JBK Ventures, Inc. v. Ohio Dept. of Pub. Safety , 2021 Ohio 2046 ( 2021 )

[Cite as JBK Ventures, Inc. v. Ohio Dept. of Pub. Safety, 2021-Ohio-2046.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
JBK Ventures, Inc., :
d.b.a. Headies Hideout,
: No. 20AP-184
Plaintiff-Appellant, (C.P.C. No. 19CV-9846)
:
v. (REGULAR CALENDAR)
:
Ohio Department of Public Safety,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on June 17, 2021
On brief: Ronald B. Noga, for appellant. Argued: Ronald B.
Noga.
On brief: Dave Yost, Attorney General, and Joseph E.
Schmansky, for appellee. Argued: Joseph E. Schmansky.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, JBK Ventures, Inc., d.b.a. Headies Hideout ("JBK
Ventures"), appeals from a judgment of the Franklin County Court of Common Pleas
granting the motion to dismiss filed by defendant-appellee, Ohio Department of Public
Safety ("ODPS"). For the following reasons, we affirm.
I. Factual and Procedural Background
{¶ 2} R.C. 2927.02 prohibits the "illegal distribution of cigarettes [or] other tobacco
products." Effective October 17, 2019, the Ohio General Assembly amended this statute to
raise the minimum legal smoking age from 18 to 21 years ("the amendment"). 2019
Am.Sub. H.B. No. 166. In December 2019, JBK Ventures, an Ohio corporation that sells
No. 20AP-184 2
various products used in the consumption of "legal herb and non-tobacco, non-nicotine
substances," filed a verified complaint seeking a judgment declaring the amendment to be
unconstitutional and enjoining ODPS from taking any action to enforce the amendment.
(Dec. 10, 2019 Compl. at 2.) JBK Ventures alleged that amended R.C. 2927.02
unconstitutionally criminalizes the sale of its products to persons between 18 and 21 years
of age. In January 2020, ODPS moved to dismiss the complaint because, based on the facts
alleged, ODPS's statutory authority does not include an enforcement power over JBK
Ventures' compliance with R.C. 2927.02. A month later, the trial court granted ODPS's
motion to dismiss.
{¶ 3} JBK Ventures timely appeals.
II. Assignment of Error
{¶ 4} JBK Ventures assigns the following error for our review:
The Trial Court erred as a matter of law in misinterpreting the
limitation of O.R.C. Section 5502.14(B)(1) and (3) as
eliminating the enforcement powers granted ODPS by O.R.C.
Section 5502.13 and related Ohio law such that it was not a
proper Defendant in Appellant's Declaratory Judgment Action.
III. Discussion
{¶ 5} JBK Ventures' sole assignment of error alleges the trial court erred in
dismissing its complaint against ODPS based on its conclusion that because ODPS lacks
statutory authority to enforce amended R.C. 2927.02 against JBK Ventures' business
operations as alleged in the complaint, JBK Ventures lacks standing to bring its declaratory
judgment action against ODPS. This assignment of error is not well-taken.
{¶ 6} Pursuant to R.C. 2721.03, "any person whose rights, status, or other legal
relations are affected by a * * * statute * * * may have determined any question of
construction or validity arising under the * * * statute * * * and obtain a declaration of rights,
status, or other legal relations under it." The three prerequisites for relief under this statute
are: (1) a real controversy exists between the parties, (2) the controversy is justiciable in
character, and (3) speedy relief is necessary to preserve the rights of the parties. Mayle
Bingo Co., LLC v. Ohio Dept. of Pub. Safety, 10th Dist. No. 18AP-760, 2020-Ohio-1087,
¶ 7. For the purpose of a declaratory judgment action, a "justiciable issue" requires the
existence of a legal interest or right, and a "real controversy" exists when there is a " 'genuine
No. 20AP-184 3
dispute between parties having adverse legal interests of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment.' " Festi v. Ohio Adult Parole Auth., 10th
Dist. No. 04AP-1372, 2005-Ohio-3622, ¶ 11; Town Ctrs. Ltd. Partnership v. Ohio State
Atty. Gen., 10th Dist. No. 99AP-689, 2000 Ohio App. LEXIS 1457 (Apr. 4, 2000), quoting
Wagner v. Cleveland, 62 Ohio App.3d 8, 13 (8th Dist.1988). In the absence of one or more
of these prerequisites, a plaintiff cannot bring the action under R.C. 2721.03. Ohioans for
Concealed Carry, Inc v. Columbus, __Ohio St.3d__, 2020-Ohio-6724, ¶ 30;
ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, ¶ 19.
