Professional Documents
Culture Documents
MAY 14 2007
MARCIA J. MENGEL, CLERK
SUPREME COURT OF OHIO
TABLE OF CONTENTS
Paee
INTRODUCTION ...............................................................................................................1
ARGUMENT ....................................................................................................................... 7
CONCLUSION .................................................................................................................12
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INTRODUCTION
This case is simply a R.C. 119.12 administrative appeal from fifteen (15) orders
W W & I Subhis Inc.'s ("Subhis"), liquor license. Employees and agents of the permit
holder used the permit premises to engage in a pattern of criminal misconduct which
resulted in their felony convictions. Subhis was cited to appear before the Commission.
After a hearing on the matter where Subhis stipulated to the facts of the case, the
includes stolen property offenses occurring on the permit premises such as this case. The
employees was the basis for the Commission's Order revoking Subhis' liquor license. It
is indisputable that the Commission's orders were supported by reliable, probative, and
substantial evidence and were in accordance with law. The stipulated facts clearly
supported the Commission's findings as well as the penalty imposed. Because Subhis
has nothing to rely on in hopes of keeping its liquor permit, it now claims that the penalty
imposed by the Commission was too harsh, and but for the long standing ruling in
Henry's Cafe v. Board of Liquor Control (1959), 170 Ohio St. 233, precluding a court
from dispensing a different penalty, Subhis would somehow be able to retain its liquor
permit.
Subhis held an Ohio liquor license. The Ohio Organized Crime Investigation
through liquor permit premises. The Ohio Department of Public Safety ("DPS") as a
member of Task Force 02-02 investigated allegations of corrupt activities at liquor pennit
premises that included Subhis. From August 2002-April 2003, several Subhis employees
(Firas Asha, Kamal Atwan, Bassam Shannack and Omran Saleh) committed crimes using
the permit premises. Asha, Atwan, and Shannack were convicted of felonies. All of the
criminal activities in this case occurred on the permit premises while the employees were
working and involved the receipt of stolen property. Following the employees' felony
liquor control regulations and laws including Regulation 52(B)(6) which provides:
The Commission conducted a hearing on May 18, 2005. At the hearing, Subhis,
through counsel, stipulated to the facts included in the investigators' reports. The reports,
convictions were admitted without objection and considered by the Commission. The
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Commission Case No. 824-05
Vine Street, Cincinnati, Ohio 45210. While at the permit premises, an agent sold fifteen
(15) cartoons of cigarettes to Asha for $225.00. Asha took the money from cash register
used for the Ohio Lottery sales and paid the agent.
On November 22, 2002, Agents visited Subhis' permit premises and while at the
permit premises sold twenty (20) cartons of purportedly stolen cigarettes to Atwan and
Asha. The cigarettes were carried into the store in a duffel bag. $300.00 was paid for the
cigarettes, well below retail value and the money was taken from the cash register used
On October 25, 2004, Firas Asha was convicted in the Hamilton County Court of
Common Pleas for Receiving Stolen Property, a fifth degree felony. The copy of the
Vine Street, Cincinnati, Ohio 45210. While at the permit premises, an agent sold fifteen
(15) cartons of cigarettes to Asha and Atwan for $225.00. Asha took the money from
cash register used for the Ohio Lottery sales and paid the agent.
On October 24, 2002, Agents visited Subhis' permit premises located at 1820
Vine Street, Cincinnati, Ohio 45210. While at the permit premises, an agent sold
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seventeen (17) cartoons of cigarettes, twelve (12) boxes of Tylenol brand caplets, and six
(6) boxes of Sudafed to Shannock and Asha for $300.00. Asha took the money from cash
register used for the Ohio Lottery sales and paid the agent.
On September 11, 2002, Agents visited Subhis' permit premises located at 1820
Vine Street, Cincinnati, Ohio 45210. While at the permit premises, an agent sold fifteen
(15) cartoons of cigarettes to Asha for $225.00. Asha took the money from cash register
used for the Ohio Lottery sales and paid the agent.
On August 15, 2002, Agents visited Subhis' permit premises located at 1820 Vine
Street, Cincinnati, Ohio 45210. While at the permit premises, an agent sold one (1)
carton of cigarettes, nine (9) packs of cigars and one (1) box of Duracell AA batteries to
Asha for $40.00. Asha took the money from cash register used for the Ohio Lottery sales
On August 12, 2002, Agents visited Subhis' permit premises and while at the
permit premises sold eighteen (18) cartons of purportedly stolen cigarettes to Asha. The
cigarettes were carried into the store in a duffel bag. Asha paid $270.00 for the
cigarettes, well below retail value and the money was taken from the cash register used
On August 3, 2002, Agents visited Subhis' permit premises located at 1820 Vine
Street, Cincinnati, Ohio 45210. While at the permit premises, an agent sold thirteen (13)
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cartons of cigarettes to Asha and Atwan for $190.00. Asha took the money from cash
register used for the Ohio Lottery sales and paid the agent.
