WCI, Inc. v. Ohio Liquor Control CommissionWCI, Inc. v. Ohio Liquor Control Commission
Lead Opinion
{¶ 1} In this appeal we are asked to determine whether the Ohio Liquor Control Commission has authority under
{¶ 2} Appellee, WCI, Inc. (“WCI”), operates an adult nightclub in West Carrollton, Ohio. On February 6 and February 13, 2003, detectives from the Montgomery County Sheriffs Office were conducting undercover drug buys at the nightclub and made two separate purchases of cocaine from Brooke Orshoski, a dancer who was working at the club. WCI fired Orshoski that same month. Orshoski was subsequently indicted, and she was convicted of felony drug trafficking on October 20, 2003.
{¶ 3} On January 21, 2004, the Ohio Liquor Control Commission issued violation notices to WCI informing it that it was in violation of Ohio liquor laws, in part because of Orshoski’s felony conviction. The commission subsequently issued a notice of hearing regarding Orshoski’s violation. The hearing was held on May 19, 2004. At the hearing, WCI’s manager testified that he terminated Orshoski before she was even indicted for the crime because he suspected that she was using or dealing drugs on the premises. Nevertheless, the commission suspended WCI’s liquor permit for 30 days pursuant to
{¶ 4} WCI appealed that order to the Franklin County Court of Common Pleas and obtained a stay of the suspension. The trial court affirmed the commission’s order with respect to the suspension related to Orshoski’s conviction. On appeal, the Tenth District Court of Appeals reversed the judgment and remanded the matter to the trial court with instructions that it order the commission to dismiss its case. We accepted the commission’s discretionary appeal to determine whether a former employee’s conviction could be used to suspend a permit holder’s liquor license pursuant to
Analysis
{¶ 5} The issue presented is whether the commission was authorized under
{¶ 6} “The liquor control commission may suspend or revoke any permit * * * for the following causes:
{¶ 7} “(1) Conviction of * * * the holder’s agent or employee * * * for a felony.”
{¶ 9} We agree with WCI and the opinion of the court of appeals in this case, which relies on Waterloo, Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 02AP-1288,
{¶ 10} The commission ignores the plain meaning of the statute and would have us hold that the statute means something other than what it says. The commission’s position is predicated primarily on its belief that if the statute did require the convicted felon to be employed by the permit holder at the time of conviction, then permit holders would be able to allow their employees to engage in illegal activities but avoid license suspension by simply terminating the employees before they are convicted.
{¶ 11} This interpretation is wrong for two reasons. First, when a statute is unambiguous, we should not attempt to determine what the legislature intended, but should instead merely apply the law as written. Provident Bank v. Wood (1973),
{¶ 12}
{¶ 13} “[N]o permit holder, his agent, or employee shall knowingly or willfully allow in and upon his licensed premises any persons to:
{¶ 14} “(1) Engage in any disorderly activities;
{¶ 16} “(3) Engage in sexual activity as * * * defined in Chapter 2907 of the Revised Code;
{¶ 17} “(4) Commit public indecency, as * * * defined in Chapter 2907 of the Revised Code;
{¶ 18} “(5) Allow in, upon or about the licensed permit premises, or engage in or facilitate in, the possession, use, manufacture, transfer, or sale of any dangerous drug, controlled substance, narcotic, harmful intoxicant, counterfeit controlled substance, drug, drug paraphernalia, or drug abuse instrument as * * * defined in Chapter 2925 of the Revised Code.
{¶ 19} “(6) Solicit for value, or possess, buy, sell, use, alter or transfer, or allow to be solicited, possessed, bought, sold, used, altered, or transferred for value USDA food stamp coupons, electronic benefit transfer (EBT) cards, WIC program benefit vouchers, or other electronically transmitted benefits, in a manner not specifically authorized by the Food Stamp Act of 1977, or the Child Nutrition Act of 1966. * * *
{¶ 20} “(7) Obtain or exert control over property or services of another, with purpose to deprive the owner thereof, without the consent of the owner or person authorized to consent, or by deception, fraud or threat. Nor shall any permit holder, his agent, or employee, use the licensed permit premises to receive, retain, or dispose of property of another, knowing or having reasonable cause to believe such property has been obtained through the commission of a theft offense.”
{¶ 21} Pursuant to this section, the triggering event for sanctions is not the employee’s conviction but the permit holder’s awareness of the employee’s illegal conduct. Thus, the commission can punish a permit holder for its employee’s behavior, regardless of whether the employee works for the permit holder when he or she is convicted.
{¶ 22} There must be a reason, therefore, why the commission may sanction a permit holder for both a conviction of an employee (
{¶ 23} By their terms, the statute and the Administrative Code section take into account that a permit holder has no control over whether a former employee
{¶ 24} Although it is well settled that a liquor permit does not create a property right subject to traditional due process, State ex rel. Zugravu v. O’Brien (1935),
{¶25} As explained above, the court of appeals’ interpretation of
{¶ 26} Accordingly, we hold that the commission does not have authority under
Judgment affirmed.
Notes
. This is the current version of
. The version of
. “Disorderly activities” are defined by the regulation as acts that “harass, threaten or physically harm another person including threats or other menacing behavior, fighting, assaults and brawls or any violation as defined [in] section 2917.11 of the Revised Code [the statute that defines ‘disorderly conduct’].”
Dissenting Opinion
dissenting.
{¶ 27} Because I believe that the Liquor Control Commission has authority under
{¶ 28} In contrast to the majority, I find nothing in the statute that requires that the conviction occur during the offending employee’s employment. It is a basic presumption in statutory construction that the General Assembly is not presumed to do a vain or useless thing and that when language is inserted in a statute it is inserted to accomplish some definite purpose. State ex rel. Cleveland
{¶ 29} As the commission argued before this court, reading the statute to require that the conviction and employment must be concurrent will allow a permit holder to easily evade its responsibility to maintain a permit premises free of illegal employee activity. A permit holder who knows of, or should know of, felonious employee conduct will now be able to allow the conduct to continue until the employee is caught. Then, the permit holder can insulate itself from any consequences simply by firing the employee before he or she is convicted. Thus, the majority’s reading of the statute, in effect, divests the commission of its authority to proceed under
{¶ 30} The majority contends that the Ohio Administrative Code prevents this type of mischief by permit holders. According to the majority, the commission has authority under
{¶ 31} The General Assembly’s decision to include a conviction requirement in
{¶ 32} I believe that the General Assembly gave statutory authorization for the commission to act against permit holders under circumstances similar to those in this case to further the public-policy goal of preventing felonious activity in liquor establishments. Clearly the statute places a burden on the permit holder, who would be in the best position to prevent such activity. It imperils the holder’s potential to sell liquor if the holder fails to take adequate preventive measures against felonious conduct by its employees and agents. In this case, the cocaine
{¶ 33} For the foregoing reasons, I respectfully dissent, and I would hold that the commission had authority under