[Cite as Suburban Inn, Inc. v. Ohio Liquor Control Comm., 2014-Ohio-4355.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Suburban Inn, Inc., : 

 

 Appellant-Appellant, : No. 13AP-811 

 (C.P.C. No. 12CVF-12-14936) 

v. : 

 (REGULAR CALENDAR) 

Ohio Liquor Control Commission, : 

 

 Appellee-Appellee. : 

 

D E C I S I O N 

Rendered on September 30, 2014 

 

Maurice A. Thompson, for appellant. 

Mike DeWine, Attorney General, and Paul Kulwinski, for 

appellee. 

 

APPEAL from the Franklin County Court of Common Pleas. 

BROWN, J. 

{¶ 1} This is an appeal by appellant, Suburban Inn, Inc. ("Suburban"), from a 

judgment of the Franklin County Court of Common Pleas affirming an order of appellee, 

Ohio Liquor Control Commission ("commission"), that affirmed an order of the Ohio 

Division of Liquor Control ("division") denying Suburban's 2011-2012 renewal application 

for a liquor permit. 

{¶ 2} Suburban operates a place of business located at 15120 Bagley Road, 

Middleburg Heights, Ohio, and holds a Class D-1-2-3-3A-6 liquor permit issued by the 

division. Beginning in 2007, the Cuyahoga County Board of Health ("CCBOH"), as 

designee of the Ohio Department of Health ("ODH"), cited Suburban for violations of 

Ohio's Smoke-Free Workplace Act ("the Smoke-Free Act"). Specifically, CCBOH cited 

Suburban for 23 violations of the Smoke-Fee Act between July 9, 2007 and March 16, 

2012. By letter mailed September 28, 2011, the division informed Suburban that it was 
No. 13AP-811 2 

denying the renewal of its 2011-2012 liquor permit on the basis that Suburban "has 

operated its liquor permit business in a manner that demonstrates a disregard for the 

laws, regulations, or local ordinances of this state [pursuant to] R.C. §4303.292(A)(1)(b), 

Chapter 3794, and O.A.C. Chapter 3701-52." 

{¶ 3} Suburban filed an appeal with the commission from the order of the 

division and the commission conducted a hearing on August 16, 2012. The commission 

issued an order November 14, 2012 affirming the division's order rejecting the renewal of 

Suburban's permit on the basis that Suburban had "operated its permit business in a 

manner that demonstrates a disregard for the laws and regulations of this state pursuant 

to R.C. 4303.292(A)(1)(b)."1 

{¶ 4} Suburban filed an appeal with the trial court from the order of the 

commission and the parties submitted briefs to the court. By decision and entry filed 

August 26, 2013, the trial court affirmed the order of the commission affirming the 

division's order rejecting Suburban's 2011-2012 renewal application. 

{¶ 5} On appeal, Suburban sets forth the following three assignments of error for 

this court's review: 

[I.] The court of common pleas erred in concluding that the 

Ohio Liquor Control Commission, Division of Liquor Control 

lawfully denied Suburban Inn's 2011-2012 liquor permit 

renewal application based on violations of the Ohio Smoke 

Free Workplace Act. 

[II.] The court of common pleas erred in concluding that R.C. 

4303.292(A)(1)(b) permitted the Ohio Liquor Control 

Commission, Division of Liquor Control to consider violations 

of the Ohio Smoke Free Workplace Act in determining 

whether to approve or deny Suburban Inn's 2011-2012 liquor 

license renewal application. 

[III.] The court of common pleas erred in concluding the 

order of the Liquor Control Commission rejecting Appellant's 

2011-2012 liquor permit renewal application was supported 

by reliable, probative and substantial evidence and in 

accordance with law. 

 

1 At the time of the division's order (September 28, 2011), the record indicates that CCBOH had imposed 

fines on Suburban for 20 violations of the Smoke-Free Act. Subsequent to that order, but prior to the 

commission's hearing, CCBOH imposed fines on Suburban for three further violations of the Smoke-Free 

Act (occurring on October 7, 2011, January 23 and March 16, 2012, respectively). 
No. 13AP-811 3 

{¶ 6} Suburban's assignments of error are interrelated and will be considered 

together. Under these assignments of error, Suburban asserts the trial court erred in: 

(1) determining that the commission and division lawfully denied its liquor permit 

renewal application based on violations of the Smoke-Free Act, (2) holding that R.C. 

