Floyd‘s Legacy, LLC d.b.a. Club De Ja Vu, Appellant-Appellant, v. Ohio Liquor Control Commission, Appellee-Appellee.
No. 19AP-704 (C.P.C. No. 19CV-4020)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 11, 2020
[Cite as Floyd‘s Legacy, L.L.C. v. Ohio Liquor Control Comm., 2020-Ohio-4074.]
SADLER, P.J.
(REGULAR CALENDAR)
Rendered on August 11, 2020
On brief: John A. McNally, III, Co., LPA, and John A. McNally, III, for appellant.
On brief: Dave Yost, Attorney General, and Hallie C. Saferin, for appellee.
APPEAL from the Franklin County Court of Common Pleas
{¶ 1} Appellant-appellant, Floyd‘s Legacy, LLC d.b.a. Club De Ja Vu (hereinafter, “appellant” or “club“), appeals from an order of the Franklin County Court of Common Pleas affirming an order by appellee-appellee, Ohio Liquor Control Commission (“commission“), denying appellant‘s liquor permit renewal. For the reasons that follow, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant operates as a night club located in Youngstown, Ohio. At all relevant times, appellant held a Class D-1, 2, 3, 3-A liquor permit issued by the Ohio Division of Liquor Control (“division“). Darlene Harris has been owner and managing member of appellant since 2015.
{¶ 3} On November 4, 2017, at approximately 2:20 a.m., a shooting occurred within the club and a second shooting outside the permit premises resulting in injuries to four people. Around this time, appellant filed its renewal applications for its Class D-1, 2, 3, 3-A liquor permit. On December 20, 2017, the Youngstown City Council (“city“) presented objections and concerns to the renewal of appellant‘s liquor permit and requested a hearing. (Ex. C: Youngstown City Council Resolution 17-43.) On July 12, 2018, the division held a hearing to determine if appellant‘s renewal applications for 2017-2018 and 2018-2019 should be denied for the reasons stated in
- The applicant, any partner, member, officer, director, or manager thereof has shown a disregard for the laws, regulations, or local ordinances of the State, and will operate the permit business in a manner that demonstrates a disregard for the laws, regulations, or local ordinances of the State.
R.C. § 4303.292(A)(1)(b) . - The applicant has failed to provide a penalty of ten percent of the permit fee, despite having filed the Class D-1-2-3-3A liquor permit renewal application less than fifteen days prior to the expiration of the permit.
R.C. §§ 4303.13 ,4303.14 ,4303.15 ,4303.16 ,4303.24 , and4303.271(C) .1
* * * - The Division also denies and rejects the 2017-2018 and 2018-2019 renewal applications for good cause pursuant to its general authority to grant and refuse permits. The Division has considered environmental factors affecting the maintenance of public decency, sobriety, and good order, including the number and location of permit premises in the immediate area as authorized or required by law.
R.C. §§ 4303.271(A) ,4301.10(A)(2) , andO.A.C. § 4301:1-1-12(B) .
(Sept. 25, 2018 Order.)
{¶ 4} At appellant‘s request, a hearing before the commission was held on April 11, 2019. Appellant received notice of the hearing as evidenced by the March 21, 2019 return
{¶ 5} Lambert testified the Youngstown Police Department had been called out to the club on multiple occasions from May 29, 2016 to November 4, 2017 for incidents such as theft, assault, and other serious issues. Lambert testified the club has a reputation as a place “where people drink, carry guns, get into gunfights and people get shot.” (Tr. at 39.) Lambert did concede that the incidents before the November 4 shooting did not constitute liquor permit violations.
{¶ 6} Next, Harris testified she has been the owner and managing member of appellant since 2015. Harris stated that during normal business operation, the club generally opens at 8:00 p.m. and closes at 2:30 a.m. The physical layout of the bar includes 16 video cameras that cover the inside and outside of the club with monitors located in the manager‘s office. The front entrance has 2 sets of steel doors: 1 front exterior door and 1 front interior door separated by approximately 4 feet. Before the November 4 shooting, Harris testified the club had no prior liquor permit violations.
