John Malone Enterprises, Inc. v. Schaeffer

• Decision Date: 23 December 1996
• Docket Number: No. 49A05-9602-CV-70,49A05-9602-CV-70
• Citation: 674 N.E.2d 599
• Parties: JOHN MALONE ENTERPRISES, INC., Appellant-Petitioner, v. Kevin J. SCHAEFFER, Chairman, Barbara J. Glass, Vice Chairman, Gigi M. Marks, Commissioners of the Indiana Alcoholic Beverage Commission, Kevin Lambright, Intervenor-Remonstrator Below, Winford Jones, Intervenor-Remonstrator Below, Brad Miller, Intervenor-Remonstrator Below, Shipshewana Retail Merchants Association, Intervenor-Remonstrator Below, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 599

674 N.E.2d 599

JOHN MALONE ENTERPRISES, INC., Appellant-Petitioner, v. Kevin J. SCHAEFFER, Chairman, Barbara J. Glass, Vice Chairman, Gigi M. Marks, Commissioners of the Indiana Alcoholic Beverage Commission, Kevin Lambright Intervenor-Remonstrator Below, Winford Jones Intervenor-Remonstrator Below, Brad Miller Intervenor-Remonstrator Below, Shipshewana Retail Merchants Association, Intervenor-Remonstrator Below, Appellees-Defendants.

No. 49A05-9602-CV-70.

Court of Appeals of Indiana.

Dec. 23, 1996.

Bill D. Eberhard, John R. Gastineau, Steele, Ulmschneider & Eberhard, LaGrange, for Appellant-Petitioner.

Pamela Carter, Attorney General, Jon Laramore, Deputy Attorney General, Indianapolis, for Appellee, Commissioners of the Alcoholic Beverage Commission.

Philip A. Terry, McHale, Cook & Welch, P.C. Indianapolis, for Appellees, Kevin Lambright, Winford Jones, Brad Miller and Shipshewana Retail Merchants Association.

OPINION

FRIEDLANDER, Judge.

John Malone Enterprises, Inc. appeals from an order of the Marion Superior Court affirming the denial by the Alcoholic Beverage Commission of Malone's application for a license to operate a package liquor store in Shipshewana, Indiana.

We affirm.

The following restated issues are presented on appeal:

1. Did the Commission's denial of Malone's application for a retail liquor permit violate the Establishment Clause of the United States Constitution or the Freedom of Religion Clause of the Indiana Constitution?

2. Was the Commission's decision to deny the application for a retail liquor permit arbitrary or capricious, not supported by substantial evidence, or contrary to law?

3. Are the intervenors entitled to recover from Malone the fees they have incurred in defending this appeal?

Shipshewana is a small town in western LaGrange County with approximately 500 people living within its corporate boundaries. Persons adhering to Amish and Mennonite religious beliefs comprise seventy-five percent of the population of Shipshewana and Newbury Township, where Shipshewana is located. Malone applied to the Commission for a "type-217" permit to sell liquor, wine, and beer packaged for off-premises consumption at a site in the northern part of Shipshewana. At a public hearing on Malone's application held before the LaGrange County local board, remonstrators presented petitions containing 1334 signatures, including 899 with Shipshewana addresses, opposing issuance of the permit. Malone presented petitions bearing seventy-one signatures, sixty-three of which had Shipshewana addresses, supporting issuance of the permit. Ninety-five percent of the eighty-seven people who attended the local board's hearing were opposed to issuance of the permit. In addition, Kevin Lambright, the owner of the Shipshewana Auction and Flea Market, Brad Miller, a Shipshewana resident and a pastor at the Marion Mennonite Church, and Winford Jones on behalf of the Shipshewana Retail Merchants Association voiced their opposition to the issuance of the permit.

The local board voted unanimously to deny issuance of the permit, citing the following reasons: (1) The "majority of citizens and business people of Shipshewana area were not in favor of issuance of permit", (2) "[t]he community does not desire such a permit [as] shown through those present at the meeting", and (3) "[o]verwhelming objections by citizens of town & township that they do not want retail outlet. This has been the 4th. attempt." Record at 579.

The Commission preliminarily rejected Malone's application for the permit because of the local board's recommendation that the permit not be granted. At a hearing on Malone's appeal from the Commission's rejection of its application, the hearing judge viewed the videotape of the hearing held before the local board, and the content of the videotape was transcribed into the appellate record.

