Opinion
No. 80-1029
Decided March 18, 1981.
Mandamus — To compel city to rent hall — Writ denied, when — Appeal remedy available.
APPEAL from the Court of Appeals for Cuyahoga County.
In April 1980, appellant, Laramie Corporation, d.b.a. New Era Burlesk, sought to rent the Music Hall at the Cleveland Convention Center. The requested rental date was June 25, 1980, and was for the purpose of presenting a show entitled, "The Ms. Nude Ohio Beauty Pageant." The Music Hall is a public facility wholly-owned and operated by the city of Cleveland. The city rents the Music Hall to persons, firms, corporations, and others for the purpose of staging shows, plays, musicals, concerts, and other events.
Appellant alleges that its show would be restricted to persons 21 years of age or older and that no food or beverages, alcoholic or otherwise, would be sold at the Music Hall on the evening of the show. Furthermore, the city concedes that the Music Hall was available for rental on the evening requested by appellant.
In response to appellant's rental application, the city of Cleveland instituted an action in the Cleveland Municipal Court seeking a declaratory judgment that the nudity in the show would violate the city's criminal ordinances and state liquor regulations. Injunctive relief was also sought to prohibit any conduct declared to be criminal or in violation of liquor regulations. That court entered an order permanently enjoining appellant from presenting its show at the Music Hall. An appeal of that decision is presently pending in the Court of Appeals for Cuyahoga County.
While the action was still pending in the Municipal Court, appellant instituted the instant action in mandamus in the Court of Appeals requesting a writ ordering appellees, the city, its mayor, law director, and acting director of the city's Department of Public Properties, to rent the Music Hall to appellant for the evening of June 25, 1980. The Court of Appeals denied the writ.
The cause is now before this court upon an appeal as a matter of right.
Messrs. Berkman, Gordon, Levy, Murray Palda, Mr. Bernard A. Berkman and Mr. J. Michael Murray, for appellant.
Mr. Thomas E. Wagner, director of law, Mr. Jose Feliciano, Mr. Richard Tariscka and Mr. Donald F. Black, for appellees.
A writ of mandamus is an extraordinary remedy, which will not be granted if relator has a plain and adequate remedy at law. State, ex rel. Square, v. Planning Comm. (1980), 64 Ohio St.2d 128; State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42.
Appellant in the instant cause has a plain and adequate remedy at law by way of appeal from the decision of the Cleveland Municipal Court. Indeed, appellant is presently taking advantage of that remedy, having appealed that decision to the Court of Appeals, where it is now pending. Accordingly, the writ must be denied. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, STEPHENSON, LOCHER, HOLMES and C. BROWN, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for SWEENEY, J.