{¶ 7} Finally, Jackson testified she was the manager of the club during the November 4 shooting. According to Jackson, the club had three security guards on duty to check patrons for identification and weapons. Jackson characterized the scene after the shooting as “chaos.” (Tr. at 62.) Jackson stated she was not aware of any club employee calling the police to report the shooting. Jackson did concede that before police arrived, one employee started cleaning up the area where the shooting occurred. Jackson further testified cleaning was just part of the employee‘s normal duties. “[Y]ou grab the dust mop,
{¶ 8} Following the hearing, on May 2, 2019, the commission affirmed the division‘s denial of appellant‘s 2017-2018 and 2018-2019 renewal applications. The commission provided appellant notice of its right to appeal, pursuant to
{¶ 9} On May 16, 2019, appellant appealed to the Franklin County Court of Common Pleas asserting two assignments of error. Appellant alleged a number of due process violations and that the commission‘s ruling was an unlawful penalty based solely on the events of November 4, 2017. On September 11, 2019, the trial court overruled appellant‘s objections and affirmed the administrative ruling. The trial court found the commission provided appellant adequate notice under
{¶ 10} Regarding the second assignment of error, the trial court determined the commission‘s ruling was based on reliable, probative, and substantial evidence. “[T]he Appellant failed to put forth a valid argument that the evidence relied upon by the Commission was internally inconsistent, or was impeached by evidence of a prior inconsistent statement. Here the Appellant relied upon its own evidence concerning its explanation of the events of November 4, 2017.” (Sept. 11, 2019 Decision & Entry at 7.) The trial court also rejected appellant‘s contention that there was no evidence that supported the finding the permit holder acted with disregard of the laws, regulations, or local ordinances citing Lambert‘s testimony at the hearing. Finally, the trial court found that while appellant claimed the penalty was too severe given its record of good conduct, the trial court held it was not permitted under Ohio law to review the penalty if the punishment was within the commission‘s lawful authority.
{¶ 11} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 12} Appellant assigns the following as trial court error:
- The due process rights of Floyd‘s Legacy, LLC, Darlene Harris, Managing Member and Darlene Harris, Individually, have been violated.
- The Appellee‘s failure to renew the liquor permit applications for the years 2017-18 and 2018-19 is an unlawful penalty solely based on the events of November 4, 2017.
III. STANDARD OF REVIEW
{¶ 13} Pursuant to
- “Reliable” evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true.
- “Probative” evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue.
- “Substantial” evidence is evidence with some weight; it must have importance and value.
Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992).
{¶ 14} The common pleas court must give due deference to the administrative agency‘s resolution of evidentiary conflicts, but “the findings of the agency are by no means conclusive.” Conrad at 111. The trial 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., 2 Ohio App.3d 204, 207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280 (1955). The common pleas court conducts a de novo review of questions of law, exercising its independent judgment in determining whether the administrative order is ” ‘in accordance with law.’ ” Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471 (1993), quoting
{¶ 15} An appellate court‘s review of an administrative decision is more limited than that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). The appellate court is to determine only whether the common pleas court abused its discretion. Id. Absent an abuse of discretion, a court of appeals may not substitute its judgment for that of an administrative agency or the common pleas court. Id. An appellate court, however, has plenary review of purely legal questions. Big Bob‘s, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.).
IV. LEGAL ANALYSIS
A. Appellant‘s First Assignment of Error
{¶ 16} In its first assignment of error, appellant argues its due process rights were violated on four separate occasions.2 For the reasons that follow, we disagree.
{¶ 17} The
{¶ 18} Pursuant to
{¶ 19}
{¶ 20} We have found that notice consistent with
1. Notice to Permit Holder
{¶ 21} Appellant argues that its due process rights were violated when notice was not provided to the permit holder of “any ongoing liquor control violations and notice of the conclusion of such an investigation.” (Appellant‘s Amended Brief at 3.) After a review of the record, we conclude appellant has been consistently appraised of the status of the investigation since its inception. The Youngstown Police Department narrative notes on November 13, 2017, “[o]wners of the bar Darlene harris [sic] * * * came into the detective division and I explained the situation and their employees[‘] activities. They stated they pay the security cash and will attempt to get their information [and] they stated they were
2. Notice to Undersigned Counsel
{¶ 22} Next, appellant argues that its due process rights were violated when notice was not provided to the undersigned counsel. We disagree.
3. Report
{¶ 23} Appellant next argues it was never provided a copy of the hearing officer‘s report and recommendation after the July 12, 2018 hearing between the city and appellant.
