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IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

2971, Inc., :

d/b/a Shawntai's Lounge,

Appellant-Appellant, No. 04AP-1188

(C.P.C. No. 04CV-4732)

: (REGULAR CALENDAR)

Liquor Control Commission,

Appellee-Appellee.

O P I N I O N

Rendered on June 30, 2005

Gutentag & Associates, LLC

, and

Mark S. Gutentag

, for

appellant.

Jim Petro,

Attorney General, and

Charles E. Febus

, for

appellee.

APPEAL from the Franklin County Court of Common Ple

as.

PETREE, J.

{¶1}

Appellant 2971, Inc., d/b/a Shawntai's Lounge, appe

als from the judgment

of the Franklin County Court of Common Pleas, which

affirmed appellee's administrative

order denying the renewal of the appellant's liquor

permit for 2003-2004. For the reasons

that follow, we affirm.

{¶2}

The city of Columbus objected to appellant's applic

ation for renewal of its

Class D5-6 liquor permit. The Ohio Department of C

ommerce, Division of Liquor Control

No. 04AP-1188

("division") conducted an administrative hearing re

garding the application. By an order

issued in November of 2003, the superintendent of t

he division rejected appellant's

application for renewal of its liquor permit for: (

1) "good cause" pursuant to R.C.

4303.271(A), 4301.10(A)(2) and Ohio Adm.Code 4301:1 -1-12(B), and (2) for the following

violations of division (A) of R.C. 4303.292:

1. The place for which the permit is sought is so l

ocated

with respect to the neighborhood that substantial

interference with public decency, sobriety, peace, or good

order would result from the issuance of the permit

and

operation thereunder by the applicant. R.C. §

4303.292(A)(2)(c).

2. The applicant, any partner, member, officer, dir

ector, or

manager thereof, has been convicted of a crime that

relates to fitness to operate a liquor permit busin

ess.

R.C. §4303.292(A)(1)(a).

3. The applicant has misrepresented material fa

cts on

the application pending with the Division. R.C. §

4303.292(A)(1)(c).

{¶3}

Appellant appealed from the superintendent's order

to the Liquor Control

Commission ("commission"), which denied appellant's

motion to stay execution of the

superintendent's order and affirmed the order. Pur

suant to R.C. 119.12, appellant then

appealed to the Franklin County Court of Common Ple

as. The common pleas court

ultimately found that the commission's order was su

pported by reliable, probative, and

substantial evidence and affirmed the commission's order.

{¶4}

Appellant appeals from the judgment of the common p

leas court and

assigns a single error for our consideration:

The trial court erred in affirming the decision of

the Ohio

Liquor Control Commission to affirm the order of th

No. 04AP-1188

superintendent of the Ohio Division of the Liquor C

ontrol

to deny the renewal of appellant's Ohio liquor perm

it.

{¶5}

On administrative appeal, R.C. 119.12 requires the

common pleas court to

determine whether an agency's order is supported by

reliable, probative, and substantial

evidence and is in accordance with law.

Big Bob's, Inc. v. Ohio Liquor Control Comm.

151 Ohio App.3d 498, 2003-Ohio-418, at ¶13. The co

urt of common pleas must weigh

the credibility of the witnesses and assess the pro

bative character of the evidence. Id. at

¶14. The court "must give due deference to the adm

inistrative resolution of evidentiary

conflicts."

Univ. of Cincinnati v. Conrad

(1980), 63 Ohio St.2d 108, 111. Nonetheless,

the agency's findings are not conclusive. Id.

{¶6}

Upon appellate review, the standard of review is mo

re limited.

Pons v. Ohio

State Med. Bd

. (1993), 66 Ohio St.3d 619, 621, rehearing denied

(1993), 67 Ohio St.3d

1439.

Pons

noted:

* * * While it is incumbent on the trial court to e

xamine the

evidence, this is not a function of the appellate c

ourt. The

appellate court is to determine only if the trial c

ourt has

abused its discretion,

i.e.

, being not merely an error of

judgment, but perversity of will, passion, prejudic

partiality, or moral delinquency. Absent an abuse o

discretion on the part of the trial court, a court

of appeals

may not substitute its judgment for [that of an

administrative agency] or a trial court. Instead, t

appellate court must affirm the trial court's judgm ent. * * *

Id. at 621. An appellant court's review of purely

legal questions is plenary.

Big Bob's

, at

¶15.

{¶7}

Former R.C. 4303.271(A) provided that a person appl

ying for renewal of a

liquor permit was entitled to renewal unless the di

vision rejects for "good cause." "Good

cause rejection is not restricted to a clearly iden

tifiable incident but, instead, the division

No. 04AP-1188

may examine the cumulative effects of adverse envir

onmental conditions, objections to

renewal, the impact on police enforcement, and othe

r relevant circumstances."

