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pr , LEGAL OPINION (Year 2002 - 06) TO: David Conway, Building Commissioner FROM: James M. Dubelko, Director of LawTC, DATE: January 25, 2002 RE: Enforceability of Section 1139. 01(b)(3)E) of the Zoning Cade (Prohibiting sales of liquor on lots in retail business districts located within 500 feet of a lot occupied by an existing church, public or private school, playground, park library or public building). . This is to formalize and disseminate the legal advice I provided to you regarding the above- referenced subject. You had inquired whether the above-referenced section of the Zoning Code would prohibit a proposed restaurant to be located at 26770 Lorain Road, from selling liquor on its premises. The proposed new restaurant would be located within-500 feet of a lot on d,orain Road occupied by a church and school. The issue presented by your inquiry is whether Section 1139.01(b)(3)(E) ofthe City's Zoning Code may be applied to prohibit a person, who has been issued a valid permit from the State of Ohio for the sale and/or consumption of liquor at a particular location in a commercial district of the City, from selling liquor at that location in the City. This issue was addressed and decided by the Ohio Supreme Court in the case of Westlake v. Mascot Petroleum Company (1991), 61 Ohio St. 3d 161. In that case, the City of Westlake filed an action against Mascot Petroleum Company seeking to enforce a Westlake Zoning Code provision prohibiting the sale of liquor at automotive service stations and to enj oin Mascot from selIing liquor at its station located in a commercial district in Westlake. The Supreme Court, relying upon a 1987 amendment to Section 4303.292 of the Ohio Revised Code, held that Westlake could not enforce its local zoning code provision against Mascot. The Court concluded that the State Legislature had amended Section 4303.292 to clarify that exclusive authority to regulate the sale and consumption of