OPINIONS OF THE SUPREME COURT OF OHIO 

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 Department of Liquor Control, Appellee, v. Sons of Italy 

Lodge 0917, Appellant. 

 [Cite as Ohio Dept. of Liquor Control v. Sons of Italy 

Lodge 0917 (1992), Ohio St.3d .] 

Criminal law -- Notice requirements set forth in former R.C. 

 2933.43(C) are mandatory and require strict compliance 

 with the notice and publication provisions contained 

 therein. 

The language of former R.C. 2933.43(C) is mandatory; it requires 

 strict compliance with the notice and publication 

 provisions contained therein. 

 (Nos. 91-1792 and 91-2486 -- Submitted September 22, 1992 

-- Decided December 30, 1992.) 

 Appeal from and Certified by the Court of Appeals for 

Franklin County, No. 90AP-1359. 

 On June 17, 1988, investigators from appellee, the 

Department of Liquor Control ("department"), entered the 

premises of appellant, Sons of Italy Lodge 0917 ("lodge"), 

acting upon a complaint received by the department. The 

complaint alleged that individuals who were not members of the 

lodge were purchasing alcoholic beverages, and that gambling 

was occurring on the premises. After investigating, the agents 

confiscated two video draw poker machines and $817.51. The 

department charged the lodge with violating a regulation of the 

Ohio Liquor Control Commission ("commission"). The charge read: 

 "On June 17, 1988, your unidentified agent and/or employee 

BENJAMIN SPRINGER and/or SANDRA BLYSTONE did permit and/or 

allow in and upon or about the permit premises, playing, gaming 

or wagering on a game of skill or chance to wit, electronic 

video gambling device -top draw-and Rivera machines --in 

violation of [Ohio Adm.Code] 4301:1-1-53[B]1 a regulation of 

the Ohio Liquor Control Commission." 

 At an administrative hearing held on December 1, 1988, the 

lodge denied committing the violation . The commission found 

the lodge in violation of the regulation and suspended its 

liquor license for five days. The lodge did not appeal the 

suspension. 

 The administrative order was dated December 12, 1988, and 
the department filed a petition for forfeiture on December 16, 

1988. The hearing date was set for January 4, 1989. The 

certificate of service attached to the petition stated that the 

department sent a copy of the petition for forfeiture to the 

lodge by regular mail, postage paid, on December 16, 1988. 

Public notice was not published in the newspaper until December 

23, 1988 and the hearing date printed in the notice did not 

correspond with the hearing date actually set by the court. As 

a result of this discrepancy, the hearing was rescheduled for 

January 25, 1989. 

 No transcript of the hearing was made, but the record 

reveals that no new evidence was presented by either party. 

The lodge filed a motion to dismiss the forfeiture proceeding. 

On August 29, 1989, the trial court overruled the motion to 

dismiss. The court of appeals sua sponte dismissed the lodge's 

appeal because the entry of the trial court did not constitute 

a final appealable order. 

 The trial court issued a judgment on the petition for 

forfeiture on November 7, 1990. It found that the department 

had shown by a preponderance of the evidence that the draw 

poker machines and money were contraband and were in the 

possession of the lodge in violation of R.C. 2933.42. The 

trial court ordered the property forfeited to the department. 

 On appeal, the lodge argued that the department had failed 

to comply with former R.C. 2933.43(C)'s procedural notification 

requirements for the forfeiture hearing, and for that reason 

the trial court should have dismissed the forfeiture action 

without reaching the merits. The lodge also argued that the 

trial court erred in finding that the department investigators' 

report was admissible evidence under Evid.R. 803(8) as a public 

record or report, and that the trial court erred in finding 

that the property was contraband. 

 The court of appeals affirmed the trial court and upheld 

the order of forfeiture. In particular, the court found that 

the lodge was not prejudiced by the department's failure to 

precisely comply with the notice provisions of R.C. 2933.43(C), 

and that strict compliance with the notice procedures was not 

required in this case. 

 The cause is now before this court upon the allowance of a 

motion to certify the record (case No. 91-1792). In addition, 

the appellate court found its judgment regarding the notice 

provisions of R.C. 2933.43(C) to be in conflict with the 

judgment of the Court of Appeals for Lucas County in State v. 

