Howard v. Kentucky Alcoholic Beverage Control Bd.

• Decision Date: 25 May 1943
• Citation: 294 Ky. 429,172 S.W.2d 46
• Parties: HOWARD v. KENTUCKY ALCOHOLIC BEVERAGE CONTROL BOARD.
• Court: Kentucky Court of Appeals

172 S.W.2d 46

294 Ky. 429

HOWARD v. KENTUCKY ALCOHOLIC BEVERAGE CONTROL BOARD.

Court of Appeals of Kentucky

May 25, 1943

Appeal from Circuit Court, Franklin County; William B. Ardery Judge.

Proceeding for revocation of retail beer and liquor licenses issued to Emanuel Howard. From a judgment dismissing licensee's appeal from an order of the Alcoholic Beverage Control Board revoking the licenses, licensee appeals.

Affirmed.

Sam H Brown, of Frankfort, and P. H. Vincent, of Ashland, for appellant.

Hubert Meredith, Atty. Gen., and William F. Neill, Asst. Atty. Gen for appellee.

RATLIFF Justice.

Pursuant to notice and a hearing before the Alcoholic Beverage Control Board held January 20, 1943, the board entered an order revoking the retail beer and liquor licenses theretofore issued to appellant and under which he was engaged in the retail sale of beer and liquor in the city of Ashland, Kentucky. Appellant appealed from the order of the board by filing in the Franklin circuit court his petition for appeal together with a transcript of the proceedings had before the board and asked that the order of the board be set aside and held for naught. Upon a trial or review of the case the Franklin circuit court dismissed the appeal, thus leaving the order of the board in force and effect. This appeal follows.

It is insisted that for various reasons the judgment of the circuit court should be reversed and remanded with directions to set aside the order dismissing the appeal and enter an order directing the board to set aside its order revoking the licenses of appellant.

Two notices were given appellant, addressed to him at his place of business in Ashland, Kentucky, one relating to the retail beer license, dated January 12, 1943, and signed by Alfred S. Portwood, Malt Beverage Administrator, and the other one relating to the liquor license, dated January 13, 1943, and signed by H. G. Rowlette, Administrator, Distilled Spirits Unit. With the exception of a slight variance with respect to certain sections of the statutes applicable to whiskey and beer, respectively, the notices are in form and substance the same. The notice relating to the liquor license reads as follows:

"You are hereby directed to appear before the State Alcoholic Beverage Control Board in the New State Office Building, Frankfort, Kentucky, on Wednesday, January 20, 1943, at 9:30 A. M., to show cause why your retail package liquor license, No. LH-2380 and your retail drink liquor license, No. LH-4011, should not be suspended or revoked for the following reasons:

"1. On November 21, 1942 you violated section 244.080 of the Kentucky Revised Statutes by selling, giving away, or delivering alcoholic beverages, or permitting alcoholic beverages to be delivered, given away, or sold to a minor.

"2. On November 20, and 21, 1943, you violated section 244.080 of the Kentucky Revised Statutes by selling, giving away, or delivering alcoholic beverages, or permitting alcoholic beverages to be delivered, given away or sold to a person actually or apparently under the influence of alcoholic beverages.

"3. On November 20, and 21, 1942, you violated section 244.120 of the Kentucky Revised Statutes by causing or permitting disorderly conduct on your licensed premises.

"4. On November 20 and 21, 1942, you violated section 243.240 of the Kentucky Revised Statutes by permitting packages of distilled spirits and wine to be opened and their contents consumed on your licensed premises."

Each notice was sent by registered mail, which appellant received, and he appeared before the board at the time and place designated in the notices and presented his defense to the charges and testified in his own behalf.

The first ground or complaint urged for reversal is directed to the notices. It is insisted that the notices were not specific and definite so as to enable appellant to prepare and present his defense; that the notices given were not in compliance with section 243.520, KRS, that the notices did not constitute legal notice because they were not served on him according to law as provided in sections 624 and 625 of the Civil Code of Practice, and that H. G. Rowlette and Alfred S. Portwood had no authority to issue such notices in their respective official capacities, nor was it shown that they were authorized by the board to act for it.

It is to be noticed that the notices failed to advise appellant of the name of the minor to whom alcoholic beverages were furnished, as set out in clause 1 of the notices; or the name of the intoxicated person or persons to whom alcoholic beverages were furnished, as set out in clause 2 of the notices; and the notice is also somewhat indefinite as to the disorderly conduct permitted on the licensed premises, referred to in clause 3 of the notices. It may be conceded that the notices should have informed appellant of the names of the minor and the person under the influence of alcoholic beverages to whom alcoholic beverages were furnished, and should also have been more definite with respect to the disorderly conduct permitted on the licensed premises. Yet, since appellant entered his appearance to the notices and proceeded to a trial of the charges on the merits without making any motion or request for the board to make the notices more definite and certain in the respects indicated, we think he waived such defects and it is now too late to raise the question for the first time on appeal. While the procedure in such cases may not be governed strictly according to the Civil and Criminal Codes of Practice, yet we see no reason why the same rules with respect to waiving defects in pleadings in civil cases and in indictments in criminal cases should not be applied in the present case. And, the same reason applies to the other alleged irregularities concerning the notices, all of which, if any, appellant waived by entering his appearance and proceeding to a trial of the charges on the merits without objections.

It is next insisted that the order of revocation of the board was procured by the fraud of the investigator, Gregory Yancey who was the only witness who testified in the case, and that there was no substantial evidence to support the order of the board. Yancey testified that he was a field representative of the Kentucky Committee of the Brewing Industry Foundation which is composed of Kentucky brewers, brewers shipping into Kentucky,...