Buckeye Bar, Inc. v. Liquor Control Commission

• Decision Date: 11 April 1972
• Citation: 61 O.O.2d 90,32 Ohio App.2d 89,288 N.E.2d 318
• Parties: , 61 O.O.2d 90 BUCKEYE BAR, INC., Appellant, v. LIQUOR CONTROL COMM., Appellee.
• Court: Ohio Court of Appeals

Page 89

32 Ohio App.2d 89

288 N.E.2d 318, 61 O.O.2d 90

BUCKEYE BAR, INC., Appellant, v. LIQUOR CONTROL COMM., Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

April 11, 1972.

Syllabus by the Court

1. In a hearing before the liquor control commission to review the rejection of an application for renewal of a liquor permit, good cause must be shown by the board that the permit holder has no right to renewal.

2. Reliable, probative and substantial evidence of environmental conditions relating to public decency, sobriety and good order, presented at a hearing before the commission, and of sufficient weight and credibility to justify the rejection of such permit, constitute good cause to reject a renewal application under R.C. § 4303.271.

Alan C. Travis, Columbus, for appellant.

William J. Brown, Atty. Gen., and John A. Conner II, Columbus, for appellee.

TROOP, Presiding Judge.

The department of liquor control, under date of January 29, 1971, rejected an application for the renewal of the D-1, D-2, D-3, and D-3a permits of the Buckeye Bar, Inc., doing business as Walk Inn. Attention is directed to page two of the departments communication, listing, titled A through H inclusive, the specific reasons for its denial of the permit, which reasons are essentially a reflection of the environmental effects of the presence of the permit premises. Also appearing in the communication are reasons A through C inclusive, which reflect police department objections.

The decision of the department was before the liquor control commission for review, and its decision, mailed May 11, 1971, affirmed the department's rejection of the application for renewal. The decision of the commission was appealed according to statute to the Common Pleas Court of Franklin County, which, on November 2, 1971, filed a journal entry affirming the order of the liquor control commission, finding that such order was supported by reliable, probative, and substantial evidence and was in accordance with law. It is from that judgment and final order of the Common Pleas Court that this appeal is taken.

According to R.C. § 4303.271, a permit holder is entitled to a renewal of his permit or permits unless such is rejected by the department 'for good cause.' It is clear that the burden of proof is on the board to show that the permit holder has no right to a renewal. (City Club of Toledo, Inc. v. Bd. of Liquor Control (1964), 3 Ohio App.2d 339, 210 N.E.2d 726.) There is little available material to indicate just what is meant by 'good cause.' The department's regulation 12 seems to suggest that the concept embraces a situation where 'no substantial prejudice to public decency, sobriety and good order will result.' If the department finds such a condition to exist, a permit will issue.

Plaintiff addresses his single assignment of error to the claim that the Common Pleas Court was in error in finding that reliable, probative, and substantial evidence supported the order of the department and its affirmation by the commission. Careful and specific definition of those three terms escapes the attention of this court. Something of a negative approach is taken by the Supreme Court in its decision in Corwin d. b. a. C. & O. Restaurant v. Bd. of Liquor Control (1960), 170 Ohio St. 304, 164 N.E.2d 412, in which the court speaks of a 'naked objection.' That kind of an objection, said the court in the third paragraph of the syllabus, 'does not, of itself, constitute reliable, probative or substantial evidence to support the denial of the permit.' This negative thought at least produces one clue or measure for the evidence adduced in a case such as the one before us.

One other basic rule should be noticed, which is set out in the decision in Sanders v. Fleckner (1950), Ohio App., 98 N.E.2d 60, 59 Ohio Law Abst. 135, which reminds us that liquor cases heard before any tribunal are civil cases; consequently, the rule of 'preponderance,' is applicable and there never is an occasion which requires proof beyond a reasonable doubt.

Counsel for the plaintiff in both brief and oral argument centers his attention on the qualifying term 'substantial,' indicating that he raises no objection as to the reliability or the probative value of the evidence adduced at the hearing. Thus, limiting our consideration to the one term, 'substantial' raises a question as to whether counsel is in fact arguing anything more than the weight of the evidence. Certainly the term 'substantial' cannot be disassociated from the term 'credible.' Common dictionary definition and usage suggest that 'substantial' means evidence having value. It is real, true, solid, firm, soundly based, or carries weight. Volume 40, Words and Phrases (1964), at page 781, produces some suggestions of value. It is suggested in one note that the term 'substantial' when used in connection with evidence on an appeal from an administrative agency means 'reasonable support.' A cursory review of some of the other suggestions indicates that, ordinarily, evidence is substantial if it tips the scales in favor of the party on whom the burden of proof rests. It is also suggested that substantial evidence is evidence that will convince an unprejudiced mind of the truth of the fact to which the evidence is directed. In more simple language, counsel is talking about weight and credibility which normally are for the trier of the facts.

An examination of the record and transcript in the instant case would indicate that the concern of the liquor department in rejecting this permit centered about what we have chosen to...