Debrah E. Lindner v. Ohio Liquor Control Commission
| Decision Date | 31 May 2001 |
| Docket Number | 01-LW-2022,00AP-1430 |
| Parties | Debrah E. Lindner, Appellant-Appellant v. Ohio Liquor Control Commission, Appellee-Appellee |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Fawley & Associates, and Darrell E. Fawley, Jr., for appellant.
Betty D. Montgomery, Attorney General, and David A. Raber, for appellee.
On September 15, 1999, Debrah Lindner was issued a violation notice from the Enforcement Division of the Ohio Department of Liquor Control. Ms. Lindner was the liquor permit holder for premises known as the Blockhouse, a bar in Portsmouth Ohio. The notice stated that investigators had inspected the bar and as a result, a citation was being issued for allowing and/or permitting gambling on the premises. On December 7 1999, Ms. Lindner was mailed a notice of a hearing to determine whether her liquor permit(s) would be suspended or revoked for the following alleged violations:
A hearing was held before the Ohio Liquor Control Commission ("commission"), at which Ms. Lindner's husband and manager of the Blockhouse, Karl Lindner, attended and admitted to the above charges. On December 16, 1999, the commission issued its order, finding Ms. Lindner had violated the above regulation. The commission revoked Ms. Lindner's permit(s).
On December 22, 1999, Ms. Lindner filed a "MOTION FOR RECON-SIDERATION OF PENALTY" with the commission, indicating that she did not deny football spot cards and records characterized as payoff records were discovered on the premises. However, Ms. Lindner asserted the penalty of revocation was "quite" severe and requested that the commission reconsider such penalty. The commission denied Ms. Lindner's motion for reconsideration.
Ms. Lindner appealed the commission's order to the Franklin County Court of Common Pleas pursuant to R.C. 119.12. On November 20, 2000, the common pleas court issued a decision and judgment entry finding the commission's order was supported by reliable, probative and substantial evidence. The common pleas court noted that Ms. Lindner had admitted to the charges and that there was no need for further evidence. The common pleas court concluded that under R.C. 4301.25(A), the commission had the authority to revoke Ms. Lindner's permit(s) and, therefore, the court had no authority to modify such penalty.
Ms. Lindner (hereinafter "appellant") has appealed to this court, assigning the following errors for our consideration:
Appellant's assignments of error are interrelated and, therefore, will be addressed together. Appellant's assertions set forth issues of fact and law. In reviewing the commission's order in an R.C. 119.12 appeal, a court of common pleas is required to affirm if the commission's order is supported by reliable, probative and substantial evidence and is in accordance with law. VFW Post 8586 v. Ohio Liquor Control Comm. (1998), 83 Ohio St.3d 79, 81. Appellant contends the commission's order was not supported by reliable, probative and substantial evidence. As to this issue, this court determines only if the common pleas court abused its discretion, which encompasses not merely an error of judgment, but perversity of will, passion, prejudice, partiality or moral delinquency. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621.
Appellant also contends that she was not afforded a meaningful hearing before the commission. Specifically, appellant asserts the commission should not have allowed her husband, a non-lawyer, to represent her at the hearing. Additionally, appellant contends that the three-minute "hearing," at which no testimony was taken, was insufficient. Issues involving procedural requirements for hearings present questions of law. Goldman v. State Med. Bd. of Ohio (1996), 110 Ohio App.3d 124, 128, discre-tionary appeal not allowed in (1996), 77 Ohio St.3d 1411. On questions of law, our review is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339, 343-344. We address the questions of law first.
Appellant contends the commission should not have permitted her husband to represent her interests at the hearing as he had no legal authority to do so and that such representation would constitute the unauthorized practice of law. In support of such assertions, appellant cites R.C. 119.13, which states:
At any hearing conducted under sections 119.01 to 119.13 of the Revised Code, a party or an affected person may be represented by an attorney or by such other representative as is lawfully permitted to practice before the agency in question, but, *** only an attorney at law may represent a party or an affected person at a hearing at which a record is taken which may be the basis of an appeal to court. *** [Emphasis added.]
Ohio Adm.Code 4301:1-1-65(J) states that a record of the testimony shall be taken at all hearings before the commission. Hence, it would appear R.C. 119.13 mandates that only an attorney may represent a party or affected person at a commission hearing. However, for the reasons that follow, we conclude that it was not error for the commission to allow Mr. Lindner to admit to the charges against appellant.
In Disciplinary Counsel v. Molnar (1990), 57 Ohio Misc.2d 39, 40, the Board of Commissioners on the Unauthorized Practice of Law determined that the respondent, in representing permit holders in contested hearings before the commission, had engaged in the unauthorized practice of law. The respondent, a non-attorney, had held himself out and advertised his services as a representative of liquor permit holders and had engaged in activity that was generally considered the practice of law. Id.
In Worthington City School Dist. Bd. of Edn. V. Franklin Cty. Bd. of Revision (1999), 85 Ohio St.3d 156 ("Worthington"), various non-attorneys had prepared, filed and/or signed complaints before county boards of revision. The Supreme Court found that those non-attorneys who had prepared and filed complaints on behalf of their corporations had engaged in the unauthorized practice of law and, therefore, the Board of Tax Appeals properly determined that it lacked jurisdiction over the matters. Id. at 160-161. In addition, the Supreme Court noted that corporations cannot maintain litigation in propria persona or appear in court through an officer not admitted to the practice of law. Id. at 160.
The above cases are distinguishable. In Molnar and Worthington, the non-attorneys had engaged in activity that was generally considered the practice of law. This is not the case here. Mr. Lindner, who was the manager of the permit premises, merely showed up at the hearing to admit to the charges lodged against his wife/appellant, the permit holder. He was not there to "represent" appellant in any way that could be considered legal representation such that an attorney would do.
The practice of law embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients and, in general, all advice to clients and all action taken for them in matters connected with the law. Cincinnati Bar Assn. v. Estep (1995), 74 Ohio St.3d 172, 173, quoting Land Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio St. 23, paragraph one of the syllabus. Mr. Lindner simply did not intend to nor did he engage in such activities. Therefore, the mandate in R.C. 119.13 is not implicated, and there was no error at the commission hearing in regard to Mr. Lindner's presence there and his admission to the charges on behalf of appellant.
As to the summary nature of the hearing, there was no error. The hearing before the commission lasted about three minutes. Mr Lindner admitted to the charges and stated that the employees of the bar "realize that there...
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