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Parker's Tavern v. Ohio Department of Health

November 8, 2011

PARKER'S TAVERN, APPELLANT-APPELLANT,
v.
OHIO DEPARTMENT OF HEALTH, APPELLEE-APPELLEE.



(C.P.C. No. 10CV01-513)

The opinion of the court was delivered by: Klatt, J.

Cite as Parker's Tavern v. Ohio Dept. of Health,

(REGULAR CALENDAR)

DECISION

ON APPLICATION FOR RECONSIDERATION

{¶1} Appellant, Parker's Tavern (hereinafter "the Tavern"), has filed an application for reconsideration, pursuant to App.R. 26(A), requesting that the court reconsider its decision rendered on July 21, 2011. Appellee, the Ohio Department of Health, through its designee, the Franklin County Board of Health (hereinafter "Franklin County"), has filed a memorandum in opposition. For the following reasons, we grant the Tavern's application for reconsideration and reaffirm our previous decision.

{¶2} When presented with an application for reconsideration, an appellate court must determine whether the application calls to the court's attention an obvious error in its decision or raises an issue for consideration that was either not considered at all or was not fully considered by the court when it should have been. State v. Wade, 10th Dist. No. 06AP-644, 2008-Ohio-1797, ¶2; Columbus v. Hodge (1987), 37 Ohio App.3d 68, 69. " 'An application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court.' " Columbus v. Dials, 10th Dist. No. 04AP-1099, 2006-Ohio-227, ¶3 (quoting State v. Owens (1996), 112 Ohio App.3d 334, 336). "App.R. 26 provides a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law." Owens at 336.

{¶3} In our July 21, 2011 decision, we affirmed a judgment of the Franklin County Court of Common Pleas that affirmed a decision of the appellee finding the Tavern in violation of Ohio's Smoke Free Workplace Act. In doing so, we overruled the Tavern's first assignment of error because we concluded that the Tavern did not make the argument in the trial court. The Tavern requests that we reconsider that decision, because it claims that it did make the argument to the trial court. We agree. While the Tavern's assignments of error in its trial court brief do not mention this argument, the Tavern did make the argument under its second assignment of error which contested the sufficiency of the evidence supporting its smoking violation. Therefore, we grant the Tavern's application for reconsideration and will address the Tavern's first assignment of error.

{¶4} The Tavern argues in its first assignment of error that appellee's inspectors did not conduct interviews as required by Ohio Adm.Code 3701-52-08(D) as part of its investigation. We disagree.

{¶5} Ohio Adm.Code 3701-52-08(D)(2) provides, in pertinent part:

(2) The Ohio department of health may, in its discretion, investigate a complete report of violation or promptly transmit the report of violation to a designee in the jurisdiction where the reported violation allegedly occurred for investigation and enforcement. If the report of violation is transmitted to a designee, the designee shall investigate all complete reports of violation. For the purposes of this chapter, an investigation may include but is not limited to:

(a) A review of report of violation;

(b) A review of any written statement or evidence contesting the ...


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