{¶ 7} While a trial court's decision to grant or deny declaratory relief is generally
considered a matter within the sound discretion of the trial court, statutory interpretation
is a question of law subject to de novo review. Jackson v. Bartec, Inc., 10th Dist. No. 10AP-
173, 2010-Ohio-5558, ¶ 17, 35; State v. Fraternal Order of Police of Ohio, Inc., Ohio Labor
Council, Inc., 10th Dist. No. 16AP-457, 2017-Ohio-1382, ¶ 12. See Ohio Democratic Party
v. LaRose, 10th Dist. No. 20AP-432, 2020-Ohio-4778, ¶ 18 (an appellate court reviews a
trial court's holdings regarding questions of law under a de novo standard).
{¶ 8} At issue is ODPS's authority to enforce amended R.C. 2927.02 against JBK
Ventures, and thus whether the parties have "adverse legal interests of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment." An administrative agency
has no authority beyond the authority given to it by statute. State ex rel. Lucas Cty. Bd. of
Commrs. v. Ohio Environmental Protection Agency, 88 Ohio St.3d 166, 171 (2000). See
Burger Brewing Co. v. Thomas, 42 Ohio St.2d 377, 379 (1975) (authority that is conferred
by the General Assembly cannot be extended by the administrative agency). "A grant of
such statutory power may be express or implied, but the implied power is limited to that
which is reasonably necessary to make the express power effective." Ohio Fresh Eggs, LLC
v. Boggs, 183 Ohio App.3d 511, 2009-Ohio-3551, ¶ 28 (10th Dist.).
{¶ 9} JBK Ventures primarily relies on R.C. 5502.13 as the basis of ODPS's
authority to enforce R.C. 2927.02 against it.1 According to JBK Ventures, ODPS's authority
1 JBK Ventures also asserts that ODPS agents have the power, independent of R.C. Chapter 5502, to enforce
R.C. 2927.02 against it because "even private citizens can initiate" a criminal proceeding under R.C.
2935.09 by filing an accusation by affidavit. (Appellant's Reply Brief at 6.) Under this reasoning, however,
JBK Ventures could have brought a declaratory judgment action against a private citizen under the premise
No. 20AP-184 4
to enforce R.C. 2927.02 is granted in R.C. 5502.13, and this authority is not limited by R.C.
5502.14(B)(1) or (3), which details the role of ODPS's "enforcement agents." R.C. 5502.13
states:
The department of public safety shall maintain an investigative
unit in order to conduct investigations and other enforcement
activity authorized by Chapters 4301., 4303., 5101., 5107., and
5108. and sections 2903.12, 2903.13, 2903.14, 2907.09,
2913.46, 2917.11, 2921.13, 2921.31, 2921.32, 2921.33, 2923.12,
2923.121, 2925.11, 2925.13, 2927.02, and 4507.30 of the
Revised Code. The director of public safety shall appoint the
employees of the unit who are necessary, designate the
activities to be performed by those employees, and prescribe
their titles and duties.
{¶ 10} R.C. 5502.14(B)(1) states:
Any person who is employed by the department of public safety
and designated by the director of public safety to enforce Title
XLIII of the Revised Code, the rules adopted under it, and the
laws and rules regulating the use of supplemental nutrition
assistance program benefits shall be known as an enforcement
agent. The employment by the department of public safety and
the designation by the director of public safety of a person as
an enforcement agent shall be subject to division (D) of this
section. An enforcement agent has the authority vested in
peace officers pursuant to section 2935.03 of the Revised Code
to keep the peace, to enforce all applicable laws and rules on
any retail liquor permit premises, or on any other premises of
public or private property, where a violation of Title XLIII of
the Revised Code or any rule adopted under it is occurring, and
to enforce all laws and rules governing the use of supplemental
nutrition assistance program benefits, women, infants, and
children’s coupons, electronically transferred benefits, or any
other access device that is used alone or in conjunction with
another access device to obtain payments, allotments, benefits,
money, goods, or other things of value, or that can be used to
initiate a transfer of funds, pursuant to the supplemental
nutrition assistance program established under the Food and
Nutrition Act of 2008 (7 U.S.C. 2011 et seq.) or any
supplemental food program administered by any department
of this state pursuant to the "Child Nutrition Act of 1966," 80
that the individual could file an accusation by affidavit against JBK Ventures. Because such an approach is
untenable, we reject it.
No. 20AP-184 5
Stat. 885, 42 U.S.C.A. 1786. Enforcement agents, in enforcing
compliance with the laws and rules described in this division,
may keep the peace and make arrests for violations of those
laws and rules.
{¶ 11} And lastly, R.C. 5502.14(B)(3) states:
Enforcement agents who are on, immediately adjacent to, or
across from retail liquor permit premises and who are
performing investigative duties relating to that premises,
enforcement agents who are on premises that are not liquor
permit premises but on which a violation of Title XLIII of the
Revised Code or any rule adopted under it allegedly is
occurring, and enforcement agents who view a suspected
violation of Title XLIII of the Revised Code, of a rule adopted
under it, or of another law or rule described in division (B)(1)
of this section have the authority to enforce the laws and rules
described in division (B)(1) of this section, authority to enforce
any section in Title XXIX of the Revised Code or any other
section of the Revised Code listed in section 5502.13 of the
Revised Code if they witness a violation of the section under
any of the circumstances described in this division, and
authority to make arrests for violations of the laws and rules
described in division (B)(1) of this section and violations of any
of those sections.
