Ohio Appellate Reports
Unpublished
CRAVAT COAL v. DIVISION MINERAL RESOURCES, Unpublished
Decision (12-26-2006) 2006-Ohio-7071 CRAVAT COAL COMPANY,
Appellant-Appellee, v. DIVISION OF MINERAL RESOURCES
MANAGEMENT, Appellee-Appellant. No. 05-HA-577. Court of
Appeals of Ohio, Seventh District, Harrison County. Dated:
December 26, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Administrative Appeal from the Ohio
Reclamation Commission Case Nos. RC-04-020, RC-04-021.
Affirmed.
For Appellant-Appellee, Attorney Frank A. Fregiato,
Attorney Christopher Gagin , Fregiato, Myser, Davies &
Gagin, Bridgeport, Ohio.
For Appellee-Appellant, Jim Petro, Attorney General of
Ohio, Attorney Mark G. Bonaventura, Attorney Holly N.
Deeds, Assistant Attorneys General ODNR, Columbus, Ohio.
Before: Hon. GENE DONOFRIO, Hon. CHERYL L. WAITE, Hon. MARY
DEGENARO.
OPINION
DONOFRIO, J.
Appellant, the Division of Mineral Resources
Management, appeals from an Ohio Reclamation Commission
decision vacating two civil penalties assessed against
appellee, Cravat Coal Company, for violations of Ohio’s
coal mining laws.
On October 22, 2003, appellant’s mineral
resources inspector conducted an inspection of appellee’s
permit D-2131 site, which is a surface coal mining
operation located in Harrison County. The inspector noticed
a breached diversion ditch where the drainage was not
passing through a siltation structure, a violation of R.C.
1513.16(A). Appellant subsequently issued a Notice of
Violation (NOV) to appellee, designated as NOV 24433, and
ordered appellee to repair the diversion ditch by November
12, 2003. Appellee completed the repairs in a timely manner.
On February 18, 2004, appellant’s inspector
conducted an inspection of appellee’s permit D-2183 site,
also a surface coal mining operation in Harrison County.
The inspector noticed that appellee had improperly cut a
trench in the ground so that water in a pit would drain
from the mine site into a stream channel, a violation of
R.C. 1513.16(A). Appellant thereafter issued NOV 24491 to
appellee for failing to direct all surface drainage to a
siltation structure and ordered appellee to repair the
situation. Appellee again completed the repairs in a timely
manner.
On July 1, 2004, appellant issued a Civil
Penalty Assessment (CPA) to appellee, designated as CPA
12280, in the amount of $600, for NOV 24433. Appellant
issued this CPA 252 days after it issued NOV 24433. That
same day, appellant issued CPA 12283, in the amount of $900,
for NOV 24491. Appellant issued this second CPA 134 days
after it issued NOV 24491.
Appellee filed administrative appeals of the
two CPAs. The basis for the appeals was the excessive delay
in issuing the CPAs. Appellee did not contest the
violations themselves. The Reclamation Commission
(Commission) consolidated the two appeals for its review.
The Commission conducted a hearing on the
appeals on January 20, 2005. At the hearing, appellee
argued that appellant was untimely in issuing the CPAs
because it did not do so until well past the 30-day time
frame set out in R.C. 1513.02(E)(3). Appellant asserted that
the unexpected retirement of an assistant regional manager
resulted in the long delay in issuing the CPAs.
{? 7} The Commission ultimately vacated both CPAs.
Appellant filed a timely notice of appeal on March 3, 2005.
Appellant raises two assignments of error. The
assignments of error share a common basis in law and fact
and, therefore, we will address them together. They state:
“THE RECLAMATION COMMISSION ERRED WHEN IT
VACATED CIVIL PENALTY ASSESSMENTS BECAUSE THE PENALTY
ASSESSMENTS WERE DELAYED — A FACTOR NOT AUTHORIZED
BY THE GENERAL ASSEMBLY.”
