Abdoney v. Bd. of Liquor Control

Full title: ABDONEY ET AL., D. B. A. SARATOGA CLUB, APPELLANTS v. BOARD OF LIQUOR…

Court: Court of Appeals of Ohio

Date published: Oct 20, 1955

135 N.E.2d 775 (Ohio Ct. App. 1955)

135 N.E.2d 775

72 Ohio Law Abs. 513

Opinion

No. 5312

Decided October 20, 1955.

Liquor Control Act — Sales to intoxicated person prohibited — Section 4301.22, Revised Code — Element of offense — "Sales" construed — Evidence — Prima facie case made, when — Degree of proof to establish violation.

1. A material element to a charge against a liquor permit holder that such permit holder made sales of intoxicating liquor to an intoxicated person in violation of Section 4301.22, Revised Code, is that the sale on which the charge is based was made to the intoxicated person.

2. In a charge against a liquor permit holder for a violation of Section 4301.22, Revised Code, which, inter alia, prohibits "sales" of intoxicating liquor to an intoxicated person, the word, "sales," is to be given its usual statutory and commonly accepted legal definition, and not that set forth in Section 4301.01 (2), Revised Code.

3. Where it appears that a person, seated alone at a bar, has a drink of intoxicating liquor immediately in front of him, which he consumes, a prima facie case is made that the liquor was sold to him.

4. The proof required to establish a violation of a statute under the Liquor Control Act is less than in a criminal prosecution; but the elements constituting the offense are the same, and they must be established.

APPEAL: Court of Appeals for Franklin County.

Messrs. DiSalle, Green Haddad, and Mr. Ned W. Thomas, for appellants.

Mr. C. William O'Neill, attorney general, and Mr. Kiehner Johnson, for appellee.

HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control which affirmed an order of the Department of Liquor Control suspending on appeal the permit of appellant for violation of a provision of the Liquor Control Act. The charge is based upon a violation of Section 4301.22, Revised Code (formerly Section 6064-22, General Code), which provides:

"(B) No sales shall be made to an intoxicated person."

The charge was that, "On September 11, 1954, the permittee or his agent or employee did sell on the permit premises intoxicating liquor, to wit, whiskey and mixed drinks, containing whiskey to Edwin Frost, who was then and there in an intoxicated condition."

There are two transactions involved in the consideration of the charge. Frost, the person to whom it is charged the liquor was sold, was in the place of business of the permittee and seated at the bar when the investigators of the board entered the permit premises. The facts as developed by the testimony on behalf of the department are not disputed, as the permittee did not take the stand. From these facts we hold that the board had the right to draw the following conclusions: That Frost at all times while under observation of the investigators and before taking the first drink was intoxicated; that while in that state, he was served with one drink of intoxicating liquor, which he himself had ordered; and that he was served with a second drink of intoxicating liquor which was ordered by another for the bar, that is to say, for all persons who were at the bar at that time. When this liquor was ordered and when placed before him, Frost was asleep. He did not order the second drink, nor did he consume it.

As to the question whether the providing of the first drink to Frost was a violation of the statute, Inspector Peden testified as follows:

"He (Frost) was talking to a man on his right, loudly, waving his arm. He had a drink when we walked in there, a mixed drink, and he ordered one drink. I don't know if he paid for it or not, but when we ordered our drink, this man served him a drink and the man next to him." (Emphasis ours.)

The liquor served in both drinks was shown to be intoxicating.

It appears upon the above-quoted testimony of Inspector Peden that the first drink which he saw Frost consume was ordered by him and, therefore, sold to him. However, whether he did or did not specifically order the drink, it is manifest from all the testimony that it was served to him while he was seated at the bar. Does this constitute sufficient proof of a sale to him? We believe the facts and the presumption attending make prima facie proof of a sale to an intoxicated person, which proof it was incumbent upon the permittee to meet if he desired to rebut it.

Presumptions conform to the commonly accepted experiences of mankind and the inferences which reasonable men would draw from such experiences. It is common knowledge that places where liquor is sold to the public under a permit from the Department of Liquor Control are operated for profit. Liquor is not given away in these establishments. To do so is contrary to common experience and is also unlawful by statute. But, if it is to be claimed that the liquor was given away or sold to some person other than Frost, it would be incumbent upon the permittee, upon the state of the proof, to establish it. When, then, it appears that Frost, seated alone at the bar, had a drink of intoxicating liquor immediately in front of him, which he consumed, a prima facie case is made that the liquor was sold to him. Shranko v. Board of Liquor Control, 72 Ohio Law Abs. 103.

In construing the term, "sale," we adopt the usual statutory and commonly accepted legal definition and not that set forth in Section 4301.01 (2), Revised Code, a part of the Liquor Control Act, which by its terms does not control in this case.

We find insufficient proof of the charge as to a sale to Frost of the second drink of liquor. It is a material element under the statute, Section 4301.22, Revised Code, and the charge against appellant, that the sale was made to Frost, the intoxicated person. The sale was made to the individual who bought the drinks for the bar.

Former Section 13198, General Code, provided that it was an offense to buy intoxicating liquor for, or sell or furnish it to, an intoxicated person. Would there be any doubt that under the facts in this case the buyer of the second drink could have been prosecuted under the foregoing statute for buying intoxicating liquor for Frost? A statute in force when the charge was preferred against appellant, Section 4301.69, Revised Code, prohibits the furnishing of intoxicating liquor to a minor, but does not include an intoxicated person. However, it could be made the subject of a rule by the Board of Liquor Control.

Although the proof requisite to establish a violation of a statute under the Liquor Control Act is less than in a criminal prosecution, the elements constituting the offense are the same, and they must be established. This is true in all cases, but especially so by reason of the nature of the charge here under consideration. We express no final opinion upon the application of Section 4303.37, Revised Code, but call attention to the fact that it provides:

"No person shall violate Sections 4303.01 to 4303.37, inclusive, of the Revised Code, for which no penalty is provided. Whoever is convicted of a violation of such sections shall forfeit any permit granted to him by the Department of Liquor Control."

The section here involved is Section 4301.22, Revised Code.

The order of the board was supported by reliable, probative and substantial evidence, and the Common Pleas Court was correct in so holding. We recognize that the Common Pleas judge upon review in that court was of the opinion that there was no proof of violation of the statute as to the first drink served to Frost, but that the proof was sufficient as to the second. We reach the same ultimate conclusion but upon a different theory than the Common Pleas Court Judge.

The judgment is affirmed.

Judgment affirmed.

MILLER, P. J., and FESS, J., concur.

FESS, J., of the Sixth Appellate District, sitting by designation in the Second Appellate District.