Bill Text: OH HB417 | 2009-2010 | 128th General Assembly | Introduced

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Bill Title: To revise the appeal procedures for the refusal to issue, renew, or transfer a retail liquor permit and to require permit holders that violate the laws governing liquor control to file the names and addresses of their employees with the Division of Liquor Control.

Spectrum: Slight Partisan Bill (Democrat 5-2)

Status: (Introduced - Dead) 2010-01-25 - To State Government [HB417 Detail]

Download: Ohio-2009-HB417-Introduced.html

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As Introduced

128th General Assembly Regular Session 2009-2010

H. B. No. 417

Representative Driehaus 

Cosponsors: Representatives Murray, Fende, Stautberg, Foley, Ujvagi, Hagan 

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A BILL

To amend sections 4301.04, 4303.26, 4303.292, and

1

4303.99 and to enact section 4303.294 of the

2

Revised Code to revise the appeal procedures for

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the refusal to issue, renew, or transfer a retail

4

liquor permit and to require permit holders that

5

violate the laws governing liquor control to file

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the names and addresses of their employees with

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the Division of Liquor Control.

8

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 4301.04, 4303.26, 4303.292, and	9
4303.99 be amended and section 4303.294 of the Revised Code be	10
enacted to read as follows:	11

Sec. 4301.04. (A) The liquor control commission has the	12
following powers, which it may exercise by the vote of a majority	13
of the commissioners:	14

(A)(1) To suspend, revoke, and cancel permits. A majority of	15
the commissioners constitutes a quorum for the transaction of any	16
business, for the performance of any duty, or for the exercise of	17
any power of the commission. No vacancy in the commission shall	18
impair the right of the remaining commissioners to exercise all	19
powers of the commission. The act of a majority of the commission,	20
when in session, is the act of the commission. A finding, order,	21
or decision of the commission to suspend a permit shall state and	22
fix the effective date of the commencement and the period of	23
duration of suchthe suspension. SuchA finding, order, or	24
decision of the commission to revoke or cancel a permit shall	25
state and fix the effective date thereof.	26

(B)(2) To consider, hear, and determine all appeals	27
authorized by Chapters 4301. and 4303. of the Revised Code, to be	28
taken from any decision, determination, or order of the division	29
of liquor control, and all complaints for the revocation of	30
permits. The liquor control commission shall accord a hearing to	31
any person appealing or complained against, at which suchthe	32
person has the right to be present, to be represented by counsel,	33
to provide for the submission of briefs, to offer evidence, and to	34
require the attendance of witnesses.	35

Except as otherwise provided in division (A)(2) of this	36
section, with regard to the hearing of an appeal from any decision	37
rendered by the division on the issuance, renewal, or transfer of	38
a permit under section 4303.292 of the Revised Code, the	39
commission shall be confined to the record as certified to it by	40
the division under that section. However, unless otherwise	41
provided by law, the commission may grant a request for the	42
admission of additional evidence when it is satisfied that the	43
additional evidence is newly discovered and could not have been	44
ascertained with reasonable diligence prior to the hearing before	45
the division.	46

After a hearing that is held under this division, the	47
commission may affirm the decision, determination, or order of the	48
division if it finds, upon consideration of the entire record and	49
any additional evidence that the commission has admitted, that the	50
decision, determination, or order is supported by reliable,	51
probative, and substantial evidence and is in accordance with law.	52
In the absence of such a finding, the commission may reverse,	53
vacate, or modify the decision, determination, or order or make	54
another ruling that is supported by reliable, probative, and	55
substantial evidence and is in accordance with law.	56

(C)(3) To adopt, repeal, and amend bylaws in relation to its	57
meetings and the transaction of its business and regulating its	58
procedure on appeal.	59

(D)(4) To consider and make recommendations upon any matter	60
whichthat the superintendent of liquor control submits to it for	61
recommendation and determine any matter whichthat the	62
superintendent submits to it for determination.	63

