Mandacina v. Liquor Control Bd. of Review of City of Kansas City, WD30816

• Decision Date: 05 May 1980
• Docket Number: No. WD30816,WD30816
• Citation: 599 S.W.2d 240
• Parties: John MANDACINA, Plaintiff-Appellant, v. The LIQUOR CONTROL BOARD OF REVIEW OF the CITY OF KANSAS CITY, Mo., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 240

599 S.W.2d 240

John MANDACINA, Plaintiff-Appellant, v. The LIQUOR CONTROL BOARD OF REVIEW OF the CITY OF KANSAS CITY, Mo., Defendant-Respondent.

No. WD30816.

Missouri Court of Appeals, Western District.

May 5, 1980.

Robert G. Duncan, Duncan, Russell & Reardon, Kansas City, for plaintiff-appellant.

Aaron A. Wilson, City Atty., Rex G. Bostwick, Asst. City Atty., Kansas City, for defendant-respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

DIXON, Judge.

This appeal is from a circuit court order affirming a decision of the Liquor Control Board of the City of Kansas City, Missouri, denying Mandacina's application for renewal of his liquor permit.

Judicial review of a contested case required a determination of whether the administrative agency decision was based on competent and substantial evidence based on the whole record and is authorized by law. Article V, § 18 Missouri Constitution; Supreme Court of Missouri Rule 100.07(b); § 536.140.2 RSMo 1978; Tonkin v. Jackson County Merit System Comm'n, et al., 599 S.W.2d 25 (Mo.App.1980); Farmer's Bank of Antonia v. Kostman, 577 S.W.2d 915, 921 (Mo.App.1979). That determination is made difficult by the incompleteness of the record on this appeal.

For example, parties have briefed and argued the case upon the assumption that the issue to be determined is the construction and applicability of certain provisions of the Kansas City ordinances relating to the issuance and renewal of permits. None of these ordinances were ever introduced in evidence either before the administrative body nor in the circuit court. They appear before this court only as they are contained in the briefs filed here or in the circuit court. Ordinarily, the defect in the record of a failure to introduce the ordinances would be fatal to our determination of the appeal. However, since Mandacina, as the moving party both before the Director of Liquor Control, the Liquor Control Board of Review, and the circuit court, relied upon the applicable ordinances, they would be considered "admitted" and may be considered on the authority of State ex rel. Bruno v. Johnson, 270 S.W.2d 99 (Mo.App.1954).

This case poses another question with respect to the adequacy of the record because this court has neither the application Mandacina filed nor the record of the federal court decision around which the controversy centers. There appears to be no valid reason, however, why the principle of Bruno should not apply to the application and the federal court ruling since Mandacina relies on these as well in his appeal. Most of the transcript of the hearing before the Board of Liquor Control consists of statements of counsel concerning the federal court proceedings and their legal effect. Mandacina's counsel asserted he had pled guilty to a felony count of selling guns without a license and two misdemeanor counts of selling guns stolen from an interstate shipment. The Director was apparently aware of Mandacina's pleas, and there is no hint that Mandacina failed to disclose his convictions on his permit application. As gleaned from the briefs and pleadings, the disputed issue is the effect of this federal court proceeding upon the right of Mandacina to a permit.

It was the position of Mandacina before the Liquor Control Board (as evidenced by his attorney's statements) that despite the fact that Mandacina had pled guilty to three counts of a federal indictment, one for felony and two for misdemeanors, he was not "convicted" within the meaning of the Kansas City ordinances. The argument is made that despite his plea of guilty, no "conviction" ensued because the federal court imposed no sentence on the felony count. Mandacina, for this position, relies upon Meyer v. Missouri Real Estate Commission, 238 Mo.App. 476, 183 S.W.2d 342 (1944) and State v. Frey, 459 S.W.2d 359 (Mo.1970).

Two subsequent cases in this court affirm the principle of Meyer, Simon v. Missouri State Board of Pharmacy, 570 S.W.2d 334, 336 (Mo.App.1978) and Warren v. Director, Missouri Division of Health, 565 S.W.2d 740, 743 (Mo.App.1978). It was specifically argued in Warren that under federal law a suspended imposition of sentence constitutes a conviction and that, therefore, the federal law should control the definition of the word conviction. That view was specifically rejected in Warren.

Mandacina carries the argument one step further by asserting that, since there was no "conviction," he is entitled to a permit because neither the Director of Liquor Control nor the Liquor Control Board weighed and judged the circumstances of the offense to determine whether or not Mandacina was entitled to the benefit of a claimed exception with respect to a conviction under § 4.38(e), Ordinances of Kansas City. This latter contention, which lies at the heart of this appeal and is the only issue raised by Mandacina, requires a consideration of the Kansas City Ordinances.

Section 4.38 relating to employee permits provides generally for the conditions and procedures for obtaining such permits. It specifically provides that upon expiration of a permit the renewal shall be in the same manner as that required for an original permit. Thus, in the instant case, Mandacina's application for a renewal is to be judged upon the same basis as if it were an original application.

Essential to this court's analysis is another ordinance not admitted and made a part of this record. It is considered by this court, however, under the authority of the general rules of statutory construction that in seeking to ascertain legislative intent from the words of the statute, reference must be made to the whole act. Springfield General Osteopathic Hospital v. Industrial Comm'n, 538 S.W.2d 364, 369 (Mo.App.1976). Such rules of...