“THE RECLAMATION COMMISSION ERRED WHEN IT
FAILED TO FOLLOW ESTABLISHED CASE LAW THAT STATUTES, SUCH
AS R.C. 1513.02(E)(3), PROVIDING A TIME FOR THE PERFORMANCE
OF AN OFFICIAL DUTY ARE TO BE CONSTRUED AS DIRECTORY, NOT
MANDATORY.”
R.C. 1513.02(E)(3) provides in relevant part:
“Upon the issuance of a notice or order
charging that a violation of this chapter has occurred, the
chief shall inform the operator within thirty days of the
proposed amount of the penalty and provide opportunity for
an adjudicatory hearing pursuant to section 1513.13 of the
Revised Code.” (Emphasis added.)
The Commission determined that, in this case,
where the statute provided that the chief will act within
30 days, yet the chief did not act for 134 or for 252 days,
the chief’s action was arbitrary, capricious, or otherwise
inconsistent with law. Therefore, it concluded that the
issuance of the CPAs was arbitrary, capricious, or
otherwise inconsistent with law.
Appellant argues that the Commission could
not rely on R.C. 1513.02(E)(3)’s language as a basis for
vacating the CPAs because R.C. 1513.02(E)(3) is directory,
not mandatory. It asserts that appellee’s remedy was to
file a writ of procedendo against the chief to force it to
comply with the statutory time frame. Appellant argues that
the 30-day time frame is only directory unless the General
Assembly has indicated otherwise or prejudice can be
established. Because R.C. 1513.02(E)(3) contains no penalty
or particular result if the chief does not meet the 30-day
time frame, appellant claims that it is not mandatory.
Furthermore, it alleges that appellee was not prejudiced by
the delay. Next, appellant argues that while the term
“shall” is generally construed as mandatory, such is not
the case when the term refers to the manner or time in
which a public official is to exercise power or
jurisdiction. Finally, appellant contends that federal
courts have held that the same language in R.C.
1513.02(E)(3)’s federal counterpart, 30 U.S.C. 1268, is
directory.
This court uses a limited standard of review
to review the Commission’s order. C. & T. Evangelinos v.
Div. of Mineral Resources Mgmt., 7th Dist. No. 03-BE70,
2004-Ohio-7061, at § 18, citing Pleasant City v.
Ohio Dept. of Natl. Resources, Div. of Reclamation (1993),
67 Ohio St.3d 312, 617 N.E.2d 1103. R.C. 1513.14 governs
appeals from the Commission. R.C. 1513.14(A) provides in
part: “The court shall affirm the decision of the
commission unless the court determines that it is
arbitrary, capricious, or otherwise inconsistent with law,
in which case the court shall vacate the decision and
remand to the commission for such further proceedings as it
may direct.”
Under this standard of review, we presume
that the agency’s or board’s actions are valid. Id., citing
R.C. 1513.02. Furthermore, “[i]t is a well-settled rule
that courts, when interpreting statutes, must give due
deference to an administrative interpretation formulated by
an agency that has accumulated substantial expertise, and
to which the General Assembly has delegated the
responsibility of implementing the legislative command.”
Swallow v. Indus. Comm. (1988), 36 Ohio St.3d 55, 57, 521
N.E.2d 778.
Additionally, in reviewing the Commission’s
decision, an appellate court must confine its review to the
record certified by the Commission. R.C. 1513.14(A).
First, we must address whether appellee’s
appeal meets the requirements set out in R.C.
1513.02(E)(3). As to appeals, the statute provides:
“The person charged with the penalty then
shall have thirty days to pay the proposed penalty in full
or, if the person wishes to contest either the amount of
the penalty or the fact of the violation, file a petition
for review of the proposed assessment with the secretary of
the reclamation commission pursuant to section 1513.13 of
the Revised Code.” R.C. 1513.02(E)(3).
Thus, the statute appears to provide two
grounds for appealing a CPA to the Commission: (1) to
contest the amount of the penalty; and (2) to contest the
fact of the violation.
