COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71755 CLEVELAND COCA-COLA BOTTLING : CO., INC. : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : NORTHEAST OHIO REGIONAL SEWER : OPINION DISTRICT BD. OF TRUSTEES : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: MARCH 5, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Case No. 299975 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: R. BENTON GRAY DANIEL M. HAYMOND THOMPSON, HINE & FLORY 3900 Key Center 127 Public Square Cleveland, Ohio 44115 For Defendant-Appellant: LAWRENCE K. ENGLISH WILLIAM B. SCHATZ Northeast Ohio Regional Sewer District 3826 Euclid Avenue Cleveland, Ohio 44115 KENNETH A. ROCCO, J.: Defendant-appellant Northeast Ohio Regional Sewer District Board of Trustees ( the Sewer District ) timely appeals from a -2- November 18, 1996 judgment of the Cuyahoga County Common Pleas Court ordering the Sewer District to issue a credit of sewer charges to plaintiff-appellee Cleveland Coca-Cola Bottling Co., Inc. ( Coca-Cola ). We affirm the judgment, concluding as a matter of law that the findings and order of the common pleas court are supported by substantial, reliable and probative evidence and that it would be unreasonable, arbitrary and unconscionable to order Coca-Cola to pay for services that it did not use or receive. The following facts are gleaned from the transcript of, and exhibits adduced at, a hearing held before the Sewer District. Pursuant to R.C. 6119.01, the Sewer District, in return for a sewer charge, supplies water to users and provides for the collection, treatment and disposal of waste water. The Sewer Use Code, Chapter 8, authorizes sewer charges, termed SSCBOUTS, based upon the actual usage of the sewer system itself, rather than on the total volume of water supplied to the premises, if the user can demon- strate, interalia, that the volume of water that actually returns to the sewer system is less than the total volume supplied to the premises. For seventeen years, 1977 through 1993, the Sewer District charged Coca-Cola a SSCBOUTS for sewer services provided at its plant located at 3705 Carnegie Avenue, Cleveland, Ohio, pursuant to Resolution No. 286-76, dated September 16, 1976. The Sewer Dis- trict calculated this charge by subtracting the total amount of water used in the production of soft drinks, as computed from a -3- notarized copy of the production records, from the amount on the main water meter. Tr., Exhibit F, p. 2. In February, 1994, Coca-Cola closed the Carnegie Avenue plant and relocated it to 25000 Miles Road, Bedford Heights, Ohio. Coca- Cola, assuming that the same SSCBOUTS would carry over to the new plant, notified the Sewer District by letter dated April 18, 1994 that the Carnegie Avenue plant had been closed and requested that the Sewer District charge the new plant for sewer service with the same method that had been previously used. Four months of miscommunication and administrative delays, apparently by both parties, then occurred regarding the application process for a SSCBOUTS program and whether the Sewer Use Code required Coca-Cola to install a re-registering meter or a more costly flow meter in order to be approved for a SSCBOUTS program. In May 1994, the Sewer District failed to charge Coca-Cola a SSCBOUTS for the first quarter of 1994, after which Coca-Cola telephoned the Sewer District and sent a second letter requesting the SSCBOUTS based upon its production records. In July 1994, the Sewer District failed to charge a SSCBOUTS for the second quarter of 1994, and Coca-Cola submitted a request for this. On August 12, 1994, Coca-Cola submitted an application to implement a SSCBOUTS program to the Sewer District; however, the Sewer District then failed to charge Coca-Cola a SSCBOUTS for the third and fourth quarters of 1994. On February 21, 1995, the Sewer District approved Coca-Cola's application for participation in the SSCBOUTS program. -4- Pursuant to the terms of the resolution granting Coca-Cola's application, sewer charges were to be based on Coca-Cola's production records, just as the Sewer District had done for the Carnegie Avenue plant. In addition, however, the resolution re- quired the installation of a re-registering meter to make back- up measurements as a method of verifying production records. At no time was the production records total to be greater than the re- registering meter total. Thus, the approved method of measurement, as that term is used in the Sewer District's Code of Regulations, was to be based on Coca-Cola's production records as well as use of a re-registering meter. Thereafter, Coca-Cola installed a re- registering meter. The Sewer District, however, did not charge Coca-Cola a SSCBOUTS for the first quarter of 1995 because for most of that time period, Coca-Cola did not have installed a re- registering meter and, therefore, did not comply with what the Sewer District required as an approved method of measurement. Coca-Cola appealed the charges for the second, third and fourth quarters of 1994 and the first quarter of 1995 to the Sewer District, providing notarized copies of relevant production records. A hearing was had in which all