Petition Form 5-R Permit Descriptions

2008-01-20T17:32:00.000-05:00

Completing Petition Form 5-R Correctly

With another filing deadline for local liquor option petitions behind us, it's important to review the legal requirments for filing a VALID Form 5-R petition. Petitioners MUST describe the type of sales allowed under the permits listed on the 5-R petition. This requirement has ALWAYS been a provision in the law but seldom was it enforced until last August when Ohio's Secretary of State required that ALL ballot language including local options, be given a legal review by her office.

The result created a firestorm when the office informed Boards across Ohio that the certified petitions were invalid on their face for lacking the required descriptions. Correcting this problem in the future for local option petitioners is relatively simple. If they seek approval of "C" class permits the phrase "off-premise" or "carry out" sales sufficiently describes the type of sales allowed under these permits and should be included on the Form 5-R petition. If they seek voter approval for "D" class permits then phrases like "on-premise", "by the glass or drink", or "by the individual drink and carry out" is appropriate almost everytime. The exceptions are listed in this post.

OhioLiquorOptions.com, working with the office of the Ohio Secretary of State has developed a Guide to Particular Location Local Liquor Options which includes acceptable language necessary for a VALID Form 5-R petition. This guide may soon be available through the Ohio Secretary of State, and the relevant portions are posted here for quick review.

Local Option Petition Form 5-R

Particular Location Local Option Election Petition Process General Requirements:

The procedures for Particular Business Use local liquor option elections differ significantly from other local option types. Please pay special attention to all issues discussed in this document.

Form 5-R Particular Location Local Options have become the most widely used type of local option in Ohio because it authorizes the sale of beer, wine and mixed beverages or spirituous liquor in any manner and combination at a single particular business location within a precinct upon the filing of a single petition set. However, in order to use Form 5-R to submit a particular location local option question, the petitioner MUST be one of the following four (4) entities:

(1) A permit holder,

(2) An applicant for the issuance or transfer of a permit,

(3) An applicant who seeks to operate a liquor agency store, or the operator of an existing liquor agency store for the state of Ohio,

(4) An agent that has been designated as such by any of the above. An agent is a representative of the permit holder, applicant or operator.

No person other than the holder of a liquor permit, an applicant for the necessary liquor permits, the operator or operator of a liquor agency store, or the designated agent of the permit holder, applicant, or operator may petition for a particular business use local option election. Unlike other Ohio local liquor options, there is not a notice requirement with respect to the Division of Liquor Control or to any other permit holder that might be located within the precinct because only the location specified on the petition will be affected by the election. But, like other local liquor options, the petitioner serves as the contact person for the local option issue and must provide his or her name and address to the board of elections as well as sign all documents to be filed with the board of elections that pertain to the local option issue.

The petitioner, who must be a party associated with the business to be affected by the election, must file with the board of elections Form 5-R (after sufficient valid signatures have been collected), Form 5-N (Affidavit of Local Option Petitioner), and, if the petitioner is the designated agent of a permitholder, applicant, or operator of a liquor agency store, written evidence of that designation.

Step1: Pick up Petitions and Other Materials

As the petitioner you must determine which local option questions to place on the ballot. The Board of Elections personnel are not authorized to determine which local liquor option question to place on the ballot and it is the sole responsibility of the petitioner to know and understand which questions to utilize.

As the petitioner - you are responsible for obtaining the appropriate petitions and other forms far enough in advance of the election to allow sufficient time to meet all statutory requirements, including the petition filing deadline 75 days before the election.The Board of Elections MUST provide petitioners with the Following Materials:

1. Local Option Petition (Form 5-R);

2. "Affidavit of Local Option Petitioner" (Form 5-N);

3. "Guide to Local Liquor Option Elections: Sales of Intoxicating Liquor and Beer"; and

4. "Certificate of Required Number of Signatures" (Form 5-F), indicating the minimum number of valid signatures necessary to place the question on the ballot.

Form 5-R must be signed by at least the number of registered voters of the precinct that is equal to at least 35 percent of the total number of votes cast in that precinct for the office of governor in the most recent gubernatorial election.

