COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76718 ANTOINE BOUSTANI : Plaintiff-Appellant : JOURNAL ENTRY : : AND -vs- : : OPINION OHIO LOTTERY COMMISSION : : Defendant-appellee DATE OF ANNOUNCEMENT : NOVEMBER 9, 2000 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court Case No. CV-376559 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For Plaintiff-Appellant: Dennis J. Polke 1370 Ontario Street Standard Building - #1516 Cleveland, Ohio 44113 For Defendant-Appellee: Betty Montgomery State Attorney General Kenneth F. Affeldt Assistant Attorney General State Office Building, 12th Floor 615 West Superior Avenue Cleveland, Ohio 44113 ANNE L. KILBANE, J.: -2- This is an appeal from an order of Judge William J. Coyne upholding the decision by appellee Ohio Lottery Commission ( Commission ) to revoke the Sales Agent License of appellant Antoine Boustani, d.b.a. Neighbor's Choice. Boustani contends that, while R.C. 3770.05(C)(5) allows for license revocation upon conviction of the specific crime of food stamp trafficking, he was convicted of only attempted illegal use of food stamps and, therefore, his license should not have been canceled. He also challenges the constitutionality of R.C. 3770.05(D), which permits the Commission to revoke a license when it appears to the director that due to the experience, character, or general fitness of any [principal of the applicant] *** the granting of a license as a lottery sales agent would be inconsistent with the public interest, convenience, or trust. We disagree and affirm. The pertinent facts follow. On August 7, 1998, Boustani pleaded guilty to three counts of attempted illegal use of food stamps, R.C. 2913.46(C)(1)/2923.02, a misdemeanor of the first degree, and one count of attempted possession of criminal tools, R.C. 2923.24/2923.02, a misdemeanor of the first degree. He was given a 30-day jail term, which was suspended, and a $500 fine. On November 16, 1998, the Commission gave Boustani written notice of its intent to cancel his sales agent license and he responded with a request for an adjudication. Following the hearing on January 6, 1999, the report of the hearing officer recounted the testimony regarding the circumstances surrounding Boustani's guilty plea. -3- Jean Chalhoub, Boustani's brother-in-law and part-time employee, explained that a female customer, who turned out to be an undercover agent, attempted to befriend him and asked him to join her for drinks on a couple occasions. She, thereafter, explained that she was in financial trouble and needed a place to live. Chalhoub, whose main occupation involved real estate, offered to help her find an apartment and, on three occasions after she lamented over her financial troubles, gave her his own cash in exchange for one $100.00 and two $65.00 food stamps. He said he never told Boustani about these transactions, never took money from the Neighbor's Choice cash register to pay her for the stamps, nor did he redeem these food stamps at Neighbor's Choice. Both Chalhoub and Boustani, however, were charged with illegal food stamp use offenses. The hearing officer also noted that Boustani's testimony was both credible and heart-rendering. She found it feasible that the Respondent really did not know or have reason to know that Mr. Chalhoub was redeeming the customer's food stamps for cash. However, [he] *** did not terminate Mr. Chalhoub's employment at Neighbor's Choice paid or otherwise when he discovered that Mr. Chalhoub had engaged in illegal activity. She concluded that since Boustani ultimately is responsible for the acts of his employees, the fact that this illegal act took place at his store and that he did not fire the offending employee casts doubt on his general fitness as a store manager and supervisor. -4- In her conclusions of law, the hearing examiner set forth the following: A. Ohio Revised Code S3770.05(C)(1), along with Ohio Administrative Code rules 3770-3-01 and 377-2-03(A)(1), requires that the Executive Director of the Lottery suspend or revoke the license if a licensee [h]as been convicted of a felony, or has been convicted of a crime involving moral turpitude. Furthermore, ORC S3770.05(C) (5) and OAC Rule 3770-2-03(A)(5) require the Executive Director of the Lottery to suspend or revoke the license if the licensee has been convicted of illegal trafficking in food stamps. In addition, ORC S3770.05(D)(2) and OAC Rule 3770-2-03(A)(7) and 3770-3-01 require the Executive Director of the Lottery [to] suspend or revoke the license of a licensee if it appears to him that the experience, character, and general fitness of any director, officer, or controlling