Salem v. Liquor Control Commission

Decision Date20 June 1973
Docket NumberNo. 72-729,72-729
Citation63 O.O.2d 387,298 N.E.2d 138,34 Ohio St.2d 244
Parties, 63 O.O.2d 387 SALEM, d. b. a. Salem's Restaurant, Appellant, v. LIQUOR CONTROL COMMISSION, Appellee.
CourtOhio Supreme Court

Appellant's agent, Paul Salem, was charged with violating LCc-1-52, a regulation of the Ohio Liquor Control Commission, in that the agent did 'knowingly and/or willfully allow in and upon the permit premises, improper conduct * * * (in permitting) a female to dance with insufficient attire, to-wit, pasties which covered only the nipple and areola portion of her breasts,' the overall effect of which was to portray the female as dancing in a 'topless' state.

After a hearing before the commission, the appellant's liquor permits were suspended for 28 days, the finding being that, from the evidence presented, appellant's actions constituted 'improper conduct' within the purview of the above regulation.

Upon appeal, the Court of Common Pleas reversed the order of the Commission, the opinion concluding that the regulation involved 'is so vague * * * that a person subject to said rule * * * (does not) know their rights and obligations thereunder.'

The Court of Appeals reversed the judgment of the Court of Common Pleas, holding that the disputed regulation was not uncertain of meaning, vague or indefinite.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Blakemore, Rosen, Miller & Norris, Robert W. Blakemore and Michael B. Hendler, Akron, for appellant.

William J. Brown, Atty. Gen., and John A. Connor, II, Columbus, for appellee.

PER CURIAM.

The obvious 'harmful potentialities' when the sale of intoxicating beverages occurs in retail outlets necessitates that the liquor industry be strictly regulated, and that regulation includes not only the sale of liquor but also the conditions and circumstances surrounding the liquor premises. Solomon v. Liquor Control Comm. (1965), 4 Ohio St.2d 31, 34, 212 N.E.2d 595; Ziffrin v. Reeves (1939), 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128; Major Liquors v. Omaha (1972), 188 Neb. 628, 198 N.W.2d 483.

Realizing that the liquor industry requires such regulation, the states have not granted irrevocable permits in the nature of vested property rights to retail liquor businesses, but instead have issued 'licenses.' A 'license' has been consistently considered by courts as a 'personal and temporary permit or privilege, and not a natural right, to be enjoyed only so long as the conditions and restrictions governing its continuance are complied with * * * .' (Emphasis added.) 45 American Jurisprudence 2d 568, Section 115; State ex rel. Zugravu v. O'Brien (1935), 130 Ohio St. 23, 196 N.E. 664; Abraham v. Fioramonte (1952), 158 Ohio St. 213, 107 N.E.2d 321.

In Ohio, the statutory grant of authority to police liquor permit licenses is found in R.C. 4301.03(B), which provides that regulations may be adopted to maintain 'public decency, sobriety, and good order in any place licensed under such permits.'

With the above-quoted purpose in mind, Regulation LCc-1-52, adopted by the commission, reads, in pertinent part:

'No permit holder, his agent, or employee shall knowingly or willfully allow in, upon or about his licensed premises improper conduct of any kind, type or character * * * .'

At the outset, it should be noted that (in addition to the special 'license' relationship between the state and permit holder) what is in evidence here is an administrative regulation which is applied in a civil proceeding, not a criminal statute. If the wording of the regulation is general in nature, the needed specificity commanded constitutionally in a criminal statute is not required. See Dandridge v. Williams (1970), 397 U.S. 471, 484-485, 90 S.Ct. 1153, 25 L.Ed.2d 491; Hodges v. Fitle (D.C.1971), 332 F.Supp. 504, 510; In re Tahiti Bar Inc. (1959), 395 Pa. 355, 364, 150 A.2d 112 B. P. O. of Elks v. Board of Liquor Control (1957), 105 Ohio App. 181, 183, 151 N.E.2d 693.

Appellant's principal assertion is confined to the wording of the regulation, and, specifically, the phrase 'improper conduct'-the claim being that the regulation does not sufficiently apprise a permit holder of the explicit standards needed to guide in the proper supervision of appellant's establishment.

We are of the opinion that to comply with appellant's assertion, that Regulation LCc-1-52 must be less vague, would require the commission to spell out in detail not only the proper attire to be worn in permit premises, but also to detail in its regulations the host of other conditions surrounding the regulation of the industry. We find appellant's contention to be without merit, because the statutory relationship created between commission and licensee never intended such a result.

To the contrary, in our opinion a licensee, by consenting to abide by the liquor statutes and regulations when applying for his license, has thereby bound himself to operate as the Liquor Control Commission believes is consistent with 'public decency, sobriety, and good order.' Angola Corp. v. Liquor Control Comm. (1972), 33 Ohio App.2d 87, 90-91, 292 N.E.2d 886. See, also, Crowley v. Christensen (1890), 137 U.S. 86, at page 91, 11 S.Ct. 13, at page 15, 34 L.Ed. 620, where it is stated:

'* * * Not only may a license be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day and the days of the week on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality, and not of federal law. The police power of the state is fully competent to regulate the business, to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the state of or a citizen of the United States. As it is a business attended with danger to the community it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority.'

The same question of the vagueness of Regulation LCc-1-52 was raised in A. B. Jac v. Liquor Control Comm. (1972), 31 Ohio App.2d 9, 285 N.E.2d 763, where two of the charges of 'improper conduct' were identical to that presented here. The court, at page 11, 285 N.E.2d at page 764, stated:

'The...

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