Bill Text: OH HB137 | 2009-2010 | 128th General Assembly | Introduced

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Bill Title: To prohibit the Division of Liquor Control from issuing a retail liquor permit or entering into an agency liquor contract if the permit location or liquor agency store is proposed to be located within one thousand feet from a school, church, library, public playground, or township park.

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Introduced - Dead) 2009-04-21 - To State Government [HB137 Detail]

Download: Ohio-2009-HB137-Introduced.html

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As Introduced

128th General Assembly Regular Session 2009-2010

H. B. No. 137

Representative Weddington 

Cosponsors: Representatives Williams, B., Luckie, Williams, S., Domenick, Heard 

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A BILL

To amend sections 4301.17, 4303.26, and 4303.292 of

1

the Revised Code to prohibit the Division of

2

Liquor Control from issuing a retail liquor permit

3

or entering into an agency liquor contract if the

4

permit location or liquor agency store is proposed

5

to be located within one thousand feet from a

6

school, church, library, public playground, or

7

township park.

8

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

Section 1. That sections 4301.17, 4303.26, and 4303.292 of	9
the Revised Code be amended to read as follows:	10

Sec. 4301.17.  (A)(1) Subject to local option as provided in	11
sections 4301.32 to 4301.40 of the Revised Code, five state liquor	12
stores or agencies may be established in each county. One	13
additional store may be established in any county for each twenty	14
thousand of population of that county or major fraction thereof in	15
excess of the first forty thousand, according to the last	16
preceding federal decennial census or according to the population	17
estimates certified by the department of development between	18
decennial censuses. A person engaged in a mercantile business may	19
act as the agent for the division of liquor control for the sale	20
of spirituous liquor in a municipal corporation, in the	21
unincorporated area of a township, or in an area designated and	22
approved as a resort area under section 4303.262 of the Revised	23
Code. The division shall fix the compensation for such an agent in	24
the manner it considers best, but the compensation shall not	25
exceed seven per cent of the gross sales made by the agent in any	26
one year.	27

(2) The division shall adopt rules in accordance with Chapter	28
119. of the Revised Code governing the allocation and equitable	29
distribution of agency store contracts. The division shall comply	30
with the rules when awarding a contract under division (A)(1) of	31
this section.	32

(3) Except as otherwise provided in this section, no	33
mercantile business that sells beer or intoxicating liquor for	34
consumption on the premises under a permit issued by the division	35
shall operate an agency store at the premises. An agency to which	36
a D-1 permit has been issued may offer for sale tasting samples of	37
beer, an agency to which a D-2 permit has been issued may offer	38
for sale tasting samples of wine and mixed beverages, and an	39
agency to which a D-5 permit has been issued may offer for sale	40
tasting samples of beer, wine, and mixed beverages, but not	41
spirituous liquor. A tasting sample shall not be sold for the	42
purpose of general consumption. As used in this section, "tasting	43
sample" means a small amount of beer, wine, or mixed beverages	44
that is provided in not more than four servings of not more than	45
two ounces each to an authorized purchaser and that allows the	46
purchaser to determine, by tasting only, the quality and character	47
of the beverage.	48

(B) When an agency contract is proposed, when an existing	49
agency contract is assigned, when an existing agency proposes to	50
relocate, or when an existing agency is relocated and assigned,	51
before entering into any contract, consenting to any assignment,	52
or consenting to any relocation, the division shall notify the	53
legislative authority of the municipal corporation in which the	54
agency store is to be located, or the board of county	55
commissioners and the board of township trustees of the county and	56
the township in which the agency store is to be located if the	57
agency store is to be located outside the corporate limits of a	58
municipal corporation, of the proposed contract, assignment, or	59
relocation, and an opportunity shall be provided officials or	60
employees of the municipal corporation or county and township for	61
a complete hearing upon the advisability of entering into the	62
contract or consenting to the assignment or relocation. When the	63
division sends notice to the legislative authority of the	64
political subdivision, the division shall notify, by certified	65
mail or by personal service, the chief peace officer of the	66
political subdivision, who may appear and testify, either in	67
person or through a representative, at any hearing held on the	68
advisability of entering into the contract or consenting to the	69
assignment or relocation.	70