4303.292(A)(1)(b) permitted the division to consider violations of the Smoke-Free Act, 

and (3) finding that the order of the commission was supported by reliable, probative, and 

substantial evidence and was in accordance with law. 

{¶ 7} In an administrative appeal, a trial court may affirm the order of an agency 

if the court finds, "upon consideration of the entire record and any additional evidence the 

court has admitted, that the order is supported by reliable, probative, and substantial 

evidence and is in accordance with law." R.C. 119.12. In Gina, Inc. v. Ohio Liquor Control 

Comm., 10th Dist. No. 11AP-107, 2011-Ohio-4927, ¶ 12-13, this court discussed the 

applicable standards of review for a court of common pleas and an appellate court in 

considering an administrative appeal, stating in part as follows: 

The common pleas court's "review of the administrative 

record is neither a trial de novo nor an appeal on questions of 

law only, but a hybrid review in which the court 'must 

appraise all the evidence as to the credibility of the witnesses, 

the probative character of the evidence, and the weight 

thereof.' " The common pleas court must give due deference 

to the administrative agency's resolution of evidentiary 

conflicts, but "the findings of the agency are by no means 

conclusive." The common pleas court conducts a de novo 

review of questions of law, exercising its independent 

judgment in determining whether the administrative order is 

"in accordance with law." 

An appellate court's review of an administrative decision is 

more limited than that of a common pleas court. The 

appellate court is to determine only whether the common 

pleas court abused its discretion. Absent an abuse of 

discretion, a court of appeals may not substitute its judgment 

for that of an administrative agency or the common pleas 

court. An appellate court, however, has plenary review of 

purely legal questions. 

 

(Citations omitted.) 

{¶ 8} In accordance with R.C. 4303.271, "a permit holder is entitled to renew its 

liquor permit unless good cause exists to reject the renewal application." Marciano v. 
No. 13AP-811 4 

Ohio Liquor Control Comm., 10th Dist. No. 02AP-943, 2003-Ohio-2023, ¶ 19. Pursuant 

to R.C. 4303.292(A)(1)(b), the division may refuse to renew a liquor permit if the 

applicant "[h]as operated liquor permit businesses in a manner that demonstrates a 

disregard for the laws, regulations, or local ordinances of this state or any other state." 

{¶ 9} We first address Suburban's assertion that the trial court misapplied the law 

in addressing its claim that the division lacked authority to enforce violations of the 

Smoke-Free Act on behalf of ODH. According to Suburban, any "disregard for the laws" 

in this case is punishable only by ODH, the agency vested with enforcement powers over 

smoking-ban violations. Suburban further argues the trial court erred in holding that the 

division and commission can consider violations of a specific punishment statute (i.e., the 

Smoke-Free Act) to enforce a general punishment statute (R.C. 4303.292). 

{¶ 10} While the trial court agreed with Suburban's contention that the division 

lacked authority to enforce violations of the Smoke-Free Act, the court held that the 

commission's order, affirming the order of the division rejecting the renewal application, 

"does not enforce any provision of the [Smoke-Free] Act." Specifically, the trial court 

noted that the issue before the commission did not involve a consideration of whether 

Suburban violated the Smoke-Free Act, as such finding had been previously made by 

CCBOH. Rather, the court held, the commission's order "correctly finds that Suburban's 

failure to comply demonstrates a disregard for the laws of this state." 

{¶ 11} Upon review, we find no error with the trial court's determination that 

neither the division nor the commission has improperly attempted to enforce the SmokeFree Act. As recognized by the trial court, "the fact that another agency has enforced the 

law against a permit holder" is not dispositive as to whether that same conduct 

"demonstrates a disregard for the law as that term is used in R.C. 4303.292(A)(1)(b)." 

{¶ 12} Decisions from this court support the trial court's determination on this 

issue. In Nasser v. Ohio Liquor Control Comm., 163 Ohio App.3d 234, 2005-Ohio-4638 

(1oth Dist.), agents of the Ohio Department of Taxation searched the appellant-owner's 

liquor store after receiving a complaint that the owner had sold untaxed cigarettes. 

