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H. B. No. 137 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Representative Weddington
Cosponsors:
Representatives Williams, B., Luckie, Williams, S., Domenick, Heard
A BILL
To amend sections 4301.17, 4303.26, and 4303.292 of
the Revised Code 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.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4301.17, 4303.26, and 4303.292 of
the Revised Code be amended to read as follows:
Sec. 4301.17. (A)(1) Subject to local option as provided in
sections 4301.32 to 4301.40 of the Revised Code, five state
liquor
stores or agencies may be established in each county. One
additional store may be established in any county for each
twenty
thousand of population of
that county or major
fraction
thereof
in
excess of the first forty thousand, according
to the
last
preceding federal
decennial census
or according to the
population
estimates certified by the department of development
between
decennial censuses. A person engaged in a mercantile
business may
act as the agent for the division of
liquor
control
for the sale
of spirituous liquor in a municipal
corporation, in
the
unincorporated area
of a township, or in
an area designated
and
approved as a
resort area under section
4303.262 of the
Revised
Code. The
division shall
fix
the compensation for such
an
agent
in
the
manner
it
considers best, but
the compensation
shall
not
exceed
seven per cent of the gross
sales made by
the
agent in
any
one
year.
(2) The division shall adopt rules in accordance with
Chapter
119. of the Revised Code governing the allocation and
equitable
distribution of agency store contracts. The division
shall comply
with the rules when awarding a contract under
division (A)(1) of
this section.
(3) Except as otherwise provided in this section, no
mercantile
business
that sells beer or intoxicating
liquor for
consumption on
the premises under a permit issued by
the division
shall operate
an agency store at
the premises.
An
agency to which
a D-1 permit has been
issued may
offer for sale
tasting samples of
beer, an agency
to which a
D-2
permit has been
issued may offer
for sale tasting samples of wine
and mixed
beverages, and an
agency to which a D-5 permit
has been
issued may
offer for sale
tasting samples of beer, wine, and mixed
beverages,
but not
spirituous liquor. A tasting sample shall not
be sold
for
the
purpose of
general consumption. As used in this
section,
"tasting
sample" means a small
amount of beer, wine, or
mixed
beverages
that is provided in not more than
four servings of
not
more than
two ounces each to an authorized purchaser and
that
allows the
purchaser to determine, by tasting only, the quality
and
character
of the beverage.
(B) When an agency contract is proposed, when an existing
agency
contract is assigned, when an existing agency proposes to
relocate, or when an existing agency is relocated and assigned,
before entering into any
contract,
consenting to any assignment,
or consenting to any relocation, the division shall
notify the
legislative authority of the municipal corporation
in
which the
agency store is to be located, or the
board
of county
commissioners and the board of township trustees
of the
county and
the township in which the agency store is to be
located
if the
agency store is to be located outside the
corporate limits
of a
municipal corporation, of the proposed
contract, assignment, or
relocation, and
an
opportunity shall be provided officials or
employees of the
municipal corporation or county and township for
a complete
hearing upon the advisability of entering into the
contract
or
consenting to the assignment or relocation. When the
division sends notice
to
the
legislative
authority of the
political subdivision, the
division shall
notify, by certified
mail or by personal
service,
the chief peace
officer of the
political subdivision,
who
may
appear and testify,
either in
person or through a
representative,
at any hearing held
on the
advisability of
entering into the
contract
or consenting to the
assignment or relocation.
If
the proposed agency store, the assignment of an agency
contract, or the relocation of an agency store
would
be located
within five
hundred
feet of a school, church,
library,
public
playground, or
township
park, the division shall
not enter
into an
agency
contract
until it has provided notice of
the
proposed
contract to
the
authorities in control of the school,
church,
library, public
playground, or township park and has
provided
those authorities
with
an opportunity for
a complete hearing
upon
the advisability
of
entering into the
contract. If an agency
store
so is located within one thousand feet of a school, church,
library, public playground, or township park and is
operating
under an
agency contract,
the
division may
consent to relocation
of the agency store or to
the assignment of
that
contract to
operate
an agency store at the
same a location that is not within
one thousand feet of a school, church, library, public playground,
or township park. The
division may also consent to the assignment
of an existing agency
contract simultaneously with the relocation
of the that agency store.
In any such assignment or relocation,
the assignee and the
location shall be subject to the same
requirements that the
existing location met at the time that the
contract was first
entered into as well as any additional
requirements imposed by the
division in rules adopted by the
superintendent of liquor control.
The division
shall not consent
to an
assignment or relocation of
an agency store
until it has
notified the
authorities in control
of the
school,
church,
library, public
playground, or township
park and
has
provided
those authorities with
an opportunity for
a
complete
hearing upon
the advisability of
consenting to the
assignment or relocation.