Jacobiak (Dec. 22, 1989), Lucas App. No. L-89-016, unreported, 

1989 WL 155185, and with the judgment of the Court of Appeals 

for Summit County in State v. Tysl (June 20, 1990), Summit App. 

No. 14348, unreported, 1990 WL 83971, and certified the record 

of the case to this court for review and final determination 

(case No. 91-2486). 

 

 Lee I. Fisher, Attorney General, and Kurt O. Gearhiser, 

Assistant Attorney General, for appellee. 

 John A. Connor II Co., L.P.A., John A. Connor II and 

Darrell E. Fawley, Jr., for appellant. 

 Wright, J. The issue certified for our review is: 

"Whether the notice requirements set forth in [former] R.C. 
2933.43(C) are mandatory or whether substantial compliance with 

the notice requirements is all that is required to vest the 

trial court with jurisdiction to proceed where the defendant 

has actual notice." Because the language of R.C. 2933.43(C) is 

mandatory, strict compliance with the notice and publication 

provisions contained therein is required. 

 In construing a forfeiture statute the court must begin 

with a fundamental premise: Forfeitures are not favored by the 

law. The law requires that we favor individual property rights 

when interpreting forfeiture statutes. To that end, "statutes 

imposing restrictions upon the use of private property, in 

derogation of private property rights, must be strictly 

construed." State v. Lilliock (1982), 70 Ohio St.2d 23, 26, 24 

O.O.3d 64, 65, 434 N.E.2d 723, 725. 

 The language of former R.C. 2933.43(C) is clear and 

unequivocal: the petitioner seeking forfeiture "shall give 

notice of the forfeiture proceedings by certified mail, * * * 

and shall publish notice of the proceedings once each week for 

two consecutive weeks in a newspaper of general circulation in 

the county in which the seizure occurred. The notices shall be 

mailed and first published at least four weeks before the 

hearing." (Emphasis added.) 

 It is axiomatic that when it is used in a statute, the 

word "shall" denotes that compliance with the commands of that 

statute is mandatory. The rule has been stated frequently and 

clearly: "In statutory construction, the word 'may' shall be 

construed as permissive and the word 'shall' shall be construed 

as mandatory unless there appears a clear and unequivocal 

legislative intent that they receive a construction other than 

their ordinary usage." Dorrian v. Scioto Conservancy Dist. 

(1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834, 

paragraph one of the syllabus.2 The lower courts of this state 

have long relied on this clear rule of construction.3 

 There is not even a remote indication, let alone "clear 

and unequivocal legislative intent," that the General Assembly 

considers the procedures set forth in R.C. 2933.43(C) to be 

permissive guidelines rather than mandatory instructions. 

Quite the contrary, the General Assembly chose mandatory 

language to assure that due process would be afforded in all 

cases in which the state seeks forfeiture. The General 

Assembly itself provided detailed safeguards in R.C. 

2933.43(C), including the requirements that diligent inquiry 

regarding ownership of the seized property be undertaken and 

that specific notice requirements and time limits be followed. 

It is not this court's prerogative to second-guess the General 

Assembly's legislative policy choices. 

 Concurring in State v. Casalicchio (1991), 58 Ohio St.3d 

178, 183, 569 N.E.2d 916, 921, Justice Douglas reflected on the 

language used by the General Assembly in R.C. 2933.43(C): 

"[T]he forfeiture statute is strong, but needed, medicine. 

Because of the endless possibilities of how the statute can be 

used by law enforcement agencies, the General Assembly 

obviously meant that certain procedural safeguards be 

followed. If those time-limit safeguards are not followed, 

then said the legislature, forfeiture may not take place. We 

should enforce, in this regard, the will of the legislative 

body." Id. at 184, 569 N.E.2d at 922. 
 The department argues, in effect, that substantial 

compliance with the notice and publication requirements of R.C. 

2933.43(C) adequately protected the lodge's due process rights, 

under the facts and circumstances of this case. The department 

misunderstands our role in reviewing the adequacy of due 

process protection. It is true that our inquiry is not limited 

to superficially considering whether the dictates of R.C. 

2933.43(C) were followed; we also consider whether 

constitutional due process rights were, in actuality, 

adequately protected. This court has an obligation to 

determine whether due process is afforded even when there is 

strict compliance with the requirements of the statute.4 

However, if strict compliance with the clear language of the 

statute does afford due process, our inquiry is complete. We 

are not permitted to decide whether something less than strict 

compliance, contrary to the clear intent of the legislature, 

might also meet minimal due process requirements in a 

particular case. 

