Johns 3301 Toledo Cafe, Inc. v. Liquor Control Comm., 2008 Ohio 394 (Ohio App. 2/5/2008)
| Decision Date | 05 February 2008 |
| Docket Number | No. 07AP-632.,07AP-632. |
| Citation | 2008 Ohio 394 |
| Parties | Johns 3301 Toledo Café, Inc., Appellant-Appellant, v. Liquor Control Commission, Appellee-Appellee. |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 06CVF-06-3347.
The Gearhiser Law Firm, Inc., and Kurt O. Gearhiser, for appellant.
Marc Dann, Attorney General, and Charles E. Febus, for appellee.
{¶1} Appellant, Johns 3301 Toledo Café, Inc., appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of the Ohio Liquor Control Commission ("liquor commission" or "commission") revoking appellant's liquor permit for a violation of former R.C. 4301.25(A).1 For the following reasons, we affirm the judgment of the common pleas court.
{¶2} In July 2002, Anthony T. Elitawi, owner of an Ohio-licensed liquor store, suspected his brother was stealing liquor from his store and selling the stolen liquor to John K. Moussaed, the sole stockholder of appellant and operator of Hot Shotz Bar, in Toledo, Ohio. Accordingly, Mr. Elitawi reported his suspicions to the Ohio Department of Public Safety.
{¶3} Using marked bottles of liquor, agents of the Ohio Department of Public Safety arranged to have Mr. Elitawi's brother deliver four cases of liquor to Mr. Moussaed, who paid $410 to Mr. Elitawi's brother for the marked liquor. During a subsequent administrative search, agents of the Department of Public Safety and the Toledo Police Department later recovered the cases of marked liquor. Mr. Moussaed ultimately was convicted of receiving stolen property, a violation of R.C. 2913.51, and a felony of the fifth degree. See State v. Moussaed, Lucas App. No. L-03-1030, 2003-Ohio-4971 (affirming conviction for receiving stolen property).
{¶4} The Department of Public Safety thereafter charged the liquor permit holder, Johns 3301 Toledo Cafe, with three permit violations. On September 2, 2004, a hearing was held before the liquor commission. Finding that the liquor permit holder violated Ohio Adm.Code 4301:1-1-52(B)(7), the liquor commission revoked the permit holder's liquor permit. See, generally, Ohio Adm.Code 4301:1-1-52(B)(7) ().2
{¶5} From the liquor commission's order, the permit holder appealed to the Franklin County Court of Common Pleas, which affirmed the commission's order of revocation. From the common pleas court's judgment, the permit holder then appealed to this court. Finding that the common pleas court prejudicially erred, this court reversed the common pleas court's judgment and ordered the common pleas court to vacate its judgment. See Johns 3301 Toledo Cafe, Inc. v. Liquor Control Comm., Franklin App. No. 05AP-1037, 2006-Ohio-1028 ( that the appellant did not violate Ohio Adm.Code 4301:1-1-52[B][7] because the prohibited activity occurred beyond the bounds of the permit holder's premises).
{¶6} Meanwhile, in a separate action that arose out of the events of July 2002, by citation issued on September 14, 2004, appellant was charged with the following:
{¶7} By notice of hearing, the Department of Public Safety informed appellant that a hearing would be held before the liquor commission to determine whether appellant's liquor permit should be suspended, revoked, or both, or whether a forfeiture should be ordered for the following violation:
Violation #1: On or about January 31, 2003, you and/or your agent and/or employee JOHN MOUSSAED and/or your unidentified agent and/or employee was convicted in the Lucas County Common Pleas Court for violating in and upon the permit premises, Section 2913.51 of the Ohio Revised Code (), on July 24, 2002, in violation of Section 4301.25(A), of the Ohio Revised Code.
{¶8} Claiming that the administrative proceeding against appellant for an alleged violation of former R.C. 4301.25(A) violated its due process rights and that the proceeding was precluded due to collateral estoppel, appellant moved the liquor commission in a pre-hearing motion to dismiss the administrative action against it. The commission denied appellant's motion.
