Day v. Alcoholic Beverage Control Bd.

Decision Date05 April 1983
Docket NumberNo. 82,82
Citation431 So.2d 54
CourtCourt of Appeal of Louisiana — District of US
PartiesFlemon DAY, d/b/a Good Times Restaurant & Lounge v. ALCOHOLIC BEVERAGE CONTROL BOARD and the Treasurer Department for the Parish of East Baton Rouge. CA 0575.

Walter C. Dumas, Baton Rouge, for plaintiff-appellant Flemon Day d/b/a Good Times Restaurant & Lounge.

Charles Raymond, Asst. Parish Atty., Baton Rouge, for defendant-appellee Alcoholic Beverage Control Bd. and the Treasurer Dept. for Parish of East Baton Rouge.

Before LOTTINGER, COLE and CARTER, JJ.

COLE, Judge.

This court, on its own motion, ordered the parties to show cause why the appeal should not be dismissed due to the fact the appeal had not been filed timely under La.R.S. 26:104 and La.R.S. 33:4788. After considering the briefs filed by the parties we conclude the appeal was not filed timely and therefore dismiss it.

Plaintiff, Flemon Day, is the owner of the Good Times Restaurant and Lounge. On March 30, 1982, his "Class R" liquor permit, which allowed him to serve liquor with meals on Sundays, was suspended by the Alcoholic Beverage Control Board (hereinafter referred to as the ABC board). Plaintiff filed a suit on April 2, entitled "Petition for Writ of Injunction." Therein he requested a temporary restraining order, a preliminary injunction, a permanent injunction and any other equitable relief. A temporary restraining order was issued on April 6. A hearing was held and on May 5, 1982, the district court signed a judgment which vacated the temporary restraining order, denied the preliminary injunction, and denied a new trial.

On June 4, 1982, appellant filed a writ application with this court, which was denied on June 15, 1982. This court stated appellant's proper remedy was by appeal. Appellant thereafter filed a motion and order for appeal which was signed on June 23, 1982. At the time the writ application was denied, no determination was made as to whether or not the appeal delays had lapsed.

In his original brief filed with us, appellant contended that although his petition was labeled as an "injunction," he was really seeking an appeal from the administrative decision of the ABC board. Appellee, on the other hand, contended appellant had filed a petition for injunction only and consequently the merits of the case could not be considered on appeal. Therefore, the issue was whether appellant's initial action should be considered a request for an injunction or a request to reverse the decision of the ABC board. Pretermitting this question for the moment, we conclude regardless of the nature of appellant's original action, his appeal to this court was not timely.

If we consider the action to be an appeal from the suspension of an alcohol license, the matter is governed by La.R.S. 26:104 1 (which deals with alcoholic beverage control) and La.R.S. 33:4788 2 (which deals with a municipality, parish, or municipal ABC board). These statutes provide a party aggrieved by a decision of the ABC board may appeal to the proper district court within 10 days of notification of the decision and must appeal to the appellate court within 10 days of the signing of the district court judgment. Since the trial court's judgment was signed on May 5, 1982, and the appeal was taken on June 22, 1982, the delay had clearly run and the appeal was not timely.

If we consider the action to be an appeal from the denial of a preliminary injunction, the matter is governed by La.Code Civ.P. art. 3612 3 which requires the party to appeal the matter within 15 days from the date of the judgment. Again, the appeal was not filed timely.

Appellant contends his period for appeal was delayed by the fact he sought supervisory writs. He argues the delay should not begin until the writs were denied. We find no merit to this argument. The language of the statutes in question is clear: the appeal must be taken within 10 calendar days of "the signing of the judgment by the district court." Further, it has been expressly held by this court that "an application for supervisory writs does not extend...

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