Colon v. Ohio Liquor Control Comm.Colon v. Ohio Liquor Control Comm.
Rendered on October 20, 2009
Lumpe & Raber, J. Richard Lumpe, and David A. Raber, for appellant.
Richard Cordray, Attorney General, and Scott A. Longo, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} Heriberto Colon, appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court affirmed the order of the Ohio Liquor Control Commission (“commission“), appellee. The commission‘s order affirmed the order of the Superintendent of the Division of Liquor Control (“division“) that denied the 2007-2008 renewal application of appellant‘s D-5 liquor permit.
{¶3} On May 7, 2008, appellant appealed the division‘s rejection order to the commission, and the commission granted a stay on May 15, 2008. An evidentiary hearing was held July 9, 2008. On July 11, 2008, the commission issued an order sustaining the city‘s objection and affirming the division‘s rejection order. Appellant filed an appeal to the common pleas court.
{¶4} On July 24, 2008, the trial court stayed the commission‘s order. On September 5, 2008, the trial court granted the city‘s motion to intervene. On March 3, 2009, the trial court issued a judgment in which it affirmed the order of the commission. Appellant appeals the judgment of the trial court, asserting the following assignments of error:
[I.] THE COMMON PLEAS COURT ABUSED ITS DISCRETION IN AFFIRMING THE ORDER OF THE COMMISSION, WHEN IT FAILED TO CONFINE ITS REVIEW TO THE SUBSTANTIVE EVIDENCE AS PRESENTED TO THE COMMISSION AT THE JULY 9, 2008 EVIDENTIARY HEARING[.]
[II.] THE EVIDENCE SUBMITTED AT THE JULY 9, 2008, EVIDENTIARY HEARING BEFORE THE COMMISSION IS INSUFFICIENT TO MEET THE STATE‘S BURDEN AND THEREFORE THE STATE HAS FAILED TO MEET ITS BURDEN OF PROOF AS REQUIRED TO SUPPORT THE REJECTION OF A LIQUOR PERMIT RENEWAL UNDER RC 4303.292(A)(2)(c) OR 4303.292(A)(1)(b).
{¶5} We will address appellant‘s assignments of error together. Appellant argues in his first assignment of error that the common pleas court erred when it affirmed the commission‘s order by relying upon the contents of the April 14, 2008 rejection order
{¶6} With regard to appellant‘s first assignment of error, appellant argues that he attached the April 14, 2008 rejection order to his notice of appeal to comply with
{¶7} However, we need not address appellant‘s first assignment of error because we find that, even without the evidence from the division level hearing, the trial
{¶8} 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.’ ” Lies v. Ohio Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207, quoting Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280. Even though the common pleas court must give due deference to the administrative agency‘s resolution of evidentiary conflicts, the findings of the agency are not conclusive. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 111.
{¶9} An appellate court‘s standard of review in an administrative appeal is more limited than that of a common pleas court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 1993-Ohio-122. It is not the function of the appellate court to examine the
{¶10}
(A) The division of liquor control may refuse to issue, transfer the ownership of, or renew, and shall refuse to transfer the location of, any retail permit issued under this chapter if it finds * * *:
* * *
(2) That the place for which the permit is sought:
* * *
(c) Is so located with respect to the neighborhood that substantial interference with public decency, sobriety, peace, or good order would result from the issuance, renewal, transfer of location, or transfer of ownership of the permit and operation under it by the applicant[.]
{¶11} The testimony related to this ground for denial was as follows. Joseph Santiago, a Cleveland city councilman, testified he had been a councilman for two and one-half years. He stated that when he became a councilman, the residents were fearful for their lives because of the permit premises. There were a lot of fights at that location,
{¶12} Matthew Stepic, a Cleveland police detective, testified that the permit premises became a source of numerous and constant complaints on the weekends, including large crowds, fights, gunshots, and robberies. From February 2006 to July 2008, there were 54 calls for service to the address of the permit premises, primarily for large crowds fighting in the street. There were several 911 calls made from the pay phone next to the bar, some for loud music in the bar, public disturbances, fights, cars revving engines and peeling tires, shots fired by the back door of the premises, and broken car windows. The Cleveland police department assigned six to 12 police officers to address the problems on the weekends with the permit premises and another nearby bar, Latin Touch. There were 181 citations issued at or around the permit premises over eight separate weekend days from Friday, September 7, 2007, until Friday, November 30, 2007. These included three misdemeanor arrests, 40 moving violations, 108 parking tickets, five loud music citations, two drug abuse citations, seven open container citations, 19 misdemeanor citations, and five towed vehicles due to license suspension. Detective Stepic said the permit premises were a strain on police resources. He could not say how many of the citations were “directly” related to the permit premises. He had no knowledge whether the infractions were committed with knowledge of the permit holder.
{¶14} Rowena Ventura, who lives 30 to 40 feet directly across from the back door of the permit premises, testified she has witnessed people purchasing drugs from security guards at the permit premises, females being beaten up by males, huge fights with 30 to 40 people being beaten with bottles, and people jumping on cars. She makes her grandchildren sleep in a safe room away from the bar. She is afraid for her life because of the permit premises. After exhausting her options with talking to people associated with the permit premises and speaking to police, she called the Cleveland Plain Dealer and started videotaping the premises. A reporter and photographer came to her house in May
{¶15} Stephanie Gale, who had lived seven houses from the permit premises for about four months, testified that two males going to the bar were trying to find a parking spot, and turned their car around in her yard. When Gale told them that they could not turn around there, they drove their car into her legs. Her husband came to her aid, and the two males got out of the car and attacked her. Men from another car then got out and attacked her husband. In another incident, in the middle of the afternoon, she was with her infant son when several men standing outside the back door of the bar yelled sexual comments at her and later offered to sell her drugs.