Appellee’s appeal to the Commission meets
these requirements. While appellee states in its brief that
it did not contest the amount of the fines, in effect, it
did. Appellee’s basic argument was that appellant should
not have issued the CPAs because it failed to abide by the
30-day time limit. Looked at another way, appellee argued
that the fines should have been zero dollars based on
appellant’s tardy issuance of the CPAs. Furthermore,
appellee’s representative testified at the hearing that
appellee’s position was that the penalties should be
“reduced or waived.” (Tr. 54-55). Thus, at the hearing,
appellee specifically argued that it was contesting the
amount of the penalty, which brings it within the appeal
criteria of R.C. 1513.02(E)(3).
We must presume that the Commission’s
decision vacating the CPAs was valid. Buckeye Forest
Council v. Division of Mineral Resources Management, 7th
Dist. No. 01-BA-18, 2002-Ohio-3010, citing R.C. 1513.02. As
noted above, when interpreting a statute, we must “give due
deference to an administrative interpretation formulated by
an agency that has accumulated substantial expertise, and
to which the General Assembly has delegated the
responsibility of implementing the legislative command.”
Swallow, 36 Ohio St.3d at 57.
The Commission chose to proceed with
appellee’s appeal. Thus, it concluded that the appeal was
proper and that it had jurisdiction to hear the appeal.
Given our standard of review and appellee’s argument
regarding reduction or waiver of the penalties, we must
defer to the Commission’s decision on this matter.
Next, we must move on to consider the merits
of appellant’s argument. While appellant focuses its
argument on whether R.C. 1513.02(E)(3)’s 30-day frame is
mandatory or directory, we need not decide that issue.
R.C. 1513.02(E)(3) provides that, “[u]pon the
issuance of a notice or order charging that a violation of
this chapter has occurred, the chief shall inform the
operator within thirty days of the proposed amount of the
penalty and provide opportunity for an adjudicatory hearing
pursuant to section 1513.13 of the Revised Code.” In this
case, appellant did not inform appellee of the penalties
until 252 and 134 days after the issuance of the underlying
NOVs.
The Commission did not rule on whether the
30-day requirement set out in the statute was mandatory or
directory. Instead, it concluded that under the facts of
this case, appellant’s lengthy delays of 252 and 134 days
in assessing the penalties were arbitrary and capricious.
The evidence offered at the hearing supports the
Commission’s decision.
As to CPA 12280, Wayne Shalk, appellant’s
assistant regional manager for the northern region and the
person who issued the CPAs, testified as follows:
“Q. Okay. Why did it take until July 1 of
2004 to assess this penalty?
“A. The — there was a manpower problem
in the southern region. I work for the northern region, and
the — when the Division of Mines and Reclamation
merged with the Division of Oil and Gas, the new duties
were assigned to one of the assistant reginal [sic.]
managers in each region. Not too long after the merger took
place, one of the assistant managers in the southern region
unexpectedly retired. His duties were to help manage the
oil and gas program.
“Q. And which — I’m sorry, which
person was this now?
“A. That — his name — that was
Dick Shockley.
“Q. Okay.
“A. The other regional — assistant
regional manager, Joe Hoerst, was assigned the duties of as
— processing the civil penalties assessments.
However, his background in the oil and gas program through
the day-to-day necessities required him to take on Mr.
Shockley’s duties in addition to what he was assigned. So
the processing of the civil penalty assessments took longer
so we developed a large backlog. And in 2004, I started
going down to the southern region to help get rid of this
old backlog. So that’s why it took such a long time to issue
the Civil Penalty Assessment.” (Tr. 43-44).
As to CPA 12283, Shalk testified:
“Q. Okay. Why did — why did it take
the Division until July 1, 2004 to assess this penalty? Was
this essentially the same reasons as the other one?
“A. Yes.
“Q. Okay.
“A. Lack of manpower causing a backlog in
issuing the CPAs.” (Tr. 5152).
Appellant did not deny that it took a long
while to issue the penalties to appellee. Instead,
appellant attempted to justify the long delay by blaming it
on a manpower shortage caused by the retirement of one
employee. Given this evidence, it was within the
Commission’s discretion to conclude that the CPAs should be
vacated based on the long delay appellant took to issue
them.
Accordingly, appellant’s two assignments of
error are without merit.
For the reasons stated above, the
Commission’s judgment is hereby affirmed. Waite, J.,
dissents. See dissenting opinion attached.
DeGenaro, J., concurs in judgment only.
Waite, J., dissenting.
I must respectfully dissent from the majority
opinion in this appeal. The Appellant, Division of Mineral
Resources Management (“Division”), has appealed the
decision of the Ohio Reclamation Commission (“Commission”)
vacating two civil penalties assessed against Appellee,
Cravat Coal Company (“Cravat Coal”) for violations of R.C.
Chapter 1513, Ohio’s coal mining laws. There is no dispute
among the parties that Cravat Coal committed the two
statutory violations, and that the Division had and has
authority to issue Civil Penalty Assessments (“CPAs”) for
those violations. Cravat Coal appealed the two CPAs to the
Commission on the grounds that the penalties were not
issued within 30 days from the date Cravat Coal was
notified of the violations, as set forth in R.C. §
1513.02(E)(3). The Commission agreed with Cravat Coal and
vacated the CPAs because one had been issued 134 days and
the other 252 days after notice. Both of these notices were
well outside of the 30-day time limit found in the statute.
Although this Court’s standard of review of the
Commission’s order is a very deferential one, it appears
from a careful reading of R.C. § 1513.02(E)(3) that
the Commission had no jurisdiction to consider the issue
raised by Cravat Coal on administrative appeal. Therefore,
I would vacate the Commission’s order and reinstate the
civil penalties imposed by the Division.
The facts of this case are undisputed. The
sole issue in this appeal has to do with the significance
and effect of the delay in time by the Division in issuing
the two CPAs.
I agree with the majority that the standard
of review that this Court uses to review a reclamation
commission’s order is a limited one, and that we should
affirm the order unless it is arbitrary, capricious, or
otherwise inconsistent with law. R.C. §
1513.14(A)(3); C. & T. Evangelinos v. Div. Of Mineral
Resources Mgmt., 7th Dist. No. 03 BE 70, 2004-Ohio-7061. In
this case, it would appear that the reclamation
commission’s order is contrary to law because it does not
have jurisdiction to review the issue that was raised by
Cravat Coal.
The statute at issue in this case, R.C.
§ 1513.02(E)(3), states in part:
“(3) Upon the issuance of a notice or order
charging that a violation of this chapter has occurred, the
chief shall inform the operator within thirty days of the
proposed amount of the penalty and provide opportunity for
an adjudicatory hearing pursuant to section 1513.13 of the
Revised Code. The person charged with the penalty then
shall have thirty days to pay the proposed penalty in full
or, if the person wishes to contest either the amount of
the penalty or the fact of the violation, file a petition
for review of the proposed assessment with the secretary of
the reclamation commission pursuant to section 1513.13 of
the Revised Code.” (Emphasis added).
The interpretation of the time provisions in
R.C. § 1513.02(E)(3) is a case of first impression
in this Court, and apparently with any appellate court in
Ohio. The Division has raised the question as to whether it
is permitted to assess civil penalties after 252 days and
134 days have passed even though the statute requires the
Division to inform the violator of the proposed fine within
30 days, and when the statute contains no repercussions for
failing to meet the 30-day deadline. Although the Division
has not stated its argument in terms of a jurisdictional
problem, the wording of R.C. § 1513.02(E)(3)
certainly appears to create a jurisdictional impediment with
respect to Cravat Coal’s appeal of the two CPAs. We would
normally deal with this jurisdictional issue prior to
addressing any other merits of the appeal.
R.C. § 1513.02(E)(3) states: “The
person charged with the penalty then shall have thirty days
to pay the proposed penalty in full or, if the person
wishes to contest either the amount of the penalty or the
fact of the violation, file a petition for review of the
proposed assessment with the secretary of the reclamation
commission pursuant to section 1513.13 of the Revised
Code.” (Emphasis added.)
