491 N.E.2d 388 | Ohio Ct. App. | 1985
Prior to the fall 1983 general election in Greene County, Ohio, petitions were properly and timely filed with the Greene County Board of Elections for a local option election involving the sale of alcoholic beverages in adjoining precincts CLB and CFA in Xenia, Ohio. At that time, precinct CLB was "dry" for liquor sales and precinct CFA was "wet." As mandated by statute, the only way for precinct CLB to become "wet" was for it to combine with an adjoining precinct and let the voters of these precincts determine what status they wished their precincts to continue to enjoy.
No protests were filed with the board of elections before or after the election. On November 8, 1983, voters in the two precincts voted "No" on the wet/dry issue disallowing liquor sales in these precincts. The board of elections certified the results to the Ohio Department of Liquor Control as mandated by law. On February 7, 1984, the Secretary of State certified the results of all local option elections to the Department of Liquor Control for proper action.
On April 4, 1984, the Department of Liquor Control notified the affected permit locations in precinct CFA that their "right" to sell alcoholic beverages had been terminated by such election and they could request safekeeping of their licenses by the department. On April 10, 1984, Robert W. and Madonna Rickard, d.b.a. Waterstreet Tavern, the Fraternal Order of Eagles, Dennis McGlathen and Raymond Gully, d.b.a. Sportman's Club, filed a declaratory judgment action in the Greene County Court of Common Pleas against the Department of Liquor Control, for a declaration that R.C.
After the trial court granted a temporary injunction enjoining the department from enforcing the results of the election, the department answered the complaint and moved to dismiss the complaint for failure to state a cause of action and to dismiss for lack of jurisdiction over the subject matter.
The plaintiffs then moved for summary judgment on their complaint and attached to the motion the affidavits of two voters in precinct CFA who stated they voted in the local option election and voted against the sale of alcoholic beverages. They stated they were unaware such election would affect liquor sales by existing liquor permit holders, and had they known of that they would have voted differently.
Plaintiffs also argued in support of their motion that they did not receive any notice about the local option election until notified by the department in April 1984.
After the defendant department filed its memorandum contra the motion, the trial court granted plaintiffs' motion for summary judgment. Specifically the trial court found the material facts were not in dispute. The court found that the plaintiffs were not notified of the local option election nor did they see the legal advertisement in the local newspaper announcing the election. The court found that R.C.
The court further found that the plaintiffs, as liquor permit holders, were entitled to due process and equal protection. As such the court held the plaintiffs were entitled to a notice and a hearing before loss of their licenses. Since the statutes concerning local option elections do not provide for actual notice of the election to the permit holders, the statutes are unconstitutional. The court found the election to be an adequate "hearing." The court also found that the statutes in question were unconstitutional as the ballot language fails to inform the voter of the consequences of a negative vote in a "wet" area. The court also found that the department improperly suspended the plaintiffs' licenses as the city of Xenia failed to refund permit fees as required by R.C. 4301.399(D).
Appellant, Department of Liquor Control, appeals and asserts as error three assignments, to wit:
Section
R.C.
"(B) The department may:
"(1) Sue, but may be sued only in connection with the execution of leases of real estate and such purchases and contracts necessary for the operation of the state liquor stores that are made under Chapters 4301. and 4303. of the Revised Code;"
R.C.
"Except as provided in section
Numerous courts have had occasion to hold that sections
"* * *[S]ubdivision (9) of Section 6064-8, General Code [Section
In Allied Investment Credit Corp. v. Kuzjo Tavera, Inc. (May 18, 1978), Cuyahoga App. No. 37453, unreported, the Cuyahoga County Court of Appeals reversed an order of the Cleveland Municipal Court which directed the Ohio Department of Liquor Control to transfer a liquor permit and enjoined the board from proceeding to suspend or revoke the permit. The action originated in Cleveland Municipal Court when Allied Investment sued Kuzjo Tavern, Inc. on a promissory note. After judgment was entered for Allied, a receiver was appointed who later filed an application to confirm a sale of the tavern and all its assets, including the permit. When a dispute arose over distribution of the assets and the payment of sales taxes as a condition precedent to transfer of the liquor permit, the receiver filed a supplemental complaint adding the Board of Liquor Control and the Ohio Tax Commissioner as parties defendant. The receiver sought restraining orders against these state agencies and that the Department of Liquor Control be ordered to transfer the permit pursuant to the court's earlier order.
When the trial court granted the request of the receiver, the department appealed asserting that the trial court lacked subject matter jurisdiction under R.C.
