Summary
In Solomon v. Liquor Control Commission (1965), 4 Ohio St.2d 31, 212 N.E.2d 595, cert. denied (1966), 384 U.S. 928, 16 L.Ed.2d 531, the Ohio Supreme Court upheld the revocation of a liquor license based on the finding that certain bottles seized in a warrantless search were diluted. Defendant there, as here, argued that the evidence was illegally obtained and should be inadmissible under the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684.
Summary of this case from Daley v. BerzanskisOpinion
No. 39213
Decided December 1, 1965.
Liquor Control Act — Permit required to dispense alcoholic beverages — Holder of permit subject to provisions of act — Powers and duties of Department of Liquor Control — Delegation of powers — Sale of diluted liquor prohibited — Permit holder subject to inspection by department — Removal of bottles of intoxicants from premises for inspection — Possession of diluted liquor or refilled containers — Scienter or guilty knowledge not required — Evidence — Contents of bottles analyzed admissible.
1. One engaging in the dispensing and sale of alcoholic beverages is required by statute to secure a permit from the state to carry on such business and is subject to the provisions of the Liquor Control Act in the conduct thereof.
2. Section 4301.10, Revised Code, sets forth the powers and duties of the Department of Liquor Control and provides, inter alia, that it shall control the traffic in beer and intoxicating liquor, including the sale thereof, enforce the laws pertaining thereto, inspect upon demand the place of business of any permit holder, delegate to its agents any powers of investigation which the department itself possesses and exercise all other powers expressly or by necessary implication conferred on it by the laws governing the dispensing and sale of alcoholic beverages.
3. Section 4301.68, Revised Code, a measure designed to protect the purchasers and consumers of alcoholic beverages, expressly prohibits any person from selling, offering for sale or possessing intoxicating liquor in any original container which has been diluted, or which container has been refilled or partly refilled.
4. One who applies for and is issued a permit to sell intoxicating beverages thereby subjects himself to the provisions of the Liquor Control Act and assents to the reasonably exercised inspection and examination by the agents of the Department of Liquor Control of his permit premises, including bottled intoxicants which he possesses and offers for sale thereon, and a removal of bottles of intoxicants from the permit premises by such agents for examination and testing in a state laboratory to determine whether they comply with lawful requirements is authorized by the provisions of the Liquor Control Act.
5. Section 4301.68, Revised Code, in its wording does not require scienter or guilty knowledge on the part of one who is affected thereby.
6. Where a permit holder is charged with a violation of Section 4301.68, Revised Code, the contents of the bottles of intoxicants lawfully taken from his premises by agent of the Department of Liquor Control, which, when analyzed and laboratory tested by a state chemist, are found to be deficient and violative of the provisions of such statute, are admissible in evidence at the hearing provided by statute before the Liquor Control Commission, wherein the matter for determination is the suspension or revocation of the permit.
APPEAL from the Court of Appeals for Franklin County.
This matter had its origin before the Ohio Liquor Control Commission when appellee herein, Betty Solomon, operating "Brooksy's Bar" in the city of Cleveland under a permit, was charged with a violation of Section 4301.68, Revised Code, in the following language:
"On August 14, 1961, you did possess in and upon the permit premises, intoxicating liquor in an original container which had been diluted, refilled, or partially refilled — in violation of the provisions of the Liquor Control Act."
The applicable statute itself, a part of the Liquor Control Act, reads:
"No person shall sell, offer for sale, or possess intoxicating liquor in any original container which has been diluted, refilled, or partly refilled."
Appellee denied the charge.
At the hearing before the commission, it was stipulated and agreed by opposing counsel that, if two designated agents of the Department of Liquor Control were called to testify, they would state that on Monday, August 14, 1961, they entered appellee's permit premises and informed her that they intended to remove several bottles of spirituous liquor (whiskey) from the back bar for analysis by the state chemist to determine whether they had possibly been refilled.
Several bottles of liquor were taken by the agents (apparently without objection or protest) and sealed on the premises, and a receipt therefor, signed by the two agents and by the appellee, was given to appellee. These bottles of whiskey were delivered by the agents on the same day to the Cleveland district office of the Department of Liquor Control, where, later, a state chemist picked them up, still sealed, and took them to Columbus for analysis.
In the following December, the same two agents returned to appellee's place of business and delivered to her a citation, charging her with a refilling of the appropriated bottles of whiskey.
Before the hearing, counsel for appellee filed a written motion with the commission to the effect that no evidence be introduced at the hearing, and that the whiskey bottles and their contents be excluded for the reason that they were illegally obtained under the holding of the Supreme Court of the United States in the case of Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684.
This motion was overruled, as was a similar motion made at the hearing prior to the taking of evidence.
Called as a witness by appellant was a state chemist, whose qualifications were admitted. He stated that upon chemical analysis all the appropriated whiskey, except one bottle, showed an appreciably lower proof — alcoholic strength — than that appearing on the bottle labels. He testified further that in his opinion, based on experience, the reduced proof was attributable to refilling the bottles with lower-proof whiskey or by diluting the contents with water. Such testimony was not objected to, and appellee introduced no evidence.
The commission sustained the charges and issued an order revoking appellee's permit.
An appeal to the Court of Common Pleas of Franklin County resulted in an affirmance of the commission's order, but, on further appeal to the Court of Appeals, that court by a two-to-one vote reversed the judgment of the lower court, vacated the order of the commission and returned the cause to the commission for further proceedings "according to law and the decision of this court."
