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(3) 122.3 Chapter 119. Hearings: Notice
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Whenever the state fire marshal proposes to take an action that the Ohio general assembly has expressly made subject to the administrative adjudication procedure outlined in Chapter 119. of the Revised Code, the state fire marshal shall give notice of the intended action to the affected party informing the affected party of the affected party's right to a hearing. Notice shall be given by registered mail, return receipt requested, and shall, at a minimum, include all of the following:
(i) The specific action or actions the state fire marshal intends to take;
(ii) The charges or other reasons for the proposed action or actions;
(iii) The statute or rule directly involved;
(iv) A statement informing the affected party that the affected party is entitled to a hearing if the affected party requests it within thirty days of the time of mailing the notice;
(v) A statement informing the affected party that at the hearing the affected party may appear in person or through an attorney;
(vi) A statement informing the affected party that the affected party or the affected party's attorney may present the affected party's position, arguments or contentions entirely in writing, and that at the hearing the affected party or the affected party's attorney may present evidence and examine witnesses appearing for and against the affected party; and
(vii) A statement informing the affected party that rules governing hearings in accordance with Chapter 119. of the Revised Code are found in rule 1301:7-7 of the Administrative Code.
The state fire marshal shall also mail a copy of the notice to the affected party's attorney or other representative of record. To qualify as an attorney or representative of record, the affected party or the attorney or representative must notify the state fire marshal, in writing, that the attorney or representative is to be designated the attorney or representative of record. The notification must include the address where the state fire marshal should mail the notice to the attorney or representative of record. The mailing of notice to the affected party's attorney or representative is not deemed to perfect service of the notice. Failure to mail a copy of the notice to the attorney or representative of record will not result in failure of otherwise perfected service upon the affected party. In those instances where an affected party is a corporation doing business in Ohio or is incorporated in Ohio, the mailing of notice to the corporation's statutory agent pursuant to sections 1701.07 and 1703.19 of the Revised Code will perfect service provided that all the requirements of paragraph (A)(3)(a)(122.3.1) of this rule have been complied with.
When any notice sent by registered mail pursuant to this rule is returned because the affected party fails to claim the notice, the state fire marshal shall send the notice by ordinary mail to the affected party at the affected party's last known address and shall obtain a certificate of mailing. Service by ordinary mail is complete when the certificate of mailing is obtained unless the notice is returned showing failure of delivery.
If any notice sent by registered or ordinary mail is returned for failure of delivery, the state fire marshal either shall make personal delivery of the notice by an employee or agent of the state fire marshal or shall cause a summary of the substantive provisions of the notice to be published once a week for three consecutive weeks in a newspaper of general circulation in the county where the last known address of the affected party is located. When notice is given by publication, a proof of publication affidavit, with the first publication of the notice set forth in the affidavit, shall be mailed by ordinary mail to the affected party at the affected party's last known address and the notice shall be deemed received as of the date of the last publication. An employee or agent of the state fire marshal may make personal delivery of the notice upon a party at any time.
Refusal of delivery by personal service or by mail is not failure of delivery and service is deemed to be complete at the time of personal refusal or at the time of receipt by the state fire marshal of the refused mail as demonstrated by the state fire marshal time and date stamp. Failure of delivery occurs only when a mailed notice is returned by the postal authorities marked undeliverable, address or addressee unknown, or forwarding address unknown or expired.
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