Opinion
No. 75-874
Decided June 23, 1976.
Administrative procedure — Appeal — Liquor Control Commission — Suspension order — Reversal by Court of Common Pleas — Appeal to Court of Appeals — R.C. 119.12.
APPEAL from the Court of Appeals for Cuyahoga County.
Rrawu, Inc., appellee herein, was notified by the Department of Liquor Control, in two separate notifications, that hearings would be conducted before the Liquor Control Commission to determine whether its permit should be suspended or revoked for alleged violation of Regulation LCc-1-52 of the commission.
The part of Regulation LCc-1-52 relevant here provides:
"No permit holder, his agent, or employee shall knowingly or willfully allow in, upon or about his licensed premises improper conduct of any kind, type or character * * *."
Appellee was charged with the following violations:
"On June 10, 1972, your agent. Benny Douglas, and/or your agent John Toles, did knowingly and/or willfully allow in and upon the permit premises improper conduct, in that your agent, Benny Douglas and/or your agent, John Toles, did allow a female to dance with insufficient attire, to wit, pasties, which covered only the nipple or areola portion of her breast — in violation of LCc-1-52, a regulation of the Ohio Liquor Control Commission.
"On September 17, 1972, your agent, Robert McClellan and/or your agent Samath Taylor, did knowingly and/or willfully allow in and upon the permit premises, improper conduct, in that your agent, Robert McClellan, and/or your agent Samath Taylor, did allow a female to dance with insufficient attire, to wit, exposed breasts and/or pubic area and/or buttocks — in violation of LCc-1-52, a regulation of the Ohio Liquor Control Commission."
At the hearing on the first violation set forth above, it was stipulated "* * * between counsel for the permit holder and counsel for the department that on June 10, 1972, your agent, Benny Douglas, and/or your agent John Toles, did knowingly and/or willfully allow in and upon the permit premises improper conduct, in that your agent * * * did allow a female to dance with insufficient attire * * *."
At the hearing conducted on the second charged violation it was stipulated "* * *between counsel for the permit holder and counsel for the department that on September 17, 1972, your agent Robert McClellan and/or your agent Samath Taylor, did knowingly and/or willfully allow in and upon the permit premises improper conduct, in that your agent * * * did allow a female to dance with insufficient attire* * *."
The commission found the allegations of the Director of Liquor Control to be well taken with respect to both charges, ordered suspension of appellee's permit for 250 days in the first instance, and for 150 days in the other, and ordered the penalties to be imposed consecutively.
The orders of the commission were appealed by appellee to the Court of Common Pleas. That court reversed the orders of the commission, stating in its judgment entry that the "* * *order of the Liquor Control Commission is not supported by reliable, probative and substantial evidence, for which reason said order should be reversed."
An appeal was taken to the Court of Appeals by the commission, appellant herein. The Court of Appeals dismissed the appeal and sustained the judgment of the trial court.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Berkman, Gordon, Kancelbaum Levy, Mr. Bernard A. Berkman, Mr. Larry S. Gordon and Mr. Joshua J. Kancelbaum, for appellee.
Mr. William J. Brown, attorney general, Mr. James E. Uprichard, Jr., and Mr. James M. Guthrie, for appellant.
The question presented is whether the Liquor Control Commission is entitled to appeal the judgment of a trial court to the Court of Appeals under the provisions of R.C. 119.12, where a stipulation made at the hearing before the commission admitted violation of the regulation of the commission, and the trial court's judgment entry reversing the order of the commission is based only upon a finding that the "order of the Liquor Control Commission is not supported by reliable, probative and substantial evidence* * *."
R.C. 119.12 reads, in part:
"* * * The judgment of the court [Common Pleas] shall be final and conclusive unless reversed, vacated, or modified on appeal. Such appeals may be taken either by the party or the agency and shall proceed as in the case of appeals in civil actions as provided in Sections 2505.01 to 2505.45, inclusive, of the Revised Code. 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. * * *"
R.C. 119.12 was construed in Katz v. Dept. of Liquor Control (1957), 166 Ohio St. 229. The syllabus in Katz reads:
"Under the provisions of R.C. 119.12, as amended in 1953 (125 Ohio Laws, 488), an administrative agency may appeal from a judgment of the Court of Common Pleas, rendered on appeal from a decision of such agency, only upon questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency, but when such appeal is perfected the reviewing court has jurisdiction to 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."
In dismissing the appeal in the instant cause, the Court of Appeals concluded that the commission may not appeal from a judgment of the Court of Common Pleas when "* * * the court's journal entry merely recites that the decision of the Board of Liquor Control is not supported by reliable, probative and substantial evidence." The Katz case, supra, and A.B. Jac., Inc., v. Liquor Comm. (1972), 29 Ohio St.2d 139, are cited by the Court of Appeals.
The syllabus in A.B. Jac., Inc., v. Liquor Comm., supra, reads:
"1. The Ohio Liquor Control Commission has a right of appeal from a judgment of the Court of Common Pleas, where all the essential elements of the violation in question were stipulated at the hearing before the commission and where the Court of Common Pleas reverses the order of the Liquor Control Commission upon the basis of a question of law interpreting the application of a regulation of the commission.
"2. Where, in the interest of justice, it is essential for a reviewing court to ascertain the grounds upon which a judgment of a lower court is founded, the reviewing court must examine the entire journal entry and the proceedings."
In the A.B. Jac. case, the Court of Common Pleas, reversing suspension orders issued by the commission, stated in its journal entry, "* * * that the order of the Liquor Control Commission is not supported by reliable, probative, and substantial evidence and is not in accordance with law * * *." It was stated in the opinion of this court, at page 142, that such a finding by the trial court "standing alone" was "* * * not appealable because R.C. 119.12 does not authorize an appeal from the Court of Common Pleas solely upon issues of fact."
The A.B. Jac. case is similar to the instant cause in that there, at page 141, it appears that a stipulation was made which admitted all the elements of the particular charge, thus removing from question any argument as to the pertinent facts. That case differs from the instant cause in that the journal entry of the trial court, in A.B. Jac., contained references to "`contemporary community standards' in regard to the conduct stipulated in * * * [the] charges." Id. at page 142.
Concluding that the judgment of the trial court in A.B. Jac. was appealable to the Court of Appeals, this court reasoned as follows, at pages 142-143:
"Without expressing any opinion as to the relevancy of the `contemporary community standards' test to the cases at hand, we note that no questions of fact were in issue before the Court of Common Pleas. The entire journal entry, along with the proceedings, clearly indicates that the Court of Common Pleas reversed the commission's orders upon the basis of a question of law interpreting the application of Regulation LCc-1-52.
"* * *
"Appellant, in its appeal and brief to the Court of Appeals, specified that the appeal was on a question of law. Indeed, with all the facts having been stipulated, we must concur with the dissenting opinion of Judge Potter in the Court of Appeals, that the finding of the Court of Common Pleas `* * * had to involve the lower court's interpretation of both the Liquor Control Act and regulations of the Board of Liquor Control.'" (Emphasis added.)
In the instant cause, the trial court's judgment entry contains nothing which would indicate that its reversal of the commission was based upon "* * * a question of law interpreting the application of Regulation LCc-1-52." It is apparent, however, that with violation of the regulation "* * * having been stipulated * * * the finding of the Court of Common Pleas `* * * had to involve the lower court's interpretation of * * *'" the regulation of the commission.
Inasmuch as the finding of the Court of Common Pleas necessarily was based on "* * * a question of law interpreting the application of a regulation of the commission," the judgment of that court was appealable under the provisions of R.C. 119.12.
Therefore, the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.