
    LYNDHURST (City), Plaintiff-Appellee, v. COMPOLA, d. b. a. TASTY PIZZA SHOP, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County
    No. 25205.
    Decided October 14, 1960.
    
      
      Mr. Arthur T. Wincek, for plaintiff-appellee.
    
      Messrs. Michael A. Picciano, Carmen J. Milano, Andre R. Valore, for defendant-appellant.
    For further hi tory see Omnibus Index in bound volume.
   Skeel, J.

This appeal comes to this court on questions c law from a judgment whereby, after defendant was found guill by a jury, the trial court sentenced him to pay a fine for tl alleged violation of Ordinance 4122, Article III, Section 4 ( the City of Lyndhurst. The case was tried in the Lyndhurf Municipal Court.

The affidavit upon which the trial was had recited the fo lowing:

“On or about the 5th day of December 1959 at the City ( Lyndhurst, in said county and state, one Joseph Compola (Tasl Pizza Shop — 5136 Mayfield Road) did, then and there sell alc< holic beverage, by the glass, and, for consumption on premises-contrary to the provisions of Article 3, Section 4 of Ordinant 4122, Zoning Code, as amended, in violation of the good orde peace and dignity of the City of Lyndhurst. * * * ”

Ordinance 4122 (The Zoning Ordinance of the City of Lym hurst), in part, provides:

“Section 4 — Local Retail Districts.
“The following regulations shall apply to all Local Reta Districts, subject, however, to the provisions of Article IV ai V of this Ordinance as are pertinent.
“(a) Uses Permitted
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“(3) Restaurants and other eating places.
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“(8) Uses permitted in Local Retail Districts are subject o the following specific limitations:
“(a) No liqnor or alcoholic beverages shall be sold by the ;lass nor for consumption on the premises.
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“Section 5 — General Retail Districts.
“The following regulations shall apply to all General letail Districts, subject, however, to such of the provisions of Article IV and V of the Ordinance as are pertinent.
“(a) Uses Permitted
“(1) All uses permitted and regulated by Article ITT, lection 4 (a) except as otherwise specified in Article III, lection 5 (a).
“(2) Theatres, assembly halls, bowling alleys and other Imilar places of amusement * * *
“ (3) Hotels, restaurants and other eating places, provided, íowever, that no liquor shall be sold by the glass or for consumption on the premises unless the location is approved by the 3oard of Zoning Appeals and the approval confirmed by the Council. *
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It is admitted that the defendant’s place of business is ocated in a permitted use zone as shown on the zoning map lesignated “Local Retail District” under Article III, Section ! (a), so that its use was restricted by the prohibition against he sale of liquor or alcoholic beverages by the glass or for ionsumption on the premises.

The defendant was granted a D-5 Permit by the Department of Liquor Control, State of Ohio, under Sections 121.02 md 4301.10, paragraph 2, Revised Code, on November 19, 1959, vhich Certificate No. 237457 was issued for a period of one fear from its date.

Under the liquor law of Ohio (Section 4303.18, Revised 3ode), the defendant was permitted to sell beer or intoxicating iquor at retail by the glass for consumption on the premises. This section provides:

“Permit D-5 may be issued to tbe owner or operator of nigbt club to sell beer and any intoxicating liquor at retail, oni by tbe individual drink in glass and from tbe container, fo consumption on tbe premises where sold, only at tables wber meals are served; and to sell tbe same products in tbe sam manner and amounts not for consumption on tbe premises a may be sold by holders of D-l and D-2 permits. A person wb is the bolder of both a D-3 and D-3a permit need not obtai: a D-5 permit. Tbe fee for this permit is one thousand dollars.’

It is, therefore, perfectly evident that tbe right of tbi defendant to a D-5 Permit is dependent on the necessity o serving meals at tables in bis establishment. In other words be must operate a restaurant or a public place where meal are served.

Tbe only place in tbe City of Lyndhurst where food ma; be served for consumption on the premises is limited by th zoning ordinance to Local Retail Districts and General Retai Districts. Tbe ordinance attempts to prohibit serving bee: and liquor by tbe glass for consumption by patrons in a resau rant, in one district, and to permit it in another. The restrie tion in a Local Retail District is in direct conflict with th< statutes of this state regulating tbe manufacture and sale o. liquor while tbe provisions as to a General Retail District art in complete recognition of the law. The Zoning Law of the City of Lyndhurst provides for tbe zone in which restaurant! may be operated, a subject with which it has power to deal Tbe state liquor law establishes tbe right of restaurant owner! who measure up to tbe requirements of tbe law where tbi location of tbe restaurant is in a territory where a license ma] be issued to be granted a liquor permit of tbe proper class upoi application subject to tbe regulations of tbe Department o: Liquor Control. This is a subject within tbe exclusive juris diction of tbe Board of Liquor Control of Ohio.

If this were not so, a Zoning Board could completely over ride tbe statutes of Ohio on Local Option. Tbe regulatioi of tbe manufacture and sale of liquor in Ohio has been com pletely preempted by tbe state. Local authorities are withou power to deny tbe right to exercise tbe privileges of a liquoi license where, by state law, such privileges are provided foi under state regulation.

For the foregoing reasons, the judgment of the trial court, ntered on the verdict of a jury, is reversed and final judgment 3 entered for the defendant.

Hued, P. J., and Kovachy, J., concur.  