Any hearing
provided for in this division shall be held in
the
central office of the division,
except that upon
written
request of the legislative authority of the municipal
corporation,
the board of county commissioners, or
the board of
township
trustees,
or the authorities in control of the school, church,
library,
public playground, or township park,
the hearing shall
be
held in
the county seat
of the county where
the proposed
agency
store is
to be located.
(C) The division shall not enter into an agency contract,
consent to the assignment of an existing contract, consent to the
relocation of an existing agency, or consent to the relocation and
assignment of an existing agency if the proposed agency store, the
assignment of an agency contract, the relocation of an existing
agency store, or the relocation and assignment of an existing
agency store would be located within one thousand feet of a
school, church, library, public playground, or township park.
(D) All agency contracts entered into by the division
pursuant to this section shall be in writing and shall contain a
clause providing for the termination of the contract at will by
the division upon its giving ninety days' notice in writing to
the
agent of its intention to do so. Any agency contract may
include a
clause requiring the agent to report to the appropriate
law
enforcement agency the name and address of any individual
under
twenty-one years of age who attempts to make an illegal
purchase.
An agent may engage in the selling of beer, mixed
beverages,
and wine pursuant to permits issued to the agent under
Chapter
4303. of the Revised Code.
The division shall issue a C-1 and C-2 permit to each
agent
who prior to
November 1, 1994, had not been issued both of these
permits,
notwithstanding the population quota restrictions
contained in section 4303.29
of the Revised Code or in any rule of
the liquor control commission and
notwithstanding the requirements
of section 4303.31 of the Revised Code. The
location of a C-1 or
C-2 permit issued to such an agent shall not be
transferred. The
division shall revoke any C-1 or C-2
permit issued to
an agent
under this paragraph if the agent no longer operates an agency
store.
The division may enter into agreements with the department
of
development to
implement a minority loan program to provide
low-interest loans to minority
business enterprises, as defined in
section 122.71 of the Revised Code, that
are awarded liquor agency
contracts or assignments.
(D)(E) If the division closes a state liquor store and
replaces
that store with
an agency store, any employees of the
division
employed at that state liquor
store who lose their jobs
at that
store as a result shall be given
preference by the agent
who
operates the agency store in filling any vacancies that occur
among the agent's employees, if
that preference does not
conflict
with the agent's obligations pursuant to a collective
bargaining
agreement.
If the division closes a state liquor store and replaces the
store with an
agency store, any employees of the division employed
at the state liquor store
who lose their jobs at that store as a
result may displace other
employees as provided in sections
124.321 to 124.328 of the Revised Code. If
an employee cannot
displace other employees and is laid off, the employee
shall be
reinstated in another job as provided in sections 124.321 to
124.328
of the Revised Code, except that the employee's rights of
reinstatement in a
job at a state liquor store shall continue for
a period of two years after the
date of the employee's layoff and
shall apply to jobs at state liquor stores
located in the
employee's layoff jurisdiction and any layoff jurisdiction
adjacent to the employee's layoff jurisdiction.
(E)(F) The division shall require every
agent to
give bond
with
surety to the satisfaction of the division, in
the
amount
the
division fixes, conditioned for the faithful
performance of
the
agent's
duties as prescribed by the division.
Sec. 4303.26. (A) Applications for regular permits
authorized by sections 4303.02 to 4303.23 of the Revised Code may
be filed with the division of liquor control. No permit
shall
be
issued by the division until fifteen days after the
application
for it is filed. An applicant for the issuance of a
new permit
shall pay a processing fee of one hundred dollars when
filing
application for the permit, if the permit is
then available, or
shall pay the processing fee when a permit becomes
available, if
it is not available when the applicant initially
files the
application. When an application for a new class C or
D permit is
filed, when class C or D permits become available, or
when an
application for transfer of ownership of a class C or D
permit or
transfer of a location of a class C or D permit is
filed, no
permit shall be issued, nor shall the location or the
ownership of
a permit be transferred, by the division until the
division
notifies the legislative authority of the municipal
corporation,
if the business or event is or is to be located
within the
corporate limits of a municipal corporation, or the
clerk of the
board of county commissioners and
the fiscal officer of the board
of township trustees
in the county in which the business or event
is or is to be
conducted, if the business is or is to be located
outside the
corporate limits of a municipal corporation, and an
opportunity
is provided officials or employees of the municipal
corporation
or county and township, who shall be designated by the
legislative authority of the municipal corporation or the board
of
county commissioners or
board of township trustees, for a complete
hearing upon the advisability of the issuance, transfer of
ownership, or transfer of location of the permit. In this
hearing,
no objection to the issuance, transfer of ownership, or
transfer
of location of the permit shall be based upon
noncompliance of the
proposed permit premises with local zoning
regulations which
prohibit the sale of beer or intoxicating
liquor, in an area zoned
for commercial or industrial uses, for a
permit premises that
would otherwise qualify for a proper permit
issued by the
division.
