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H. B. No. 146 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Representative Weddington
Cosponsors:
Representatives Amstutz, Williams
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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