During the search, agents discovered a variety of untaxed tobacco products, and the 

search also revealed that the store did not have a current cigarette license. The owner was 

charged with various offenses as a result of that agency's investigation, and the division 
No. 13AP-811 5 

subsequently relied on those findings to reject, pursuant to R.C. 4303.292(A)(1)(b), the 

appellant-owner's application to transfer ownership of a liquor permit. On appeal, this 

court held that such evidence constituted "reliable, probative, and substantial evidence to 

support the division's finding that the appellant and her husband operated their liquor 

permit business in a manner that demonstrated a disregard for the laws, regulations, or 

local ordinances of Ohio." Id. at ¶ 15. 

{¶ 13} In Douglas v. Ohio Liquor Control Comm., 10th Dist. No. 11AP-133, 2012-

Ohio-2218, the commission denied a renewal application for a liquor permit where the 

evidence indicated the public health department had found health and safety violations at 

the permit holder's establishment. This court, in affirming the trial court's decision 

upholding the order of the commission, rejected the permit holder's challenge to the 

commission's finding he had shown a disregard for laws, regulations or local ordinances 

based on those health code violations. 

{¶ 14} In a similar vein, this court has noted that "[t]he fact that the Commission is 

without authority to arrest or charge a permit holder for a violation of R.C. Chapter 2915 

[criminalizing gambling activities] has no bearing on the Commission's authority to 

sanction the individual's liquor permit for the same violation." Convenient Food Mart, 

Inc., No. 392 v. Ohio Liquor Control Comm., 10th Dist. No. 10AP-248, 2010-Ohio-4612, 

¶ 17. In Convenient Food Mart, this court further observed that "[b]ecause possessing a 

liquor permit is a privilege, which also carries with it great responsibility, the General 

Assembly has vested the Liquor Control Commission with broad authority to regulate that 

practice in this State." Id. at ¶ 14. 

{¶ 15} In the instant case, we agree with the trial court that the proper legal entity 

(CCBOH) enforced the law against Suburban with respect to violations of the Smoke-Free 

Act, and the division and commission did not act contrary to law in considering, for 

purposes of R.C. 4303.292, whether such violations supported a finding that the permit 

holder had operated its business in a manner demonstrating a disregard for the laws or 

regulations of this state. Further, Suburban's contention that the trial court erred in 

holding that violations of a specific statute can be used to enforce a general punishment 

statute is not persuasive. Such argument is premised upon Suburban's claim, which we 
No. 13AP-811 6 

have rejected above, that the division and commission improperly seek to enforce 

provisions of the Smoke-Free Act. 

{¶ 16} Suburban also contends that, even if the division is permitted to deny 

renewal based upon violations of the Smoke-Free Act, there was a lack of reliable, 

probative, and substantial evidence to support a finding of repeated violations. More 

specifically, Suburban maintains it was improper for the trial court to consider all of the 

violations submitted as part of the administrative record. According to Suburban, the 

only relevant citations regarding the 2011-2012 renewal period involved three violations 

of the Smoke-Free Act covering a period between October 2010 and September 2011. 

Suburban further asserts that the number of violations at issue precluded a finding of 

good cause to deny renewal of the liquor permit. 

{¶ 17} The commission's order, finding that the division presented ample evidence 

to demonstrate good cause to support the non-renewal of Suburban's permit, states in 

part: 

[T]he evidence shows that appellant committed 20 violations 

of the Smoke Free Act on various dates between July 9, 2007 

and June 6, 2011. * * * Appellant argues that only three of 

those violations occurred since appellant's last successful 

renewal in October 2010, and that all of the other violations 

that occurred prior to the last renewal cannot now serve as a 

basis for non-renewal. * * * 

However, a close review of the evidence shows that the three 

violations * * * involved conduct that was found "deemed to 

be intentional" under R.C. 3794.07(B) * * *. When viewed in 

their context, the evidence shows that the three violations 

were indeed part of a pervasive, ongoing pattern of unlawful 

conduct concerning an intentional disregard for the Smoke 

Free Act. 

Nevertheless, the Division also presented further evidence 

that shows that appellant committed three additional 

violations, all deemed intentional as well, after the Division 

refused to renew appellant's permit in October 2011. * * * The 

Commission finds that, notwithstanding all of the other prior 

violations, the evidence demonstrating six intentional 

violations since appellant's last renewal is more than sufficient 

to constitute good cause. 
No. 13AP-811 7 

Finally, the evidence shows that appellant has accumulated 

$76,500 in debt certified to the Ohio Attorney General's 

Office, combined with interest and costs for a total of 

$89,891.14 due and owing as of August 15, 2012 * * *. 

