Clark County Liquor and Gaming Licensing Bd. v. Clark

• Citation: 730 P.2d 443,102 Nev. 654
• Decision Date: 31 December 1986
• Docket Number: No. 16896,16896
• Parties: CLARK COUNTY LIQUOR AND GAMING LICENSING BOARD, Appellant, v. Mildred P. CLARK d/b/a Sky Club, Respondent.
• Court: Supreme Court of Nevada

Page 443

730 P.2d 443

102 Nev. 654

CLARK COUNTY LIQUOR AND GAMING LICENSING BOARD, Appellant, v. Mildred P. CLARK d/b/a Sky Club, Respondent.

No. 16896.

Supreme Court of Nevada.

Dec. 31, 1986.

Robert J. Miller, Dist. Atty., S. Mahlon Edwards, Deputy Dist. Atty., Las Vegas, for appellant.

Moran & Weinstock, Las Vegas, for respondent.

OPINION

PER CURIAM:

The Clark County Liquor and Gaming Licensing Board revoked the licenses of the "Sky Club," whose owner, Mildred Clark, then petitioned for judicial review. The district court remanded the case to the board for rehearing, ordering it to grant Clark discovery and to rehear issues in light thereof. The Board appeals.

The Sky Club, outside of Las Vegas near Nellis Air Force Base, is one of the largest bars in what police call the "George" area of Clark County. Its clientele consists mostly of young airmen. Mildred Clark, its proprietor, is a 78-year-old woman who lives on the premises. Ms. Clark has held a tavern and package liquor license for 20 years and has never previously been cited for any violation of county liquor ordinances.

The Board's complaint is partially based on an incident involving Carlos Daniel Montez, an airman who was 20 years and 5 months old. The night of his arrest, Montez told police he had visited the Sky Club after consuming a six-pack of beer obtained on the Air Base. He claimed the Sky Club neglected to check his identification and served him four mixed drinks.

On October 30, 1984, the Board issued a complaint alleging that Ms. Clark had allowed the Sky Club to become a disorderly house and a public nuisance. In addition to mentioning the Montez incident, the complaint implied that the Sky Club was the scene of a large number of problems occupying an inordinate amount of police time. Specifically, the complaint stated police spent over 90 hours on 141 peace disturbing incidents and an unknown number of "bar checks" in 1983. ¹

Ms. Clark sought discovery of documents relating to the complaint, and information about police contacts with other bars in the "George area" during the same period. She served the Board with a request for production pursuant to NRCP 34. The district attorney objected that NRCP 34 did not apply to Board proceedings. Ms. Clark then sought issuance of a subpoena duces tecum directed to the Director of the Department of Business Licenses. She invoked Clark County Code section 8.08.080, now repealed, which provided "the board shall issue subpoenas and subpoenas duces tecum at the request of a party." Despite the ordinance, the Board refused to issue the subpoena, based on a district attorney's claim that it had no authority. Ms. Clark's attorney finally signed the subpoena himself and served it, to no avail.

At the evidentiary hearing, a police officer characterized the Sky Club as "where all the trouble was at." Four officers testified there were more calls at the Sky Club than at all the other clubs in the area combined. Apparently, Ms. Clark had not hesitated to call police at any hint of a problem, because they had in fact encouraged her to do so. Nonetheless, while admitting they encouraged bar keepers to call rather than resort to self-help, several officers nonetheless complained Ms. Clark would call them to eject customers they felt she should have attempted to eject herself. Some police also complained she sometimes called them, but then cancelled her request when intervention became unnecessary. (We are not at all sure how such evidence is thought to support the complaint against her.) Ms. Clark's calls are reflected in the statistics mentioned in the complaint.

The computer analyst who compiled the report culled his numbers from dispatch information. He admitted he did not know whether the reported activity had actually occurred, and he could not determine the origin of the calls. Questioned about the number of hours police spent at the Sky Club, he explained the figures referred to "man hours," time spent by each officer, and included travel time to the scene, plus an undetermined number of routine "bar checks" made by officers on their own initiative. Time spent on actual problems could not be determined from the data. The analyst, who had never compiled similar data on a bar, did not know if his report indicated excessive problems.

The Board revoked Ms. Clark's licenses finding that the Sky Club had served Mr. Montez, that an unnamed minor had been admitted to the club in 1983, and that the Sky Club had more peace disturbing incidents than all the other 26 bars in the area combined. To support the latter, critical finding, the record contains no quantitive comparative data whatsoever. Ms. Clark then petitioned for judicial review. The district court remanded the case, ordering the Board to grant discovery.

First, we note the order of the district court is not appealable. No appeal lies except when authorized by statute. Jarstad v. National Farmer's Union, 92 Nev. 380, 383, 552 P.2d 49, 51 (1976); Bates v. Nevada Savings and Loan Association, 85 Nev. 441, 443, 456 P.2d 450, 451 (1969); Johns-Manville, Inc. v. Lander County, 48 Nev. 244, 246, 229 P. 387 (1924). There is no statute authorizing appeal from an order remanding a case to an administrative body. Neither is the decision appealable as a final order. United Association Journeymen v. District Court, 82 Nev. 103, 107, 412 P.2d 352, 354-355 (1966). However, the actions of the district court may be challenged by petition for writ of mandamus, and we shall treat this appeal as a petition for mandamus since it would be unfair to do otherwise in light of our previous order indicating the Board could appeal. ² See Jarstad v. National Farmer's Union, supra, 92 Nev. at 384, 552 P.2d at 51.

A writ of mandamus may be issued by this court to compel the performance of an act which the law requires as a duty resulting from an office, trust or station. NRS 34.160. The Board contends the district court's sole function in reviewing the actions of county boards is to determine whether administrative action is arbitrary and capricious or supported by substantial evidence. It argues the court has no discretion to remand the case for the taking of further evidence. We disagree.

The Administrative Procedure Act expressly authorizes remand to state agencies for the taking of further evidence. NRS 233B.140(3). The district court has very broad supervisory powers to insure that all relevant evidence is examined and considered. Nevada Industrial Commission v. Reese, 93 Nev. 115, 126, 560 P.2d 1352, 1358 (1977). We recognize the Administrative Procedure Act does not apply to review of county board actions. Washington v. Clark County, 100 Nev. 425, 428, 683 P.2d 31, 33 (1984). Review of local agency action is by extraordinary writ. Id. However, absence of specific statutory authority to remand does not deprive the court of its traditional equitable powers. The federal courts have long recognized equitable power to remand cases for further administrative proceedings "where justice demands that course in order that some defect in the record be supplied." Ford Motor Company v. National Labor Relations Board, 305 U.S. 364, 373, 59 S.Ct. 301, 306, 83 L.Ed.2d 221 (1939). The court's equitable powers were not displaced by enactment of the federal Administrative Procedure Act. See Mobil Oil Corporation v. Federal Power Commission, 417 U.S. 283, 311, 94 S.Ct. 2328, 2347, 41 L.Ed.2d 72 (1974); Jicarella Apache Tribe v. Andrews, 687 F.2d 1324, 1333 (10th Cir.1982); Sharon Steel Corporation v. Environmental Protection Agency, 597 F.2d 377, 381 (3d Cir.1979); Sindicato Puertorriqueno de Trabajadores, 448 F.2d 1161, 1170 (D.C.Cir.1971). Likewise, we do not discern that the Nevada Administrative Procedure Act was intended to deny the district courts traditional equitable power to remand a case to a local board for taking of further evidence, when information that may be vital to the board's decision was withheld despite the existence of an ordinance affording discovery. It is clear that the district court had discretion to remand the...