[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Brubaker v. Lawrence Cty. Bd. of Elections, Slip Opinion No. 2022-Ohio-1087.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2022-OHIO-1087.]

THE STATE EX REL. BRUBAKER v. LAWRENCE COUNTY BOARD OF ELECTIONS. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Brubaker v. Lawrence Cty. Bd. of Elections, 

Slip Opinion No. 2022-Ohio-1087.] 

Elections—Mandamus—R.C. 4301.33(A)—Petitioner seeking placement of a local 

liquor-sales option on the May 3, 2022 primary-election ballot failed to 

comply with statutory requirements to include with the liquor-option 

petition an affidavit certifying that the petitioner gave notice to all liquorpermit holders who would be affected by the proposal, if any, and to provide 

a list of the permit holders to the petition signers at the time of their 

signing—Writ denied.

(No. 2022-0255—Submitted March 29, 2022—Decided March 31, 2022.) 

IN MANDAMUS. 

_________________ 

 Per Curiam.

{¶ 1} In this expedited election case, relator, Ray Brubaker, seeks a writ 

of mandamus compelling respondent, the Lawrence County Board of Elections 

(“the board”), to place a local liquor option on the May 3, 2022 primary-election 

ballot. For the reasons set forth herein, we deny the writ. 
SUPREME COURT OF OHIO

2

I. Background

A. The requirements for placing a local liquor option on the ballot 

{¶ 2} R.C. 4301.351(A) authorizes local-option elections to consider the 

question whether Sunday liquor sales shall be permitted within a precinct. At least 

25 days before the deadline for submitting petition signatures for a local liquor 

option, the Ohio Department of Commerce, Division of Liquor Control (“the 

division”), must provide the petitioner seeking placement of the option on the ballot 

with a list of the names and addresses of liquor-permit holders and liquor-agency 

stores in the precinct, if any, that would be affected by the ballot proposal. R.C. 

4301.33(A). Within five days of receiving the list from the division, the petitioner 

must provide notice of the proposal to each liquor-permit holder and liquor-agency 

store on the list. Id. The petitioner must attach a copy of the list to each petition 

paper circulated for signatures. Id. The petitioner must also provide a copy of the 

list to the board of elections when he submits the signed part-petitions to the board. 

Id. 

{¶ 3} Along with the part-petitions and list of permit holders, the 

petitioner must provide the board of elections with “an affidavit certifying that the 

petitioner notified all affected permit holders and liquor agency stores, if any, on 

the list * * * and that, at the time each signer of the petition affixed the signer’s 

signature to the petition, the petition paper contained a copy of the list of affected 

permit holders and liquor store agencies.” Id. The Ohio secretary of state has 

promulgated Form No. 5-N, which is titled “Affidavit of Local Option Petitioner,” 

to serve as that affidavit. See Ohio Secretary of State Form No. 5-N, available at 

https://www.ohiosos.gov/globalassets/elections/forms/5-n.pdf (accessed Mar. 30, 

2022) [https://perma.cc/JP6F-64NG]. A petitioner who swears to and signs Form 

No. 5-N attests that proper notice was given to all affected permit holders. In 

addition, Form No. 5-N states, “I also certify that each part-petition contained a 

copy of the list of affected permit holders, if any, at the time each signer of the 
January Term, 2022 

3 

petition affixed his/her signature to the petition.” Under R.C. 4301.33(A), the 

“[f]ailure of the petitioner to supply the affidavit required by this section and a 

complete and accurate list of liquor permit holders and liquor agency stores, if any, 

invalidates the entire petition.” 

B. The evidence in the record 

{¶ 4} This case involves an effort to place on the May 3, 2022 primaryelection ballot a liquor option to allow Sunday liquor sales in the Hanging Rock 

precinct. The Hanging Rock precinct is located in Lawrence County, and 

“Laidback Bar” is located in the precinct. 

