McCormick v. Bryant , 91 Ohio Law. Abs. 543 ( 1953 )

Per Curiam.

Submitted on demurrer of the respondent for the reason that the petition does not state facts sufficient to constitute a cause of action. The action is one in mandamus seeking an order commanding the respondent to process the relator’s application for a D-5 liquor permit and to issue the same, providing all of the requirements of the Department have been met. The respondent sets forth two grounds to sustain its position:

(1) The respondent has no duty to issue the permit. Citing Section I, Regulation 64, Ohio Board of Liquor Control, which provides:

“No new D-3, D-3A, D-4 and D-5 permits shall be issued except permits issued pursuant to the provisions of Regulation 14, and except, also, new permits issued upon the expiration of any existing permits to the same permit holder for the same location.”

(2) The relator has a plain and adequate remedy at law. Citing Section 12287, General Code.

We are of the opinion the demurrer should be sustained upon both grounds. It should be noted that Section 6064-27, General Code, extends to an aggrieved party the right to appeal to the Board of Liquor Control from the action of the Department refusing to issue a permit and Section I, Regulation 12 provides that failure to act upon an application within forty-five days shall be deemed a rejection of such application and may be the basis of an appeal. Therefore, the remedy at law is adequate.

Wiseman, P. J., Miller, and Hornbeck, JJ., concur.