Kovack v. Licensing Bd. of City of Waterville

• Citation: 173 A.2d 554,157 Me. 411
• Parties: John J. KOVACK d/b/a Johnnie's Grill v. LICENSING BOARD, CITY OF WATERVILLE.
• Decision Date: 24 August 1961
• Court: Maine Supreme Court

Page 554

173 A.2d 554

157 Me. 411

John J. KOVACK d/b/a Johnnie's Grill v. LICENSING BOARD, CITY OF WATERVILLE.

Supreme Judicial Court of Maine.

Aug. 24, 1961.

Burton G. Shiro, Waterville, for appellant.

Philip S. Bird, John Jabar, Waterville, for appellee.

TAPLEY, Justice.

On exceptions. In May of 1958 John J. Kovack, the appellant was issued a victualer's license by the Licensing Board of the City of Waterville for the premises known as and called 'Johnnie's Grill.' On October 16, 1958 the mayor of Waterville notified Mr. Kovack by letter that a hearing would be held in the Council Rooms of the City Hall on October 21, 1958 at 7:30 P.M. 'relative to the possibility of revoking the Victualer's License of Johnnie's Grill, 28 1/2 Ticonic Street.' The appellant received the letter in due course, appeared with counsel at the hearing and participated therein. The Licensing Board as a result of the hearing revoked the appellant's victualer's license and from this revocation the appellant appealed to the Superior Court, within and for the County of Kennebec and State of Maine. A hearing was held on the appeal before a single Justice of the Superior Court. At this hearing there was no court stenographer present and, therefore, this court does not have before it a record of the testimony adduced at the hearing. There was introduced at the hearing the letter from the mayor to Mr. Kovack notifying him of the hearing. This letter constitutes the only evidence before us. The presiding Justice, after hearing the appeal, properly refused to rule on the constitutionality of the statute involved in the case and further determined that although the notice received by Mr. Kovack was legally insufficient, he waived this fact by appearing in person with counsel and actively participating in the hearing.

The involved statute is Sec. 51 of Chap. 100 R.S.1954, and that portion which is pertinent to these proceedings reads:

'License revoked or suspended; hearing; appeal.--A license issued under the provisions of sections 29 and 54, inclusive, may be revoked if at any time the licensing authority shall be satisfied that the licensee is unfit to hold the license. It shall also have the right to suspend and make inoperative for such period of time as it may deem proper all the aforesaid licenses mentioned herein for any cause deemed satisfactory to it. The revocation and suspension shall not be made until after investigation and hearing, nor until the licensee shall have been given opportunity to hear the evidence in support of the charge against him and to cross-examine, by himself or through counsel, the witnesses, nor until the licensee shall have been given an opportunity to be heard. Notice of hearing shall be served on the licensee or left at the premises of the licensee not less than 3 days before the time set for the hearing. The licensing authority, as designated in sections 29 to 54, inclusive, is specifically charged with the duty of enforcing the provisions therein and of prosecuting all offenders against the same. * * *.'

The appellant takes the position, and so argues, that Sec. 51 is unconstitutional, in that it is an improper delegation of legislative power because it grants to the licensing authority an arbitrary discretion when it provides that a license, 'may be revoked if at any time the licensing authority shall be satisfied that the licensee is unfit to hold the license.' Appellant complains that the Legislature has failed to provide a guide or standard by which satisfaction of unfitness may be measured.

The presiding Justice found,

'The evidence produced before this Court amply justifies the Board's finding the appellant licensee 'is unfit to hold the license.' * * *

'We find as a fact, during the period appellant's license was in effect, he did (a) permit gambling upon his premises, (b) serve intoxicating liquor (beer) to a minor, and (c) permit intoxicated and disorderly persons to remain upon his premises.'

Appellant's third exception attacks the presiding Justice's ruling that the appellant permitted gambling upon the premises, served intoxicating liquor to a minor and permitted intoxicated and disorderly persons to remain upon his premises. This third exception we cannot consider as the case was tried below without benefit of a court reporter so that there is not before us a transcript of the testimony upon which to determine the question of error on the part of this presiding Justice in the ruling complained of. The only evidence before us is documentary in the form of the letter from Mayor Bernier to the appellant notifying him of the hearing. The factual findings of the presiding Justice are accepted as such by this court for the purpose of review.

