Liquor and Tobacco Control

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

State v. Pelfrey, 167 Ohio App. 3d 388, 2006-Ohio-1416 -- Despite father's testimony that he bought a 12-pack of beer for his son to drink at home, son was found guilty of underage drinking. Cop arrested the kid after he was unable to awaken the parents. The parental supervision defense does not require drink by drink supervision. It is sufficient that the parent was present at the house. Reversed.
 
State v. Davis (1999), 133 Ohio App. 3d 114 -- Officer's observation of apparent underage drinking did not amount to exigent circumstances justifying warrantless entry of apartment to effect arrest.
 
State v. Scott M. (1999), 135 Ohio App. 3d 253 -- Officers investigating a loud music complaint stepped into apartment when door was opened by a nonresident, and refused to step outside when asked to do so by the resident. (1) Exigent circumstances did not validate warrantless entry. Where only a minor offense is involved the presumption that a warrantless entrance entry is unreasonable is difficult to rebut. (2) Good faith does not apply as the entry was without a warrant. (3) Plain view does not apply as the officers' access to the point of observation was in violation of the Fourth Amendment.
 
Garfield Heights v. Skerl (1999), 135 Ohio App. 3d 586 -- Metroparks ordinance prohibiting drinking, possessing, sale or offer for sale of alcoholic beverages held not to apply to possession of an unopened bottle of beer transported in an auto.
 
Akron v. Holland Oil Company 146 Ohio App. 3d 298, 2001-Ohio-1415 -- Corporation was prosecuted for underage sale of alcohol in violation of R.C. 4301.69(A). At the pretrial the state was allowed to amend the complaint to allege a violation of R.C. 2901.23. Before trial the prosecutor realized that section related to organizational liability, but does not define offense. No prejudice in allowing amendment back to original form. Initial complaint and a fax indicating amendment would be sought gave adequate notice to the accused.
 
Akron v. Holland Oil Company, 149 Ohio App. 3d 14, 2002-Ohio-4150 -- Evidence did not support conviction of corporation for underage sale by an employee who had been trained to to make such sales and trained that company policy was demand identification from any customer who appeared less than thirty. Employee was not proven to be acting within the course and scope of his employment.
 
State v. Stackhouse, Portage App. No. 2002-P-0057, 2003-Ohio-2111 -- (1) In a prosecution for sale of tobacco to a minor, it was not necessary to test the content of an unopened pack of commercial cigarettes to determine the actual presence of a tobacco product. (2) It is not against public policy to use a minor to purchase cigarettes as a part of an investigation. R.C. 2157.87(E)(2) specifically permits such engagement
 
AL Post 763 v. Ohio Liquor Control Commission (1998), 82 Ohio St. 3d 108 -- Syllabus: "(1) The reasonable expectation of privacy in liquor permit premises is minimal because permit holders, regardless of permit class, consent to inspection of the premises by authorized agents through the provisions of the Liquor Control Act and accompanying administrative rules and regulations. (2) When conducting a warrantless administrative search pursuant to a constitutionally valid statutory inspection program, peace officers and authorized agents or employees of the Department of Liquor Control need not identify themselves prior to gaining entry to permit premises."
 
Ohio Department of Liquor Control v. Fraternal Order of Eagles Aerie 2293 (1996), 112 Ohio App. 3d 94 -- Liquor agent obtained name of owner of car in lot, then told doorman he was looking for that person. Misrepresentation meant admission was not by consent. Consequently, seized property was not in plain sight.
 
Loyal Order of Moose Lodge 1044 of Troy v. Ohio Liquor Control Commission (1995), 105 Ohio App. 3d 306 -- Liquor control agent sneaked into private club and observed illegal gambling activity, which led to civil liquor permit revocation proceedings. Administrative suspension was appealed to Common Pleas Court, then to the court of appeals. Court finds exclusionary rule is applicable in these circumstances. Compare VFW Post 9622 v. Liquor Control Commission (1996), 109 Ohio App. 3d 762.
 
American Legion Post 0046 Bellevue v. Ohio Liquor Control Commission (1996), 111 Ohio App. 3d 795 -- Constitutional challenge of administrative search regulation was waived by permit holder's failure to appear at initial administrative hearing.
 
State v. Reed (1998), 128 Ohio App. 3d 520 -- Parental permission defense to underage consumption required presence of parent during consumption. Mother gave 19 year old a six pack. Court was not required to accept son's claim he stopped drinking when mother left for Buffalo. Beer cans littered the property and guests ran into the woods when police arrived on a noise complaint.
 
State v. Mihm (1994), 92 Ohio App. 3d 242 -- Nineteen year old consumed some alcohol at his parents home, with their permission, before going to a concert with friends. Held that the affirmative defense of parental permission for consumption at home was not waived when he later left home without his parents.
 
Logan v. Cox (1993), 89 Ohio App. 3d 349 -- Defendant was charged (twice) with underage possession of alcohol based on results of blood tests, and nothing more. Held that presence of alcohol in the system, standing alone, is insufficient to establish possession.
 
State v. Aller (1992), 82 Ohio App. 3d 9 -- Juvenile was charged with being delinquent based on consumption of alcohol. Upon failure to prove consumption instead of mere proximity, juvenile was found unruly on amended complaint. Amendment held to be a violation of due process.
 
State v. Chumbley (1998), 128 Ohio App. 3d 323 -- Strict liability is the culpable mental state for sale of alcohol to a minor in violation of R.C. 4301.69. Also see State v. Cheraso (1988), 43 Ohio App. 3d 221. Compare dissent and also see State v. Parker (1994), 66 Ohio Misc. 2d 1, holding recklessness to be the culpable mental state, and finding it was not shown where the bartender could not recall checking the specific minor's hand stamp, but routinely did so before serving alcoholic beverages, and the minor had a stamp allowing such purchase. Other cases holding recklessness to be the culpable mental state: State v. Sleppy (1992), 62 Ohio Misc. 2d 394; State v. McChee (1984), 12 Ohio Misc. 2d 18.
 
State v. Jones (1989), 57 Ohio App. 3d 155 -- R.C. 4301.69 is a strict liability offense, but subject to the affirmative defense of good faith acceptance of false ID set forth in R.C. 4301.639. Also see State v. Rich (1982), 4 Ohio App. 3d 77.
 
State v. Smathers (1996), 113 Ohio App. 3d 155 -- Penalty provision for sale to minors called for a fine of not less than $500, nor more than $1000. Court had the authority to suspend all or part of the fine as the statute did not specifically state it was mandatory or nonsuspendable.
 
State v. Droste (1998), 83 Ohio App. 3d 36 -- A liquor control investigator does not have the authority to stop a driver for violating traffic laws if he was not in the process of investigating one of the offenses listed in R.C. 5502.61.
 

Publishing Information

Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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