Barnhill v. Ohio Liquor Control Comm.

[Cite as Barnhill v. Ohio Liquor Control Comm., 2015-Ohio-3747.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Antoinette Daniels Barnhill :
[d.b.a. Cotton Club],
:
Appellant-Appellant, No. 15AP-30
: (C.P.C. No. 14CV-7962)
v.
: (ACCELERATED CALENDAR)
Ohio Liquor Control Commission,
:
Appellee-Appellee.
:
D E C I S I O N
Rendered on September 15, 2015
Antoinette Daniels Barnhill, pro se.
Michael DeWine, Attorney General, Paul Kulwinski, and
Matthew Spitnale, for appellee.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Appellant-appellant, Antoinette Daniels Barnhill (d.b.a. Cotton Club)
appeals from a judgment of the Franklin County Court of Common Pleas affirming the
order of the Ohio Liquor Control Commission ("commission") denying Barnhill's liquor
permit renewal. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In September 2013, Barnhill, the owner of the Cotton Club, a bar located in
the city of Lorain, Ohio, applied for renewal of a Class D-5-6 liquor permit for the
business for the term expiring October 1, 2014. Lorain City Council passed a resolution
objecting to the renewal of a liquor permit for the Cotton Club. The Ohio Department of
Commerce, Division of Liquor Control ("division") denied Barnhill's request for renewal
No. 15AP-30 2
of the liquor permit for the Cotton Club on the following grounds: (1) the place for which
the permit was sought was located with respect to the neighborhood that substantial
interference with public decency, sobriety, peace, or order would result from the renewal
of the permit and operation by the applicant (R.C. 4303.292(A)(2)(c)); and (2) the
applicant, any partner, member, officer, director, or manager thereof has shown a
disregard for the laws, regulations, or local ordinances of the state
(R.C. 4303.292(A)(1)(b)).
{¶ 3} Barnhill appealed to the commission and a hearing was held in July 2014.
As pertinent to this appeal, the following evidence was adduced at the hearing before the
commission.
{¶ 4} Sergeant Michael Failing of the Lorain Police Department testified that he
has 20 years experience with the city and has been the city's crime analyst for the last 4
years. He is familiar with the Cotton Club because of the "numerous reports of the
violence that was going on there." (Tr. 12.) The Cotton Club is located in a "high-crime
area." (Tr. 15.) From January 1, 2013 through March 30, 2014, there were 64 calls for
police service linked to the Cotton Club location. Only 9 of the 64 calls for police service
were traffic related. When there was a call during the late night hours to report a serious
incident, such as "shots fired," all police on duty would converge on the scene, temporarily
leaving the rest of Lorain without police coverage. (Tr. 21.) There are approximately 16
bars in Lorain, and the Cotton Club ranked as one of the highest in regard to the number
of police calls, resulting in the city objecting to the renewal of its liquor permit. The
Cotton Club was permitted to serve alcohol until 2:30 a.m. each day, but would remain
open until 4:30 a.m. Sergeant Failing testified regarding specific events occurring at the
Cotton Club, including gunshots and fights between patrons. He additionally testified
regarding the presence of another bar near the Cotton Club, which was also having crime
issues. The city objected to the renewal of the liquor permit for that bar, but the bar
owner sold the bar. Once the bar was sold and new management took over, the amount of
crime associated with that bar lessened noticeably. Unlike the Cotton Club, the other bar
ceased operations at 2:30 a.m. each day.
{¶ 5} Detective Orlando Colon of the Lorain Police Department testified
regarding his follow-up investigation of a shooting inside the Cotton Club which occurred
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on December 9, 2012. Detective Colon received no cooperation from Cotton Club
management as to that follow-up investigation despite repeated efforts to further
investigate and discuss the matter with management. Management of the Cotton Club
did not return Detective Colon's calls until he was investigating a homicide that arose
from a dispute that began at the Cotton Club on January 1, 2013. In connection with that
investigation, Detective Colon reviewed the surveillance video at the Cotton Club after the
homicide. He observed the homicide suspect being let into the bar by the bouncer at
approximately 3:00 a.m. Within one minute of the homicide suspect entering the bar, the
crowd scattered and people ran out the front door. Detective Colon further observed
"muzzle flashes at the exact same time everybody starts parting like the Red Sea."
(Tr. 52.) Detective Colon noted at trial that the surveillance video showed the Cotton Club
serving alcohol until the time of the shooting. The gunfight carried out to the parking lot
of the Cotton Club. Ultimately, one of the individuals involved in the dispute was shot
and killed at a gas station down the street from the Cotton Club.
{¶ 6} Barnhill testified regarding the significant steps she and her husband,
Anthony Barnhill, undertook to try to make the Cotton Club a successful business. In her
opinion, however, Lorain was not helpful enough in addressing the criminal problems
linked to the Cotton Club. Barnhill typically was present at the business during the
evening, and her husband managed the business until closing. Anthony Barnhill testified
that he hired a professional security company to screen customers to ensure no weapons
entered the business.