When the division sends notice to the legislative or
executive authority of the political subdivision, as required by
this section, the division shall also so notify, by certified
mail, return receipt requested, or by personal service, the chief
peace officer of the political subdivision. Upon the request of
the chief peace officer, the division shall send the chief peace
officer a
copy of the application for the issuance or the transfer
of ownership or
location of the permit and all other documents or
materials filed
by the applicant or applicants in relation to the
application.
The chief peace officer may appear and testify,
either in person
or through a representative, at any hearing held
on the
advisability of the issuance, transfer of ownership, or
transfer
of location of the permit. The hearing shall be held in
the
central office of the division, except that upon written
request of the legislative authority of the municipal corporation
or the board of county commissioners or
board of township
trustees, the
hearing shall be held in the county seat of the
county where the
applicant's business is or is to be conducted.
If the business or event specified in an application for
the
issuance, transfer of ownership, or transfer of location of
any
regular permit authorized by sections 4303.02 to 4303.23 of
the
Revised Code, except for an F-2 permit, is, or is to be
operated,
within five hundred feet from the boundaries of a
parcel of real
estate having situated on it a school, church,
library, public
playground, or township park, no permit shall be
issued, nor shall
the location or the ownership of a permit be
transferred, by the
division until written notice of the
filing
of the application
with the division is served, by certified
mail, return receipt
requested, or by personal service, upon the
authorities in control
of the school, church, library, public
playground, or township
park and an opportunity is provided them
for a complete hearing
upon the advisability of the issuance,
transfer of ownership, or
transfer of location of the permit. In
this hearing, no objection
to the issuance, transfer of
ownership, or transfer of location of
the permit shall be based
upon the noncompliance of the proposed
permit premises with local
zoning regulations which prohibit the
sale of beer or
intoxicating liquor, in an area zoned for
commercial or
industrial uses, for a permit premises that would
otherwise
qualify for a proper permit issued by the
division.
Upon
the written request of
any
of these authorities, the
hearing
shall
be held in the county seat of the county where the
applicant's
business is or is to be conducted.
A request for any hearing authorized by this section shall
be
made no later than thirty days from the time of notification
by
the division. This thirty-day period begins on the date the
division mails notice to the legislative authority or
the date on
which the division mails notice to or, by
personal service, serves
notice upon, the institution. The
division shall conduct a
hearing
if the request for the
hearing is
postmarked by the
deadline date.
The division may allow, upon cause shown by
the
requesting
legislative authority or board, an extension of
thirty
additional
days for the legislative authority of the
municipal
corporation,
board of township trustees of the
township, or board
of county
commissioners of the county in which
a permit premises
is or is to
be located to object to the
issuance, transfer of
ownership, or
transfer of location of a
permit.
The request
for the extension
shall be made by the
legislative authority or
board to the
division no later than
thirty days after the time of
notification
by the division.
(B)(1) When an application for transfer of ownership of a
permit is filed with the division, the
division shall give
notice
of the application to the department of taxation. Within
twenty
days after receiving this notification, the department
of taxation
shall notify the division of liquor control and
the proposed
transferee of the permit if the permit holder owes to
this state
any delinquent sales taxes or income taxes withheld
from employee
compensation or has failed to file any sales tax
returns or
employee income tax withholding returns, to the extent
that
the
delinquent taxes and delinquent returns are known to
the
department of taxation at that time. The division shall not
transfer
ownership of the permit until
returns known to be
delinquent are filed and until
the tax
or withholding
delinquency
is resolved. As used in this
division, "resolved"
means that the
tax or withholding
delinquency has been paid or an
amount
sufficient to satisfy the
delinquency is in escrow for the
benefit
of the state. The
department of taxation shall notify the
division
of the resolution. After the
division has received
the
notification from the department of
taxation, the division may
proceed to
transfer ownership of the permit. Nothing in this
division shall
be construed to affect or limit the
responsibilities or
liabilities of the transferor or the
transferee imposed by
Chapter 5739. or 5747. of the Revised Code.
(2) Notwithstanding section 5703.21 of the Revised Code,
nothing prohibits the department of taxation from disclosing to
the division or to the proposed transferee
or the proposed
transferee's designated agent any
information pursuant to division
(B)(1) of this section.
(C) No F or F-2 permit shall be issued for an event until
the
applicant has, by means of a form that the division shall
provide
to the applicant, notified the chief peace officer of the
political
subdivision in which the event will be conducted of the
date,
time, place, and duration of the event.
