Casciato v. Oregon Liquor Control Com.

• Decision Date: 30 September 1947
• Citation: 181 Or. 707,185 P.2d 246
• Parties: CASCIATO <I>v.</I> OREGON LIQUOR CONTROL COMMISSION
• Court: Oregon Supreme Court

181 Or. 707

185 P.2d 246

CASCIATOv.

OREGON LIQUOR CONTROL COMMISSION

Supreme Court of Oregon.

Argued September 18, 1947.

Reversed September 30, 1947.

Intoxicating liquors — State Liquor Control Commission — Discretion — Liquor license — Abuse

1. State Liquor Control Commission has wide discretion in the matter of revoking or suspending liquor license, and courts should not interfere with exercise of such discretion unless an abuse thereof plainly appears. O.C.L.A. § 24-101 et seq.; § 24-122, subd., 8, § 24-127.

Intoxicating liquors — Reasonable grounds — Liquor commission — Revocation — Liquor license

2. Reasonable grounds for State Liquor Control Commission to believe that licensee knowingly has sold alcoholic liquor to persons under 21 years of age is sufficient to justify revocation of liquor license. O.C.L.A. § 24-122, subd. 8.

Administrative law and procedure — Appeal and error — Orders — Discretion — Abuse

3. Orders of either courts or administrative bodies vested with discretion to make or refuse to make such orders will not be overruled or reversed except upon a showing of abuse of such discretion.

Intoxicating liquors — Suspension — Liquor license

4. Suspension of restaurant liquor license on testimony of two girls 14 and 16 years of age that they had been served beer in the restaurant, without any questions being asked as to their age, was not abuse of discretion vested in State Liquor Control Commission. O.C.L.A. § 23-122, subd. 8, § 24-127.

                  See: note 92 A.L.R. 400; 42 Am. Jur. 380; 48 C.J.S., Intoxicating
                Liquor, § 175
                

Appeal from Circuit Court, Multnomah County.

FRANK J. LONERGAN, Judge.

Wilber Henderson, of Portland, for Oregon Liquor Control Commission, appellant.

No appearance for respondents.

Before Acting Chief Justice LUSK, BAILEY, HAY, WINSLOW and KELLY, Justices.

REVERSED.

KELLY, J.

This is an appeal from a decree of the Circuit Court of Multnomah County ordering the cancellation of an order of the Oregon Liquor Control Commission, hereinafter termed the Commission, suspending a restaurant liquor license therefore granted to Joseph and Croce Casciato. The reason assigned by the Commission for such suspension was that the licensees violated the provisions of the Oregon Liquor Control Act and the regulations of the Commission pursuant thereto by furnishing or serving alcoholic liquor, to-wit: beer, to persons under 21 years of age and by allowing minors to loiter on the licensed premises.

Upon appeal to the circuit court, the learned trial judge held that the Commission abused its discretion in ordering the suspension of the license in suit and therefore said trial court ordered the Commission to cancel its order of suspension. From the order of the trial court, the Commission appeals. The place where defendants were conducting their restaurant business was known as Rio Villa.

The statute, known by its terms as the Oregon Liquor Control Act, expressly provides, inter alia, that the Commission may cancel such a license, as the one in suit, if it finds, or has reasonable grounds to believe that the licensee knowingly has sold alcoholic liquor to persons under 21 years of age. Section 24-122, subsection 8, Vol. 3, O.C.L.A., pp. 211, 212.

The statute also expressly authorizes the adoption by the Commission of such regulations as are necessary and feasible for carrying out the provisions of the Oregon Liquor Control Act, and that when such regulations are adopted, as provided by statute, they shall have the full force and effect of law. Subsection 8 of Section 24-122, O.C.L.A., Vol. 3, pp. 211, 212.

Subsection (r) of Regulation 3, promulgated by the Commission June 29, 1935, pursuant to the authority conferred by said subsection 8 of section 24-122, O.C.L.A., among other things, provides that —

"No licensee, his agent or employee, shall furnish for a valuable consideration any service to a person under 21 years of age * * * when such service is intended for or used in connection with the consumption of alcoholic liquor on the licensed premises."

The statute conferring the right of an appeal from an order of suspension or revocation of a license, such as the one in suit, further provides:

"If the court shall decide upon the trial of said appeal that the commission abused its discretion in suspending or revoking the license or permit, it shall enter a decree accordingly." Section 24-127, O.C.L.A., Vol. 3, p. 215.