Additional Materials to Assist Petitioners:

It is advisable to purchase a listing of all registered voters who would be eligible to sign the local option petition (Form 5-R). Such a listing is available from the Board of Elections and in most cases can be requested in walking order so petitions can be easily circulated door-to-door. Also available through the boards are maps of the designated precinct where the local option will be held as well as a listing of all residential addresses (street listing) within the precinct. This information will assist local option petitioners because it clearly defines the area where signatures can be collected.

Note: The circulator of a local liquor option petition is not required to be an elector or resident of the state of Ohio.

Completing the Petitions: (Form 5-R)

The first portion of the Form 5 -R Local Liquor Option Petition is instructional. It is advisable to review Items 1,2 & 3 under INSTRUCTIONS. Local Option Petitioners MUST comply with these instructions. Follow them!

The second portion of Form 5-R Local Liquor Option Petition is the question dealing with the weekly sale of beer, wine and mixed beverages , and/or spirituous liquor. Local Option petitioners may CHOOSE which beverage or combination of beverages to place before the voters. However, the beverage type inserted must be permitted under the permits held or applied for. In other words, petitioners may not insert spirituous liquor on the petition as the applicant for a D-2 permit because a D-2 permit does not authorize the sale of spirituous liquor in any form.

All of the information requested on the petition from must be completed prior to collecting signatures and must be accurate. It's advisable to review the Permit Descriptions Necessary for Form 5 -R Petitions below or review the legal descriptions of individual permits as outlined in O.R.C. §4303.11 to §4303.183

Permit Descriptions Necessary for Form 5 -R

Form 5-R Petitioners please note: The following layman descriptions of each Ohio liquor permit affected by Form 5-R local option petitions are acceptable phrases necessary to comply with petition requirements set forth in RC 4301.333.

These phrases will be updated at http://www.ohioliquoroptions.com/ as permit privileges change and any pending lawsuits contesting the omission or insertion of different language on the 5-R petitions have been resolved.

i. A-1-A permit:

Issued to either the holder of an A-1 or A-2 permit to authorize the sale of beer and anyintoxicating liquor by the individual drink on the premises where sold.

ii. Class C Permits:

Class C permits are specific to the sale of beer and wine and mixed beverages for carry outonly sales (off-premise consumption). C class permits do not authorize sales for on-premise consumption.

C1 permit Authorizes the sale of beer and other malt based beverages for consumption offthe premises where sold, in sealed containers, six days-a-week.
C-2 permit Authorizes the sale of wine and mixed beverages for consumption off the premises where sold, in sealed containers, six days-a-week.
C-2X permit Authorizes the holders of C-2 permits to sell beer and other malt based products for consumption off the premises where sold, in sealed containers, *seven days -a-week.

*Permit C2X automatically permits the Sunday sale of BEER without the issuance of a Class D-6 permit.

iii. Class D Permits:

Class D permits are specific to the on-premise only and on/off premise sale of beer, wine and mixed beverages, and spirituous liquors.

D-1 permit Authorizes the sale of beer and other malt based beverages for consumption on and off the premises where sold six days-a-week.
D-2 permit Authorizes the sale of wine and mixed beverages for consumption on and off the premises where sold six days-a-week.
D-2X permit Authorizes the holders of D-2 permits to sell beer and other malt based products for consumption on and off the premises where sold *seven days-a-week.

*Permit D2X automatically permits the Sunday sale of BEER without the issuance of a Class D6 permit.

D-3 permit Authorizes the sale of spirituous liquor by the glass for consumption on the premises where sold until 1:00 a.m. six days-a-week.

D-3X permit Authorizes holders of D-3 permits to sell wine and mixed beverages for consumption on the premises where sold six days-a-week.
D-4 permit Authorizes the sale of beer and any intox icating liquor (i.e. wine and mixed beverages and spirituous liquor) by the individual drink to members of a private club in existence for 3 or more years for consumption on the premises where sold until 1:00 a.m. six days-a-week.
D-4a permit Authorizes the on-premise sale of beer and any intoxicating liquor (i.e. wine and mixed beverages and spirituous liquor) by the individual drink until 2:30 a.m. six days-a-week to the members and guests of a private club operated by an airline company at a publicly owned airport at which commercial airlines operate regularly scheduled.

