DocketNumber: No. 02AP-943 (REGULAR CALENDAR)
Judges: BRYANT, J.
Filed Date: 4/22/2003
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 2} Appellant filed an application with the division for the 2000-2001 renewal of the liquor permit for South Side Civics, a bar located in Youngstown, Ohio. By resolution adopted December 22, 1999, the council of the city of Youngstown ("city"), objected to renewal of appellant's liquor permit, citing after hours sales violations at the bar. By the same resolution, the city also directed the clerk of council to file copies of the resolution along with a hearing request with the division. Appellant eventually also filed an application with the division to transfer ownership of his stock in South Side Civics, Inc. and its liquor permit to Michael Johnson, who had managed the bar since February 1999.
{¶ 3} At an evidentiary hearing held May 30, 2000 before the division, unrefuted evidence was presented that Michael Johnson had a conviction in June 1997 for possession of marijuana, a conviction in 1995 for assault, and a conviction in 1994 for possessing a weapon while intoxicated. Additional unrefuted evidence showed that while Johnson was managing South Side Civics, appellant had two citations for after hours sales, as well as a citation for illegal sales and selling alcoholic beverages while under suspension. Several witnesses testified concerning noise, fights, disturbances, and rowdy activity taking place outside the bar after closing hours, trash in the form of beer cans and broken bottles on nearby properties, and traffic problems and illegal parking attributed to the bar's patrons. Further evidence showed the Youngstown Police Department had nine calls for police services in 1999 emanating from activities on South Side Civic's premises.
{¶ 4} In an order mailed December 20, 2000, the superintendent of the division denied and rejected renewal of appellant's liquor permit upon the following grounds:
{¶ 5} "1. The applicant, any partner, member, officer, director, or manager thereof, or any shareholder owning ten percent or more of its capital stock has been convicted of a crime that relates to fitness to operate a liquor permit business in this State. R.C. §
{¶ 6} "2. The applicant has shown a disregard for the laws, regulations, or local ordinances of the State, and will operate the permit business in a manner that demonstrates a disregard for the laws, regulations, or local ordinances of the State. R.C. §
{¶ 7} "3. The place for which the permit is sought is so located with respect to the neighborhood that substantial interference with public decency, sobriety, peace, or good order would result from the issuance of the permit and operation thereunder by the applicant. R.C. §
{¶ 8} In a separate order that same day, the superintendent of the division denied and rejected appellant's application to transfer the corporation's stock and liquor permit to Johnson.
{¶ 9} In January 2001, appellant appealed to the commission the superintendent's denial of the renewal application, and the matter subsequently was set for hearing. In a letter dated September 21, 2001, the city advised the commission it was withdrawing its previous objection because appellant was selling South Side Civics, Inc. and the liquor permit to Paul Schilling and David Schwartz, leaving Michael Johnson no longer involved in operating the bar; the city and its police department did not oppose the sale. In a letter filed October 15, 2001, appellant notified the commission that, in light of the city's withdrawing its objection, appellant was withdrawing his appeal pending before the commission. The commission construed appellant's letter as a motion to withdraw his appeal and it denied the motion, finding (1) the motion was untimely, and (2) the commission's authority to decide whether appellant's liquor permit should be renewed was not conditioned on the city's objections, or lack of objections, as the city was not a party to the commission proceedings.
{¶ 10} A de novo hearing was held before the commission on October 18, 2001 to consider appellant's request for renewal of the liquor permit. Appellant did not appear at the hearing, presented no arguments, and submitted no evidence for admission. The commission admitted essentially the same evidence against appellant that had been admitted at the division's hearing. By order mailed October 19, 2001, the commission affirmed the division's decision rejecting appellant's renewal application.
{¶ 11} Appellant timely appealed to the common pleas court, contending the commission's decision was not supported by substantial, reliable and probative evidence and is not in accordance with law. Finding the commission's order supported by substantial, reliable and probative evidence and in accordance with law, the common pleas court affirmed the commission's October 19, 2001 non-renewal order. Appellant appeals, assigning a single error:
{¶ 12} "The Liquor Control Commission erred in denying the renewal and stock transfer applications for South Side Civics, Inc."
{¶ 13} Initially, we note that appellant asserts the commission erred in denying his stock transfer application. Appellant's appeal to the commission, however, was based solely on the division's order denying and rejecting appellant's 2000-2001 renewal application for the liquor permit. Accordingly, any claimed error in the division's denial of appellant's stock transfer application is not properly before this court and will not be considered.
{¶ 14} Under R.C.
{¶ 15} 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.' " Lies v. Veterinary Med. Bd. (1981),
{¶ 16} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med. Bd. (1993),
{¶ 17} An appellate court, however, has plenary review of purely legal questions. Steinfels v. Ohio Dept. of Commerce, Div. of Securities (1998),
{¶ 18} In his first argument, appellant contends that issues regarding the fitness of the owner or operator of the business were rendered moot when (1) the city withdrew its objections, and (2) Schilling and Schwartz agreed to buy South Side Civics, Inc.
{¶ 19} According to R.C.
{¶ 20} Because appellant appealed to the commission the division's denial of his renewal, the commission had the power to consider, hear and determine the appeal and to refuse to renew appellant's permit. R.C.
{¶ 21} Further, no evidence in the record supports appellant's argument that an issue regarding Johnson's fitness to own or operate the bar became moot when appellant allegedly decided to sell the bar and liquor permit to other individuals, allegedly leaving Johnson no longer involved in the bar's operations. First, the record does not show that any agreement of appellant to sell the bar's stock and liquor permit to Schilling and Schwartz, rather than Johnson, was offered or admitted into evidence for the commission's consideration. Second, the record before the commission does not include any application of appellant to transfer ownership of the bar's stock and liquor permit to Schilling and Schwartz.
{¶ 22} According to the record, appellant undisputedly had authorized Johnson to manage South Side Civics since February 1999 while the liquor permit remained in appellant's name. Moreover, appellant's application to transfer the bar's stock and liquor permit to Johnson was still before the commission for its consideration. Based on that evidence, the commission appropriately considered Johnson's "fitness" as manager to operate the bar, including whether Johnson had been convicted of a crime that relates to his fitness to operate the bar, and whether Johnson's operation of the bar, authorized by appellant, showed a disregard for laws, regulations and ordinances. See R.C. 2303.292(A)(1)(a) and (b). The issue of Johnson's fitness was not moot.
{¶ 23} Appellant next argues that the crimes for which Johnson was convicted did not preclude him from operating a liquor permit business pursuant to R.C.
{¶ 24} The record before the commission demonstrates that at the time Johnson became manager of South Side Civics, he had three criminal convictions: a 1994 conviction for possessing a weapon while intoxicated, a 1995 conviction for assault, and a 1997 conviction for possession of marijuana. The record additionally reflects that during the time Johnson managed the bar, he had two convictions for after hours sale or consumption of liquor.
{¶ 25} Although three of Johnson's convictions occurred before he became manager of South Side Civics, R.C.
{¶ 26} Although the commission's findings under R.C.
{¶ 27} Finally, appellant contends the evidence before the commission did not establish that South Side Civic's location or manner of operation substantially interfered with public decency, sobriety, peace, or good order as R.C.
{¶ 28} The focus of R.C.
{¶ 29} Several courts have rejected arguments similar to those appellant raises. See Leo G. Keffalas, Inc. v. Ohio Liquor Control Comm. (1991),
{¶ 30} Here, substantial evidence was presented regarding the adverse impact of South Side Civics on its surrounding area. A city councilman testified he received numerous complaints from neighbors of South Side Civics about noise and rowdy activity taking place outside the bar after closing hours, and also received complaints about double parking on private property and disregard of private property by the bar's patrons. A neighbor who lives near South Side Civics testified that disturbances have taken place at the bar, noise at the bar spills onto the streets outside the bar after closing hours, beer cans are littered on nearby property, and the bar's patrons park illegally along the street, sometimes blocking the driveways of nearby residents. A city police officer testified nine calls for police services at the permit premises in 1999, including three liquor violations and two disturbances, required 440 minutes of police time.
{¶ 31} The record before the commission amply supports a linkage between the presence of South Side Civics and adverse effects upon the surrounding area. Thus, reliable, probative and substantial evidence supports the commission's denial of appellant's application for renewal based on R.C.
{¶ 32} Because the evidence reveals the common pleas court did not abuse its discretion in finding the commission's decision to be supported by substantial, reliable and probative evidence and to be in accordance with the law, we overrule appellant's single assignment of error and affirm the judgment of the common pleas court.
Judgment affirmed.
TYACK and LAZARUS, JJ., concur.