parties stipulated to the accuracy of the production records; however, the hearing examiner denied Coca-Cola's requests for SSCBOUTS, essentially concluding that Coca-Cola was not entitled to receive SSCBOUTS until after the approval of its application for a SSCBOUTS program and installation of the re-registering meter. In Resolution No. 574-95, the Sewer -5- District adopted the recommendations of the hearing examiner, and Coca-Cola appealed to the Common Pleas Court. The Common Pleas Court found the Sewer District's decision in Resolution No. 574-95 arbitrary, capricious, unreasonable and un- supported by the preponderance of substantial, reliable and probative evidence. The court then ordered the decision reversed and remanded to have SSCBOUTS applied for the requested time frame and a sewer credit be issued to appellant. The Sewer District now appeals to this court raising three assignments of error for our review. The first two assignments of error challenge the findings and order of the common pleas court and shall be reviewed together. The first assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THE DECISION OF THE NORTHEAST OHIO REGIONAL SEWER DISTRICT BOARD OF TRUSTEES WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE. The second assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION IN FINDING THAT THE DECISION OF THE NORTHEAST OHIO REGIONAL SEWER DISTRICT BOARD OF TRUSTEES WAS UNSUPPORTED BY THE PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE. R.C. 2506.04 provides the standard that a common pleas court must apply when reviewing a decision of an administrative agency, and states in relevant part: The court may find that the order, adjudica- tion or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsup- ported by the preponderance of substantial, reliable, and probative evidence on the whole record ***. -6- This standard authorizes the common pleas court to weigh the evidence in the record" and make both factual and legal determina- tions. Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 207. The court is further authorized to reach a decision revers- ing the board where the board's decision is not supported by `the preponderance of substantial, reliable and probative evidence.' Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, n. 4. The order of the common pleas court may be appealed to this court but only on questions of law. R.C. 2506.04. Thus, our review is limited to a determination of whether, as a matter of law, there did, in fact, exist a preponderance of reliable, probative and substantial evidence to support the common pleas court's decision. Dudukovich, supra; Kisil, supra; Howard v. Coventry Twp. Bd. Of Zoning Appeals (1996), 110 Ohio App.3d 691, 693; Lesser v. Cleveland (1995), 102 Ohio App.3d 151, 156. Furthermore, our authority under R.C. 2506.04 does not include the same extensive power to weigh `the preponderance of substantial, reliable and probative evidence,' as is granted to the common pleas court. Within the ambit of `questions of law' for appellate court review would be abuse of discretion by the common pleas court. Kisil, supra at 34, n. 4. The term `abuse of discretion' connotes more than error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscio- nable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. We begin our review by examining the Sewer Use Code. Section 1.0801(c) states in relevant part: -7- Sewer Service Charges Based on Usage [] shall mean a recognition by the District that a water loss, as herein defined, occurs in any premises connected to the System ***. (Empha- sis omitted). A water loss is defined in Section 1.0801(b) as that portion of the metered water supplied to any premises connected to the System which does not enter the System as liquid waste. (Emphasis added). Section 1.0808 states in pertinent part: [A]ny premises connected to the System may be charged for sewerage services on the basis of actual usage of the System rather than on the total metered water supplied to the premises, provided such premises are determined to be eligible to be so charged in accordance with the provisions of this chapter. (Emphasis added). Further, Section 1.0814 states in relevant part: When a sewer service charge based on usage has been granted, the amount of the charge based on usage shall be determined by the use of a method of measurement approved by the Execu- tive Director designed to ascertain either the amount of water loss occurring within the premises or the actual amount of liquid wastes entering the System from said premises. Such approved method of measurement may include, but shall not necessarily be limited to, the use of sewer meters or re-registering water meters. (Emphasis added). We next consider relevant portions of the approved Coca-Cola SSCBOUTS program: RECOMMENDATIONS: *** 2. Coca Cola Bottling Company, Inc. shall install one re-registering meter which will measure all softened water used in the plant's bottling process. 