
    Harlem Social Club, Inc., Appellee, v. Board of Liquor Control, Appellant.
    
      (No. 5855
    Decided February 18, 1958.)
    
      Messrs. Cliamblin, Morgan & Hunsinger, for appellee.
    
      Mr. William Saxbe, attorney general, and Mr. Chester Hummell, for appellant.
   Hornbeck, J.

This is an appeal from a judgment of the Common Pleas Court reversing an order of the Board of Liquor Control which had affirmed an order of the Department of Liquor Control. The order of the board is that the class D-4 permit of permittee should be suspended for a period set out in the order.

At the outset, we note the three propositions urged orally by counsel for appellee.

1. The judgment is not subject to an appeal to this court. An examination of the record discloses that matters were considered which shaped the judgment and support the right of the board to appeal.

2. The charge was modified by the opening statement of the assistant attorney general. We cannot find that the observation made was of sufficient consequence to require the conclusion that the charge was to be restricted to a violation of a regulation of the board. Manifestly, the board did not so consider the statement.

3. There is complete lack of proof. We are satisfied that there was a factual issue whether the finding that there had been a violation of the provisions of the Liquor Control Act is supported by reliable, probative and substantial evidence.

The charge against the permittee is that on the date set out the permittee, its agent or employee did prevent, hinder and obstruct officers of the law from making an inspection of the permit premises while in the lawful performance of their duty, in violation of provisions of the Liquor Control Act and the regulations of the Board of Liquor Control. The finding of the board is that ‘ ‘ the allegations of the Director of the Department of Liquor Control are well taken and supported by the evidence.” On the appeal to the Common Pleas Court, it was found that “the order of the board is not in accordance with law.”

At the time of the hearing on the appeal to the board, counsel for the director stated that the hearing proceeded upon a charge of violation of Regulation 62 of the Board of Liquor Control. An examination of the opinion of the judge of the Common Pleas Court who heard the appeal to that court discloses that the appeal was tried and determined upon the theory that the sole charge under review relates to a violation of Regulation 62.

Regulation 62, so far as pertinent to this appeal, provides:

“Any holder of a permit issued, by the department upon presentation of credentials by an investigator or inspector of the department shall at all times immediately admit such investigator to the permit premises for any lawful purpose. ’ ’

Section 4301.66, Revised Code, reads as follows:

“No person shall hinder or obstruct any agent or employee of the Department of Liquor Control, or any officer of the law, from making inspection or search of any place, other than a liona fide private residence, where intoxicating liquor is possessed, kept, sold, or given away. ’ ’

It will be noted that neither the charge nor the evidence has .any reference to Regulation 62. The charge makes no mention of an inspector or investigator of the department nor does it follow the language of Regulation 62 in any particular. Both the charge and the evidence relate to the offense defined in Section 4301.66, Revised Code. The charge states that the violation was of both the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.

So far as the judgment of the Common Pleas Court relates to the offense alleged to be a violation of the regulations of the Board of Liquor Control, it is correct. However, it clearly appears that the other aspect of the charge to which the evidence was directed was given no consideration in the Common Pleas Court. We make this determination from the written opinion of the trial judge, which we have the power to do by authority of Andrews, Jr., v. Board of Liquor Control, 164 Ohio St., 275, 131 N. E. (2d), 390.

It is obvious, then, that inasmuch as one phase of the charge against the permittee was given no consideration by the Common Pleas Court, it should have that opportunity and have passed upon the question whether the order of the board as related to a violation of the Revised Code is supported by reliable, probative, and substantial evidence.

The judgment as it relates to the charge of the violation of a regulation of the Board of Liquor Control is affirmed. It is reversed and remanded for consideration and determination of the appeal from the order of the Board of Liquor Control as it relates to the charge of a violation of the Liquor Control Act.

Judgment affirmed in part and reversed in part.

Petree, P. J., and Miller, J., concur.

Hornbeck, J., of the Second Appellate District, sitting by designation in the Tenth Appellate District.  