OHIO COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74449 JAFFAL FOOD MARKET, INC. : ACCELERATED DOCKET : Appellant : JOURNAL ENTRY : -vs- : AND : LIQUOR CONTROL COMMISSION : OPINION : Appellee : : PER CURIAM Date of Announcement of Decision: OCTOBER 1, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 342280 Judgment: Affirmed Date of Journalization: Appearances: For Appellant: STANLEY L. KAMMER, ESQ. Standard Bldg., #1208 1370 Ontario Street Cleveland, Ohio 44113 MICHAEL D. BAKER, ESQ. 75 Public Square Bldg. Suite 650 Cleveland, Ohio 44113-2001 For Appellee: BETTY D. MONTGOMERY Attorney General of Ohio JAMES M. GUTHRIE, Asst. Attorney General 30 East Broad Street 26th Floor Columbus, Ohio 43215 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Appellant Jaffal Food Market, Inc. appeals from the decision of the trial court affirming the order of the Ohio Liquor Control Commission revoking the appellant's Class C-1-2 liquor permit for sale of beer to an underage customer. In a letter to the Commission, appellant admitted the offense but claims that the Commission was without authority to act without a quorum of its three members. We find no error and affirm. On or about August 25, 1997, appellant was notified that a hearing would be held before the Commission regarding sale of beer to an underage person in violation of R.C. 4301.69. By letter dated September 11, 1997, appellant's counsel advised the Commission he would like to submit his case in writing. He indicated that an admission plea to violation 1 (selling beer to an underage person) was being entered and asked for dismissal of the second violation (furnishing beer to an underage person). At the hearing, counsel's letter was submitted to the Commission along with the written report of the police officers which supplied uncontested evidence of the offense. Additionally, the second violation was dismissed in exchange for the written admission plea to the illegal sale to the underage person. On September 23, 1997, this matter was called for hearing before the Commission. After reviewing the written admission plea of the appellant along with the case report, the Commission issued -3- an order under Case No. 806-97, dated October 3, 1997, wherein they found a violation of R.C. 4301.69 and ordered the liquor license revoked. This order was signed by all the Commission members: Wallace E. Edwards (Chairman), Alexandria J. Boone (Vice-Chairman) and John R. Hall (Member). On October 22, 1997, the appellant appealed this order to the Common Pleas Court. After submission of briefs by both parties, the Common Pleas Court affirmed the Commission's order on April 10, 1998. Subsequently, appellant filed its timely appeal to this Court. Appellant's sole assignment of error states: I. THE COURT OF COMMON PLEAS ERRED TO THE PREJUDICE OF APPELLANT IN AFFIRMING A DECISION OF THE LIQUOR CONTROL COMMISSION WHICH WAS NOT IN ACCORDANCE WITH LAW. The Common Pleas Court, sitting as an appellate court under R.C. 119.12, affirmed the Commission's order as being supported by appellant's admission in an administrative plea bargain and as being in accordance with law. The Supreme Court recently set forth the scope of the trial court's review as follows in VFW Post 8586 v. Liquor Control Comm. (1998), 83 Ohio St.3d 79, 81-82: In reviewing the commission's order pursuant to an R.C. 119.12 appeal, a common pleas court is required to affirm if the commission's order is supported by reliable, probative, and substantial evidence and is in accordance with law. In connection with this standard of review, this court has stated that an agency's findings of fact are presumed to be correct and must be deferred to by a reviewing court unless that court determines that the agency's findings are internally inconsistent,impeached by evidence of a prior inconsistent statement, rest on improper -4- inferences, or are otherwise unsupportable. Ohio Historical Soc. v. State Emp. Relations Bd.(1993), 66 Ohio St.3d 466, 471, 613 N.E.2d 591, 595. With respect to purely legal questions, however, the court is to exercise independent judgment. Id. at 471, 613 N.E.2d at 595-596. Under this standard, the trial court is required to do a limited weighing of the evidence to determine whether or not the decision of the Commission is supported by substantial, reliable and probative evidence. However, our review of the trial court's decision is much more limited. This Court's review was addressed by the Ohio Supreme Court in Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, where the Court stated: In reviewing an order of an administrative agency, an appellate court's role is more limited than that of a trial court reviewing the same order. It is incumbent on the trial court to examine the evidence. Such is not the charge of the appellate court. The appellate court is to determine only if the trial court has abused its discretion. An abuse of discretion *** implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. State, ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster (1986), 22 Ohio St.3d 191, 193, 22 OBR 275, 277, 489 N.E.2d 288, 290. Absent an abuse of discretion on the part of the trial court, a court of appeals must affirm the trial court's judgment. See Rohde v. Farmer (1970), 23 Ohio St.2d 82, 52 O.O.2d 376, 262 N.E.2d 685. Id. at 260-261. Based on this authority, the trial court must examine the record to determine if there was some reliable, probative and substantial evidence present to support the Commission's order. If such evidence is present and absent an abuse of discretion, the -5- appellate court may not substitute its judgment for that of the Commission. The present appeal involves an administrative plea bargain agreement whereby one charge was dismissed in exchange for an admission plea to the other charge. Furthermore, the liquor investigator's report clearly showed that appellant's employee sold beer to a seventeen year old minor