3. *** This meter will be used as a back- up to production records. -8- 4. Coca Cola Bottling Company, Inc. shall submit quarterly production records to indicate the volume of treated water used in product. All deductions for sewer charges shall be based on production records. (Emphasis added). In this case, the common pleas court found the Sewer Dis- trict's decision to deny Coca-Cola SSCBOUTS for the last three quarters of 1994 and the first quarter of 1995 arbitrary, capricious, unreasonable and unsupported by the preponderance of substantial, reliable and probative evidence. We conclude the trial court did not abuse its discretion in making this finding. R.C. 2506.04 authorizes a trial court to reverse a decision of an administrative body such as the Sewer District when the order is, inter alia, unreasonable or unsupported by the preponderance of substantial, reliable, and probative evidence. Here, the decision of the Sewer District is anything but reasonable given the longstanding history between the parties. The record reflects that Coca-Cola had participated in the SSCBOUTS program for its Cleveland site since 1976. From this time until Coca-Cola ceased operations at this site in late 1993, the Sewer District authorized credits for actual use based upon Coca-Cola's production records. It was not until Coca-Cola moved to its new location in Bedford Heights that the Sewer District required the use of a re-registering meter as verification for Coca-Cola's production methods. While it is not unreasonable for the Sewer District to require that Coca-Cola install a re-registering meter as a method of verifying its production records, it is unreasonable to expect Coca-Cola to pay for services it has not received merely -9- because the Sewer District decided to depart from its past practice and allow participation upon satisfaction of this additional requirement. This is especially true in this case since the par- ties stipulated to the accuracy of Coca-Cola's production records during the contested four quarters of service. Thus, the common pleas court did not abuse its discretion, and these two assignments of error are overruled. The third assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THE SSCBOUTS PROGRAM WAS SELF- EXECUTING. The Sewer District contends that the common pleas court either made an express ruling or based its decision upon a finding that the previous Coca-Cola SSCBOUTS program, applicable to the Carnegie Avenue plant, was self-executing, i.e., automatically applicable to the Miles Road plant, even in the absence of Coca-Cola's application for a new SSCBOUTS program. However, there is nothing in the record to substantiate the allegation that the trial court considered whether, or determined that, the SSCBOUTS program was self-executing. In McNeil v. Case W.Res.Univ. (1995), 105 Ohio App.3d 588, 593, we stated in relevant part: Our review is limited to what transpired in the trial court as reflected by the record of proceedings. This precept equally applies to our review of what transpired in the common pleas court acting within its appellate jurisdiction as -10- reflected in the record. This assignment of error is, therefore, overruled. Judgment affirmed. 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. TIMOTHY MCMONAGLE, J., CONCURS DIANE KARPINSKI, P.J. DISSENTS (See attached Opinion) JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71755 CLEVELAND COCA-COLA BOTTLING : -12- CO., INC. : : Plaintiff-Appellee : : DISSENTING v. : : OPINION NORTHEAST OHIO REGIONAL SEWER : DISTRICT BD. OF TRUSTEES : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: MARCH 5, 1998 KARPINSKI, J., DISSENTING: I respectfully dissent because I believe the majority has misunderstood the limits of the administrative appeal involved in this case. Coca-Cola does not challenge the rules or even the March 2nd Resolution of the Board that (1) permits a rate based on production records to determine usage, but also (2) requires installing a re- registration meter for verification and, additionally, (3) adds the proviso that any credit be capped by the data produced by this meter. Not one of these points is at issue. Rather, Coca-Cola claims that in permitting a credit based on usage, the resolution approved a method of measurement by produc- tion records alone. Therefore, Coca-Cola claims, the effective date of the credit for water loss began on the date the Miles Road plant started production (April of 1994). Coca-Cola has misread the Board's resolution. The resolution, which adopts the Executive Director's Recommendation and makes it a part of the Board's March 2nd Resolution, speaks for itself: -13- 2. Coca Cola Bottling Company, Inc. shall install one re-registering meter which will measure all softened water used in the plant's bottling process. 