Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917

• Decision Date: 30 December 1992
• Docket Number: 91-2486,Nos. 91-1792,s. 91-1792
• Citation: 65 Ohio St.3d 532,605 N.E.2d 368
• Parties: DEPARTMENT OF LIQUOR CONTROL, Appellee, v. SONS OF ITALY LODGE 0917, Appellant.
• Court: Ohio Supreme Court

Page 532

65 Ohio St.3d 532

605 N.E.2d 368

DEPARTMENT OF LIQUOR CONTROL, Appellee, v. SONS OF ITALY LODGE 0917, Appellant.

Nos. 91-1792, 91-2486.

Supreme Court of Ohio.

Submitted Sept. 22, 1992.

Decided Dec. 30, 1992.

SYLLABUS BY THE COURT

The language of former R.C. 2933.43(C) is mandatory; it requires strict compliance with the notice and publication provisions contained therein.

On June 17, 1988, investigators from appellee, the Department of Liquor Control ("department"), entered the premises of appellant, Sons of Italy Lodge 0917 ("lodge"), acting upon a complaint received by the department. The complaint alleged that individuals who were not members of the lodge were purchasing alcoholic beverages, and that gambling was occurring on the premises. After investigating, the agents confiscated two video draw poker machines and $817.51. The department charged the lodge with violating a regulation of the Ohio Liquor Control Commission ("commission"). The charge read:

"On June 17, 1988, your unidentified agent and/or employee BENJAMIN SPRINGER and/or SANDRA BLYSTONE did permit and/or allow in and upon or about the permit premises, playing, gaming or wagering on a game of skill or chance to wit, electronic video gambling device -top draw-and Rivera machines--in violation of [Ohio Adm.Code] 4301:1-1-53[B] ¹ a regulation of the Ohio Liquor Control Commission."

At an administrative hearing held on December 1, 1988, the lodge denied committing the violation. The commission found the lodge in violation of the regulation and suspended its liquor license for five days. The lodge did not appeal the suspension.

The administrative order was dated December 12, 1988, and the department filed a petition for forfeiture on December 16, 1988. The hearing date was set for January 4, 1989. The certificate of service attached to the petition stated that the department sent a copy of the petition for forfeiture to the lodge by regular mail, postage paid, on December 16, 1988. Public notice was not published in the newspaper until December 23, 1988 and the hearing date printed in the notice did not correspond with the hearing date actually set by the court. As a result of this discrepancy, the hearing was rescheduled for January 25, 1989.

No transcript of the hearing was made, but the record reveals that no new evidence was presented by either party. The lodge filed a motion to dismiss the forfeiture proceeding. On August 29, 1989, the trial court overruled the motion to dismiss. The court of appeals sua sponte dismissed the lodge's appeal because the entry of the trial court did not constitute a final appealable order.

The trial court issued a judgment on the petition for forfeiture on November 7, 1990. It found that the department had shown by a preponderance of the evidence that the draw poker machines and money were contraband and were in the possession of the lodge in violation of R.C. 2933.42. The trial court ordered the property forfeited to the department.

On appeal, the lodge argued that the department had failed to comply with former R.C. 2933.43(C)'s procedural notification requirements for the forfeiture hearing, and for that reason the trial court should have dismissed the forfeiture action without reaching the merits. The lodge also argued that the trial court erred in finding that the department investigators' report was admissible evidence under Evid.R. 803(8) as a public record or report, and that the trial court erred in finding that the property was contraband.

The court of appeals affirmed the trial court and upheld the order of forfeiture. In particular, the court found that the lodge was not prejudiced by the department's failure to precisely comply with the notice provisions of R.C. 2933.43(C), and that strict compliance with the notice procedures was not required in this case.

The cause is now before this court upon the allowance of a motion to certify the record (case No. 91-1792). In addition, the appellate court found its judgment regarding the notice provisions of R.C. 2933.43(C) to be in conflict with the judgment of the Court of Appeals for Lucas County in State v Jacobiak (Dec. 22, 1989), Lucas App. No. L-89-016, unreported, 1989 WL 155185, and with the judgment of the Court of Appeals for Summit County in State v. Tysl (June 20, 1990), Summit App. No. 14348, unreported, 1990 WL 83971, and certified the record of the case to this court for review and final determination (case No. 91-2486).

Lee I. Fisher, Atty. Gen., and Kurt O. Gearhiser, Asst. Atty. Gen., for appellee.