The statute provides two grounds for
appealing a CPA to the Commission: a) to contest the amount
of the penalty; and b) to contest the fact that there was a
violation. Cravat Coal did not raise either of these two
issues as grounds on appeal. Both CPAs were appealed solely
on the grounds that the Division was without authority to
issue each CPA after the 30-day time limit found in the
statute had expired. Appellee’s brief on appeal states
quite explicitly that it has not and is not contesting that
the violations occurred and that it, “did not, is not, and
will not contest the amount of the penalties.” (Appellee’s
brief, p. 7.) Since there are no other grounds permitted by
statute for appealing the CPAs to the Commission, and
because Cravat Coal clearly does not assert either of the
only two grounds for appeal as listed, the logical
conclusion is that the Commission had no jurisdiction to
hear or decide this administrative appeal.
The right to an appeal to the Commission is
created by statute, and the statutory requirements
governing an administrative appeal must be strictly
followed in order to effectuate the appeal. See, e.g.,
Manfredi Motor Transit Co. v. Limbach (1988), 35 Ohio St.3d
73, 76, 518 N.E.2d 936. The Ohio Supreme Court has often
reaffirmed the proposition that: “[a]n appeal, the right to
which is conferred by statute, can be perfected only in the
mode prescribed by statute. The exercise of the right
conferred is conditioned upon compliance with the
accompanying mandatory requirements.” Zier v. Bureau of
Unemployment Compensation (1949), 151 Ohio St. 123, 84
N.E.2d 746, paragraph one of the syllabus; reaffirmed by
Hansford v. Steinbacher (1987), 33 Ohio St.3d 72, 72, 514
N.E.2d 1385; further reaffirmed by Ramsdell v. Ohio Civ.
Rights Comm. (1990), 56 Ohio St.3d 24, 27, 563 N.E.2d 285.
The Ohio Supreme Court has found certain
aspects of R.C. § 1503.02(E)(3) to be
jurisdictional, such as the provision requiring the party
appealing a CPA to forward the amount of the penalty to the
secretary of reclamation commission. See Lyle Const., Inc.
v. Ohio Dept. of Natural Resources, Div. of Reclamation
(1987), 34 Ohio St.3d 22, 27, 516 N.E.2d 209 (reviewing
former R.C. § 1503.02(F)(3), now redesignated as
§ 1503.02(E)(3)). Furthermore, the statutory limits
of subject matter jurisdiction of a state agency or board
cannot be waived or expanded upon by mutual agreement of
the parties. Painesville v. Lake Cty. Budget Comm. (1978),
56 Ohio St.2d 282, 284, 10 O.O.3d 411, 383 N.E.2d 896.
Based on these authorities, the Commission was required to
dismiss Cravat Coal’s attempt at administrative appeal due
to lack of subject matter jurisdiction, at least once it
became clear that Appellee was challenging neither the
amount of the penalty nor the fact that a violation had
occurred, the only two reasons on which an aggrieved person
may base an appeal.
The statutory restrictions on the types of
issues that may be appealed to the Commission are
consistent with other types of administrative appeals.
Workers’ compensation cases provide the most obvious
examples of highly restricted administrative appeals: “The
claimant or the employer may appeal an order of the
industrial commission made under division (E) of section
4123.511 of the Revised Code in any injury or occupational
disease case, other than a decision as to the extent of
disability to the court of common pleas * * *.” (Emphasis
added.) R.C. § 4123.512(A). The Ohio Supreme Court
has routinely interpreted this language to mean that
parties in workers’ compensation cases are limited to
appealing whether or not the employee has a right to
participate in the workers’ compensation fund, or more
specifically, whether the injury, disease, or death occurred
in the course of and arising out of employment. State ex
rel. Liposchak v. Indus. Comm. (2000), 90 Ohio St.3d 276,
279, 737 N.E.2d 519; Felty v. AT&T Technologies, Inc.
(1992), 65 Ohio St.3d 234, 602 N.E.2d 1141; State ex rel.