4. *** At no time shall the production records total be greater than the re-registering meter. (Empha- sis added.) The language of the resolution is clear: (1) a re-registering meter is required; (2) this meter is to measure water used; and (3) the meter determines the maximum credit allowed for charges. What controls this case is Section 1.0820 of the Northeast Ohio Regional Sewer District's Code of Regulations: Effective Date of Sewer Service Charge Based on Usage - A sewer service charge based on usage, when granted, shall be effective from and after the first full billing period after the approved method of measurement is installed and functioning to the satisfaction of the Executive Director. This rule clearly states a charge based on usage does not become effective until two events occur: the approved method of measure- ment (1) is installed and (2) is functioning to the satisfaction of the Executive Director. The Board's resolution approved a system that requires, in part, installing a re-registration meter. Therefore, until this meter was installed and approved by the Executive Director, no sewer service charge based on use could begin. The meter was installed in mid-February of 1995. The Exe- cutive Director's recommendation to accept the application was dated February 21, 1995. The Board approved the Executive Direc- tor's recommendation on March 2, 1995. Thus the necessary approval could not have occurred in April of 1994. The issue, as Coca-Cola argued it, is whether the required meter is part of the approved method of measurement. The major- -14- ity opinion answered this question when it stated the approved method of measurement, as that term is used in the Sewer District's Code of Regulations, was to be based on Coca-Cola's production records as well as use of a re-registering meter. (Ante p.4. Emphasis added.)1 Once the majority answered this question, it was obliged to apply Section 1.0820. It is well established that [a]dministrative regulations issued pursuant to statu- tory authority have the force and effect of law; conse- quently, administrative agencies are bound by their own rules until those rules are duly changed. State ex rel. Cuyahoga Cty. Hosp. v. Bur. of Workers' Comp. (1986), 27 Ohio St.3d 25, 28, 27 OBR 442, 444, 500 N.E.2d 1370, 1372. See, also, Parfitt v. Columbus Correctional Facility (1980) 62 Ohio St.2d 434, 436, 16 O.O.3d 455, 456, 406 N.E.2d 528, 530. Lyden Co. v. Tracy (1996), 76 Ohio St.3d 66, 69. Even if the Resolution were ambiguous enough to permit another interpretation--and it is not--a reviewing court must be guided by 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. (1994), 68 Ohio St.3d 377, 382; Jones Metal Products Co. v. Walker (1972), 29 Ohio St.2d 173; Rings v. Nichols (1983), 13 Ohio App.3d 257. Not only has the common pleas court failed to acknowledge this obligatory deference, the court arbitrarily 1 Coca-Cola never challenged the Board's need for or requirement of a meter. Thus it is not an issue before this court, nor was it before the Hearing Officer or the common pleas court. -15- arrived at a different co t n and providing no alternative interpretation of Rule 1.0820. This is an abuse of discretion. Thnclusion2 by ignoring the plain meaning ofhe Resolutioe central question date of the exemption. This is the issue expressly defined at the administrative hearing and stipulated to by Coca-Cola. (Tr. 33.) This issue, in turn, is governed by Section 1.0820--the agency's rule governing when a charge based on usage becomes effective. The only issue, as Coca-Cola defined it, is whether the approved method of measurement includes both the production records and the re-registering meter. The majority agrees both are included. The majority ignores, however, the next logical step--applying Section l.0820, which states that the usage charge does not become effective until an approved method of measurement is satisfactorily installed and approved. The majority does not specify what the effective date is but implies a date when it concludes it was unreasonable to deny Coca-Cola credit back to the second quarter of 1994. (Antepp. 9-10). This is the date Coca-Cola opened its Miles Road plant3--a date months before it even applied for an exemption, 2 The common pleas court ruled that the decision contained in Board Resolution No.574-95 was arbitrary, capricious, unreasonable and unsupported by the preponderance of substantial, reliable and probative evidence. The lower court never explained the basis for this conclusion. 3 The trial court also did not directly specify the exact date. Rather, the trial court ordered that the credit apply to the requested time frame. What Coca-Cola requested was a credit retroactive to the second quarter of 1994. -16- months before it installed a meter, and months before the Board approved the exemption and the installation. In reaching its conclusion, the majority is especially persuaded by a stipulation occurring at the administrative hearing. The context of this stipulation is quite important. THE HEARING OFFICER: If I might, As I understand where you're headed at this point, it is to establish that, in fact, Coca-Cola does have production records, does production records similarly calculated to the ones from the previous facility, that they accurately reflect the production and, therefore, the water that's used in the product, I don't think that's at issue. MR. GRAY: All right. THE HEARING OFFICER: I think I'll take notice of that. MR. GRAY: That's fine. THE HEARING OFFICER: Okay. MR. GRAY: Is-- THE HEARING OFFICER: The issue, essentially, is not whether the production records are there. The issue is what is the effective date of the SSCBOUTS