Opinion
No. 6167
Decided February 9, 1960.
Appeal by Board of Liquor Control — From adverse ruling of Common Pleas Court — Appeal dismissed, when — Question of fact only presented.
Where, on appeal by the Board of Liquor Control from a decision of the Court of Common Pleas reversing a ruling of the board suspending a liquor permit, it appears that the trial court found insufficient evidence of an element necessary to be proved, and only a question of fact is presented on such appeal, a motion to dismiss such appeal will be sustained.
APPEAL: Court of Appeals for Franklin County.
ON MOTION to dismiss.
Mr. Charles T. Kaps, for appellee.
Mr. Mark McElroy, attorney general, Mr. Richard F. Swope, Mr. John W. Leibold and Mr. John A. Hoskins, for appellant.
The Board of Liquor Control has appealed from a decision of the Court of Common Pleas of Franklin County, which had reversed and set aside the ruling of the Board of Liquor Control suspending the permits of the Swallow Bar, Inc. The board has given as its assignment of error that "the lower court erred in ruling that the court could not consider the fact that Ernest Koslasky was the son of the president of Swallow Bar, Inc., and thereby limited the consideration and interpretation of the word, `agent,' and improperly reviewed the record as required by Section 119.12 of the Revised Code of Ohio."
The board feels that this appeal presents the question as to whether the word, "agent," as used in Section 4301.25 (A) of the Revised Code of Ohio, necessitates a complete disregard of the relationship of the parties in ascertaining whether the party convicted was an agent of the permit holder. The judge of the Court of Common Pleas in his decision stated:
"The transcript shows without dispute that the Sunday sale of whiskey here involved, occurred on the appellant's permit premises; the certified copy of the conviction for making such sale is undisputed. For the purposes of the appeal, we must assume that Ernest Koslasky was a complete stranger to the appellant. He was related to the president of the appellant corporation but there is absolutely no evidence in the record that he was an agent or employee of the appellant corporation."
Swallow Bar, Inc., moves for an order dismissing the appeal for the reason that this court does not have jurisdiction to hear an appeal by an administrative agency pursuant to Section 119.12 of the Revised Code of Ohio, where the only question presented upon appeal is one of fact.
The board in opposing the motion to dismiss states that the only question presented by the facts in this case is whether Ernest Koslasky was an "agent" of the appellant corporation, and feels that the appeal should not be dismissed because the trial court did not properly interpret the meaning of the word, "agent," and the appeal presents a question of law as to whether the legal definition of agent excludes a family relationship.
It appearing from the above quoted statement of the trial judge that based upon the record he found insufficient evidence of agency, and only a factual question is presented here on this appeal, the motion to dismiss will be sustained. See Katz v. Department of Liquor Control, 166 Ohio St. 229.
Motion sustained.
BRYANT, P. J., concurs.
MILLER, J., not participating.