{¶ 24} We find the commission‘s order was consistent with
4. Pictures
{¶ 25} Finally, appellant argues that its due process rights were violated when the city “never furnished pictures of the permit establishment and * * * failed to make all these photographs as part of the Record at the hearing before the Ohio Liquor Control Commission.” (Appellant‘s Amended Brief at 4.) This argument is without merit.
{¶ 26} The city was not required to offer evidence at the April 11, 2019 hearing and was only a party pursuant to
{¶ 27} As such, we find no violation of appellant‘s due process rights occurred and overrule appellant‘s first assignment of error.
B. Appellant‘s Second Assignment of Error
{¶ 28} In its second assignment of error, appellant argues the commission‘s failure to renew the liquor permit for 2017-2018 and 2018-2019 was an unlawful penalty based solely on the events of November 4, 2017. While appellant contests the lawfulness of the penalty imposed by the commission in the body of its assignment of error, in its conclusion appellant asserts the trial court erred by finding the commission‘s ruling was based on reliable, probative, and substantial evidence. For clarity of analysis, we will address both arguments together.
{¶ 29} Questions of law on appeal are reviewed de novo. Altercare of Canal Winchester Post-Acute Rehab. Ctr., Inc. v. Turner, 10th Dist. No. 18AP-466, 2019-Ohio-1011, ¶ 15, citing PHH Mtge. Corp. v. Ramsey, 10th Dist. No. 13AP-925, 2014-Ohio-3519, ¶ 14. Pursuant to
{¶ 30} In the instant case, while Lambert testified to several other serious incidents at the club, the November 4 shooting is the only one that constituted a permit violation. Because the commission is authorized to deny appellant‘s renewal applications based on a single violation, as a matter of law, the November 4 violation is enough to revoke appellant‘s permit if the ruling is supported by reliable, probative, and substantial evidence. Accordingly, appellant‘s argument that the trial court erred as a matter of law in revoking the permit solely on November 4, 2017 is without merit.
{¶ 31} Appellant next argues the trial court erred in finding there was reliable, probative, and substantial evidence for the commission to deny appellant‘s renewal applications. When the commission reviews a renewal application of an existing permit holder, “the division shall renew the permit unless good cause for rejection is shown.” (Emphasis omitted.) SM & AM, Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 00AP-1298 (May 22, 2001), citing
{¶ 32} After a review of the record, we find the trial court did not abuse its discretion in affirming the order of the commission. On November 4, 2017, a shooting occurred on the dance floor of the club and a second shooting occurred minutes later outside the permit premises resulting in injuries to four people. Testimony at the hearing revealed neither the manager nor the employees called law enforcement to alert them to the shootings. Once law enforcement did arrive, they were denied entry into the club for 15 minutes. While the police were precluded from entering the club, an employee compromised the crime scene by mopping up blood on the dance floor presumably from one of the victims. Testimony that the employee was only conducting his normal closing procedures contradicts appellant‘s previous argument that law enforcement was not called due to the chaotic scene after the shooting. Accordingly, the trial court did not abuse its discretion concluding that there was reliable, probative, and substantial evidence for the commission to deny the renewal applications of appellant.
{¶ 33} Finally, appellant argues the penalty of revoking the liquor permit was too severe. As the trial court correctly concluded, it is well-settled law that if an agency board‘s order is supported by reliable, probative, and substantial evidence, the reviewing court may not modify the sanction authorized by the statute. Henry‘s Cafe, Inc. v. Bd. of Liquor Control, 170 Ohio St. 233 (1959). “[W]e have consistently held that we lack authority to modify a penalty lawfully imposed by the commission, even where it is argued that the penalty is unduly harsh.” Deanru, LLC v. Ohio Liquor Control Comm., 10th Dist. No. 17AP-777, 2018-Ohio-2854, ¶ 12, citing Abdel Latif, Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 06AP-1078, 2007-Ohio-2943, ¶ 14; Goldfinger Ents., Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 01AP-1172, 2002-Ohio-2770, ¶¶ 13-17. See also, e.g., Lindner v. Ohio Liquor Control Comm., 10th Dist. No. 00AP-1430 (May 31, 2001) (“As a practical matter, courts have no power to review penalties meted out by the commission. Thus, we have little
{¶ 34} Accordingly, appellant‘s second assignment of error is overruled.
V. CONCLUSION
{¶ 35} For the forgoing reasons, we overrule appellant‘s first and second assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRUNNER and NELSON, JJ., concur.