without requesting any identification whatsoever, in violation of R.C. 4301.69. This constitutes reliable, probative and substantial evidence to support the Commission's order. The Supreme Court has specifically upheld admission pleas before the Commission without any necessity for additional evidence. In Department of Liquor Control v. Santucci (1969), 17 Ohio St.2d 69, the court stated: When appellee admitted before the Commission the truth of the charges against him, it was equivalent to testimony on his part that those charges were correct, and accurately stated his wrongful and unlawful conduct. To hold that any additional testimony or evidence was necessary to support the charges would seem an unreasonable and unnecessary requirement. * * * The underlying principle of an appeal to the Court of Common Pleas under Section 119.12, Revised Code, from an adverse order of the Liquor Control Commission is for that court to determine whether the rights of the permit holder have been observed and protected and whether his wrongdoing has been sufficiently established. When the Court of Common Pleas found that, upon appellee's admission of guilt, the orders against him were supported by reliable, probative and -6- substantial evidence, it acted within the spirit and intent of the statute. Id. at 72-73. With the admission plea entered, the Commission's only remaining duty was to impose a penalty for such conduct. We find that the lower court's ruling which upheld the Commission's judgment of a violation did not constitute an abuse of discretion. Appellant asserts that the Commission is a creature of statute and has only the powers conferred by statute. The appellee would also assert that the Commission has only the express and implied powers as granted by the Legislature. R.C. 4301.04 sets forth the Commission's powers. This section states in pertinent part: The liquor control commission has the following powers which it may exercise by the vote of a majority of the commissioners: (A) To suspend, revoke, and cancel permits. A majority of the commissioners constitutes a quorum for the transaction of any business, for the performance of any duty, or for the exercise of any power of the commission ***. * * * (G) For the purpose of any hearing *** the liquor control commission or any member thereof *** may administer oaths, take depositions, issue subpoenas, compel the attendance of witnesses and the production of *** testimony. It is evident from this statutory language that the Commission has the authority to suspend, revoke, and cancel permits. This exercise of its authority must be done by a majority of the -7- commissioners. It is also evident from this language that any member of the Commission may conduct a hearing and take testimony. Although Chairman Edwards conducted a hearing, it was not an adversarial hearing. Instead, this was a hearing on an uncontested admission plea with no witnesses and the only exhibits were a letter from appellant's attorney confirming the plea and the liquor agent's report. As discussed above, any member of the Commission may conduct a hearing. However, any order must be decided and signed by a majority of the Commission members in order for it to be a viable order. The chairman's only action at this hearing was to take possession of the appellant's attorney's plea letter and the liquor agent's report. These two documents were reviewed by Chairman Edwards and the other two commissioners prior to entering their decisions and each signing the order revoking the license. Since all three commissioners signed this order of license revocation, it is clear that this decision was made by a majority of the commissioners, thereby making it a properly signed and issued order. Appellant contends that the Commission's order of a license revocation is arbitrary, capricious, and unduly harsh. However, the Ohio Supreme Court has repeatedly held that if the violation is supported by an admission plea or by reliable, probative and substantial evidence, a reviewing court has no authority to modify any license suspension or revocation imposed by the Commission. -8- In Department of Liquor Control v. Santucci, supra, at 72, the Supreme Court stated: Where in a case such as this a permit holder admits his violation of the law and *** presents no evidence in mitigation of the penalty or otherwise, it is not incumbent upon the commission which has the record before it to call for and consider other evidence before assessing a penalty within its authority. The case law has consistently held that a reviewing court may not substitute its judgment for a Commission order that is supported by reliable, probative and substantial evidence. In Henry's Cafe, Inc. v. Board of Liquor Control (1959), 170 Ohio St. 233, paragraphs two and three of the syllabus, accurately reflect the reviewing court's limited authority to modify a Commission order: 2. On appeal from an order of an agency to the Court of Common Pleas, the power of the court to modify such order is limited to the ground set forth in Section 119.12, Revised Code, i.e., the absence of a finding that the order is supported by reliable, probative, and substantial evidence. 3. On such appeal, 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. Since appellant entered a voluntary admission plea to the charge of selling an alcoholic beverage to a 17 year old purchaser, the violation was obviously supported by such plea and the penalty imposed by the Commission was clearly authorized by R.C. 4301.25. We find no abuse of discretion in the trial court's action affirming the Commission order revoking appellant's permit. -9- Appellant's sole assignment of error is overruled. Judgment affirmed. -10- 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 Court of Common Pleas 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. JAMES M. PORTER, PRESIDING JUDGE LEO M. SPELLACY, 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 .