COLUMBUS, Ohio – An Ohio Liquor Control Commission rule that stopped alcohol sales at 10 p.m. at the beginning of the pandemic unconstitutionally conflicted with laws passed by the state legislature allowing permitholders to sell drinks after 1 a.m., an attorney for an Akron bar argued before the Ohio Supreme Court on Tuesday morning.
The Ohio Liquor Control Commission revoked the Highland Tavern’s liquor license beginning on Oct. 2, 2020, after three violations of Rule 80, a Liquor Control Commission order intended to curb the spread of the coronavirus.
UPDATE: Akron bar can’t regain liquor permits for violating COVID rules, Supreme Court says
The Akron bar has remained closed since then, even though the bar had never previously incurred any violation of its liquor permit prior to the imposition of Rule 80, said Warner Mendenhall, an attorney representing Highland Tavern.
Mendenhall asked the court to invalidate Rule 80, and rule that the bar is allowed to pursue a separate administrative appeal to have its liquor license reinstated.
“Since the onset of the pandemic, first of all, we had a crisis with the COVID-19 disease,” Mendenhall said. “But we’ve also have had a crisis, which we’ve seen throughout the state and federal courts around the land of executive overreach, where businesses have faced officials that have claimed competence in areas outside of their authority and power.”
The case before the Ohio Supreme Court is the latest challenge to Gov. Mike DeWine’s authority to impose the business restrictions implemented as the COVID-19 pandemic started its surge in Ohio.
On March 15, 2020, DeWine had closed restaurants and bars, except for takeout and delivery, to prevent spread of the disease at a time when little was understood about the virus and before vaccines and drugs were available. DeWine unveiled in May 2020 the “Dine Safe” order to reopen restaurants and bars. As part of the plan, he directed the Liquor Control Commission to enact a temporary rule ending the sales of liquor at 10 p.m.
Rule 80 lasted for 120 days, ending in November 2020. It required sales to stop at 10 p.m. Patrons had to finish their drinks on the premises by 11 p.m.
While Highland Tavern acknowledged in court documents that the Liquor Control Commission has the authority to shorten bars’ hours of operation, it argued that two separate laws governing liquor permits explicitly grant permitholders the right to sell after 1 a.m. Rule 80 was unconstitutional because it violates the separation of powers among different branches of state government, Mendenhall said.
After the Liquor Control Commission revoked its liquor permit, the bar filed an administrative appeal. The commission denied the appeal, so the bar appealed again in a Franklin County Common Pleas court. Highland Tavern also filed a separate lawsuit in Franklin County seeking to have Rule 80 declared unconstitutional, which was assigned to a different Franklin County judge.
The court rejected Highland Tavern’s administrative appeal, and the bar didn’t appeal that decision. The other trial judge dismissed the lawsuit. Highland Tavern appealed that decision to the Ohio 10th District Court of Appeals, which upheld the lower court’s decision.
The Ohio Attorney General’s office, representing DeWine and the Liquor Control Commission, argued that the issue is moot, or no longer relevant, since Rule 80 expired.
Stephen Carney of the Ohio Attorney General’s office said that the law governing the liquor permit hours has also been amended. Furthermore, the General Assembly passed a law in 2021 that allows it to rescind executive branch public health orders by a simple majority as soon as it next convenes.
“The bar is closed,” said Stephen Carney of the Ohio Attorney General’s office. “The rule is gone and the statute has been amended too. I don’t know how you could get more moot than that.”
Two Ohio Supreme Court justices didn’t hear the case Tuesday. Ohio 5th District Court of Appeals Judge Craig Baldwin filled in for Justice Patrick Fischer and 12th District Court of Appeals Judge Matthew Byrne filled in for Justice Patrick DeWine, son of the governor.
The court will decide the case in coming months.
Laura Hancock covers policy and politics in Columbus. Read more of her coverage here.