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Doodles v. Ohio Department of Health

Court of Appeals of Ohio, Tenth District

July 9, 2013

Doctor Doodles, Appellant-Appellant,
v.
Ohio Department of Health, Appellee-Appellee.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 12CV-3339

The Gearhiser Law Firm, Inc., and Kurt O. Gearhiser, for appellant.

Michael DeWine, Attorney General, and Angela M. Sullivan, for appellee.

DECISION

VUKOVICH, J.

{¶ 1} Appellant-appellant, Doctor Doodles, appeals from a judgment of the Franklin County Court of Common Pleas upholding a prior administrative determination rendered by appellee-appellee, the Ohio Department of Health. Doctor Doodles is the trade name ("doing business as, " or "dba") for a public bar located in Montgomery County, Ohio. The business is owned by a corporate entity, G.W. Sheffield Enterprises, Inc. Doctor Doodles is charged with violations of Ohio's Smoke-Free Workplace Act ("Smoke-Free Act"), codified at R.C. Chapter 3794, which prohibits smoking in many public places and places of employment. As the case is now postured, the issue on appeal is not whether the Smoke-Free Act violations occurred on the premises, but whether prosecution of the violations proceeded against the correct legal entity.

{¶ 2} The facts and procedural history of the case are not in dispute. Appellee's delegee, the Public Health Department of Dayton and Montgomery County ("PHDDMC"), initiated the matter with a notification letter addressed to "Doctor Doodles" at the bar's address on Miamisburg-Centerville Road in Dayton, Ohio. This notification letter does not bear a salutation. This letter advised the establishment that PHDDMC received an anonymous tip alleging smoking violations on the premises.

{¶ 3} Based on the anonymous tip and the bar's history of Smoke-Free Act violations, PHDDMC initiated an investigation. A department sanitarian visited the premises and observed violations of the Smoke-Free Act. After announcing his presence, the investigator spoke with the bartender in charge of the establishment on the day in question, Marina McClelland, and she is named on the investigation worksheet as the "proprietor."

{¶ 4} Based on these observed violations, PHDDMC sent a violation letter, again addressed to "Doctor Doodles, " detailing the observed violations and consequent fines. The letter also advised of appeal rights. The salutation of this letter reads "Dear Proprietor."

{¶ 5} George Sexton, identifying himself as owner and operator of Doctor Doodles, responded with a letter conveying a formal request for administrative review of the violations. The Ohio Department of Health replied with a notice of administrative review setting the hearing date. This notice is addressed to "Doctor Doodles, George Sexton, Owner/Operator." (Record of Proceedings, at 13; hereinafter "R. .") Counsel for G.W. Sheffield Enterprises, Inc. responded with a motion for continuance of the hearing previously scheduled for March 4, 2011. Counsel's motion captions the matter as "In Re. G. W. Sheffield Enterprises, Inc. Dba Doctor Doodles, " and indicates that counsel had recently been retained by "the permit holder, " needed additional time to prepare, and had a conflict on a previously set date. (R. 15.)

{¶ 6} The Ohio Department of Health responded with a letter addressed to "Doctor Doodles George Sexton, Owner/Operator" granting the continuance. (R. 16.)

{¶ 7} All further correspondence in the record is addressed to "George Sexton Doctor Doodles." (R. 16, exhibit a.)

{¶ 8} The matter was heard before a hearing officer on June 9, 2011, conducted pursuant to Ohio Adm.Code Section 3701-52-08. At this hearing, the ownership and responsibility for the business was clarified, albeit only partially, by the testimony of George Sexton. He stated that the owner of the business is G.W. Sheffield Enterprises, Inc., and this name appears on the liquor license. Mr. Sexton testified that he believed that the name on the health department food service license was Doctor Doodles Lounge. Finally, Mr. Sexton testified that G.W. Sheffield Enterprises, Inc. is owned by his wife, Wanda Sexton, but that he runs the day-to-day business.

{¶ 9} The report of the hearing officer is captioned "In the matter of: Doctor Doodles, " and notes that the violator appeared represented by counsel. The hearing officer noted that, in correspondence preceding the hearing, Mr. Sexton identified himself as the owner/operator of Doctor Doodles and that most notices were sent to Doctor Doodles and Mr. Sexton at the establishment address. The hearing officer noted that this was the fifth violation for the establishment, but that the first two violations had been assessed against Mr. Sexton as the named violator. The three subsequent violations had been assessed against Doctor Doodles as the named violator. Based on this distinction, the hearing officer concluded that the applicable penalty under the progressive fine structure of Ohio Adm.Code 3701-52-09(A) was that for a third, rather than fifth, violation.

{¶ 10} The director of the Ohio Department of Health approved the hearing officer's recommendation and made a final finding of a violation. Appellant appealed to the Franklin County Court of Common Pleas, which upheld the department's order and rejected appellant's argument that Doctor Doodles, as a mere dba of G.W. Sheffield Enterprises, Inc. the actual permit holder and owner of the bar, could not be held liable for the Smoke-Free Act violation. The common pleas court found no prejudice to appellant from the ambiguity, and noted that all affiliated entities had a full opportunity to litigate and contest the violation. The common pleas court examined the language of the Smoke-Free Act and concluded that the Act allows different persons acting in different capacities to be simultaneously considered as ...


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