Guntli v. McLeod, 44779

• Decision Date: 01 February 1983
• Docket Number: No. 44779,44779
• Citation: 646 S.W.2d 899
• Parties: William T. GUNTLI and Edwin E. Tracey, Jr., d/b/a Partners, Petitioners-Appellants, v. The Honorable Arthur E. McLEOD, Excise Commissioner, Respondent.
• Court: Missouri Court of Appeals

Page 899

646 S.W.2d 899

William T. GUNTLI and Edwin E. Tracey, Jr., d/b/a Partners Petitioners-Appellants, v. The Honorable Arthur E. McLEOD, Excise Commissioner, Respondent.

No. 44779.

Missouri Court of Appeals Eastern District, Division Two.

Feb. 1, 1983.

Ronald L. Rothman, Clayton, for petitioners-appellants.

John J. Morton, Asst. City Counselor, St. Louis, for respondent.

DOWD, Presiding Judge.

This appeal is from the judgment of the Circuit Court affirming the decision of the Excise Commissioner [hereinafter Commissioner] who, in turn, denied the renewal of appellants' full drink intoxicating liquor license. Judgment reversed and remanded.

On February 29, 1980 William T. Guntli and Edwin E. Tracey, Jr., d/b/a Partners filed an application with the Excise Commissioner's office for the renewal of their full drink intoxicating liquor license. On September 10, 1980 the Commissioner's office received a written protest against the renewal. As a result two hearings were held. On October 27, 1980 the Commissioner issued an order denying the renewal of said license on the ground that a valid and authentic majority of the persons occupying or conducting business on the main or surface floor within the prescribed petition circle formed the majority necessary to sustain the protest. ¹ Said order was stayed on October 27, 1980 and affirmed on July 8, 1981 by the Circuit Court of the City of St. Louis. This appeal ensued.

Appellants contend that the Commissioner abused his discretion in 1) sustaining four signatures on the protest petition where sufficient testimony existed to support the finding that these signatures were obtained by fraud; 2) that his denial of said license was unauthorized and arbitrary in that he refused to accept ten reversal ² slips presented in a timely fashion and in accordance with Missouri law; and 3) that his denial was capricious, arbitrary and unreasonable because he used a new plat, the existence of which was unknown to appellants, which contained less area and required fewer signatures for denial than the plat originally accepted at appellants' first hearing.

Judicial review of a decision by an administrative agency is limited to determining whether the decision was supported by competent and substantial evidence on the whole record; whether the decision was arbitrary, capricious or unreasonable, or whether the agency abused its discretion. Overland Outdoor Advertising Co., Inc. v. Missouri State Highway Commission, 616 S.W.2d 563 (Mo.App.1981); § 536.140(2)(1-7) RSMo 1978.

The fact finding function rests with the administrative agency and if the evidence would warrant either of two approved findings, an appellate court must uphold the factual determinations the agency has made. Phelps v. The Metropolitan St. Louis Sewer District, 598 S.W.2d 163 (Mo.App.1980).

Upon review of the facts as they appear in the administrative record, appellants' first and third points are denied. This court concludes that the Commissioner's sustention of the four signatures in question was supported by competent and substantial evidence.

The only evidence offered by appellants in this regard was Mr. Guntli's testimony that the signatures in question were obtained by fraudulent means. In support of this statement Mr. Guntli contended that the persons signing the protest informed him that they did not know what they were signing or that they were otherwise misinformed.

However, none of these witnesses were ever subpoenaed or produced. The excise commissioner has the right to judge the credibility of the witness and attribute as much weight to the evidence proffered as he sees fit. It is evident he considered the testimony that was offered too tenuous to establish a case for fraud. Point denied.

As to appellants' third point, we find no evidence of the admission of a second plat. The only plat in the record is that submitted prior to the original licensing. The testimony by Mr. Strode, the liquor control commissioner, that during the course of his inquiry he did include certain addresses listed on the original plat does not support the conclusion that a second plat was used. The determination of the number of tenants included in the plat for the first hearing was...