If the proposed agency store, the assignment of an agency	71
contract, or the relocation of an agency store would be located	72
within five hundred feet of a school, church, library, public	73
playground, or township park, the division shall not enter into an	74
agency contract until it has provided notice of the proposed	75
contract to the authorities in control of the school, church,	76
library, public playground, or township park and has provided	77
those authorities with an opportunity for a complete hearing upon	78
the advisability of entering into the contract. If an agency store	79
sois located within one thousand feet of a school, church,	80
library, public playground, or township park and is operating	81
under an agency contract, the division may consent to relocation	82
of the agency store or to the assignment of that contract to	83
operate an agency store at the samea location that is not within	84
one thousand feet of a school, church, library, public playground,	85
or township park. The division may also consent to the assignment	86
of an existing agency contract simultaneously with the relocation	87
of thethat agency store. In any such assignment or relocation,	88
the assignee and the location shall be subject to the same	89
requirements that the existing location met at the time that the	90
contract was first entered into as well as any additional	91
requirements imposed by the division in rules adopted by the	92
superintendent of liquor control. The division shall not consent	93
to an assignment or relocation of an agency store until it has	94
notified the authorities in control of the school, church,	95
library, public playground, or township park and has provided	96
those authorities with an opportunity for a complete hearing upon	97
the advisability of consenting to the assignment or relocation.	98

Any hearing provided for in this division shall be held in	99
the central office of the division, except that upon written	100
request of the legislative authority of the municipal corporation,	101
the board of county commissioners, or the board of township	102
trustees, or the authorities in control of the school, church,	103
library, public playground, or township park, the hearing shall	104
be held in the county seat of the county where the proposed	105
agency store is to be located.	106

(C) The division shall not enter into an agency contract,	107
consent to the assignment of an existing contract, consent to the	108
relocation of an existing agency, or consent to the relocation and	109
assignment of an existing agency if the proposed agency store, the	110
assignment of an agency contract, the relocation of an existing	111
agency store, or the relocation and assignment of an existing	112
agency store would be located within one thousand feet of a	113
school, church, library, public playground, or township park.	114

(D) All agency contracts entered into by the division	115
pursuant to this section shall be in writing and shall contain a	116
clause providing for the termination of the contract at will by	117
the division upon its giving ninety days' notice in writing to the	118
agent of its intention to do so. Any agency contract may include a	119
clause requiring the agent to report to the appropriate law	120
enforcement agency the name and address of any individual under	121
twenty-one years of age who attempts to make an illegal purchase.	122

An agent may engage in the selling of beer, mixed beverages,	123
and wine pursuant to permits issued to the agent under Chapter	124
4303. of the Revised Code.	125

The division shall issue a C-1 and C-2 permit to each agent	126
who prior to November 1, 1994, had not been issued both of these	127
permits, notwithstanding the population quota restrictions	128
contained in section 4303.29 of the Revised Code or in any rule of	129
the liquor control commission and notwithstanding the requirements	130
of section 4303.31 of the Revised Code. The location of a C-1 or	131
C-2 permit issued to such an agent shall not be transferred. The	132
division shall revoke any C-1 or C-2 permit issued to an agent	133
under this paragraph if the agent no longer operates an agency	134
store.	135

The division may enter into agreements with the department of	136
development to implement a minority loan program to provide	137
low-interest loans to minority business enterprises, as defined in	138
section 122.71 of the Revised Code, that are awarded liquor agency	139
contracts or assignments.	140

(D)(E) If the division closes a state liquor store and	141
replaces that store with an agency store, any employees of the	142
division employed at that state liquor store who lose their jobs	143
at that store as a result shall be given preference by the agent	144
who operates the agency store in filling any vacancies that occur	145
among the agent's employees, if that preference does not conflict	146
with the agent's obligations pursuant to a collective bargaining	147
agreement.	148