(D) The division of liquor control shall notify an applicant
for
a permit authorized by sections 4303.02 to 4303.23 of the
Revised
Code of an action pending or judgment entered against a
liquor permit
premises, of which the division has knowledge,
pursuant to section 3767.03
or 3767.05 of the Revised Code if the
applicant is applying
for a permit at the location of the premises
that is the subject of the action
under section 3767.03 or
judgment under section 3767.05 of the
Revised Code.
Sec. 4303.292. (A) The division of liquor control may
refuse
to issue, transfer the ownership of, or renew, and shall
refuse to
transfer the location of, any retail permit issued under
this
chapter if it finds
either of the following:
(1) That the applicant,
or any partner, member, officer,
director, or manager
of the applicant, or, if the
applicant is a
corporation or limited liability company,
any
shareholder
owning
five per
cent or more of
the
applicant's
capital stock
in the
corporation or any member owning
five per cent or more of either
the voting interests or membership
interests in the limited
liability company:
(a) Has been convicted at any time of a crime
that
relates to
fitness to operate a liquor establishment;
(b) Has operated liquor permit businesses in a manner
that
demonstrates a disregard for the laws, regulations, or local
ordinances of this state or any other state;
(c) Has misrepresented a material fact in applying to the
division for a permit;
or
(d) Is in the habit of using alcoholic beverages or
dangerous
drugs to excess, or is addicted to the use of
narcotics.
(2) That the place for which the permit is sought:
(a) Does not conform to the building, safety, or health
requirements of the governing body of the county or
municipal
corporation
in which the place is located. As used in
division
(A)(2)(a) of
this section, "building, safety, or health
requirements" does not
include local zoning ordinances. The
validity of local zoning
regulations shall not be affected by this
section.
(b) Is so constructed or arranged that law enforcement
officers and duly authorized agents of the division are
prevented
from reasonable access to rooms within which beer or
intoxicating
liquor is to be sold or consumed;
(c) Is so located with respect to the neighborhood that
substantial interference with public decency, sobriety, peace, or
good order would result from the issuance, renewal, transfer of
location, or transfer of ownership of the permit and operation
under it by the applicant; or
(d) Has been declared a nuisance pursuant to
Chapter 3767.
of
the
Revised Code since the time of the most
recent issuance,
renewal, or transfer of ownership or location of
the liquor
permit.
(B) The division of liquor control may refuse to issue
or
transfer the ownership of, and shall refuse to transfer the
location of, any retail permit issued under this chapter if it
finds
either of the following:
(1) That the place for which the permit is sought is so
situated with respect to any school, church, library, public
playground, or hospital that the operation of the liquor
establishment will substantially and adversely affect or
interfere
with the normal, orderly conduct of the affairs of
those
facilities or institutions;
(2) That the number of permits already existent in the
neighborhood is such that the issuance or transfer of location of
a permit would be detrimental to and substantially interfere with
the morals, safety, or welfare of the public. In reaching
a
conclusion in this respect, the division shall
consider, in
light
of the purposes of
this chapter and Chapters 4301.
and 4399. of
the
Revised Code, the character and population of the
neighborhood,
the number and location of similar permits in the
neighborhood,
the number and location of all other permits in the
neighborhood,
and the effect the issuance or transfer of location
of a permit
would have on the neighborhood.
(C) The division of liquor control shall not
transfer
the
location or transfer the ownership and location of a permit
under
division (B)(2)(b) of section 4303.29 of the Revised Code
unless
the permit is transferred to an economic development
project.
(D) The division of liquor control shall refuse to
issue,
renew, transfer the ownership of, or transfer the location of a
retail permit under this chapter if the applicant is or has been
convicted of
a violation of division (C)(1) of section 2913.46 of
the
Revised Code.
(E) The division of liquor control shall refuse to transfer
the
ownership of or transfer the location of a retail permit under
this chapter
while criminal proceedings are pending against the
holder of the permit for a
violation of division (C)(1) of section
2913.46 of the
Revised Code. The
department of public safety shall
notify the
division whenever
criminal proceedings have commenced
for a violation of division
(C)(1) of section 2913.46 of
the
Revised Code.
(F) The division of liquor control shall refuse to
issue,
renew, or transfer
the ownership or location of a retail
permit
under this chapter if
the applicant has been found to be
maintaining a nuisance under
section 3767.05
of the Revised Code
at the premises for which
the
issuance, renewal, or
transfer of
ownership or location of the
retail permit is sought.
(G) The division shall refuse to issue or transfer the
ownership or location of a retail permit issued under this chapter
if the premises or event specified in the application is, or is to
be operated, within one thousand feet from the boundaries of a
parcel of real estate having situated on it a school, church,
library, public playground, or township park.
Section 2. That existing sections 4301.17, 4303.26, and
4303.292 of the Revised Code are hereby repealed.
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