COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70758 BLACKWELL, INC., DBA KUKAS PLACE : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION DEPARTMENT OF LIQUOR CONTROL, : ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : DECEMBER 26, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-265991 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: PAUL MANCINO, JR., ESQ. BETTY D. MONTGOMERY, ESQ. Suite 1016 Attorney General of Ohio 75 Public Square JAMES M. GUTHRIE Cleveland, OH 44113-2098 Assistant Attorney General BGR - Liquor Unit 30 East Broad Street, 26th Fl. Columbus, OH 43216-3428 - 2 - PATTON, J. Plaintiff-appellant Blackwell, Inc. ("plaintiff") appeals the trial court's order dismissing its action versus defendant- appellee Ohio Department of Liquor Control ("ODLC"). Plaintiff bases its appeal on two alleged trial court errors: (1) dismissing the declaratory judgment action for lack of subject matter jurisdiction and (2) dismissing the case if the reason was improper venue. Plaintiff, as the owner-operator of a retail liquor establishment, possessed two liquor permits issued by the ODLC. These permits were the subject of a local option election which was statutorily authorized and provided for a vote regarding whether a particular premises could continue to be operated. In a special election held November 9, 1989 a majority of the votes cast in the option election approved the cancellation of plaintiff's liquor permits. By October 1991, plaintiff had unsuccessfully exhausted all legal remedies in attempting to regain its liquor permits. In December 1991, in an unrelated case the United States Court of Appealf for the Sixth Circuit held the option election statute was unconstitutional. See Brookpark Entertainment, Inc. v. Taft (6th Cir. 1991), 951 F.2d 710. Plaintiff then filed an action in the United States District Court for the Northern District of Ohio challenging the cancellation of its liquor licenses under the Fourteenth Amendment - 3 - and Title 42 of the U.S.O.C. The federal court and the Sixth Circuit Court of Appeals found the claim to be time-barred as not within the applicable two-year statute of limitations. See Blackwell, Inc. v. Fisher (November 8, 1993), 6th U.S. App., No. 92-4203. The present action, titled "Complaint for Declaratory Judgment and Injunctive Relief," was filed by plaintiff on February 23, 1994. ODLC filed a motion to dismiss which the trial court granted. Subsequently, plaintiff filed a motion for relief from judgment claiming non-receipt of defendant's motion to dismiss. The trial court granted this motion. ODLC again filed a motion to dismiss which was granted. It is this order from which plaintiff now appeals. Plaintiff's first assignment of error states as follows: THE COMMON PLEAS COURT ERRED IN DISMISSING THIS DECLARATORY JUDGMENT ACTION FOR THE LACK OF SUBJECT MATTER JURISDICTION Plaintiff argues the declaratory judgment was improperly dismissed because determining whether an unconstitutional statute retroactively nullifies a prior action questioning the same statute's validity presents a justiciable controversy ripe for consideration. ODLC maintains plaintiff has no standing to bring an action based on losing a liquor permit against ODLC pursuant to the O.R.C. 4301.10(B)(1) and, even if such a right existed, the present action fails for lack of proper jurisdiction. - 4 - The first question which must be addressed is whether plaintiff properly filed the declaratory judgment action in the Cuyahoga County Court of Common Pleas. R.C. 4301.31 reads, in pertinent part: "Except as provided in Section 4301.28 of the Revised Code, no court, other than the court of common pleas of Franklin county, has jurisdiction of any action against the liquor control commission, the director of liquor control, or the department of liquor control, to restrain the exercise of any power or to compel the performance of any duty under Chapters 4301. and 4303. of the Revised Code.