{¶16} Ruben Tores, who was in charge of security at the bar for three years, testified that the bar was in a “rough” neighborhood. He stated there are several security guards that watch the premises, some inside and some outside. He had never witnessed anyone being robbed on the premises, and he has heard gunshots from other parts of the
{¶17} Dora Talavera, a patron at the permit premises, testified she had never seen anyone fight at the bar besides a husband and wife, and she had never seen drugs. However, she said she usually leaves by 10:00 p.m.
{¶18} Darling Bermudez lives directly across the street from the bar and is a patron. She said a lot of the activities, about which there had been testimony, happen during times the bar is closed. She said she has never seen a fight at the bar in the three years she has been going there. She said there are a lot of gunshots in the neighborhood, even when the bar is not open. She once observed a huge “riot” in the street involving 30 drug dealers and “crack kids” at four in the morning. She once witnessed a small argument at the bar. She also observed two men get kicked out of another nearby bar, Latin Touch, and they ended up in front of the permit premises fighting and shooting at each other. She said fights at the permit premises do not occur on a regular basis. She said Ventura, who is her next door neighbor, has parked in her parking spot and has also threatened her when asked to move her car.
{¶19} Hilda Perez, a patron of the permit premises, testified the bar is a good place to go. She feels comfortable and safe there, and she has never seen anything unusual transpire there. Perez said that people on the porch of Ventura‘s house once called one of her African-American friends the “N” word as they were leaving the permit premises.
{¶20} Appellant‘s argument that the commission erred when it determined that the permit premises caused a substantial interference with public decency, sobriety, peace or
{¶21} With respect to appellant‘s first contention, appellant relies upon a portion of 2216 SA, in which we stated:
The only clear evidence about recent activities was from Eggleston, [a state witness and neighbor of the permit premises] who lives across the street from the premises and testified that he had been solicited for oral sex as he drove past the place “this summer.” However, assuming that the woman who solicited him was an employee, which is difficult to assume given the other testimony about the rampant criminal activity that occurs in the area and on the same street as the permit premises, there is no evidence that such activity was conducted with the knowledge of the permit holder. Further, Eggelston failed to link the area‘s problems with regard to public sex, urination, and fights specifically with the permit holder. Although some of the offenders in this regard might have patronized the permit holder‘s premises, there is, again, no evidence that the permit holder condoned or initiated the activities or whether any employees of the permit holder were involved in the activities. Additionally, it is clear that there was no evidence the permit holder or any of the holder‘s employees were or are aware of these activities occurring outside of its premises and in the general public areas not under its control.
{¶23} Furthermore, unlike 2216 SA, in the present case, there was abundant testimony that many of the problems were occurring directly on the permit premises or were originating from the permit premises and spilling out into the surrounding area. Ventura testified she saw people buying drugs from security guards at the permit premises and fights on the permit premises. Santiago testified that, from February 2008 to July 2008, he personally viewed fights at the premises after parking his car and watching the premises. Ventura also said a reporter and photographer from the Cleveland Plain Dealer witnessed drugs at the premises in May 2007, and, in June 2007, a fight broke out
{¶24} With regard to appellant‘s second argument, appellant points out that Santiago, Detective Stepic, and Braynetz were unable to testify as to what activities occurred inside the premises, as they had never been in the premises or had not been inside the premises for many years. Appellant cites the following passage from our decision in 2216 SA to support the contention that, because these witnesses had not been in the permit premises, the commission‘s determination that the permit premises caused a substantial interference with public decency, sobriety, peace or good order was in error:
Eggelston could not testify as to what activities occurred inside the premises, as he had never been inside the premises. Given [the] testimony that the whole neighborhood,
avenue, and area experiences substantial criminal activity, including prostitution and drug activity, we are reluctant to attach appellant‘s management of the permit premises to the general ills of the surrounding neighborhood. Much of the evidence, in this regard, was general and speculative, which is insufficient to establish substantial interference with public decency, sobriety, peace, or good order.
{¶25} However, we first point out that, with respect to this argument, appellant excessively focuses on what happened inside the permit premises, which is not necessarily relevant to the question of whether the permit premises are so located with respect to the neighborhood that substantial interference with public decency, sobriety, peace, or good order would result from the renewal of the permit. Indeed, in the present case, the whole focus of the commission‘s findings was upon the activities occurring outside of the permit premises and the effect on the surrounding neighborhood, while the testimony in 2216 SA focused mainly upon illegal activities occurring inside the adult entertainment premises. It was because the main issue in 2216 SA regarded activities inside the permit premises that it was relevant that several of the state‘s witnesses had not been inside the permit premises or had not been inside for a long time.
{¶26} Notwithstanding, the present case is also different from the circumstances in 2216 SA because the evidence here regarding the illegal and/or disruptive activities occurring outside the permit premises, as testified to by the state‘s witnesses, was not “general and speculative,” and the activities in the current case could be directly attached to the permit premises. Although there was evidence in the present case that the permit premises was located in a “rough” neighborhood that sometimes experienced gunshots, drug activity, and street violence, there was substantial testimony, as already outlined above, that many problems in the area occurred directly on the property of the permit
{¶27} For these reasons, after reviewing the record, we find the trial court did not abuse its discretion. The trial court properly found the commission‘s determination was supported by reliable, probative, and substantial evidence and is in accordance with the law. There was reliable, probative, and substantial evidence to demonstrate the permit premises was so located with respect to the neighborhood that substantial interference with public decency, sobriety, peace, or good order would result from the renewal of the permit and operation under it by the permit holder pursuant to
{¶28} Accordingly, appellant‘s two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BRYANT and McGRATH, JJ., concur.
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