COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68864 DAVID W. MAYS, D.D.S. : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION OHIO STATE DENTAL BOARD : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 16, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 281953 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Robert O. Garnett, Esq. Betty D. Montgomery, Esq. Robert O. Garnett Co., L.P.A. Attorney General 20475 Farnsleigh Road Sallie J. DeBolt, Esq. Suite 306 Asst. Attorney General Shaker Hts., Ohio 44122 Julia M. Graver, Esq. Asst. Attorney General Health & Human Services Sec. 30 East Broad St., 26th Floor Columbus, Ohio 43215-3428 -2- HARPER, J.: Appellant, David W. Mays, D.D.S. ("appellant"), appeals from the order of the common pleas court dismissing his administrative appeal from the Ohio State Dental Board ("the Board") which revoked appellant's dental license. The Cuyahoga County Court of Common Pleas dismissed appellant's appeal on the ground that the court lacked subject matter jurisdiction to hear appellant's administrative appeal, because appellant failed to comply with procedures mandated by R.C. 119.12. A review of the record compels affirmance. I. The following facts are adduced from the record before this court. Appellant was convicted in Cuyahoga County Court of Common Pleas for aggravated theft, secured writings by deception, and tampering with records. On May 11, 1994, appellant was sentenced to Lorain Correctional Institution for a term of five to fifteen years and ordered to pay $41,500.00 in fines. The Board sent appellant a Notice of Hearing ("the notice") by certified mail on June 30, 1994, regarding the Board's proposal to warn, reprimand, suspend, or revoke appellant's license to practice dentistry in the state of Ohio due to appellant's felony convictions. The Notice in relevant part states: [O]n or about April 27, 1994, you were found guilty of Aggravated Theft, a violation of Section 2913.02 of the Ohio Revised Code; guilty of Secured Writings by Deception, a violation of Section 2913.43 of the Ohio Revised Code; and, guilty of Tampering with Records, a violation of Section 2913.42 of the Ohio Revised Code, in Cuyahoga County Common Pleas Court. -3- Such conduct is a violation of Section 4715.30(A)(4) of the Ohio Revised Code, which states in relevant part: The holder of a certificate license issued under this chapter is subject to disciplinary action by the state dental board for any of the following reasons: "Conviction of *** any felony"; Pursuant to Chapter 119. of the Ohio Revised Code, you are advised that you are entitled to a hearing on this matter. If you wish to request such a hearing, the request must be made in writing and must be received in the offices of the Ohio State Dental Board within thirty (30) days of the time of the mailing of this Notice. You are further advised that you are entitled to appear at such hearing in person, or by your attorney, or that you may present your position, arguments or contentions in writing, and that at the hearing you may present evidence and examine witnesses appearing for or against you. In the event that there is no request for such hearing made within thirty (30) days of the time of the mailing of this Notice, the Ohio State Dental Board may, in your absence, and upon consideration of the foregoing charges, in its discretion, warn, reprimand, or otherwise discipline you, or suspend or revoke your license. *** The Notice was sent to the Lorain Correctional Institution and was returned to the Board for inability to deliver. On July 18, 1994, the Board then sent the Notice by certified mail to the Cuyahoga County Jail. The Notice was returned to the Board for inability to deliver. On August 2, 1994, the Board made a final attempt to locate appellant by sending Tom Smith, Board Investigator, and Detective Cherilyn Lewis, Shaker Heights Police Department, to appellant's residence and business address, to hand- deliver the Notice. Appellant was not located at either location. -4- Dr. Engle whose dental office is next door to appellant's office informed Mr. Smith and Ms. Lewis that he had not seen appellant for almost a month. Pursuant to R.C. 119.07, the Board published the Notice in the Cleveland Plain Dealer since the Board was unable to deliver the Notice. In pertinent part, R.C. 119.07 states: When any notice required by sections 119.01 to 119.13, inclusive, of the Revised Code, to be sent by registered mail, is returned because of inability to deliver, the notice shall be published once a week for three consecutive weeks in a