Opinion
No. 25205
Decided October 14, 1960.
Intoxicating liquor — Regulation pre-empted by state — Sale of liquor in restaurant — Cannot be regulated by municipal zoning, when.
1. The regulation of the sale of liquor in Ohio has been completely pre-empted by the state, and local authorities are without power to deny the right to exercise the privileges granted a liquor permittee where, by state law, such privileges are provided for under state regulation.
2. A municipal zoning ordinance which limits the area where food may be served for consumption on the premises to a certain use district and prohibits the serving of beer or liquor in a restaurant in such use district is in conflict with the general laws of Ohio (Title XLIII of the Revised Code) which permit the holder of the requisite liquor permit to sell beer and liquor "only at tables where meals are served"; and the owner of a restaurant in such use district, who holds such a liquor permit, cannot be convicted under such ordinance for selling liquor by the glass for consumption on the premises in such restaurant.
APPEAL: Court of Appeals for Cuyahoga County.
Mr. Arthur T. Wincek, for appellee.
Mr. Michael A. Picciano, Mr. Carmen J. Milano and Mr. Andrew R. Valore, for appellant.
This appeal comes to this court on questions of law from a judgment whereby, after defendant was found guilty by a jury, the trial court sentenced him to pay a fine for the alleged violation of Ordinance 4122, Article III, Section 4, of the City of Lyndhurst. The case was tried in the Lyndhurst Municipal Court.
The affidavit upon which the trial was had recited the following:
"On or about the 5th day of December 1959 at the city of Lyndhurst, in said county and state, one Joseph Compola (Tasty Pizza Shop — 5136 Mayfield Road) did, then and there sell alcoholic beverage, by the glass, and, for consumption on premises — contrary to the provisions of Article 3, Section 4 of Ordinance 4122, Zoning Code, as amended, in violation of the good order, peace and dignity of the city of Lyndhurst. * * *"
Ordinance 4122 (The zoning ordinance of the city of Lyndhurst), in part, provides:
"Section 4 — Local Retail Districts.
"The following regulations shall apply to all local retail districts, subject, however, to the provisions of Article IV and V of this ordinance as are pertinent.
"(a) Uses Permitted
"* * *
"(3) Restaurants and other eating places.
"* * *
"(8) Uses permitted in local retail districts are subject to the following specific limitations:
"(a) No liquor or alcoholic beverages shall be sold by the glass nor for consumption on the premises.
"* * *
"Section 5 — General Retail Districts.
"The following regulations shall apply to all general retail districts, subject, however, to such of the provisions of Article IV and V of the ordinance as are pertinent.
"(a) Uses Permitted
"(1) All uses permitted and regulated by Article III, Section 4 (a) except as otherwise specified in Article III, Section 5 (a).
"(2) Theatres, assembly halls, bowling alleys and other similar places of amusement * * *
"(3) Hotels, restaurants and other eating places, provided, however, that no liquor shall be sold by the glass or for consumption on the premises unless the location is approved by the Board of Zoning Appeals and the approval confirmed by the council.
"* * *"
It is admitted that the defendant's place of business is located in a permitted use zone as shown on the zoning map designated "Local Retail District" under Article III, Section 4 (a), so that its use was restricted by the prohibition against the sale of liquor or alcoholic beverages by the glass or for consumption on the premises.
The defendant was granted a D-5 permit by the Department of Liquor Control, state of Ohio, under Sections 121.02 and 4301.10, paragraph 2, Revised Code, on November 19, 1959, which Certificate No. 237,457 was issued for a period of one year from its date.
Under the liquor law of Ohio (Section 4303.18, Revised Code) the defendant was permitted to sell beer or intoxicating liquor at retail by the glass for consumption on the premises. This section provides:
"Permit D-5 may be issued to the owner or operator of a night club to sell beer and any intoxicating liquor at retail, only by the individual drink in glass and from the container, for consumption on the premises where sold, only at tables where meals are served; and to sell the same products in the same manner and amounts not for consumption on the premises as may be sold by holders of D-1 and D-2 permits. A person who is the holder of both a D-3 and D-3a permit need not obtain a D-5 permit. The fee for this permit is one thousand dollars."
It is, therefore, perfectly evident that the right of this defendant to a D-5 permit is dependent on the necessity of serving meals at tables in his establishment. In other words, he must operate a restaurant or a public place where meals are served.
The only place in the city of Lyndhurst where food may be served for consumption on the premises is limited by the zoning ordinance to local retail districts and general retail districts. The ordinance attempts to prohibit serving beer and liquor by the glass for consumption by patrons in a restaurant in one district, and to permit it in another. The restriction in a local retail district is in direct conflict with the statutes of this state regulating the manufacture and sale of liquor, while the provisions as to a general retail district are in complete recognition of the law. The zoning law of the city of Lyndhurst provides for the zone in which restaurants may be operated, a subject with which it has power to deal. The state liquor law establishes the right of restaurant owners who measure up to the requirements of the law, where the location of the restaurant is in a territory where a license may be issued, to be granted a liquor permit of the proper class upon application subject to the regulations of the Department of Liquor Control. This is a subject within the exclusive jurisdiction of the Board of Liquor Control of Ohio.
If this were not so, a zoning board could completely override the statutes of Ohio on local option. The regulation of the manufacture and sale of liquor in Ohio has been completely preempted by the state. Local authorities are without power to deny the right to exercise the privileges of a liquor license where, by state law, such privileges are provided for under state regulation.
For the foregoing reasons, the judgment of the trial court, entered on the verdict of a jury, is reversed and final judgment is entered for the defendant.
Judgment reversed.
HURD, P. J., and KOVACHY, J., concur.