State Ex Rel. Barron v. Ohio Motor Vehicle Dealers Board

*455 Strausbaugh, P. J. This is an original action wherein relator seeks a writ of mandamus ordering respondent to hold a hearing upon the verified complaint filed by relator in accordance with R.C. 4517.33, to make a determination as to whether grounds exist to revoke the license granted Falhaber Datsun] Inc. or in the alternative ordering that said license be revoked based on a finding that respondent abused its discretion by failing to revoke said license. An examination of the record in this case, which was stipulated by the parties to be a statement of facts and certain pieces of proffered evidence, indicates Falhaber Datsun, Inc. submitted an application for a dealer’s license on March 3, 1980. On the following day, said corporation received a dealer’s license after the proposed site of the dealership was inspected by an investigator of the Bureau of Motor Vehicles. Pursuant to R.C. 4517.33, relator filed a verified complaint with respondent alleging that Falhaber Datsun, Inc. was not in compliance with various regulations as set forth in R.C. 4517.01 to 4517.45 or with the rules of the motor vehicle dealers and sales person licensing board and demanding that respondent revoke the dealer’s license which, according to relator, was improperly issued to Falhaber Datsun, Inc. On the advice of counsel, respondent at its meeting of April 9, 1980 decided to refer relator’s verified complaint to the staff of the Bureau of Motor Vehicles for investigation pursuant to R.C. 4517.31(B), which reads as follows: “All clerical, inspection, and other agencies for the execution of the powers and duties vested in the board shall be in the bureau of motor vehicles, which shall provide the necessary employees as authorized by section 4501.02 of the Revised Code.” Walter J. Arrowsmith, an administrative assistant at the Bureau of Motor Vehicles, conducted the investigation. Said investigation included interviews with relator, William H. Falhaber, a representative of Nissan Motor Corp., the field investigator of the Bureau of Motor Vehicles who inspected the proposed site of the dealership prior to the issuance of the dealer’s license, the chief investigator of the Bureau of Motor Vehicles and the assistant chief of the vehicle registration division of the Bureau of Motor Vehicles. After reviewing the notes and conclusions drawn by Arrowsmith, Dean L. Dollison, Registrar of Motor Vehicles and, pursuant to R.C. 4517.31(A), ex officio secretary and executive officer of respondent, concluded that there were not sufficient grounds upon which to proceed with a hearing concerning the charges alleged in relator’s verified complaint. Relator was notified of this conclusion by letter dated April 23, 1980. Relator’s attempt to appeal the decision of respondent, as represented by the letter from Dean L. Dollison, to the Court of Common Pleas of Franklin County failed upon this court’s holding that the decision by respondent was not an ap-pealable order. This court also found that, even if the decision not to proceed against Falhaber Datsun, Inc. was a final, ap-pealable order, relator would have no standing to bring the appeal, relator not being adversely affected by such an order. See this court’s decision in Barron v. State (Dec. 2, 1980), No. 80AP-470, unreported. In State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141 [40 O.O.2d 141] the Supreme Court, in paragraph nine of the syllabus, held: “Mandamus will lie to permit a private individual to compel a public officer to perform an official act, where such officer is under a clear legal duty to do so, and where the relator has an interest, such as that of a taxpayer, or he is being denied a private right or benefit by reason of such public officer’s failure to take action to perform that act which he is under a clear legal duty to perform.” *456 Relator’s petition for a writ of mandamus raises the single issue of whether respondent has a duty to conduct a hearing upon the verified complaint filed by relator so as to determine whether or not the dealer’s license issued to Falhaber Datsun, Inc. should be revoked. Relator contends that R.C. 4517.33 mandates that an investigation and ' a proper administrative hearing be held by respondent to consider the evidence and determine the issues raised by the verified complaint. Respondent argues that R.C. 4517.33requires only that an investigation be held upon the filing of a verified petition and that the investigation by Ar-rowsmith on behalf of respondent fulfilled said requirement. Additionally, respondent contends that in the absence of a clear legal duty of respondent to conduct a hearing, relator’s petition for a writ of mandamus must be denied. At the center of this dispute between the parties is R.C. 4517.33, which in pertinent part states as follows: “The board may make rules governing its actions relative to the suspension and revocation of dealers’, motor vehicle leasing dealers’, distributors’, auction owners’, and salespersons’ licenses and may, upon its own motion, and shall, upon the verified complaint in writing of any person, investigate the conduct of any licensee under sections 4517.01 to 4517.45 of the Revised Code. The board shall suspend or revoke or notify the registrar to refuse to renew any dealer’s, motor vehicle leasing dealer’s, distributor’s, auction owner’s, or salesperson’s license if any ground existed upon which the license might have been refused, or if a ground exists which would be cause for refusal to issue a license.” A reading of that portion of R.C. 4517.33quoted above allows us to conclude that respondent is under a clear legal duty to investigate the conduct of any licensee upon the filing of a