The question before us therefore is whether the record discloses that the Commission abused its discretion in suspending the license in suit.

1. This court, speaking through Mr. Justice BELT, has said:

"Wide discretion is vested in the Commission to determine whether a license should be revoked or suspended. Courts should not interfere with the exercise of discretion by such administrative agencies, unless it plainly appears that there has been an abuse thereof." Perry v. Oregon Liquor Control Commission, ___ Or. ___, 44 Ad. Sheets 209, 177 P.2d 406.

2. There is a marked difference in the requirement of the criminal law giving effect to the well known principle that, in order to support a judgment of conviction of a crime, the evidence must be of such a character as to convince the trial court or jury beyond a reasonable doubt of guilt of the defendants, and the provision of the statute applicable to the instant case, which, as above stated, justifies the action of the Commission in cancelling such a license as the one in suit, if the Commission has reasonable grounds to believe that the licensees knowingly have sold alcoholic liquor to persons under 21 years of age.

This statutory authority does not even invoke the rule in civil cases that, for the party holding the affirmative to prevail upon an issue of fact, the evidence must preponderate in favor of such party.

The evidence upon which the action of the Commission is grounded consists of the testimony at the hearings conducted by said Commission's examiner, Mr. Sam Mothershead, on November 26, 1946, and November 29, 1946. This testimony was introduced at the trial in the circuit court pursuant to a stipulation made in open court by the parties through their attorneys.

The testimony so received of the minors, to whom the intoxicating liquor is alleged to have been supplied, is as follows.

At the first hearing held on November 26, 1946, Bernice Munger, called as a witness, testified:

"Lives at 8018 S.E. Boise street with her parents. Has lived in Portland all her life. Was born March 31, 1930 and is now 16 years of age. Knows the location of the Rio Villa and was in this place on September 26, 1946, accompanied by Delores Ferrell, Glen Gault, Donald Stark, and Jimmie Stemmons. Was served 5 glasses of beer by the waitress on duty. Does not know the name of the waitress on duty and does not think she would be able to identify her again. Was not questioned as to her age and had never been in the place before. The beer was purchased by the three men of the crowd and she made no purchase herself. Went into the place around 8 or 8:30 in the evening and left at 1:00 A.M. the next morning. They were dancing and drinking beer. They went from there to Glen Gault's house. Were picked up a day or two later but the arrest was not in connection with this party."

"Cross-examined by licensee and his manager said the service was made by a lady waitress. She did not know the waitress and is not certain that she could identify her at this time. They were dancing most of the time and there was a blind man playing the piano. There was also some young fellow playing a guitar and singing."

Delores Ferrell, called as a witness, testified:

"Lives at 2321 S.W. Sheffield Avenue, Portland with her parents and has lived in Portland for the past 5 years. Was born February 2, 1932 and is now 14 years of age. Knows the location of the Rio Villa and was in this place on Sept. 26, 1946, in company with Bernice Munger, Glen Gault, Donald Stark and Jimmie Stemmons. Went in there about 8 or 8:30 and stayed until 1:00 the next morning. Was served several bottles of beer during the evening. Probably was served 7 or 8 beers. Made no purchase of beer herself and the purchases were made by the male members of the group. All the services made by the same waitress. She was not questioned as to her age. Has been in the place several times previously but was never served beer before. They went from there to Glen Gault's house."

At the second hearing before said examiner held on November 29, 1946, Delores Ferrell recalled for cross-examination testified that —

"On September 26, 1946, she was at the Rio Villa with Gault, Stark and Stemmons, She lives on Portland Heights. Could not be mistaken in the location of the premises as it was formerly named Mac's Broiler. Has been at the place several times before but never alone. Went into the place this particular evening about 8 or 8:30 P.M. and was served beer. Could not identify any of the employees present in the room. The matron who was on duty at the time, the bartender and the waitress were all presented to this witness for identification but she said she was not sure as to the identity of any of them. Said there was no one at the door when they went in but she did see some woman who was apparently taking care of the door most of the time. The group was seated in a booth the entire evening when not dancing. The beer was ordered and paid for by the boys and she was not questioned as to her age. There was a man playing the piano and it was to his music they were dancing most of the time. There was also a man singing and playing a guitar. No food was served to or consumed by any of the group during the evening. She was served 7 or 8 bottles of beer and again testified she could not be mistaken in the place. Said she had never been in trouble before and always lived at home with her parents."

At said second hearing on November 29, 1946, Bernice Munger, recalled by the licensee, testified:

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