Hanewald v. Board of Liquor Control

• Decision Date: 28 October 1955
• Citation: Hanewald v. Board of Liquor Control, 136 N.E.2d 77, 101 Ohio App. 375 (Ohio App. 1955)
• Parties: , 72 Ohio Law Abs. 522, 1 O.O.2d 313 James J. HANEWALD, d/b/a Linden Nite Club, Appellant, v. BOARD OF LIQUOR CONTROL of the State of Ohio et al., Appellees.
• Court: Ohio Court of Appeals

Page 375

101 Ohio App. 375

136 N.E.2d 77, 72 Ohio Law Abs. 522, 1 O.O.2d 313

James J. HANEWALD, d/b/a Linden Nite Club, Appellant, v. BOARD OF LIQUOR CONTROL of the State of Ohio et al., Appellees.

Court of Appeals of Ohio, Franklin County.

Oct. 28, 1955.

Milton L. Farber, Columbus, for appellant.

C. William O'Neill, Atty. Gen., Kiehner Johnson, Asst. Atty. Gen., for appellees.

FESS, Judge (Sitting by Designation).

Appeal on questions of law from a judgment of the Common Pleas Court finding that the order of the Board of Liquor Control suspending appellant's Class D-5 permit for a period of thirty days is supported by reliable, probative and substantial evidence, is in accordance with law, and affirming such order.

The appellant was charged with selling and allowing to be consumed in the permit permises beer to Charles Beebe, a minor aged 17 years, and to Stephen Jones, a minor aged 15 years, in violation of the Liquor Control Act and regulations of the Board. A review of the record discloses that Charles Beebe went to appellant's place of business about 11:30 or 12:00 P. M. on October 30, 1954, and asked some acquaintances who were seated in a booth whether they were ready to go home. Among those in the booth was Stephen Jones. One of those in the booth said: 'Come on, have a beer' and beer was ordered from appellant's employee. The exact number of young people seated in the booth is not revealed, but four glasses of beer were set upon the table. Beebe testified that one glass of beer was placed in front of him but that he pushed it away and did not drink it. One of the inspectors, however, testified that the glass in front of Beebe had been partially consumed. The 15 year old Jones is six feet, one inch tall and weighs 198 pounds. Plaintiff's employee inquired of him as to his age and the boy showed him a draft card which later was discovered to be that of his older brother. Part of the beer in front of Jones was consumed. The beer delivered to the table was paid for by Beebe.

As to Beebe, it is contended that there was no sale, but we agree with the Common Pleas Court that there is reliable, probative and substantial evidence to refute this contention. The record is silent as to who ordered the beer, but when it was delivered one glass was placed in front of Beebe who paid for all four glasses.

The principal question raised upon this appeal is the contention of appellant that scienter on the part of the permit holder is an essential element upon which to predicate the supension. It is asserted that the bartender exercised reasonable diligence to ascertain the age of Jones.

R.C. § 4301.22 provides, in part, as follows:

'Sales of beer and intoxicating liquor under all classes of permits * * * are subject to the following restrictions, in addition to those imposed by the rules, regulations, or orders of the department of liquor control:

'(A) No beer shall be sold to any person unless he is 18 years of age. * * *'

Where a statute defines an offense regardless of scienter, and the means of knowledge are available to the accused or the act is such as to impose a duty (in the interest of the public weal) upon the offender at his peril to ascertain the fact of violation, knowledge is not an essential element to support conviction; but under a charge of violating a statute which does not by its terms include scienter as an element of the offense, where the means of knowledge or the circumstances are such that the accused is not bound at his peril to know the fact and obey the law, proof of knowledge of the fact is...