Lindsey v. State ex rel. Alcoholic Beverage Control Bd., 42521

• Citation: 476 P.2d 313
• Decision Date: 03 November 1970
• Docket Number: No. 42521,42521
• Parties: Beth J. LINDSEY, Plaintiff-In-Error, v. The STATE of Oklahoma, ex rel. the ALCOHOLIC BEVERAGE CONTROL BOARD, Defendant-In-Error.
• Court: Supreme Court of Oklahoma

Page 313

476 P.2d 313

Beth J. LINDSEY, Plaintiff-In-Error, v. The STATE of Oklahoma, ex rel. the ALCOHOLIC BEVERAGE

CONTROL BOARD, Defendant-In-Error.

No. 42521.

Supreme Court of Oklahoma.

Nov. 3, 1970.

Appeal from the District Court of Harmon County; Charles M. Wilson, judge.

Appeal from a decision and/or judgment of the District Court affirming an order of the Oklahoma Alcoholic Beverage Control Board suspending a retail alcoholic beverage dealer's license for a period of 30 days. Affirmed.

Garrett & Stumbaugh, Mangum, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Jerry H. Holland, Asst. Atty. Gen., Oklahoma City, for defendant in error.

BLACKBIRD, Justice:

The question in this appeal from the District Court's judgment upholding an order of The Oklahoma Alcoholic Beverage Control Board suspending, for a period of 30 days, the state license of the plaintiff in error to sell alcoholic beverages at retail, is whether said judgment is sufficiently supported by the evidence. The ground upon which said Board (hereinafter referred to merely as the 'Board') ordered the license suspended, upon its adoption of the findings the Director of this State's Alcoholic Beverage Act made, after a hearing before him, was that plaintiff in error, a Hollis, Oklahoma, liquor retailer, hereinafter referred to as 'Appellant', had made a sale of certain alcoholic beverages on January 14th of a certain year, in violation of certain provisions of 37 O.S.1961, §§ 537 and 538, and more particularly of Art. 2, § 6, of the Board's Rules and Regulations, which reads:

'No retailer shall engage, directly or indirectly, in any conspiracy, transaction or agreement having as its object the sale or resale, away from or off the licensed premises, of an alcoholic beverage owned, sold or delivered by such retailer, Nor shall any such retailer sell or deliver any alcoholic beverage to any person with knowledge of or with reasonable cause to believe, that the person to whom such alcoholic beverage is sold or delivered has acquired the same for the purpose of peddling or reselling the same.' (Emphasis added)

The charges, upon which the Board suspended Appellant's said license, arose out of the apprehension, by Texas authorities, of Appellant's daughter, Mrs. Linda Kessler formerly Anderson, hereinafter referred to merely as 'Linda', in the act of delivering to one Joe Willie Williams, shortly after 1:00 p.m., the same lot of alcoholic beverages she had previously purchased that day at Appellant's Hollis liquor store, on a country road about 9 1/2 miles from Childress, Texas, in one of that State's so-called 'dry' counties. When the Texas officers discovered this delivery being made by transferring the beverages from the Oldsmobile Linda had driven there from Hollis, to the Buick Williams had driven there, while both cars were parked along the side of the road, some of the bottles and/or containers of it had already been placed in Williams' car.

It was never contended that the entire lot of said beverages had not been purchased at Appellant's Hollis liquor store for resale to Williams. The only question presented in this appeal is whether or not there was sufficient evidence to warrant the court in refusing to disturb the Board's determination that Appellant sold, or delivered, the beverages to Linda with knowledge, or reasonable cause to believe, that the latter acquired them for such resale.

At the aforementioned hearing before the Director, Williams testified, in substance, that he ordered the beverages Linda, when apprehended, was attempting to deliver to him, by a long distance telephone call he placed to Hollis 'about noon' of the same day the delivery attempt was made. Williams further testified that he knew Appellant by having been 'in and out' of her store (which operated under the name of 'Beth's Package Store'), but that he didn't know her telephone number. He further testified that when he placed the call, he supplied the telephone operator with her name, and that, when the operator connected him with a Hollis telephone, a 'lady' answered it, but did not identify herself. Williams further testified, in substance, that he did not recognize the lady's voice and that he could not swear it was the Appellant, from whom he then orally ordered the beverages.

Mr. C, an agent for the Board, testified that, from the telephone company's records, he ascertained that only two telephone calls were placed through the Childress operator to Hollis on that January 14th; that both calls were made to the number listed for Appellant's package store in the Hollis telephone directory, and that the first of these calls was made at 12:17 p.m., on that day.

Appellant testified that she was the one who opened up her package store for business at 10:00 a.m., on that January 14th, and that there was no one else there then. According to Appellant, her sale of the beverages to her daughter, Linda, was made shortly thereafter, 'around 10:30'; and Linda paid her the regular price of $89.30 for the entire purchase. App...