D.L. Lack Corp. v. Commission

944 N.E.2d 746, 191 Ohio App. 3d 20
CourtOhio Court of Appeals
DecidedDecember 16, 2010
DocketNo. 10AP-400
StatusPublished
Cited by6 cases

This text of 944 N.E.2d 746 (D.L. Lack Corp. v. Commission) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.L. Lack Corp. v. Commission, 944 N.E.2d 746, 191 Ohio App. 3d 20 (Ohio Ct. App. 2010).

Opinion

Klatt, Judge.

{¶ 1} Appellant, D.L. Lack Corporation (“Lack”), appeals from a judgment of the Franklin County Court of Common Pleas affirming the order of the Liquor Control Commission (“commission”), which affirmed the decision of the Division of Liquor Control (“division”) to deny the 2008-2009 renewal of Lack’s D-5-6 liquor permit. For the following reasons, we affirm.

{¶ 2> Since 2000, Lack has held a D-5-6 liquor permit for Don’s Glenway Gate, a bar located in the Price Hill neighborhood of Cincinnati.1 On April 16, 2008, the city of Cincinnati submitted to the division an objection to the renewal of Lack’s liquor permit. The Cincinnati City Counsel cited two reasons for its objection: (1) Lack had operated the liquor permit premises in a manner that demonstrated disregard for the laws, regulations, and local ordinances of Ohio, and (2) the permit premises was so located with respect to the neighborhood that continued operation of the business would cause substantial interference with the public decency, sobriety, peace, and good order of the neighborhood.

{¶ 3} Over the course of three days, the division held a hearing to determine whether it should deny Lack’s liquor permit for either of the reasons the city cited. Apparently, a hearing examiner appointed by the division conducted this hearing. In a letter dated February 27, 2009, the division superintendent informed Lack that the division had decided to reject Lack’s renewal application. The division based its decision on both of the reasons the city had asserted in its objection.

{¶ 4} Lack appealed the division’s decision to the commission. Before the commission, Lack filed a motion to reverse the division’s decision. Lack argued that the division did not follow the R.C. 119.09 requirements that it serve upon Lack a copy of the hearing examiner’s report and recommendation and that it send Lack a certified copy of the division’s decision. According to Lack, this noncompliance with R.C. 119.09 rendered the division’s decision invalid.

[24]*24{¶ 5} The commission held an evidentiary hearing on Lack’s appeal. In an order dated October 9, 2009, the commission overruled Lack’s motion to reverse and affirmed the division’s refusal to renew Lack’s liquor permit.

{¶ 6} Lack appealed the commission’s order to the trial court. On March 30, 2010, the trial court issued a judgment affirming the commission’s order. Lack now appeals that judgment to this court, and it assigns the following errors:

[1.] The court below erred when it found that the Division of Liquor Control was not required to meet the procedural requirements of R.C.119.09.
[2.] The court below erred by affirming the order of the Liquor Control Commission because the evidence presented to the Liquor Control Commission did not support a finding of substantial interference with public decency, sobriety, peace or good order of the neighborhood.

{¶ 7} Pursuant to R.C. 119.12, when a common pleas court reviews an order of an administrative agency, the court must consider the entire record to determine whether the agency’s order is supported by reliable, probative, and substantial evidence and is in accordance with law. To be “rehable,” evidence must be dependable and true within a reasonable probability. Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571, 589 N.E.2d 1303. To be “probative,” evidence must be relevant or, in other words, tend to prove the issue in question. Id. To be “substantial,” evidence must have some weight; it must have importance and value. Id.

{¶ 8} In reviewing the record for rehable, probative, and substantial evidence, the trial court “ ‘must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.’ ” AmCare, Inc. v. Ohio Dept. of Job & Family Servs., 161 Ohio App.3d 350, 2005-Ohio-2714, 830 N.E.2d 406, ¶ 9, quoting Lies v. Ohio Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207, 2 OBR 223, 441 N.E.2d 584. In doing so, the trial court must give due deference to the administrative resolution of evidentiary conflicts because the agency, as the fact-finder, is in the best position to observe the manner and demeanor of the witnesses. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 111, 17 O.O.3d 65, 407 N.E.2d 1265.

{¶ 9} Unlike a trial court, an appellate court may not review the evidence. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. An appellate court is limited to determining whether the trial court abused its discretion. Id. Absent such an abuse of discretion, an appellate court must affirm the trial court’s judgment, even if the appellate court would have arrived at a different conclusion from the trial court. Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264. When reviewing the trial court’s judgment as to whether an agency’s decision is [25]*25in accordance with law, an appellate court’s review is plenary. Spitznagel v. State Bd. of Edn., 126 Ohio St.3d 174, 2010-Ohio-2715, 931 N.E.2d 1061, ¶ 14.

{¶ 10} By its first assignment of error, Lack argues that because the division failed to follow the requirements of R.C. 119.09, the commission’s order is not in accordance with law. We disagree.

{¶ 11} R.C. 119.09 specifies how an agency must conduct an adjudication hearing required by R.C. 119.01 to 119.13, as well as what steps the agency must take after the hearing to decide the matter and inform the parties of its decision. R.C. 119.09 provides:

In any adjudication hearing required by sections 119.01 to 119.13 of the Revised Code, the agency may appoint a referee or examiner to conduct the hearing. * * * The referee or examiner shall submit to the agency a written report setting forth the referee’s or examiner’s findings of fact and conclusions of law and a recommendation of the action to be taken by the agency. A copy of such written report and recommendation of the referee or examiner shall within five days of the date of filing thereof, be served upon the party or the party’s attorney or other representative of record, by certified mail. * * * The recommendation of the referee or examiner may be approved, modified, or disapproved by the agency. * * *
After [the agency’s] order is entered on its journal, the agency shall serve by certified mail, return receipt requested, upon the party affected thereby, a certified copy of the order and a statement of the time and method by which an appeal may be perfected.

Lack contends that the division violated this statute by (1) failing to send Lack or its attorney a copy of the hearing examiner’s report and recommendation and (2) failing to mail Lack a certified copy of its order.

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Bluebook (online)
944 N.E.2d 746, 191 Ohio App. 3d 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dl-lack-corp-v-commission-ohioctapp-2010.