newspaper of general circulation in the county where the last known place of residence or business of the party is located. A copy of the newspaper, with the first publication of said notice marked, shall be mailed to the party at such address and the notice shall be deemed received as of the date of the last publication. *** Accordingly, on August 29, 1994, September 5, 1994 and September 12, 1994, the Notice appeared in the Plain Dealer, a general publication which is circulated in nine counties. According to R.C. 119.07, appellant had to request a hearing within thirty days of September 12, 1994 to preserve his right to a hearing. Appellant did not request a hearing. On November 11, 1994, the Board reviewed the Notice and the charges without appellant's representation, and the Board unanimously found the allegation contained in Count One of the Notice to be true and a violation of R.C. 4715.03(A)(4). After considering the sanctions available under R.C. 4715.30(C), the Board, in its discretion, decided to revoke appellant's license to practice dentistry in the state of Ohio. The Adjudication Order reads in pertinent part: -5- *** Respondent was duly notified of an Opportunity for Hearing, in accordance with Chapter 119 of the Ohio Revised Code, by publication of the Notice of Opportunity for Hearing in the "Cleveland Plain Dealer" newspaper. The Notice appeared once a week for three (3) consecutive weeks. Notice was served by a publication because Respondent could not be served by Certified Mail. Respondent did not request a hearing in regard to the allegation contained in the Notice of Opportunity for Hearing. On November 17, 1994, the Ohio State Dental Board reviewed the allegation contained in the Notice of Opportunity for Hearing, and the Journal Entry of the criminal conviction in Cuyahoga County Common Pleas Court. Upon consideration of the above, the board concluded that the allegation contained in the Notice of Opportunity for Hearing is true, and is a violation of Section 4715.30(A)(3) of the Ohio Revised Code. The Ohio State Dental Board discussed all the options contained in Section 4715.30 (C) of the Ohio Revised Code and made the following decision: 1. That the dental license of David W. Mays, D.D.S., is hereby REVOKED. *** Respondent may appeal this Order pursuant to Section 119.12 of the Revised Code, by filing a Notice of Appeal with the Ohio State Dental Board *** within fifteen days (15) of the date of this Order, and by filing a copy of said Notice of Appeal with the proper Court of Common Pleas as determined under Section 119.12 of the Revised Code. *** -6- 1 Appellant received the Adjudication Order . Appellant filed a notice of appeal with the Cuyahoga County Court of Common Pleas on December 15, 1994 and on December 19, 1994, appellant filed a notice with the Board. On December 8, 1994, appellant sent a notice of appeal marked "Draft" to a Board member which was accompanied by a cover letter which stated, in part: [I] have enclosed a draft copy of the appeal that will be filed in the Court of Common Pleas, if such filing becomes necessary. It should be kept in mind that this draft version of the Appeal will be more detailed in its final form. In the meantime, however, I am asking the Dental Board to examine the efforts of its investigators to give my client proper notice, with an eye toward avoiding filing an appeal in Common Pleas Court ***. The trial court dismissed appellant's complaint, finding that appellant failed to satisfy the jurisdictional requirements of R.C. 119.12, which provides for appeals to the common pleas court from orders of administrative agencies. The trial court's Journal Entry reads: Appellee's 12-29-94 motion to Dismiss is granted. Appellant failed to comply with O.R.C. 119.12 which required appellant to file a notice of appeal with both the Ohio State Dental Board and the Court of Common Pleas. Appellant did not file his appeal with the Ohio State Dental Board until 12-19-94. Appellant had until 12-15-94 to file with the Ohio State Dental Board and failed to do so. Appellant's mailing on 12-8-94 of a "draft" of a notice of appeal and stating an "intent" to file a notice of appeal does not comply with O.R.C. 119.12 (Emphasis sic.) 1 . The Adjudication Order is dated December 1, 1994. On the postal return receipt, appellant wrote November 6, 1994 instead of December 6, 1994. -7- Vol. 1831, Pg. 009. Appellant timely appeals and presents the following assignments of error for this court to review: I. THE OHIO DENTAL BOARD HAD A KNOWN ADDRESS FOR DAVID W. MAYS PRIOR TO ITS PUBLICATION