Mentor Marinas, Inc. v. Board of Liquor Control

204 N.E.2d 404, 1 Ohio App. 2d 219, 30 Ohio Op. 2d 252, 1964 Ohio App. LEXIS 541

• Court: Ohio Court of Appeals
• Decided: February 25, 1964
• Docket: 7342
• Status: Published

Opinions

Dueeey, J.

This is an appeal by the Board of Liquor Control from a judgment of the Common Pleas Court of Franklin County. The Director of the Department of Liquor Control denied appellee’s application for a D-5 permit. The specific grounds of denial stated in the order are:

“1. Subject proposed location is an unimproved lot, occupied by two mobile homes;

“2. Subject applicant does not operate any type of business at the proposed location.

‘ ‘ In connection with this finding, it is noted that there is at least one other person next in priority to this applicant awaiting this same opening.

“Accordingly, application H-40634 is hereby refused and rejected.”

Upon review by the board, which then had four members, the vote was evenly divided. Under Regulation No. 65, the lack of a majority vote resulted in the affirmance of a departmental order.

The applicant, appellee herein, then appealed to the Common Pleas Court under Section 119.12, Revised Code. The journal entry of the trial court states:

“This cause came on to be heard upon an appeal of the appellant from the order of the Board of Liquor Control. The court finds that the Board of Liquor Control is not supported by reliable, probative evidence and is not in accordance -with law.

“It is, therefore, ordered, adjudged and decreed that the finding of the Board of Liquor Control is, therefore, reversed and the appeal of the appellant for the issuance of a new D-5 permit is allowed and such permit shall be issued to the appellant forthwith.”

The agency then appealed to this court. A motion to dismiss was filed by appellee on the ground that the order of the Common Pleas Court was not an appealable order and that this court lacked jurisdiction to review. That preliminary motion was overruled, with one judge dissenting.

The assignments of error filed by the agency state:

“1. The Court of Common Pleas erred in finding that there was no credible, substantial and probative evidence to support the conclusions reached by the department as the basis for refusing the application for new D-5 permit and reversed the order of the Board of Liquor Control in refusing the application of the appellant-appellee herein.

“2. Other errors apparent in the record.”

This case presents again the troublesome problem of the right of an agency to appeal to the Court of Appeals under Section 119.12, Revised Code, and of this court’s jurisdiction to entertain such an appeal.

The right of a state agency to appeal and the authority of this court to entertain such an appeal both depend entirely upon statutory law. Corn v. Board of Liquor Control (1953), 160 Ohio St. 9; Miller v. Bureau of Unemployment Compensation (1954), 160 Ohio St. 561. In those cases it was held that no such right of appeal was then granted by Chapter 119 of the Revised Code, and the Court of Appeals lacked jurisdiction to review. Shortly after the Corn case, the Legislature amended Section 119.12, Revised Code, to provide a limited right to appeal. 125 Ohio Laws 488, effective October 21,1953. As presently enacted, the pertinent portion of the statute provides:

“* * * Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction, or interpretation of statutes and rules and regulations of the agency and in such appeal the court may also review and- determine the correctness of the judgment of the Court of Common Pleas that the order of the agency is not supported by any reliable, probative, and substantial evidence in the entire record. * * *” (Emphasis added.)

It is apparent that under this statute it is not enough that there be a final order, nor is it enough that the appeal be on “questions of law” as' is true for the ordinary litigant. An appeal on questions of law is defined in Chapter 2505, Revised Code, and that definition rests on the historical development of the writ of error as well as the constitutional concept of judicial “review.” Whatever the reason, the Legislature in this statute has specifically limited agencies to a narrower right of appeal. The statute requires a final order which raises a question of law, and that question must relate “to the constitutionality, construction, or interpretation of statutes and rules and regulations * * *.” It is only when “such” an appeal has been established that this court may then “also” consider and review the “correctness of the judgment,” i. e., assume jurisdiction to review other questions of law that may be presented.

