Con-Elec Corp., In re, CON-ELEC

Docket NºNo. 96-487
Citation716 A.2d 822
Case DateJune 19, 1998
CourtUnited States State Supreme Court of Vermont

Page 822

716 A.2d 822
In re CON-ELEC CORPORATION d/b/a Wolf's Lair.
No. 96-487.
Supreme Court of Vermont.
June 19, 1998.

Page 823

Before DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

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) ("[T]he Board may not, through promulgation of regulations, expand its authority into areas of activity that are beyond the focus of Title 7.").

Page 824

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) (banning games of chance unless conducted by nonprofit organizations as provided in 13 V.S.A. § 2143). 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...

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6 practice notes
  • In re DT, No. 99-052.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 29, 1999
    ...we have stated often, credibility of the witnesses is a matter for the trier of fact to judge. See In re Con-Elec Corp., 168 Vt. 576, 577, 716 A.2d 822, 824 (1998). "Due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses and the wei......
  • Stopford v. Milton Town Sch. Dist., No. 17-398
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 16, 2018
    ...expressed that intent through legislation a year ago, a decade ago, or a century ago."); In re Con-Elec. Corp., 168 Vt. 576, 576-77, 716 A.2d 822, 824 (1998) (mem.) (refusing to strike down Liquor Control Board regulation where Legislature has enacted legislation consistent with regula......
  • In re Rusty Nail Acquisition, Inc., No. 08-338.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 26, 2009
    ...a "nexus between the regulation . . . and the consequences of excessive use of alcohol." In re Con-Elec Corp., 168 Vt. 576, 576, 716 A.2d 822, 823 (1998) (mem.) (quotation omitted). Thus, the issue here is whether GR17 is connected to, and is therefore a proper exercise of the Boa......
  • Amy's Enterprises v. Sorrell, No. 01-519.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 18, 2002
    ...the power of the Liquor Control Board to police gambling on premises where liquor is served. In re Con-Elec. Corp., 168 Vt. 576, 577, 716 A.2d 822, 824 (1998) (mem.). In that case, we held that as Liquor Control Board Regulation 9 "merely prohibits what the Legislature has proscribed .......
  • Request a trial to view additional results
6 cases
  • In re DT, No. 99-052.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 29, 1999
    ...we have stated often, credibility of the witnesses is a matter for the trier of fact to judge. See In re Con-Elec Corp., 168 Vt. 576, 577, 716 A.2d 822, 824 (1998). "Due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses and the wei......
  • Stopford v. Milton Town Sch. Dist., No. 17-398
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 16, 2018
    ...expressed that intent through legislation a year ago, a decade ago, or a century ago."); In re Con-Elec. Corp., 168 Vt. 576, 576-77, 716 A.2d 822, 824 (1998) (mem.) (refusing to strike down Liquor Control Board regulation where Legislature has enacted legislation consistent with regula......
  • In re Rusty Nail Acquisition, Inc., No. 08-338.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 26, 2009
    ...a "nexus between the regulation . . . and the consequences of excessive use of alcohol." In re Con-Elec Corp., 168 Vt. 576, 576, 716 A.2d 822, 823 (1998) (mem.) (quotation omitted). Thus, the issue here is whether GR17 is connected to, and is therefore a proper exercise of the Boa......
  • Amy's Enterprises v. Sorrell, No. 01-519.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 18, 2002
    ...the power of the Liquor Control Board to police gambling on premises where liquor is served. In re Con-Elec. Corp., 168 Vt. 576, 577, 716 A.2d 822, 824 (1998) (mem.). In that case, we held that as Liquor Control Board Regulation 9 "merely prohibits what the Legislature has proscribed .......
  • Request a trial to view additional results

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