Evans v. Indus. Comm. (1992), 64 Ohio St.3d 236, 594 N.E.2d
609. Although parties would often prefer to appeal other
issues to the court of common pleas, they are prevented
from doing so on jurisdictional grounds. This Court itself
has affirmed the dismissal, on jurisdictional grounds, of a
workers’ compensation appeal in which the City of
Youngstown argued that its workers’ compensation account
should not be charged for the employee’s injuries because
the employee was, in fact, employed somewhere else at the
time of the injury. City of Youngstown v. DeSalle (June 23,
1987), 7th Dist. No. 86 C.A. 177. Even though the identity
of the employer might be considered as a fairly basic and
fundamental aspect of any workers’ compensation claim, R.C.
§ 4123.512 does not permit such a question to be
appealed, and therefore, DeSalle ruled that the issue could
not be appealed.
Other types of administrative decisions allow
no right of appeal whatsoever: “The determination by STRS
and its retirement board, STRB, of whether a person is
entitled to disability retirement benefits is reviewable by
mandamus because R.C. 3307.62 does not provide any appeal
from the administrative determination.” State ex rel. Pipoly
v. State Teachers Retirement Sys., 95 Ohio St.3d 327,
2002-Ohio-2219, 767 N.E.2d 719, § 14. “[N]o appeal
by way of R.C. 2506.01 is available to aggrieved parties in
an annexation proceeding.” State ex rel. Painesville v.
Lake Cty. Bd. of Commrs. (2001), 93 Ohio St.3d 566, 571,
757 N.E.2d 347. “A decision by the State Employment
Relations Board whether or not to issue a complaint in an
unfair labor practice case is not reviewable pursuant to
R.C. Chapter 119 or R.C. 4117.02(M) and 4117.13(D).” Ohio
Assn. of Pub. School Emp., Chapter 643, AFSCME/AFL-CIO v.
Dayton City School Dist. Bd. of Edn. (1991), 59 Ohio St.3d
159, 572 N.E.2d 80, syllabus.
The fact that Appellee was not permitted, by
statute, to appeal the delay in issuing the CPA does not
mean that Appellee was without recourse. If Appellee had
determined that time was of the essence in receiving a
response from the Division, Appellee could have requested a
prompt answer from the Division, or could have filed a writ
of procedendo in order to force the Division to issue a
response. A writ of procedendo is often the only legal
device available to compel a public official to perform a
duty after a deadline has passed. See, e.g., State ex rel.
Bunting v. Haas, 102 Ohio St.3d 161, 2004-Ohio-2055, 807
N.E.2d 359, § 9 (holding that a writ of procedendo is
appropriate to force a trial judge to rule on a petition
for postconviction relief after the 180-day deadline has
passed); State ex rel. Grove v. Nadel (1998), 81 Ohio St.3d
325, 327, 691 N.E.2d 275 (a writ of procedendo is the
appropriate procedure to compel a trial judge to journalize
a judgment entry after the 30-day deadline in Sup.R. 7(A)
has passed).
There is no indication in the record that
Appellee asked the Division to issue the CPAs in a timely
manner or that Appellee filed a writ of procedendo to
compel the issuance of the CPAs. We have recently ruled
that a party who could have filed a writ of procedendo and
did not has effectively waived the right to appeal any
error arising out of the delay in proceedings: “The failure
to seek the writ of procedendo during the pendency of the
decision precludes the complaining party from challenging
the delay on appeal after the decision is made.” El-Mahdy
v. Mahoning Nat. Bank, 7th Dist. No. 04 MA 41,
2005-Ohio-1341, § 37, citing In re Davis (1999), 84
Ohio St.3d 520, 524, 705 N.E.2d 1219. Based on these cases,
even before reaching the full substance of Appellant’s
argument, I must conclude that there was no jurisdiction to
hear this appeal, and that even if there was, Cravat Coal
waived the right to raise the alleged error on appeal by
failing to file a writ of procedendo.
