I Love This Bar, L.L.C. v. Ohio Liquor Control Comm. , 2022 Ohio 3509 ( 2022 )

[Cite as I Love This Bar, L.L.C. v. Ohio Liquor Control Comm., 2022-Ohio-3509.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
I Love This Bar, LLC, :
Appellant-Appellant, :
No. 21AP-111
v. : (C.P.C. No. 20CV-5928)
Ohio Liquor Control Commission, : (REGULAR CALENDAR)
Appellee-Appellee. :
D E C I S I O N
Rendered on September 30, 2022
On brief: Cassone Law Offices, LLC, and Joshua J. Brown,
for appellant. Argued: Joshua J. Brown.
On brief: Dave Yost, Attorney General, and Joseph E.
Schmansky, for appellee. Argued: Charles E. Febus.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Appellant, I Love This Bar, LLC, appeals from a February 19, 2021 decision
and judgment issued by the Franklin County Court of Common Pleas. In that judgment,
the trial court affirmed an August 21, 2020 order of appellee, Ohio Liquor Control
Commission ("commission"), finding appellant in violation of Ohio Adm.Code 4301:1-1-
52(B)(1) ("Rule 52"). Because the trial court abused its discretion in finding that there was
reliable, probative, and substantial evidence supporting the commission's order, we
reverse.
No. 21AP-111 2
Facts and Procedural History
{¶ 2} Appellant owns a bar/restaurant known as the Park Street Cantina in an area
known as the Arena District in Columbus, Ohio. On May 16, 2020, agents of the Ohio
Investigative Unit were in the Arena District monitoring compliance with a May 14, 2020
"Dine Safe Order" issued by the director of the Ohio Department of Health.1 That order
was issued in conjunction with the reopening of restaurants, bars, and similar
establishments following shutdowns caused by the COVID-19 pandemic.
{¶ 3} At approximately 10:35 p.m., agents entered an outdoor covered patio area
of appellant's business premises and observed that it was crowded with patrons in close
proximity to one another. Most of the patrons were not seated. The agents did not observe
any of appellant's employees wearing masks. Some of the patrons were dancing. Because
the agents believed that the conditions they observed violated the Dine Safe Order, they
issued appellant a citation under Ohio Adm.Code Emergency Order 4301:1-1-13. A few days
later, the agents realized that Emergency Order 4301:1-1-13 was inapplicable to appellant's
business premises. Therefore, an agent returned to appellant's business premises on
May 19, 2020 and reissued the citation under Rule 52. The conditions at appellant's
business premises on May 16, 2020 remained the basis for the Rule 52 citation.
{¶ 4} On July 28, 2020, the commission mailed appellant a notice of hearing that
alleged as follows:
On or about Saturday, May 16, 2020, you, your agent(s),
and/or employee(s) knowingly and/or willfully allowed and/or
engaged in improper conduct, to wit: recklessly caused
inconvenience, annoyance, or alarm to another by creating a
condition that presents a risk of illness, by an act or acts that
served no lawful and reasonable purpose of the permit holder
in and upon the permit premises in violation of Ohio Admin.
Code 4301:1-1-52(B)(1) ("allowing persons to engage in
disorderly activities").
(Feb. 19, 2021 Decision & Entry at 1.)
{¶ 5} The commission held an evidentiary hearing on August 20, 2020. In support
of the citation, the state primarily relied on the testimony of agent Nathan Wathey, agent
1The Ohio Investigative Unit is part of the Ohio Department of Public Safety and is tasked with enforcing
Ohio's liquor code.
No. 21AP-111 3
Victoria Aumend, Infectious Disease Consultant, Gary Trentman, various pictures taken by
Wathey, a diagram of appellant's business premises, and the agents' written investigative
report.
{¶ 6} Wathey testified that on the evening of May 16, 2020, he and Aumend were
monitoring bars in the Arena District to determine whether the establishments were
complying with the Dine Safe Order. They were specifically looking to see whether patrons
were socially distanced, seated, and wearing masks as required by the Dine Safe Order. He
and Aumend observed that appellant's patio area was crowded and, therefore, they decided
to visit the premises. He further testified as follows:
I observed that none of the employees were wearing masks.
The bar was very crowded. There was people on the actual
dance floor dancing that night. When we went into the actual
premises, it was very crowded. At one point I looked over my
shoulder and looked back, and I was not able to see Agent
Aumend, because the portions of the crowd was so thick.
