#### Mocilnikar, d. b. a. Bishop Mills Tavern, Appellant, *v.*Board of Liquor Control et al., Appellees.

(No. 4072

Decided September 21, 1948.)

*Messrs. Hamilton & Kramer*and *Mr. Victor M\. Lo'dia,*for appellant.

*Mr. Hugh 8. Jenkins,*attorney' general, and *Mr.. Charles 0. Schnur,*for appellees.

By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of *267Franklin county, which in part affirmed the order of the Board of Liquor Control of the state of Ohio, in which it revoked a D-5 night club permit issued to the ■appellant.

The Board of Liquor Control found that the appellant was not the owner of a night club; that the appellant made false material statements in the application; •and that the permit was obtained by fraud and collusion. The Common Pleas Court found that appellant was not “the owner and operator of a night club” as required by law, and that the appellant made false material statements in her application. The court did not find the charge of fraud and collusion supported by the evidence.

• The record in this case shows that the appellant •operated a night club under a D-5 permit from November, 1939, to November, 1942. In November, 1942, the appellant ceased the operation because of the war ■and gas rationing. In March, 1944, again in April, 1944, and again in December, 1944, the appellant applied for the D-5 permit. These applications were, rejected because of Regulation No. 63 which, according to the record, was a freeze order limiting the number ■of permits issued in the state of Ohio, and its several political subdivisions. On May 28, 1946, appellant filed another application which was approved on January 8, 1947. The permit issued thereunder is the one that was revoked and is involved in this controversy. The record clearly shows that during the period from November 1942, until March 1947, the appellant’s place of business was not open. Section 6064-15, General Code, defines a D-5 permit as follows:

“Permit D-5: A permit to the owner or operator ■of a night club to sell beer and any intoxicating liquor, ■at retail, only by the individual drink in glass and from the container, for consumption on the premises *268where sold, only at tables where meals are served.”

A ‘ ‘ night club ’ ’ is defined in Section 6064-1, General: Code, as follows:

“ ‘Night club’ means a place regularly and habitually operated for profit after the hour of midnight,, where food is served for consumption on the premises- and one or more forms of amusement are provided or-permitted for a consideration which may be in the-form of a cover charge, or may be included in the-price of the food and beverages, or both, purchased' by the patrons thereof.”

In considering the provisions of the two sections of" the statute quoted above, we are of the opinion that it is the intent and purpose of the law that a night club-be regularly and habitually in operation at the time a D-5 permit is applied for and issued. The record shows that the appellant was neither the owner nor the operator of a night club, either when the application was made or when the license was issued. We-conclude that the order of the board and the judgment of the Common Pleas Court are supported by the law and the undisputed evidence in finding that the appellant “was not the owner and operator of a-night club as required by law.”

The record further shows that the appellant made-“false materia] statements in her application” relative to her ownership and operation of a night club at the time the application was made.

We do not find the charge of fraud and collusion-supported by the evidence.

The judgment of the Common Pleas Court is hereby-affirmed.

*Judgment affirmed.*

Wiseman, P. J., Miller and Hornbeck, JJ., concur..