Tres Amigos, Inc., Appellant-Appellant, v. Ohio Liquor Control Commission, Appellee-Appellee.
No. 14AP-309
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 13, 2014
2014-Ohio-5047
(C.P.C. No. 13CV-12330) (REGULAR CALENDAR)
Rendered on November 13, 2014
Coolidge Wall Co., L.P.A., and Daniel J. Gentry, for appellant.
Michael DeWine, Attorney General, and Charles E. Febus, for appellee.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Appellant, Tres Amigos, Inc. (“appellant“), appeals the March 18, 2014 judgment entry of the Franklin County Court of Common Pleas that affirmed the October 18, 2013 order issued by appellee, Ohio Liquor Control Commission (“the Commission“). For the reasons that follow, we affirm the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} On July 12, 2010, appellant applied to the Department of Commerce, Division of Liquor Control (the “Division“), for a new Class D-1-2-3-3A-6 liquor permit at a property located at 29 E. Franklin Street in Centerville, Ohio (“the property“), which was owned by E&E Properties, Inc. (“E&E“). Since 1991 and at all times relevant to these proceedings, Mike & Lou, Inc. (“Mike & Lou“), operated a business and possessed a liquor permit at the property.
{¶ 3} On March 2 and October 24, 2011, the Division requested by certified mail that appellant submit a date for a final inspection of the property. On July 31, 2012, the Division mailed appellant a decision denying appellant‘s application for a permit because appellant: (1) was not the owner or operator of a restaurant at the property; (2) was unable to operate a restaurant at the property because it does not have tenancy at the property; (3) failed to cooperate with the Division in its investigation by failing to schedule, complete, and pass a final inspection; and (4) was preventing the next applicant in line from having a permit considered.
{¶ 4} Appellant appealed the decision of the Division to the Commission. The Commission held a hearing on October 11, 2013. On October 18, 2013, the Commission mailed appellant its order affirming the July 31, 2012 decision of the Division. On November 8, 2013, appellant, pursuant to
II. Assignment of Error
{¶ 5} Appellant appeals, assigning a single error for our review:
The trial court erred by affirming the decision of the Ohio Department of Liquor Control denying liquor permits to Tres Amigos because Ohio law does not require Tres Amigos to have exclusive, present possession of the Location in order to qualify for a permit.
{¶ 6} Pursuant to
{¶ 7} “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). Although the reviewing court must “give due deference to the administrative agency‘s resolution of evidentiary conflicts, the findings of the agency are not conclusive.” Colon at ¶ 8, citing Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111 (1980).
{¶ 8} On appeal to an appellate court, the standard of review is even more limited. “In reviewing the court of common pleas’ determination that the Commission‘s order was supported by reliable, probative, and substantial evidence, this court‘s role is limited to determining whether the court of common pleas abused its discretion.” Duncan v. Liquor Control Comm., 10th Dist. No. 08AP-242, 2008-Ohio-4358, ¶ 10, citing Roy v. Ohio State Med. Bd., 80 Ohio App.3d 675, 680 (10th Dist.1992). Abuse of discretion connotes more than an error of law or judgment; rather, it implies that the trial court‘s decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 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. Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.).
{¶ 9} Here, the Division in its July 31, 2012 decision found that appellant was not the owner or operator of a restaurant at the property and, further, was unable to conduct a restaurant business because it did not have tenancy at the address. In support of these findings, the Division stated:
On June 3, 1991, the former Department of Liquor Control issued a D-2-2x-3-3A-6 liquor permit to Mike & Lou, Inc., 29 East Franklin St., Centerville, Ohio. This permit remains in full force and effect.
Investigations conducted by the Division revealed that Mike & Lou, Inc. is in control of the liquor permit business operating at 29 East Franklin St., Centerville, Ohio under the liquor permit described above.
{¶ 10} Appellant does not contest the Division‘s finding that Mike & Lou were in control of a liquor permit business operating at the property. Instead, appellant argues that, although it was not in control of the business operating on the property, it possessed sole tenancy rights to the property pursuant to a lease agreement with E&E after E&E terminated its prior lease of the property to Mike & Lou. However, due to a dispute between E&E and Mike & Lou over the termination of their leasing agreement, Mike & Lou refused to vacate the property pending adjudication of the dispute. As a result, appellant was unable to establish its business and permit the Division to make an inspection.
{¶ 11} Appellant contends that it does not need exclusive, present possession of the property to qualify for a liquor permit under
{¶ 12} Here, however, appellant sought a new permit for a location exclusively occupied by another business that possessed a license and was continuing to operate from the location. The record fails to reflect that appellant has at any point in time occupied the
{¶ 13} Pursuant to
{¶ 14} Although appellant argued throughout the proceeding that it was the holder of tenancy rights for the location in question, the Division found that appellant was not the owner or operator of a restaurant at the property. Appellant at no point during the underlying proceeding demonstrated that it owned or operated a business at the location for which it sought the permit. Appellant asserted at the hearing before the Commission that it reached an agreement with Mike & Lou to transfer all of Mike & Lou‘s assets at the property, including the existing liquor permit possessed by Mike & Lou, but noted that the agreement was not finalized. However, the existence of such an agreement to transfer the existing liquor permit undercuts appellant‘s rationale for continuing to seek a new permit
{¶ 15} The trial court also considered evidence that appellant failed to cooperate with the investigation.
{¶ 16} Because appellant does not contest that it never owned or operated a business at the property, and because it failed to schedule, complete, and pass a final inspection, we conclude that the trial court did not abuse its discretion in finding that reliable, substantial, and probative evidence supported the Commission‘s order and that such order was in accordance with law because appellant failed to qualify under the statutory provisions relating to the issuance of the permits sought. Accordingly, we overrule appellant‘s single assignment of error.
III. Disposition
{¶ 17} Having overruled appellant‘s single assignment of error, we affirm the judgment of the trial court.
Judgment affirmed.
TYACK and CONNOR, JJ., concur.