Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 ( 1992 )

OPINIONS OF THE SUPREME COURT OF OHIO
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Department of Liquor Control, Appellee, v. Sons of Italy
Lodge 0917, Appellant.
[Cite as Ohio Dept. of Liquor Control v. Sons of Italy
Lodge 0917 (1992), Ohio St.3d .]
Criminal law -- Notice requirements set forth in former R.C.
2933.43(C) are mandatory and require strict compliance
with the notice and publication provisions contained
therein.
The language of former R.C. 2933.43(C) is mandatory; it requires
strict compliance with the notice and publication
provisions contained therein.
(Nos. 91-1792 and 91-2486 -- Submitted September 22, 1992
-- Decided December 30, 1992.)
Appeal from and Certified by the Court of Appeals for
Franklin County, No. 90AP-1359.
On June 17, 1988, investigators from appellee, the
Department of Liquor Control ("department"), entered the
premises of appellant, Sons of Italy Lodge 0917 ("lodge"),
acting upon a complaint received by the department. The
complaint alleged that individuals who were not members of the
lodge were purchasing alcoholic beverages, and that gambling
was occurring on the premises. After investigating, the agents
confiscated two video draw poker machines and $817.51. The
department charged the lodge with violating a regulation of the
Ohio Liquor Control Commission ("commission"). The charge read:
"On June 17, 1988, your unidentified agent and/or employee
BENJAMIN SPRINGER and/or SANDRA BLYSTONE did permit and/or
allow in and upon or about the permit premises, playing, gaming
or wagering on a game of skill or chance to wit, electronic
video gambling device -top draw-and Rivera machines --in
violation of [Ohio Adm.Code] 4301:1-1-53[B]1 a regulation of
the Ohio Liquor Control Commission."
At an administrative hearing held on December 1, 1988, the
lodge denied committing the violation . The commission found
the lodge in violation of the regulation and suspended its
liquor license for five days. The lodge did not appeal the
suspension.
The administrative order was dated December 12, 1988, and
the department filed a petition for forfeiture on December 16,
1988. The hearing date was set for January 4, 1989. The
certificate of service attached to the petition stated that the
department sent a copy of the petition for forfeiture to the
lodge by regular mail, postage paid, on December 16, 1988.
Public notice was not published in the newspaper until December
23, 1988 and the hearing date printed in the notice did not
correspond with the hearing date actually set by the court. As
a result of this discrepancy, the hearing was rescheduled for
January 25, 1989.
No transcript of the hearing was made, but the record
reveals that no new evidence was presented by either party.
The lodge filed a motion to dismiss the forfeiture proceeding.
On August 29, 1989, the trial court overruled the motion to
dismiss. The court of appeals sua sponte dismissed the lodge's
appeal because the entry of the trial court did not constitute
a final appealable order.
The trial court issued a judgment on the petition for
forfeiture on November 7, 1990. It found that the department
had shown by a preponderance of the evidence that the draw
poker machines and money were contraband and were in the
possession of the lodge in violation of R.C. 2933.42. The
trial court ordered the property forfeited to the department.
On appeal, the lodge argued that the department had failed
to comply with former R.C. 2933.43(C)'s procedural notification
requirements for the forfeiture hearing, and for that reason
the trial court should have dismissed the forfeiture action
without reaching the merits. The lodge also argued that the
trial court erred in finding that the department investigators'
report was admissible evidence under Evid.R. 803(8) as a public
record or report, and that the trial court erred in finding
that the property was contraband.
The court of appeals affirmed the trial court and upheld
the order of forfeiture. In particular, the court found that
the lodge was not prejudiced by the department's failure to
precisely comply with the notice provisions of R.C. 2933.43(C),
and that strict compliance with the notice procedures was not
required in this case.
The cause is now before this court upon the allowance of a
motion to certify the record (case No. 91-1792). In addition,
the appellate court found its judgment regarding the notice
provisions of R.C. 2933.43(C) to be in conflict with the
judgment of the Court of Appeals for Lucas County in State v.
