Liquor Control Act — Permit required to dispense alcoholic beverages — Holder of permit subject to provisions of act — Powers and duties of Department of Liquor Control — Delegation of powers — Sale of diluted liquor prohibited — Permit holder subject to inspection by department — Removal of bottles of intoxicants from premises for inspection — Possession of diluted liquor or refilled containers — Scienter or guilty knowledge not required — Evidence — Contents of bottles analyzed admissible.
1. One engaging in the dispensing and sale of alcoholic beverages is required by statute to secure a permit from the state to carry on such business and is subject to the provisions of the Liquor Control Act in the conduct thereof.
2. Section 4301.10, Revised Code, sets forth the powers and duties of the Department of Liquor Control and provides, inter alia, that it shall control the traffic in beer and intoxicating liquor, including the sale thereof, enforce the laws pertaining thereto, inspect upon demand the place of business of any permit holder, delegate to its agents any powers of investigation which the department itself possesses and exercise all other powers expressly or by necessary implication conferred on it by the laws governing the dispensing and sale of alcoholic beverages.
3. Section 4301.68, Revised Code, a measure designed to protect the purchasers and consumers of alcoholic beverages, expressly prohibits any person from selling, offering for sale or possessing intoxicating liquor in any original container which has been diluted, or which container has been refilled or partly refilled.
4. One who applies for and is issued a permit to sell intoxicating beverages thereby subjects himself to the provisions of the Liquor Control Act and assents to the reasonably exercised inspection and examination by the agents of the Department of Liquor Control of his permit premises, including bottled intoxicants which he possesses and offers for sale thereon, and a removal of bottles of intoxicants from the permit premises by such agents for examination and testing in a state laboratory to determine whether they comply with lawful requirements is authorized by the provisions of the Liquor Control Act.
5. Section 4301.68, Revised Code, in its wording does not require scienter or guilty knowledge on the part of one who is affected thereby.
6. Where a permit holder is charged with a violation of Section 4301.68, Revised Code, the contents of the bottles of intoxicants lawfully taken from his premises by agent of the Department of Liquor Control, which, when analyzed and laboratory tested by a state chemist, are found to be deficient and violative of the provisions of such statute, are admissible in evidence at the hearing provided by statute before the Liquor Control Commission, wherein the matter for determination is the suspension or revocation of the permit.
ZIMMERMAN, J.
In approaching a decision in this case, it is of importance to consider the nature of the liquor business, particularly as it here relates to the dispensing and sale of intoxicating liquor at retail by the glass. Because of the harmful potentialities incident to the conduct of such business, those engaging therein must obtain a permit from the state and are thereafter subject to strict regulation by statute and by rules and regulations adopted and promulgated pursuant to statutory authority by the Department of Liquor Control, the regulating and supervising agency created by the state to oversee and police, as it were, the liquor business. One who applies for and is issued a permit to sell alcoholic beverages thereby assents to the reasonable and lawful conditions imposed by statute and rule.
Section 4301.10, Revised Code, sets forth the powers and duties of the Department of Liquor Control. As pertinent here, that section provides:
"(A) The Department of Liquor Control shall:
"(1) Control the traffic in beer and intoxicating liquor in this state, including the manufacture, importation, and sale thereof;
"* * *
"(4) Enforce Chapters 4301. and 4303. of the Revised Code * * *;
"* * *
"(6) Inspect, upon demand, the books, accounts, records, memorandums, and place of business of any person subject to Chapters 4301. and 4303. of the Revised Code * * *;
"(7) Delegate to any of its agents or employees any power of investigation which the department possesses * * *;
"(8) Exercise all other powers expressly or by necessary implication conferred upon the department by Chapters 4301. and 4303. of the Revised Code * * *." (Emphasis supplied.)
In the opinion of a majority of this court, the terms of the statute quoted above are sufficiently broad and comprehensive to allow agents of the department to enter the business premises of a permit holder to determine whether in the operation of his business he is complying with the laws and regulations governing that business. A permit holder is not without remedy in the courts for unauthorized abuses perpetrated by agents of the department.
As we have already noted, Section 4301.68, Revised Code, a statute designed to protect the customer and found in the Liquor Control Act, expressly prohibits any person from selling, offering for sale or possessing "intoxicating liquor in any original container which has been diluted, refilled, or partly refilled." Such provision is plain, unambiguous and explicit and cannot be misunderstood. The statute is not of the kind where scienter or guilty knowledge must be alleged and proved. See Andrews v. Board of Liquor Control, 164 Ohio St. 275, 278, 131 N.E.2d 390, 392. Compare State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313, first paragraph of the syllabus; State v. Healy, 156 Ohio St. 229, 102 N.E.2d 233; State v. Lisbon Sales Book Co., 176 Ohio St. 482, 200 N.E.2d 590; and 21 American Jurisprudence 2d 169, Section 89 et seq.
Where a permit holder is suspected of a violation of Section 4301.68, Revised Code, laboratory analysis of the contents of labeled bottles of spirituous liquors is the most accurate means to determine whether such contents have been diluted or tampered with in violation of the Liquor Control Act, and the power given the Department of Liquor Control to "inspect" a permit holder's premises carries with it the power to effectively examine his bottled intoxicants within reasonable limits to discover their quality and strength. Ordinarily, the honest permit holder will not be disturbed and has nothing to fear; others must abide the possible consequences of their unlawful conduct.
Our conclusion is that the appropriation of appellee's bottles of whiskey and the analysis of their contents were authorized under the Liquor Control Act, and that by applying for and accepting a permit to sell intoxicating beverages appellee made herself amenable to the provisions of that law and thereby consented to the inspection of the premises and the appropriation for analysis of any intoxicating liquor suspected to be in violation of the liquor control laws. We think it can fairly be said that appellee's appropriated bottled whiskey intended for sale to bar patrons, which upon analysis showed a proof below that listed on the bottle labels, came within the classification of contraband property under the prohibitory terms of Section 4301.68, Revised Code. It follows that such bottles of whiskey were properly admitted in evidence at the hearing before the Liquor Control Commission.
Because of the position taken, it becomes unnecessary to consider and discuss the question of whether the exclusionary rule announced by the Supreme Court of the United States in the criminal case of Mapp v. Ohio, supra, and kindred cases is applicable to hearings before a public administrative agency like the Liquor Control Commission in instances where only the suspension or revocation of a liquor permit is involved. See 1 Ohio Jurisprudence 2d 490, 491, Sections 90 and 91; 2 American Jurisprudence 2d 187, Section 380; 42 American Jurisprudence 445, 446, Section 114; 73 Corpus Juris Secundum 445, Public Administrative Bodies and Procedure, Section 125 et seq.
This court has held that a permit to sell intoxicating beverages is not property but a mere license which may be suspended or revoked for good cause shown. State, ex rel. Zugravu, v. O'Brien, 130 Ohio St. 23, 196 N.E. 664; and Abraham v. Fioramonte, 158 Ohio St. 213, 107 N.E.2d 321, 33 A.L.R. 2d 1267.
The evidence introduced before the commission was relevant and pertinent to the charge against the appellee and was sufficient to support the commission's determination that appellee had committed an offense interdicted by statute and to support the affirmance of the commission's order by the Court of Common Pleas.
Accordingly, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.
Judgment reversed.
MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.
TAFT, C.J., concurs in the syllabus except for the portion of paragraph four after the second comma therein.