Glenmore Props v. Ohio Liquor Control Comm. , 2023 Ohio 1212 ( 2023 )

[Cite as Glenmore Props v. Ohio Liquor Control Comm., 2023-Ohio-1212.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Glenmore Properties, LLC, :
Appellant-Appellee, :
No. 22AP-428
v. : (C.P.C. No. 21CV-7763)
Ohio Liquor Control Commission. : (REGULAR CALENDAR)
Appellee-Appellant. :
D E C I S I O N
Rendered on April 13, 2023
On brief: Lumpe, Raber & Evans and David A. Raber, for
appellee. Argued: David A. Raber.
On brief: Dave Yost, Attorney General, and Christine L.
Staab, for appellant. Argued: Christine L. Staab.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, P.J.
{¶ 1} In this matter filed pursuant to R.C. 119.12, appellant, the Ohio Liquor
Control Commission (“OLCC”), appeals the June 16, 2022 judgment of the Franklin County
Court of Common Pleas reversing the OLCC’s December 13, 2021 order. That order found
appellee, Glenmore Properties, LLC (“Glenmore”), to have violated its license to distribute
liquor by selling and furnishing alcohol to an intoxicated person, contrary to R.C.
4301.22(B). The trial court concluded that the OLCC’s order is “not supported by reliable,
probative, and substantial evidence or in accordance with law.” The OLCC now appeals
and asserts two assignments of error with the trial court’s judgment.
No. 22AP-428 2
{¶ 2} The OLCC issued the underlying liquor citation to Glenmore resulting from
an investigation after an apparent drunk driving collision caused by one of Glenmore's
patrons. The trial court set forth these relevant and undisputed facts in its entry:
Witnesses testified that on October 1, 2019, [Eve Thomas] went
to the Appellant's premises, a bar known as After Werk, in
Cincinnati, Ohio. After leaving the bar, Ms. Thomas drove a
vehicle that hit and injured Noah Stepaniak. The evidence was
as follows.
Enforcement Agent Thomas Dalton testified regarding his
investigation following the automobile accident. Agent Dalton
testified that he went to Appellant's premises and obtained a
video showing the events in the bar on October 1-2, 2019. Agent
Dalton testified that he observed five hours of the video
showing that Ms. Thomas was served eight whiskey and coke
drinks from 9:31 p.m. to 2:18 a.m. Agent Dalton testified that
the whiskey drinks were “four-second, five-second pours.”
Agent Dalton's only testimony about the behavior of Ms.
Thomas was that she was dancing and “just having a good
time.” Agent Dalton's testimony was based on the video, which
was not offered as evidence at the hearing.
Ms. Thomas left the bar at 2:39 a.m. and was involved in the
accident at 2:45 a.m. Ms. Thomas was taken to the hospital and
an “alcohol pre-screen” showed a blood alcohol level of .238; a
warrant was obtained, blood was drawn, and a lab test showed
a blood alcohol level of .174. The lab test also showed that Ms.
Thomas had marijuana in her system.
Elizabeth Chaney, the sole bartender that evening, testified that
at no time during the evening did Ms. Thomas appear
intoxicated. Ms. Chaney stated that Ms. Thomas did not slur
her speech, have glassy or bloodshot eyes, appear unsteady on
her feet, or exhibit any other outward sign of noticeable
intoxication. Ms. Chaney testified that she did not have any
knowledge of whether Ms. Thomas smoked marijuana that
night.
On December 13, 2021, the Commission issued its Order
finding Appellant in violation as to the allegations that it sold
and furnished alcohol to an intoxicated person in violation of
R.C. 4301.22(B).
On December 15, 2021, Appellant filed this appeal from the
Commission's order.
No. 22AP-428 3
(Citations omitted.) (June 16, 2022 Decision & Jgmt. Entry at 1-2.)
{¶ 3} R.C. 4301.22(B) provides that “[n]o permit holder and no agent or employee
of a permit holder shall sell or furnish beer or intoxicating liquor to an intoxicated person.”
