Pupco Property Management v. City of Cincinnati

868 N.E.2d 738, 170 Ohio App. 3d 641, 2007 Ohio 1315

• Court: Ohio Court of Appeals
• Decided: March 23, 2007
• Docket: No. C-051007.
• Status: Published

Opinions

{¶ 1} Defendant-appellant, the city of Cincinnati, appeals the judgment of the Hamilton County Court of Common Pleas reversing a decision of the city's Zoning Board of Appeals ("the ZBA") in an administrative appeal filed by plaintiff-appellee, Pupco Property Management, d.b.a. R.P. McMurphy's Irish Pub.

THE BUILDING PERMIT AND THE ZBA DECISION {¶ 2} Pupco owns R.P. McMurphy's Irish Pub in the Oakley neighborhood of Cincinnati. In 2005, Pupco sought to expand the business by constructing a deck with an awning, columns, and a service driveway. The application for the permit listed the proposed use for the addition as a "tavern."

{¶ 3} The city's department of buildings and inspections approved Pupco's application. But after residents of the surrounding neighborhood voiced their opposition to the expansion, the ZBA vacated the permit. The ZBA held that the addition was an outdoor eating area that did not comply with the provisions of Cincinnati Municipal Code 1419-21, governing outdoor dining for "limited or full service restaurants."

THE ADMINISTRATIVE APPEAL: RESTAURANT OR TAVERN? {¶ 4} Pupco appealed the ZBA's decision to the trial court under R.C. Chapter 2506. During the proceedings before the trial court, Pupco vacillated between arguing that the proposed use for the addition was a restaurant that complied with Cincinnati Municipal Code 1419-21 and asserting that it was a drinking area that was not subject to that provision of the code.

{¶ 5} The city argued that under the terms of the application, the proposed addition was to be used for serving alcoholic beverages. The city further argued that because the addition would be an outdoor addition, it could not be used for the sale and consumption of alcohol on the property, as the property was zoned.

{¶ 6} The trial court overturned the ZBA's decision. The court held that R.P. McMurphy's was a limited-service restaurant and that the proposed expansion complied with Cincinnati Municipal Code 1419-21. The trial court accordingly reinstated the permit that the department of buildings and inspections had issued.

THE INSTANT APPEAL: INDOOR OR OUTDOOR? {¶ 7} In a single assignment of error, the city now argues that the trial court erred in reversing the decision of the ZBA.

{¶ 8} Under R.C. 2506.04, the common pleas courts and the courts of appeals apply different standards of review for administrative appeals.

{¶ 9} The common pleas court must determine if the order or decision of the administrative board or agency is "unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record."¹ With respect to the assessment of the evidence, only when the record lacks a preponderance of reliable, probative, and substantial evidence to support the agency's decision may the common pleas court reverse, vacate, modify, or remand.²

{¶ 10} In contrast, the standard of review for the court of appeals is limited to questions of law and "does not include the same extensive power to weigh `the preponderance of substantial, reliable and probative evidence,' as is granted to the common pleas court."³ When assessing the evidence, an appellate court cannot substitute its judgment for that of the common pleas court, except within its limited statutory scope of review, and is to determine only if the common pleas court abused its discretion.⁴ The term "abuse of discretion" means more than an error of law or judgment; it means that the trial court's decision was unreasonable, arbitrary, or unconscionable.⁵

{¶ 11} In this case, we hold that the trial court's decision was unreasonable.

{¶ 12} One point of contention before the trial court was whether Pupco intended to use the addition as a restaurant or a bar. Cincinnati Municipal Code 1419-21(d) provides that for an outdoor area to be considered part of a "limited or full service restaurant," "[t]he provision of alcoholic beverages must be secondary and accessory to the provision of food."

{¶ 13} Here, R.P. McMurphy's derived virtually all of its revenue from the sale of alcoholic beverages, and it offered only enough food to maintain its liquor license.

{¶ 14} Although Pupco at various times in the trial court proceedings announced plans to begin serving food at R.P. McMurphy's, those undefined plans did not transform the bar into a restaurant. The application for the addition listed the proposed use as "tavern," and the record did not support a finding that it would be used as a "limited or full service restaurant" under Cincinnati Municipal Code 1419-21. In light of these inconsistencies, Pupco has apparently abandoned the argument that the addition would be used as a restaurant.

{¶ 15} And Pupco does not dispute that the operation of a tavern in an outdoor area is prohibited on its property. Accordingly, the only issue that remains is whether the proposed addition would be an indoor or outdoor area.

{¶ 16} Our review of the plans and the photographs of the partially completed addition convinces us that it would be an outdoor area. The plans submitted with the permit application reflect that the only covering for the area would be an awning and not a permanent roof. Except for the exterior wall of the main building, the area would be completely without walls, permanent or otherwise, with only fiberglass columns supporting the awning. The only enclosure on three sides of the seating area would be a wrought-iron fence or railing.

{¶ 17} So, except for the awning, the addition would be almost completely open to the elements. It would therefore provide none of the barriers between the drinking area and the surrounding neighborhood that would protect residents from the potential noise and other disturbances that could arise from the operation of a tavern.

{¶ 18} Under any reasonable definition of the term "outdoor," the proposed addition would be an outdoor drinking area that would violate the municipal code. Accordingly, we sustain the assignment of error and hereby enter judgment denying Pupco's application for the permit.

Judgment accordingly.

HENDON, J., concurs.

PAINTER, P.J., concurs separately.

¹ R.C. 2506.04.

² Dudukovich v. Lorain Metro. Hous. Auth. (1979),58 Ohio St.2d 202, 207, 12 O.O.3d 198, 389 N.E.2d 1113.

³ Henley v. Youngs town Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 735 N.E.2d 433, quotingKisil v. Sandusky (1984), 12 Ohio St.3d 30, 34,12 OBR 26, 465 N.E.2d 848, fn. 4. See, also, Saeed v.Cincinnati, 1st Dist. No. C-030854, 2004-Ohio-3747,2004 WL 1585287, at 1121.

⁴ Saeed at ¶ 21, citing Henley,90 Ohio St.3d at 148, 735 N.E.2d 433.

⁵ Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,5 OBR 481, 450 N.E.2d 1140.