Jones v. Reed

• Decision Date: 03 December 1979
• Docket Number: No. 79-168,79-168
• Citation: 590 S.W.2d 6,267 Ark. 237
• Parties: Theodore JONES et al., Appellant, v. W. C. REED et al., Appellees.
• Court: Arkansas Supreme Court

Page 6

590 S.W.2d 6

267 Ark. 237

Theodore JONES et al., Appellant, v. W. C. REED et al., Appellees.

No. 79-168.

Supreme Court of Arkansas.

Dec. 3, 1979.

Theodore Jones, pro se.

Robert R. Cortinez, John W. Bailey, Little Rock, for appellees.

FOGLEMAN, Justice.

This is an appeal from the judgment of the circuit court affirming the decision of the Alcohol Beverage Control Board (hereafter called Board) transferring a private club mixed drink permit held by VFW Post 9095 from one address or location to another in Little Rock. Since appellants have not demonstrated error in the circuit court proceedings and judgment, we must affirm.

The proceeding was commenced by the filing of an "Affidavit of Transfer" by "W. C. Reed, VFW Post 9095" on May 18, 1978. It was actually an application for the transfer of "Retail Liquor Permit No. 233" from 7300 West 12th Street in Little Rock to 1211 Gamble Road in the same city. It was alleged in that application that the premises to which the transfer was sought were owned by VFW Post 9095. On June 28, 1978, appellants and others alleged to be 294 in total number, filed a petition with the Board opposing the transfer. On July 11, 1978, a hearing was held before a hearing officer on the transfer application. The report of the hearing states that it was held on the applications of VFW Post 9095 and W. C. Reed, its managing agent, for a transfer of location of "On Premise Consumption, Private Club, Permit # 233 and Retail Beer Permit # 3990." On July 18, 1978, Karen Jones, Director of Alcoholic Beverage Control Division, denied the application for transfer. That decision was appealed to the Board. At a hearing held by the Board on October 18, 1978, the decision of the Director was reversed and the transfer granted.

On November 14, 1978, Theodore Jones, J. L. Herring and Gerold Grigsby, appellants here, filed a petition for judicial review in the circuit court. The circuit court's judgment affirming the Board's decision was entered January 29, 1979. Appellants list eight points for reversal. They are:

I

THE COURT ERRED IN FINDING THAT A FULL AND COMPREHENSIVE HEARING WAS CONDUCTED BY THE ALCOHOLIC BEVERAGE CONTROL AS EVIDENCED BY THE TRANSCRIPT AND EXHIBITS FILED HEREIN.

II

THE COURT ERRED IN CONCLUDING THAT SUCH MATTERS PERTAINING TO PRIVATE CLUBS ARE PROVIDED FOR ONLY IN ACT 132 OF 1969.

III

THE CIRCUIT COURT ERRED WHEN IT CONCLUDED AS A MATTER OF LAW TO WIT: "2. ACT 189 OF 1973 (48-311 ARK.STATS.ANN.) SPECIFICALLY STATES THAT IT AMENDS SECTION 7 OF ARTICLE 3 OF ACT 108 OF 1935, AS AMENDED," WHICH IS THE THORNE LIQUOR ACT, AND THE COURT HELD IN HINTON V. STATE, 246 ARK. 341, 438 S.W.2d 57, "THAT THE THORNE LIQUOR ACT, ACT 108 OF 1935, AS AMENDED DOES NOT COVER ISSUANCE OF PRIVATE CLUB PERMITS." THEREFORE, 48-311 ARK.STATS.ANN. DOES NOT APPLY.

IV

THE COURT ERRED WHEN IT CONCLUDED AS A MATTER OF LAW, TO WIT: 3. "THAT ACT 132 OF 1969 DOES NOT SET OUT ANY METHOD OF APPEAL FROM ISSUANCE OF A PERMIT BY ALCOHOLIC BEVERAGE CONTROL FOR LICENSES TO PRIVATE CLUBS; THEREFORE, APPEALS MUST BE TAKEN UNDER ARK.STATS.ANN. 5-701 ET SEQ., WHICH IS THE ADMINISTRATIVE PROCEDURE ACT."

V

THE COURT ERRED IN DEPRIVING APPELLANTS TRIAL DE NOVO BY JURY AND JUSTIFYING ITS JUDICIAL REVIEW BY CITING IN ITS ORDER: "4. IN 5-713 ARK.STATS.ANN. SUBPARAGRAPH (g) IT IS PROVIDED 'THE REVIEW SHALL BE CONDUCTED BY THE COURT WITHOUT A JURY AND SHALL BE CONFINED TO THE RECORD, EXCEPT THAT IN CASES OF ALLEGED IRREGULARITIES IN PROCEDURE BEFORE THE AGENCY, NOT SHOWN IN THE RECORD, TESTIMONY MAY BE TAKEN BEFORE THE COURT.' "

VI

THE COURT ERRED IN SUSTAINING AND AFFIRMING THE ALCOHOLIC BEVERAGE CONTROL "BOARD DECISION" GRANTING APPELLEE W. C. REED PRIVATE CLUB PERMIT NO. 233, RETAIL BEER PERMIT NO. 3990 AND TRANSFER OF LOCATION.

VII

THE COURT ERRED IN AFFIRMING THE ALCOHOLIC BEVERAGE CONTROL BOARD'S DECISION PERMITTING PRIVATE CLUBS ON PREMISES DISPENSING AND CONSUMPTION OF ALCOHOLIC BEVERAGE WITHIN 200 YARDS OF A CHURCH.