Jacobiak (Dec. 22, 1989), Lucas App. No. L-89-016, unreported,
1989 WL 155185, and with the judgment of the Court of Appeals
for Summit County in State v. Tysl (June 20, 1990), Summit App.
No. 14348, unreported, 1990 WL 83971, and certified the record
of the case to this court for review and final determination
(case No. 91-2486).
Lee I. Fisher, Attorney General, and Kurt O. Gearhiser,
Assistant Attorney General, for appellee.
John A. Connor II Co., L.P.A., John A. Connor II and
Darrell E. Fawley, Jr., for appellant.
Wright, J. The issue certified for our review is:
"Whether the notice requirements set forth in [former] R.C.
2933.43(C) are mandatory or whether substantial compliance with
the notice requirements is all that is required to vest the
trial court with jurisdiction to proceed where the defendant
has actual notice." Because the language of R.C. 2933.43(C) is
mandatory, strict compliance with the notice and publication
provisions contained therein is required.
In construing a forfeiture statute the court must begin
with a fundamental premise: Forfeitures are not favored by the
law. The law requires that we favor individual property rights
when interpreting forfeiture statutes. To that end, "statutes
imposing restrictions upon the use of private property, in
derogation of private property rights, must be strictly
construed." State v. Lilliock (1982), 70 Ohio St.2d 23, 26, 24
O.O.3d 64, 65, 434 N.E.2d 723, 725.
The language of former R.C. 2933.43(C) is clear and
unequivocal: the petitioner seeking forfeiture "shall give
notice of the forfeiture proceedings by certified mail, * * *
and shall publish notice of the proceedings once each week for
two consecutive weeks in a newspaper of general circulation in
the county in which the seizure occurred. The notices shall be
mailed and first published at least four weeks before the
hearing." (Emphasis added.)
It is axiomatic that when it is used in a statute, the
word "shall" denotes that compliance with the commands of that
statute is mandatory. The rule has been stated frequently and
clearly: "In statutory construction, the word 'may' shall be
construed as permissive and the word 'shall' shall be construed
as mandatory unless there appears a clear and unequivocal
legislative intent that they receive a construction other than
their ordinary usage." Dorrian v. Scioto Conservancy Dist.
(1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834,
paragraph one of the syllabus.2 The lower courts of this state
have long relied on this clear rule of construction.3
There is not even a remote indication, let alone "clear
and unequivocal legislative intent," that the General Assembly
considers the procedures set forth in R.C. 2933.43(C) to be
permissive guidelines rather than mandatory instructions.
Quite the contrary, the General Assembly chose mandatory
language to assure that due process would be afforded in all
cases in which the state seeks forfeiture. The General
Assembly itself provided detailed safeguards in R.C.
2933.43(C), including the requirements that diligent inquiry
regarding ownership of the seized property be undertaken and
that specific notice requirements and time limits be followed.
It is not this court's prerogative to second-guess the General
Assembly's legislative policy choices.
Concurring in State v. Casalicchio (1991), 58 Ohio St.3d
178, 183, 569 N.E.2d 916, 921, Justice Douglas reflected on the
language used by the General Assembly in R.C. 2933.43(C):
"[T]he forfeiture statute is strong, but needed, medicine.
Because of the endless possibilities of how the statute can be
used by law enforcement agencies, the General Assembly
obviously meant that certain procedural safeguards be
followed. If those time-limit safeguards are not followed,
then said the legislature, forfeiture may not take place. We
should enforce, in this regard, the will of the legislative
body." Id. at 184, 569 N.E.2d at 922.
The department argues, in effect, that substantial
compliance with the notice and publication requirements of R.C.
2933.43(C) adequately protected the lodge's due process rights,
under the facts and circumstances of this case. The department
misunderstands our role in reviewing the adequacy of due
process protection. It is true that our inquiry is not limited
to superficially considering whether the dictates of R.C.
2933.43(C) were followed; we also consider whether
constitutional due process rights were, in actuality,
adequately protected. This court has an obligation to
determine whether due process is afforded even when there is
strict compliance with the requirements of the statute.4
However, if strict compliance with the clear language of the
statute does afford due process, our inquiry is complete. We
are not permitted to decide whether something less than strict
compliance, contrary to the clear intent of the legislature,
might also meet minimal due process requirements in a
particular case.
