Tauring Corp. v. Ohio Liquor Control Comm'n
| Decision Date | 21 May 2015 |
| Docket Number | No. 14AP-622,14AP-622 |
| Parties | Tauring Corp., Appellant-Appellant, v. Ohio Liquor Control Commission, Appellee-Appellee. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
Lumpe & Raber, J. Richard Lumpe, and Steven J. Benyo, for appellant.
Michael DeWine, Attorney General, and Vivian P. Tate, for appellee.
APPEAL from the Franklin County Court of Common Pleas
{¶ 1} Appellant, Tauring Corp., appeals the July 14, 2014 judgment of the Franklin County Court of Common Pleas affirming the January 23, 2014 order issued by appellee, Ohio Liquor Control Commission ("commission"). For the reasons that follow, we affirm the judgment of the trial court.
{¶ 2} On June 29, 2012, Robert Hastings and Kevin Arnold were patrons of Johnny T's, a bar operated by appellant. Hastings was 20 years old at the time. According to the testimony of Brittany Fillous, the sole bartender working at the bar on the night in question, Hastings arrived at the bar between 9:00 and 10:00 p.m. with agroup of friends. When asked "what shape" Hastings was in when he arrived at the bar, Fillous stated that he seemed fine. (Tr. 40.)
{¶ 3} At "around midnight - 1 am," Fillous observed that Hastings and his friends "were all drinking, but no one appeared to be overly-intoxicated." (July 12, 2012 Fillous Statement, 1.) Before the commission, Fillous confirmed this statement referred specifically to Hastings, agreed this statement meant Hastings was "intoxicated but not overly intoxicated," and recalled that she sold pitchers of vodka-based shots to Hastings and his group. (Tr. 32.)
{¶ 4} Around 2:00 a.m., Fillous saw Hastings walk with a friend to the bar's attached patio, which was fenced in and had no other entrances or exits. No alcohol was sold on the patio. When Hastings and his friend returned from the patio approximately 15 to 20 minutes later, Fillous observed that they appeared "more 'intoxicated.' " (Aug. 25, 2012 Fillous Statement, 2.)
{¶ 5} At 2:20 a.m., just prior to the bar's closing, five of Hastings' group remained, including Hastings, Arnold, "Cory," "Colin," and "Rubbish," who Fillous described to the police as "40's, balding." (July 12, 2012 Fillous Statement, 1, 4.) According to Fillous, "[t]he four younger kids were together finishing up their drinks." (July 12, 2012 Fillous Statement, 2.) Hastings asked Fillous for "more" beer, but she "told him no, because it was time to close." (Tr. 32.) Fillous then heard Arnold pressing Hastings to "stand up to [Fillous] and say something * * * about why [she] wouldn't continue serving." (Tr. 33.) Fillous told Arnold to calm down and told them, "I cannot serve you guys anymore." (July 12, 2012 Fillous Statement, 2.)
{¶ 6} At approximately 2:30 a.m., Fillous walked around the bar shutting off the lights and then pushed Hastings, Arnold, and a friend out of the bar, locking the door behind them. Fillous estimated that between his arrival in the 9:00 to 10:00 p.m. range and his departure at 2:30 a.m., Hastings consumed approximately three drinks.
{¶ 7} At approximately 2:48 a.m., Hastings was critically injured on a road approximately 400 feet from appellant's bar. Franklin County Deputy Sheriff Wes Dobbins determined that Arnold, after leaving the bar, drove his vehicle while intoxicated and hit Hastings, who was walking near the road. Hastings was taken from the scene ofthe incident to a hospital, where a lab test conducted at 4:15 a.m. measured his blood alcohol level at 0.268.
{¶ 8} On January 9, 2014, the commission held a hearing, which included testimony from Deputy Dobbins and Fillous, on several charges brought against appellant. On January 23, 2014, the commission entered three interrelated orders finding appellant in violation of several of the charged offenses. First, in case No. 1084-13, the commission found that appellant committed a single violation by "knowingly and/or willfully allow[ing] in and upon the permit premises Improper Conduct, to wit: DISORDERLY ACTIVITY - in violation of 4301:1-1-52(B)(1), a regulation of the Ohio Liquor Control Commission." (Emphasis sic.) (Commission's Order in case No. 1084-13.) Second, in case No. 1083-13, the commission found that appellant committed two violations by both selling and furnishing "beer and/or intoxicating liquor, in and upon the permit premises, to ROBERT HASTINGS AND/OR KEVIN ARNOLD, who were then and there in an intoxicated condition, in violation of Section 4301.22(B) of the Ohio Revised Code." (Emphasis sic.) (Commission's Order in case No. 1083-13.) Finally, in case No. 1082-13, the commission found that appellant committed a single violation by selling beer to a confidential informant who was under 21 years of age in violation of R.C. 4031.69(A). (Commission's Order in case No. 1082-13.) The commission's orders imposed a combined penalty for all three cases, offering appellant the option of either paying a $7,500 fine in forfeiture or having appellant's liquor permit revoked.