"This statute clearly precludes the action taken by the Cleveland Municipal Court. The lower court ordered the Department of Liquor Control to transfer the permit and restrained the Department from proceeding with any hearings or actions for suspension or revocation of the permit held by the receiver. Thus the order restrained the exercise of the Department's powers and compelled the performance of its duties under Chapters 4301 and 4303 of the Revised Code. *104
Under R.C.
"* * *
"Article
In its judgment granting summary judgment to the appellees, the trial court rejected appellant's jurisdictional challenge. The court held that given the plain meaning of R.C.
In Sheahan, supra, the Lucas County Court of Appeals held that a proceeding brought pursuant to R.C.
In Sheahan, the court of appeals noted the jurisdiction of the trial court to enforce R.C.
Judge Clifford Brown noted that R.C.
Judge Wiley concurred in the judgment in Sheahan and noted that R.C.
In Burger Brewing Co. v. Liquor Control Comm. (1973),
Appellees argue that a real controversy exists between adverse parties, i.e., immediate action is necessary to protect their interests in their liquor licenses. Indeed, R.C.
"If, as the result of the election, the * * * permit holder does not deliver * * * his permit to the department for safekeeping * * * the department shall forthwith cancel and pick up the permit."
The trial court held that while the issue before the court, the constitutionality of the local option statutes, had a direct impact on the department, the action of compelling performance or restraining the department was ancillary to the main legal issue.
In Sheahan, the department was only incidentally involved as a garnishee. In the matter before us, there are only two litigants, the plaintiffs and the defendant. Either a real controversy exists or it does not. Plaintiffs seeks to restrain the department from taking action against them. Their action is dependent on the validity of the local option election.
Said another way, if the action sought against the department is only incidental or ancillary, then no real controversy exists between adverse parties.
We believe that this action could only be brought in Franklin County Common Pleas Court as mandated by R.C.
In its second assignment, the department contends it was not a proper party to any action to contest the validity of the local option election and failure of a party to properly protest or contest the election estops the appellees from challenging the electors indirectly through the declaratory judgment action.
R.C.
In the case of 25 Electors of Local Option Election (Oct. 13, 1984), Summit C.P. No. CV 83-12-3637, unreported, the court rejected any constitutional questions involving lack of notice to permit holders by stating:
"While this Court is unable to find the local option statutes unconstitutional, it is quite apparent that the statutes as applied, foster inequities in the election process. The lack of notice to parties potentially affected by an election effectively prevents their campaigning on their behalf and leaves the voting public at a disadvantage in casting an informed vote. Plaintiffs' suggested remedy, a letter from the Board of Elections or the Liquor Control Board to permit holders, is a good one and should be directed to those best able to implement such a solution, the state Legislature."
In 25 Electors, supra, the plaintiffs contested the election pursuant to R.C.
Plaintiffs also contended the lack of notice of the option election effectively deprived them of procedural due process in violation of the
In Scioto Trails Co., supra, the Franklin County Court of Appeals held that a liquor permit issued by the department is neither a contract nor a property right in the constitutional sense but is subject to limitation and termination as provided by statute. The court held that R.C.
Citing State, ex rel. Zugravu, v. O'Brien, supra, the Franklin County Court of Appeals stated the holder of a liquor permit holds the permit subject to the exercise of the right of local option as set forth in R.C.
Judge Whiteside noted that almost every jurisdiction considering the issue has concluded that a liquor license or permit is neither a contract nor a property right, but instead a mere privilege, revocable pursuant to the terms of the statute authorizing the issuance of the permit. The court held the plaintiffs had been denied no property right by being denied the continuation of the use of the permit by the results of the local option election, because by accepting the liquor permit they consented to all the conditions of the liquor control law.
The court noted "though a liquor permit may be subject to protection of due process or equal protection under some limited circumstances, there has been no denial under the present circumstances." Scioto Trails Co., supra, at 79.
