Con-Elec Corp., In re
| Decision Date | 19 June 1998 |
| Docket Number | No. 96-487,CON-ELEC,96-487 |
| Citation | 716 A.2d 822 |
| Court | Vermont Supreme Court |
| Parties | In reCORPORATION d/b/a Wolf's Lair. |
Before DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
Licensee Con-Elec Corporation, d/b/a Wolf's Lair, appeals from a decision of the Vermont Liquor Control Board, which revoked its first-class and third-class licenses to sell alcoholic beverages for on-premises consumption. Licensee contends that (1) the Board exceeded its authority by partially basing the revocations upon proscribed activities, which are beyond the scope of the Board's enabling legislation, and (2) the factual findings, with regard to licensee's violation of several of the Board's regulations, were clearly erroneous and unsupported by the evidence. We affirm.
After a hearing before the Board, licensee was found to have violated the Board's General Regulation No. 9 (illegal gambling), No. 19 (intoxicated patrons), No. 41 (disorderly conduct), and No. 49 (refilling bottles), and the Board's Credit Regulation No. 2 (credit sales). Due to these violations, licensee's liquor licenses were revoked. This appeal followed.
With regard to the violation of Regulation No. 9, 1 licensee's sole argument on appeal is that the Board exceeded its authority by promulgating a regulation prohibiting illegal gambling on licensed premises. In its decision, the Board found, and the licensee does not dispute, that the licensee's employees sold break-open tickets on the licensed premises from the time it was first licensed in 1994 until the present case was filed in 1996. The evidence before the Board indicated that the gambling was constant and that "the proceeds were substantial." 2
This Court has not hesitated to strike down a Liquor Control Board regulation where there is no "nexus between the regulation and ... the consequences of excessive use of alcohol." In re Club 107, 152 Vt. 320, 324, 566 A.2d 966, 968 (1989). In Club 107, we held that "the mere coincidence of the sale of liquor and some other activity is not--by itself--sufficient to allow the Board to regulate the other activity." Id. Central to our decision in Club 107 was the fact that the Legislature had not spoken about live entertainment in establishments serving alcoholic beverages, nor had it authorized the Board to regulate the activity at issue. See id. at 325, 566 A.2d at 969; accord SBC Enterprises, Inc. v. City of S. Burlington Liquor Control Comm'n, 166 Vt. 79, 84, 689 A.2d 427, 430 (1996) ().
Thus, licensee's reliance on Club 107 is misplaced. Unlike the challenged regulation in Club 107, the Legislature has spoken directly and clearly about the distribution of break-open tickets on premises licensed to sell alcoholic beverages. Section 10203(f) of Title 32 provides in relevant part:
Break-open tickets shall not be sold at premises licensed to sell alcoholic beverages except at clubs as defined in subdivision 2(7) of Title 7. However, a nonprofit organization may sell break-open tickets at premises licensed to sell alcoholic beverages if, notwithstanding 13 V.S.A. § 2143(e), all proceeds from the sale of break-open tickets are used by the nonprofit organization exclusively for charitable, religious, educational and civic undertakings....
The Legislature has imposed a flat prohibition against the sale of tickets on licensed premises by any entity other than a nonprofit organization. See also 13 V.S.A. § 2101 (Cum.Supp.1997) (). Regulation No. 9 merely prohibits what the Legislature has proscribed. The Board has not presumed to define and outlaw any gambling activity that is otherwise legal or to impose further regulation in a field fully occupied by the Legislature. Regulation No. 9 protects "the public welfare [and] good order," 7 V.S.A. § 1, by conditioning the license privilege on compliance with a statute that regulates gambling on licensed premises, and thus, its promulgation and enforcement did not exceed the Board's authority.
Licensee also claims that the Board's findings of fact, with regard to violations of General Regulation Nos. 49, 19, and 41, are clearly erroneous and unsupported by the evidence. We disagree. The Board found that licensee instructed its bartenders "to funnel liquor from gallon bottles into smaller bottles ('fifths')," a violation of Regulation No. 49, 3 and if questioned, "to say that it was done strictly for catering purposes." The Board's findings are supported by the testimony of two witnesses, one a former bartender who testified that the practice occurred possibly "hundreds" of times. The owner, the bar manager, and a present bartender contradicted this testimony, but as we have stated often, credibility of witnesses "is a matter for the trier of fact to judge." In re Johnston, 145 Vt. 318, 322, 488 A.2d 750, 753 (1985). There was no error.
In regards to the violation of Regulation No. 19, 4 the Board found the following: That on March 12, 1996, a patron visited the licensed premises in the afternoon, left, and then returned in the early evening. She consumed three or four alcoholic beverages on her first visit and "more than four or five" on her second visit. By her own account, "she became so intoxicated that she was unable to [recall] many of the later events of the night." Other patrons readily observed that the woman was "hammered," "drunk" and "highly intoxicated," and that she was crying, stumbling, and slurring her words. The woman had as many as three drinks in front of her at one time, and she tried to take a drink from another patron thinking it was hers. The licensee did not intervene until the intoxicated patron fell down while attempting to leave the bar, at which point the woman was helped back into the bar by the licensee and allowed to remain. It was not until the police arrived in response to a fight on the premises that she was removed by the police from the premises. Testimony indicated that she spent the night in the detoxication unit at a correctional facility.
The Board found that "the licensee had permitted [the patron] to consume vastly excessive amounts of alcoholic beverages and to remain on the premises for far too long for her safety and for the safety of the general public." Licensee argues that the patron was "shut off" as soon as her intoxication was noticed. Further, licensee argues that the patron failed to cooperate with licensee's attempts to send her home and that licensee "did all that it could" to remove her in a timely manner, and that the Board failed to consider...
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