VIII

THE COURT ERRED IN AFFIRMING THE DECISION OF THE A.B.C. BOARD IN THAT THE "BOARD DECISION" FAILED TO MAKE EXPLICIT AND CONCISE FINDINGS OF FACTS AND CONCLUSIONS OF LAW SEPARATELY STATED AS MANDATED IN 5-710 ARK.STATS.ANN.

I

Appellants contend that their witnesses were not heard by the Board. They cite Ark.Stat.Ann. § 5-708(c) (Repl.1976), which provides that in every case of adjudication by an agency subject to the provisions of the Arkansas Administrative Procedure Act (as the Board is, see Byrd v. Jones, 263 Ark. 406, 565 S.W.2d 131) opportunity shall be afforded all parties to present evidence and argument on all issues involved. Appellants complain that the Board failed to comply with this provision by refusing to hear five or six witnesses they planned to call at the hearing before the Board, and by denying their offer of witnesses to prove variances from the truth in the Alcoholic Beverage Control Report submitted on June 7, 1978, by A. D. Evans, an agent of the Board.

Appellant Theodore Jones was spokesman for those objecting to the transfer. The chairman of the Board asked him how many witnesses he planned to call. When Jones responded "five or six," the chairman asked Jones if he knew what the witnesses would testify and the general nature of their testimony. The following exchange between the chairman and Jones ensued:

T. Jones: "I propose to show that a number of the people actually attend this church regularly. Have regularly attended this church in the past on a regular basis, that's one of the things. Would you stipulate to that?"

Ratton: "I think we would so stipulate. How many of these people have attended this church regularly on a weekly basis?"

Bailey: "That'd be five."

Ratton: "All right sir. We will so stipulate that there's five people who regularly, conscientiously attend that church for the services."

Jones later stated, "We have five, acting, participating members in our church" and that he was the operator of a junkyard on the premises where the church was located.

One of the grounds of objection by appellants was that the proposed "liquor outlet" was too close to a church. Since the Board accepted Jones' statement as to the testimony of these witnesses, appellants were not prejudiced by this action of the Board, which is admonished to exclude unduly repetitious evidence. See Ark.Stat.Ann. § 5-709(d) (Repl.1976). Appellants' spokesman did not state anything that these witnesses would testify other than the matters set out above.

Appellants contend that on another occasion, they were denied the opportunity to present witnesses to prove variances from the truth in the Alcoholic Beverage Control Report. We cannot consider this argument because the abstract of the record does not reveal what witnesses were to be called, what "variances from the truth" there were in the report, or any statement pertaining to the testimony these witnesses might have given. Actually the abstract does not show anything pertaining to a denial of the right of appellants to present evidence, other than that pertaining to the church. We can only rely upon the abstract of the record, as it constitutes the record on appeal. Corning Bank v. Bank of Rector, 265 Ark. 68, 576 S.W.2d 949.

Appellants have failed to sustain this point or to demonstrate any violation of the equal protection and due process requirements of the Fourteenth Amendment to the United States Constitution which they assert in their argument on this point. We also note that the abstract of appellants' petition for review of the Board's action did not raise any issues as to violations of the United States Constitution.

II

Appellants' argument on this point is totally devoid of any foundation. Act 132 of 1969 (Ark.Stat.Ann. §§ 48-1401 48-1418 (Repl.1977)) is a comprehensive act covering the subject of sale of alcoholic beverages for "on-premises consumption." It includes a section (§ 10) governing private club permits. See Ark.Stat.Ann. § 48-1410 (Repl.1977). Appellants read the preamble and §§ 1 and 12 of the act to require the application of Ark.Stat.Ann. § 48-311 (Repl.1977) to private club permits. That part of the preamble quoted by appellants reads:

AN ACT to Reaffirm and Strengthen the State's Policy of Strict Enforcement of the Liquor Laws of This State; * * * to Provide for the Licensing Is Authorized; to Provide for the Licensing of Private Clubs in Which Alcoholic Beverages May Levy Taxes on Alcoholic Beverages Sold for On-Premises Consumption; to Authorize Cities and Counties to Levy Taxes and Fees Thereon; and for other Purposes.

The portions of § 1 relied upon by them are:

The General Assembly hereby reaffirms the policy of this State to strict enforcement of alcoholic beverage control laws * * * The General Assembly hereby authorizes and directs all law enforcement officials to enforce strictly the alcoholic beverage laws of this State.

Section 12 of the act reads:

"The Board is authorized to adopt and enforce reasonable rules and regulations governing the qualifications for permits hereunder, The operation of licensed premises, and otherwise Implementing and effectuating the provisions and purposes of this Act, and, in so doing, Shall be guided, insofar as pertinent, By rules and regulations now or hereafter applicable to retail liquor outlets. Nothing in this Act, however, shall be construed as limiting the power of other proper State or local governmental bodies to regulate the operation of establishments under this Act as may be necessary for the protection of public health, welfare, safety, and morals." (Emphasis as supplied by appellants.)

A policy declaration that liquor laws should be strictly enforced certainly is not a legislative declaration requiring the application of all existing statutes governing intoxicating liquor permits to the "on-premises consumption" type of permit. The direction by the General Assembly that the Board, in adopting rules and regulations governing...