State v. VFW Post 3562

• Decision Date: 06 July 1988
• Docket Number: No. 87-445,87-445
• Citation: 37 Ohio St.3d 310,525 N.E.2d 773
• Parties: , 57 USLW 2099 The STATE of Ohio, Appellee, v. VFW POST 3562, Appellant.
• Court: Ohio Supreme Court

Page 310

37 Ohio St.3d 310

525 N.E.2d 773, 57 USLW 2099

The STATE of Ohio, Appellee, v. VFW POST 3562, Appellant.

No. 87-445.

Supreme Court of Ohio.

Submitted Jan. 19, 1988.

Decided July 6, 1988.

Syllabus by the Court

1. R.C. 4301.10(A)(4), (6), and (7) and Ohio Adm. Code 4301:1-1-53 are unconstitutional insofar as they fail to establish time, place, and scope limitations on warrantless administrative searches of liquor establishments by agents of the Department of Liquor Control.

2. Evidence obtained as a result of a warrantless administrative search may not be used in a criminal prosecution under a statute of general criminality not related to provisions of R.C. Chapters 4301 and 4303.

On November 6, 1985, three investigators from the Ohio Department of Liquor Control arrived at VFW Post 3562 in Richfield, Ohio, to investigate complaints the department had received concerning gambling on the premises. One of the investigators attempted to gain entrance to the club. The investigator was denied entrance when, in response to the bartender's question, he told the bartender that he was not a member.

The three investigators then gained entrance by properly identifying themselves and indicating their desire to conduct an inspection of the club. The investigators proceeded to conduct a general search of the entire business premises, which took approximately one hour and fifteen minutes. In the process of their search, the investigators discovered two "Dwarf's Den" electronic video machines. The investigators also found some accounting records in the kitchen area of the club which the investigators alleged indicated that the club received payoffs on the electronic video games. The investigators then contacted the local police who assisted in confiscating the machines. Appellant, VFW Post 3562 in Richfield, and its bartender were charged with violations of R.C. 2915.02(A)(5). ¹

VFW Post 3562 and its bartender filed a motion to suppress evidence which was denied by the trial court. Thereafter, a trial without jury was held. The trial court found the bartender not guilty, but found that VFW Post 3562 with purpose to violate R.C. 2915.02(A)(1), (2), (3), or (4) did acquire, possess, control, or operate a gambling device. The trial court sentenced VFW Post 3562 to a $1,000 fine, but suspended $500 of that fine. The court of appeals affirmed the trial court's decision.

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

Max Rothal, Acting Director of Law, Gary M. Rosen and Kathi L. McNabb, Akron, for appellee.

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

MOYER, Chief Justice.

I

In this case we are first presented with the issue of whether the warrantless administrative search of appellant's club by Department of Liquor Control agents complied with the protections against illegal searches and seizures of SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION² and the Fourth ³ and Fourteenth ⁴ Amendments to the United States Constitution. We hold that it did not and reverse the judgment of the court of appeals.

Appellant VFW Post 3562 challenges the warrantless administrative search conducted in this case as being unconstitutional because the administrative regulatory scheme under which the search was made is not carefully limited as to time, place, and scope. Such a frailty violates Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution. VFW Post 3562 also contends that evidence obtained as a result of the warrantless administrative search may not be used in a criminal prosecution under a statute of general criminality not related to the provisions of R.C. Chapters 4301 and 4303.

The Department of Liquor Control

has broad regulatory authority over the manufacture, distribution and sale of intoxicating liquor. R.C. 4301.10 and Ohio Adm.Code Chapter 4301. In particular, the department, under R.C. 4301.10(A)(4), has the power to "[e]nforce Chapters 4301. and 4303. of the Revised Code, and the rules and orders of the board, the director, and the penal laws relating to the manufacture, importation, transportation, distribution, and sale of beer and intoxicating liquors; and the attorney general, any prosecuting attorney, and any prosecuting officer of a municipal corporation or a municipal court, shall at the request of the department prosecute any person charged with the violation of such chapters or of any section of the Revised Code relating to the manufacture, importation, transportation, distribution, and sale of beer and intoxicating liquor." The department also has the authority under R.C. 4301.10(A)(6) to "[i]nspect, upon demand, the books, accounts, records, memorandums, and place of business of any person subject to Chapters 4301. and 4303. of the Revised Code or the laws relating to the manufacture, importation, transportation, distribution, and sale of beer and intoxicating liquors, and the sale of alcohol * * *." R.C. 4301.10(A)(7) provides, in part, that the department shall "[d]elegate to any of its agents or employees any power of investigation which the department possesses and the powers of police officers with respect to the enforcement of any of the penal laws relating to beer and to intoxicating liquor * * *." A warrantless administrative search of a liquor establishment is constitutionally permissible given the long-standing governmental interest in the regulation of the industry. Colonnade Catering Corp. v. United States (1970), 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60. However, the owner of a liquor establishment does not surrender all his Fourth Amendment protections because of such ownership.