(Emphasis sic.) 

{¶ 18} This court has previously held that "in determining whether 'good cause' 

exists for its refusal to renew a permit, the department is permitted to consider the 

cumulative effect of continuing violations." Tiger Invests. of Columbus, Inc. v. Ohio 

Liquor Control. Comm., 8 Ohio App.3d 316, 317 (10th Dist.1982) (rejecting appellant's 

claim that only the years 1980 and 1981 should have been considered; rather, police 

reports from 1978, 1979, and part of 1980, as well as citations from January 1979 to April 

1980, constituted reliable, probative, and substantial evidence supporting department's 

decision). Thus, "past acts may be reviewed in combination with recent violations to show 

a course or pattern of conduct which was of a continuing nature, and could be considered 

in its totality by the director and the commission in rejecting an application for renewal of 

a permit." Patrick v. Ohio Liquor Control Comm., 10th Dist. No. 77AP-246 (July 28, 

1977). 

{¶ 19} In the instant case, the trial court noted that the county department of 

health had fined Suburban for violations of the Smoke-Free Act beginning in 2008, and 

that the permit holder was "subsequently repeatedly cited for such conduct in the ensuing 

years." Specifically, the evidence indicated Suburban had committed 20 violations at the 

time it submitted its 2011-2012 renewal application, and three of those violations "had 

occurred in the time period since Suburban's most recent permit renewal." Further, at the 

time Suburban applied for its renewal, it had been assessed fines in the amount of 

$71,600, and had paid only $100 of such assessment. The court also noted that "at least 

twelve of the violations occurring before September 8, 2011 were deemed intentional and 

all three violations occurring in the period immediately prior to the renewal application 

were deemed intentional." 

{¶ 20} Here, notwithstanding the fact that the division could have rejected 

Suburban's renewal application based solely upon the three violations during the renewal 

period, we find no error by the trial court in finding that the commission could have 

considered the cumulative effect of past violations "in combination with recent violations 
No. 13AP-811 8 

to show a course or pattern of conduct which was of a continuing nature." Patrick. In its 

brief submitted to the trial court, Suburban relied upon two decisions, In re Mendlowitz, 

9 Ohio App.2d 83 (10th Dist.1967), and Marwan, Inc. v. Ohio Liquor Control Comm., 93 

Ohio App.3d 229 (8th Dist.1994), for the proposition that a successful renewal of a permit 

in prior years constitutes "forgiveness" of transgressions. The trial court, however, 

properly distinguished those cases, noting that in neither Mendlowitz nor Marwan did 

the permit holder have "a single violation of law in the period immediately prior to their 

renewal application." See also Keydon Mgt. Co., Inc. v. Ohio Liquor Control Comm., 10th 

Dist. No. 08AP-965, 2009-Ohio-1809, ¶ 11 (distinguishing holding in Marwan on basis 

that, in contrast to facts of Marwan, "the testimony concerned a substantial number of 

legal infractions * * * that occurred over the preceding two years"). 

{¶ 21} In the instant case, the record before the commission contained evidence 

that CCBOH had fined Suburban for 23 violations of the Smoke-Free Act during the 

period between 2008 and 2012. In its order, the commission noted that the most recent 

six violations, all occurring subsequent to Suburban's last renewal, were each deemed to 

be "intentional." Based on the evidence presented, the commission found that the three 

violations during the renewal period "were indeed part of a pervasive, ongoing pattern of 

unlawful conduct concerning an intentional disregard" for the law. Upon review, we 

conclude that the trial court did not abuse its discretion in finding that reliable, probative, 

and substantial evidence supported the order of the commission affirming the denial of 

the renewal application, and that such order was in accordance with law. 

{¶ 22} Based upon the foregoing, Suburban's first, second, and third assignments 

of error are without merit and are overruled, and the judgment of the Franklin County 

Court of Common Pleas, affirming the order of the commission that affirmed the order of 

the division denying Suburban's renewal application, is hereby affirmed. 

Judgment affirmed. 

SADLER, P.J., and TYACK, J., concur. 

___________________