The Licensing Board of the City of Waterville is an administrative body statutory created and with such power and authority as the Legislature has legally and properly endowed it. Its authority is no less nor more than the legislative body has given it. The Board is clothed with the administrative power of revoking a license when it 'shall be satisfied that the licensee is unfit to hold the license.' Appellant contends that the Legislature has failed to establish a guide or standard to be applied for the purpose of determining whether a licensee is fit or unfit to be the holder of a license and because of this alleged failure, the statute is unconstitutional. Sec. 51 is procedural in its nature and was enacted for the purpose of administering the laws pertaining to the licensing of innkeepers, victualers and the operators of lodging houses.

'Sec. 33. Duties of vitualers.--Every Victualer has all the rights and privileges and is subject to all the duties and obligations of an innkeeper, except furnishing lodging for travelers.'

Sec. 34 provides:

'Innkeepers and victualers to allow no gambling.--No innkeeper or victualer shall have or keep for gambling purposes about his house, shop or other buildings, yards, gardens or dependencies, any dice, cards, bowls, billiards, quoits or other implements used in gambling; or suffer any person resorting thither to use or exercise for gambling purposes any of said games or any other unlawful game or sport therein; and every person, who uses or exercises any such game or sport for gambling purposes in any place herein brohibited, forfeits $5.'

Under Sec. 35 there is provided:

'No innkeeper or victualer shall suffer any reveling or riotous or disorderly conduct in his house, shop or other dependencies; nor any drunkenness or excess therein.'

Under Secs. 34 and 35 the Legislature has prohibited a victualer from keeping for gambling purposes any gambling implements on the premises, permitting the use of them for gambling purposes or suffering any reveling, riotous or disorderly conduct or any drunkenness on the premises. Thus the Legislature has defined certain prohibitions applicable to licensees.

A victualer has no natural right to operate his business, as by statute it is a privilege which may or may not be conferred by public authority. Inhabitants of Dexter v. Blackden, 93 Me. 473, 45 A. 525.

'The permission to conduct an inn is not granted to all who may apply for a license; it is not a right to be exercised by one at will, but a privilege to be exercised when granted by municipal officers.' Goodwin v. Nedjip et al., 117 Me. 339, at page 342, 104 A. 519, at page 519.

Where the Legislature accords the privilege of license, it naturally follows that it provides procedure for revocation or suspension of the license when the licensee fails to conduct his business in accordance with legislative standards or administrative rules and regulations. In the instant case the Legislature has empowered the Licensing Board to revoke a victualer's license when it is 'satisfied that the licensee is unfit to hold the license.' The Licensing Board is called upon to make a determination as to the fitness or unfitness of a licensee to hold his license. Administrative bodies are functionally necessary in the process of government. There must be that delegation of power sufficient to the end that a proper, just and legal administration may occur. In considering delegation of power from the viewpoint of constitutionality, it is important that there exists in the statute adequate procedural safeguards. In considering the delegation of legislative power to administrative bodies, Rhyne's Municipal Law, on page 655, states:

'It is generally held that statutes and ordinances which do not prescribe reasonable standards for the guidance of the officer or body are unconstitutional as attempts to delegate legislative power to administrative officials. However administrative officials may be given authority to ascertain the existence of facts to which a legislative policy is applicable, and generally have absolute discretion to grant or refuse licenses for businesses which are inherently illegal. Legislative standards governing the issuance and denial of licenses were held adequately prescribed where officials were authorized to grant licenses to achieve compliance with all laws, ordinances, rules and regulations, or public health laws, or to license safe and proper places of business, persons of good character and reputation, fit and proper persons, applicants found to be physically fit, or persons worthy of assistance.' (Emphasis supplied.)

It is apparent that the members of an administrative body must exercise their judgment in adjudicating a question of fact as to whether a person is of good character and reputation, a fit or proper person, or one who is physically fit. The Legislature sets the standard in these instances and authorizes the Board to determine that the standard has been satisfied. There are many instances in the Maine Statutes where the Legislature has delegated to an administrative body authority to use its discretion and judgment. For example, in the abandonment of property or a service of a public...