State, Ex Rel. Red Carpet Kamms, Inc. v. Cuyahoga County Board of Elections

Ann McManamon, J. Relator, Red Carpet Kamms, Inc., d.b.a The Real Flash Gordon’s, seeks an order of mandamus to prevent the respondent, Cuyahoga County Board of Elections, from counting the ballots cast on November 3, 1987 in the Precinct B, Ward 21, city of Cleveland local-option election, relating to Red Carpet Kamms, Inc. Because the board of elections has failed in its clear legal duty to the relator and because potential irreparable injury to relator is clearly demonstrated, we order a permanent writ of mandamus to issue. Boards of elections are required by law to give affected liquor permit holders notice of petitions for special elections. R.C. 4301.33, petition for local option election, provides, in part: “Within five days after receiving a petition calling for an election for the submission of one or more of the questions specified in divisions (A) to (C) of section 4301.35 * * * of the Revised Code, the board shall give notice that it has received the petition to all liquor permit holders whose permits would be affected by the results of the special election sought by the petition * * *.” The record reflects that the board of elections did not give notice to Red Carpet Kamms, Inc. of any impending local-option election. In fact, a bar patron informed relator of the petition. The relator raised this issue at a meeting before the board of elections one week before the election. At that time, respondent board of elections denied it was required to give permit holders notice of the petition. We note that a permit holder does not have a constitutional right to specific notice of an impending local-option election since such an election is a legislative action by the electorate of the district involved. Rickard v. Ohio Dept. of Liquor Control (1986), 29 Ohio App. 3d 133, 29 OBR 149, 504 N.E. 2d 724, paragraph three of the syllabus. However, permit holders have an express statutory right to notice of the filing of a local-option election petition pursuant to R.C. 4301.33. Relator stands to suffer irreparable injury to its night club business should it lose its liquor license. We find that relator has no adequate remedy at law. For these reasons we issue a writ of mandamus under which the board of elections is permanently stayed from counting the November 3,1987 ballots on the Precinct B, Ward 21, city of Cleveland local-option election relating to Red Carpet Kamms, Inc., d.b.a. The Real Flash Gordon’s, 17001 Lorain Avenue, Cleveland, Ohio. The writ of prohibition, also sought by relator, is denied since a writ of prohibition will not lie against a board of elections. State, ex rel. Toncray, v. Summit Cty. Bd. of Elections (1981), 68 Ohio St. 2d 38, 22 O.O. 3d 179, 428 N.E. 2d 401. The writ of mandamus is allowed, but the writ of prohibition is denied. *128 The relator’s motion for summary judgment is overruled for mootness, and respondent’s motion for summary judgment is overruled. Writ of mandamus allowed. Writ of prohibition denied. Nahra, C.J., concurs. Patton, J., dissents.