Highland Tavern, L.L.C. v. DeWineHighland Tavern, L.L.C. v. DeWine
Rendered on November 16, 2021
On brief: Law Offices of Warner Mendenhall, Warner Mendenhall, Brian Unger, and Logan Trombley, for appellants. Argued: Warner Mendenhall.
On brief: Dave Yost, Attorney General, Bridget C. Coontz, and Joseph E. Schmansky, for appellees. Argued: Joseph E. Schmansky.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiffs-appellants, Highland Tavern, LLC and Highland Square Tavern, LLC, appeal from a decision and entry of the Franklin County Court of Common Pleas granting the motion to dismiss of defendants-appellees, Michael DeWine, in his official capacity as Governor of the State of Ohio, Ohio Liquor Control Commission, Deborah Pryce, in her official capacity as Chairman of the Ohio Liquor Control Commission, James E. Carnes, in his official capacity as Vice Chairman of the Ohio Liquor Control Commission, and Mike Stinziano, in his official capacity as Member of the Ohio Liquor Control Commission. For the following reasons, we affirm.
{¶ 2} In July 2020, as part of the ongoing response to the COVID-19 pandemic, Governor DeWine issued an executive order allowing the Liquor Control Commission to suspend normal rule-making procedures and pass emergency rules related to COVID-19. The Liquor Control Commission then enacted
{¶ 3} Highland Tavern is the holder of a class D-1, D-2, D-3, D-3a, and D-6 liquor permit. Highland Square Tavern owns and operates Highland Tavern, located in Akron. While Rule 80 was in effect, Highland Tavern received citations for violating Rule 80 three times during the month of August 2020. During that same time frame, Highland Tavern also received a citation for a violation of
{¶ 4} Highland Tavern appealed the three citations, and the Liquor Control Commission conducted a September 8, 2020 hearing on each of the three citations. Following the hearing, the Liquor Control Commission found Highland Tavern to be in violation of Rule 80 and Rule 52 and revoked its liquor permit, effective October 2, 2020. Highland Tavern appealed the revocation of its permit to the trial court pursuant to the procedures set forth in
{¶ 5} On November 25, 2020, while the administrative appeal was still pending and four days before Rule 80‘s expiration date, appellants filed the instant complaint seeking (1) a declaration that Rule 80 is unconstitutional as violative of both the separation of powers doctrine of the Ohio Constitution and substantive due process rights under the
{¶ 6} Subsequently, on January 4, 2021, appellees filed a motion to dismiss pursuant to
{¶ 7} In a March 31, 2021 decision and entry, the trial court granted appellees’ motion to dismiss. The trial court found it lacked jurisdiction over the claims because Highland Tavern was seeking to bypass the special statutory proceeding governing the revocation of a liquor permit. In the alternative, the trial court found that appellants’ complaint failed to state a claim under
II. Assignments of Error
{¶ 8} Appellants assign the following errors for our review:
- The trial court erred in granting Appellees’ motion under Civ.R. 12(B)(6).
- The trial court erred in granting Appellees’ motion under Civ.R. 12(B)(1).
For ease of discussion, we address appellants’ assignments of error out of order.
III. Second Assignment of Error - Dismissal Pursuant to Civ.R. 12(B)(1)
{¶ 9} In their second assignment of error, appellants argue the trial court erred in granting appellees’ motion to dismiss pursuant to
{¶ 10}
{¶ 11} A declaratory judgment action is a civil action that provides a remedy in addition to other legal and equitable remedies that may be available. Burge v. Ohio Atty. Gen., 10th Dist. No. 10AP-856, 2011-Ohio-3997, ¶ 7, citing Victory Academy of Toledo v. Zelman, 10th Dist. No. 07AP-1067, 2008-Ohio-3561, ¶ 8. The purpose of the Declaratory Judgments Act, codified at
{¶ 12} As a general matter, a court of common pleas has jurisdiction to issue a declaratory judgment regarding a question of the construction or validity of a statute and to declare rights, status, and other legal relations under it. State ex rel. Gelesh v. State Med. Bd. of Ohio, 172 Ohio App.3d 365, 2007-Ohio-3328, ¶ 24 (10th Dist.). However, “it is well-established that declaratory judgment actions are inappropriate where special statutory
{¶ 13} “Ohio courts have consistently held that ‘where the General Assembly has enacted a complete and comprehensive statutory scheme governing review by an administrative agency, exclusive jurisdiction is vested within such agency.‘” CannAscend at ¶ 33, quoting Kazmaier Supermarket v. Toledo Edison Co., 61 Ohio St.3d 147, 153 (1991). Appellees assert, and the trial court found, that the trial court lacked subject-matter jurisdiction because Highland Tavern‘s declaratory judgment seeks to bypass the statutory scheme governing the revocation of liquor permits.
{¶ 14} Under
{¶ 15} Having found there exists a special statutory proceeding applicable to the revocation of liquor permits, the timing of appellants’ complaint for declaratory judgment is also relevant in determining whether the subject of the declaratory judgment action is a matter committed to the special statutory proceeding. Here, appellants were already engaged in the administrative review process related to the revocation of their liquor permit when they filed the instant action for declaratory relief. This court has found that where a plaintiff is already participating in the administrative process at the time it seeks a declaratory judgment on matters related to the administrative proceedings, the declaratory judgment is an “attempt[] to bypass the applicable statutory proceedings.” One Energy Ents. at ¶ 49, citing Arbor Health Care Co. v. Jackson, 39 Ohio App.3d 183 (10th Dist.1987), and Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d 146 (1992); Champaign Cty. Nursing Home v. Tompkins, 10th Dist. No. 98AP-255, 2003-Ohio-1706, ¶ 34, 46 (as the plaintiffs “had an [administrative] appeal” pending when they filed the action for declaratory judgment, the declaratory judgment action was an attempt to “bypass, rather than supplement” the legislative scheme applicable to Medicaid reimbursement); Dept. of Job & Family Servs. v. Lifeway for Youth, Inc., 173 Ohio App.3d 648, 2007-Ohio-6183, ¶ 7 (10th Dist.) (trial court lacked jurisdiction to enjoin ODJFS from continuing with its own statutory proceedings); Gelesh at ¶ 26. Accordingly, if the subject of appellants’ declaratory judgment action is a matter related to its pending administrative proceeding, the declaratory judgment action is an improper attempt to bypass the statutory proceedings, and the trial court lacks jurisdiction to hear the case.
{¶ 16} Though appellants acknowledge they were participating in the administrative process at the time they sought declaratory judgment, they argue that the subject of the declaratory judgment was not a matter related to their pending administrative proceeding. More specifically, appellants assert they could not have brought a facial constitutional challenge to Rule 80 in the administrative proceedings before the Liquor Control
{¶ 17} “The Supreme Court of Ohio has held that an appellant may raise a facial constitutional challenge in an administrative appeal even where the appellant did not raise that challenge before the commission or agency.” State ex rel. Kingsley v. State Emp. Relations Bd., 09AP-1085, 2011-Ohio-428, ¶ 18, citing Reading v. Pub. Util. Comm. of Ohio, 109 Ohio St.3d 193, 2006-Ohio-2181, ¶ 15-16, and Derakhshan v. State Med. Bd. of Ohio, 10th Dist. No. 07AP-261, 2007-Ohio-5802 (permitting an appellant to raise, on appeal from the medical board‘s decision, a facial constitutional challenge to the statute upon which the medical board relied to revoke his medical license). Additionally, a court in an administrative appeal may consider an as-applied constitutional challenge, though “when a litigant challenges the constitutionality of a statute as applied to a specific set of facts, extrinsic facts are needed, and the litigant must raise the as-applied challenge, in the first instance, before the administrative agency to allow the parties to develop an evidentiary record.” Kingsley at ¶ 18, citing Reading at ¶ 15-16. Under either framework, therefore, appellants could have raised their arguments about the constitutionality of Rule 80 during the administrative appeal process under
{¶ 18} Additionally, appellants argue that even if they could have brought a constitutional challenge during the administrative proceedings, they were not required to do so. Therefore, appellants assert their action for declaratory judgment may exist
{¶ 19} Here, appellants were already participating in the administrative appeal process related to the revocation of Highland Tavern‘s liquor permit when they brought their declaratory judgment action.2 Despite appellants’ attempts to differentiate the matter in their declaratory judgment action from the subject of their administrative proceedings, we agree with the trial court that appellants’ declaratory judgment action improperly seeks to bypass the special statutory proceeding governing the revocation of liquor permits. Accordingly, the trial court did not err in concluding it does not have jurisdiction. One Energy Ents. at ¶ 49.
IV. First Assignment of Error - Dismissal Pursuant to Civ.R. 12(B)(6)
{¶ 21} In their first assignment of error, appellants argue the trial court erred in granting appellees
V. Disposition
{¶ 22} Based on the foregoing reasons, the trial court did not err in granting appellees’
Judgment affirmed.
DORRIAN, P.J., and JAMISON, J., concur.