OF MAYS' RIGHT TO AN ADJUDICATION HEARING. II. FAILURE TO GIVE APPELLANT THE STATUTORILY MANDATED NOTICE OF HIS RIGHT TO AN ADJUDICATION HEARING RENDERED THE REVOCATION OF THE BOARD INVALID. III. THE DRAFT NOTICE OF APPEAL RECEIVED BY APPELLEE ON DECEMBER 12, 1994 WAS TIMELY AND CONTAINED ALL INFORMATION MANDATED BY SECTION 119.12 OF THE OHIO REVISED CODE. IV. THE FINDING OF THE TRIAL COURT THAT APPELLANT FAILED TO FILE HIS NOTICE OF APPEAL AS SET FORTH IN OHIO REVISED CODE 119.12 DEPRIVED THAT COURT OF JURISDICTION TO MAKE ANY RULING ON ANY OTHER ISSUE. V. THE TRIAL COURT ABUSED ITS DISCRETION BY FIRST ASSUMING JURISDICTION TO MAKE DECISIONS IT WANTED, THEN DISMISSING APPELLANT'S RIGHT OF APPEAL AS UNTIMELY. II. We will consider the third and fourth assignments of error together because they are interrelated. R.C. 119.12 reads, in relevant part: Any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination, or denying the issuance or renewal of a license or registration of a licensee, or revoking or suspending a license or allowing the payment of a forfeiture under section 4301.252 [4301.25.2], may appeal from the order of the agency to the court of common pleas of the county in which the place of business of the licensee is located or the county in which the licensee is a resident. *** -8- R.C. 119.12 provides the procedures a party must follow if they are filing an administrative appeal from an agency, which states, in part: Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and the grounds of its appeal. A copy of such notice of appeal shall also be filed by the appellant with the court. Unless otherwise provided by law relating to a particular agency, such notices of appeal shall be filed within fifteen days after the mailing of the agency's order as provided in this section. R.C. 119.12. Ohio Revised Code 119.12 confers the right of appeal on administrative decisions. It is well established that where a statute confers a right of appeal, such appeal may be perfected only by compliance with the mandatory statutory requirements. Zier v. Bureau of Unemployment Compensation (1949), 151 Ohio St. 123, paragraph one of the syllabus. Where a statute requires that an administrative appeal be filed within a specified time period, compliance with such requirement is a necessary precondition to invoking the appellate jurisdiction of the administrative agency. McGruter v. Bd. of Review (1980), 64 Ohio St.2d 277. The provisions of a statute relating to the time for the filing of a notice of appeal are mandatory, and, if the notice of appeal is not filed within the time fixed by law, the appeal must be dismissed. Where the notice of appeal is timely filed with the court, but not with the agency, such constitutes a failure to comply with the mandatory jurisdiction requirements essential to the perfecting of the appeal. Ahrns v. Board of Tax Appeals (1970), -9- 22 Ohio App.2d 179, paragraph one of the syllabus. The failure of the party to file his notice of appeal within the fifteen-day time limit with both the agency and the court deprives the court of any jurisdiction over the administrative appeal. Harrison v. State Medical Board (June 5, 1995), Franklin App. No. 94APE10-1457, unreported. Finally, prior to seeking court review of an administrative matter, a party must first exhaust all of his administrative remedies. Noernberg v. City of Brook Park (1980), 63 Ohio St.2d 26. In the case sub judice, appellant failed to comply with the provisions mandated by R.C. 119.12 when he appealed from the decision of the Board. Appellant's notice of appeal filed pursuant to R.C. 119.12 was defective for two reasons. First, appellant's notice of appeal was labeled as a "draft." Second, appellant's notice of appeal contained conditional language, and he did not request a hearing before the Board. Thus, appellant failed to exhaust all of his administrative remedies. Noernberg, supra. Since appellant failed to invoke the trial court's subject matter jurisdiction by filing a notice of appeal in compliance with statutory provisions, the trial court properly dismissed appellant's administrative appeal. Accordingly, appellant's assignment of error is overruled. Given our disposition of appellant's third and fourth assignments of error, we need not address appellant's first, second and fifth assignments of error pursuant to App.R. 12(A). -10- Judgment affirmed. -11- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. JAMES D. SWEENEY, PRESIDING JUDGE DIANE KARPINSKI, J. CONCUR JUDGE SARA J. HARPER 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 .