If the clear language of the statute is not sufficient to
establish that it is mandatory, the actions of the General
Assembly in amending R.C. 2933.43 provide additional support.
Under former R.C. 2933.43(C), the law applicable here, law
enforcement officials were required to provide notice of the
forfeiture hearing by publication at least four weeks prior to
the hearing. The hearing, in turn, was to be held no later
than thirty days after the "conviction, or the admission or
adjudication of the violation." This left the state only two
days to file its petition and publish notice.5
However, in 1990 the General Assembly amended R.C.
2933.43, in part, by increasing the amount of time before a
hearing had to be held from thirty to forty-five days--which
gives the state fifteen additional days to publish notice of
the hearing. 143 Ohio Laws, Part I, 1457. This amendment
addressed law enforcement's concern that it might be difficult
to comply with the mandatory language of the statute.
Moreover, it clearly reinforces the General Assembly's intent
that the state must strictly comply with the procedural
requirements of R.C. 2933.43. If the General Assembly was
content to permit the statute to be directory rather than
mandatory, it would not have seen the need to increase the
state's time to comply with its provisions.
The broad definition of "contraband" contained in R.C.
2901.01(M) reinforces the need for strict compliance with the
notice and publication requirements of R.C. 2933.43(C). R.C.
2933.42(A) provides that it is illegal to possess "contraband,"
as defined in R.C. 2901.01(M). R.C. 2933.42(B) makes clear
that an expansive definition is to be given to the term
"contraband," so that some property otherwise not within the
scope of the definition may also be contraband, and subject to
seizure and forfeiture in the proper situation. See State v.
Baumholtz (1990), 50 Ohio St.3d 198, 199, 553 N.E.2d 635, 636.
In State v. Casalicchio (1991), 58 Ohio St.3d 178, 179-181, 569
N.E.2d 916, 918-919, this court recognized that R.C.
2933.42(B)'s expansion of the definition of "contraband" has
the effect of making property subject to forfeiture when the
property's connection to an unlawful activity may not be
great. Despite that observation, Casalicchio upheld the
constitutionality of R.C. 2933.42 and 2933.43.
The term "contraband" now encompasses many different types
of property. At one extreme is property which by its very
nature is contraband, such as illegal narcotics (R.C.
2901.01[M][5]); property of this type is summarily forfeited
when seized. At the other extreme is property which may have
only a minimal relationship to the illegal act committed, such
as a motor vehicle involved in an alleged drug deal (R.C.
2901.01[M][7]). Strenuous due process protections must be
afforded in order to avoid unfair forfeitures where the
property's status as contraband is unclear. As the connection
between the illegal act and the alleged contraband associated
with it becomes increasingly tenuous, the necessity for due
process protection becomes increasingly important, and the
observance of procedural requirements may not be summarily
dispensed with. Strict compliance with the notice and
publication requirements of R.C. 2933.43(C) is necessary to
deal with the broad spectrum of property which is subject to
forfeiture. Otherwise, law enforcement and the courts would
have to engage in a case-by-case analysis to determine what
measure of compliance is adequate.
Ironically, while the department's position is aimed at
facilitating its ability to obtain forfeitures, in the long run
it would in fact burden the justice system. Creating a
case-by-case standard would place an unreasonable burden on
both law enforcement agencies seeking forfeiture and courts
ruling on forfeiture petitions. These agencies and courts
would have to decide what level of compliance with the
requirements of R.C. 2933.43(C) would satisfy due process in
each and every case. At least substantial compliance would
have to be found in those cases in which strict compliance is
not necessary. This would create a two-tiered analysis: (1)
the first tier would require the law enforcement agency and the
courts to decide whether strict compliance or substantial
compliance is enough to satisfy due process; and (2) if
substantial compliance was sufficient, then the second tier
would require determination of what constitutes substantial
compliance under the particular facts and circumstances of each
case.
This two-tiered analysis is completely unnecessary and
would unduly complicate forfeiture proceedings for the state.