{¶ 7} Spreadsheets compiling calls for police service linked to the Cotton Club for
the last three months of 2012, all of 2013, and the first three months of 2014, were
admitted into evidence at the hearing before the commission. The information contained
on these spreadsheets includes the date of the incident, time of day, and call type. Also
included among admitted exhibits was a November 21, 2013 order of the commission
fining Barnhill $1,000 based on the commission's finding that the Cotton Club had
violated Ohio Adm.Code 4301:1-1-49 on January 27, 2013, because beer and/or
intoxicating liquor was delivered and consumed on the permit premises between the
hours of 2:30 and 5:30 a.m.
No. 15AP-30 4
{¶ 8} Based on the evidence presented at the hearing, the commission affirmed
the order of the division. Barnhill appealed the denial of her renewal application to the
trial court. The trial court affirmed the order of the commission. Barnhill timely appeals.
II. Assignment of Error
{¶ 9} Barnhill assigns the following error for our review:
The trial court erred in affirming the commission's order as its
decision was not supported by reliable, probative and
substantial evidence and was not in accordance with law.
III. Standard of Review
{¶ 10} Pursuant to R.C. 119.12, a common pleas court reviewing an order of an
administrative agency must affirm the order if, upon consideration of the entire record,
the order is in accordance with law and is supported by reliable, probative, and
substantial evidence. Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St. 3d 570,
571 (1992); Colon v. Ohio Liquor Control Comm., 10th Dist. No. 09AP-325, 2009-Ohio-
5550, ¶ 8. To be reliable, the evidence must be dependable, i.e., that there is a reasonable
probability that the evidence is true. Our Place, Inc. at 571. To be probative, the evidence
must tend to prove the issue in question. Id. To be substantial, the evidence must have
some weight, i.e., it must have importance and value. Id.
{¶ 11} "The common pleas court's 'review of the administrative record is neither a
trial de novo nor an appeal on questions of law only, but a hybrid review in which the
court "must appraise all the evidence as to the credibility of the witnesses, the probative
character of the evidence, and the weight thereof." ' " Colon at ¶ 8, quoting Lies v. Ohio
Veterinary Med. Bd., 2 Ohio App. 3d 204, 207 (1st Dist.1981), quoting Andrews v. Bd. of
Liquor Control, 164 Ohio St. 275, 280 (1955). Although the reviewing court must "give
due deference to the administrative agency's resolution of evidentiary conflicts, the
findings of the agency are not conclusive." Id. at ¶ 8, citing Univ. of Cincinnati v. Conrad,
63 Ohio St. 2d 108, 111 (1980).
{¶ 12} On appeal to an appellate court, the standard of review is even more limited.
"In reviewing the court of common pleas' determination that the Commission's order was
supported by reliable, probative, and substantial evidence, this court's role is limited to
determining whether the court of common pleas abused its discretion." Duncan v. Liquor
No. 15AP-30 5
Control Comm., 10th Dist. No. 08AP-242, 2008-Ohio-4358, ¶ 10, citing Roy v. Ohio State
Med. Bd., 80 Ohio App. 3d 675, 680 (10th Dist.1992). Abuse of discretion connotes more
than an error of law or judgment; rather, it implies that the trial court's decision was
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217,
219 (1983). Nonetheless, an appellate court does have plenary review of purely legal
questions in an administrative appeal. Colon at ¶ 9, citing Big Bob's, Inc. v. Ohio Liquor
Control Comm., 151 Ohio App. 3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.).
IV. Discussion
{¶ 13} In her sole assignment of error, Barnhill argues the trial court erred in
affirming the commission's order denying her liquor permit renewal because the order
was not supported by reliable, probative and substantial evidence, or in accordance with
law. We disagree with Barnhill's argument.
{¶ 14} Pursuant to R.C. 4303.271(A), a permit holder is entitled to a renewal unless
good cause exists to reject the renewal application. Aysar, Inc. v. Ohio State Liquor
Control Comm., 10th Dist. No. 06AP-958, 2007-Ohio-1470, ¶ 18. "Good cause rejection is
not restricted to a clearly identifiable incident but, instead, the division may examine the
cumulative effects of adverse environmental conditions, objections to renewal, the impact
on police enforcement, and other relevant circumstances." 3M, Inc. v. Liquor Control
Comm., 10th Dist. No. 00AP-529 (Jan. 25, 2001). The specific grounds on which the
division, and ultimately the commission, may deny a liquor permit renewal are set forth in
R.C. 4303.292, and if any of the grounds the division cites for rejection are supported by
reliable, probative, and substantial evidence, the commission's decision must be upheld.
Marciano v. Ohio Liquor Control Comm., 10th Dist. No. 02AP-943, 2003-Ohio-2023,
¶ 19. Thus, to achieve a reversal of the denial of a renewal request by the commission, an
appellant must establish that the evidence was insufficient to prove all of the grounds
forming the basis of the denial. D.L. Lack Corp. v. Liquor Control Comm., 191 Ohio
App.3d 20, 2010-Ohio-6172, ¶ 18 (10th Dist.).