If the division closes a state liquor store and replaces the	149
store with an agency store, any employees of the division employed	150
at the state liquor store who lose their jobs at that store as a	151
result may displace other employees as provided in sections	152
124.321 to 124.328 of the Revised Code. If an employee cannot	153
displace other employees and is laid off, the employee shall be	154
reinstated in another job as provided in sections 124.321 to	155
124.328 of the Revised Code, except that the employee's rights of	156
reinstatement in a job at a state liquor store shall continue for	157
a period of two years after the date of the employee's layoff and	158
shall apply to jobs at state liquor stores located in the	159
employee's layoff jurisdiction and any layoff jurisdiction	160
adjacent to the employee's layoff jurisdiction.	161

(E)(F) The division shall require every agent to give bond	162
with surety to the satisfaction of the division, in the amount	163
the division fixes, conditioned for the faithful performance of	164
the agent's duties as prescribed by the division.	165

Sec. 4303.26.  (A) Applications for regular permits	166
authorized by sections 4303.02 to 4303.23 of the Revised Code may	167
be filed with the division of liquor control. No permit shall be	168
issued by the division until fifteen days after the application	169
for it is filed. An applicant for the issuance of a new permit	170
shall pay a processing fee of one hundred dollars when filing	171
application for the permit, if the permit is then available, or	172
shall pay the processing fee when a permit becomes available, if	173
it is not available when the applicant initially files the	174
application. When an application for a new class C or D permit is	175
filed, when class C or D permits become available, or when an	176
application for transfer of ownership of a class C or D permit or	177
transfer of a location of a class C or D permit is filed, no	178
permit shall be issued, nor shall the location or the ownership of	179
a permit be transferred, by the division until the division	180
notifies the legislative authority of the municipal corporation,	181
if the business or event is or is to be located within the	182
corporate limits of a municipal corporation, or the clerk of the	183
board of county commissioners and the fiscal officer of the board	184
of township trustees in the county in which the business or event	185
is or is to be conducted, if the business is or is to be located	186
outside the corporate limits of a municipal corporation, and an	187
opportunity is provided officials or employees of the municipal	188
corporation or county and township, who shall be designated by the	189
legislative authority of the municipal corporation or the board of	190
county commissioners or board of township trustees, for a complete	191
hearing upon the advisability of the issuance, transfer of	192
ownership, or transfer of location of the permit. In this hearing,	193
no objection to the issuance, transfer of ownership, or transfer	194
of location of the permit shall be based upon noncompliance of the	195
proposed permit premises with local zoning regulations which	196
prohibit the sale of beer or intoxicating liquor, in an area zoned	197
for commercial or industrial uses, for a permit premises that	198
would otherwise qualify for a proper permit issued by the	199
division.	200

When the division sends notice to the legislative or	201
executive authority of the political subdivision, as required by	202
this section, the division shall also so notify, by certified	203
mail, return receipt requested, or by personal service, the chief	204
peace officer of the political subdivision. Upon the request of	205
the chief peace officer, the division shall send the chief peace	206
officer a copy of the application for the issuance or the transfer	207
of ownership or location of the permit and all other documents or	208
materials filed by the applicant or applicants in relation to the	209
application. The chief peace officer may appear and testify,	210
either in person or through a representative, at any hearing held	211
on the advisability of the issuance, transfer of ownership, or	212
transfer of location of the permit. The hearing shall be held in	213
the central office of the division, except that upon written	214
request of the legislative authority of the municipal corporation	215
or the board of county commissioners or board of township	216
trustees, the hearing shall be held in the county seat of the	217
county where the applicant's business is or is to be conducted.	218

If the business or event specified in an application for the	219
issuance, transfer of ownership, or transfer of location of any	220
regular permit authorized by sections 4303.02 to 4303.23 of the	221
Revised Code, except for an F-2 permit, is, or is to be operated,	222
within five hundred feet from the boundaries of a parcel of real	223
estate having situated on it a school, church, library, public	224
playground, or township park, no permit shall be issued, nor shall	225
the location or the ownership of a permit be transferred, by the	226
division until written notice of the filing of the application	227
with the division is served, by certified mail, return receipt	228
requested, or by personal service, upon the authorities in control	229
of the school, church, library, public playground, or township	230
park and an opportunity is provided them for a complete hearing	231
upon the advisability of the issuance, transfer of ownership, or	232
transfer of location of the permit. In this hearing, no objection	233
to the issuance, transfer of ownership, or transfer of location of	234
the permit shall be based upon the noncompliance of the proposed	235
permit premises with local zoning regulations which prohibit the	236
sale of beer or intoxicating liquor, in an area zoned for	237
commercial or industrial uses, for a permit premises that would	238
otherwise qualify for a proper permit issued by the division. Upon	239
the written request of any of these authorities, the hearing shall	240
be held in the county seat of the county where the applicant's	241
business is or is to be conducted.	242