***" In Rickard v. Ohio Dept. of Liquor Control (1985), 23 Ohio App.3d 101, the plaintiffs filed their original action, in the Greene County Court of Common Pleas, challenging the local-option election statutes on the theory that the statutes violated their right to due process. Judgment was granted in favor of plaintiffs. However, on appeal judgment was reversed based on lack of jurisdiction. The Second District Court of Appeals held that R.C. 4301.31 requires that an action of this type be brought only in the Franklin County Court of Common Pleas. Upon remand, the Greene County Court of Common Pleas transferred the action to the Franklin County Court of Common Pleas which rendered judgment in favor of ODLC. Plaintiffs also appealed this judgment questioning the jurisdiction of the Franklin County Court of Common Pleas but the Second District affirmed its prior ruling and held: - 5 - "R.C. 4301.31 requires that an action seeking a declaration of the constitutionality of the statutes providing for a local-option election, and an injunction against the Department of Liquor Control from taking any action against concerned permit holders as a result of a local-option election, be brought in the Court of Common Pleas of Franklin County." Rickard v. Ohio Dept. of Liquor Control (1986), 29 Ohio App.3d 133, 135. Similarly, this court has recognized the exclusive jurisdiction of the Franklin County Court of Common Pleas in an action against ODLC involving injunctive relief. In Amato v. Abbford, Inc. (Jan. 24, 1985), Cuyahoga App. No. 48816, unreported, plaintiff filed a complaint seeking injunctive relief from ODLC. Plaintiff filed a complaint against Abbford on a cognovit note. The trial court granted judgment in favor of plaintiff, who then requested the appointment of a receiver for Abbford's restaurant. The trial court appointed a receiver, who asked ODLC to transfer the existing liquor permits from the name of Abbford into the name of the receiver. However, ODLC did not transfer the permits because the permits were indefinitely suspended as a result of unpaid sales tax. Plaintiff then filed a contempt action, alleging ODLC failed to transfer the liquor permits as ordered by the court. The trial court stated it had no jurisdiction to force ODLC to transfer the permits to plaintiff. This court then upheld the trial court's determination, holding: - 6 - "As the emphasized portion makes clear, the court ordering the transfer must be one of competent jurisdiction. Revised Code 4301.31 states that no court, other than the common pleas court of Franklin County, has jurisdiction of any action against O.D.C.L. to restrain the exercise of any power or to compel the performance of any duty under Chapters 4301 and 4303 of the Revised Code." See also Allied Inv. Credit Corp. v. Kuzjo Tavern, Inc. (May 18, 1978), Cuyahoga App. No. 37453, unreported. It is clear that in cases where a party sues ODLC for declaratory or injunctive relief exclusive jurisdiction for such cases rests with the Franklin County Court of Common Pleas. In the present case, plaintiff filed his declaratory judgment action against ODLC in the Cuyahoga County Court of Common Pleas which is in contravention of established case law and R.C. 4301.31. Therefore, the trial court was correct in granting ODLC's motion to dismiss and plaintiff's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE COMMON PLEAS COURT ERRED IN DISMISSING THIS CASE IF IT WAS CLAIMED THAT THIS MATTER WAS IMPROPERLY VENUED. Defendant argues if the case was dismissed for improper venue then this court should transfer the case to the appropriate court. In support of this argument defendant cites Civ.R. 3(C)(1) and Romanchik v. Lucak (1988), 44 Ohio App.3d 215. The trial court's order dismissing defendant's motion to dismiss does not state with specificity why the motion was granted. Thus, defendant's argument is illusory. However, in considering - 7 - the merits of defendant's argument it is apparent defendant is confusing venue and jurisdiction. "Subject matter jurisdiction of a Court connotes the power to hear and decide the case upon its merits; venue connotes the locality where the suit should be heard." Allied Investment Credit Corp. v. Kuzjo Tavern, Inc. (May 18, 1978), Cuyahoga App. No. 37453, unreported. R.C. 4301.31 states "[n]o court, other than the court of common pleas of Franklin County, has jurisdiction of any action against * * * the Department of Liquor Control." (Emphasis added) The statute clearly refers to the authority of the court to hear such an action on its merits, and does not refer to procedural questions of where the case should be brought. Id. Defendant is attempting to invoke jurisdiction where it simply does not exist. In order to have this case transferred to another jurisdiction defendant should have submitted a motion for change of venue to the trial court. This is the proper procedure as indicated in Romanchik, the case defendant cites, where it states "***the trial court shall transfer the cause to the county where venue lies." This court has no duty to transfer such a case. Based on the foregoing, defendant's second assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. KARPINSKI, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .