Opinion
No. 4332
Decided March 7, 1950.
Intoxicating liquor — Sale to minor prohibited — Section 6064-22, General Code — Seller's knowledge necessary element of offense.
In order to constitute a violation of the provision of Section 6064-22, General Code, prohibiting the sale of intoxicating liquor to a minor, the seller must have had actual or constructive knowledge that the liquor sold was to be transferred or given to the minor.
APPEAL: Court of Appeals for Franklin county.
Mr. Gregory C. Karas and Mr. Joseph J. Poorman, for appellant. Mr. Herbert S. Duffy, attorney general, and Mr. Charles T. Kaps, for appellees.
This cause comes before this court on an appeal from a judgment of the Court of Common Pleas affirming a ruling of the Board of Liquor Control suspending the D-5 liquor permit of the appellant for a period of 45 days, for selling intoxicating liquor to a minor 18 years of age.
The record discloses that on or about February 22, 1948, the appellant was engaged in the retail liquor business and one Dessie Dean Shoun, a minor of the age of 18 years, in company with three adult friends visited the appellant's tavern on that date. It was around midnight and the place was crowded. On one side of the room was a long bar. There was insufficient room for the entire party to stand up to the bar, hence the minor in question stood immediately to the rear of those in the party who were able to get up to the bar. After conversing for some time, the other female adult member of the party purchased four drinks of whisky and handed one to the minor, which drink she consumed. The appellant admits the sale of the liquor, but denies that the sale was made to the minor or that he had any knowledge that it was to be consumed by her. There is nothing in the record to indicate that the minor requested that the liquor be purchased for her. The question involved is whether, under this state of facts, the appellant violated Section 6064-22, General Code, which provides in part as follows:
"No beer shall be sold to any person unless he shall have attained the age of eighteen years; and no intoxicating liquor shall be sold to or handled by any person unless he shall have attained the age of twenty-one years."
The Common Pleas Court found that there was substantial evidence before the board tending to show a violation and, since it was only a reviewing court, it could not weigh the evidence, and cited Farrand v. State Medical Board, 151 Ohio St. 222, 85 N.E.2d 113. We think this is a correct interpretation of the law applicable and therefore the only question for our determination is whether there was sufficient evidence before the board to sustain the finding.
In giving consideration to this question it becomes necessary to examine the definition of the word "sell" as defined by Section 6064-53, General Code, which provides:
"`Sale' and `sell' include exchange, barter, gift, offer for sale, sale, distribution and delivery of any kind, and the transfer of title or possession of beer and intoxicating liquor either by constructive or actual delivery by any means or devices whatsoever."
Now the record discloses that neither the appellant nor any of his agents had knowledge that the intoxicating liquor was to be consumed by Dessie Dean Shoun, and such knowledge may not be reasonably inferred from all the surrounding facts and circumstances. In order that there be a sale violation under Section 6064-22 (1), General Code, it is necessary that the one charged with such violation had either actual or constructive knowledge that the liquor sold was to be transferred or given to the minor.
As we find no evidence to support this charge the judgment of the Common Pleas Court is reversed as well as the ruling of the liquor board. The cause is ordered remanded with instructions that the charges be dismissed.
Judgment reversed.
HORNBECK and WISEMAN, JJ., concur.