In New York v. Burger (1987), 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601, the United States Supreme Court recently held that a warrantless search of an automobile junkyard, conducted pursuant to the New York administrative inspection statute, did not violate the Fourth Amendment. The court first found that the state had a substantial interest in regulating the automobile-junkyard industry as a means of combating automobile theft. Second, the regulatory scheme created by the statute served this interest. Last, the court considered the time, place, and scope elements of the statute to determine whether the warrantless search provisions of the statute were reasonable. The court observed:

" * * * § 415-a5 provides a 'constitutionally adequate substitute for a warrant.' Donovan v. Dewey, [1981], 452 U.S. , at 603, 69 L.Ed.2d 262, 101 S.Ct. 2534 [2540]. The statute informs the operator of a vehicle dismantling business that inspections will be made on a regular basis. Id., at 605, 69 L.Ed.2d 262, 101 S.Ct. 2534 [2541]. Thus, the vehicle dismantler knows that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to statute. See Marshall v. Barlow's, Inc. [1978], 436 U.S. , at 332, 56 L.Ed.2d 305, 98 S.Ct. 1816 [1830] (dissenting opinion). Section 415-a5 also sets forth the scope of the inspection and, accordingly, places the operator on notice as to how to comply with the statute. In addition, it notifies the operator as to who is authorized to conduct an inspection.

"Finally, the 'time, place, and scope' of the inspection is limited, United States v. Biswell [1972], 406 U.S. , at 315, 32 L.Ed.2d 87, 92 S.Ct. 1593 [1596], to place appropriate restraints upon the discretion of the inspecting officers. See Donovan v. Dewey, 452 U.S., at 605, 69 L.Ed.2d 262, 101 S.Ct. 2534 [2541]. The officers are allowed to conduct an inspection only 'during [the] regular and usual business hours.' § 415-a5. The inspections can be made only of vehicle-dismantling and related industries. And the permissible scope of these searches is narrowly defined: the inspectors may examine the records, as well as 'any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises.' Ibid." Id. at ----, 107 S.Ct. at 2648, 96 L.Ed.2d at 619-620. (Footnotes omitted.)

In Bionic Auto Parts & Sales, Inc. v. Fahner (C.A.7, 1983), 721 F.2d 1072, 1078-1079, the United States Court of Appeals, in reviewing an Illinois statute and an administrative rule promulgated thereunder authorizing warrantless searches of automobile parts dealers, scrap processors, and parts rebuilders, stated the following:

"The determinative factors to be considered are whether the industry affected is so closely regulated as to provide notice of the prospect of governmental intrusion and whether the statutory scheme enacted 'provides an adequate substitute for a warrant in terms of the certainty and regularity of its application.' * * * To satisfy the 'certainty and regularity' requirement, the inspection program must define clearly what is to be searched, who can be searched, and the frequency of such searches * * *. * * * [T]he degree and extent of past regulation comprise but a part, albeit a substantial part, of a determination of 'a reasonable expectation of privacy' under the Fourth Amendment. Otherwise, no protections at all would be appropriate in closely regulated industries. The Fourth Amendment requires that a determination of the reasonableness of the intrusion be made. Even in closely regulated industries, the inspection provisions still must be tailored to the state's proper objectives, and they must minimize the dangers inherent in the unbridled exercise of administrative discretion."

Unlike the statute in Bionic Auto Parts & Sales, Inc. v. Fahner, supra, R.C. 4301.10 fails to provide the liquor license holder with adequate safeguards for an inspection scheme. The court of appeals in Bionic Auto Parts & Sales, Inc. reviewed these safeguards:

"The revised Illinois Vehicle Code does limit the discretion of Illinois state officials in several important respects. First,...