Of even more concern, however, is the fact that by creating it
we would be usurping the function of the General Assembly. We
would not only be legislating by judicial fiat, but would also
be doing so in a manner that negates protection specifically
mandated by the legislature.
Because we hold that strict compliance with the notice and
publication requirements of former R.C. 2933.43(C) is
mandatory, we need not address the lodge's other propositions
of law. The judgment of the court of appeals is reversed and
the cause is remanded to the Franklin County Court of Common
Pleas for dismissal.
Judgment reversed
and cause remanded.
Moyer, C.J., Sweeney, Holmes, H. Brown and Resnick, JJ.,
concur.
Douglas, J., not participating.
FOOTNOTES:
1 Ohio Adm.Code 4301:1-1-53(B) provides:
"No person authorized to sell alcoholic beverages shall
have, harbor, keep, exhibit, possess or employ or allow to be
kept, exhibited or used in, upon or about the premises of the
permit holder of any gambling device as defined in division (F)
of section 2915.01 of the Revised Code which is or has been
used for gambling offenses as defined in division (G) of
Section 2915.01 of the Revised Code."
2 See, also, State ex rel. Plain Dealer Pub. Co. v.
Barnes (1988), 38 Ohio St.3d 165, 527 N.E.2d 807; Lakewood v.
Papadelis (1987), 32 Ohio St.3d 1, 511 N.E.2d 1138; State ex
rel. Hanley v. Roberts (1985), 17 Ohio St.3d 1, 17 OBR 1, 476
N.E.2d 1019; Malloy v. Westlake (1977), 52 Ohio St.2d 103, 6
O.O.3d 329, 370 N.E.2d 457; State ex rel. Ewing v. Without A
Stitch (1974), 37 Ohio St.2d 95, 66 O.O.2d 223, 307 N.E.2d 911;
Dennison v. Dennison (1956), 165 Ohio St. 146, 59 O.O. 210, 134
N.E.2d 574.
3 See, e.g., Perkins v. Ohio Dept. of Transp. (1989), 65
Ohio App.3d 487, 584 N.E.2d 794; Toledo Trust Co. v. Yakumithis
Enterprises, Inc. (1987), 35 Ohio App.3d 31, 519 N.E.2d 425;
Ohio Council 8, AFSCME v. Weber (1985), 27 Ohio App.3d 133, 27
OBR 164, 499 N.E.2d 1276; State v. Cichy (1984), 18 Ohio App.3d
6, 18 OBR 30, 480 N.E.2d 90; Bilikam v. Bilikam (1982), 2 Ohio
App.3d 300, 2 OBR 332, 441 N.E.2d 845; Stephan v. State
Veterinary Med. Bd. (1960), 113 Ohio App.538, 18 O.O.2d 177,
173 N.E.2d 389; Drugan v. Flaler (Ohio App. 1958), 161 N.E.2d
786; State ex rel. Merrill v. Greenbaum (1948), 83 Ohio
App.484, 38 O.O. 537, 84 N.E.2d 253; In re Buchanan's Estate
(1948), 82 Ohio App.240, 37 O.O. 557, 81 N.E.2d 409; Haas v.
Curry (M.C. 1974), 42 Ohio Misc. 1, 71 O.O.2d 30, 325 N.E.2d
566; Page v. Bd. of Liquor Control (C.P. 1954), 69 Ohio Law
Abs. 545, 53 O.O. 445, 121 N.E.2d 125.
4 For example, in Robinson v. Hanrahan (1972), 409 U.S.
38, 93 S.Ct. 30, 34 L.Ed.2d 47, the state complied with the
procedural requirements of the Illinois forfeiture statute, but
the United States Supreme Court found that compliance
inadequate under the Due Process Clause.
5 The department argues that the provisions of R.C.
2933.43(C) are merely directory because "it could rarely, if
ever, have met the publishing requirements of the old Ohio
Revised Code 2933.43(C)." This argument belies the simplicity
of the task. The department knew from the day of seizure that
it intended to seek forfeiture. The petition used by the
department is a boilerplate, fill-in-the blanks form. The
department could have been ready to file and arrange for
publication prior to receipt of the administrative decision.