3M, Inc.

v. Liquor Control Comm

. (Jan. 25, 2001), Franklin App. No. 00AP-529; see,

also,

Harbi

Abuzahrieh & Co., Inc. v. Liquor Control Comm

. (July 22, 1999), Cuyahoga App. No.

74556, appeal not allowed, 87 Ohio St.3d 1453 ("The

courts have repeatedly held that the

adverse effect on the neighborhood and law enforcem

ent is one of the primary

considerations in a 'good cause' rejection."), citi

Leo G. Keffalas, Inc. v. Ohio Liquor

Control Comm

. (1991), 74 Ohio App.3d 650, dismissed, jurisdicti

onal motion overruled,

62 Ohio St.3d 1469, rehearing denied, 62 Ohio St.3d

. 1497;

Appeal of Mendlowitz

(1967),

9 Ohio App.2d 83, 88;

Buckeye Bar, Inc. v. Liquor Control Comm

. (1972), 32 Ohio App.2d

89, 91-92.

{¶8}

Former R.C. 4303.292 provided the grounds upon whic

h the division might

reject an application for renewal:

(A) The division of liquor control may refuse to *

* * renew

* * * any retail permit issued under this chapter i

f it finds:

(1) That the applicant * * * or manager thereof *

* *

(a) Has been convicted at any time of a crime which

relates to fitness to operate a liquor establishmen t;

* * *

to the

division for a permit; or

(2) That the place for which the permit is sought:

* * *

that

substantial interference with public decency, sobri

ety,

peace, or good order would result from the issuance

No. 04AP-1188

renewal, transfer of location, or transfer of owner

ship of

the permit and operation thereunder by the applican t. * * *

{¶9}

When interpreting R.C. 4303.292(A)(2)(c), courts fo

cus on the location of

the liquor premises rather than the employees who o

perate the business.

Marciano v.

Ohio Liquor Control Comm

., Franklin App. No. 02AP-943, 2003-Ohio-2023, at ¶

28. The

causation requirement for rejecting an application

for renewal based on R.C.

4303.292(A)(2)(c) is "some connection between the p

ermit premises and adverse effects

upon the surrounding area."

Marciano

, at ¶29; see, also,

Right Now Mini Market, Inc., v.

Ohio Liquor Control Comm

., Franklin App. No. 04AP-914, 2005-Ohio-1125, at ¶

12. Thus,

the commission need not demonstrate that the permit

holder's actions were directly

related to the conduct of its patrons. "Even if ot

her influences have asserted a negative

effect on the area, outside of appellant's control,

this can only underline the importance to

the city and the commission of maintaining strict c

ompliance with liquor control laws in the

vicinity."

Harbi Abuzahrieh

, supra.

{¶10}

In the present case, on cross-examination Sergeant

Ronald A. Jacobs of

the city of Columbus, Division of Police testified

that the area surrounding appellant's

business has a higher propensity for violence than

any other area of the city, particularly

with respect to shootings. (Tr. 41.) He further t

estified that the sale of alcohol at

appellant's premises contributed to criminal activity in the area. (Tr. 43, 65.)

{¶11}

The commission's evidence also demonstrates that nu

merous unlawful and

violent acts were committed at or nearby appellant'

s bar. For example, in January of

2002, several people dragged a man onto the premise

s and proceeded to beat and rob

him, leaving him with broken teeth. (Division Exhi

bit, at F3.) In May of 2002, a driver

No. 04AP-1188

tried to run down three people in the bar's parking

lot. (Division Exhibit, at F5.) In

October of 2002, a bar patron and two other people

were robbed at gunpoint in the bar's

parking lot. (Division Exhibit, at F7, F8, F11.) A

nd in December of 2002, a fight at the bar

led to a reported assault. (Division Exhibit, at F

24.)

{¶12}

Appellee's evidence also demonstrates that appellan

t's business has

adverse effects on law enforcement. Sergeant Jacob

s testified that a large portion of the

police staff is regularly devoted to patrolling the

area surrounding appellant's bar. (Tr.

39.) For example, in 2002 city police made only on

e dispatched run to appellant's bar for

a reported shooting. (Division Exhibit, at E1.) B

ut during the first five months of 2003, city

police had made four dispatched runs to appellant's

bar for shots fired. (Division Exhibit,

at D2.) By the end of 2003, the bar's manager was

shot twice and left paralyzed.

(Division Exhibit, at K5, K6; Tr. 53.)

{¶13}

On Easter morning of 2003, Sergeant Jacobs was on p

atrol and responded

to gunfire taking place at appellant's bar. Upon a

rriving at the scene, he witnessed

gunshots being fired from two vehicles parked outsi

de of the bar. Unidentified shooters

inside the bar returned a number of gunshots. Alth

ough Sergeant Jacobs was pinned

down behind a parked car during the gun battle, he

was able to see "muzzle blast coming

from the front of the establishment." (Tr. 48.) A

t least 30 gunshots were fired after

Sergeant Jacobs arrived at the scene. (Division Ex

hibit, at J7.)

