DocketNumber: Nos. 03AP-516, 03AP-604.
Citation Numbers: 2004 Ohio 1009
Judges: SADLER, J.
Filed Date: 3/4/2004
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 2} Both violations found to have occurred are based upon an agent and/or employee of appellant having facilitated or allowed the sale of marijuana on the permit premises, known as the Backside Lounge. The violations occurred during an investigation jointly conducted by agents of the Ohio Department of Public Safety and officers of the Warrensville Heights Police Department. The following facts are contained in the investigators' report, to which appellant stipulated at the commission's record hearing.
{¶ 3} The first violation occurred on December 30, 2000. On that date, liquor agent Charles Clark entered the Backside Lounge at approximately 10:45 p.m. Agent Clark sat at the bar and engaged in a conversation with a bartender named "Kit." During the conversation, agent Clark inquired of Kit whether she knew of anyone in the bar who had any "smoke."1 Kit told agent Clark to wait at the bar while she checked with a few patrons. Kit walked across the bar and spoke to a male patron who was later identified to agent Clark as "Ron." Moments later, Ron approached agent Clark and asked what he wanted. Agent Clark told Ron he needed some "Fire Smoke."2 Ron told agent Clark to meet him in the men's restroom. Agent Clark complied, and during this restroom meeting Ron displayed a clear plastic bag containing what appeared to be a large amount of marijuana. After a brief negotiation as to price, agent Clark purchased five small plastic bags of marijuana for $50. Agent Clark returned to the bar, whereupon Kit asked him whether Ron had "hook[ed] him up."3
{¶ 4} The Notice of Hearing with respect to the December 30, 2000, incident (in commission case No. 1472-01) states the violation as follows:
On or about December 30, 2000, you and/or your agent and/or employee(s) KIT LNU,4 did knowingly and/or willfully allow in and upon or about the permit premises improper conduct, in that you and/or your agent and/or employee(s) KIT LNU, didconspire to sell a narcotic and/or hallucinogen, to wit,Marijuana, in violation of
(Emphasis sic.)
{¶ 5} The second violation occurred on January 12, 2001. On that date, agent Clark entered the permit premises at approximately 11 p.m. He approached the bar area and eventually made contact with a woman later identified as Pamela Tucker ("Tucker"). Agent Clark asked Tucker if she would hold his beer for him while he went into the men's restroom to buy some "weed."5 Tucker took agent Clark's beer and set it on a shelf behind the bar. In the men's restroom, agent Clark purchased four bags of marijuana from "Ron" for $40. Upon his return to the bar area, agent Clark asked Tucker for his beer. She returned agent Clark's beer to him, whereupon she inquired whether he got his "hook up."6
{¶ 6} The Notice of Hearing pertaining to the January 12, 2001, incident (in commission case No. 1473-01) stated the alleged violation as follows:
On or about January 12, 2001, you and/or your agent and/or employee(s) PAMELA TUCKER and/or BLAISE BRUCATO, did knowingly and/or willfully allow in and upon or about the permit premises improper conduct, in that you and/or your agent and/or employee(s) PAMELA TUCKER and/or BLAISE BRUCATO,7did conspire to sell a narcotic and/or hallucinogen, to wit,Marijuana, in violation of
(Emphasis sic.)
{¶ 7} On March 5, 2002, the commission held a hearing on both violations. As noted earlier, appellant stipulated to the investigators' report, and entered a denial as to both violations. In addition to the report, the notices of hearing were entered into evidence. On March 19, 2002, by two separate orders, the commission found appellant to have violated Regulation 52 with respect to both the December 30, 2000, incident and the January 12, 2001, incident. Both orders imposed revocation of appellant's liquor permit, effective April 9, 2002.
{¶ 8} Appellant appealed to the Franklin County Court of Common Pleas, pursuant to R.C.
{¶ 9} On February 26, 2003, the trial court journalized its decision affirming the orders of the commission. Therein, the trial court rejected appellant's arguments, noting that, "[t]he permit holder and the bartenders are not being criminally charged with conspiracy * * * or being tried before a court and jury for a felony." (February 26, 2003 Decision at 3.) The court observed that Regulation 52 does not refer to "conspiracy" or incorporate definitions from Title 29 of the Ohio Revised Code, which title concerns criminal offenses. Rather, the court stated, "[i]t is sufficient under [Regulation 52] that a permit holder's agent knowingly allowed or facilitated drug trafficking in the permit premises." Id. The court found that the stipulated evidence indisputably established that an employee and/or agent of appellant arranged a drug sale in the first incident, and openly tolerated a drug sale in the second incident. The court found this to be substantial evidence supporting the commission's orders, and thereby affirmed same.
{¶ 10} In the present appeal from the judgment of the court of common pleas, appellant presents one assignment of error for our review, as follows:
The order of the Ohio Liquor Control Commission revoking appellant's liquor permits is not supported by reliable, probative, and substantial evidence and is not in accordance with law.
{¶ 11} Under R.C.
{¶ 12} The trial 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),
{¶ 13} An appellate court's review of an administrative decision is more limited than that of a trial court. Pons v.Ohio State Med. Bd. (1993),
{¶ 14} Appellant's argument in support of its sole assignment of error presents two questions of law for our consideration. The first question is whether the Division of Liquor Control ("the division") must prove knowledge of illegal or improper activity on the part of the owner or management of the permit premises, in order to prove a violation of Regulation 52. Appellant argues that, in this case, the division was required to prove the elements of a criminal conspiracy, and that an owner or manager was involved in such conspiracy; appellant further asserts that because no such proof exists in the present case, the commission's orders are unsupported.
{¶ 15} Ohio Adm. Code
(B) Prohibited activities: no permit holder, his agent, oremployee shall knowingly or willfully allow in and upon his licensed permit premises any persons to:
* * *
(4) Allow in, upon or about the licensed permit premises, orengage in or facilitate in, the possession, use, manufacture, transfer, or sale of any dangerous drug, controlled substance, narcotic, harmful intoxicant, counterfeit controlled substance, drug, drug paraphernalia, or drug abuse instrument as said terms are defined in ORC Chapter 2925.
(Emphasis added.)
{¶ 16} This court has previously held that the plain language of Regulation 52 permits a finding of a violation where only an employee or an agent of the permit holder knowingly allows certain prohibited activities to take place in or about the permit premises, even when no owner or manager is aware of the existence of the prohibited activities. Goldfinger Enterprises,Inc. v. Ohio Liquor Control Comm., Franklin App. No. 01AP-1172, 2002-Ohio-2770 at ¶ 11. Therefore, we find no merit in appellant's argument that the division was required to prove that an owner or manager of the Backside Lounge had knowledge of the illegal drug transactions that occurred on the premises.
{¶ 17} The second question presented by appellant's argument is whether, when a permit holder is charged with violating Regulation 52, and the hearing notice alleges that the "improper conduct" forming the basis of the charge was a "conspiracy," proof of the elements of a conspiracy as defined in R.C.
{¶ 18} Appellant's argument essentially asks this court to graft upon Regulation 52 language borrowed from the Ohio Criminal Code. In its brief, appellant directs our attention to R.C.
{¶ 19} First, as we stated above, Regulation 52 requires no proof that an owner or manager knew or should have known of the improper conduct. Second, Regulation 52 contains no reference to the criminal code. If the commission had chosen to include within the language of Regulation 52 references to the criminal code, it could have done so, as it chose to do when promulgating, for example, Ohio Adm. Code
{¶ 20} From the plain language of Regulation 52, we find no intent therein to require proof of the elements of any crime defined by the Ohio Revised Code. Moreover, pleadings interposed in an administrative proceeding do not require the linguistic exactitude of those filed in a judicial proceeding. Ohio MotorVehicle Dealers' Salesmen's Licensing Bd. v. Memphis AutoSales (1957),
{¶ 21} Applying the plain language of Regulation 52 to the facts adduced in the record, it is clear that on December 30, 2000, "Kit" knowingly and willfully allowed, engaged in and facilitated the transfer and sale of a drug on the permit premises. On January 12, 2001, Pamela Tucker knowingly and willfully allowed the transfer and sale of a drug on the permit premises. "Kit" and Tucker were both employees and/or agents of the permit holder. These facts were stipulated and thus conclusively established. A.B. Jac, Inc. v. Liquor ControlComm. (1972),
{¶ 22} Accordingly, appellant's sole assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Bowman and Brown, JJ., concur.