(Tr. at 14.)
Wathey identified his investigative report, which stated that the agents were "looking for
noncompliance with Dr. Amy Acton and Governor Mike DeWine's social distancing orders.
Permit premises were to ensure 6' feet distancing of all tables, patrons, and employees.
Parties of ten or less were to be at a table, and not congregating/co-mingling outside of
that." The report further stated that "[m]ost all of the patrons inside the location were
standing. Many were congregating with people at the bar." The report added:
Agents observed approximately 60 patrons inside the patio.
The whole front bar was lined with patrons. Some were seated
at the bar, while others were standing. Few were seated at
tables. The majority were standing in close proximity to each
other. Others were walking around, while others were dancing
in-between the bar and tables. AAIC Aumend had a difficult
time walking through the crowd to get to the other side of the
bar.
(Ohio Dept. of Public Safety, Investigative Report at 2; Ex. C3.)
Wathey also identified various pictures he took that evening of the patio area. He further
stated that neither the patrons nor appellant's employees were wearing masks. Notably,
Wathey did not testify that he, Aumend, any patrons, or anyone else at appellant's
No. 21AP-111 4
business premises at the time indicated that the conditions at the bar caused them any
inconvenience, annoyance, or alarm.
{¶ 7} Aumend also testified about her observations of appellant's business
premises on the evening of May 16, 2020. In essence, Aumend testified that she observed
the same conditions described by Wathey. The patio area was crowded without social
distancing and most of the patrons were not seated. The bartenders were not wearing
masks. She testified that part of the reason she issued the citation was because of the risk
of physical harm to persons in the bar and/or the risk of further spreading the virus.
Aumend did not testify that she, Wathey, any patrons, or anyone else present at the time
expressed any inconvenience, annoyance, or alarm due to the crowded conditions, or the
lack of social distancing at appellant's business premises.
{¶ 8} Sam Love, agent in charge of the Columbus district office, testified that
appellant was issued a citation rather than a warning because the agents felt the violation
was egregious.
{¶ 9} The last witness called by the state to testify was Trentman. Trentman is an
infectious disease consultant with the Ohio Department of Health. He testified about the
highly infectious nature of COVID-19 and the manner in which it is transmitted. Based
upon his review of the pictures of appellant's business premises taken by agent Wathey, and
the testimony of the agents describing their observations, he stated that the conditions at
appellant's business premises increased the likelihood of spreading the virus. He further
testified that the conditions presented a risk of physical harm.
{¶ 10} Fadi Michael testified on behalf of the appellant. He stated that appellant's
business premises reopened on May 15, 2020, one day after the COVID-19 shutdown had
been lifted. Only the outdoor patio area was open. He stated that his tables were spread
more than six feet apart on the patio. He admitted he did not know whether any of his
employees were wearing masks that evening, but indicated that some employees have
medical conditions that exempt them. He did not believe the Dine Safe Order required
patrons to wear masks. Michael also disputed the agents' testimony that the patio area was
very crowded. He testified that his managers made announcements throughout the night
reminding the patrons to maintain social distancing.
No. 21AP-111 5
{¶ 11} Based upon the evidence presented at the hearing, the commission issued an
order on August 21, 2020 finding appellant in violation of Rule 52 as alleged in the notice
of hearing and suspended appellant's liquor license beginning at noon, September 18,
2020, and ending noon, October 3, 2020. That order was stayed following appellant's
appeal to the trial court pursuant to R.C. 119.12. In a decision dated February 19, 2021, the
trial court affirmed the commission's order.
{¶ 12} Appellant appeals assigning the following errors:
[1.] The trial court erred in ruling that the state satisfied the
necessary elements of the offense.
[2.] The trial court erred in finding that the citation issued was
constitutional.
Standard of Review
{¶ 13} This case involves an appeal pursuant to R.C. 119.12. In such an appeal, the
trial court reviews an order to determine whether it is supported by reliable, probative, and
substantial evidence and is in accordance with the law. S. Court St. Ents. v. Ohio Liquor
Control Comm., 10th Dist. No. 13AP-456, 2013-Ohio-5447, ¶ 6. In applying this standard,
the trial court must " 'give due deference to the administrative resolution of evidentiary
conflicts.' " Id., quoting Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111 (1980). The
Supreme Court of Ohio has defined reliable, probative, and substantial evidence as follows:
(1) "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.
