Glenn v. Board of County Com'rs, Sheridan County

• Decision Date: 22 April 1968
• Docket Number: No. 3668,3668
• Citation: 440 P.2d 1
• Parties: Martha Fern GLENN, Charles Taylor, Edward Barbula, and Theresa Barbula, Appellants (Petitioners below), v. BOARD OF COUNTY COMMISSIONERS, SHERIDAN COUNTY, Wyoming, Byron T. Collins, Chairman, Meredith D. Brown, Member, Kenneth Hawkins, Member, Appellees(Respondents below).
• Court: Wyoming Supreme Court

Page 1

440 P.2d 1

Martha Fern GLENN, Charles Taylor, Edward Barbula, and Theresa Barbula, Appellants (Petitioners below), v. BOARD OF COUNTY COMMISSIONERS, SHERIDAN COUNTY, Wyoming, Byron T. Collins, Chairman, Meredith D. Brown, Member, Kenneth Hawkins, Member, Appellees(Respondents below).

No. 3668.

Supreme Court of Wyoming.

April 22, 1968.

Bruce P. Badley, Sheridan, for Martha Fern Glenn and Charles Taylor.

Jack Wolfe, Sheridan, for Edward and Theresa Barbula.

James E. Birchby, County and Pros. Atty., Sheridan, for appellees (respondents below).

Before HARNSBERGER, C. J., and GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Appellant Edward Barbula was the holder of a retail liquor license issued by the board of county commissioners of Sheridan County, Wyoming, which authorized Barbula to carry on such business on premises located in a community known as Acme, Wyoming. During the time that such license was in full force and effect Barbula, in keeping with the provisions of § 12-13, W.S.1957, filed an application with the board for a change in location of his business to premises identified as the Piney Glenn Guest Ranch located in an unincorporated community generally referred to in the record as Story, Wyoming, and further requested that the license be renewed for the proposed new location. At the same time application was made by Charles Taylor, operator of the guest ranch, for transfer of the renewed license from Barbula to the applicant. The board, on the advice of the county attorney and with the acquiescence of applicants, declined to consolidate the two matters for hearing ¹ and after due notice proceeded to hear Barbula's application. At the hearing protests to the granting of the application were made, and the board proceeded with the taking of the evidence of the parties. Following the hearing the board denied the application; and shortly thereafter, pursuant to Rule 72.1(c), W.R.C.P., a petition for review was filed in the district court for said county by the applicants.

Although the petition advanced several grounds for relief from the order of the board, the contentions in summary were that the board's findings of fact were not supported by evidence adduced at the hearing; that the findings of fact were contrary to the law; and that the action of the board was arbitrary, capricious, or characterized by abuse of discretion. The trial court, upon a review of the record made before the board and after listening to arguments of counsel, entered an order affirming the decision of the board of county commissioners. This appeal followed.

Before discussing the contentions of the parties to this appeal, some general comment appears appropriate. What this court said in Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, with respect to the informal procedure adopted by the city council in denying an application for transfer of the location of a licensed premise has largely been superseded by the Wyoming Administrative Procedure Act cited above. Here the parties agree, and properly so, that the proceeding was a 'contested case,' as that term is defined in § 9-276.19(2), and consequently such proceeding is subject to and must be reviewed in keeping with the applicable provisions of the act.

A basic purpose of the act is to assure that the controverted issues underlying such a proceeding, with the exception of those matters that may be noticed under § 9-276.26(d), will be fully developed and supported on the record by material and substantial evidence and upon which the agency, as the finder of fact, must adjudicate the matter. The objective, of course, is to avoid agency action upon an assumption of facts undisclosed by such evidence. Without reasonable adherence to that objective the contemplated safeguards of a direct and convenient court review, even though somewhat limited, would be frustrated.

By the foregoing we are not suggesting, of course, that the licensing authorities are no longer free to exercise discretion in acting upon applications relating to liquor licensing. The point is, however, a record must now be made from which it can be ascertained whether the exercise of such discretion had a reasonable basis within the range of the evidence adduced pertaining to the material issues embraced within the standards prescribed by the licensing act. And it is fundamental that those standards-general as they are-are not to be broadened simply to accommodate the particular whims and philosophy that the parties or the various members of the licensing authority might have concerning the subject matter. That is a task for the legislature.

Another matter worthy of some preliminary comment is the difficulty encountered in ferreting out the material issues that the board was called upon to adjudicate. The proceeding was initiated by Barbula by the filing of an application on a printed form ordinarily utilized in the issuance of an original license or the renewal thereof on the same premises. Much of the information so furnished was not particularly pertinent to an application for a change in location of the licensed premises. The only other instrument filed with the board in the nature of a pleading was an instrument entitled 'Petition' signed by some eighteen persons protesting the granting of Barbula's application, and such instrument was not filed until the hearing was convened. As might be expected, the instruments described leave much to be desired by way of formulating the issues to be tried and it would have been most helpful had the board previously promulgated rules of practice and procedure for contested cases as contemplated by Ch. 108, § 2(a)(1), S.L. of Wyoming, 1965 (§ 9-276.20(a)(1), W.S.1957, 1967 Cum.Supp.).

We recognize, however, that the requirements for procedural reform in these matters are relatively new, and in any event the courts have always been quite liberal with respect to the matter of pleadings in proceedings before administrative agencies. Hagood v. Texas Pacific Coal and Oil Company, Wyo., 356 P.2d 135, 140. The important question is whether or not the parties had fair notice of the issues involved. Section 9-276.25(b)(4), W.S.1957, 1967 Cum.Supp; and see Wright v. Munro, 144 Cal.App.2d 843, 301 P.2d 997, 1000, and 1 Davis, Administrative Law Treatise, § 8.04, p. 523, and § 8.20, p. 613 (1958). We are persuaded that the record here reasonably meets that requirement, and inasmuch as neither of the parties raised such question before or at the hearing we turn to the record as made before the board.

Our examination of the whole of the record convinces that the pivotal issue which the board was called upon to adjudicate was whether or not, as the protestants claimed in their petition, the proposed location was in an area primarily residential in nature, containing many large and expensive residential homes and cabins, and the granting of the application 'could detract from the residential quality of this area, and could forther detract from the value of said property as a residential area.' We reach this conclusion for the reason that Barbula's application established that he was the holder of a valid and outstanding retail liquor license previously issued by the board and his fitness and qualifications to continue to hold such a license were in no way challenged. He also tendered a lease for that portion of the 'lodge' of the guest ranch in which the sales room was to be located, and this was augmented by undisputed testimony to the effect that the lodge and the adjoining premises consisting of some ninety acres used for the operation of the guest ranch were suitable for the purposes intended. Thus, it is our view that Barbula at that juncture of the proceeding made out a prima facie case and it was incumbent upon the protestants to come forward with evidence to sustain their claim. Lyons v. Delaware Liquor Commission, 5 Terry 304, 44 Del. 304, 58 A.2d 889, 892.

Although some evidence in that regard was produced by the protestants, we find the record to be most unsatisfactory for purposes of review. In the first instance no real effort was made reasonably to fix the outer limits of the 'area' under consideration and, with one or two exceptions, to locate the homes of the protestants in relation to the location of the lodge of the guest ranch. We appreciate, of course, that counsel, the parties, and the board had familiarity with those matters, but when the case comes before the courts for review such general terms as 'community,' 'area,' 'closest,' 'fairly close,' '(joins) on the back,' and 'a little farther away' when unsupported by some other means of measurement are...