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Sam & Ali Inc. v. Ohio Department of Liquor Control (6th Cir. 10/15/1998)

October 15, 1998

SAM & ALI, INC.; ALEB, INC.; MALLOUGH, INC.; AND MURIB, INC., PLAINTIFFS-APPELLANTS,
v.
OHIO DEPARTMENT OF LIQUOR CONTROL AND WILLIAM A. VASIL, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 93-01193--Edmund A. Sargus, Jr., District Judge.

Before: Krupansky, Norris, and Siler, Circuit Judges.

The opinion of the court was delivered by: Siler, Circuit Judge.

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 24

No. 97-3546

Argued: August 6, 1998

SILER, J., delivered the opinion of the court, in which NORRIS, J., joined. KRUPANSKY, J. (pp. 8-23), delivered a separate opinion Concurring only in the result.

Plaintiffs appeal the dismissal of their complaint raising federal constitutional challenges to an Ohio statute authorizing local option elections to ban sales of alcohol by holders of class C and D liquor permits. For the following reasons, we AFFIRM.

I.

Plaintiffs brought this action challenging the constitutionality of Ohio Rev. Code § 4305.14, which allows voters to petition for local option elections to determine whether the sale of beer by holders of class C or D liquor permits would be allowed in the precinct. Each of the plaintiffs holds either a class C or D permit. Generally, class C permit holders may sell alcoholic beverages which are not to be consumed upon the premises, Ohio Rev. Code §§ 4304.11-.121, and class D permit holders may sell alcoholic beverages for consumption upon the premises. Ohio Rev. Code § 4303.13-.183. Local option elections only affect holders of class C and D permits. Class A-1-A permits, which are not covered by the local option election statute, operate in the same manner as a D-5 permit in that they allow holders to serve beer or liquor by the glass for on-premises consumption. The only difference between the two permits is that an A-1-A permit may only be issued to a microbrewery or winery. See Ohio Rev. Code §§ 4303.21, 4303.18.

Pursuant to Ohio Rev. Code § 4305.14, voters presented petitions to the Franklin County Board of Elections seeking an election on the question of whether beer sales by holders of class C or D permits would be allowed in certain precincts within the city of Columbus. A majority of voters in each precinct voted to end the sale of beer by holders of class C or D permits.

The plaintiffs then filed suit against several defendants alleging that the statutory provisions allowing local option elections on this question violated their due process rights under the Fifth Amendment, interfered with their right to contract in violation of the Contracts Clause, and violated their right to equal protection. They also alleged that acts of the defendants to enforce the statute violated their rights under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. The remaining defendants on appeal are the Ohio Department of Liquor Control and William Vasil, Director of the Department.

The district court dismissed each of the claims. In issuing its decision, the court relied heavily on the reasoning of Colson v. City of Shaker Heights, 880 F.Supp. 1161 (N.D. Ohio 1995), aff'd, No. 95-3538, 1996 WL 683595 (6th Cir., Nov. 22, 1996), and held that the Ohio legislature may treat various classes of liquor permit holders differently so long as distinctions between the classes are rationally related to a governmental interest. The court concluded that the distinctions implemented by the Ohio legislature were rational and that the local option election statute was therefore constitutionally sound.

II.

As an initial matter, it is not clear whether the plaintiffs are attacking Ohio's local option election scheme on its face or as applied. Their complaint filed in the district court and brief filed with this court do not directly address this issue, and oral argument did not clarify this question. Their arguments seem to attack the Ohio statutes both on their face and as applied. *fn1 Plaintiffs' claims would fail under either a facial or as applied analysis but for different reasons. Therefore, we will read their complaint as if they are making both types of attacks and consider each argument.

A.

Any facial attack on the constitutionality of Ohio rev. Code ยงยง 4305.14 and 4305.16 is precluded by 37712, Inc. v. Ohio Dep't of Liquor Control, 113 F.3d 614 (6th Cir. 1997), decided after the district court's decision in this case. In 37712, Inc., the plaintiffs were a group of businesses who possessed class C and D liquor permits which permitted the retail sale of beer. Some of the plaintiffs operated in precincts where voters had decided, pursuant to local option election, to ban the sale of alcohol under such permits. Other plaintiffs operated in precincts which had not held such elections but sought injunctions invalidating Ohio's local option election statutes. Id. at 617-18. The plaintiffs argued that the statutes "facially ...


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