{¶ 5} Scott A. Pullins is the attorney for Brubaker, who is the general 

manager of Laidback Bar. On December 27, 2021, Pullins filed with the board the 

initial paperwork requesting a liquor-option petition for the Hanging Rock precinct. 

On December 29, the division notified Pullins that there were no permit holders 

who would be affected by the liquor-option proposal. 

{¶ 6} On February 2, 2022, Brubaker filed with the board part-petitions 

containing approximately 40 signatures in support of the liquor-sales option. 

Brubaker did not file a copy of Form No. 5-N. Instead, he attempted to file a copy 

of the division’s December 29 letter stating that there were no affected permit 

holders in the precinct. According to Brubaker, the board informed him “that the 

letter was not needed and refused to accept it as part of [his] filing.” 

{¶ 7} The board rejected the liquor-option petition because Brubaker did 

not submit a Form No. 5-N. On February 23, Toni Bradshaw, the deputy director 

of the board, notified Pullins in an email that the petition was “missing parts and 

incomplete” and that the option would not appear on the May 2022 ballot. Pullins 

replied to Bradshaw by email that same day, asking, “[C]an you send me a letter or 

some kind of explanation? Specifically, what parts were missing and incomplete?” 

On February 28, Bradshaw declined Pullins’s request for an explanation on the 

ground that providing such information would constitute legal advice. 
SUPREME COURT OF OHIO

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II. Procedural history 

{¶ 8} On March 11, 2022, Brubaker filed with this court a complaint for a 

writ of mandamus against the board. He attached five exhibits to the complaint, 

including his own affidavit. We ordered the board to answer the complaint, and the 

board complied by filing an answer accompanied by two affidavits. The 

attachments to the complaint and answer are the only evidence submitted by the 

parties. 

III. Legal analysis 

A. Standard of review 

{¶ 9} To be entitled to a writ of mandamus, Brubaker must establish by 

clear and convincing evidence that (1) he has a clear legal right to the requested 

relief, (2) the board has a clear legal duty to provide it, and (3) he does not have an 

adequate remedy in the ordinary course of the law. See State ex rel. Linnabary v. 

Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. As to the third 

element, Brubaker lacks an adequate remedy in the ordinary course of the law due 

to the proximity of the May 3, 2022 primary election, which is less than 40 days 

away. See State ex rel. West v. LaRose, 161 Ohio St.3d 192, 2020-Ohio-4380, 161 

N.E.3d 631, ¶ 15. 

{¶ 10} The first two elements require us to determine whether the board 

engaged in fraud or corruption, abused its discretion, or acted in clear disregard of 

applicable law. See State ex rel. Tam O’Shanter Co. v. Stark Cty. Bd. of Elections, 

151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 16. Brubaker has not 

alleged that the board engaged in fraud or corruption. An abuse of discretion 

“connotes an unreasonable, arbitrary, or unconscionable attitude.” State ex rel. 

Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997). 

B. The board did not abuse its discretion or act contrary to law 

{¶ 11} The essential facts of this case are not in dispute. And R.C. 

4301.33(A) requires a petitioner seeking placement of a local liquor option on the 
January Term, 2022 

5 

ballot to include with the liquor-option petition an affidavit certifying that he gave 

notice to all permit holders who would be affected by the measure, if any, and to 

provide a list of those permit holders to the petition signers at the time of their 

signing. Brubaker did not comply with this requirement. 

{¶ 12} In his merit brief, Brubaker suggests that his noncompliance should 

be excused for two reasons. Again, when he filed the petition, Brubaker attempted 

to give the board a copy of the letter from the division stating that there were no 

affected permit holders. In his first proposition of law, he argues that the board 

abused its discretion by not accepting the letter in lieu of an affidavit. This 

contention overlooks the fact that R.C. 4301.33(A) required Brubaker to provide 

both the letter from the division (the list) and an affidavit. The list provided by the 

division cannot be an alternative to the required affidavit because the list is a 

separately required document. 

{¶ 13} Although he does not explicitly use the term “substantial 

compliance,” Brubaker essentially argues that his efforts amounted to substantial 

compliance with the statute’s requirements. But “it is well-settled that ‘election 

laws are mandatory and require strict compliance and that substantial compliance 

is acceptable only when an election provision expressly states that it is.’ ” State ex 

rel. Maras v. LaRose, ___ Ohio St.3d ___, 2022-Ohio-866, ___ N.E.3d ___, ¶ 23, 

quoting State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. 

Lorain Cty. Bd. of Elections, 96 Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239, 

¶ 49. And R.C. 4301.33(A) provides that a petitioner “shall” provide the specified 

affidavit to the board of elections. In an election statute, the word “shall” is 

construed as mandatory unless there is “ ‘ “a clear and unequivocal legislative 

intent” ’ ” that a different construction applies. State ex rel. Ohio Democratic Party 

v. Blackwell, 111 Ohio St.3d 246, 2006-Ohio-5202, 855 N.E.2d 1188, ¶ 15 

(plurality opinion), quoting Ohio Civ. Rights Comm. v. Countrywide Home Loans, 

Inc., 99 Ohio St.3d 522, 2003-Ohio-4358, 794 N.E.2d 56, ¶ 4, quoting Dorrian v. 
SUPREME COURT OF OHIO

6

Scioto Conservancy Dist., 27 Ohio St.2d 102, 271 N.E.2d 834 (1971), paragraph 

one of the syllabus. R.C. 4301.33(A) does not contain language suggesting that 

something less than strict compliance will suffice. Compare State ex rel. Weller v. 

Tuscarawas Cty. Bd. of Elections, 158 Ohio St.3d 266, 2019-Ohio-4300, 141 

N.E.3d 157, ¶ 10, quoting R.C. 3513.261 (statutory language stating that 

nominating petitions “shall be substantially in the form prescribed” permitted 

substantial compliance with the prescribed form [emphasis added in Weller]). 

{¶ 14} R.C. 4301.33(A) requires strict compliance: a petitioner must 

provide an affidavit attesting that he notified all affected permit holders about the 

proposal and informed each petition signer about the affected permit holders. In an 

attempt to save himself from that requirement, Brubaker argues in his second 

proposition of law that he could not legally comply with the requirement because 

there were no affected permit holders to notify. He suggests that completing the 

affidavit under those circumstances would constitute election falsification. 

{¶ 15} But Brubaker could have complied with the affidavit requirement in 

R.C. 4301.33(A), despite the lack of affected permit holders. The statute requires 

a petitioner to submit to the board of elections an affidavit attesting that he “notified 

all affected permit holders and liquor agency stores, if any, on the list * * * and that, 

at the time each signer of the petition affixed the signer’s signature to the petition, 

the petition paper contained a copy of the list of affected permit holders and liquor 

store agencies.” (Emphasis added.) Thus, the plain language of the statute 

contemplates circumstances in which there are no affected permit holders. In that 

situation, the petitioner must attest that he did not notify any affected permit holders 

because there were none. And he must attest that he showed the list of the affected 

permit holders to the potential petition signers, which, under the circumstances 

presented here, means showing them the letter from the division stating that there 

were no affected permit holders. Brubaker could have complied with this 

requirement, but he did not. 
January Term, 2022 

7 

{¶ 16} For the foregoing reasons, we deny Brubaker’s request for a writ of 

mandamus. 

Writ denied. 

O’CONNOR, C.J., and KENNEDY, FISCHER, DONNELLY, STEWART, and 

BRUNNER, JJ., concur. 

DEWINE, J., concurs in judgment only. 

_________________ 

Pullins Law Firm, L.L.C., and Scott A. Pullins, for relator. 

Brigham M. Anderson, Lawrence County Prosecuting Attorney, for 

respondent. 

________________________