(E)(5) To require of the superintendent and of any officer,	64
department, board, or commission of the state and of any county,	65
township, or municipal officer in this state, information with	66
respect to the social and economic effects of suchthose chapters;	67
and all such officers, departments, boards, and commissions shall	68
furnish such information when requested in writing by the liquor	69
control commission.	70

(F)(6) To submit to the governor amendments to any laws	71
affecting the sale of intoxicating liquor in this state when it	72
deems desirable.	73

(G)(B) For the purpose of any hearing or investigation which	74
that they are respectively authorized or required by suchthose	75
chapters to conduct, the liquor control commission or any member	76
thereof, the superintendent, or any agent of the division	77
designated in writing for that purpose, may administer oaths, take	78
depositions, issue subpoenas, and compel the attendance of	79
witnesses and the production of books, accounts, papers, records,	80
documents, and testimony. In case of disobedience of any person	81
with respect to an order of the commission or a subpoena issued	82
by the liquor control commission or any member thereof, the	83
superintendent, or such an agent, or on the refusal of a witness	84
to testify to any matter regarding which the witness may be	85
lawfully interrogated, a judge of the court of common pleas of	86
the county in which the person resides, on application of any	87
member of the liquor control commission or the superintendent,	88
shall compel obedience by attachment proceedings as for contempt,	89
as in the case of disobedience with respect to the requirements	90
of a subpoena issued from suchthat court or a refusal to testify	91
in suchthat court. Each officer who serves such a subpoena shall	92
receive the same fees as a sheriff, and each witness who appears,	93
in obedience to a subpoena, before the liquor control commission	94
or any member thereof, or the superintendent, shall receive for	95
attendance the fees and mileage provided for under section	96
119.094 of the Revised Code, which shall be audited and paid upon	97
presentation of proper vouchers approved by any two members of the	98
commission. No witness subpoenaed at the instance of a party other	99
than the liquor control commission or any member thereof, the	100
superintendent, or such an agent, is entitled to compensation	101
unless the commission certifies that the testimony of the	102
witness was material to the matter investigated.	103

Sec. 4303.26.  (A) Applications for regular permits	104
authorized by sections 4303.02 to 4303.23 of the Revised Code may	105
be filed with the division of liquor control. No permit shall be	106
issued by the division until fifteen days after the application	107
for it is filed. An applicant for the issuance of a new permit	108
shall pay a processing fee of one hundred dollars when filing the	109
application for the permit, if the permit is then available, or	110
shall pay the processing fee when a permit becomes available, if	111
it is not available when the applicant initially files the	112
application. When an application for a new class C or D permit is	113
filed, when class C or D permits become available, or when an	114
application for transfer of ownership of a class C or D permit or	115
transfer of a location of a class C or D permit is filed, no	116
permit shall be issued, nor shall the location or the ownership of	117
a permit be transferred, by the division until the division	118
notifies the legislative authority of the municipal corporation,	119
if the business or event is or is to be located within the	120
corporate limits of a municipal corporation, or the clerk of the	121
board of county commissioners and the fiscal officer of the board	122
of township trustees in the county in which the business or event	123
is or is to be conducted, if the business is or is to be located	124
outside the corporate limits of a municipal corporation, and an	125
opportunity is provided officials or employees of the municipal	126
corporation or county and township, who shall be designated by the	127
legislative authority of the municipal corporation or the board of	128
county commissioners or board of township trustees, for a complete	129
hearing upon the advisability of the issuance, transfer of	130
ownership, or transfer of location of the permit. In this hearing,	131
no objection to the issuance, transfer of ownership, or transfer	132
of location of the permit shall be based upon noncompliance of the	133
proposed permit premises with local zoning regulations whichthat	134
prohibit the sale of beer or intoxicating liquor, in an area zoned	135
for commercial or industrial uses, for a permit premises that	136
would otherwise qualify for a proper permit issued by the	137
division.	138

