Opinion
No. 7175
Decided February 19, 1963.
Appeal — By Board of Liquor Control from Common Pleas Court — Authorized, when.
The Board of Liquor Control may appeal from a decision of a Court of Common Pleas which interprets a Regulation of such board and finds such Regulation and the enactment thereof to be an abuse of discretion and invalid.
APPEAL: Court of Appeals for Franklin County.
ON MOTIONS to dismiss and for oral argument.
Mr. Paul F. Ward, for appellee.
Mr. William B. Saxbe and Mr. Mark McElroy, attorneys general, Mr. Donald C. Freda and Mr. Richard H. Ferrell, for appellants.
Frank Zarachowicz, appellee herein and hereinafter called permit holder, has filed a motion to dismiss the appeal on behalf of the Board of Liquor Control, appellant herein, upon the ground that this court lacks jurisdiction to entertain the appeal because the appeal involved only questions of fact, and that under the provisions of Section 119.12, Revised Code, the agency is not authorized to appeal. The permit holder also moved for oral argument.
Regulation 61, Division A, of the Board of Liquor Control requires investigators of the Department of Liquor Control, who observe a violation, either of the law or regulations, upon completion of their investigation, to make themselves known either to the permit holder or the person in charge of the premises, to exhibit their credentials and to give to the permit holder or the person in charge a violation-notice specifying the alleged violations.
The same regulation, in division B, completely waives this requirement in cases of investigations which are "conducted at the express order of the Director."
The written order of the director, which authorized the investigation of the premises of Zarachowicz, was introduced in evidence. It was specific and detailed, and the record shows there was a full compliance therewith. However, the court below in effect interpreted Division B of Regulation 61 as being invalid and an abuse of discretion, and it is from that interpretation that the board has appealed in this case. The sole question, therefore, being one of interpretation of a regulation, the appeal is authorized, the motion is not well taken and must be overruled, and it is so ordered.
Motions overruled.
DUFFY, P. J., and DUFFEY, J., concur.