S. Court St. Ents., Inc. v. Ohio Liquor Control Comm. , 2013 Ohio 5447 ( 2013 )

[Cite as S. Court St. Ents., Inc. v. Ohio Liquor Control Comm., 2013-Ohio-5447.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
South Court Street Enterprises, Inc., :
Appellant-Appellant, :
No. 13AP-456
v. : (C.P.C. No. 13CVF-01-77)
Ohio Liquor Control Commission, : (ACCELERATED CALENDAR)
Appellee-Appellee. :
D E C I S I O N
Rendered on December 12, 2013
Saia & Piatt, Inc., and Lisa A. Wafer, for appellant.
Michael DeWine, Attorney General, and Andromeda
McGregor, for appellee.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Appellant-appellant, South Court Street Enterprises, Inc. ("appellant"),
appeals from a judgment of the Franklin County Court of Common Pleas affirming the
order of appellee-appellee, Ohio Liquor Control Commission ("commission"), finding that
appellant both sold and furnished beer to a minor in violation of R.C. 4301.69(A). For the
reasons that follow, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant operates a restaurant/sports bar known as the Red Brick Tavern,
near the campus of Ohio University in Athens, Ohio. The commission issued D5 and D6
liquor permits to appellant in 2006. On September 2, 2011, several Ohio Department of
Public Safety agents entered appellant's establishment to conduct an investigation. The
No. 13AP-456 2
events that took place are set forth in the report of Agent H. Sam Love, in relevant part, as
follows:
On September 2, 2011 at approximately 12:10 am AAIC Love
and Agents Jones and Arbaugh visited the permit premises
known as Red Brick Tavern, South Court Street Enterprises
LLC, located at 14 N. Court Street in Athens. AAIC Love
observed a youthful appearing individual, later identified as
Zackary M. Eisenfeld, age 19, DOB 8/11/92, standing at the
end of the bar holding a $10 bill in his hand attempting to get
a bartenders attention. After several minutes Z. Eisenfeld
moved to the center of the bar to get served. A barmaid, later
identified as Olivia A.T. Pokas, walked over to Z. Eisenfeld
and took his order. Z. Eisenfeld ordered two draft Bud Light
Beers. O. Pokas turned and walked to the beer taps, looked
back at Z. Eisenfeld and asked 'Bud Light?' Z. Eisenfeld
replied yes and O. Pokas poured two draft beers. O. Pokas
delivered the beers to Z. Eisenfeld. Z. Eisenfeld handed O.
Pokas the $10 bill and O. Pokas returned an unknown amount
of money to Z. Eisenfeld. At no time did O. Pokas request or
review an identification from Z. Eisenfeld. Z. Eisenfeld took
the two beers and walked back around to the end of the bar
and handed one of the draft beers to an individual later
identified as Chelsea L. Amato, age 18, DOB 10/14/92/
AAIC Love and Agent Jones approached C. Amato and Z.
Eisenfeld and properly identified themselves. Upon
questioning Z. Eisenfeld immediately admitted to Agent Jones
that he was 19 years of age.
(Commission's exhibit D.)
{¶ 3} Agent Love issued a citation to appellant for both selling and furnishing
beer to a minor in violation of R.C. 4301.69(A). Following an administrative hearing, the
commission found that appellant had violated R.C. 4301.69(A) by selling and furnishing
beer to a minor. The commission imposed a fine of $600 or a six-day license suspension,
at appellant's option.
{¶ 4} Appellant timely appealed to the Franklin County Court of Common Pleas
pursuant to R.C. 119.12. On May 9, 2013, the trial court determined that the commission's
decision was supported by reliable, probative, and substantial evidence, and was in
accordance with law.
No. 13AP-456 3
II. ASSIGNMENT OF ERROR
{¶ 5} Appellant timely appeals to this court assigning the following sole
assignment of error:
The trial court erred, and abused its discretion, by its May 9,
2013 Decision affirming the Decision of the Ohio Liquor
Control Commission in this matter.