The appellate record reveals that Lambright testified at the hearing before the local board that he had experienced alcohol-related problems with people at the Shipshewana Auction, of which he was a co-owner, and believed that the proposed package liquor store would not help alleviate such problems. The appellate record also reveals that Miller testified before the local board that he was a resident of Shipshewana as well as the pastor of the Marion Mennonite Church and that he was speaking not only on his own behalf but also on behalf of the Shipshewana Ministers Association, which is a group of six pastors who meet monthly to discuss significant issues, such as the operation of a package liquor store, in the community. Miller stated:

We believe that the presence of a package liquor store will have a negative impact on our community and we base our belief on the following reasons. The presence of a package liquor store does not correspond to the value or identity of our community. Second of all, the easier accessibility of alcohol does several things. It brings additional problems. We are currently trying to deal with the traffic and people and vehicles generated by the flea market. With the great variety of vendors and visitors the accessibility of alcohol seems problematic. There are problems that involve minors from [sic] getting fake I.D.'s, purchase [sic] alcohol or persons of age purchasing the alcohol for them. And, last, it contributes to the visiting alcohol problem within LaGrange County. Third, the need to increase police protection. We do not have the necessary funding for full-time police protection. Four, there are pastors that are keenly aware of or have witnessed first hand the devastation and destruction of personal and family life cause [sic] by the use of alcohol. Alcohol is a significant factor related to violent behaviors, child abuse, domestic fighting, murder, etc. Alcohol is frequently a factor in tragic automobile accidents. It is to be recognized that tourism is a major industry in our community. People come to our community to experience the uniqueness of a small town. The majority do not stay overnight, however, others do stay in hotels or bed and breakfast accommodations. The accessibility of alcohol could or would cause potential problems for those who own and operate these establishments. Given the existing and potential problems stemming from the use of alcohol, we ask that you not approve the license to sell package liquor and alcohol into our community. I have three additional letters from a bishop and two other ministers, who are all in opposition to the approval of this license.

Record at 776-778.

The appellate record further reveals that Winford Jones testified before the local board both as a lifelong resident of Shipshewana and on behalf of the Shipshewana Retail Merchants Association. Jones testified that the petitions against the package liquor store were strong evidence of the community's feelings.

At the appeal hearing, the hearing judge took judicial notice of the petitions presented to the local board opposing the granting of the permit and received additional evidence. Jones, the part-owner of both a hardware store and a supermarket in Shipshewana, testified at the appeal hearing that he was the past president of the Shipshewana Retail Merchants Association and was the chairman of the Association's publicity committee and that the Association was opposed to Malone's application for a liquor store permit. When asked why the Association opposed the application, Jones stated:

Because, number 1, we feel it would not be an asset to the community, being that we try to exhibit a peaceful situation in where we have many tourists come. They want to see the Amish people. They want to see the Mennonite people. They expect to see something different, something that they perhaps don't experience in their home town. We just feel like having alcohol available in town would be a detriment to the community. I have many customers say that they appreciate that Shipshewana does not have a liquor store or a tavern in town.

Record at 794-795. When asked if the Association's position was that there was no need for the package store, Jones responded that the Association's position was that there was no desire for it.

Tim Lichte, a Mennonite minister and director of Menno-Hof, a visitor's center in Shipshewana, testified at the appeal hearing about the geography and other characteristics of Shipshewana and the surrounding community. He testified, among other things, that it is a rural agricultural community with a large population of Amish people who live in small homes, the majority of which have no electricity. The area includes a horse racing operation and stables, a number of older buildings which house small businesses related to tourism, an agricultural elevator where horse auctions attended by almost one million people per year are held on Fridays, and a flea market with some 1100 vendors. The only traffic control light is a blinking stop sign at a four-way stop. Other than a small Subway outlet located inside a convenience store, there are no fast-food franchises in Shipshewana. Although there is a blacksmith as well as a number of carriage makers in the community, there are no large retail chain stores such as Wal-Mart.

Lichte further testified that perhaps seventy-five percent of the residents of Newberry Township have an Amish or Mennonite background. He stated that, although the Amish and Mennonites share the same theology and basic beliefs, the Amish have a more visible presence in the community because of their unique dress, forms of transportation, and lifestyle. Lichte explained that Menno-Hof is a visitor's center that was built by the Mennonite and Amish community to communicate to the public accurately, truthfully, and categorically exactly who, as a people, they are. He stated that they were concerned with authenticity. He further stated that the Amish and Mennonite people in Shipshewana have to acknowledge that they are noted for being good...