Opinion
No. 91-1860
Submitted April 27, 1992
Decided July 15, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 91AP-514.
The instant controversy originated from disciplinary charges initiated by the State Medical Board of Ohio ("board") against appellant, Robert E. Heath, M.D., under R.C. 4731.22(B). Following a hearing, the hearing examiner, in a report dated March 1, 1991, issued proposed findings of fact and conclusions of law, recommending that appellant's certificate to practice medicine and surgery in Ohio be revoked. At a hearing on April 10, 1991, the board was unable to reach a decision by majority vote and, therefore, tabled the matter until May 8, 1991.
On May 1, 1991, appellant filed a complaint against the board and its individual members, appellees herein, seeking a writ of prohibition declaring all board action regarding appellant's certificate void for lack of jurisdiction and commanding the board to take no further action. At its meeting of May 8, 1991, the board confirmed the hearing officer's recommendation and, by order dated May 10, 1991, revoked appellant's certificate to practice medicine and surgery in Ohio. On June 10, 1991, appellant filed an amended complaint in the case to include a request for a writ of mandamus directing the board to rescind its May 10, 1991 order. The court of appeals sustained appellees' motions to dismiss for failure to state a claim for which relief could be granted and because appellant had an adequate remedy at law.
The cause is before this court upon an appeal as of right.
Lindhorst Dreidame and Thomas M. Tepe, for appellant.
Lee I. Fisher, Attorney General, and Susan C. Walker, for appellees.
R.C. 4731.23(D), provides:
"The board shall render a decision and take action within sixty days following the receipt of the hearing examiner's proposed finding of fact and conclusions of law or within any longer period mutually agreed upon by the board and the certificate holder."
Clearly, the board did not take action within the sixty-day period. However, the court of appeals sustained appellees' motions to dismiss, finding:
"The underlying contention of relator is that * * * respondents lack jurisdiction because they did not act timely. Again, the remedy of appeal constitutes an adequate remedy at law. * * * [T]here is no statutory provision that failure to act timely deprives respondent board of the jurisdiction to act * * *.
"This is not a case where an administrative tribunal is either totally without jurisdiction to act or is usurping jurisdiction which it does not possess."
Appellant contends that the issue is whether the board was required to act within sixty days or be deprived of its jurisdiction to revoke his certificate. Appellees reply that the real issue is whether the decision of the court of appeals, sustaining their motions to dismiss based upon the availability of an adequate legal remedy, was an abuse of discretion.
As we stated in State ex rel. Casey Outdoor Advertising, Inc. v. Ohio Dept. of Transp. (1991), 61 Ohio St.3d 429, 430, 575 N.E.2d 181, 183: "The issue presented is whether the court of appeals, in refusing to issue the writ [of mandamus], abused its discretion." We then quoted State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, to the effect that when, in a mandamus action, it is determined that the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal, the court lacks authority to exercise jurisdictional discretion and is required to deny the writ. So too here. R.C. 119.12 provides a statutory appeal from the order of an agency revoking a license. The court of appeals determined that appellant had an adequate remedy by way of this appeal. We agree and find no abuse of discretion.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.