The opinion
[Cite as Hughes v. Ohio Bd. of Nursing, 2016-Ohio-4768.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
David K. Hughes, R.N., :
Appellant-Appellant, :
No. 15AP-786
v. : (C.P.C. No. 14CVF12-13160)
Ohio Board of Nursing, : (REGULAR CALENDAR)
Appellee-Appellee. :
D E C I S I O N
Rendered on June 30, 2016
On brief: Graff & McGovern, LPA, and James M.
McGovern, for appellant. Argued: John A. Izzo.
On brief: Michael DeWine, Attorney General, and
Emily A. Pelphrey, for appellee. Argued: Emily A.
Pelphrey.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Appellant, David K. Hughes, appeals from a judgment of the Franklin
County Court of Common Pleas affirming a decision of appellee, the Ohio Board of
Nursing ("the Board"), permanently revoking his nursing license. For the following
reasons, we affirm that judgment.
I. Factual and Procedural Background
{¶ 2} Appellant had been a licensed nurse in Ohio since 2006. In 2013, however,
appellant pled guilty to and was convicted of single counts of voyeurism and attempted
voyeurism in the Franklin County Court of Common Pleas. Shortly after his convictions,
No. 15AP-786 2
the Board sent appellant a "Notice of Opportunity for Hearing" ("the Notice") which
informed appellant that, as a result of his convictions, the Board proposed to sanction his
license pursuant to R.C. 4723.28(B)(4). That section provides that the Board may
sanction a licensed nurse for, in relevant part, a conviction of any crime involving gross
immorality or moral turpitude. The Notice included a paragraph which stated that police
had found numerous items of "child erotica," "child pornography," "diaper images," and
"voyeur images" on appellant's computer and/or storage devices during the investigation
of appellant (hereinafter referred to as "the Fourth Paragraph"). Pursuant to the
advisements in the Notice, appellant requested a hearing on the Board's proposed
sanction of his license.
{¶ 3} Before the hearing, appellant filed a motion in limine to request the
exclusion of any reference to the allegations contained in the Fourth Paragraph from his
hearing.1 Appellant argued that the allegations in the Fourth Paragraph were not the
basis of his convictions and were, therefore, prejudicial and irrelevant to the proceedings.
In its decision on the motion, the hearing officer concluded that appellant's two
convictions did not involve any of the allegations contained in the Fourth Paragraph and,
therefore, refused to allow the Board to use those allegations to prove that appellant was
convicted of a crime involving gross immorality or moral turpitude under R.C.
4723.28(B)(4). The hearing officer allowed the Board, however, to use the allegations in
the Fourth Paragraph solely for purposes of determining an appropriate sanction if
appellant was found to have committed a crime involving gross immorality or moral
turpitude.
{¶ 4} Ultimately, the parties submitted a joint stipulation to the hearing officer in
lieu of a hearing. In the stipulation, appellant agreed that his convictions constituted
crimes involving gross immorality or moral turpitude in violation of R.C. 4723.28(B)(4).
He then explained the facts and circumstances of those convictions and detailed the steps
he took after the convictions to address his pornography addiction and voyeuristic
tendencies in an attempt to mitigate his sanction. Numerous exhibits were part of the
stipulation, including documents from the police investigation noted in the Fourth
1 Appellant also requested that the Fourth Paragraph be stricken from the Notice, but the hearing officer
concluded that it did not have the authority to strike a paragraph from a notice. Appellant does not
address that ruling in this appeal.
No. 15AP-786 3
Paragraph. In light of the parties' stipulation, the hearing officer concluded that
appellant's convictions were for crimes of gross immorality or moral turpitude and, as a
result, the Board was authorized to sanction him under R.C. 4723.28(B)(4). The hearing
officer recommended that the Board permanently revoke appellant's license.
{¶ 5} The Board considered and accepted the hearing officer's recommendation
to permanently revoke appellant's license. In so doing, however, the Board specifically
noted in its adjudication order that "in considering a sanction, the Board has not given
any weight to [the Fourth Paragraph] or to State's Exhibit 9 [a report from the police
investigation] to the extent it references allegations that did not result in criminal charges;
rather, the Board finds sufficient basis in [appellant's] criminal convictions, his
voyeuristic tendencies that escalated into overt criminal behavior, and the declaration by
the Franklin County Court of Common Pleas that he is a Tier 1 Sex Offender subject to
fifteen (15) years registration, to form the basis for the Board's determination that his
license to practice be permanently revoked in order to protect the public." (Adjudication
Order at 1-2.) Appellant appealed the Board's decision to the Franklin County Court of
Common Pleas, which affirmed the Board's decision.
II. Appellant's Appeal
{¶ 6} Appellant appeals the trial court's decision to this court and assigns the
following errors:
[1.] The Franklin County Court of Common Pleas erred and
abused its discretion when it found that the Ohio Board of
Nursing's Adjudication Order was based upon reliable,
probative and substantial evidence and was in accordance
with law.
[2.] The Franklin County Court of Common Pleas erred and
abused its discretion when it found that the Board did not
violate Mr. Hughes' due process rights.
