The Heat Nightclub case isn’t the first time in recent years the Ohio Liquor Control Commission has overruled a city’s objections to a bar’s or club’s permit to serve alcohol, even when it means dismissing police and residents’ objections and reversing the ruling of the state agency that regulates liquor licenses, a Dayton Daily News investigation shows.
Shortly after a Dec. 5 hearing in Columbus, the liquor control commission voted 2 to 1 to pave the way for Heat Nightclub in Huber Heights to renew its liquor license after the city had objected and had won an initial ruling by the Ohio Department of Commerce Division of Liquor Control to reject the license renewal.
The commission’s split decision was later upheld by two Franklin County Common Pleas judges. About six months after the commission’s ruling — during the early morning hours Saturday — Charles W. Bell III, 25, of Dayton, and Keenan Hall, 20, of Dayton, died from gunshot wounds they suffered outside the nightclub after a fight inside spilled into the parking lot. A third man, who has not been identified, was injured.
Huber Heights officials on Tuesday obtained a temporary restraining order that prohibits Heat from reopening for at least two weeks as the city works to shut down the bar. Heat’s owner and manager, Jessica Kennedy, vowed prior to the Tuesday court ruling that the club would stay open. Kennedy could not be reached Wednesday.
The liquor control commission acts as an appeals court of sorts for the enforcement actions taken by the liquor control division. The commission is an independent body with no formal affiliation to the agency whose decisions it scrutinizes. The commission’s three members serve six-year terms and are appointed by Ohio’s governor.
In Elyria, a case involving a bar called the Red Fox followed a nearly identical legal course as Heat Nightclub’s case, with the city pointing out acts of violence, drug- and alcohol-related offenses and other disturbances that plagued the bar throughout 2010.
Elyria, like Huber Heights, won the first round of the legal fight when the liquor control division blocked the bar from renewing its liquor license. Then city officials watched that decision be overturned by the liquor control commission, and judges in Franklin County Common Pleas Court and the Tenth District Court of Appeals refused to intervene despite the city’s appeals.
Unlike the Huber Heights case, there have been no serious acts of violence at the Red Fox bar in recent months, according to Elyria Law Director Scott Serazin.
Although the commission’s rulings in the Huber Heights and Elyria cases both favored a bar-nightclub over the municipalities, nearly 90 percent of the 60-plus appeals to the commission’s rulings filed in the last 30 months in Franklin County Common Pleas Court were filed by business owners in danger of losing their liquor licenses, not municipalities seeking to strip a bar of its license, court records show.
The cases are heard in Franklin County because that’s where the liquor control commission offices are located.
The administrative appeals heard by the liquor control commission are very similar to courtroom proceedings, and the hearings’ testimony and evidence are documented by a court stenographer.
The Dayton Daily News obtained a transcript of the Dec. 5 hearing involving Heat Nightclub that included testimony from representatives of the city of Huber Heights and the club’s owner.
The transcript shows that Columbus attorney Kurt Gearhiser, who represented Heat Nightclub owner Kennedy, downplayed the impact that violent criminal acts outside the club had on the surrounding Huber Heights neighborhood while successfully convincing two out of the three members of the liquor control commission to restore the club’s liquor license.
“Can I deny that we’ve had a couple of serious incidents? Absolutely not,” Gearhiser told the commission during what amounted to his closing argument at hearing. “Yeah, there was a shooting in the parking lot, we’ve (had) several fights, but if you look at the totality of the circumstances, the question is, is there substantial interference with the peace, sobriety and good order of the neighborhood, and I think not.”
During that hearing, the attorney for the nightclub’s owner also pressed Huber Heights Police officer Brandon Sucher — who had provided written documentation of several fights, at least one shooting, and multiple instances of large-scale police responses required at Heat — because the officer didn’t know the outcome of multiple arrests made outside the club.
“Now, I don’t deny there was an incident where somebody shot somebody in the parking lot,” Gearhiser said while cross-examining Sucher. “And there’s several fights in here as well … . I guess what I’m trying to get to is that it looks like a lot, it weighs a lot, all right, and I know where were a couple of serious incidents, I’m not saying that, but can you tell me how many people have been convicted of a crime as a result of what we’ve got in front of us here today?”
Sucher said he was not aware of how the criminal cases were resolved following arrests.
Later, Gearhiser said, “So out of the 30-some calls that are not related to noise, we don’t know if there’s anybody that’s ever been convicted of a crime?”
Sucher replied, “I couldn’t tell you the dispositions. All I know is that we have allocated plenty of resources there to handle these calls at the time of the incident.”
Later in the hearing, liquor control commission member Paul M. Booth questioned why there had been no citations regarding liquor license violations filed against the club or its owner. Sucher said the police department asked for assistance from state liquor control investigators and from other state agencies, to no avail.
“Obviously, we can’t go in (to the club) in uniform a lot and witness a lot of those violations, but anytime that we’ve asked for some assistance from an outside agency to go in, we haven’t been able to acquire those,” Sucher said.
Booth, a former Cincinnati City Council member, subsequently voted to restore Heat’s liquor license, and he was joined by Michael Shaheen, a St. Clairsville attorney who no longer serves on the commission because his term expired in February 2013. Commission chairwoman Deborah Pryce of Upper Arlington, who represented a Columbus-area district in Congress from 1993-2009 and who was appointed to the liquor-control commission in 2011, sided with Huber Heights and dissented from the commission’s ruling.
The split decision directly contradicted the ruling of the Ohio Division of Liquor Control. In its Oct. 24 decision, the division of liquor control concluded that Heat’s owner “operated its liquor permit business in a manner that demonstrates a disregard for the laws, regulations and local ordinances of this state,” and that the nightclub’s location would substantially interfere with the peace and good order of the surrounding neighborhood.