verified complaint. In the case now before us respondent, upon the receipt of relator’s verified complaint, adopted the opinion of its counsel and ordered that an investigation be conducted by the Bureau of Motor Vehicles. Said delegation was in compliance with R.C. 4517.31(B) which states as follows: “All clerical, inspection, and other agencies for the execution of the powers and duties vested in the board shall be in the bureau of motor vehicles, which shall provide the necessary employees as authorized by section 4501.02 of the Revised Code.” A review of the record before us indicates that the report of the investigation conducted by Arrowsmith was made available to respondent but only reviewed by Dean Dollison, Registrar of the Bureau of Motor Vehicles and ex officio secretary and executive officer of respondent. It appears from the record that Dollison alone concluded that relator’s verified complaint should be dismissed without further action. Based upon those undisputed facts we find that respondent has complied with R.C. 4517.33 but that the procedure invoked by respondent is violative of relator’s due process rights. Resolution of this issue requires that we define the nature of relator’s interest in the procedures of the respondent. R.C. 4517.33allows any -person to file a verified complaint in writing with respondent objecting to the registrar’s grant or revocation of a dealer’s license. This court previously held in Barron, supra, that a person filing a verified complaint pursuant to R.C. 4517.33 does not have standing to appeal a final order of respondent pursuant to R.C. 119.12. However, we find that the legislative intent, found in the language of R.C. 4517.33, was to grant to those who filed a verified complaint the right to have the complaint investigated and the right to have respondent determine whether the allegation contained in the complaint can serve as a basis for respondent to begin an action to modify, suspend or revoke the license of the dealer in question. While the *457 legislature has provided that respondent may delegate all powers and duties vested in it to the Bureau of Motor Vehicles, due process requires that the determination of whether the allegations contained in a verified complaint may sérvelas a basis for further proceedings against a dealer must be made by respondent, based on the results of the investigation-. Fundamental due process also requires that, where the agency against which a complaint is made, is given sole authority to investigate such a complaint, the complainant be given a hearing before an independent board, i.e., respondent. The facts of this case indicate that relator filed a verified complaint alleging that Falhaber Datsun, Inc. was improperly issued a dealer’s license by the Bureau of Motor Vehicles. Once the verified complaint was filed, the record indicates that the investigation was conducted by an employee of the Bureau of Motor Vehicles and that the Registrar of the Bureau of Motor Vehicles reviewed the report of the investigation and concluded that there was no evidence to support relator’s complaint. Such a procedure does not comply with the intent of the legislature as manifested by the language in R.C. 4517.33, nor with the due process rights of relator. While relator’s interest in the proceedings of respondent is limited, due process requires that, if respondent delegates the investigation to the Bureau of Motor Vehicles, there must be a hearing in which the respondent must determine whether relator’s verified complaint presents probable cause for respondent to engage in a proceeding against the dealer in question, based on the evidence arising from the investigation. The probable cause hearing is important in two respects. First, it assures all participants that the investigation conducted by the Bureau of Motor Vehicles was complete. Secondly, a probable cause hearing before respondent guarantees that an impartial authority has reviewed results of the investigation and made a decision as to whether to continue with proceedings against the person accused in a verified complaint. As previously stated, upon the filing of a verified complaint relator’s interest in the subsequent proceedings is limited. Relator claims that, upon the filing of a verified complaint, relator is entitled to participate in a hearing before respondent conducted pursuant to R.C. Chapter 119. We do not agree. Relator’s position as a complainant pursuant to R.C. 4517.33 is not equivalent to that of a party as defined by R.C. 119.01(G), set forth below: “ ‘Party’ means the person whose interests are the subject of an adjudication by an agency.” This court has previously ruled in Barron, supra, that relator’s interests in the proceeding before respondent did not rise to that of a person afforded an adjudication hearing pursuant to R.C. Chapter 119, for the purposes of appeal. Relator’s interest in the subsequent proceedings of respondent following the filing of a verified complaint does not rise to the level of that which would require a hearing within the requirements of R.C. Chapter 119. R.C. 4517.33 specifically gives respondent the discretion to make rules governing its action relative to the suspension and revocation of a dealer’s license. Pursuant to that authority, respondent should make rules governing the hearing whereby it is determined whether the allegations contained in the verified complaint may serve as a basis for further proceedings against the dealer in question. Accordingly, relator is hereby allowed a writ of mandamus ordering respondent to conduct a hearing to determine whether there is evidence to support further action against Falhaber Datsun, Inc. Writ allowed. Moyer, J., concurs. *458 Whiteside, J., dissents.