iv. Class D-5 and the Alphabets:
D-5 permit Authorizes the on/off premise sale of beer, wine and mixed beverages and the on-premise only sale of spirituous liquors by the glass until 2:30 a.m. six days-a-week.
D-5a permit Authorizes the on and off premise sale of beer, wine and mixed beverages and the on premise only sale of spirituous liquors by the glass until 2:30 a.m. six days-a-week by a licensed hotel or motel. D-5a permits are non-quota permits which carry additional restrictions for issuance beyond local option.
D-5b permit Authorizes the on and off premise sale of beer, wine and mixed beverages and the on premise only sale of spirituous liquors by the glass until 2:30 a.m. by the owner, operator, tenant, lessee or occupant of an enclosed shopping center. D-5b permits are non-quota permits which carry additional restrictions for issuance beyond local option.
D-5d permit Authorizes the on and off premise sale of beer, wine and mixed beverages and the on premise only sale of spirituous liquors by the glass until 2:30 a.m. by the owner or operator of a retail food establishment that operates as a restaurant located at an airport. The D-5d permit is a non-quota permit which carries additional restrictions for issuance beyond local option.
D-5e permit Authorizes the on premise sale of beer, wine and mixed beverages and spirituous liquors by the glass until 2:30 a.m. six days-a-week by a non-profit organization which operates a riverboat. The D -5e permit is a non-quota permit that carries additional restrictions for issuance beyond local option.
D-5f permit Authorizes the on-premise sale of beer, wine and mixed beverages and spirituous liquors by the glass until 2:30 a.m. six days-a-week by the owner or operator of a retail food establishment that operates as a restaurant located on, in or adjacent to a navigable shoreline. D-5f permits are non-quota permits which carry additional restrictions for issuance beyond local option.
D-5g permit Authorizes the on-premise sale of beer, wine and mixed beverages and spirituous liquors by the glass until 1:00 a.m. six days-a-week by the owner or operator of a national professional sports museum. D-5g permits are non-quota permits.
D-5h permit Authorizes the on premise sale of beer, wine and mixed beverages and spirituous liquors by the glass until 1:00 a.m. six days-a-week by non-profit organizations which operate a fine arts museum. D-5h permits are non-quota permits which carry additional restrictions for issuance beyond local option.
D-5i permit Authorizes the on and off premise sale of beer, wine and mixed beverages and the on premise only sale of spirituous liquors by the glass until 2:30 a.m. six days-a-week by the owner or operator of a food service establishment that operates as a restaurant. D-5i permits are non-quota permits which carry additional restrictions for issuance in addition to local option.

D-7 permit Authorizes the on premise sale of beer and any intoxicating liquor by the holder of a D-2 permit in a resort area six days-a-week until 1:00 a.m.

v. Sunday Class D-6:
D-6 permit Authorizes the on-premise only, off-premise only, or both on/off premise sales of any *intoxicating liquor between the hours of 10:00 a.m. and midnight or 1:00 p.m. and midnight on Sundays.*Intoxicating liquor includes wine and mixed beverages and spirituous liquors. It does not include beer sales which can be obtained and permitted without voter approval for a D-6 permit.

The following is a list of Ohio Permit #'s, type of sales allowed under the permit and the 5-R Description of the permit.

Permits and the Type of Sales Allowed by each followed by:

(Descriptive wording Suggestions for 5-R Petitions)

WEEKLY SALES PRIVILEGES

A-1-A Beer, Wine and Mixed Beverages & Spirituous Liquor (On-Premise at Retail or by the glass at retai)

C-1 Beer Off-Premise ONLY (Off-Premise Sales or Carry Out Sales)

C-2 Wine & Mixed Beverages Off-Premise ONLY (Off-Premise Sales or Carry Out Sales)C-2X Beer Off-Premise ONLY (Off-Premise Sales or Carry Out Sales)

D-1 Beer On/Off-Premise (On/Off-Premise Sales or On-Premise and Carry Out Sales)

D-2 Wine & Mixed Beverages On/Off-Premise (On/Off-Premise Sales or On-Premise and Carry Out Sales)

D-2X Beer On/Off-Premise (On/Off-Premise Sales or On-Premise and Carry Out Sales)