(2) "Probative" evidence is evidence that tends to prove the
issue in question; it must be relevant in determining the issue.
(3) "Substantial" evidence is evidence with some weight; it
must have importance and value.
Id. at ¶ 7, citing Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571
(1992).
{¶ 14} 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 weight thereof." ' " Id. at ¶ 8, quoting Lies v. Ohio Veterinary Med.
No. 21AP-111 6
Bd., 2 Ohio App.3d 204, 207 (2d Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164
Ohio St. 275, 280 (1955). On questions of law, the common pleas court conducts a de novo
review in determining whether the administrative order is " 'in accordance with law.' " Id.,quoting Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471 (1993).
{¶ 15} On appeal to this court, the standard of review is more limited. Unlike the
court of common pleas, the court of appeals does not determine the weight of the evidence.
Id. at ¶ 9, citing Rossford Exempted Village Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio
St.3d 705, 707 (1992). In reviewing the court of common pleas' determination that the
commission's order is supported by reliable, probative, and substantial evidence, this
court's role is limited to determining whether the court of common pleas abused its
discretion. Id., citing Roy v. Ohio State Med. Bd., 80 Ohio App.3d 675, 680 (10th
Dist.1992). Absent an abuse of discretion on the part of the trial court, a court of appeals
cannot substitute its judgment for that of the commission or the trial court. Id., citing Pons
v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). The term "abuse of discretion"
connotes more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983). However, a court does not have the discretion to apply the law incorrectly.
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 34. On the question of
whether the commission's order was in accordance with law, this court's review is plenary.
S. Court St. Ents., 10th Dist. No. 13AP-456, 2013-Ohio-5447, ¶ 9.
Legal Analysis
{¶ 16} In its first assignment of error, appellant contends that the trial court abused
its discretion in finding there was reliable, probative, and substantial evidence to support
the commission's order finding a violation of Rule 52. We agree.
{¶ 17} Ohio Adm.Code 4301:1-1-52 (Rule 52) provides as follows:
(B) Prohibited activities; no permit holder, his agent, or
employee shall knowingly or willfully allow in and upon his
licensed permit premises any persons to:
(1) Engage in any disorderly activities.
In this case, the basis for the citation and the Rule 52 violation is the allegation that
appellant's failure to comply with the Dine Safe Order constituted disorderly activities.
No. 21AP-111 7
{¶ 18} Ohio Adm.Code 4301:1-1-52(A)(1) defines "[d]isorderly activities" as "those
that harass, threaten or physically harm another person including threats or other
menacing behavior, fighting, assaults and brawls or any violation as defined by section
2917.11." The commission relied solely on R.C. 2917.11 as the basis for finding that
appellant engaged in disorderly conduct, and thereby, violated Rule 52.
{¶ 19} R.C. 2917.11 (titled "Disorderly conduct") provides as follows:
(A) No person shall recklessly cause inconvenience,
annoyance, or alarm to another by doing any of the following:
***
(5) Creating a condition that is physically offensive to persons
or that presents a risk of physical harm to persons or property,
by any act that serves no lawful and reasonable purpose of the
offender.
{¶ 20} R.C. 2901.01(A)(3) defines "[p]hysical harm to persons" as "any injury,
illness, or other physiological impairment, regardless of its gravity or duration." Therefore,
to prove disorderly conduct under R.C. 2917.11(A)(5), and a Rule 52 violation, the state
must present evidence that appellant recklessly caused inconvenience, annoyance, or alarm
to another by creating a condition that presented a risk of physical harm or illness by any
act that serves no lawful and reasonable purpose.
{¶ 21} The trial court concluded there was reliable, probative, and substantial
evidence supporting the commission's determination that appellant recklessly caused
inconvenience to others by creating a condition that presented a risk of physical harm (i.e.,
illness) to persons by an act that served no lawful purpose as prohibited by R.C.
2917.11(A)(5). We agree there was evidence to support the commission's finding that
appellant recklessly created a condition that presented a risk of physical harm or illness by
an act that served no lawful purpose. Both Wathey and Aumend testified that they observed
very crowded conditions, little social distancing, and the absence of mask wearing at
appellant's business premises—conditions that were inconsistent with the Dine Safe Order.
