Opinion
No. 33008
Decided March 4, 1953.
Intoxicating liquor — Liquor permit — Application for transfer — Transfer ordered by Board of Liquor Control — Order made after permit expired — Director refused to comply with order — Mandamus not available to require transfer.
Where, on an appeal to the Board of Liquor Control from the refusal of the Director of Liquor Control to grant an application for a transfer of a liquor permit, such board, after the expiration of the liquor permit, makes an order that the director grant such application, and the director refuses to comply therewith, mandamus will not lie at the instance of the applicant to compel the director to comply with the order.
IN MANDAMUS.
This is an action in mandamus brought originally in this court by Maxine B. Jones of Jackson, Ohio, against William C. Bryant, Director of Liquor Control, to compel the respondent to comply with an order of the Ohio Board of Liquor Control, dated November 30, 1951, to issue to her class D-1, D-2 and D-3 liquor permits.
The cause was presented to this court on a stipulation of facts, the substance of which is as follows:
R.H. Wick on October 18, 1950, was the holder of class D-1, D-2 and D-3 liquor permits, expiring November 21, 1950, for premises located in the Gibson Hotel building at Jackson, Ohio. On October 18, 1950, he filed with the Department of Liquor Control an application for the renewal of such permits, which application was granted, the permits expiring November 3, 1951. On May 15, 1951, Wick and relatrix, under Regulation 14 of the Board of Liquor Control, filed with the department an application to transfer such permits to the relatrix. On May 17, 1951, the department left at the permit premises of Wick a violation notice charging that he had violated Sections 6064-17 and 6064-25, General Code, and Regulation 53 of the Board of Liquor Control ( i. e., that he had exhibited and operated slot machines on the premises contrary to the regulations of the department). On July 3, 1951, the department acting through the respondent rejected the application to transfer such permits because in such application Wick had made a false statement to the effect that he was a resident of Ohio whereas in fact he was at that time a resident of Pinellas county, Florida, and was serving as county commissioner of that county. On July 3, 1951, Wick filed with the Board of Liquor Control a notice of appeal from the order of rejection, and on October 5, 1951, filed with the department applications to renew such permits. On November 2, 1951, the chief of permits of the department notified Wick that the department had cancelled such renewal applications, and on October 19, 1951, a notice was issued to Wick to show cause why such permits should not be revoked, charging that he had exhibited and operated slot machines on his premises and had falsely represented that he was on October 16, 1950, a resident of Ohio as required for holding a permit by Section 6064-17, General Code. On November 8, 1951, the Board of Liquor Control heard the appeal of the relatrix from the order of rejection made on July 3, 1951, and on November 30, 1951, found that the relatrix was entitled to the transfer to her of such permits, reversed the order made by the respondent and ordered him to transfer the three permits in question. The board on December 7, 1951, dismissed the revocation-of-permit proceedings against Wick, and on December 15, 1951, Wick and relatrix filed with the department a new application for such permits. On January 15, 1952, the relatrix filed with the department applications for D-1 and D-2 permits for the premises in question, and the respondent on March 6, 1952, granted the applications and issued D-1 and D-2 permits, effective March 6, 1952.
The respondent in his answer alleges that he will not, "unless ordered by this court, issue to relatrix a new class D-3 permit for the period subsequent to November 3, 1951, as prayed for in the application for renewal of permits filed by relatrix and R.H. Wick on December 15, 1951, and as prayed for in this petition for mandamus, for the reasons (1) that the class D-3 permit * * * the transfer of which was in issue before the Ohio Board of Liquor Control, having expired by operation of law on November 3, 1951, the Board of Liquor Control had no jurisdiction to order the issuance of any permit, except for the period of time prior to November 3, 1951, such being the sole question on appeal before such board; and (2) that said class D-3 permit * * * was void since issued to R.H. Wick contrary to the mandatory provision of Section 6064-17, General Code."
Mr. Isadore Topper, Mr. Leonard Stern and Mr. David Howell, for relatrix.
Mr. C. William O'Neill, attorney general, Mr. Robert E. Leach and Mr. Brown W. Pettit, for respondent.
The record discloses that, before this action was commenced, the Director of Liquor Control issued to relatrix D-1 and D-2 permits. Therefore, this action now relates solely to the refusal of the director to transfer to relatrix and to renew a D-3 permit.
The decisive question in this case is whether, assuming that there was a duty upon the respondent to transfer the permit in question in compliance with the order of the Board of Liquor Control of November 30, 1951, such permit now having expired by operation of law as of November 3, 1951, the respondent may be compelled to comply with such order and especially to grant the application of the relatrix for the issuance of a D-3 permit for a later period of time.
Section 6064-20, General Code, reads in part as follows:
"Each class and kind of permit issued under authority of the Liquor Control Act shall authorize the person therein named to carry on the business therein specified at the place or in the boat, vessel or classes of dining car equipment therein described, for a period of one year commencing on the day after the date of its issuance, and no longer, subject to suspension, revocation or cancellation as authorized or required by this act * * *." (Italics supplied.)
It is apparent from the provisions of that section and the entire Liquor Control Act that the legislative policy of the state is to grant liquor permits for a comparatively short period of time, not to exceed one year, subject, in the meantime, to suspension, revocation or cancellation under certain circumstances named in the act. The purpose of providing such brief tenures is to give the Department of Liquor Control continuing authority to consider the renewal or cancellation of such a permit in the light of business operation under the permit by its holder, and in light of ever changing circumstances relating to the propriety of such renewal or cancellation.
The order of the Board of Liquor Control in the instant case was made on November 30, 1951, whereas the permits which were the subject matter of the order had already expired on November 3, 1951, after the controversy concerning their issue had become moot. The order of the Board of Liquor Control did not purport to require a renewal of the permits after their expiration date, for the very sufficient reason that the board had no jurisdiction or power to make such an order. The matter of the renewal of the permits was within the jurisdiction of the Director of Liquor Control, and this court has no jurisdiction to control his discretion in the matter. Mandamus, therefore, is not a proper remedy under the circumstances.
If the decision of the Director of Liquor Control upon the application for a renewal of a D-3 permit is not satisfactory to the relatrix, she may appeal to the Board of Liquor Control and, if necessary, to the Common Pleas Court.
The writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., TAFT, MATTHIAS, ZIMMERMAN and STEWART, JJ., concur.