In Bell v. Burson (1971),
"* * * Once licenses are issued, as in petitioner's case, theircontinued possession may become essential in the pursuit of alivelihood. Suspension of issued licenses thus involves stateaction that adjudicates important interests of the licensees. Insuch cases the licenses are not to be taken away without thatprocedural due process required by the
In Fell v. Bur. of Motor Vehicles (1972),
"The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean (1914),
"[The] right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Mullane v.Central Hanover Bank Trust Co. (1950),
Recently the Supreme Court of the United States held that a provision of Kentucky law that permitted service of process in forcible entry or detainer actions to be made by posting a summons "in a conspicuous place on the premises," if the defendant or a member of the defendant's family over sixteen years of age cannot be found on the premises did not satisfy minimum standards of due process where posting occurred after only one effort was made to serve the tenant, where use of the posting resulted in a failure to provide actual notice to the tenant in a significant number of instances, and where the notices posted on apartment doors were not infrequently removed by children or other tenants before they had their intended effect. Greene v. Lindsey (1982),
The Supreme Court held in Greene that the Kentucky law failed to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, and thus the state deprived them of property without due process of law required by the
"(a) `An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is noticereasonably calculated, under all the circumstances, to appriseinterested parties of the pendency of the action and afford theman opportunity to present their objections.' Mullane v. CentralHanover Bank Trust Co.,
"(b) In light of the fact that appellees were deprived of asignificant interest in property and, indeed, of the right tocontinued residence in their homes, it does not suffice to recitethat because the action was in rem, it was only necesary to servenotice `upon the thing itself.' The sufficiency of the noticemust be tested with reference to its ability to inform people ofthe pendency of proceedings that affect their interests. * * *
"(c) Notices posted on the doors of tenants' apartments were `not infrequently' removed before they could be seen by the tenants. Whatever the efficacy of posting notice on a door of a person's home in many cases, it is clear that, in the circumstances of this case, merely posting notice on the apartment *108 door did not satisfy minimum standards of due process. * * *
"(d) Neither the statute nor the practice of process servers provides for even a second attempt at personal service. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere pro forma notice might be constitutionally adequate. * * *
"(e) Notice by mail in the circumstances of this case would goa long way toward providing the constitutionally requiredassurance that the State has not allowed its power to be invokedagainst a person who has had no opportunity to present adefense. * * *
"649 F.2d 425, affirmed." (Emphasis added in part.)
R.C.
"At least ten days before the time for holding an election the board of elections shall give public notice by a proclamation, posted in a conspicuous place in the courthouse and city hall, or by one insertion in a newspaper published in the county, but if no newspaper is published in such county, then in a newspaper of general circulation therein.
"The board shall have authority to publicize information relative to registration or elections."
While R.C.
There is no evidence before us that the permit holders reside in the city of Xenia where the publication occurred in a local newspaper. In any event, such public notices often appear in small print in obscure portions of the newspaper. Such notices often go unnoticed by the electorate. Also it cannot be seriously questioned that the interest in the outcome of the local option election of the permit holders differs in kind and degree than that of the electorate at large. The outcome of the election affects the very livelihood of the permit holders. Quite often, a permit holder has invested substantial amounts of time, labor, and money in developing a business greatly dependent upon the possession of a valid liquor permit. Many permit holders have had existing permits for many years with loyal customers who live near the liquor establishment. It is small comfort that the license is not revoked entirely, but is held in safekeeping, should the permit holder find another location in a "wet precinct" which conforms to zoning and other legal or other practical requirements.
Indeed, a tenant who is forcibly required to move as a result of a forcible detainer action may find an apartment in another location. The vital "interests" which a permit holder has in keeping his permit for use in a particular location demands that the state provide procedural due process before that permit location is taken from the holder. Elections provide the permit holders with their hearing. The notice required of the hearing must be reasonably calculated to apprise the permit holder of the "hearing" so that he may meaningfully participate in the process. The permit holder may then alert the affected electorate of the "pros and cons" of turning a "wet" precinct "dry" and its resultant effect on the permit holder and the public at large.
Appellant's argument that appellees failed to pursue their statutory remedies of "protest and contest" presupposes the permit holders had notice of the election in time to pursue those remedies. There is no evidence appellees had that opportunity.
We are not unmindful of the trial *109
court's duty and that of this court to give every intendment and presumption that the legislature has acted constitutionally in the passage of legislation. State, ex rel. Swetland, v. Kinney
(1982),
In State, ex rel. Dickman, v. Defenbacher (1955),
"A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality. This court has held enactments of the General Assembly to be constitutional unless such enactments are clearly unconstitutional beyond a reasonable doubt."
In Xenia v. Schmidt (1920),
With these principles in mind, we find that to the extent R.C.
In the last assignment of error, the appellant contends the trial court erred in granting injunctive relief in a proceeding other than a recount or election contest suit as provided by R.C.
As previously indicated in our treatment of the second assignment, we find that appellant's argument that the court was powerless to act because appellees had failed to protest or contest the local option election to be without merit in light of their failure to receive reasonable notice of the election until April 1984.
To the extent, that the trial court granted injunctive relief absent subject matter jurisdiction, the assignment is well-taken. (See our treatment of the first assignment.)
Because the court lacked jurisdiction over the subject matter of this dispute, the judgment of the trial court is reversed.
Judgment reversed.
WOLFF, J., concurs.
WILSON, J., concurs in judgment only.