A. Standard of Review
{¶ 7} Pursuant to R.C. 119.12, when a common pleas court reviews an order of an
administrative agency, the court must consider the entire record to determine if the
agency's order is supported by reliable, probative, and substantial evidence and is in
accordance with law. Clayton v. Ohio Bd. of Nursing, 10th Dist. No. 13AP-726, 2014-
No. 15AP-786 4
Ohio-2077, ¶ 24. An appellate court's review of an administrative decision is more limited
than that of a common pleas court. Beach v. Ohio Bd. of Nursing, 10th Dist. No. 10AP-
940, 2011-Ohio-3451, ¶ 14. Unlike a trial court, an appellate court may not review the
evidence. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). An appellate court
is limited to determining whether the trial court abused its discretion. Id. Absent such an
abuse of discretion, an appellate court must affirm the trial court's judgment, even if the
appellate court would have arrived at a different conclusion than the trial court. Lorain
City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261 (1988).
When reviewing the trial court's judgment as to whether an agency's decision is in
accordance with law, an appellate court's review is plenary. Spitznagel v. State Bd. of
Edn., 126 Ohio St.3d 174, 2010-Ohio-2715, ¶ 14.
B. Appellant's First Assignment of Error
{¶ 8} Appellant argues in his first assignment of error that the Board did not have
the authority to promulgate Ohio Adm.Code 4723-16-07, an administrative rule that
permits the Board to consider various factors in arriving at its disciplinary decision.2 He
also argues that the police offense report contained in state's exhibit No. 9 of the parties
joint stipulation is not reliable, probative, or substantial evidence to support the Board's
decision to permanently revoke his license. We reject both arguments.
2 In relevant part, Ohio Adm.Code 4723-16-07 provides that:
(C) When making a decision regarding disciplinary action, the board may consider
factors including, but not limited to, the following:
(1) Whether the act is willful, intentional, irresponsible, or unintentional;
(2) Whether the respondent failed to cooperate with the board investigation;
(3) Whether the respondent provided false, misleading or deceptive information to
the board or board staff;
(4) The frequency of occurrence of the act at issue;
(5) Whether the act represents a pattern of commissions or omissions;
(6) The outcome of the actions of a licensee or certificate holder; or
(7) The level of harm or potential harm to a patient.
No. 15AP-786 5
{¶ 9} Appellant did not challenge the Board's authority to promulgate Ohio
Adm.Code 4723-16-07 before the Board or the trial court. A party generally waives the
right to appeal issues that could have been raised, but were not raised, in earlier
proceedings. In re Application of Columbus S. Power Co., 129 Ohio St.3d 271, 2011-Ohio-
2638, ¶ 19; Trish's Café & Catering, Inc. v. Ohio Dept. of Health, 195 Ohio App.3d 612,
2011-Ohio-3304, ¶ 19 (10th Dist.); McBroom v. Dickerson, 10th Dist. No. 11AP-601, 2012-
Ohio-377, ¶ 11. Because appellant did not challenge the Board's authority to promulgate
Ohio Adm.Code 4723-16-07 before the Board or the trial court, he has waived the
argument on appeal. Campus Pitt Stop, L.L.C. v. Ohio Liquor Control Comm., 10th Dist.
No. 13AP-622, 2014-Ohio-227, ¶ 14.
{¶ 10} Appellant also contends in his first assignment of error that the police
offense report contained in state's exhibit No. 9 of the parties' joint stipulation is not
reliable, probative, or substantial evidence to support the Board's decision to permanently
revoke his license. He argues that the report prejudiced him because it suggested he
committed crimes in addition to the convictions referenced in the stipulation. We
disagree.
C. Appellant's Second Assignment of Error
{¶ 11} Appellant cannot show that he was prejudiced by state's exhibit No. 9
because the Board specifically noted that it did not give any weight to the exhibit in its
decision-making process. The Board expressly considered only his two convictions.
Appellant stipulated that his convictions were offenses of gross immorality or moral
turpitude. Therefore, appellant stipulated to the facts that authorized the Board to
permanently revoke his license. Because the Board expressly stated it gave no weight to
state's exhibit No. 9 and because appellant waived a challenge to the promulgation of
Ohio Adm.Code 4723-16-07, we overrule appellant's first assignment of error.
{¶ 12} In his second assignment of error, appellant contends the Board violated his
constitutional due process rights. He also argues that the Board should not have
considered the police report because its admission denied him a meaningful hearing or
the opportunity to confront his accuser. Again, we disagree.
{¶ 13} Appellant did not assert a constitutional due process argument before the
board or the trial court. Therefore, he has waived the argument on appeal. Campus Pitt
No. 15AP-786 6
Stop, L.L.C. at ¶ 14. His challenge to the police report also fails because, as previously
noted, the Board expressly stated that it did not give any weight to the police report.
Therefore, appellant was not prejudiced. For these reasons, we overrule appellant's
second assignment of error.
III. Conclusion
{¶ 14} We overrule appellant's two assignments of error and affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and SADLER, J., concur.