ADMINISTRATOR OHIO  BUREAU OF EMPLOYMENT SERVICES, et al.,

Plaintiff-Appellant

vs.

JAMES W. VERES, Defendant-Appellee

No. 84 C.A. 180
COURT OF APPEALS, SEVENTH APPELLATE DISTRICT OF OHIO, MAHONING COUNTY, OHIO
Slip Opinion
March 18, 1986

Appeal from the Common Pleas Court of Mahoning County, Case No. 82 CV 1924

 COUNSEL

 

ATTY. EDWARD CZOPUR, 190 Wick Building, Youngstown, Ohio 44503, for Defendant-Appellee.
ATTY. ANTHONY J. CELEBREZZE, JR., ATTORNEY GENERAL, ATTY. ROSALIND T. ANDREWS, Assistant Attorney General, 800 State Office Building, 615 West Superior Avenue, Cleveland, Ohio 44113, for Plaintiff-Appellant.

 JUDGES

 

FORD, J., COOK, J., concur (of the Eleventh District, by assignment)
 AUTHOR: DAHLING

 OPINION

 

 

 
DAHLING, P.J.,

 

This is an appeal from a judgment of the Court of Common Pleas, MahoningCounty, in which the court reversed the decision of the Board of Review of the Ohio Bureau of Employment Services. We reverse the judgment of the common pleas court.

 

The facts are not in dispute and are significant to a determination of this matter.

 

Claimant-appellee (hereinafter "claimant") had been employed as a crane operator for Fitzsimmons Steel for more than a year and was laid off. The administrator initially awarded claimant benefits as his employer stated claimant was laid off because of lack of work. Claimant received benefits from the Bureau from June 1980 through February 1981.

 

During the period claimant was receiving benefits he owned a tavern. On June 18, 1980, claimant filed a written statement with the Bureau that reads as follows:

 

"I am sole owner of the Pastime Tavern 3321 South Avenue. I employ two waitresses to run the business. I do not perform any work in the business nor have I received any wages from the business in the last four years.

 

"Any money earned from the business reverted back to the business. My primary occupation is with Fitzsimmons Steel.

 

"I place no restrictions on my availability for work."

 

Claimant's business activities were investigated and in December of 1981, claimant signed a statement which reads in part:

 

"Mr. Kalby has shown me my affidavit dated 8-21-81 which I signed. I now wish to change some statements as I was under the impression, if I worked at my place and didn't take any monies out of the business, the services I performed at my place, was not considered work. Yes during my periods of drawing benefits week endy (sic) 6-7-80 thru 2-28-81, I did work or perform services, working at times by myself. It is true my records reflected profit, in said weeks, also I did build up my inventories, etc., and purchased equipment. As a result of this my statement 410 dated 6-18-80 is not quite truthful. I honestly believed regardless of how much time I spent at my business, it would not effect my unemployment benefits, plus as long as I didn't take any monies from the business until April of 1981, *** I was available for any type of job during my periods of drawing benefits."

 

As a result of the investigation, the administrator reversed the decision to allow benefits to claimant and issued a collection letter to recoup funds already paid over to claimant. The claimant then brought a request for a hearing before the Board of Review. The Board's referee found that claimant had misrepresented his work status and availability for other employment.

 

The common pleas court reversed the board and stated as follows:

 

"1. It is this Court's opinion that the Board of Review erred in affirming the Referee's decision in the above captioned case.

 

"2. It is this Court's order that the decision of the Board of Review of the Ohio Bureau of Employment Services is reversed. Costs are to be borne by Defendant-Appellee."

 

ASSIGNMENT OF ERROR NO. I

 

The Court of Common Pleas erred when it reversed the findings of the Board of Review of the Ohio Bureau of Employment Services when the Board found that claimant fraudulently misrepresented his employment status in order to collect benefits.

 

This assignment of error is with merit.

 

2 Ohio Jurisprudence 3d, Administrative Law, section 208, states:

 

"It is a general rule that the court will not substitute its judgment for a matter within the province of an administrative agency and that courts ought not to interfere with administrative action which is not clearly beyond the power of the agency. Accordingly, under statutes providing for review of the lawfulness and reasonableness of administrative action, the court will not disturb the decision of the agency but will affirm it where the decision is not unlawful or unreasonable or against the manifest weight of the evidence.***"

 

The standard of review by a court of final decisions of the unemployment compensation board of review is whether the board's decision is unlawful, unreasonable, or against the manifest weight of the evidence. Simon v. Lake Geauga Printing (1982), 69 Ohio St. 2d 41; Hall v. American Brake Co. (1968), 13 Ohio St. 2d 11; Brown-Brockmeyer v. Roach (1947), 148 Ohio St. 511; R.C. 4141.28(0).

 

Appellant correctly argues that the facts show self-employment. What constitutes self-employment was addressed in Dorothy Ridel v. Board of Review, Ohio Bureau of Employment Services (1980), Case No. 79 C.A. 72 (unreported).

 

In Ridel, the claimant worked as a bookkeeper for her husband's electronics business and although she worked an average of eight hours a day, six days a week she received no wages. On her weekly claim forms she did not reveal to the claims examiner the nature of her activities. She certified that she was not self-employed. Also, it is noted that the work she performed was normally done by a paid employee.

 

The question presented was whether or not claimant was "working." The Board of Review found fraudulent misrepresentation. The common pleas court reversed and "did not write an opinion or give its reasons for the reversal of the decision of the Board of Review." The court of appeals reversed holding that although the claimant received no payment during the time she was receiving unemployment compensation, the record shows that she did provide services to her husband's business and under R.C. 4141.01(M) was not "totally unemployed." The court explained:

 

"The term 'unemployment,' for purposes of the unemployment compensation laws, is defined in section 4141.01(M) of the Revised Code. This section provides that an 'individual' is 'totally unemployed' in any week during which he performs no services and with respect to such week no renumeration is payable to him.' In order to be unemployed within the meaning of R.C. 4141.01(M), a person must have neither provided services nor received payment during the week for which he is applying for benefits. See Nunamker v. United States Steel Corp. (1985), 2 Ohio St. 2d 55. (Opinion, pg. 3.)"

 

This assignment of error is sustained.

 

ASSIGNMENT OF ERROR NO. II

 

The court of Common Pleas erred when it did not find that claimant was not available for employment as claimant was working 64 hours per week in his own business.

 

This assignment of error is with merit. Where an individual is working 64 hours a week it is hard to see that he was available for employment. Claimant relies on Parent v. Ohio Bureau of Employment Services (1959), 171 N.E.2d 522. In Parent, claimant worked at a variety store that continually lost money. The court compared claimant's activity to that of a coin collector or other hobbyist. The court ruled in Parent that the claimant was entitled to benefits. We find the within case is easily distinguished from Parent.

 

ASSIGNMENT OF ERROR NO. III

 

The Court of Common Pleas erred when it did not find that the claimant having made fraudulent misrepresentations to the Ohio Bureau of Employment Services was overpaid and that said overpayment should be reimbursed to the unemployment fund pursuant to O.R.C. 4135.

 

ASSIGNMENT OF ERROR NO. IV

 

The Common Pleas Court erred in that it made a finding de novo and as an appellate forum by statute cannot reweigh the evidence presented to the trier of facts.

 

The court stated, at page 518:

 

"The decision of purely factual questions is primarily within the province of the referee and the Board of Review. The courts reverse such decisions only when found to be contrary to law or against the manifest weight of the evidence. The court does not consider the question of the weight of the evidence."

 DISPOSITION
 

These assignments of error are also sustained.
 

The judgment is reversed and final judgment entered for appellant.