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DDDJ8/30/1990
McCORMAC, Judge.
Appellant, DDDJ, Inc., appeals from the judgment of the Franklin County Court of Common Pleas affirming the order of appellee, Liquor Control Commission, suspending appellant's liquor permit for two days and raises the following assignments of error:
"I. The court of common pleas erred in finding that the commission's decision was in accordance with law.
"II. The court of common pleas erred in rejecting appellant's contention that rule 4301:1-1-50 is void for vagueness and a violation of the due process of law."
The February 22, 1989 hearing before the commission proceeded on a stipulated set of facts as supplemented by the testimony of Dennis Wilhelm, president of D-5-6 permit holder DDDJ, Inc. The stipulated facts were contained in various liquor investigator's incident reports which were admitted into evidence.
The incident reports show that, on August 11, 1988 at 11:30 p.m., three undercover Cincinnati police officers entered the permit premises to investigate a radio advertisement of "drinks all night for $.95." At the door, the officers were each charged $1.95 cover charge which they were told was to defray the cost of the drinks specials. Once inside, the officers separated, one sitting alone and two taking seats at a table together. The single officer ordered a drink and was charged $1.50, the normal price. The two officers seated together ordered similar drinks and were charged $1.90, the advertised reduced price. Sometime thereafter, the third officer joined the other two at their table and, on repeated occasions throughout the night, the officers were charged amounts less than the $1.50 per drink normal charge.
On September 15, 1988, two liquor investigators visited the permit premises. On this evening, the same scene was repeated. The investigators paid cover charges and purchased liquor at a reduced price after 9:00 p.m. As sconsequence, appellant was issued violation notices on August 26 and September 15, 1988.
Appellant's first assignment of error contends that the commission's order was contrary to law in that the commission is powerless to regulate prices established by retail businesses. Appellant was found to be in violation of Ohio Adm.Code 4301:1-1-50(B), which provides:
"All permit holders shall maintain on their permit premises a schedule of prices for all drinks of alcoholic beverages to be served and/or consumed thereon. Such prices shall be effective for not less than one calendar month dating from twelve p.m. on the first day of each month. Prior to nine p.m., any of these alcoholic beverages may be sold or furnished at a lower price during happy hour periods. After nine p.m., no permit holder shall offer to sell, furnish, or deliver to any person any alcoholic beverages at a price less than the regularly charged price for such beverage as established by the aforementioned schedule of prices."
In support, appellant relies on the Supreme Court case of Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 71 O.O.2d 366, 329 N.E.2d 693. Under the facts of Burger, the court determined that the commission could not regulate the pricing and marketing systems of manufacturers and wholesalers of malt beverages. The court reasoned that, since an administrative agency has only that authority as has been delegated to it by the General Assembly, the commission could not regulate prices in the manner it sought, absent statutory authority. The court's decision was based upon the lack of statutory authorization and does not represent the broad ban on price regulations that appellant suggests. Even if Burger could be construed as appellant
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