to be. MR. GRAY: Correct. THE HEARING OFFICER: Okay. So I do understand that Mrs. Herron here has maintained these production records and that they accurately reflect with her calculations the amount of water that goes into the product. Mr. English, do you have any question about that? Is that a correct statement on my part? MR. ENGLISH: I believe so. THE HEARING OFFICER: Okay. MR. GRAY: Well, that would be fine, I guess, as long as we could have the District's stipulation and/or the Hearing Examiner's notice that Exhibits 7 through 10- THE HEARING OFFICER: Accurately reflect -- -17- MR. GRAY: are complete and accurate reflections of production records of Cleveland Coca-Cola and have been submitted to the District at various times in the course of this whole dispute. THE HEARING OFFICER: I don't think that's at issue. MR. GRAY: All right. THE HEARING OFFICER: That's you know, I'll give you notice of that. MR. GRAY: All right. Thank you. MR. ENGLISH: To make sure it's clear, we will stipulate that these accurately reflect what they purport to reflect and no further, because for the interim period that I believe is at issue there is a separate -- the production records themselves are an inappropriate stand- alone, that they are not sufficient under the SSCBOUTS application. MR. GRAY: Well, I don't think she's here to testify as to legal conclusions about that. But what I need to -- THE HEARING OFFICER: I'm going to accept these as an accurate representation of the production records. MR. ENGLISH: Are we comfortable with that? VOICE: Yes. MR. ENGLISH: So stipulated. (Tr. 32-35, emphasis added). While the beginning of this excerpt suggests that the District initially was willing to stipulate that the records accurately reflect the amount of water that goes into the product, the version that the District ultimately stipulates to is more limited: merely that the documents are complete and accurate copies of records. To go beyond this limited statement is to read it out of context. Thus, the majority is in error when it concludes the Sewer Board was unreasonable to delay participation until the meter was -18- installed, especially, the majority adds, since the parties stipulated to the accuracy of Coca-Cola's production records during the contested four quarters of service. (Ante p. 10.) Moreover, although the majority acknowledges that it is "not unreasonable for the Sewer District to require that Coca-Cola install a re-registering meter as verification for Coca-Cola's production methods ***," (Ante p. 10) the majority underestimates the role of the re-registering meter. This meter is part of the measurement process because it provides a cap to any calculations derived from the production records. That a meter is used only to determine maximums does not remove it as part of the approved method of measurement. Indeed, to a public agency entrusted with equitably distributing the costs of sewage treatment, such a device is likely to be of major significance, especially when it is the only device that actually "measures," as opposed to calculates, water loss.4Without a re-registering meter, it is not clear how the Board would know with any certainty the degree of use Coca-Cola had made of the sewer. Second, [w]hen an appeal is taken from an administrative agency to the court of common pleas, the trial court's review is 4 Coca-Cola admits that it was required to install a re- registering meter but relies upon the Hearing Officer's use of the word back-up to describe the meter as a secondary system. (Tr. 127.) As appellant indicated, however, the meter was not a substitute system; rather, it was the only means the Board had of corroborating the production data, which was subject to human error because this data was always calculated and never actually measured. Whether characterized as a primary or secondary system, the meter, as described in the Resolution, is part of the approved method of measurement. Production records are only one part of what the Board approved to measure water loss. -19- generally confined to the transcript of evidence adduced at the administrative hearing and the issues raised before that tribunal, unless the transcript is defective on its face or an affidavit is filed alleging a defect in the hearing process. Clegg v. Bd. of Zoning Appeals of Newton Twp., et al. (May 1, 1987), Trumbull App. No. 3668, unreported, p. 3. The majority has gone beyond the narrow limits of an adminis- trative appeal. The majority substantially changed the issue when it held it was unreasonable, arbitrary and unconscionable to order Coca-Cola to pay for services that it has not received merely because the Sewer District decided to depart from its past practice and allow participation upon satisfaction of this [re-registering meter] additional requirement. (Ante p. 1) This statement impli- citly challenges the Board's rules themselves, not merely their interpretation or application. The reasonableness of the rules, however, was never at issue at the Board's Hearing. The only issue as Coca-Cola defined it was whether the meter was part of the approved method of measurement. In addition to changing the