The jurisdictional issue in this case
overlaps to a certain extent the Division’s first
assignment of error. The Division contends that the
Commission was limited to a very narrow scope of review and
should have restricted itself to examining the two
appealable issues listed in R.C. § 1513.02(E)(3),
namely, the existence of the violation and the amount of
the penalty. The Commission reviews these two issues under
an abuse of discretion standard: “The commission shall
affirm the notice of violation, order, or decision of the
chief unless the commission determines that it is
arbitrary, capricious, or otherwise inconsistent with
law[.]” R.C. § 1513.13(B). Appellant argues that the
Commission’s decision is inconsistent with law because the
30-day deadline in R.C. § 1513.02(E)(3) is advisory
only, because there are no statutory consequences for
violating the 30-day deadline, and because the Commission
vacated the CPAs based on a factor not authorized by the
statute.
Appellant acknowledges that R.C. §
1513.02(E)(3) uses that word “shall” when it directs the
chief of the Division to issue a CPA within 30 days: “the
chief shall inform the operator within thirty days of the
proposed amount of the penalty * * *.” Appellant
acknowledges that the word “shall” is generally construed
as a command, as a mandatory act. Dept. of Liquor Control
v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 534,
605 N.E.2d 368. However, Appellant also cites the
well-established exception to this general rule with regard
to statutes, rules, or regulations dealing with the manner
or time of performing an official act: “Statutes which
relate to the manner or time in which power or jurisdiction
vested in a public officer is to be exercised, and not to
the limits of the power or jurisdiction itself, may be
construed to be directory, unless accompanied by negative
words importing that the act required shall not be done in
any other manner or time than that designated.” Schick v.
City of Cincinnati (1927), 116 Ohio St. 16, 155 N.E. 555,
paragraph one of syllabus; see also State ex rel. Larkins
v. Wilkinson (1997), 79 Ohio St.3d 477, 683 N.E.2d 1139;
State ex rel. Smith v. Barnell (1924), 109 Ohio St. 246,
142 N.E. 611.
This exception to the general rule has been
reaffirmed numerous times by the Ohio Supreme Court, as in
the recent case of State ex rel. Ragozine v. Shaker, 96
Ohio St.3d 201, 2002-Ohio-3992, 772 N.E.2d 1192:
“‘As a general rule, a statute providing a
time for the performance of an official duty will be
construed as directory so far as time for performance is
concerned, especially where the statute fixes the time
simply for convenience or orderly procedure.’ ” Id. at
§ 13, quoting State ex rel. Jones v. Farrar (1946),
146 Ohio St. 467, 32 O.O. 542, 66 N.E.2d 531, paragraph
three of the syllabus.
The statute at issue in Ragozine stated that
a trial court “shall” hold a hearing within a specified
number of days after the filing of a complaint seeking the
removal of a public officer. Although the trial court had
missed the statutory deadline, the Ohio Supreme Court
concluded that the deadline in the statute was directory,
not mandatory, and that the trial court’s failure to meet
the statutory deadline did not deprive it of jurisdiction
to hear the case.
There is nothing in R.C. §
1513.02(E)(3), other than its use of the word “shall,” that
would prevent the Division from issuing a CPA after the
30-day deadline has passed. Based on the longstanding and
consistent interpretation of the Ohio Supreme Court in this
matter, the word “shall” in this context is directory
rather than mandatory, and the Division retained the
authority to issue the belated CPAs. Because the CPAs were
validly issued, and because Appellee had no right to
challenge that tardiness of issuing the CPAs in a direct
administrative appeal, it is apparent that the Commission
should have dismissed Appellee’s administrative appeal and
should not have vacated the CPAs.
Appellant’s next argument is that the
Commission conducted its review based on factors not found
in R.C. § 1513.02 or other related statutes.
According to R.C. § 1513.02(E)(1), the Division was
required to consider four factors prior to issuing the CPA:
“In determining the amount of the penalty, consideration
shall be given to the person’s history of previous
violation at the particular coal mining operation; the
seriousness of the violation, including any irreparable harm
to the environment and any hazard to the health or safety
of the public; whether the person was negligent; and the
demonstrated diligence of the person charged in attempting
to achieve rapid compliance after notification of the
violation.” These factors all relate to the amount of the
penalty, and the amount of the penalty is something which
may be appealed. The Commission, though, based its decision
on the fact that the CPAs were issued after the 30-day
deadline had passed, which is not a factor listed in R.C.