{¶ 12} We disagree with JBK Ventures' assertion that R.C. 5502.13 authorizes ODPS
to enforce R.C. 2927.02. R.C. 5502.13 directs ODPS to maintain "an investigative unit in
order to conduct investigations and other enforcement activity authorized by" various
chapters and sections of the Revised Code, including R.C. 2927.02. (Emphasis added.)
This statute further directs ODPS to appoint, and designate the activities of, the
investigative unit employees. Thus, ODPS's authority, set forth in R.C. 5502.13, to engage
in enforcement activity as to violations of R.C. 2927.02, is derivative of any such authority
granted to ODPS in R.C. 2927.02 or any other statutory law referenced in R.C. 5502.13.
JBK Ventures does not identify, and we do not find, any language in the Revised Code
chapters and sections referenced in R.C. 5502.13 that authorizes ODPS to enforce the
requirements of R.C. 2927.02. Because R.C. 5502.13 does not independently authorize
ODPS to enforce the requirements of R.C. 2927.02, and none exists derivatively from
another statute referenced in R.C. 5502.13, JBK Ventures' reliance on R.C. 5502.13 is
No. 20AP-184 6
unavailing. But this does not end our analysis because ODPS does have the authority to
enforce R.C. 2927.02, under certain circumstances.
{¶ 13} Although R.C. 5502.14(B) primarily focuses on the authority of ODPS's
enforcement agents to enforce laws and rules regulating liquor and supplemental nutrition
assistance program ("SNAP") benefits, authority granted under this statute extends beyond
those areas of government regulation. As pertinent here, R.C. 5502.14(B) also grants ODPS
limited authority to enforce R.C. 2927.02. Pursuant to R.C. 5502.14(B)(1), an ODPS
enforcement agent "has the authority vested in peace officers pursuant to section 2935.03
of the Revised Code to keep the peace, to enforce all applicable laws and rules on any retail
liquor permit premises, or on any other premises of public or private property, where a
violation of Title XLIII of the Revised Code or any rule adopted under it is occurring." And
pursuant to R.C. 5502.14(B)(3), ODPS enforcement agents have the "authority to enforce
any section in Title XXIX of the Revised Code or any other section of the Revised Code listed
in section 5502.13 of the Revised Code if they witness a violation of the section under any
of the circumstances described in" R.C. 5502.14(B)(3).2 (Emphasis added.) These
circumstances occur when an agent is "on, immediately adjacent to, or across from retail
liquor permit premises and who [is] performing investigative duties relating to that
premises," is "on premises that are not liquor permit premises but on which a violation of
Title XLIII of the Revised Code [Liquor] or any rule adopted under it allegedly is occurring,"
or "view[s] a suspected violation of Title XLIII of the Revised Code, of a rule adopted under
it, or of another law or rule described in" R.C. 5502.14(B)(1). R.C. 5502.14(B)(3). Thus,
under R.C. 5502.14(B)(1) and (3), ODPS has the authority to enforce R.C. 2927.02, but that
authority is contingent on the existence of at least one of the factual circumstances specified
in those divisions.
{¶ 14} JBK Ventures' complaint does not allege that any one of the contingencies
specified in R.C. 5502.14(B), necessary for an ODPS enforcement agent to enforce R.C.
2927.02, is likely to exist as it relates to its business operations. In particular, JBK Ventures
does not allege that it has a liquor permit or that a business adjacent to, or across from, its
2 The jurisdiction of an enforcement agent under R.C. 5502.14(B) is "concurrent with that of the peace
officers of the county, township, or municipal corporation in which the violation occurs." R.C.
5502.14(B)(4).
No. 20AP-184 7
premises has a liquor permit, that a liquor violation is likely to be reported to an
enforcement agent on its premises, or that an enforcement agent on its premises likely will
observe a liquor violation. In the absence of any of these circumstances, ODPS has no
authority to enforce R.C. 2927.02 against JBK Ventures, and the parties have no adverse
legal interests as to that statute. Thus, the complaint fails to allege any real controversy
between the parties. Consequently, we agree with the trial court's conclusion that, based
on the facts alleged in the complaint, JBK Ventures lacks standing to bring its declaratory
judgment action against ODPS.
{¶ 15} Because the trial court did not err in dismissing JBK Ventures' complaint, we
overrule its sole assignment of error.
IV. Disposition
{¶ 16} Having overruled JBK Ventures' sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and BEATTY BLUNT, JJ., concur.