Bird v. Willis
| Decision Date | 15 October 1996 |
| Docket Number | No. 83390,83390 |
| Citation | 927 P.2d 547,1996 OK 116 |
| Parties | 114 Ed. Law Rep. 952, 1996 OK 116 J.H. BIRD, Jack Henry Bird, and C.B. Greer, Appellants, v. Ron L. WILLIS, in his capacity as Director of the Oklahoma Alcoholic Beverage Laws Enforcement Commission and the Oklahoma Alcoholic Beverage Laws Enforcement Commission, Appellees. |
| Court | Oklahoma Supreme Court |
J. Scott Dickman, Gregg L. Graves and Margaret A. Nunnery, Fuller, Graves & Dickman, Tulsa, for Appellants.
W. Kurt Morgan, Alcoholic Beverage Laws Enforcement Commission, Oklahoma City, for Appellee.
Joe M. Bohannon, Tulsa, for Intervenor.
A citizen alleging himself to be a parent and patron of a public school district wants to be heard in protest of a liquor license, allegedly issued to an address on the same city block as the school. We find no relief for the citizen in the licensing or administrative procedure statutes, nor do we find that he asserts the deprivation of any right protected by the Due Process Clause. However, we find nothing to prohibit him (and his fellow Protestants) from proceeding by way of mandamus in a district court if he can show proper standing.
Protestants J.H. Bird, Jack Henry Bird, C.B. Greer and Barbara Smith brought this action in the District Court, originally seeking mandamus to require the Alcoholic Beverage Laws Enforcement (ABLE) Commission to withdraw conditional approval of an application by Sara Bohannon for a license to operate a retail package store, and to afford them a hearing on their objection. They claimed that the proposed location on the license application was clearly prohibited by 37 O.S.Supp.1993 § 518.2, in that it was on the same city block and within 300 feet of Union Public High School. However, before there was any final action in the mandamus proceedings, the ABLE Commission granted the license. Claiming a denial of due process, Protestants amended their action to seek review of the decision of the Commission pursuant to 75 O.S.Supp.1993 § 318. License applicant Bohannon was allowed to intervene. The trial court dismissed, finding no requirement for a hearing before the Commission nor relief available by way of judicial review.
Protestants appealed and the Court of Appeals, Division IV, affirmed, holding that the proceedings which occurred before the ABLE Commission were in the nature of an "individual proceeding" as defined by the Oklahoma Administrative Procedures Act, which would have entitled the protestants to district court review. However, the appellate court went on to find that none of the Protestants showed the requisite standing to object to the granting of the license. We granted certiorari.
The ABLE Commission has adopted the OAPA. 1 Title 75 O.S.1992 § 314(A) states that "[e]xcept as otherwise specifically provided by law, the issuance or denial of a new license shall not require an individual proceeding." Section 250.3(7), amended in 1992, defines an "individual proceeding" as "the formal process employed by an agency having jurisdiction by law to resolve issues of law or fact between parties and which results in the exercise of discretion of a judicial nature." Section 318 provides that "any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review...." Thus, according to the statutes a final order of the ABLE Commission can be reviewed in court only when there was an individual proceeding resulting in a final order by which a party was aggrieved. And those protesting liquor licenses granted by the ABLE Commission are not statutorily entitled to an individual proceeding under the OAPA, according to Section 314(A), thus raising the question as to whether there can be any judicial review in this case.
Protestants urge that they are entitled to a hearing if required by statute or by another source of law. They assert that the statutes implicitly require that they be given a hearing since the statutes require that they be given notice. In the alternative, they urge a constitutionally protected interest in the well being, safety and health of themselves and their children. Relying on DuLaney v. Oklahoma State Health Department, 868 P.2d 676 (Okla.1994), they believe they are entitled to an opportunity to be heard.
The ABLE Commission Rules provide for hearings in a variety of situations. In fact, Rule 45:1-3-1 specifically states that the Commission may "not deny an applicant for a license, or any licensee, the right to a hearing before the Commission." Rule 45:1-3-2 defines the purpose of the Commission as regulating the liquor industry "whereby licenses are issued or denied, suspended or revoked, after notice and hearing...." Rule 45:1-7-2 gives the Director of the ABLE Commission the authority to hold hearings.
Title 37 O.S.1991 § 501 et seq. governs the distribution and sale of alcohol. Section 516 provides that the city in which any applicant seeks to do business shall be given notice of the application, and within twenty days the city shall make a recommendation as to whether the application should be granted or denied. Section 528.1 (amended in 1994) provides that a city may initiate a complaint for a license revocation or suspension and that the city is entitled to a hearing in this matter.
Section 518.2 provides that a retail package store cannot be located within 300 feet of a church or a public school. It further states that "a license shall not be issued for a location on any city or town block where a school or church is located."