On January 16, 2002, Agents visited Subhis' permit premises and while at the
permit premises sold ten (10) cartons of purportedly stolen cigarettes to Asha. The
cigarettes were carried into the store in a duffel bag. Asha paid $120.00 for the
cigarettes, well below retail value and the money was taken from the cash register used
On October 17, 2002, Agents visited Subhis' permit premises located at 1820
Vine Street, Cincinnati, Ohio 45210. While at the permit premises, an agent sold
nineteen (19) cartons of cigarettes to Asha and Atwan for $285.00. Asha took the money
from cash register used for the Ohio Lottery sales and paid the agent.
On October 8, 2002, Agents visited Subhis' permit premises located at 1820 Vine
Street, Cincinnati, Ohio 45210. While at the permit premises, an agent sold nine (9)
cartons of cigarettes, as well as boxes of Tylenol brand caplets and boxes of Sudafed to
Shannock and Asha for $150.00. Asha took the money from cash register used for the
On January 12, 2004, Kamal Atwan was convicted in the Hamilton County Court
of Common Pleas for Receiving Stolen Property, a fifth degree felony. The copy of the
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Commission Case No. 845-05
On April 27, 2004, Bassam Shannock was convicted in the Hamilton County
Court of Common Pleas for Receiving Stolen Property, a fifth degree felony. The copy
The Commission considered: (1) Subhis' admission to the charges;' (2) Multiple
felony convictions of Subhis' employees for criminal activity that occurred on the permit
premise; (3) the stipulated investigators' reports and attached documentation; (4) witness'
testimony; and (5) the arguments of counsel. The Commission then issued orders
revoking Subhis' permit. Subhis appealed, the trial court consolidated the cases, and then
i Subhis entered a denial with a stipulation to the charges. A"stipulation" has been held
to be an admission made in a judicial proceeding by parties conclusively proving the facts
contained therein. It is absolutely binding on both the trier of fact and a reviewing court.
Knowlson vs. Bellman (1953), 160 Ohio St. 359; Market vs. Bosley (1965), 2 Ohio Misc.
109. The Ohio Supreme Court has also held that where the parties enter a joint
stipulation of facts, the result is in the nature of a special verdict or special finding of fact,
and the only fnnction of the trier of facts is to apply the law to the facts so placed before
it. Cunningham vs. J.A. Myers Co. (1964), 176 Ohio St. 410.
With specific reference to liquor cases, courts have consistently held that a
stipulation to operable facts constituting the elements of a violation automatically
satisfies the evidentiary requirement and may be equated to an admission plea. In Liquor
Commission vs. Woodgay (September 23, 1981), Summit App. No. 10145, unreported,
the court states, at page 3:
The effect of its stipulations, like the guilty plea in Department of Liquor
Control vs. Santucci (1969), 17 Ohio St.2d 69, 72, `. ..was equivalent to
testimony on his part that those charges were correct, and accurately stated
his wrongful and unlawful conduct. . .' The Court in Santucci held that
any additional evidence was unnecessary. In this case Woodgay
stipulated.... These admissions are sufficient to support the judgment,
Arlen vs. State (1980), 61 Ohio St.2d 168, and it was error for the court of
common pleas to fmd the decision of the Commission to be unsupported
by reliable, probative, and substantial evidence.
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affirmed the Commission's orders. The 10th District Court of Appeals unanimously
ARGUMENT
This case does not present any issue of public or great general interest. It does not
question. First, it does not involve the constitutional claims Subhis discusses in its
jurisdictional memorandum, since those claims were waived by being raised for the first
time in their Memorandum in Support of Jurisdiction. Second, the factual disputes do not
raise a question of statewide interest; they concern only this particular exercise of
authority the Commission is statutorily granted as it applies to this specific permit holder
. The General Assembly has entrusted the Commission with enforcing Ohio's liquor
laws. As part of this enforcement, the Commission has the jurisdiction to suspend or
revoke liquor licenses when permit holders violate Ohio's liquor laws. This case presents
permit holder's license as a penalty for breaking the rules; specifically committing
Subhis' proposition of law claims that the court of appeals erred when it found the
orders were in accordance with law and violated the United States and Ohio Constitutions
because the penalty imposed was excessively harsh. Subhis failed to raise these
constitutional violations in a timely fashion, so these issues are not properly before this
Court. Subhis' first opportunity to raise its constitutional challenges to the severity of the
sanctions was in its appeal to the common pleas court. However, Subhis did not raise any
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constitutional challenges there. This Court has ruled many times that an argument not
raised at the fust available opportunity is waived. State, ex rel. Chagrin Falls, v. Geauga
County Bd of Comm'rs (2002), 96 Ohio St.3d 400; State v. Issa (2001), 93 Ohio St.3d
49. Subhis' failure to raise these constitutional challenges in the courts below constitutes
Subhis urges this Court to change existing precedent and hold that any time the
Commission issues an order revoking a permit holder's liquor license, the revocation
order is open for a court to review the matter for "harshness." A well-settled principle of
Ohio administrative law holds that the choice of the appropriate sanction is squarely
within the province of the administrative agency, once the evidence has established that a
licensee has committed a violation of the governing statutes. The courts have
consistently ruled that in a R.C. Chapter 119 appeal, the reviewing court cannot modify
or overtum the sanction imposed by the agency, so long as the order is supported by
reliable, probative, and substantial evidence, and the sanction imposed is authorized by
law. Henry 's Cafe, supra. Subsequent courts, including the Tenth District Court of
Appeals on numerous occasions, have followed Henry's Cafe, holding that, as a general
lower court followed Henry's Cafe in affirming the orders at issue here.