III. STANDARD OF REVIEW
{¶ 6} In an administrative appeal, pursuant to R.C. 119.12, 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. In applying this standard, the court must
"give due deference to the administrative resolution of evidentiary conflicts." Univ. of
Cincinnati v. Conrad, 63 Ohio St. 2d 108, 111 (1980).
{¶ 7} 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.
(Footnotes omitted.) Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St. 3d 570,
571 (1992).
{¶ 8} 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.' " Lies v. Ohio Veterinary Med. Bd., 2
Ohio App. 3d 204, 207 (2d Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio
St. 275, 280 (1955). "However, the findings of the agency are by no means conclusive."
Univ. of Cincinnati at 111. On questions of law, the common pleas court conducts a de
novo review in determining whether the administrative order is "in accordance with law."
Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St. 3d 466, 471 (1993).
No. 13AP-456 4
{¶ 9} On appeal to this court, the standard of review is more limited. Unlike the
court of common pleas, a court of appeals does not determine the weight of the evidence.
Rossford Exempted Village School 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 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. 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. 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),
quoting State v. Adams, 62 Ohio St. 2d 151, 157 (1980). However, on the question of
whether the commission's order was in accordance with the law, this court's review is
plenary. McGee v. Ohio State Bd. of Psychology, 82 Ohio App. 3d 301, 305 (10th
Dist.1993), citing Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp.
Relations Bd., 63 Ohio St. 3d 339, 343 (1992).
{¶ 10} In its sole assignment of error, appellant contends that the trial court
abused its discretion when it determined that the commission's decision was supported by
reliable, probative, and substantial evidence inasmuch as the commission based its
decision upon an unreliable witness and inadmissible hearsay. Agent Love testified at the
administrative hearing as follows:
Q. With respect to Mr. Eisenfeld, did you - - you did not check
his ID?
A. When? I saw his ID, yes, because I needed it when I filled
out the precipe summons.
Q. Okay. Did you have a copy of that in the file?
A. No. We generally don't make copies of ID's. It's all done in
the field.
Q. Okay.
No. 13AP-456 5
A. We have no access to a Xerox machine in our cars.
Q. Did you make note in your report that you had checked his
ID?
A. I don't believe so.
Q. Okay. And you didn't check any other record of his birth,
birth certificate or anything like that, to verify his date of
birth?
A. No, generally the ID is what we use.
Q. Okay.
A. He was from out of state, I believe; from North Carolina, if
I'm correct.
Q. Okay.
A. Which is why he probably couldn't be here today.
***
Q. Agent, did the underage in this particular case, did he make
any statements as to his age to you when you approached
him?
A. Yeah. When myself and Agent Jones approached [Z.
Eisenfeld] and ID'd, he admitted to being 19. Agent Jones
secured him in handcuffs, took him out of the premises.
***
Q. The underage in this particular matter - - you were inside
the permit location at the time and observed a transaction; is
that correct?
A. Yes.
Q. After observing that transaction, that is what caused you
two to approach the underage and inquire as to his age; is that
correct?
A. Yes.
No. 13AP-456 6
(Tr. 7-9.)1
{¶ 11} Appellant has identified two specific statements in Agent Love's testimony
that it now finds objectionable: (1) Agent Love's testimony that Eisenfeld admitted he was
19; and (2) Agent Love's testimony that he confirmed Eisenfeld's age by looking at his ID.
{¶ 12} With regard to Agent Love's testimony that Eisenfeld admitted he was 19
years old, we note that Agent Love's report also states that Eisenfeld admitted he was 19.
The report was admitted into evidence by stipulation. As a general rule, when a party
stipulates to the admission of evidence, the party may not later object to such evidence.
See, e.g., Havens v. Havens, 10th Dist. No. 11AP-708, 2012-Ohio-2867, ¶ 21-22; In re
J.B., 10th Dist. No. 11AP-63, 2011-Ohio-3658, ¶ 9-10. Appellant contends, however, that
it preserved its right to object to the alleged hearsay statements contained in Agent Love's
report. The transcript of the administrative hearing contains the following discussion
regarding Agent Love's report:
MS. WAFER: Lisa Wafer on behalf of the permit holder
MS. MCGREGOR: Ms. Wafer, it's my understanding that
you're going to deny as to any sort of legal violations, but you
are willing to stipulate to the admission of the investigative
report as to these violations; is that correct?