In its judgment entry, the Court of Appeals said in part:
"The court * * * finds that, because of a complete lack of statutory authority for the seizure and confiscation of the bottles of intoxicating liquor * * * the admission of those exhibits in evidence at the hearing before the Liquor Control Commission was error and, consequently, the order of said commission is not in accordance with law."
Allowance of the appellant's motion to require the Court of Appeals to certify the record to this court places the cause here for review and decision.
Mr. Leonard J. Stern, Mr. Isadore Topper, Mr. N. Victor Goodman and Mr. Fred W. Garmone, for appellee.
Mr. William B. Saxbe, attorney general, and Mr. James E. Rattan, for appellant.
In approaching a decision in this case, it is of importance to consider the nature of the liquor business, particularly as it here relates to the dispensing and sale of intoxicating liquor at retail by the glass. Because of the harmful potentialities incident to the conduct of such business, those engaging therein must obtain a permit from the state and are thereafter subject to strict regulation by statute and by rules and regulations adopted and promulgated pursuant to statutory authority by the Department of Liquor Control, the regulating and supervising agency created by the state to oversee and police, as it were, the liquor business. One who applies for and is issued a permit to sell alcoholic beverages thereby assents to the reasonable and lawful conditions imposed by statute and rule.
Section 4301.10, Revised Code, sets forth the powers and duties of the Department of Liquor Control. As pertinent here, that section provides:
"(A) The Department of Liquor Control shall:
"(1) Control the traffic in beer and intoxicating liquor in this state, including the manufacture, importation, and sale thereof;
"* * *
"(4) Enforce Chapters 4301. and 4303. of the Revised Code * * *;
"* * *
"(6) Inspect, upon demand, the books, accounts, records, memorandums, and place of business of any person subject to Chapters 4301. and 4303. of the Revised Code * * *;
"(7) Delegate to any of its agents or employees any power of investigation which the department possesses * * *;
"(8) Exercise all other powers expressly or by necessary implication conferred upon the department by Chapters 4301. and 4303. of the Revised Code * * *." (Emphasis supplied.)
In the opinion of a majority of this court, the terms of the statute quoted above are sufficiently broad and comprehensive to allow agents of the department to enter the business premises of a permit holder to determine whether in the operation of his business he is complying with the laws and regulations governing that business. A permit holder is not without remedy in the courts for unauthorized abuses perpetrated by agents of the department.
As we have already noted, Section 4301.68, Revised Code, a statute designed to protect the customer and found in the Liquor Control Act, expressly prohibits any person from selling, offering for sale or possessing "intoxicating liquor in any original container which has been diluted, refilled, or partly refilled." Such provision is plain, unambiguous and explicit and cannot be misunderstood. The statute is not of the kind where scienter or guilty knowledge must be alleged and proved. See Andrews v. Board of Liquor Control, 164 Ohio St. 275, 278, 131 N.E.2d 390, 392. Compare State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313, first paragraph of the syllabus; State v. Healy, 156 Ohio St. 229, 102 N.E.2d 233; State v. Lisbon Sales Book Co., 176 Ohio St. 482, 200 N.E.2d 590; and 21 American Jurisprudence 2d 169, Section 89 et seq.
Where a permit holder is suspected of a violation of Section 4301.68, Revised Code, laboratory analysis of the contents of labeled bottles of spirituous liquors is the most accurate means to determine whether such contents have been diluted or tampered with in violation of the Liquor Control Act, and the power given the Department of Liquor Control to "inspect" a permit holder's premises carries with it the power to effectively examine his bottled intoxicants within reasonable limits to discover their quality and strength. Ordinarily, the honest permit holder will not be disturbed and has nothing to fear; others must abide the possible consequences of their unlawful conduct.
Our conclusion is that the appropriation of appellee's bottles of whiskey and the analysis of their contents were authorized under the Liquor Control Act, and that by applying for and accepting a permit to sell intoxicating beverages appellee made herself amenable to the provisions of that law and thereby consented to the inspection of the premises and the appropriation for analysis of any intoxicating liquor suspected to be in violation of the liquor control laws. We think it can fairly be said that appellee's appropriated bottled whiskey intended for sale to bar patrons, which upon analysis showed a proof below that listed on the bottle labels, came within the classification of contraband property under the prohibitory terms of Section 4301.68, Revised Code. It follows that such bottles of whiskey were properly admitted in evidence at the hearing before the Liquor Control Commission.
Because of the position taken, it becomes unnecessary to consider and discuss the question of whether the exclusionary rule announced by the Supreme Court of the United States in the criminal case of Mapp v. Ohio, supra, and kindred cases is applicable to hearings before a public administrative agency like the Liquor Control Commission in instances where only the suspension or revocation of a liquor permit is involved. See 1 Ohio Jurisprudence 2d 490, 491, Sections 90 and 91; 2 American Jurisprudence 2d 187, Section 380; 42 American Jurisprudence 445, 446, Section 114; 73 Corpus Juris Secundum 445, Public Administrative Bodies and Procedure, Section 125 et seq.
This court has held that a permit to sell intoxicating beverages is not property but a mere license which may be suspended or revoked for good cause shown. State, ex rel. Zugravu, v. O'Brien, 130 Ohio St. 23, 196 N.E. 664; and Abraham v. Fioramonte, 158 Ohio St. 213, 107 N.E.2d 321, 33 A.L.R. 2d 1267.
The evidence introduced before the commission was relevant and pertinent to the charge against the appellee and was sufficient to support the commission's determination that appellee had committed an offense interdicted by statute and to support the affirmance of the commission's order by the Court of Common Pleas.
Accordingly, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.
Judgment reversed.
MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.
TAFT, C.J., concurs in the syllabus except for the portion of paragraph four after the second comma therein.