Permit holders do have sufficient interest in their permit that they are entitled to
procedural due process when the pennit may be suspended or revoked. Plainly,
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R.C. Chapter 4301 provides this due process. In general, however, licenses and the
See, State ex red. Zugravu v. O'Brien (1935), 130 Ohio St. 23, 27.
Realizing that the liquor industry requires such regulation, Ohio has not granted
irrevocable permits in the nature of vested property rights to retail liquor businesses, but
instead has issued "licenses." A "license" has been consistently considered by courts as a
personal and temporary permit or privilege, and not a natural right, to be enjoyed only so
long as the conditions and restrictions governing its continuance are complied with ...."
Salem v. Liquor Control Commission (1973), 34 Ohio St.2d 244; Zugravu, supra;
sale and use of alcoholic beverages within their borders. See, Capital Cities Cable, Inc.
v. Crisp (1984), 467 U.S. 691, 712.. As part of this strict regulation, the General
Assembly has required permits to sell alcohol, creating classes of permits with
restrictions specific to these permits. See R.C. 4303.02 - 4303.22. Further, R.C. 4303.25
prohibits any person from selling alcohol without a permit. Because the liquor industry is
so heavily regulated, a liquor permit is a privilege; it is not a right. "Since the advent of
state and is not afforded the same type of constitutional rights as might be afforded other
business pursuits." Scioto Trails Company v. Ohio Dept. of Liquor Control (10th Dist.
1983), 11 Ohio App.3d 75, 76. See also Zugravu, supra, at p. 27. (Permits to carry on
the liquor business are mere licenses, revocable as provided, and create no property
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right.) Failure to comply with the prohibitions and restrictions governing the liquor
permit may result in the loss of the privilege.' R.C. 4301.25 allows the Commission to
Subhis essentially argues that the Commission violated its constitutional rights
because the Commission is empowered to impose even the harshest sanctions, in any
This argument fails for several reasons. First, Subhis waived any constitutional
arguments by not raising them at the trial court level. Second, R.C. 119.12 does not limit
judicial review of the Commission's orders. histead, R.C. 119.12 creates a right of appeal
for that very purpose that Subhis chose to exercise by filing this appeal. R.C. 119.12
provides:
(Emphasis added.)
reviewing court to "reverse, vacate, or modify the (Commission's) order" if the court
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finds the order to be unsupported by reliable, probative, and substantial evidence and not
supra. The Court held, "Unquestionably, the court of common pleas may reverse, vacate
or modify an order of any agency" if it finds the evidence does not support the requisite
threshold. Id at 236. Rather than following Henry's Cafe, Subhis urges this Court to
find that R.C. 119.12 allows a court to substitute its judgment for that of the Commission.
Contrary to Subhis's claim, the Commission's revocation orders are proportionate to the
Subhis' license because its agents and employees committed multiple criminal acts,
utilizing the liquor permit premises, over a long period of time resulting in felony
Under R.C. 4301.25 the Commission can revoke a license based on only one
violation. Teresa Tolbert v. LCC (Dec. 3, 1998), Franklin App. No. 98AP-285. Here,
there were multiple violations committed by several individuals over an extended period
of time. Additionally, "The .. . Commission can mete out maximum penalties ... as
long as a violation; however minor, is found." Aida v. Liquor Control Comm'n (2002),
Franklin App. No. OIAP-1178, 2002 Ohio App. LEXIS 2604. Here, the record
establishes that the Commission considered the facts of and severity of the events.
Moreover, once the Commission has properly determined the license holder
violated the law, the Commission has the discretion to impose various penalties,
including revocation, and the Commission's penalty decision cannot be altered on appeal.
Stop-N-Go of Wadsworth, Inc. v. Liquor Control Comm'n (May 4, 2000), Franklin App.
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No. 99AP-687; McCartney Food Market v. LCC (June 22, 1995), Franklin App. No.
94APE10-1576); Domsitz v. LCC (Feb. 19, 2002), Franklin App. No. 01AP-810.
The Commission provided Subhis with notice and an opportunity to be heard and
the Commission satisfied Subhis' due process rights. Subhis has raised no substantial
CONCLUSION
For the above stated reasons, this case does not raise a substantial constitutional
question nor one of public or great general interest. Therefore, the Commission
Respectfully submitted,
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CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Ohio Liquor Control Commission's
Memorandum In Opposition To Jurisdiction has been served via U.S. Mail, this 14th day
Kurt O. Gearhiser
Gearhiser Law Firm, Inc.
520 East Rich Street
Columbus, Ohio 43215
CHARLES E. FE$U
Assistant Attorney General
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