{¶9} On June 8, 2006, the matter was heard before the liquor commission. At the hearing, appellant, through its counsel, stipulated to the fact of Mr. Moussaed's conviction. Without objection, the Department of Liquor Control moved to admit documentary evidence into the record. Neither party proffered testimonial evidence at the hearing. By an order mailed on June 20, 2006, the liquor commission subsequently found that appellant violated former R.C. 4301.25(A), and ordered the revocation of appellant's liquor permit, effective July 11, 2006, at noon.3
{¶10} From the liquor commission's order of revocation, appellant appealed to the Franklin County Court of Common Pleas. While the matter was pending before the common pleas court, appellant moved the court to stay execution of the commission's order of revocation. The common pleas court granted appellant's motion and stayed execution of the commission's order. Finding that the commission's order was supported by reliable, probative, and substantial evidence and was in accordance with law, the common pleas court later affirmed the commission's order of revocation.
{¶11} From the common pleas court's judgment affirming the liquor commission's order of revocation for a violation of former R.C. 4301.25(A), appellant now appeals. Appellant advances two errors for our consideration:
I. THE ORDER OF THE LIQUOR CONTROL COMMISSION IS NOT IN ACCORDANCE WITH LAW BECAUSE THE HEARING BEFORE THE LIQUOR CONTROL COMMISSION VIOLATED THE LEGAL DOCTRINE OF RES JUDICATA.
II. THE ORDER OF THE LIQUOR CONTROL COMMISSION IS NOT IN ACCORDANCE WITH LAW BECAUSE THE LIQUOR CONTROL COMMISSION FAILED TO CERTIFY THE ORDER AS REQUIRED BY R.C. 119.09.
{¶12} Pursuant to R.C. 119.12, when a common pleas court reviews an order of an administrative agency, it must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111; see, also, Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280. The common pleas court's "review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court `must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.'" Lies v. Ohio Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207, quoting Andrews, at 280. In its review, the common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Conrad, at 111.
{¶13} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, rehearing denied, 67 Ohio St.3d 1439. In Pons, the Supreme Court of Ohio instructed:
* * * While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment. * * *
{¶14} An appellate court does, however, have plenary review of questions of law. Chirila v. Ohio State Chiropractic Bd. (2001), 145 Ohio App.3d 589, 592, citing Steinfels v. Ohio Dept. of Commerce, Div. of Securities (1998), 129 Ohio App.3d 800, 803, appeal not allowed (1999), 84 Ohio St.3d 1488.
{¶15} In its first assignment of error, appellant claims that the legal doctrine of res judicata precluded the liquor commission at the 2006 administrative hearing from considering a claim that appellant violated former R.C. 4301.25(A). Because the commission revoked appellant's liquor permit based on a determination that appellant violated former R.C. 4301.25(A), a basis which appellant claims was precluded by res judicata, appellant reasons that the commission prejudicially erred. Appellant also claims that the common pleas court prejudicially erred by finding that the commission's order of revocation was supported by reliable, probative, and substantial evidence, and that it was in accordance with law. For the reasons set forth below, we disagree.
{¶16} Whether the doctrine of res judicata applies in a case is a question of law. Accordingly, our review of appellant's res judicata claim is de novo. Prairie Twp. Bd. of Trustees v. Ross, Franklin App. No. 03AP-509, 2004-Ohio-838, at ¶12; Nye v. Ohio Bd. of Examiners of Architects, 165 Ohio App.3d 502, 2006-Ohio-948, at ¶12, citing Ross, at ¶12; Nationwide Ins. Co. v. Davey Tree Expert Co., 166 Ohio App.3d 268, 2006-Ohio-2018, at ¶15. "`[D]e novo appellate review means that the court of appeals independently reviews the record and affords no deference to the trial court's decision.'" Koehring v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 06AP-396, 2007-Ohio-2652, at ¶10, quoting BP Communications Alaska, Inc. v. Cent. Collection Agency (2000), 136 Ohio App.3d 807, 812, dismissed, appeal not allowed, 89 Ohio...
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