A request for any hearing authorized by this section shall be	243
made no later than thirty days from the time of notification by	244
the division. This thirty-day period begins on the date the	245
division mails notice to the legislative authority or the date on	246
which the division mails notice to or, by personal service, serves	247
notice upon, the institution. The division shall conduct a hearing	248
if the request for the hearing is postmarked by the deadline date.	249
The division may allow, upon cause shown by the requesting	250
legislative authority or board, an extension of thirty additional	251
days for the legislative authority of the municipal corporation,	252
board of township trustees of the township, or board of county	253
commissioners of the county in which a permit premises is or is to	254
be located to object to the issuance, transfer of ownership, or	255
transfer of location of a permit. The request for the extension	256
shall be made by the legislative authority or board to the	257
division no later than thirty days after the time of notification	258
by the division.	259

(B)(1) When an application for transfer of ownership of a	260
permit is filed with the division, the division shall give notice	261
of the application to the department of taxation. Within twenty	262
days after receiving this notification, the department of taxation	263
shall notify the division of liquor control and the proposed	264
transferee of the permit if the permit holder owes to this state	265
any delinquent sales taxes or income taxes withheld from employee	266
compensation or has failed to file any sales tax returns or	267
employee income tax withholding returns, to the extent that the	268
delinquent taxes and delinquent returns are known to the	269
department of taxation at that time. The division shall not	270
transfer ownership of the permit until returns known to be	271
delinquent are filed and until the tax or withholding delinquency	272
is resolved. As used in this division, "resolved" means that the	273
tax or withholding delinquency has been paid or an amount	274
sufficient to satisfy the delinquency is in escrow for the benefit	275
of the state. The department of taxation shall notify the division	276
of the resolution. After the division has received the	277
notification from the department of taxation, the division may	278
proceed to transfer ownership of the permit. Nothing in this	279
division shall be construed to affect or limit the	280
responsibilities or liabilities of the transferor or the	281
transferee imposed by Chapter 5739. or 5747. of the Revised Code.	282

(2) Notwithstanding section 5703.21 of the Revised Code,	283
nothing prohibits the department of taxation from disclosing to	284
the division or to the proposed transferee or the proposed	285
transferee's designated agent any information pursuant to division	286
(B)(1) of this section.	287

(C) No F or F-2 permit shall be issued for an event until the	288
applicant has, by means of a form that the division shall provide	289
to the applicant, notified the chief peace officer of the	290
political subdivision in which the event will be conducted of the	291
date, time, place, and duration of the event.	292

(D) The division of liquor control shall notify an applicant	293
for a permit authorized by sections 4303.02 to 4303.23 of the	294
Revised Code of an action pending or judgment entered against a	295
liquor permit premises, of which the division has knowledge,	296
pursuant to section 3767.03 or 3767.05 of the Revised Code if the	297
applicant is applying for a permit at the location of the premises	298
that is the subject of the action under section 3767.03 or	299
judgment under section 3767.05 of the Revised Code.	300

Sec. 4303.292.  (A) The division of liquor control may refuse	301
to issue, transfer the ownership of, or renew, and shall refuse to	302
transfer the location of, any retail permit issued under this	303
chapter if it finds either of the following:	304

(1) That the applicant, or any partner, member, officer,	305
director, or manager of the applicant, or, if the applicant is a	306
corporation or limited liability company, any shareholder owning	307
five per cent or more of the applicant's capital stock in the	308
corporation or any member owning five per cent or more of either	309
the voting interests or membership interests in the limited	310
liability company:	311