John A. Connor, II Co., L.P.A., John A. Connor, II and Darrell E. Fawley, Jr., Columbus, for appellant.

WRIGHT, Justice.

The issue certified for our review is: "Whether the notice requirements set forth in [former] R.C. 2933.43(C) are mandatory or whether substantial compliance with the notice requirements is all that is required to vest the trial court with jurisdiction to proceed where the defendant has actual notice." Because the language of R.C. 2933.43(C) is mandatory, strict compliance with the notice and publication provisions contained therein is required.

In construing a forfeiture statute the court must begin with a fundamental premise: Forfeitures are not favored by the law. The law requires that we favor individual property rights when interpreting forfeiture statutes. To that end, "statutes imposing restrictions upon the use of private property, in derogation of private property rights, must be strictly construed." State v. Lilliock (1982), 70 Ohio St.2d 23, 26, 24 O.O.3d 64, 65, 434 N.E.2d 723, 725.

The language of former R.C. 2933.43(C) is clear and unequivocal: the petitioner seeking forfeiture "shall give notice of the forfeiture proceedings by certified mail, * * * and shall publish notice of the proceedings once each week for two consecutive weeks in a newspaper of general circulation in the county in which the seizure occurred. The notices shall be mailed and first published at least four weeks before the hearing." (Emphasis added.)

It is axiomatic that when it is used in a statute, the word "shall" denotes that compliance with the commands of that statute is mandatory. The rule has been stated frequently and clearly: "In statutory construction, the word 'may' shall be construed as permissive and the word 'shall' shall be construed as mandatory unless there appears a clear and unequivocal legislative intent that they receive a construction other than their ordinary usage." Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834, paragraph one of the syllabus. ² The lower courts of this state have long relied on this clear rule of construction. ³

There is not even a remote indication, let alone "clear and unequivocal legislative intent," that the General Assembly considers the procedures set forth in R.C. 2933.43(C) to be permissive guidelines rather than mandatory instructions. Quite the contrary, the General Assembly chose mandatory language to assure that due process would be afforded in all cases in which the state seeks forfeiture. The General Assembly itself provided detailed safeguards in R.C. 2933.43(C), including the requirements that diligent inquiry regarding ownership of the seized property be undertaken and that specific notice requirements and time limits be followed. It is not this court's prerogative to second-guess the General Assembly's legislative policy choices.

Concurring in State v. Casalicchio (1991), 58 Ohio St.3d 178, 183, 569 N.E.2d 916, 921, Justice Douglas reflected on the language used by the General Assembly in R.C. 2933.43(C): "[T]he forfeiture statute is strong, but needed, medicine. Because of the endless possibilities of how the statute can be used by law enforcement agencies, the General Assembly obviously meant that certain procedural safeguards be followed. If those time-limit safeguards are not followed, then, said the legislature, forfeiture may not take place. We should enforce, in this regard, the will of the legislative body." Id. at 184, 569 N.E.2d at 922.

The department argues, in effect, that substantial compliance with the notice and publication requirements of R.C. 2933.43(C) adequately protected the lodge's due process rights, under the facts and circumstances of this case. The department misunderstands our role in reviewing the adequacy of due process protection. It is true that our inquiry is not limited to superficially considering whether the dictates of R.C. 2933.43(C) were followed; we also consider whether constitutional due process rights were, in actuality, adequately protected. This court has an obligation to determine whether due process is afforded even when there is strict compliance with the requirements of the statute. ⁴ However, if strict compliance with the clear language of the statute does afford due process, our inquiry is complete. We are not permitted to decide whether something less than strict compliance, contrary to the clear intent of the legislature, might also meet minimal due process requirements in a particular case.

If the clear language of the statute is not sufficient to establish that it is mandatory, the actions of the General Assembly in amending R.C. 2933.43 provide additional support. Under former R.C. 2933.43(C), the law applicable here, law enforcement officials were required to provide notice of the forfeiture hearing by publication at least four weeks prior to the hearing. The hearing, in turn, was to be held no later than thirty days after the "conviction, or the admission or adjudication of the violation." This left the state only two days to file its petition and publish notice. ⁵

However, in 1990 the General Assembly amended R.C. 2933.43, in part, by increasing the amount of time before a hearing had to be held from thirty to forty-five days--which gives the state fifteen additional days to publish notice of the hearing. 143 Ohio Laws, Part I, 1457. This...