Leland Sowders v. Ohio Liquor Control Commission
| Decision Date | 04 August 2000 |
| Docket Number | 00-LW-3384,C.A. 18173 |
| Parties | LELAND SOWDERS, Plaintiff-Appellant v. OHIO LIQUOR CONTROL COMMISSION, Defendant-Appellee C.A. CASE NO. 18173 |
| Court | Ohio Court of Appeals |
KURT O GEARHISER, Atty. Reg. No. 0021245, 218 East State Street Columbus, Ohio 43215-4360, Attorney for Plaintiff-Appellant
JAMES M. GUTHRIE, Atty. Reg. No. 0015942, Assistant Attorney General, 30 E. Broad Street, 26t h Floor, Columbus, Ohio 43215-3428, Attorney for Defendant-Appellee
Leland Sowders appeals from a judgment of the Montgomery County Court of Common Pleas which affirmed the decision of the Ohio Liquor Control Commission ("Liquor Control Commission") to deny his renewal application for a class D-5 liquor permit.
The record reveals as follows. Prior to 1997, Sowders held a class D-5 liquor permit for Mr. Lee's, an adult entertainment bar located at 2073 Republic Drive in Harrison Township, Ohio. When he filed a renewal application for his liquor permit in 1997, the Harrison Township Trustees objected to such renewal. The Superintendent of the Department of Commerce, Division of Liquor Control ("Division") held an objection hearing on August 20, 1997. The Division then conducted an investigation "which included a review of the renewal application, the evidence submitted at the objection hearing, and information gathered from various documents and reports." [Div ltr p1] On October 20, 1997, the Division informed Sowders that it had decided to deny his renewal application.
Sowders appealed the Division's decision to the Liquor Control Commission. The Liquor Control Commission held a hearing on July 15, 1998. The following testified at the hearing: Marlin Flee, Harrison Township Administrator; Randy Duff and Bryan Statzer, deputies with the Montgomery County Sheriff's Office assigned to patrol the area where Mr. Lee's was located; and Greg Menke, a sergeant with the Montgomery County Sheriff's Office and the keeper of the records for liquor permit holders in Harrison Township. Following the hearing, the Liquor Control Commission affirmed the Division's decision to deny Sowders' renewal application by a two-to-one vote.
Sowders appealed the Liquor Control Commission's decision to the trial court. On January 14, 2000, the trial court adopted a magistrate's decision which affirmed the Liquor Control Commission's denial of Sowders' renewal application . Sowders now appeals the trial court's decision.
Sowders raises four assignments of error on appeal, which we will address in an order that facilitates our discussion.
IV. THE MONTGOMERY COUNTY COMMON PLEAS COURT ERRED WHEN IT FOUND THAT THE ORDER OF THE LIQUOR CONTROL COMMISSION WAS SUPPORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE.
Sowders argues that the trial court's decision to affirm the Liquor Control Commission's denial of Sowders' renewal application was not supported by reliable, probative, and substantial evidence.
In reviewing an order issued by an administrative agency pursuant to R.C. 119.12, a common pleas court must affirm the agency's order if it finds that such order is in accordance with the law and there is reliable, probative, and substantial evidence to support it. Lavery v. Ohio Liquor Control Comm. (1996), 112 Ohio App.3d 494, 497, 679 N.E.2d 57, 59. The evidence required by R.C. 119.12 has been defined as follows: Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571, 589 N.E.2d 1303, 1305.
Unlike the common pleas court, our court does not determine the weight of the evidence. Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260-261, 533 N.E.2d 264, 267; Equus, Inc. v. Ohio Liquor Control Comm. (June 15, 1999), Franklin App. No. 98AP-892, unreported. We are limited to determining whether the trial court abused its discretion in concluding that there was reliable, probative, and substantial evidence to support the Liquor Control Commission's decision. Paramount Auto, Inc. v. Motor Vehicle Dealers Bd. (1997), 118 Ohio App.3d 511, 514, 693 N.E.2d 818, 820, dismissed (1997), 79 Ohio St.3d 1445, 680 N.E.2d 1019. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude [was] unreasonable, arbitrary or unconscionable." Atkinson v. International Technegroup, Inc. (1995), 106 Ohio App.3d 349, 357-358, 666 N.E.2d 257, 263, quoting Rohde v. Farmer (1970), 23 Ohio St.2d 82, 87, 262 N.E.2d 685, 689.