§ 1513.02. Once again, the non-statutory factor that
the Commission used was improper primarily because it was
jurisdictional; it relates to a matter that could not be
appealed in the first place, namely, the authority of the
Director to issue a CPA after the 30-day deadline in R.C.
§ 1513.02(E)(3) had passed.
The Division cites a case from this Court, C.
& T. Evangelinos v. Div. Of Mineral Resources Mgmt., 7th
Dist. No. 03 BE 70, 2004-Ohio-7061, that has some relevance
to this appeal. The underlying dispute in Evangelinos
concerned the validity of a mining permit after the
Division had issued a renewal of the permit. The mining
company that originally held the permit had filed notices
that it was temporarily suspending operations, and then
applied to the Division to transfer its permit to another
mining company. The transfer was approved, but the new
permit owner also filed notices requesting postponement of
mining operations. According to R.C. §
1513.07(A)(3), a mining permit shall terminate if mining
has not commenced within three years after the permit is
issued. However, R.C. § 1513.07(A)(3) also provides
that the chief of the Division may grant reasonable
extensions for certain designated reasons.
During the fourth year of the permit, the new
mining company filed to renew the permit for another five
years, and this renewal was retroactively granted 17 months
later.
After the permit was renewed, the owner of
the land who had granted the mining rights filed an appeal
to the Commission challenging the validity of the renewed
mining permit. The landowner argued, in part, that the
Division was required by R.C. § 1513.07(l)(1) to rule
on the renewal application within 60 days, and that there
was no statutory authority to grant the renewal 17 months
after the mining company had applied for it. Id. at
§ 78.
The Commission concluded that the statute in
question did not establish a penalty for the Division’s
failure to act within 60 days, and that “[t]he Division’s
apparent disregard of time deadlines, while frustrating to
both citizens and permittees, is simply not grounds for
permit denial under the statute.” Id. at § 79. We
agreed with the Commission’s interpretation of the statute
and affirmed their decision.
The Evangelinos holding is completely
consistent with our analysis in the instant case. Similar
to our holding in Evangelinos, I would also conclude in
this appeal that there are no statutory consequences set
forth if the Division issues a CPA after the 30-day
deadline, and thus, that the CPAs were validly issued even
after 134 and 252 days. Appellee would have us further
address the reasonableness of the delay, but as I stated
earlier, Appellee has no right to appeal this issue since
it does not pertain to the amount of the penalty or the
fact of the violation itself. Thus, “reasonableness” should
not be an issue.
Even if the record did not clearly reflect,
in my opinion, that the matter should have been dismissed
on jurisdictional grounds, I would still reverse the
decision of the Commission and reinstate the fines. The
record reflects that Cravat Coal did not assert or prove
that they were harmed by the delay in issuing the CPAs.
Cravat Coal obviously knew that some sort of penalty would
be forthcoming because it admitted from the beginning that
it committed the violations. It was also to their advantage
to ignore the fact that no CPAs were being issued because
the delay allowed Cravat Coal to keep using the funds that
would be needed to pay the fines that were ultimately
imposed.
The decision of the majority concerns me,
also, because of the precedent it sets. The record clearly
indicates that the delay in issuing the CPAs was due to a
manpower shortage in the Division of Mineral Resources. If
there is a manpower shortage, then it is likely there will
be further delays in issuing CPAs, and further challenges
to the validity of other CPAs based merely on how long it
took to issue each CPA. It would appear that the best way
to thwart the enforcement efforts of the Division is for
mining companies to violate as many regulations as
possible, thus overwhelming the Division with work and
ensuring that no CPAs will be issued in a timely fashion.
I am persuaded by Appellant’s arguments and
would vacate the order of the Commission based on its lack
of subject matter jurisdiction to hear the issue raised by
Appellee in the administrative appeal. Therefore, I must
dissent from the majority opinion in this case.