Jumbo, Inc. v. State ex rel. Branch

• Decision Date: 20 February 1970
• Docket Number: No. 8938,8938
• Parties: JUMBO, INC., d/b/a the Office Bar, Petitioner-Appellant, v. STATE, ex rel. Turner W. BRANCH, Chief, Division of Liquor Control, State of New Mexico, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 280

465 P.2d 280

81 N.M. 223

JUMBO, INC., d/b/a the Office Bar, Petitioner-Appellant, v. STATE, ex rel. Turner W. BRANCH, Chief, Division of Liquor Control, State of New Mexico Respondent-Appellee.

No. 8938.

Supreme Court of New Mexico.

Feb. 20, 1970.

Domenici & Bonham, Albuquerque, for petitioner-appellant.

James A. Maloney, Atty. Gen., Robert J. Young, Asst. Atty. Gen., Santa Fe, for respondent-appellee.

OPINION

MOISE, Chief Justice.

Appellant, holder of a state liquor license, was found by the liquor control hearing officer to have violated the Liquor Control Act (§§ 46--1--1 to 46--11--4, incl., N.M.S.A.1953). An order was issued suspending appellant's dispenser's license for a period of fifteen days. On review in the district court of Santa Fe County, the action of the hearing officer was affirmed. Appellant's first point is a technical procedural one, which is of first impression in New Mexico. He argues that the suspension order was fatally defective in that the record, made before the hearing officer, reviewed by the trial court and now before us, did not contain a copy of the charge and a copy of the order to show cause, as required by § 46--6--4(I)(2), N.M.S.A.1953. That statute, so far as material, reads:

'I. At any hearing on an order to show cause the liquor control hearing officer shall cause to be made a record of hearing which shall record * * * (2) the nature of the proceedings including a copy of the charge and a copy of the order to show cause, each showing the return of service thereof. * * *'

Appellant relies heavily on Brockmeyer v. Ohio Real Estate Comm., 5 Ohio App.2d 161, 214 N.E.2d 265 (1966), as authority supporting its position that the omission of the documents required by the statute makes the action of the district court erroneous and a reversal mandatory. In that case the record certified by the agency was incomplete in that it did not contain the agency's order. On appeal it was held that the statute specifically required the reversal of the trial court's order affirming the action of the agency because the record certified was not complete in view of the omission. Young v. Bd. of Review, Dept. of State Personnel, 9 Ohio App.2d 25, 222 N.E.2d 789 (1967), is a later case applying the rule.

In the instant case we see no way to avoid a similar result. The statute involved here is mandatory in its requirements. Absent the complaint and order to show cause, the record does not disclose the charge. In addition, the findings of the hearing officer to the effect that 'the charge set forth in the paragraphs 3, 4 and 5 have been proven' add nothing to an understanding of the charges. Certainly, the proof introduced at the hearing discloses testimony concerning alleged sales of alcoholic beverages to a named minor on particular dates, and so we may infer that this was the nature of the charges. However, this is not sufficient in our view. The complete record required by the statute must necessarily have been before the district court before it could review the action of the hearing officer and, in turn, before us before we can determine the correctness of the holding there. Compare State ex rel. Transcontinental Bus Service v. Carmody,53 N.M. 367, 208 P.2d 1073 (1949).

Appellee would avoid the effect of the omission by the hearing officer by the argument that...