The opinion
O’Donnell, J.,
dissenting.
{¶ 27} I respectfully dissent.
{¶ 28} R.C. 5717.02 expressly provides that “[t]he board may order the appeal to be heard upon the record and the evidence certified to it by the commissioner or director, but upon the application of any interested party the board shall order the hearing of additional evidence, and it may make such investigation concerning the appeal as it considers proper.” (Emphasis added.) This court has long recognized that use of the word “shall” “ ‘denotes that compliance with the commands of that statute is mandatory.’ (Emphasis sic.)” State ex rel. Adams v. Aluchem, Inc., 104 Ohio St.3d 640 , 2004-Ohio-6891 , 821 N.E.2d 547, ¶ 12 , quoting Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 534 , 605 N.E.2d 368 .
{¶ 29} Moreover, Ohio Adm.Code 5717-1-11(A) provides that discovery “may be permitted by deposition upon oral examination or written questions; written interrogatories; production of documents or tangible things or permission to enter upon land or other property; and requests for admissions” in accordance with the Rules of Civil Procedure, to the extent that they are not inconsistent with other BTA rules.
{¶ 30} The majority opinion expressly acknowledges “as a general matter that the BTA has no power analogous to that of a court in a civil action to grant summary judgment under Civ.R. 56 or dismissal for failure to state a claim under Civ.R. 12(B)(6).” ¶ 11. Yet the majority concludes that the BTA could appropriately grant summary judgment in this case to the extent that the Browns sought the application of a favorable ruling in Knust v. Wilkins, 111 Ohio St.3d 331 , 2006-Ohio-5791 , 856 N.E.2d 243 , because the conduct of a hearing would be, in *343 the majority’s view, an exercise in futility. R.C. 5717.02, however, provides no exception to its mandatory language requiring the BTA to conduct a hearing “upon the application of any interested party.” Moreover, the BTA’s own holdings recognize that it has no authority to grant summary judgment because “the Ohio Rules of Civil Procedure, which prescribe practice before Ohio courts, have been adopted by this board only for purposes of discovery.” Weastec, Inc. v. Highland Cty. Bd. of Revision (Interim Order, Jan. 18, 2008), BTA No. 07-H-884, 2008 WL 291887 at 2.
Cavitch, Familo, Durkin & Frutkin Co., L.P.A., Michael C. Cohan, Stephen E. Pigott, and Kismet R. Wunder, for appellants.
Nancy Hardin Rogers, Attorney General, and Barton A. Hubbard, Assistant Attorney General, for appellee.
{¶ 31} Accordingly, I would hold that the BTA erred in ruling upon this appeal without first conducting a hearing and affording the opportunity to conduct discovery. I further dissent from the majority’s ultimate holding for the reasons stated in my dissent in Knust.