{¶ 15} Here, Barnhill's application for renewal of her liquor permit was denied on
the basis of R.C. 4303.292(A)(1)(b) and (A)(2)(c). Under R.C. 4303.292(A)(1)(b), the
division may refuse to renew a liquor permit if it finds that the applicant, or any partner,
member, officer, director, or manager of the bar has operated the bar "in a manner that
No. 15AP-30 6
demonstrates a disregard for the laws, regulations, or local ordinances" of Ohio. R.C.
4303.292(A)(1)(b) does not require "a finding that the applicant has been charged or
found guilty of any criminal or liquor violation." Maggiore v. Liquor Control Comm.,
10th Dist. No. 95APE06-713 (Mar. 29, 1996).
{¶ 16} The evidence in the record demonstrates the commission fined Barnhill
$1,000 for allowing the delivery and consumption of alcohol after 2:30 a.m. on the
business premises on January 27, 2013. Notably, this was not the only incidence of illegal
serving of alcohol reflected in the record. Detective Colon testified that, based on his
review of video surveillance in connection with his investigation of the homicide that
occurred on January 1, 2013, he determined alcohol was being served at the Cotton Club
the "entire time * * * until the shooting happened," which occurred after 3:00 a.m.
(Tr.52.) Thus, there was evidence that alcohol was illegally being served at the Cotton
Club on at least two occasions. Although Barnhill was not officially issued a citation in
connection with the illegal serving of alcohol on January 1, 2013, evidence of the delivery
of alcohol after hours demonstrates a disregard for the law. Further, the testimony that
management at the Cotton Club did not cooperate with police in connection with its
follow-up investigation of a shooting inside the Cotton Club reasonably demonstrates that
management engaged in conduct that disregarded criminal problems associated with the
business. See Maggiore (testimony that a neighbor went into a store to call police when a
gunfight was occurring on the premises but that the employees told her they were not
allowed to call police supported the commission's finding that the renewal application
should be rejected based on R.C. 4303.292(A)(1)(b)).
{¶ 17} Pursuant to R.C. 4303.292(A)(2)(c), the division may refuse to issue,
transfer, or renew a retail permit if it finds "[t]hat the place for which the permit is sought
* * * [i]s so located with respect to the neighborhood that substantial interference with
public decency, sobriety, peace, or good order would result from the issuance, renewal,
transfer of location, or transfer of ownership of the permit and operation under it by the
applicant." When interpreting R.C. 4303.292(A)(2)(c), courts focus on the location of the
liquor premises rather than the employees who operate the business. Marciano at ¶ 28.
The causation requirement for rejecting an application for renewal based on
R.C. 4303.292(A)(2)(c) is "some connection between the permit premises and adverse
No. 15AP-30 7
effects upon the surrounding area." Id. at ¶ 29. "[A] bar and its patrons' effect on the
neighborhood are sufficient grounds for rejection of a liquor license, without the evidence
concerning the inside operation of the premises." Slammers Grill & Bar, LLC v. Liquor
Control Comm., 10th Dist. No. 06AP-239, 2006-Ohio-6653, ¶ 12, citing Buckeye Bar, Inc.
v. Liquor Control Comm., 32 Ohio App. 2d 89 (10th Dist.1972). But general, speculative
evidence is insufficient to establish "substantial interference" with public decency,
sobriety, peace, or good order. K & M Deli, Inc. v. Liquor Control Comm., 10th Dist. No.
10AP-896, 2011-Ohio-6170, ¶ 23.
{¶ 18} The "substantial interference" evidence in this matter is neither general nor
speculative. Sergeant Failing testified regarding the crime statistics he had compiled,
demonstrating the Cotton Club was associated with a relatively large number of police
calls as compared to other bars. The relatively high rate of service calls linked to the
Cotton Club resulted in Lorain objecting to the renewal of the liquor permit for the
business. The calls relating to the Cotton Club were for reports of fights, gunshots,
disorderly conduct, assaults, and other criminal activity. For example, Detective Colon
testified regarding a gun fight that began at the Cotton Club and ended in a homicide
down the street. Some of the incidents leading to calls to the police for help, such as the
ones involving gunshots, necessitated all officers on duty during the night shift to
respond, leaving the remainder of Lorain, a city with a population of approximately
62,000, without police coverage. Barnhill presented no evidence disputing the severity or
rate of the reported incidents linked to the Cotton Club.
{¶ 19} The foregoing evidence demonstrates there was good cause for the denial of
Barnhill's request for a renewal of the Cotton Club's liquor permit and supports the
specific findings, pursuant to R.C. 4303.292(A)(1)(b), that the permit business was
operated in a manner that demonstrated a disregard for the law. Additionally, the location
of the permit premises substantially interfered with public decency, sobriety, peace, or
good order pursuant to R.C. 4303.292(A)(2)(c). Because the commission's decision
denying Barnhill's renewal application, based on R.C. 4303.292(A)(1)(b) and (A)(2)(c), is
supported by reliable, probative and substantial evidence, and is in accordance with law,
we conclude the trial court did not err in affirming the commission's decision.
{¶ 20} Accordingly, we overrule Barnhill's sole assignment of error.
No. 15AP-30 8
V. Disposition
{¶ 21} Having overruled Barnhill's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J., and SADLER, J., concur.