D-3 Spirituous Liquors On-Premise ONLY (On-Premise Sales or by the glass or by the individual drink)

D-3X Wine & Mixed Beverages On-Premise ONLY (On-Premise Sales or by the glass or by the individual drink)

D-4 Beer, Wine and Mixed Beverages & Spirituous Liquor On-Premise ONLY (On-Premise Sales or by the glass or by the individual drink)

D-4a Beer, Wine and Mixed Beverages & Spirituous Liquor On-Premise ONLY (On-Premise Sales or by the glass or by the individual drink)

D-5 Beer, Wine and Mixed Beverages & Spirituous Liquor On-Premise and On/Off-Premise (On-Premise and On/Off-Premise Sales or On-Premise Only and On-Premise and Carry Out Sales)

D-5a Beer, Wine and Mixed Beverages & Spirituous Liquor On-Premise and On/Off-Premise (On-Premise and On/Off-Premise Sales or On-Premise Only and On-Premise and Carry Out Sales or Sales by the glass or individual drink and Carry Out Sales)

D-5b Beer, Wine and Mixed Beverages & Spirituous Liquor On-Premise and On/Off-Premise (On-Premise and On/Off-Premise Sales or On-Premise Only and Carry Out Sales or Sales by the glass or individual drink and Carry Out Sales)

D-5d Beer, Wine & Mixed Beverages & Spirituous Liquor On-Premise and On/Off-Premise (On-Premise and On/Off-Premise Sales or On-Premise Only and On-Premise and Cary Out Sales or Sales by the glass or individual drink and Carry Out Sales)

D-5e Beer, Wine & Mixed Beverages & Spirituous Liquor On-Premise ONLY (On-Premise Sales or Sales by the glass or individual drink)

D-5f Beer, Wine & Mixed Beverages & Spirituous Liquor On-Premise ONLY (On-Premise Sales or Sales by the glass or individual drink)

D-5h Beer, Wine & Mixed Beverages & Spirituous Liquor On-Premise ONLY (On-Premise Sales or Sales by the glass or individual drink)

D-5i Beer, Wine & Mixed Beverages & Spirituous Liquor On/Off-Premise and On-Premise (On-Premise and On/Off-Premise Sales or On-Premise Only and Sales by the glass or individual drink and Carry Out Sales)

D-7 Beer, Wine & Mixed Beverages & Spirituous Liquor On-Premise ONLY (On-Premise Sales or Sales by the glass or individual drink)

SUNDAY SALES PRIVILEGES

D-6 Beer, Wine and Mixed Beverages & Spirituous Liquor

On-Premise ONLY (On-Premise Sales or Sales by the glass or individual drink)

Off-Premise ONLY (Off-Premise Sales or Carry Out Sales)

On/Off-Premise (On/Off-Premise Sales or Sales by the glass or individual drink and Carry Out Sales)

The final portion of the 5-R Local Liquor Option Petition deals with the Sunday sale of beer, wine and mixedbeverages, and/or spirituous liquor. Again, local option petitioners may CHOOSE which beverage or combination of beverages to place before the voters for Sunday sales approval. And once again, the beverage type inserted must be permitted under the permits held or applied for.

In other words, petitioners may not insert spirituous liquor on the petition as the holder of a D -5 permit because a D-5 permit does not authorize the Sunday sale of spirituous liquor even though the weekly sale of spirits is allowed under this permit. Petitioners may request BEER sales on Sundays as the holder of a D-5 permit because the sale of beer on Sunday under a D-5 is allowed without holding a D-6 Sunday permit in cases where there has been direct voter approval. There are ONLY a few exceptions that warrant circulation of Question #2 , of Form 5-R as a Holder of a certain permit as follows:

1. Your existing D-6 permit has been made wholly unusable by a precinct wide local option and you arefiling Form 5-R under the 29 DAY RULE provisions.

2. Your existing D-6 permit DOES NOT allow on -premise or off-premise sales and you seek voter approvalfor one or the other.

3. Your Existing D-6 permit DOES NOT allow sales to begin at 10:00 a.m. and you seek v oter approval forthe earlier sales hours.