shareholder is such that the continuation of the license would be inconsistent with the public interest, convenience, or trust. B. There is no dispute that the Respondent has been convicted of a food stamp trafficking offense, although under the attempt statute. Conviction of a crime involving illegal use [of] food stamps is sufficient alone for the Executive Director of the Lottery to revoke the Respondent's license. In addition, although the Respondent probably did not know about the illegal activity, he did not terminate the employment of the prime offender. This inaction calls into question the Respondent's general fitness as a licensed Ohio Lottery sales agent and may cause the continuation of his license to be inconsistent with the public interest, convenience, or trust. On February 2, 1999, the director adopted the hearing examiner's findings of facts and conclusions of law and ordered the following: That Antoine Boustani, the principal of Neighbor's Choice, Agent #25292, has been found guilty of attempted food stamp trafficking [sic], which is violation of Ohio Revised Code Sections 3770.05(C)(1) and (C)(5); and that due to his experience, character or general fitness, the continuation of his Lottery sales agent license would be inconsistent with the public interest, convenience and trust, and in violation of Ohio Revised Code Section 3770.05(D)(2)and Ohio Administrative Code Rules 3770-2- -5- 03(7) and 3770-3-01. Accordingly, the Sales Agent License of Neighbor's Choice, Agent #25292, is hereby canceled. On February 12, 1999, Boustani appealed from this order to the court of common pleas. After the parties submitted their briefs, the judge issued his order on June 28, 1999, affirming the decision of the Commission after finding that it is supported by reliable, probative and substantial evidence in accordance with law. Boustani raises a single assignment of error: THE CUYAHOGA COUNTY COMMON PLEAS COURT, ACTING AS A REVIEWING COURT PURSUANT TO OHIO REVISED CODE SECTION 119.12, ERRED IN UPHOLDING THE OHIO LOTTERY COMMISSION'S DECISION TO REVOKE THE LOTTERY SALES AGENT LICENSE OF THE APPELLANT. First, Boustani argues that the Commission improperly found him in violation of R.C. 3770.04(C)(5) because he was convicted of attempted illegal use of food stamps, a misdemeanor offense which is not a serious crime. He admits that he did not fire Chalhoub but asserts he reduced his work hours and responsibilities, and denied him access to the store's cash register. Finally, he argues that R.C. 3770.05(D)(2) is unconstitutionally vague. The Commission counters that the attempted illegal use of food stamps is a crime of fraud, a serious offense in the eyes of the Commission. It is unreasonable, it argues, to suggest that the legislature intended to exclude someone from R.C. 3770.05(C)(5) merely because the crime was attempted rather than completed. Moreover, [i]t would be impossible to a devise code-like enumeration of all possible instances of character inconsistent -6- with the public interest ; therefore, it contends, the criteria must be upheld. When reviewing the order of an administrative agency, a judge applies the limited standard of review set forth in R.C. 119.12 and determines whether the order is supported by reliable, probative and substantial evidence and is in accordance with the law. R.C. 119.12; University of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110, 407 N.E.2d 1265. When reviewing a judge's determination on whether the order is supported by such evidence, the role of the appellate court is limited to the determination of whether the judge abused his discretion. Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn. (1992), 63 Ohio St.3d 705, 707, 590 N.E.2d 1240; Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260-261, 533 N.E.2d 264, 267. To find an abuse of discretion, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp.(1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1. When reviewing questions of law, an appellate court's review is plenary. Ohio Historical Soc. v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 466, 470, 613 N.E.2d 591; Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339, 587 N.E.2d 835, paragraph one of the syllabus. -7- We first note that the Commission decided this matter based upon three separate sections of R.C. 3770.05: (C) *** [T]he director shall refuse to grant, or shall suspend or revoke, a license if the applicant or licensee: (1) Has been convicted of a felony, or has been convicted of a crime involving moral turpitude; *** (5) Has been convicted of illegal trafficking in food stamps. (D) *** [T]he director