MS. WAFER: That's correct
(Tr. 4.)
{¶ 13} Additionally, at the conclusion of Agent Love's testimony, appellant's
counsel stated:
MS. WAFER: To get it in front of the Commission. I think our
argument, in terms of the violation, is primarily a legal one.
We don't - - you know, the agent's report states what it states,
and I'm going to make that argument and conclusion, but - -.
(Tr. 10.)
1 This appeal pertains to the charge against appellant related to Eisenfeld only.
No. 13AP-456 7
{¶ 14} The record does not provide clear support for counsel's contention that she
preserved appellant's objection to the alleged hearsay statements contained either in
Agent Love's report or in his testimony. Appellant did interpose a hearsay objection
during closing argument. However, even if we were to agree that the objection was
preserved, administrative agencies are not bound by the strict rules of evidence applied in
court. Enitnel, Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 02AP-583, 2002-Ohio-
7034, ¶ 18, citing Felice's Main Street, Inc. v. Ohio Liquor Control Comm., 10th Dist. No.
01AP-1405, 2002-Ohio-5962, ¶ 17. Indeed, the hearsay rule is relaxed in administrative
proceedings. Id.
{¶ 15} The commission argues that Agent Love's testimony arguably falls within
the hearsay exception recognized in Evid.R. 804(B)(4) pertaining to statements of
personal or family history. Under Evid.R. 804(B)(4), a hearsay statement concerning the
declarant's date of birth is admissible at trial if the declarant is "unavailable." Evid.R.
804(A). Agent Love testified that Eisenfeld was unavailable for the hearing because he
was attending college in North Carolina, and appellant acknowledges that a subpoena was
issued to secure Eisenfeld's attendance at the hearing. (Tr. 8; Appellant's Brief, fn. 1.)
Accordingly, even if appellant had preserved its hearsay objection, Agent Love's assertion
that Eisenfeld told him he was 19-years old is admissible under Evid.R. 804(B)(4).
{¶ 16} Moreover, while the hearsay exception recognized in Evid.R. 804(B)(3),
pertaining to a "statement against interest," does not apply where the statement is one
"tending to expose the declarant to criminal liability," Agent Love testified that the
charges against Eisenfeld had been dismissed and that no further proceedings would be
brought against him for the events of September 2, 2011. Accordingly, under Evid.R.
804(B)(3), Eisenfeld's statement is admissible, as a statement against interest, when
offered to prove that he was 19-years old on September 2, 2011.
{¶ 17} Appellant next contends that Agent Love must have testified falsely when he
claimed that he checked Eisenfeld's ID, because Agent Love failed to note that fact in his
report. However, appellant's counsel never asked Agent Love whether his normal practice
was to make a notation in his report whenever he checked a suspects ID. Moreover, Agent
Love's report also contains no mention that he checked the ID of "C. Amato" even though
No. 13AP-456 8
she also admitted that she was under 21 years of age. He did, however, note that he
checked the false ID presented to him by "C. Amato." In short, we cannot say that the trial
court abused its discretion by refusing to infer that Agent Love testified falsely simply
because his report does not state that he checked Eisenfeld's ID.
{¶ 18} Agent Love was the primary witness before the commission on the liability
issue. The record establishes a reasonable probability that Agent Love's testimony is true.
Indeed, Agent Love's report specifies a birth date of "8/11/92," which means that
Eisenfeld was 19 years of age on September 2, 2011. The commission found Agent Love to
be credible and the trial court found that the commission's decision was based upon
reliable, probative, and substantial evidence. We agree with the trial court.
{¶ 19} For the foregoing reasons, appellant's assignment of error is overruled
IV. DISPOSITION
{¶ 20} Based upon the foregoing, we hold that the trial court did not abuse its
discretion when it determined that the commission's order was based upon reliable,
probative, and substantial evidence and was in accordance with law.
{¶ 21} Having overruled appellant's sole assignment of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., and BROWN, J., concur.
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