Grand jury sides with gelatin-shot company

Substance-abuse officials are concerned that Zippers, a gelatin product that contains about as much alcohol as a glass of wine, could end up in children's hands.

A Lucas County grand jury yesterday refused to issue an indictment against a Toledo business in connection with a transaction for a shipment of its alcohol gelatin products to Wyoming.

The case presented to the grand jury stems from an investigation conducted by Ohio liquor control officials into BPNC, Inc., which owns the trademark for Zippers, an alcohol gelatin shot.

In June, Ohio liquor agents and police conducted a raid on BPNC's offices in the SeaGate Business Center on North 14th Street. They seized computers, cases of products, vehicles, documents, and other items.

The nine-member grand jury was asked to return an indictment against BPNC for tampering with evidence.

The panel was presented evidence by prosecutors. Attorneys representing BPNC said Nick Constanzo, a BPNC founder and vice president, and Becky Pearson, the company treasurer, also were questioned.

John Weglian, chief of the special units division of the county prosecutor's office, said the charge was sought because of a payment BPNC received in March from Wyoming officials for Zippers products.

“The grand jury did not feel there was enough evidence to warrant a prosecution in respect to the sale of alcoholic products to the state of Wyoming Department of Liquor Control,” Mr. Weglian said.

According to an affidavit filed with the clerk of court, Ms. Pearson filled out a taxpayer identification and certification form and submitted the document to Wyoming Liquor Division, a requirement for distribution of alcoholic products in the state.

Wyoming received the product from a distillery in Lodi, Ohio, and sent the payment of $1,000 to BPNC in Toledo. Mr. Weglian said BPNC is not licensed to manufacture or solicit the product on behalf of the distillery.

However, Jerome Phillips, an attorney who represents BPNC, said the payment was incorrectly sent to BPNC, but that Ms. Pearson brought the error to the attention of the Ohio Department of Liquor Control.

“It was an honest mistake. When they found out about it, they tried to correct it,” Mr. Phillips said.

“The money came into our office, which was not legal,” Mr. Constanzo said. “It was a clerical error. We found the error and we reported it to the state Department of Liquor Control.”

The investigation into Zippers occurred about the same time the product was criticized for looking too much like containers of Jell-O. The company recently redesigned the outer wrapper in response to the complaints.

Mr. Phillips praised the prosecutor's office for permitting Mr. Constanzo and Ms. Pearson to testify before the grand jury.

“My clients are very relieved that this chapter is over,” he said. “Prosecutors were very fair and open about this. They allowed our clients to present the evidence we had. I think they handled it very appropriately.”

Investigators for the Ohio Department of Liquor Control who started the investigation could not be reached for comment.

Mr. Weglian said he did not know if a grand jury would be asked to consider additional charges in a future session.

A hearing is scheduled for Friday before Judge William Skow on a motion filed by BPNC challenging the search warrant used to seize company property. BPNC claims authorities gave false and misleading statements in court to obtain the search warrant.