COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73271 TWO N, INC. : ACCELERATED DOCKET : Plaintiff-appellant : JOURNAL ENTRY : AND -vs- : OPINION : OHIO LIQUOR CONTROL : PER CURIAM COMMISSION : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CP-CV-330377 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: GARY W. DUBIN, ESQ. BETTY D. MONTGOMERY, ESQ. DUBIN, JOSEPH & SHAGRIN ATTORNEY GENERAL OF OHIO Suite 650 State Office Tower - 16th Fl. 75 Public Square 30 East Broad Street Cleveland, Ohio 44113 Columbus, Ohio 43266-0410 JAMES M. GUTHRIE, ESQ. ASST. ATTORNEY GENERAL 2323 West Fifth Avenue Columbus, Ohio 43266-0701 PER CURIAM: Two N, Inc., dba Convenient Food Mart 3112, appeals from the -2- judgment of the trial court that upheld the decision of the Ohio Liquor Control Commission ( OLCC ) to revoke its Class C-2, C-2X and D-6 liquor permits. For the reasons set forth below, we affirm. The record demonstrates that the Enforcement Division of the OLCC issued a violation notice against Two N, Inc. (hereafter referred to as the permit holder ), on January 25, 1996, charging the permit holder with selling beer to an underage person, furnishing beer to an underage person, and hindering or obstructing an inspection. The matter proceeded to a hearing before the Liquor Control Commission on November 19, 1996. At this time, the OLCC dismissed the charge of furnishing alcohol to an underage person and hindering or obstructing the inspection, and the permit holder denied the remaining charge of selling beer to an underage person and entered into a stipulation that the report of the OLCC enforcement agents would be admitted into evidence. In relevant part, this report provided: At approximately 8:15 p.m. agents J. Clark and P. Sheehan observed *** youthful appearing male *** later identified as Eric Rivera *** (H/M Age 18, 9/19/77, ***) exited his vehicle, entered the permit premises empty handed, and moved to the rear of the premises as to where the alcoholic beverages were kept. While still maintaining an unobstructed view of inside the premises, agents J. Clark and P. Sheehan observed E. Rivera place six (6) intact 16 oz. cans labeled St. Ides malt liquor on the checkout counter. An on duty female clerk later identified as Amai Benyamin *** activated the cash register, collected an undetermined amount of monies from E. Rivera, placed such monies into the cash register and returned an undisclosed amount of monies to E. Rivera as change from the transaction. After clerk A. Benyamin immediately placed the beer into a clear plastic bag, E. Rivera took possession of the bag containing the St. Ides beer and exited the premises. Note that at no time did -3- A. Benyamin request nor did E. Rivera produce/present proper identification for the purchase of the beer. Once outside, agents J. Clark and P. Sheehan approached and properly identified themselves to E. Rivera and requested proper identification for the purchase of the beer. E. Rivera informed agents J. Clark and P. Sheehan that he was only 18 years of age and produced an expired Ohio identification card bearing his name and photograph reflecting same. Agent P. Sheehan immediately con- fiscated, marked and secured the 6 intact cans labeled St. Ides malt liquor for evidence purposes. At this juncture, agent J. Clark and P. Sheehan along with E. Rivera entered the permit premises and properly identi- fied themselves to clerk A. Benyamin and an unidentified elder male who had earlier been observed operating the lottery machine. After being informed of the observed violation by agents J. Clark and P. Sheehan, the clerk A. Benyamin began chanting No, No, No, No, No , and displayed total disregard for the agents and their requests of producing proper identification. Note that it was apparent that both on duty clerks spoke little, or if any understand- able English and possibly understand even less. Agent J. Clark continued his attempts to verbally advise A. Benyamin or what was needed of her to prevent from possibly being taken into custody. During such attempts, A. Benyamin, the unidentified elder male clerk, and now arriving, distant family members began causing total chaos ***. A Cleveland Police Officer also appeared at the hearing and discussed the circumstances surrounding his arrest of the store clerk. Counsel for the permit holder explained that the clerk, who did not understand English, was briefly left alone when the agents entered the store and became confused and disoriented, causing the situation to escalate out of hand. It was further revealed that the clerk is still employed at the convenience store. No further evidence was offered to defend the charge of selling liquor to an underage person, but counsel for the permit holder explained that this matter was a first violation for the permit holder, and he asked that the OLCC impose a fine rather that revoke the liquor -4- permits. On January 24, 1997, the OLCC issued an order revoking the permit holder's liquor permits, effective at noon on February 14, 1997. On February 13, 1997, the permit holder filed a notice of appeal to the court of common pleas, pursuant to R.C. 119.12 and also filed a motion for a stay of the revocation order. The trial court granted the motion for a stay. Thereafter, on September 2, 1997, the trial court affirmed the decision of the OLCC. The permit holder appeals and assigns four errors for our review. The permit holder's first assignment of error states: THE ORDER OF THE OHIO LIQUOR CONTROL COMMISSION IS NOT SUPPORTED BY RELIABLE, SUBSTANTIVE AND PROBATIVE EVIDENCE. Herein, the permit holder complains that the revocation was made in response to and in consideration of the evidence going to the charge of hindering or obstructing the investigation, which had been dismissed by agreement of the parties. At the outset, we note that administrative agencies generally are not bound by the strict rules of evidence applied in court. Four Horsemen, Inc. v. Ohio Liquor Control Commission (September 16, 1997), Franklin App. No. 97 APE05-612, unreported. Cf. Orange City School District Board of Education v. Cuyahoga County Board of Revision(1996), 74 Ohio St.3d 415, 417. More significantly, there is no indication in the record that the OLCC relied on this evidence in deciding the charge of selling beer to an underage person or in deciding the penalty to impose. Accord Four Horsemen v. Ohio Liquor Control Commission, supra, unreported at 2. -5- Thus, turning to the issue of whether the decision of the OLCC is supported by reliable, probative and substantive evidence, we note that: (1) `Reliable' evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) `Probative evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. (3) `Substantial' evidence is evidence with some weight; it must have importance and value. Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571, 589 N.E.2d 1303, 1305. Kayla, Inc. v. Ohio Liquor Control Commission (1996), 79 Ohio Misc.2d 19, 25, quoting Our Place, Inc. v. Ohio Liquor Control Commission (1992), 63 Ohio St.3d 570, 571. Further, pursuant to R.C. 4301.25(A), the OLCC has authority to suspend or revoke a liquor licence for, inter alia, Violation of any of the applicable restrictions of R.C. Chapter 4303 or R.C. Chapter 4301. R.C. 4301.69 in turn provides that no person shall sell beer or intoxicating liquor to an underage person, or buy beer or intoxicating liquor for, or furnish it to, an underage person ***. R.C. 4301.69(H) defines an Underage person as a person under the age of twenty-one years. Our review of the record establishes that the permit holder stipulated that on January 26, 1996, the permit holder's employee made a beer sale to an eighteen-year-old male and did not ask for any identification. Thus, it is uncontested that a violation of R.C. 4301.69 occurred, and the statutory defense of R.C. 4301.639 was not shown. The record therefore establishes reliable, probative and substantial evidence supporting the decision of the -6- OLCC. Accord Kayla, Inc. v. Ohio Liquor Control Commission, supra, at 25; Willie's Joint Venture v. Ohio Liquor Control Commission (September 28, 1993), Franklin App No. 93AP-497, unreported. Indeed, the stipulation resolves all factual questions. See A.B. Jac, Inc. v. Liquor Commission (1972), 29 Ohio St.2d 139, 143; Rrawu, Inc. v. Liquor Control Commission (1976), 46 Ohio St.2d 436, 440. The permit holder's second assignment of error states: THE ORDER OF THE OHIO LIQUOR CONTROL COMMISSION IS NOT IN ACCORDANCE WITH LAW BECAUSE APPELLANT WAS DEPRIVED OF A FAIR HEARING IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION. Within this assignment of error, the permit holder complains that the hearing panel did not conduct a fair hearing because it permitted discussion of the charge of hindering or obstructing the investigation at the administrative hearing on the charge of a beer sale to an underage person. As we noted previously, however, the agency is not strictly bound to the rules of evidence, and there is no indication that the OLCC actually allowed the hindering or obstructing charge to influence its determination of the charge of an underage sale. Accord Four Horsemen, Inc. v. Ohio Liquor Control Commission, supra. We therefore reject this assignment of error. The permit holder's third assignment of error states: THE ORDER OF THE OHIO LIQUOR CONTROL COMMISSION IS NOT IN -7- ACCORDANCE WITH LAW DUE TO THE FACT THAT THE CONDUCT OF APPELLANT'S AGENT IS PROTECTED BY THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION. The permit holder next complains that its employee's speech, insofar as the charge of hindering and obstructing the investiga- tion is concerned, is constitutionally protected. Again, we note that the charge of hindering or obstructing the investigation was not actually before the OLCC and there is no evidence that this charge bears any relation to the charge for which the permit was revoked. We must therefore reject this assignment of error. The permit holder's fourth assignment of error states: THE PENALTY IMPOSED UPON APPELLANT WAS ARBITRARY, CAPRICIOUS AND UNDULY HARSH. The permit holder next complains that there is an absence of standards governing liquor permit revocations and that in this instance the extreme sanction was based upon evidence of a single sale to an underage person. As an initial matter, we note that this argument was not raised below and it is therefore precluded from review herein. FOE Aerie 0582 Twin City v. Liquor Control Commission (September 2, 1997), Franklin App. No. 97APE03-339, unreported. As to the question of the absence of standards concerning the precise conduct which would result in a revocation, R.C. 4301.25 and R.C. 4301.69 clearly indicate that revocation may result from an alcohol sale to an underage person. As to the harshness of this particular penalty in this instance, we note that there is no evidence in the record of disparate treatment of different permit -8- violators in the same general area. In any event, pursuant to the Supreme Court's pronouncements in Henry's Cafe, Inc. v. Board of Liquor Control (1959), 170 Ohio St. 233, paragraph three of the syllabus, The Court of Common Pleas has no authority to modify a penalty that the agency was authorized to and did impose, on the ground that the agency abused its discretion. Accord Four Horsemen, Inc. v. Ohio Liquor Control Commission, supra; McCartney Food Market, Inc. v. Liquor Control Commission (June 22, 1995), Franklin App. No. 94APE10-1576, unreported. Thus, because R.C. 4301.25(A) authorizes the commission to revoke any liquor permit for violations of R.C. Chapter 4301 and R.C. Chapter 4303, and R.C. 4301.69 provides that no person shall sell beer or intoxicating liquor to an underage person, or buy beer or intoxicating liquor for, or furnish it to, an underage person ***, the OLCC was in fact authorized to revoke the instant permit and we lack the authority to modify this penalty. We therefore reject the fourth assignment of error. Affirmed. -9- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, PRESIDING JUDGE JOHN T. PATTON, JUDGE KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .