well taken and the judgment of the trial court is affirmed. Judgment affirmed. -12- It is ordered that appellee recover of appellants its 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATTON, J. and KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .