B.P.O. of Elks, Cincinnati Lodge No. 5 v. Board of Liquor Control, 5

• Decision Date: 01 October 1957
• Docket Number: No. 5,A,5
• Citation: 105 Ohio App. 181,151 N.E.2d 693
• Parties: , 5 O.O.2d 460 B. P. O. OF ELKS, CINCINNATI LODGEppellant, v. BOARD OF LIQUOR CONTROL, Appellee.
• Court: Ohio Court of Appeals

Page 181

105 Ohio App. 181

151 N.E.2d 693, 5 O.O.2d 460

B. P. O. OF ELKS, CINCINNATI LODGE No. 5, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.

Court of Appeals of Ohio, Franklin County.

Oct. 1, 1957.

Syllabus by the Court

1. Under the provisions of Section 119.12, Revised Code, the procedure before the Board of Liquor Control is governed by the rules in civil rather than criminal actions.

2. There is a presumption that places where liquor is sold to the public under a permit from the Department of Liquor Control are operated for profit and that liquor is not given away on such premises.

3. Where liquor is found on permit promises on Sunday evening on a table at which four persons are seated, and the lodge-permittee is open for business to members, there is a reasonable inference that intoxicating liquor was sold on Sunday in violation of law; and an order of the Board of Liquor Control suspending the permittee's license for a violation of Section 4301.22(d), Revised Code, and Regulation No. 49 of the Department of Liquor Control, which prohibit the sale or consumption of intoxicating liquor after certain hours on Sunday, is reasonable and is supported by the proper degree of proof.

John A. Wiethe and Peter W. Swenty, Cincinnati, for appellant.

William Saxbe, Atty. Gen., S. Noel Melvin, Columbus, and Chester Hummell, Reynoldsburg, for appellee.

MILLER, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control suspending for a period of seven days the appellant's D-4 permit, based upon the following charge, to wit:

'On Sunday, October 23, 1955, at about 8:50 o'clock p. m. est, you and/or your agent or employee, did sell and allow to be consumed in and upon the permit premises, intoxicating liquor, to wit, malt beverages in excess of 3.2% of alcohol by weight, whiskey, and mixed drinks containing spirituous liquor,--in violation of the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.'

The evidence presented before the board consists of the testimony of two investigators for the Department of Liquor Control, who gained entrance to the permittee's premises around 8:50 p. m. on Sunday, October 23, 1955. They were denied whiskey at the bar because they did not have membership cards in the Elks Lodge. They then observed seven or eight people on the premises with drinks in front of them. The investigators approached the largest table and confiscated a bottle of Budweiser beer, a shot of whiskey and a mixed drink from the parties seated there. The confiscated beverages were analyzed, and the anaylsis showed that they were intoxicating. The chemist's report was admitted in evidence without objection.

The action is prosecuted under Section 4301.22(D), Revised Code, which prohibits the sale of intoxicating liquor after 2:30 a. m. on Sunday, and also under Regulation No. 49 which provides that:

'No intoxicating liquor may be sold by or be permitted to be consumed on the premises of any permit holder during the hours between 1:00 o'clock a. m. on Sunday and Sunday midnight * * *.'

There are several exceptions noted to the above rule, but none has application to our case. The only question presented is whether sufficient facts were established before the board to make a prima facie case against the appellant that it sold or permitted intoxicating beverages to be consumed on the premises on Sunday. There is no denial of the evidence offered that the event occurred on the permit premises on Sunday at approximately 9:00 p. m., and that the chemical analysis showed the beverages to be intoxicating. The only question for the board's determination was whether the appellant sold the liquor or permitted it to be consumed...