 If the clear language of the statute is not sufficient to 

establish that it is mandatory, the actions of the General 

Assembly in amending R.C. 2933.43 provide additional support. 

Under former R.C. 2933.43(C), the law applicable here, law 

enforcement officials were required to provide notice of the 

forfeiture hearing by publication at least four weeks prior to 

the hearing. The hearing, in turn, was to be held no later 

than thirty days after the "conviction, or the admission or 

adjudication of the violation." This left the state only two 

days to file its petition and publish notice.5 

 However, in 1990 the General Assembly amended R.C. 

2933.43, in part, by increasing the amount of time before a 

hearing had to be held from thirty to forty-five days--which 

gives the state fifteen additional days to publish notice of 

the hearing. 143 Ohio Laws, Part I, 1457. This amendment 

addressed law enforcement's concern that it might be difficult 

to comply with the mandatory language of the statute. 

Moreover, it clearly reinforces the General Assembly's intent 

that the state must strictly comply with the procedural 

requirements of R.C. 2933.43. If the General Assembly was 

content to permit the statute to be directory rather than 

mandatory, it would not have seen the need to increase the 

state's time to comply with its provisions. 

 The broad definition of "contraband" contained in R.C. 

2901.01(M) reinforces the need for strict compliance with the 

notice and publication requirements of R.C. 2933.43(C). R.C. 

2933.42(A) provides that it is illegal to possess "contraband," 

as defined in R.C. 2901.01(M). R.C. 2933.42(B) makes clear 

that an expansive definition is to be given to the term 

"contraband," so that some property otherwise not within the 

scope of the definition may also be contraband, and subject to 

seizure and forfeiture in the proper situation. See State v. 

Baumholtz (1990), 50 Ohio St.3d 198, 199, 553 N.E.2d 635, 636. 

In State v. Casalicchio (1991), 58 Ohio St.3d 178, 179-181, 569 

N.E.2d 916, 918-919, this court recognized that R.C. 

2933.42(B)'s expansion of the definition of "contraband" has 

the effect of making property subject to forfeiture when the 

property's connection to an unlawful activity may not be 

great. Despite that observation, Casalicchio upheld the 
constitutionality of R.C. 2933.42 and 2933.43. 

 The term "contraband" now encompasses many different types 

of property. At one extreme is property which by its very 

nature is contraband, such as illegal narcotics (R.C. 

2901.01[M][5]); property of this type is summarily forfeited 

when seized. At the other extreme is property which may have 

only a minimal relationship to the illegal act committed, such 

as a motor vehicle involved in an alleged drug deal (R.C. 

2901.01[M][7]). Strenuous due process protections must be 

afforded in order to avoid unfair forfeitures where the 

property's status as contraband is unclear. As the connection 

between the illegal act and the alleged contraband associated 

with it becomes increasingly tenuous, the necessity for due 

process protection becomes increasingly important, and the 

observance of procedural requirements may not be summarily 

dispensed with. Strict compliance with the notice and 

publication requirements of R.C. 2933.43(C) is necessary to 

deal with the broad spectrum of property which is subject to 

forfeiture. Otherwise, law enforcement and the courts would 

have to engage in a case-by-case analysis to determine what 

measure of compliance is adequate. 

 Ironically, while the department's position is aimed at 

facilitating its ability to obtain forfeitures, in the long run 

it would in fact burden the justice system. Creating a 

case-by-case standard would place an unreasonable burden on 

both law enforcement agencies seeking forfeiture and courts 

ruling on forfeiture petitions. These agencies and courts 

would have to decide what level of compliance with the 

requirements of R.C. 2933.43(C) would satisfy due process in 

each and every case. At least substantial compliance would 

have to be found in those cases in which strict compliance is 

not necessary. This would create a two-tiered analysis: (1) 

the first tier would require the law enforcement agency and the 

courts to decide whether strict compliance or substantial 

compliance is enough to satisfy due process; and (2) if 

substantial compliance was sufficient, then the second tier 

would require determination of what constitutes substantial 

compliance under the particular facts and circumstances of each 

case. 

 This two-tiered analysis is completely unnecessary and 

would unduly complicate forfeiture proceedings for the state. 