And in Gressman v. McClain, 40 Ohio St.3d 359 (1988), the Supreme Court of Ohio held
that “[t]o recover damages in a civil action based upon a violation of R.C. 4301.22(B), a
plaintiff must prove that the permit holder or his employee knowingly sold an intoxicating
beverage to a noticeably intoxicated person whose intoxication proximately caused the
damages sought.” (Emphasis added.) Id. at paragraph two of the syllabus
{¶ 4} Since Gressman was decided, this court has consistently held that “actual
knowledge of intoxication is required to necessary prerequisite to showing a violation of
R.C. 4301.22(B).” Glossip v. Ohio Liquor Control Comm., 10th Dist. No. 00AP-1074, 2001
Ohio App. LEXIS 3295 (July 24, 2001) *9. See also Llluberes, Inc., v. Ohio Liquor Control
Comm., 10th Dist. No. 02AP-1326, 2003-Ohio-5943, ¶ 14-15, Tauring Corp., v. Ohio
Liquor Control Comm., 10th Dist. No. 14AP-622, 2015-Ohio-1967, ¶ 14-20, and Hobnob,
Inc., v. Ohio Liquor Control Comm., 10th Dist. No. 17AP-907, 2018-Ohio-3499, ¶ 13-17 (all
cases citing Gressman and Glossip). In accordance with this court's decisions, the trial
court held that
the record does not contain reliable, probative, and substantial
evidence to show that the permit holder had actual knowledge
that Ms. Thomas was intoxicated when served drinks. The
evidence is that Ms. Thomas was served eight whiskey and coke
drinks over 4 hours and 47 minutes, and that her blood alcohol
level was .174 some time after leaving the bar. However, there
is no evidence that Ms. Thomas was visibly intoxicated when
served drinks. Agent Dalton's only testimony as to Ms.
Thomas's behavior or appearance other than the number of
drinks she had was that she was dancing and having a good
time. The video reviewed by Agent Dalton was not offered into
evidence, and thus did not allow the Commission to observe the
behavior or appearance of Ms. Thomas. The only other
No. 22AP-428 4
witness, Ms. Chaney, testified that Ms. Thomas did not show
any signs of intoxication.
(Decision & Jgmt. Entry at 4.) This appeal followed.
{¶ 5} A common pleas court may affirm the order of an agency on appeal if it finds
that the order was supported by reliable, probative, and substantial evidence and in
accordance with law. R.C. 119.12(M). “In the absence of this finding, it may reverse, vacate,
or modify the order or make such other ruling as is supported by reliable, probative, and
substantial evidence and is in accordance with law.” Id. “Reliable” evidence is dependable
in that it can be confidently trusted and there is a reasonable probability that the evidence
is true; “probative” evidence is evidence that tends to prove the issue in question and is
relevant in determining that issue; “substantial” evidence is evidence with some weight,
importance, and value. See Our Place, Inc., v. Ohio Liquor Control Comm., 63 Ohio St.3d
570, 571 (1992). This court reviews the findings of the trial court for an abuse of discretion,
see, e.g., Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993) (citing cases), but with
respect to questions of law, this court has plenary review. E.g., Big Bob's, Inc., v. Ohio
Liquor Control Comm., 151 Ohio App.3d 498, 501, 2003-Ohio-418, ¶ 15 (10th Dist.2003).
OLCC asserts two interrelated assignments of error, which we address together:
[I.] The trial court erred in determining that there is an “actual
knowledge” requirement in ORC § 4301.22(B). Under the plain
language of that administrative liquor statute, a permit holder
violates ORC § 4301.22(B) by overserving an intoxicated
person, whether or not the permit holder has actual knowledge
that the person is intoxicated.
[II.] The trial court erred and abused its discretion when it held
that the Liquor Control Commission's order was not supported
by reliable, probative, and substantial evidence and was not in
accordance with the law.
No. 22AP-428 5
{¶ 6} First, the OLCC contends that the Supreme Court’s decision in Gressman has
been misinterpreted by the lower courts to require that the permitholder have actual
knowledge of a person’s intoxication when serving that person an intoxicating beverage to
allow the OLCC to impose liability under R.C. 4301.22(B) (the so-called “dram shop”
statute), when in reality Gressman did not so hold. Second, the OLCC asserts that there
was sufficient evidence presented at the violation hearing to establish that the permitholder
had or should have had knowledge that an intoxicated person was being served.
{¶ 7} The OLCC admits that following Gressman, “[t]here is no doubt that courts
currently require a showing of “actual knowledge” is necessary [sic] in cases such as these.”
