673 N.E.2d 166 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *764
Appellant, VFW Post 9622 ("the VFW Post"), appeals an order of the Warren County Court of Common Pleas affirming an order of appellee, the Ohio Liquor Control Commission, finding the VFW Post guilty of violating Ohio Adm. Code
The VFW Post holds a class D-4 liquor permit. On September 17, 1994, two agents of appellee, James J. Nerswick and SuAnn E. Appleman, went to the VFW Post for the purpose of investigating a district office complaint alleging gambling. Nerswick entered the VFW Post through the unlocked entry door. At no time was Nerswick asked if he was a member,1 nor was he required to produce any type of identification. Once inside, Nerswick observed four electronic video machines lit up and fully operational. Nerswick also observed a patron playing a Castle electronic video machine. Nerswick then placed $1 into a Cherry Master electronic video machine and received ten credits. *765
Nerswick then moved to the bar where he noticed tip tickets in fish bowls. Nerswick subsequently identified himself to a bartender and advised him of the VFW Post's violation of Ohio Adm. Code
On April 5, 1995, the case was heard by appellee. The VFW Post entered a "denial" to the violation, but stipulated into the record as evidence the agents' investigation report as to the facts. By order dated April 21, 1995, appellee found that the VFW Post had violated Ohio Adm. Code
The VFW Post filed an R.C.
The VFW Post's first assignment of error reads as follows:
"The Warren County Common Pleas Court erred when it failed to find that the entry and search of the D-4 permit premises by the Department of Liquor Control investigators was unlawful and violated the United States Constitution and the Ohio Constitution."
The
In State v. VFW Post 3562 (1988),
In Stone, the Supreme Court stated that a warrantless administrative search may be conducted if the search is authorized by both statutes and administrative regulations.Id. at 165,
After reviewing the record, we find that the case at bar clearly falls within the ambit of Stone. Unlike the warrantless search in VFW Post 3562, the search in this case was proper because it resulted in an administrative violation, not a criminal violation. In addition, it is well established that the liquor industry is a pervasively regulated industry. VFW Post3562,
The VFW Post's second assignment of error reads as follows:
"The Warren County Common Pleas Court erred when it failed to find Ohio Administrative Code
The VFW Post first argues that Ohio Adm. Code
In Palazzi v. Estate of Gardner (1987),
The VFW Post contends that Ohio Adm. Code
Second, the VFW Post argues that Ohio Adm. Code
As previously noted, the Supreme Court of Ohio held that R.C.
We agree with the Fifth District Court of Appeals in FOEAerie 2251 v. Liquor Control Comm. (Oct. 30, 1995), Tuscarawas App. No. 95AP030020, unreported, 1995 WL 768025, which stated: *768
"We do not find that the fact that the Commission failed to enact a new administrative search statute in the time period allotted by the General Assembly automatically makes the new regulation [null and void]. The concern of the Ohio Supreme Court when it found the previous administrative code regulation unconstitutional was based upon the fact that the regulation failed to establish time, place and scope limitations on warrantless administrative searches."
We therefore find that Ohio Adm. Code
The VFW Post's third assignment of error reads as follows:
"The Warren County Common Pleas Court erred when it affirmed the Liquor Control Commission['s order] finding reliable, probative and substantial evidence to support a violation of Ohio Administrative Code
The VFW Post argues appellee could not properly find a violation of Ohio Adm. Code
In accordance with R.C.
Ohio Adm. Code
"(B) No person authorized to sell alcoholic beverages shall have, harbor, keep, exhibit, possess or employ or allow to be kept, exhibited or used in, upon or about the premises of the permit holder of any gambling device as defined in division (F) of section
R.C.
"(1) A book, totalizer, or other equipment for recording bets;
"(2) A ticket, token, or other device representing a chance, share, or interest in a scheme of chance, except a charitable bingo game, or evidencing a bet;
"(3) A deck of cards, dice, gaming table, roulette wheel, slot machine, punch board, or other apparatus designed for use in connection with a game of chance;
"(4) Any equipment, device, apparatus, or paraphernalia specially designed for gambling purposes."
Tip tickets, which have been described as "devices which when opened may reveal a symbol indicating that the purchaser has won money," Columbus v. I.O.R.M. Sioux Tribe-Redman Club (1993),
The VFW Post was charged with an administrative violation of Ohio Adm. Code
We further find that reliable, probative and substantial evidence was presented before the trial court to support appellee's order. Ohio Adm. Code
The record shows that agent Nerswick observed four electronic video machines fully functional and operable, as well as tip tickets at the bar. While Nerswick did not observe any sale or purchase of tip tickets, he did observe a patron playing a Castle electronic video machine. We therefore hold that the trial court did not abuse its discretion in affirming appellee's order. The VFW Post's third assignment of error is overruled.
The VFW Post's fourth assignment of error reads as follows:
"The Warren County Common Pleas Court erred when it failed to rule on the assignment of error raised on the appeal below."
Under this assignment of error, the VFW Post essentially argues that appellee abused its discretion when it imposed a forfeiture of $16,000 or a forty-day license suspension, and that the trial court erred in not ruling on this assignment of error on the appeal from appellee's order to the trial court.
It is well established that on an R.C.
R.C.
"(A) The liquor control commission may suspend or revoke any permit issued pursuant to Chapters 4301. and 4303. of the Revised Code for the violation of any of the applicable restrictions of such chapters or of any lawful rule of the commission or for other sufficient cause[.]
"* * *
"(B) When the commission considers the length of a suspension of a permit, it may consider the volume of the business of the permit holder, so that the length of the suspension is in proportion to the seriousness of the offense and the permit holder's business in order that the suspension serve as a penalty and a deterrent."
R.C.
"(1) Except as provided in divisions (B) and (C) of this section, when the liquor control commission determines that the permit of any permit holder is to be suspended under Title XLIII [43] of the Revised Code or any rule of the *771 commission, the commission may issue an order allowing a permit holder to elect to pay a forfeiture for each day of the suspension in accordance with division (A)(2) of this section, rather than to suspend operations under his permit issued for the premises at which the violation occurred.
"(2)(a) If the permit holder has not violated, at the premises for which his permit was issued, any provision of Title XLIII [43] of the Revised Code or rule of the commission during the preceding two years, the amount of the forfeiture for each day for the suspension shall be from one hundred to two hundred dollars.
"(b) If the permit holder has violated, at the premises for which his permit was issued, any provision of Title XLIII [43]of the Revised Code or rule of the commission for which he has been disciplined by the commission not more than one other timeduring the preceding two years, the amount of the forfeiture foreach day of the suspension shall be from two hundred to fourhundred dollars." (Emphasis added.)
In the case at bar, the penalty imposed by appellee was clearly authorized by law. R.C.
The VFW Post's argument that the trial court erred when it did not rule on the Post's assignment of error is without merit. R.C.
Judgment affirmed.
KOEHLER and POWELL, JJ., concur.
"(A) No person shall do any of the following:
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"(2) Establish, promote, or operate or knowingly engage in conduct that facilitates any scheme or game of chance conducted for profit;
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"(5) With purpose to violate division (A)(1), (2), (3), or (4) of this section, acquire, possess, control, or operate any gambling device."