This interpretation of the statute is firmly established. In Katz v. Department of Liquor Control of Ohio (1957), 166 Ohio St. 229, a judgment of the Common Pleas Court had found that a board order was not supported by reliable, probative, and substantial evidence. The Supreme Court affirmed the decision of this court that such an order was not appealable under the statute. This court had sustained a motion to dismiss the appeal, The opinion of this court states that the language in the statute makes it a condition precedent to the review that the appeal involve a question of constitutionality or interpretation (76 Ohio Law Abs. 129). Judge Hornbeck wrote a persuasive dissent, but in view of the Supreme Court affirmance his position is no longer arguable. Similar decisions by this court have been made in Mangold v. Board of Liquor Control (1957), 77 Ohio Law Abs. 457; Swallow Bar, Inc., v. Board of Liquor Control (1960), 111 Ohio App. 279; DeSarro v. Board of Liquor Control (1962), 116 Ohio App. 275; Trianon Bowling Lanes, Inc., v. Department of Liquor Control (1962), 118 Ohio App. 255; Cranwood Steak House, Inc., v. Board of Liquor Control (1961), 115 Ohio App. 463.

Several points are clear. Questions of law as to the evi dentiary basis of a judgment or which involve an abuse of discretion by the court do not create the right to appeal in an agency. Under the statute it necessarily follows that a judgment of the Common Pleas Court could be incorrect and yet not be subject to review on an appeal by the agency. A result which is not consistent on the evidence with the applicable statutes or regulations is an erroneous or incorrect judgment. However, that incorrect result may arise not from an interpretation of a statute or a regulation but from an abuse of discretion, an improper determination of the facts, or, simply, a failure to realize what statute or regulation was actually applicable. The latter situation not infrequently arises when the attorneys themselves have not called attention to the applicable statute or regulation.

The recurring problem is to attempt to arrive at some basis for, and consistency in, determining when “constitutionality or interpretation” has been sufficiently presented to confer jurisdiction of the appeal.

Of course, every administrative agency has been created, and is controlled by statutes. Every agency has regulations. It is also obvious that any judicial decision involves the application of law to facts, leading to a result. Thus, in a broad sense, every administrative agency case can be said to involve the interpretation of a statute or regulation. However, such a view would convert this statute into an intellectual mulberry bush. The effect would be exactly the same as the right to appeal on questions of law — a result rejected by the General Assembly and by the decision in Katz.

It would seem equally clear that the mere assignment of an error relating to constitutionality or interpretation is not enough to confer jurisdiction. There must be a genuine question presented. Nor is it enough that the trial court could have decided the case on such a ground if in fact it did not do so.

In our opinion, if the statute and the Katz case are to be given definite content, it is inescapable that a mere application of the law to facts is not an “interpretation” within the meaning of the statute. It is our conclusion that within the meaning of Section 119.12, Revised Code, an “interpretation” refers to a specific finding by the trial court as to the meaning or application of a particular statute or regulation. Compare Wolf Res taurant, Inc., v. Board of Liquor Control, No. 7083, decided July 10, 1962.

Where the journal entry itself recites a specific interpretation of a statute or regulation, jurisdiction is clear. See De-Sarro, supra. Similarly, there is no problem where the journal entry specifically incorporates the opinion and makes it a part of the entry and such opinion shows a specific interpretation. A more difficult question arises where the entry does not reflect a jurisdictional question and the opinion does, but the opinion has not been incorporated into the entry. The case of Andrews v. Board of Liquor Control (1955), 164 Ohio St. 275, indicates that where the entry is ambiguous the opinion may be considered. However, in the present case it is dubious that the entry can honestly be said to be ambiguous. In any event, the opinion here does not even mention any specific statute or regulation. Thus, in our opinion, there is no specific determination involving the interpretation of any particular statute or regulation in the court’s entry or in its opinion.

The rather extensive experience of this court with liquor department litigation makes many deficiencies in the present case apparent to us. For example, it is clear that the requirement under Regulation No. 12 of a complete investigation has not been met. On the evidence there has been no inspection to determine compliance with the sanitary requirements of Regulation No. 17. It would thus appear that the application should have received further processing.

Despite these deficiencies in the record, Section 119.12, Revised Code, prevents a review and reversal of a judgment, even though it might be flagrantly incorrect, unless there exists a jurisdictional question.

The present case illustrates one of the many metaphysical concepts which have crept into the Ohio administrative appeal law. They absorb large quantities of the judiciary’s time. It is a criterion of failure in the legal system when the courts must spend so much time and effort on such questions rather than performing their true function — -the resolving of controversies on their merits.

The appeal is dismissed for lack of jurisdiction.

Appeal dismissed.

Tboop, J., concurs.