{¶14}

The foregoing establishes good cause for denying re

newal of appellant's

liquor permit and supports the findings that the lo

cation of the permit premises

substantially interferes with public decency, sobri

ety, peace, or good order under R.C.

4303.292(A)(2)(c). See, e.g.,

Jordan Carryout, Inc. v. Liquor Control Comm.

, Franklin

No. 04AP-1188

App. No. 01AP-482, 2001-Ohio-4272, at ¶27 (finding

that evidence of violent criminal

activity in and around the permit premises is relev

ant under R.C. 4303.292[A][2][c]);

M & M Grill, Inc. v. Ohio Liquor Control Comm.

, Franklin App. No. 04AP-1244, 2005-

Ohio-2431, at ¶13-14 (holding that there was no abu

se of discretion for the common

pleas court to rely on evidence of the adverse effe

cts of the premises and its patrons on

law enforcement pursuant to R.C. 4303.292[A][2][c]) . Therefore, the common pleas court

did not abuse its discretion when relying on the fo

regoing incidents to affirm the

commission's order.

{¶15}

Nonetheless, appellant argues that the court below

abused its discretion

when it affirmed the commission's order because the

commission relied upon evidence

that relates to years prior to the 2003 renewal yea

r in question. Appellant also contends

that the common pleas court abused its discretion b

ecause the commission relied on

evidence of criminal activity near appellant's bar,

even though a new liquor permit was

issued to a business approximately one block away.

{¶16}

As for the introduction of evidence relating to bef

ore 2003, appellant did not

raise this specific issue at the commission's heari

ng. Appellant objected to the

introduction of police reports concerning incidents that took place after May of 2003. (Tr.

22.) Appellant also objected to the authenticity o

f the police reports. (Tr. 34.) However,

appellee's witness testified about dispatched runs

and reported incidents that took place

in 2001-2002 without objection. (Tr. 18, 27.) App

ellant also failed to object to evidence

relating to an inspection that took place in July o

f 2001. (Tr. 13.) Therefore, the issue is

waived on appeal.

Loyal Order of Moose Lodge No. 1473 v. Ohio Liquor

Control Comm.

(1994), 95 Ohio App.3d 109, 114.

No. 04AP-1188

{¶17}

Moreover, we conclude that the plain error doctrine

does not apply in the

present case. "[T]he plain error doctrine is not f

avored and may be applied only in the

extremely rare case involving exceptional circumsta

nces where error, to which no

objection was made at the trial court, seriously af

fects the basic fairness, integrity, or

public reputation of the judicial process, thereby

challenging the legitimacy of the

underlying judicial process itself."

Goldfuss v. Davidson

(1997), 79 Ohio St.3d 116,

paragraph one of the syllabus. This case does not

present an extremely rare and

exceptional circumstance that warrants the plain er

ror doctrine. The basic fairness and

integrity of the underlying judicial process is not

affected by the agency's consideration of

evidence prior to the renewal year in question. Th

erefore, the common pleas court and

commission properly relied on evidence relating to incidents that took place before 2003.

{¶18}

Regarding the new liquor permit that was issued one

block away from

appellant's premises, this evidence was properly ra

ised before and considered by the

commission (Tr. 97-99), along with other evidence r

elating to the burden on law

enforcement and the reported incidents that occurre

d at or near appellant's premises.

Based upon our review, we cannot conclude that the

common pleas court abused its

discretion by finding that the commission's order w

as supported by reliable, probative,

and substantial evidence.

{¶19}

Additionally, we note the record contains evidence

to support the denial of

appellant's application for renewal based on former

R.C. 4303.292(A)(1)(a), which

permitted the division to deny an application for r

enewal if the manager has been

convicted of a crime "at any time" that relates to

"fitness to operate a liquor

establishment." Notably, appellant's manager was c

onvicted of carrying a loaded firearm

No. 04AP-1188

in a motor vehicle. (Division Exhibit, at C-23.)

Given the recent shootings that have

occurred at or near appellant's premises, coupled w

ith evidence that the manager was

known to carry a gun on the premises (Tr. 54-55), w

e find evidence to support the

commission's finding that the manager's convictions

negatively reflected on his fitness to

operate appellant's liquor establishment under form

er R.C. 4303.292(A)(1)(a),

notwithstanding permit holder's testimony that he w

as unaware that the bar's manager

had a criminal record. (Tr. 54.)

{¶20}

Accordingly, we conclude that the common pleas cour

t did not abuse its

discretion in affirming the commission's order. Ap

pellant's sole assignment of error is

overruled. Therefore, the judgment of the Franklin

County Court of Common Pleas is

affirmed.

Judgment affirmed

BRYANT and McGRATH, JJ., concur.

________________________