When the division sends notice to the legislative or	139
executive authority of the political subdivision, as required by	140
this section, the division shall also so notify, by certified	141
mail, return receipt requested, or by personal service, the chief	142
peace officer of the political subdivision. Upon the request of	143
the chief peace officer, the division shall send the chief peace	144
officer a copy of the application for the issuance or the transfer	145
of ownership or location of the permit and all other documents or	146
materials filed by the applicant or applicants in relation to the	147
application. The chief peace officer may appear and testify,	148
either in person or through a representative, at any hearing held	149
on the advisability of the issuance, transfer of ownership, or	150
transfer of location of the permit. The hearing shall be held in	151
the central office of the division, except that upon written	152
request of the legislative authority of the municipal corporation	153
or the board of county commissioners or board of township	154
trustees, the hearing shall be held in the county seat of the	155
county where the applicant's business is or is to be conducted.	156

If the business or event specified in an application for the	157
issuance, transfer of ownership, or transfer of location of any	158
regular permit authorized by sections 4303.02 to 4303.23 of the	159
Revised Code, except for an F-2 permit, is, or is to be operated,	160
within five hundred feet from the boundaries of a parcel of real	161
estate having situated on it a school, church, library, public	162
playground, or township park, no permit shall be issued, nor shall	163
the location or the ownership of a permit be transferred, by the	164
division until written notice of the filing of the application	165
with the division is served, by certified mail, return receipt	166
requested, or by personal service, upon the authorities in control	167
of the school, church, library, public playground, or township	168
park and an opportunity is provided them for a complete hearing	169
upon the advisability of the issuance, transfer of ownership, or	170
transfer of location of the permit. In this hearing, no objection	171
to the issuance, transfer of ownership, or transfer of location of	172
the permit shall be based upon the noncompliance of the proposed	173
permit premises with local zoning regulations whichthat prohibit	174
the sale of beer or intoxicating liquor, in an area zoned for	175
commercial or industrial uses, for a permit premises that would	176
otherwise qualify for a proper permit issued by the division. Upon	177
the written request of any of these authorities, the hearing shall	178
be held in the county seat of the county where the applicant's	179
business is or is to be conducted.	180

A request for any hearing authorized by this section shall be	181
made no later than thirtysixty days from the time of notification	182
by the division. This thirty-daysixty-day period begins on the	183
date the division mails notice to the legislative authority or the	184
date on which the division mails notice to or, by personal	185
service, serves notice upon, the institution. The division shall	186
conduct a hearing if the request for the hearing is postmarked by	187
the deadline date. The division may allow, upon cause shown by the	188
requesting legislative authority or board, an extension of thirty	189
additional days for the legislative authority of the municipal	190
corporation, board of township trustees of the township, or board	191
of county commissioners of the county in which a permit premises	192
is or is to be located to object to the issuance, transfer of	193
ownership, or transfer of location of a permit. The request for	194
the extension shall be made by the legislative authority or board	195
to the division no later than thirty days after the time of	196
notification by the division.	197

(B)(1) When an application for transfer of ownership of a	198
permit is filed with the division, the division shall give notice	199
of the application to the department of taxation. Within twenty	200
days after receiving this notification, the department of taxation	201
shall notify the division of liquor control and the proposed	202
transferee of the permit if the permit holder owes to this state	203
any delinquent sales taxes or income taxes withheld from employee	204
compensation or has failed to file any sales tax returns or	205
employee income tax withholding returns, to the extent that the	206
delinquent taxes and delinquent returns are known to the	207
department of taxation at that time. The division shall not	208
transfer ownership of the permit until returns known to be	209
delinquent are filed and until the tax or withholding delinquency	210
is resolved. As used in this division, "resolved" means that the	211
tax or withholding delinquency has been paid or an amount	212
sufficient to satisfy the delinquency is in escrow for the benefit	213
of the state. The department of taxation shall notify the division	214
of the resolution. After the division has received the	215
notification from the department of taxation, the division may	216
proceed to transfer ownership of the permit. Nothing in this	217
division shall be construed to affect or limit the	218
responsibilities or liabilities of the transferor or the	219
transferee imposed by Chapter 5739. or 5747. of the Revised Code.	220