Of even more concern, however, is the fact that by creating it 

we would be usurping the function of the General Assembly. We 

would not only be legislating by judicial fiat, but would also 

be doing so in a manner that negates protection specifically 

mandated by the legislature. 

 Because we hold that strict compliance with the notice and 

publication requirements of former R.C. 2933.43(C) is 

mandatory, we need not address the lodge's other propositions 

of law. The judgment of the court of appeals is reversed and 

the cause is remanded to the Franklin County Court of Common 

Pleas for dismissal. 

 Judgment reversed 

 and cause remanded. 

 Moyer, C.J., Sweeney, Holmes, H. Brown and Resnick, JJ., 

concur. 

 Douglas, J., not participating. 
 

FOOTNOTES: 

 1 Ohio Adm.Code 4301:1-1-53(B) provides: 

 "No person authorized to sell alcoholic beverages shall 

have, harbor, keep, exhibit, possess or employ or allow to be 

kept, exhibited or used in, upon or about the premises of the 

permit holder of any gambling device as defined in division (F) 

of section 2915.01 of the Revised Code which is or has been 

used for gambling offenses as defined in division (G) of 

Section 2915.01 of the Revised Code." 

 2 See, also, State ex rel. Plain Dealer Pub. Co. v. 

Barnes (1988), 38 Ohio St.3d 165, 527 N.E.2d 807; Lakewood v. 

Papadelis (1987), 32 Ohio St.3d 1, 511 N.E.2d 1138; State ex 

rel. Hanley v. Roberts (1985), 17 Ohio St.3d 1, 17 OBR 1, 476 

N.E.2d 1019; Malloy v. Westlake (1977), 52 Ohio St.2d 103, 6 

O.O.3d 329, 370 N.E.2d 457; State ex rel. Ewing v. Without A 

Stitch (1974), 37 Ohio St.2d 95, 66 O.O.2d 223, 307 N.E.2d 911; 

Dennison v. Dennison (1956), 165 Ohio St. 146, 59 O.O. 210, 134 

N.E.2d 574. 

 3 See, e.g., Perkins v. Ohio Dept. of Transp. (1989), 65 

Ohio App.3d 487, 584 N.E.2d 794; Toledo Trust Co. v. Yakumithis 

Enterprises, Inc. (1987), 35 Ohio App.3d 31, 519 N.E.2d 425; 

Ohio Council 8, AFSCME v. Weber (1985), 27 Ohio App.3d 133, 27 

OBR 164, 499 N.E.2d 1276; State v. Cichy (1984), 18 Ohio App.3d 

6, 18 OBR 30, 480 N.E.2d 90; Bilikam v. Bilikam (1982), 2 Ohio 

App.3d 300, 2 OBR 332, 441 N.E.2d 845; Stephan v. State 

Veterinary Med. Bd. (1960), 113 Ohio App.538, 18 O.O.2d 177, 

173 N.E.2d 389; Drugan v. Flaler (Ohio App. 1958), 161 N.E.2d 

786; State ex rel. Merrill v. Greenbaum (1948), 83 Ohio 

App.484, 38 O.O. 537, 84 N.E.2d 253; In re Buchanan's Estate 

(1948), 82 Ohio App.240, 37 O.O. 557, 81 N.E.2d 409; Haas v. 

Curry (M.C. 1974), 42 Ohio Misc. 1, 71 O.O.2d 30, 325 N.E.2d 

566; Page v. Bd. of Liquor Control (C.P. 1954), 69 Ohio Law 

Abs. 545, 53 O.O. 445, 121 N.E.2d 125. 

 4 For example, in Robinson v. Hanrahan (1972), 409 U.S. 

38, 93 S.Ct. 30, 34 L.Ed.2d 47, the state complied with the 

procedural requirements of the Illinois forfeiture statute, but 

the United States Supreme Court found that compliance 

inadequate under the Due Process Clause. 

 5 The department argues that the provisions of R.C. 

2933.43(C) are merely directory because "it could rarely, if 

ever, have met the publishing requirements of the old Ohio 

Revised Code 2933.43(C)." This argument belies the simplicity 

of the task. The department knew from the day of seizure that 

it intended to seek forfeiture. The petition used by the 

department is a boilerplate, fill-in-the blanks form. The 

department could have been ready to file and arrange for 

publication prior to receipt of the administrative decision.