Hot Spot, Inc., In re, 86-426
| Decision Date | 22 April 1988 |
| Docket Number | No. 86-426,86-426 |
| Citation | 546 A.2d 799,149 Vt. 538 |
| Parties | In re HOT SPOT, INC. d/b/a Vinny's Hot Spot. |
| Court | Vermont Supreme Court |
John T. Bergeron, Burlington, for plaintiff-appellant.
Jeffrey L. Amestoy, Atty. Gen., Robert W. Gagnon, Asst. Atty. Gen., and William F. Ellis, Law Clerk (On the Brief), Montpelier, for defendant-appellee.
Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.
This is an appeal from a Liquor Control Board (Board) decision to suspend the liquor license of Vinny's Hot Spot (licensee) for thirty days for two violations of the Board's General Regulation 19. Licensee argues that the notice of hearing was insufficient under 3 V.S.A. § 809(b)(4). We affirm in part and reverse in part.
The Department of Liquor Control (Department) began its investigation of the licensee after an accident in February, 1986 in which a patron, while operating a motor vehicle, struck and fatally injured another patron, a pedestrian, after both had just left the licensee's premises.
The Department's investigation was directed at establishing whether the driver and pedestrian were served alcoholic liquor while under the influence of liquor at licensee's bar. Many of the licensee's employees and other patrons were interviewed about their observations of the driver and pedestrian's liquor consumption and behavior.
After the investigation was completed, the Department served a notice of hearing on licensee which quoted the language of the Board's General Regulation No. 19 and alleged that licensee had: (1) sold or furnished alcoholic liquor to a person or persons apparently under the influence of liquor; (2) allowed a person or persons apparently under the influence of liquor to consume alcoholic beverages on the licensed premises; and (3) allowed intoxicated persons to loiter on the premises. Although the notice did not specify the individual patrons at issue, the date of the alleged violation and a statement that the reports of the Department's investigator were available upon request were included in the notice to licensee.
At the Board hearing several witnesses were called to testify about the condition of the driver and pedestrian on the night in question. One of these witnesses testified that a third patron had bought the pedestrian and the witness each an alcoholic drink and that the third patron was intoxicated when he purchased the drinks at licensee's bar. While this witness had indicated in her statement to the investigator that the third patron was "very drunk," she had not mentioned, nor was it mentioned elsewhere in the investigation reports, that the third patron had been sold or furnished any drinks while under the influence of alcoholic liquor.
During closing arguments, the Department's counsel stated that there was unrefuted evidence that the third patron loitered on licensee's premises and had purchased two alcoholic drinks at the licensee's bar while he was under the influence of liquor. The licensee objected, arguing that, because this was the first indication that the Department was charging violations with respect to the third patron, counsel was not prepared to rebut the Department's evidence.
The Board subsequently issued its findings, decision and order. The Board concluded that no violation had occurred with respect to the driver and the pedestrian. However, the Board ruled, on the basis of the testimony about the third patron's intoxication, that licensee had violated General Regulation No. 19 in two respects. The Board ruled that licensee had sold alcoholic liquor to the third patron while he was under the influence of liquor and had permitted him to loiter on the premises while under the influence of liquor. The Board, therefore, ordered licensee's first and third class licenses suspended for thirty days.
At the outset we recognize that notice in an administrative proceeding need only be reasonable, and need not meet the exacting requirements for notice in judicial proceedings. 1 K. Davis, Administrative Law Treatise § 8.04, at 523 (1958). Nevertheless, we are unwilling to uphold as "reasonable" the type of notice here furnished by the Department with respect to the charge of selling the third patron...
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...of judicial proceedings. In re Vermont Health Serv. Corp., 155 Vt. 457, 461, 586 A.2d 1145, 1147 (1990): In re Hot Spot, Inc., 149 Vt. 538, 540, 546 A.2d 799, 801 (1988). It is critical to a fair hearing that parties be given an adequate opportunity to prepare and respond to all issues that......
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...¶ 24. We find no error. As we have explained, "notice in an administrative proceeding need only be reasonable." In re Hot Spot, Inc., 149 Vt. 538, 540, 546 A.2d 799, 801 (1988) (citing 1 K. Davis, Administrative Law Treatise § 8.04, at 523 (1958)). The notice requirement for Vermont adminis......