4. You seek ONLY beer sales on Sunday. A D-6 is not required to sell beer on Sunday so you would seekthe privileges as the holder of your weekly permit. (i.e. A -1-A, C-1, C2X, D-1, D-2X, D-4, D-5 and D-5a-k)

Step 2: Circulate the Petitions

Petitioners may begin signature gathering immediately upon receipt of Form 5-R from the board of elections and completion of the question or questions to be submitted to the electors.

For more information on Collecting signatures on a Local Option Petition Form please visit http://www.ohioliquoroptions.com/ before circulating petitions door-to-door. Review the Petition Circulation Guidelines provided by the Ohio Secretary of State and your local

board of elections or download a complete set of Petitioners' Instructions at http://www.ohioliquoroptions.com/.

The process of collecting valid signature s can be difficult if petition circulators are not aware of what constitutes a valid signature.

Please Note: Particular Location local option petitioners should file their application for liquor permits BEFORE petition circulation begins to insure the petition form is identical to the application for liquor permit filed with the Ohio Division of Liquor Control. Holders of liquor permits should use a copy of their permit to complete the petition in order to insure accuracy.

Step 3: File the Petitions

Once the petitioner is satisfied that a sufficient number of valid voter signatures have been properly affixed to the petition, the petition must be filed with the board of elections no later than 4:00 p.m. on the 75th day before the primary or general election.

Before going to the board of elections to file the completed Local Option Petition form take time to review the documents, making sure all circulator statements on each part-petition have been properly executed by the signature gatherers and that ALL necessary documents are included with the petitions.

The petitioner must ALSO file all of the following documents with the local liquor option petitions (Completed Form 5-R) at the board of elections:

1. Affidavit of intended use (Form 5-N),

2. If the permit holder/applicant or liquor agency store designated an agent for purpose of circulating and filing the 5-R petition, separate written evidence of that designation of agent, signed by the permit holder/ applicant or liquor agency store. There is no form prescribed by the Secretary of State for designating the agent. The parties who want the 5-R petition filed are responsible for producing the necessary documentation and,

3. Appropriate filing fee of $10.00.

Important Notice: Failure to supply the affidavit (Form 5-N) or, if applicable, written evidence of the designation of agent at the time the pe tition (Form 5-R) is filed with the county board ofelections INVALIDATES the entire petition.

PETITION FILING DEADLINE: No later than 4:00 p.m. on the 75th day before the primary or general election

For Liquor Permit Holder Whose Permit is Made Partially or Wholly Unlawful Due to the Results of Certain Local Liquor Option Elections

The 29 Day Rule

This rule applies ONLY as the result of a Precinct-wide DRY-UP election

When a permit is made partially or wholly unlawful as the result of a local liquor option election held pursuant to R.C. 4301.35 (one or more precinct wide weekly sales questions), R.C. 4301.351 (one or more precinct wide Sunday sales questions), R.C. 4301.353 (one or more questions on sales in a portion of a precinct), R.C. 4303.29 (question on the sale of spirituous liquor by the glass), or R.C. 4305.14 (one or more precinct wide questions on the sale of beer), a particular business use local liquor option electio n may be held if BOTH of the following occur no later than 29 days after the Division of Liquor Control receives the final notice of the results of such election:

(1.) The affected permit holder files a petition (Form 5-R) with the board of elections to hold a particular location local liquor option election pursuant to R.C. 4301.333, and,

(2.) The affected permit holder files with the Division of Liquor Control's Superintendent a copy of that petition (Form 5-R) bearing the board of elections' file stamp.

If BOTH of these conditions are met, the results of the local liquor option election which made the permit partially or wholly unlawful will not take e ffect as to that liquor permit holder until the Division of Liquor Control receives final no tice from the board of elections that either (Whichever occurs earlier)

A. The form 5-R filed by the permit holder pursuant to R.C. 4301.39(G) is invalid, or

B. An election held pursuant to R.C. 4301.355 (Particular Location Local Liquor Option) concerning the liquor permit holder resulted in a majority NO vote.

NOTE: This rule is not available to local option elections held pursuant to the particular permit premise nuisance local liquor option provision in R.C. 4301.352.

Inside Ohio Liquor Options

Petition Form 5-R Permit Descriptions