Opinion
No. 36582
Decided February 23, 1961.
Intoxicating liquor — Liquor permits — Violation of law by permit holder — Only Board of Liquor Control has authority to suspend — Director of Liquor Control — Without authority to suspend permit — Or exercise supervisory power over board.
APPEAL from the Court of Appeals for Franklin County.
The plaintiff, appellee herein, by this action in injunction seeks to enjoin the Department of Liquor Control and the Director of Liquor Control from seizing certain liquor permits held by plaintiff, authorizing it to make retail sales of intoxicating liquor, and from interfering with the operation of the particular premises for which such permits were issued.
Plaintiff is the operator of a hotel within which it operates five "bars" authorized by four certificates numbered 210246, 210247, 210248 and 210249, the last three of which were issued as "duplicates" of No. 210246 as authorized by Section 4303.30, Revised Code.
The Board of Liquor Control found plaintiff guilty of certain violations of the Liquor Control Act and regulations of the board and ordered that only classes D-2, D-3 and D-3a permits, certificate No. 210249, be suspended for a period of 42 days. It did not suspend the other permits issued to plaintiff.
Subsequent to such order by the board, the director ordered the ceasing of the operations of all five "bars" for a period of 42 days, on the basis that under the provisions of Section 4303.30, Revised Code, the plaintiff had only one actual permit; that the board could not legally suspend the "duplicate" permit without actually effectuating a suspension of the original and the other duplicate permits; and that the order of the board was unlawful and beyond the scope of its authority.
The director's threat to seize all the permits and close all five "bars" for a period of 42 days prompted this injunction suit.
The Common Pleas Court entered judgment for plaintiff permanently restraining the director from taking possession of or suspending any of the certificates of plaintiff, except certificate No. 210249 suspended by the board.
The Court of Appeals, on appeal on questions of law, affirmed the judgment.
An allowance of a motion to certify the record brings the cause to this court for review.
Mr. Charles T. Kaps, Messrs. Babin Fink and Mr. Anthony J. Trivision, for appellee.
Mr. Mark McElroy, attorney general, and Mr. Theodore R. Saker, for appellants.
The questions of the merits of the order of suspension, the severity of the penalty exacted, and the authority of the board to suspend or revoke but one of several permits held by a permit holder, although styled a "duplicate," are not before the court in this cause. The question here presented is simply whether the director has the authority to modify the order of the board and effectuate suspensions of certificates which the board could have suspended but did not, and thus assume the power of an appellate or supervisory tribunal.
This court is of the opinion that the director does not have such authority. Only the board has authority to suspend permits.
The judgment of the Court of Appeals, affirming the judgment of the trial court granting injunctive relief, is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.