(2) Notwithstanding section 5703.21 of the Revised Code,	221
nothing prohibits the department of taxation from disclosing to	222
the division or to the proposed transferee or the proposed	223
transferee's designated agent any information pursuant to division	224
(B)(1) of this section.	225

(C) No F or F-2 permit shall be issued for an event until the	226
applicant has, by means of a form that the division shall provide	227
to the applicant, notified the chief peace officer of the	228
political subdivision in which the event will be conducted of the	229
date, time, place, and duration of the event.	230

(D) The division of liquor control shall notify an applicant	231
for a permit authorized by sections 4303.02 to 4303.23 of the	232
Revised Code of an action pending or judgment entered against a	233
liquor permit premises, of which the division has knowledge,	234
pursuant to section 3767.03 or 3767.05 of the Revised Code if the	235
applicant is applying for a permit at the location of the premises	236
that is the subject of the action under section 3767.03 or	237
judgment under section 3767.05 of the Revised Code.	238

Sec. 4303.292.  (A) The division of liquor control may refuse	239
to issue, transfer the ownership of, or renew, and shall refuse to	240
transfer the location of, any retail permit issued under this	241
chapter if it finds either of the following:	242

(1) That the applicant, or any partner, member, officer,	243
director, or manager of the applicant, or, if the applicant is a	244
corporation or limited liability company, any shareholder owning	245
five per cent or more of the applicant's capital stock in the	246
corporation or any member owning five per cent or more of either	247
the voting interests or membership interests in the limited	248
liability company:	249

(a) Has been convicted at any time of a crime that relates to	250
fitness to operate a liquor establishment;	251

(b) Has operated liquor permit businesses in a manner that	252
demonstrates a disregard for the laws, regulations, or local	253
ordinances of this state or any other state;	254

(c) Has misrepresented a material fact in applying to the	255
division for a permit; or	256

(d) Is in the habit of using alcoholic beverages or dangerous	257
drugs to excess, or is addicted to the use of narcotics.	258

(2) That the place for which the permit is sought:

259

(a) Does not conform to the building, safety, or health	260
requirements of the governing body of the county or municipal	261
corporation in which the place is located. As used in division	262
(A)(2)(a) of this section, "building, safety, or health	263
requirements" does not include local zoning ordinances. The	264
validity of local zoning regulations shall not be affected by this	265
section.	266

(b) Is so constructed or arranged that law enforcement	267
officers and duly authorized agents of the division are prevented	268
from reasonable access to rooms within which beer or intoxicating	269
liquor is to be sold or consumed;	270

(c) Is so located with respect to the neighborhood that	271
substantial interference with public decency, sobriety, peace, or	272
good order would result from the issuance, renewal, transfer of	273
location, or transfer of ownership of the permit and operation	274
under it by the applicant; or	275

(d) Has been declared a nuisance pursuant to Chapter 3767. of	276
the Revised Code since the time of the most recent issuance,	277
renewal, or transfer of ownership or location of the liquor	278
permit.	279

(B) The division of liquor control may refuse to issue or	280
transfer the ownership of, and shall refuse to transfer the	281
location of, any retail permit issued under this chapter if it	282
finds either of the following:	283

(1) That the place for which the permit is sought is so	284
situated with respect to any school, church, library, public	285
playground, or hospital that the operation of the liquor	286
establishment will substantially and adversely affect or interfere	287
with the normal, orderly conduct of the affairs of those	288
facilities or institutions;	289