Trentman testified that these conditions increased the likelihood that the virus would
spread, thereby presenting a risk of physical harm or illness. But neither Wathey nor
Aumend testified that appellant recklessly caused them, any patron, or anyone else
"inconvenience, annoyance, or alarm." Neither agent testified that any patron, employee,
No. 21AP-111 8
or anyone else expressed any concerns to them about the conditions at appellant's business
premises. Nor did they testify that they visited appellant's business premises because of a
complaint.
{¶ 22} The commission suggested during oral argument that evidence of
inconvenience, annoyance, or alarm was provided by Trentman. Trentman did testify that
COVID-19 is very infectious and he was concerned the conditions present at appellant's
business premises presented a risk of physical harm to the population based on the pictures
he reviewed and the testimony of the agents. However, Trentman was not present at
appellant's business premises on May 16, 2020, and he did not testify that appellant
recklessly caused inconvenience, annoyance, or alarm to another at the time the citation
was issued. The record simply contains no direct or circumstantial evidence that this
element of an R.C. 2917.11(A)(5) disorderly conduct violation was satisfied. State v. Smith,
150 Ohio App.3d 45, 2002-Ohio-5994 (2d Dist.) (inconvenience, annoyance, or alarm to
another is a necessary element of an R.C. 2917.11(A) disorderly conduct offense; conviction
reversed when no evidence presented to prove this element); State v. Holmes, 129 Ohio
App.3d 735 (2d Dist.1998) (inconvenience, annoyance, or alarm to another is a necessary
element of a disorderly conduct offense under Section 648.04 of the Ordinances of
Kettering, Ohio; conviction reversed when record contained no evidence establishing this
element).
{¶ 23} Nor can we infer from these facts that anyone present at appellant's business
premises on May 16, 2020 was inconvenienced, annoyed, or alarmed. The agents were
present at appellant's business premises because of their desire to investigate appellant's
compliance with the Dine Safe Order—not because someone complained about the
conditions on May 16, 2020, or on any prior day.
{¶ 24} Because there was no evidence presented to the commission that appellant
recklessly caused inconvenience, annoyance, or alarm to another, the commission could
not rely on R.C. 2917.11(A)(5) as the basis for a Rule 52 violation. Therefore, we find that
the trial court abused its discretion when it determined there was reliable, probative, and
substantial evidence supporting the commission's order. Accordingly, we sustain
appellant's first assignment of error.
No. 21AP-111 9
{¶ 25} Having sustained appellant's first assignment of error, appellant's second
assignment of error is moot, and we decline to address it. We reverse the judgment of the
Franklin County Court of Common Pleas and we remand this cause to that court for further
proceedings consistent with law and this decision.
Judgment reversed; cause remanded.
DORRIAN and MENTEL, JJ., concur.
DORRIAN, J., concurring.
{¶ 26} Ohio Adm.Code 4301:1-1-52 prohibits a permit holder to knowingly or
willfully allow any person to engage in any "disorderly activities" on the licensed permit
premises. Ohio Adm.Code 4301:1-1-52(B)(1). "Disorderly activities" is defined for purposes
of Ohio Adm.Code 4301:1-1-52(B)(1) as "those that harass, threaten or physically harm
another person including threats or other menacing behavior, fighting, assaults and brawls
or any violation as defined by section R.C. 2917.11 of the Revised Code." (Emphasis added.)
Ohio Adm.Code 4301:1-1-52(A)(1).
{¶ 27} The Notice of Hearing in this case alleges a violation as follows:
On or about Saturday, May 16, 2020, you, your agent(s),
and/or employee(s) knowingly and/or willfully allowed and/or
engaged in improper conduct, to wit: recklessly caused
inconvenience, annoyance, or alarm to another by creating a
condition that presents a risk of illness, by an act or acts that
served no lawful and reasonable purpose of the permit holder
in and upon the permit premises in violation of Ohio Admin.
Code 4301:1-1-52(B)(1) ("allowing persons to engage in
disorderly activities").
(Emphasis added.)
{¶ 28} "[I]nconvenience, annoyance, or alarm" is one of several alternative elements
which may be charged under Ohio Adm.Code 4301:1-1-52(B)(1). As pointed out by the
majority, the element of "inconvenience, annoyance, or alarm" comes from R.C. 2917.11,
and the commission relied solely on R.C. 2917.11 as the basis for finding that appellant
engaged in disorderly activities. See majority opinion at ¶ 18-19.
{¶ 29} Because the specific allegation against appellant included the element of
"inconvenience, annoyance, or alarm," and based on the facts of this case, I concur with the
majority and would reverse this case.
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