Planet Earth v. Liquor Control Comm. , 125 Ohio App. 3d 619 ( 1998 )

Being unable to agree with the majority opinion, I respectfully dissent.

I fully agree with the majority that the decision of appellant, Ohio Liquor Control Commission, finding that appellee, Planet Earth Entertainment, Inc., d.b.a. Diamonds, violated Ohio Adm. Code 4301:1-1-52 is supported by substantial, reliable, and probative evidence. Moreover, I, too, adhere to this court's prior holding that Ohio Adm. Code 4301:1-1-52 reasonably and constitutionally can be interpreted to prohibit the type of nude or semi-nude dancing which constituted two of the three violations in this case. See WFO DBA Bristols v. Ohio LiquorControl Comm. (Oct. 31, 1996), Franklin App. No. 96APE05-558, unreported, 1996 WL 631206, jurisdictional motion overruled (1997), 78 Ohio St.3d 1425, 676 N.E.2d 531.

Those observations, however, do not adequately' address or dispose of the real issue presented in this case. The charged violations against appellee were not seriously disputed. To the contrary, the parties at the hearing on the violations stipulated the inspector's report which, if believed, supported each of the violations charged. Indeed, Planet Earth appears not to have offered any testimony at the hearing, apart from providing witnesses to answer questions the commissioners posed regarding the "hindering" charge. In that regard, although Planet Earth attempted to argue that it was "uncooperative" only in response to the requests of the liquor control agents, questions posed by "the commissioners suggested that they believed the investigator's report indicating that the action of Planet Earth's management went beyond "uncooperative" to actually hindering the agents' investigation.

Given the foregoing, the real issue before the commission was the sanction to be imposed for those violations, the first Planet Earth incurred. Indeed, even Planet Earth's contentions that it was simply "uncooperative," and not a hindrance, apparently were offered in mitigation of the penalty, as opposed to outright absolution of the charges. In the midst of the discussion concerning appellee's response to the agents, Representative Robert L. Corbin "testified" as follows:

"Representative Robert L. Corbin. I'm the state representative from this area and I'm here today because I'm pleased you are finally hearing this case because the citizens of, from Montgomery County and Washington Township have been frustrated this place has been allowed to operate in what we consider to be an illegal manner in comparison to the liquor law.

"There have been other violations and other complaints as far as their dealings with the landlords, misrepresentation of what they were going to do and stuff like that.' I understand there have been court cases found and the frustration of the citizens of Montgomery County and Washington Township and Sheriffs office and township trustees they feel this place should be closed[.]"

The representative's remarks were improperly allowed in the hearing before the Liquor Control Commission. While those remarks benefit a political campaign or a town meeting, for several reasons they have no place in a quasi-judicial proceeding such as a hearing before an administrative agency.

Initially, nothing in the record suggests that the representative spoke from personal knowledge. Indeed, he presented no direct evidence relevant to the commission's proceedings. Instead, the representative appears to have presented himself at the hearing in his capacity as an elected official to argue the position presumably held by his constituents. While a representative surely is an appropriate witness at an administrative hearing if he or she possesses evidence relevant to the proceedings, the representative's remarks here were simply opinion unsupported by personal observation.

The impropriety of the representative's "testimony" is only highlighted by the manner in which it apparently was given. Although the record could be clearer in that respect, counsel for Planet Earth has represented, without dispute from counsel for the Liquor Control Commission, that Representative Corbin appeared with cameras in tow, prepared to have his remarks before the commission filmed. The record affirms counsel's representation. Even though the transcript of the proceedings before the commission does not reflect the presence of television cameras, the record contains a videotape of the representative's remarks as they appeared on a television news program; the videotape does not include the entire proceeding before the Liquor Control Commission. The record thus suggests that the representative used the quasi-judicial proceedings as an avenue to promote himself before his constituents.

Finally, I cannot ignore the fact that the legislature is responsible for funding the state commissions, including appellant. I do not suggest that any of the commissioners here considered whether financial repercussions might follow from a decision adverse to the representatives remarks. Nonetheless, allowing such "testimony" in judicial proceedings opens the door to an appearance of impropriety and impugns the credibility and integrity of administrative hearings.

While the majority finds no prejudice in the representative's statements, I cannot agree. The primary issue before the commission was the sanction to be imposed. Here, the commission chose to impose the most severe sanction available, even though these violations represented "the first incurred by Planet Earth. Although the commission in the past on occasion has revoked a permit on a first violation, I cannot separate the representative's statements from the penalty imposed in these circumstances, absent a commission policy which universally revokes liquor permits on a first violation.

Given the factors noted above, I am compelled to agree with the common pleas court that the representative's statement so tainted the proceedings as to deprive Planet Earth of a fair proceeding before the commission. Political campaign rhetoric and "politicking" is' inherently incongruous with the function of a quasi judicial body. Accordingly, I would affirm the judgment of the trial court.