(a) Has been convicted at any time of a crime that relates to	312
fitness to operate a liquor establishment;	313

(b) Has operated liquor permit businesses in a manner that	314
demonstrates a disregard for the laws, regulations, or local	315
ordinances of this state or any other state;	316

(c) Has misrepresented a material fact in applying to the	317
division for a permit; or	318

(d) Is in the habit of using alcoholic beverages or dangerous	319
drugs to excess, or is addicted to the use of narcotics.	320

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

321

(a) Does not conform to the building, safety, or health	322
requirements of the governing body of the county or municipal	323
corporation in which the place is located. As used in division	324
(A)(2)(a) of this section, "building, safety, or health	325
requirements" does not include local zoning ordinances. The	326
validity of local zoning regulations shall not be affected by this	327
section.	328

(b) Is so constructed or arranged that law enforcement	329
officers and duly authorized agents of the division are prevented	330
from reasonable access to rooms within which beer or intoxicating	331
liquor is to be sold or consumed;	332

(c) Is so located with respect to the neighborhood that	333
substantial interference with public decency, sobriety, peace, or	334
good order would result from the issuance, renewal, transfer of	335
location, or transfer of ownership of the permit and operation	336
under it by the applicant; or	337

(d) Has been declared a nuisance pursuant to Chapter 3767. of	338
the Revised Code since the time of the most recent issuance,	339
renewal, or transfer of ownership or location of the liquor	340
permit.	341

(B) The division of liquor control may refuse to issue or	342
transfer the ownership of, and shall refuse to transfer the	343
location of, any retail permit issued under this chapter if it	344
finds either of the following:	345

(1) That the place for which the permit is sought is so	346
situated with respect to any school, church, library, public	347
playground, or hospital that the operation of the liquor	348
establishment will substantially and adversely affect or interfere	349
with the normal, orderly conduct of the affairs of those	350
facilities or institutions;	351

(2) That the number of permits already existent in the	352
neighborhood is such that the issuance or transfer of location of	353
a permit would be detrimental to and substantially interfere with	354
the morals, safety, or welfare of the public. In reaching a	355
conclusion in this respect, the division shall consider, in light	356
of the purposes of this chapter and Chapters 4301. and 4399. of	357
the Revised Code, the character and population of the	358
neighborhood, the number and location of similar permits in the	359
neighborhood, the number and location of all other permits in the	360
neighborhood, and the effect the issuance or transfer of location	361
of a permit would have on the neighborhood.	362

(C) The division of liquor control shall not transfer the	363
location or transfer the ownership and location of a permit under	364
division (B)(2)(b) of section 4303.29 of the Revised Code unless	365
the permit is transferred to an economic development project.	366

(D) The division of liquor control shall refuse to issue,	367
renew, transfer the ownership of, or transfer the location of a	368
retail permit under this chapter if the applicant is or has been	369
convicted of a violation of division (C)(1) of section 2913.46 of	370
the Revised Code.	371

(E) The division of liquor control shall refuse to transfer	372
the ownership of or transfer the location of a retail permit under	373
this chapter while criminal proceedings are pending against the	374
holder of the permit for a violation of division (C)(1) of section	375
2913.46 of the Revised Code. The department of public safety shall	376
notify the division whenever criminal proceedings have commenced	377
for a violation of division (C)(1) of section 2913.46 of the	378
Revised Code.	379

(F) The division of liquor control shall refuse to issue,	380
renew, or transfer the ownership or location of a retail permit	381
under this chapter if the applicant has been found to be	382
maintaining a nuisance under section 3767.05 of the Revised Code	383
at the premises for which the issuance, renewal, or transfer of	384
ownership or location of the retail permit is sought.	385

(G) The division shall refuse to issue or transfer the	386
ownership or location of a retail permit issued under this chapter	387
if the premises or event specified in the application is, or is to	388
be operated, within one thousand feet from the boundaries of a	389
parcel of real estate having situated on it a school, church,	390
library, public playground, or township park.	391

Section 2. That existing sections 4301.17, 4303.26, and	392
4303.292 of the Revised Code are hereby repealed.	393