(Brief of Appellant at 10.) But the OLCC argues that this approach is incorrect—the OLCC
reads Gressman to apply only to a derivative civil action resting on a citation issued
pursuant to the statute, rather than the issuance of the citation itself. The OLCC argues that
the plain language of the statute does not require the permitholder to have actual
knowledge of a person's intoxication when serving that person an intoxicating beverage to
establish a violation, and it contends—without specifically so stating—that the liquor
control cases since 1988 have all applied the wrong standard. Compare R.C. 4301.22(B)
with Glossip at *9; Llluberes, Inc, at ¶ 14-15; Tauring Corp., at ¶ 14-20; and Hobnob, Inc.,
at ¶ 13-17. See also Smith v. Liquor Control Comm., 4th Dist. No. 98CA03, 1998 Ohio App.
LEXIS 6331 (Dec. 10, 1998) *10-12 (applying Gressman standard to hold that citation was
supported by evidence sufficient to show actual knowledge of intoxication). Notably, OLCC
does not suggest an alternative mens rea standard it would have this court adopt. It also
does not attempt to explain why—assuming that its understanding of the statute is correct—
the legislature has not corrected the courts in the 35 years that have passed since Gressman
was decided.
No. 22AP-428 6
{¶ 8} Instead of answering these obvious objections to its position, the OLCC
simply argues that Gressman does not apply to administrative proceedings against a
permitholder’s liquor license. The OLCC’s sole support for this claim is a 2009 Franklin
County Court of Common Pleas case that was not appealed and has never been cited by
another court. See Frog Town USA, Inc., v. Ohio Liquor Control Comm., Franklin C.P.,
Case No. 08CVF12-17727, 2009 Ohio Misc. LEXIS 6022 (Aug. 7, 2009). In Frog Town
USA, the trial court contended that “the legislature has elected not to amend the statute to
require a mens rea in administrative liquor cases despite case law requiring a
demonstration of actual knowledge of intoxication on the part of a server of alcohol before
recovery may be had on the basis of civil tort liability,” but notwithstanding concluded that
“it is not necessary in order to obtain a conviction (of selling to an intoxicated person) to
prove that the accused knew that the person to whom he is charged with having sold
intoxicants was intoxicated, where the means of such knowledge were available to the
accused or the common good imposed a duty upon him to obtain it.” Id at *3.
{¶ 9} The court's analysis in Frog Town USA is misguided. Specifically, the court
seemingly believed that it was the legislature's responsibility “to amend the statute to
require a mens rea” after Gressman was decided, even though Gressman specifically held
that the statute already contained the mens rea requiring actual knowledge. Both Frog
Town USA and the OLCC's argument here rest on a pure fallacy: that the very same
language in the statute—the phrase “intoxicated person”—can require actual knowledge of
intoxication in a civil action without requiring such knowledge for liquor permit violations.
Compare Gressman at paragraph two of the syllabus with Frog Town USA at *2. We are
not aware of any authority for the proposition that statutory language can ever operate in
the fashion that Frog Town USA and the OLCC suggest. It would be at best problematic
No. 22AP-428 7
for this court to rule that two opposing interpretations of the very same language in the very
same statutory subsection can coexist. Accordingly, we reject the OLCC's interpretation of
R.C. 4301.22(B), abide by our prior holdings, and conclude that Gressman remains the
controlling interpretation of the statute.
{¶ 10} We further conclude that the trial court correctly held that the evidence
presented at the OLCC hearing was insufficient to meet the “actual knowledge” standard.
In her testimony at the administrative hearing, bartender Elizabeth Chaney clearly and
unequivocally stated that the patron Eve Thomas showed no signs of intoxication at any
point on the night in question. (Nov. 18, 2021 Tr. [Before the Ohio Liquor Control
Commission] at 26-29.) The only circumstantial evidence presented that Ms. Thomas was
intoxicated was Liquor Enforcement Agent Thomas Dalton's opinion that she must have
been intoxicated based on the fact that Ms. Thomas drank eight whiskey and cokes and was
“dancing and rubbing people as she passed people, dancing” in the DVD security footage,
id. at 18-20, taken together with the subsequent blood test showing a prohibited
concentration of alcohol. But while that may be some evidence of impairment, it is not
probative or substantial to establish that Ms. Chaney had actual knowledge that Ms.
Thomas was intoxicated at the time she was sold and furnished intoxicating liquor.
{¶ 11} For the foregoing reasons, we overrule both of the OLCC's assignments of
error. The trial court's judgment reversing the order of the OLCC is affirmed.
Judgment affirmed.
DORRIAN and BOGGS, JJ., concur.