{¶ 2} The substantive facts in this case are not in dispute. Appellant held D1, D3, D3A, and D6 liquor permits for Pastabilities on 1648 E. Dublin Granville Road, Columbus, Ohio. On June 20, 2000, appellant filed an application for safekeeping of his liquor permits because his business financially failed and his lease and tenancy rights were lost. On July 11, 2000, the Division of Liquor Control ("Division") granted appellant's application placing his permits in safekeеping effective January 1, 2000 to February 1, 2001. Appellant, by complying with the procedures of R.C.
{¶ 3} On February 8, 2001, appellant was notified by letter from the superintendent of the Divisiоn that his 2000-2001 renewal application had not been received and, as a result, his permits expired at midnight February 1, 2001. Appellant had until March 5, 2001 to submit his renewal application, a fee, and a 10 percent penalty fee to avoid automatic cancellation of his permits. Appellant had the right to appeal the permit cancellation 30 days after the automatic cancellation, on or before April 5, 2001.
{¶ 4} In early March 2001, appellant requested a duplicate 2000-2001 renewal application. On March 5, 2001, the Division faxed a duplicate renewal application to appellant. Appellant never submitted the 2000-2001 renewal application.
{¶ 5} On March 6, 2001, appellant was notified that his 2000-2001 permit would not be renewed due to a tax delinquency. Appеllant had a right to appeal by May 3, 2001 and if the appeal was not filed by that date, the March 6, 2001 order would become final and his permit would be cancelled. Appellant did not appeal the March 6, 2001 order, therefore, the Division cancelled aрpellant's liquor license on June 7, 2001.
{¶ 6} On March 4, 2002, appellant submitted a 2002-2003 renewal application along with a check in the amount of $1,966.80 for renewal fees and a 10 percent late charge. On April 5, 2002, the Division notified appellant that it was returning his 2002-2003 renewal application along with the check for $1,966.80, as his license was cancelled on June 7, 2001. On April 23, 2002, appellant filed an appeal from the April 5 Division letter rejecting appellant's 2002-2003 renewal application of his liquor permits.
{¶ 7} The matter was set for a hearing before the Commission on September 25, 2002. At the hearing, the Department of Liquor Control ("Department") made an oral motion to dismiss pursuant toAnitas Lounge, Inc. v. Ohio Liquor Control Commission, Franklin App. No. 03AP-822,
{¶ 8} On October 28, 2002, appellant aрpealed the order of the Commission, arguing that the order was not supported by reliable, probative and substantial evidence and was not in accordance with law. Appellant maintained that the Department did not have the authority to revoke or cancel his permits upon his failure to pay sales and withholding taxes.
{¶ 9} The trial court found that R.C.
ASSIGNMENT OF ERROR NO. 1
The Common Pleas Court erred by failing to find that the Liquor Control Commission erred and/or abused its discretion to the prejudice of Appellant in dismissing Appellant's appeal for lack of jurisdiction thereby failing to fully hear Appellant's Appeal and to consider the issue of whether the Division of Liquor Control can only delay renewаl of a liquor permit pursuant to ORC
ASSIGNMENT OF ERROR NO. 2
The Court of Common Pleas erred and/or abused its discretion by failing to find that the Liquor Commission abused its discretion and erred to the prejudice of the Appellant by dismissing Appellant's Appeal for lack of jurisdiction as the dismissal of the Liquor Commission was not based upon or supported by substantial, rеliable and probative evidence.
{¶ 10} In this case, appellant has raised similar arguments to those recently addressed by this court in Anitas Lounge,
supra. In his first assignment of error, appellant contends that R.C.
{¶ 11} The role of the trial court in an appeal from a decision of an administrative agency is to determine whether the agency's decision is supported by a preponderance of substantial, reliable, and probative evidence. R.C.
{¶ 12} The issue involved in the instant case is a question оf statutory interpretation of R.C.
(A) Except as provided in divisions (B) and (D) of this section, the holder of a permit issued under sections
* * *
(C) An application for renewal of a permit shall be filed withthe division at least fifteen days prior to the expiration of anexisting permit and the existing permit shall continue in effect as provided in section
(D)(1) Annually, beginning in 1988, the tax commissioner shall cause the sales and withholding tax records in the department of taxation for each holder of a permit issued under sections
(2)(a) Except as provided in division (D)(4) of this section,the division of liquor control shall not renew the permit of anypermit holder the tax commissioner has identified as beingdelinquent in filing any sales or withholding tax returns or as being liable for outstanding sales or withholding tax, penalties, or interest as of the first day of the sixth month preceding the month in which the permit expires, or of any permit holder the commissioner has identified as having been assessed by the department on or before the first day of the third month preceding the month in which the permit expires, until the division is notified by the tax commissioner that the delinquency, liability, or assessment has been resolved.
(b)(i) Within ninety days after the date on which the permitexpires, any permit holder whose permit is not renewed under thisdivision may file an appeal with the liquor control commission. The commission shall notify the tax commissioner regarding the filing of any such appeal. During the period in which the appeal is pending, the permit shall not be renewed by the division. The permit shall be reinstated if the permit holder and the tax commissioner or the attorney general demonstrate to the liquor control commission that the commissioner's notification of a delinquency or assessment was in error or that the issue of the delinquency or assessment has been resolved.
(Emphasis added.)
{¶ 13} As prescribed by the plain language of R.C.
* * * [T]he language of the statute plainly dictates thаt permits whose renewal is prevented from going forward due to a tax non-renewal notice lapse by operation of law — specifically, by operation of R.C.
{¶ 14} Because of appellant's failure to perfect an appeal within 90 days after his permits expired, we determine, after undertaking a de novo review, that the Commission lost jurisdiction over the non-renewal of appellant's liquor permit.
{¶ 15} Furthermore, appellant argues the statute does not confer upon the Division or the Commission the express or implied power to cancel permits based on unresolved tax delinquencies. Appellant maintains that R.C.
{¶ 16} In his second assignment of error, appellant contends the Commission deprived him of his due process rights when, after the Commissiоn had already dismissed appellant's appeal, it refused to allow appellant or his counsel to present arguments or evidence on the substantive issues of the appeal. While appellant has identified his due process rights, the right to present еvidence and the right to have a meaningful hearing, appellant has failed to identify for this court what evidence he wanted to present at the Commission hearing. However, because appellant failed to timely appeal, the Commission lacked jurisdiction over appellant's appeal. As such, appellant's constitutional rights were not violated and his second assignment of error is not well-taken.
{¶ 17} In accordance with Ohio statutory law, appellant failed to timely appeal, thereby the trial court did not err in finding that the Commission was correct in finding that it lacked jurisdiction to consider appellant's appeal. For the foregoing reasons, appellant's first and second assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Brown and Sadler, JJ., concur.