In this case, the Division's order stated that Sowders' renewal application was being denied for, inter alia, "good cause" pursuant to R.C. 4301.10(A)(2), R.C. 4303.271(A), and Ohio Adm.Code 4301:1-1-12. R.C. 4301.10(A)(2) provides the Division with the general power to grant liquor permits. R.C. 4303.271(A) states that a permit holder shall be entitled to the renewal of his permit unless the Division rejects the renewal application for "good cause." The Division has the burden of proving, by a preponderance of the evidence, "good cause" for rejecting the renewal application. Marwan, Inc. v. Ohio Liquor Control Comm. (1994), 93 Ohio App.3d 229, 233, 638 N.E.2d 135, 138; Buckeye Bar, Inc. v. Liquor Control Comm. (1972), 32 Ohio App.2d 89, 90-91, 288 N.E.2d 318, 320. Ohio Adm.Code 4301:1-1-12(B) states:
In determining whether to *** renew a permit, the [D]ivision shall consider environmental factors affecting the maintenance of public decency, sobriety, and good order, including the number and location of permit premises in the immediate area. If the [D]ivision shall find that no substantial prejudice to public decency, sobriety, and good order will result, it may issue the permit. For the purpose of this rule, however, the [D]ivision shall presume, in the absence of affirmative evidence to the contrary, that the renewal of permits *** will not prejudice the maintenance of public decency, sobriety, and good order.
The term "good cause" is not defined in the statute or the administrative code. It is well-established, however, that "good cause" for denying a renewal application may be found where the permit premises adversely affect the surrounding environment by interfering with public decency, sobriety, and good order. In re Appeal of Mendlowitz (1967), 9 Ohio App.2d 83, 88, 222 N.E.2d 835, 839. As we have stated before, "the permit holder need not, by his own actions, be directly responsible for the offending environmental factors, and *** adverse environmental factors sufficient to rise to the level of 'good cause' for non-renewal may be created by 'intoxicated people coming to and from [the permit premises] and destroying property, trespassing, using obscene language or indecent conduct.'" Electrical Mgt. Sys., Inc. v. Liquor Control Comm. (Sept. 1, 1993) Montgomery App. No. 13843, unreported, quoting Whispers, Inc. v. Liquor Control Comm. (May 11, 1989), Columbiana C.P. No. 88-CIV-590, unreported; see Kayla, Inc. v. Ohio Liquor Control Comm. (1996), 79 Ohio Misc.2d 19, 24, 670 N.E.2d 311, 314.
Duff testified that he had been assigned to patrol the district where Sowders' premises were located from March 1996 through July 1997. During that time, he had encountered numerous fights, drug activity particularly in the parking lot adjacent to the premises, and litter in the parking lot. He reported that he had investigated incidents of robbery, public indecency, assault, and other disorderly situations in and around Sowders' premises. He stated that his "beat assignment" included "numerous liquor permit premises" and that Sowders' premises were "[e]xtremely active law enforcement wise." [p.15-16] Duff specifically discussed three incidents that he had investigated at Sowders' premises. In September 1996, Duff was dispatched to the premises and arrived to find that a fight between two female patrons had occurred. The victim was intoxicated, less than cooperative, and refused treatment. While on routine patrol in October 1996, Duff was "flagged down" by a female who wanted to report that she had been robbed by one of Sowders' patrons as she had left the premises. In December 1996, Duff was called to the premises by Sowders' employees when an intoxicated man became combative when the doorman refused to allow him admittance into the premises. The man was uncooperative with Duff and other deputies as well, "kicking and thrashing about" while they tried to restrain him, kicking and "shattering the glass" window in the police cruiser door, "slipp[ing] his handcuffs to the front[,] *** jumping through the broken cruiser window[,]" and fleeing on foot. The deputies chased and "tackle[d]" him, but he "broke control and swung both hands and handcuffs, in a chopping motion," grazing a deputy's face before eventually being subdued. Duff testified that he had also been called to Sowders' premises on numerous other occasions which had not resulted in incident reports, such as unsubstantiated complaints of drug trafficking in the parking lot. He further stated that he had made felony warrant arrests on Sowders' patrons and one employee on the premises.
Statzer testified that he had been assigned to patrol the area encompassing Sowders' premises between March 1996 and June 1998 and that during that time, he had handled incidents of drug abuse in the parking lot, public indecency, bar fights, and assaults on deputies. He stated that...
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