shall refuse to grant or shall suspend or revoke, a license if the applicant or licensee is a corporation: *** (2) In which it appears to the director that due to the experience, character, or general fitness of any director, officer or controlling shareholder the granting of a license as a lottery sales agent would be inconsistent with the public interest, convenience, or trust. Boustani, however, challenges the decision on two of these subdivision, (C)(5) and (D)(2). He does not challenge the commission's conclusion regarding subdivision (C)(1). Should we decide, after review, it was an abuse of discretion to conclude that the order is supported by reliable, probative and substantial evidence under subdivision (C)(5), we are precluded from reversing the judge for only that reason. See Page v. Riley (1999), 85 Ohio St.3d 621, 624, 710 N.E.2d 690, quoting State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 474, 692 N.E.2d 198, 204, fn. 1, quoting State ex rel. Athens Cty. Bd. of Commrs. v. Gallia, Jackson, Meigs, Vinton Joint Solid Waste Mgt. Dist. Bd. of Directors (1996), 75 Ohio St.3d 611, 616, 665 N.E.2d -8- 202, 207 ( ` A reviewing court is not authorized to reverse a in in licensees, must be read in the disjunctive. In other words, the director must refuse to grant or must revoke a license where the licensee's conduct falls under any one of the five subdivisions. Boustani's failure to challenge the order as it applied subdivision (C)(1) (i.e.,that attempted illegal use of food stamps constituted a crime of moral turpitude) precludes our review of thec e judge's order and the decision must be affirmed.1 See, App.R. 12 (A)(1)(b) (appellate court to determine appeal on its merits on the assignments of error and oral argument); App.R. 12(A)(2) (appellate court may disregard assignment of error presented for review when 1 r could we find error which would rise to the level oforrect judgma prejudicial error which might warrant the application of the plain error doctrine. Moral turpitude has been defined as [b]asness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general. Ballentine's Law Dictionary 815 (3d ed., 1969). If a crime is one involving moral turpitude, it is because the act denounced by the statute offends the generally accepted moral code of mankind. In re Burch (1943), 73 Ohio App.97, 102, 54 N.E.2d 803. See State v. Williams(1992), 82 Ohio App.3d 70, 74, 611 N.E.2d 443 (this court concluded that although the defendant pleaded guilty to a misdemeanor offense of welfare fraud, the record demonstrates defendant's crime of obtaining approximately $48,000 in welfare benefits through misrepresentation over a period of more than four years was a serious offense involving moral turpitude ); see, also, Akron Bar Assn. v. Meyer (1999), 87 Ohio St.3d 324, 720 N.E.2d 900 (concluding, in part, that attorney's conviction for trafficking in food stamps constitutes conduct involving moral turpitude for purposes of DR 1-102(A)(3)). -9- the assignment of error is not separately argued in the brief). In the same manner, we also need not reach the issue of whether subdivision (D)(2), which applies to corporations, is unconstitu- tionally vague. Judgment affirmed. -10- It is ordered that the appellee recover from appellant its costs herein taxed. This court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County 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. JUDGE ANNE L. KILBANE JAMES D. SWEENEY, P.J., CONCURS IN JUDGMENT ONLY AND CONCURS WITH SEPARATE CONCURRING OPINION; JAMES PORTER, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE CONCURRING OPINION. 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.22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). -11- COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76718 ANTOINE BOUSTANI : : Plaintiff-Appellant : : C O N C U R R I N G -vs- : : O P I N I O N OHIO LOTTERY COMMISSION : : Defendant-Appellee : DATE: NOVEMBER 9, 2000 JAMES M. PORTER, J., CONCURRING IN JUDGMENT ONLY: I concur in judgment only because the majority opinion has unnecessarily identified the proper name of the trial judge below in contravention of this Court's time-honored practice and Loc.App. Rule 22(C) of this Court which states that: Opinions of the Court will not identify or make reference by proper name to the trial judge, magistrate *** unless such reference is essential to clarify or explain the role of such person in the course of said proceedings. (Eff. July 25, 2000). See concurring opinions of Judges Patton and Spellacy in Julia Miller v. Gary O. Miller (Aug. 17, 2000), Cuyahoga App. Nos. 75622/23 and authorities cited therein. .