Section 527 provides that the ABLE Commission shall refuse to issue a license if one of the enumerated grounds is present. Section 530 provides "[a]ny person aggrieved by the action of the Alcoholic Beverage Laws Enforcement Commission in denying an application for an original license may ... file with the ABLE Commission written request for a hearing, and the ABLE Commission shall, pursuant to such request, set a time and place for a hearing on a denial of an application...." (Emphasis added) Thus, if an applicant is denied a license, he or she has a right to a hearing if requested. The granting of a hearing by the ABLE Commission is not discretionary once requested; the statute requires a hearing if requested.
Section 528 provides that the ABLE Commission may suspend or revoke a license. Upon the revocation or suspension of a license, the licensee is entitled to a hearing. See 37 O.S.1991, Section 528(D). Section 529 provides that the licensee or applicant must be given notice of the denial, suspension or revocation and told of the place and time of the hearing.
Section 547 provides a hearing to those licensees who are alleged to have failed to remit taxes. The hearing is again held by the ABLE Commission, and at that hearing, the ABLE Commission is given the power to determine whether taxes were paid for the alcohol, and if not, is permitted to confiscate the containers and forfeit them to the state.
In summary, the OAPA does not require hearing for licenses unless otherwise required by law. As shown above, our statutes require hearings in numerous liquor licensing situations. The statutes provide for hearings upon the request of an applicant when a license has been denied, revoked or suspended. Hearings are provided when a licensee has failed to remit taxes. The city or municipality in which the liquor store is located may file a recommendation, and may initiate a complaint for the revocation or suspension of a license.
If there is a hole in this statutory scheme it is exactly the one present in this case. Nowhere is a citizen given the right to be heard on his or her objections to an application for a license to run a liquor store. Nowhere is a church or a public school given the right to be so heard. Even in the situation where there is an obvious violation of state law (such as issuing a license for a store located on the same city block as a church or public school) no person nor entity is entitled to an "individual proceeding" under the OAPA. While Section 527 forbids ABLE from issuing a license if any of the enumerated grounds are present, there is no recourse under the OAPA if ABLE chooses to act in violation of this law. Although the ABLE Commission claims that a school, church or district attorney would be entitled to a hearing, there is no statute or written agency rule giving them that right. Unless some other remedy exists this leaves the ABLE Commission with unfettered discretion in the granting of a license.
Furthermore, because citizens are not entitled by statute to an individual proceeding under the OAPA, they are not entitled to judicial review of the ABLE Commission's actions in granting the license. Title 75 O.S.1991 § 318 provides judicial review only in those situations in which there has been an final order resulting from an individual proceeding.
Under The Due Process Clause Of Either
As for whether a hearing is constitutionally required for Protestants, DuLaney v. Oklahoma State Dept. of Health, 868 P.2d 676 (Okla.1994) is cited by them. There, this Court reversed its prior position in Stewart v. Rood, 796 P.2d 321 (Okla.1990), and held that a landowner adjacent to a proposed landfill was entitled to notice and opportunity to be heard before the permit was granted, even though the statute did not require it. The Court held:
The permit granted by the Department of Health ... may impair recognized and well defined property rights of the [protesting] mineral interest owner.
Id. at 681. (emphasis added) We went on to observe that the Due Process Clause of the state and federal Constitutions...
To continue reading
Request your trial
-
State ex rel. Bd. of Regents of the Univ. of Okla. v. Lucas, 110,283.
...idea that an opportunity for judicial review of administrative actions must be available for constitutional claims. 31.See, e.g., Bird v. Willis, 1996 OK 116, ¶ 21, 927 P.2d 547, 552 (when the Administrative Procedures Act did not provide a procedure for litigant challenging an administrati......
-
OPEA v. CENTRAL SERVICES
...taxpayers allege a violation of a state statute, but they do not also allege an illegal tax or public expenditure. ¶ 13 In Bird v. Willis, 1996 OK 116, 927 P.2d 547, where a citizen claimed that a state official violated a statute when issuing a liquor license to another individual, we said......
-
State ex rel. Department of Transportation v. Little
...an individual proceeding," 75 O.S. 1971 §318(1), or "a final agency order in an individual proceeding," 75 O.S. 2001 §318 A.1. See Bird v. Willis, 1996 OK 116, ¶14, 927 P.2d 547, 551. The term "individual proceeding" means a trial-type hearing for the conduct of which certain statutory proc......
-
Chandler (USA), Inc. v. Tyree
...that a decision whether to insure a particular risk is an exercise of discretion beyond the scope of judicial review. In Bird v. Willis, 1996 OK 116, 927 P.2d 547, we explained that a district court may issue a writ of mandamus against a state board or agency to compel the performance of an......