issue, the majority has disre- garded not only Section 1.0820, but also Section 1.08085, when it 5 Section 1.0808 reads as follows: Sewer Service Charge Based on Usage Allowed - Notwithstanding the provisions of Chapters 5 and 6 of this Code, any premises connected to the System may be charged for sewerage services on the basis of actual usage of the System rather than on the total metered water supplied to the premises, provided such premises are determined to be eligible to be so charged in accordance with the provisions of this chapter. (Emphasis added.) (continued...) -20- explains that the Sewer Board's decision was unreasonable because in requiring Coca-Cola to install a re-registering meter it de- parted from its past practice. This rule clarifies that eligibil- ity for SSCBOUTS applies to premises. Whatever Coca-Cola's history at its Carnegie plant, there is no past history for the Miles Road premises for the Sewer Board to depart from. Additionally, the majority relies upon a fact not clearly adjudicated at the hearing--whether Coca-Cola had used a meter before at its Carnegie plant. That point was not at issue at the hearing. Indeed, had the issue been defined differently at the administrative level, the Regional Sewer Board might have provided further testimony on that history. The U.S. Supreme Court has limited the issues a reviewing court may consider in appeals from agencies: So far as we are able to determine, this issue was injected for the first time by the opinion of the majority of the Court of Appeals. The contention does not seem to have been raised or pressed by respondents up to that point. *** A reviewing court usurps the agency's function when it sets aside the administrative determina- tion upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action. Unemployment Compensation Commission of Territory of Alaska v. Aragon (1946), 329 U.S. 143, 155. In focusing on past practices, the majority has impermissibly shifted the issue. In its reply brief, the Board stated that Coca-Cola used a re- registering meter at its Carnegie Avenue plant. I found nothing in 5(...continued) -21- the record to support this observation, nor did I find evidence to r elied upon this meter. (Ex. E, p.2.) This assertion leaves open the possibility that the Carnegie plant used such a meter. The majority ignores this possibility. Finally, the majority is selective in its view of the history provided when it says that in requiring Coca-Cola to install a re- registering meter, the Board changed its policy. What changed was ove to new premises. What remained unchanged was thethe contrary. Board's policy that an application was required for new premises. And any method of measurement Coca-Cola wanted to use as a substitute required the approval of the Board. This policy, Coca- Cola never challenges. The simple facts are that Coca-Cola moved and failed to file an application for the new premises. When it finally applied, it failed to specify for over four months what kind of meter it would ask the Board to approve.6 This failure caused the delay in a credit. This is a failure of Coca-Cola, not of the Board. 6 The record shows, moreover, a history of delay and ignorance on the part of Coca-Cola. It failed to make any inquiry before it moved. It then bungled--with or without the Board's help--an inquiry into what was necessary and wasted lengthy periods of time. The Board received Coca-Cola's application on September 2, 1994. The Board scheduled an investigation on September 13. As of February 1, 1995, Coca-Cola was still reviewing possible measuring devices. It did not install the meter until mid- February. The Board approved this method of measurement and its installation in March. The fact remains there was no device in place to verify the production data during the period for which Coca-Cola wants a credit. -22- While admitting it was not unreasonable to require the re- registering meter, the majority believes it is irrational to deny a credit until a procedural requirement is met. The majority, however, fails to provide any authority that permits the Board to overlook its own requirement. It is important to note that no one appealed the requirement that a measuring device be installed. Nor was it argued below that the rules in question are unreason- able. What is at issue is not this requirement itself or even whether the requirement can be ignored. The only issue is whether the conditions of Section 1.0820 were met. Coca-Cola challenges merely the meaning of the rule. In deciding this case on any other ground, this court compounds the error the common pleas court made. Even if there were a change in policy--and there is no evidence there was--it is reasonable that the Board would require some verification of the production records internally generated and reasonable that exemptions would not become effective until such a verification procedure were in place. I would expect no less of government agencies, whatever the history. In denying Coca-Cola's request for retroactive rates, the Board properly interpreted its prior resolution and properly applied its own rules. In ignoring the plain meaning of the reso- .