City Club of Toledo, Inc. v. Board of Liquor Control

Decision Date15 June 1964
Citation3 Ohio App.2d 339,210 N.E.2d 726
Parties, 32 O.O.2d 458 CITY CLUB OF TOLEDO, INC. Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
CourtOhio Court of Appeals

G. Mark Brown and John W. Winn, Jr., Toledo, for appellant.

William B. Saxbe, Atty. Gen., and James E. Rattan, Columbus, for appellee.

FESS, Judge.

This is on appeal from a judgment of the Common Pleas Court on an appeal from an order of the Board of Liquor Control finding that the decision and order of that board is supported by reliable, probative, and substantial evidence and in accordance with law and that the appeal should be dismissed.

The appeal was heard upon the transcript of the proceedings before the board, without taking additional testimony. Appellant's application for renewal of its permit was revoked by the director for the following reasons:

'Section 4303.271 of the Revised Code of Ohio provides in part:

"The holder of a permit issued under Sections 4303.02 to 4303.23, inclusive, of the Revised Code, who files an application for the renewal of the same class of permit for the same premises, shall be entitled to the renewal thereof and the department shall renew the permit unless the department rejects for good cause any such application * * *'

'The department finds that the City Club of Toledo, Ohio, is not a club within the contemplation and meaning of Section 4301.01(14) of the Revised Code of Ohio nor a bona fide club within the contemplation and meaning of Section 4303.17 of the Revised Code of Ohio.

'The department finds that the subject applicant is not carrying on the subject business solely in the interest of dues-paying membership as required by Section 4303.17 of the Revised Code, but that the subject premises are operated in the interest of one person or a small group of persons.

'Accordingly, Application No. H 52926 is hereby refused and rejected.'

In the proceedings before the board it was stipulated that if the Chief of the Permit Division were called he would testify as follows:

'That the City Club of Toledo filed an application for a D-4 permit in 1957, and that it was thoroughly investigated under the procedures; at that time was found to be a bona-fide club, and was issued a permit in November, 1957; and that it was renewed in the years 1958, and 1959; after investigation by the Department determined it was a bona-fide club; and that the City Club of Toledo, according to its own records, has been in existence from at least 1957.'

It was further stipulated that:

'* * * what has been marked for purposes of identification as 'Appellant's Exhibit One,' which is a ceritified copy of the original Articles of Incorporation; and certificate of Amendment to Articles of Incorporation, showing it has continued existence since March 31, 1949; and what has been marked as 'Appellant's Exhibit 1-A,' is a certified copy of a statement of continuing existence, required for non-profit organization, which was filed January 28, 1960.'

At the hearing, over repeated objection of counsel for appellant, the board admitted a photostatic copy of a contract between the former manager of the club and the Rinkers purporting to be a bill of sale of the business, license, inventory and equipment of the club for the sum of $15,600. There was no foundation laid for the introduction of such secondary evidence, and the admission and use of such copy constituted error prejudicial to the appellant. Falardeau v. W. H. H. Smith Co., 13 Ohio Cir.Ct.R., N.S., 268, 21 Ohio Cir. Dec. 649. Secondary evidence is never admitted unless it is made manifest that that which is better cannot be obtained. The Board of Liquor Control has ample power to compel the production of documentary evidence. Section 4301.04(h) ( 122 Ohio Laws 690), and Section 119.09, Revised Code. Although the hearing before the board upon appeal is less formal than that of a trial in the Common Pleas Court, it has been held that the procedure upon appeal before the board is governed by the rules of civil procedure. B. P. O. of Elks, Cincinnati, Lodge No. 5 v. Board of Liquor Control, 105 Ohio App. 181, 151 N.E.2d 693. Even though such a fundamental rule of evidence might be ignored by the board, it may not be disregarded by the Common Pleas Court on Appeal from the order of the board. This assignment of error is, therefore, sustained.

When the appeal came on for hearing, the board, over objection of appellant, placed upon the appellant the burden to prove that it did, in fact, operate solely for the purposes of the corporation as prescribed by Sections 4301.01(B)(14) and 4303.17, Revised Code.

According to the regulations of the board (Regulation 65), the order of procedure upon all hearings before the board requires that the director must first produce his evidence and the permit holder must then produce his evidence, except that in an appeal from an action of the director refusing to issue a D-4 permit for the reason that the appellant permit holder is not a bona fide club, then appellant must first present his evidence and the director must present his.

As we construe this regulation, a club applying for a D-4 permit at the first instance has the burden of showing that it qualifies for such permit, but upon an application for the renewal thereof, the general rule is to be applied, i. e., the director must first produce his evidence and the burden of proof falls upon the director to prove that such club has forfeited its right to renewal of its permit. This conclusion is consistent with the first...

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