(2) That the number of permits already existent in the	290
neighborhood is such that the issuance or transfer of location of	291
a permit would be detrimental to and substantially interfere with	292
the morals, safety, or welfare of the public. In reaching a	293
conclusion in this respect, the division shall consider, in light	294
of the purposes of this chapter and Chapters 4301. and 4399. of	295
the Revised Code, the character and population of the	296
neighborhood, the number and location of similar permits in the	297
neighborhood, the number and location of all other permits in the	298
neighborhood, and the effect the issuance or transfer of location	299
of a permit would have on the neighborhood.	300

(C) The division of liquor control shall not transfer the	301
location or transfer the ownership and location of a permit under	302
division (B)(2)(b) of section 4303.29 of the Revised Code unless	303
the permit is transferred to an economic development project.	304

(D) The division of liquor control shall refuse to issue,	305
renew, transfer the ownership of, or transfer the location of a	306
retail permit under this chapter if the applicant is or has been	307
convicted of a violation of division (C)(1) of section 2913.46 of	308
the Revised Code.	309

(E) The division of liquor control shall refuse to transfer	310
the ownership of or transfer the location of a retail permit under	311
this chapter while criminal proceedings are pending against the	312
holder of the permit for a violation of division (C)(1) of section	313
2913.46 of the Revised Code. The department of public safety shall	314
notify the division whenever criminal proceedings have commenced	315
for a violation of division (C)(1) of section 2913.46 of the	316
Revised Code.	317

(F) The division of liquor control shall refuse to issue,	318
renew, or transfer the ownership or location of a retail permit	319
under this chapter if the applicant has been found to be	320
maintaining a nuisance under section 3767.05 of the Revised Code	321
at the premises for which the issuance, renewal, or transfer of	322
ownership or location of the retail permit is sought.	323

(G) In a proceeding for the refusal to issue, renew, transfer	324
the ownership of, or transfer the location of any retail permit	325
under this chapter, the division shall prepare, keep, and maintain	326
a complete record of the proceedings. If an applicant for	327
issuance, renewal, transfer of ownership, or transfer of the	328
location of a retail permit appeals the decision of the division	329
under section 4301.04 of the Revised Code, the division, within	330
thirty days of notice of receipt of the applicant's appeal, shall	331
prepare and certify a complete record of the proceedings in the	332
case to the liquor control commission.	333

Sec. 4303.294.  (A) A person that has been issued a permit	334
under this chapter and that has violated this chapter or Chapter	335
4301. of the Revised Code or rules adopted by the liquor control	336
commission under section 4301.03 of the Revised Code shall file	337
with the division of liquor control a roster of the names and	338
addresses of the permit holder's current employees. If a name or	339
address on the roster changes, the permit holder shall notify the	340
division not later than five days after the change. If the permit	341
holder is a corporation, firm, association, or partnership, an	342
officer of the corporation, firm, association, or partnership	343
shall be responsible for notifying the division.	344

(B) No person that has been issued a permit under this	345
chapter shall fail to comply with this section.	346

Sec. 4303.99.  (A) Whoever violates section 4303.28 of the	347
Revised Code shall be fined not less than one thousand nor more	348
than twenty-five hundred dollars or imprisoned not less than six	349
months nor more than one year.	350

(B) Whoever violates section 4303.36 of the Revised Code	351
shall be fined not less than twenty-five nor more than one hundred	352
dollars.	353

(C) Whoever violates section 4303.37 of the Revised Code	354
shall be fined not less than twenty-five nor more than fifty	355
dollars.	356

(D) Whoever violates division (B) of section 4303.202 or	357
division (C) of section 4303.208 of the Revised Code is guilty of	358
a misdemeanor of the fourth degree.	359

(E) Whoever violates section 4303.294 of the Revised Code is	360
guilty of a misdemeanor of the first degree.	361

Section 2.  That existing sections 4301.04, 4303.26,	362
4303.292, and 4303.99 of the Revised Code are hereby repealed.	363