{¶ 9} On January 27, 2014, pursuant to R.C. 119.12, appellant appealed the commission's three orders to the Franklin County Court of Common Pleas. In its brief to the trial court, appellant only challenged the order of the commission that found appellant to be in violation of R.C. 4301.22(B) by selling and furnishing beer or an intoxicating liquor to an intoxicated person, identified as Robert Hastings and/or Kevin Arnold. After being fully briefed by the parties, the trial court, on July 14, 2014, issued a judgment entry affirming the challenged order of the commission. The trial court considered "only the evidence pertaining to the sale of alcohol to Mr. Hastings, and not to Kevin Arnold" because "[t]he notice of violation at issue alleges sale to 'Robert Hastings and/or Kevin Arnold' " and, therefore, "evidence of a violation relating to either individual is sufficient." (Trial court's July 14, 2014 Judgment Entry, 4, fn. 1.)
{¶ 10} Appellant appeals assigning a single error for our review:
THE COMMON PLEAS COURT ABUSED ITS DISCRETION IN AFFIRMING THE ORDERS OF THE LIQUOR CONTROL COMMISSION, IN THAT THE ORDERS ARE NOT SUPPORTED BY RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE AND ARE NOT INACCORDANCE [sic] WITH LAW.
{¶ 11} Pursuant to R.C. 119.12, a common pleas court reviewing an order of an administrative agency must affirm the order if, upon consideration of the entire record, the order is in accordance with law and is supported by reliable, probative, and substantial evidence. Our Place, Inc. v. Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992); Colon v. Liquor Control Comm., 10th Dist. No. 09AP-325, 2009-Ohio-5550, ¶ 8. To be reliable, the evidence must be dependable, i.e., that there is a reasonable probability that the evidence is true. Our Place at 571. To be probative, the evidence must tend to prove the issue in question. Id. To be substantial, the evidence must have some weight, i.e., it must have importance and value. Id.
{¶ 12} "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." ' " Colon at ¶ 8, quoting Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d 204, 207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280 (1955). "In doing so, the court of common pleas must give due deference to the administrative resolution of evidentiary conflicts because the agency, as the fact finder, is in the best position to observe the manner and demeanor of the witnesses." Lorenzo's Drive Thru, Inc. v. Liquor Control Comm., 10th Dist. No. 10AP-460, 2011-Ohio-4249, ¶ 7.
{¶ 13} On appeal to an appellate court, the standard of review is even more limited. "Unlike the court of common pleas, a court of appeals does not determine the weight of the evidence." Gaydeski v. Liquor Control Comm., 155 Ohio App.3d 349, 2003-Ohio-6190, ¶ 12 (10th Dist.). Instead, "[a]n appellate court is limited to determining whether the trial court abused its discretion." Lorenzo's Drive Thru at ¶ 8. " 'The term "abuse ofdiscretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.' " Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). "Absent such an abuse of discretion, an appellate court must affirm the trial court's judgment, even if the appellate court would have arrived at a different conclusion than the trial court." Lorenzo's Drive Thru at ¶ 8. Nonetheless, an appellate court does have plenary review of purely legal questions in an administrative appeal. Colon at ¶ 9, citing Big Bob's, Inc. v. Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.).
{¶ 14} R.C. 4301.22(B) provides that "[n]o permit holder and no agent or employee of a permit holder shall sell or furnish beer or intoxicating liquor to an intoxicated person." "One of the purposes of R.C. 4301.22(B) is to place a duty on a person selling alcoholic beverages to observe and know when a patron is intoxicated." Gressman v. McClain, 40 Ohio St.3d 359, 363 (1988). "[A]ctual knowledge of intoxication is a prerequisite under R.C. 4301.22(B)." Lluberes, Inc. v. Liquor Control Comm., 10th Dist. No. 02AP-1326, 2003-Ohio-5943, ¶ 14, citing Gressman at 363.
{¶ 15} Either direct or circumstantial evidence may be used to prove a violation of R.C. 4301.22. See Lluberes; Enitnel, Inc. v. Liquor Control Comm., 10th Dist. No. 02AP-583, 2002-Ohio-7034, ¶ 26; VFW Post 8586 v. Liquor Control Comm., 83 Ohio St.3d 79, 82 (1998). In addition, "[t]he commission may draw reasonable inferences based on the evidence before it." Valentino v. Liquor Control Comm., 10th Dist. No. 02AP-586, 2...
To continue reading
Request your trial