Owens v. Montana Dept. of Revenue

• Decision Date: 22 February 2006
• Docket Number: No. 05-306.,05-306.
• Citation: 331 Mont. 166,2006 MT 36,130 P.3d 1256
• Parties: Yvonne M. OWENS, Licensee, Dumas Walker's Cowboy Bar & Saloon, Petitioner and Appellant, v. MONTANA DEPARTMENT OF REVENUE, Respondent and Respondent.
• Court: Montana Supreme Court

130 P.3d 1256

2006 MT 36

331 Mont. 166

Yvonne M. OWENS, Licensee, Dumas Walker's Cowboy Bar & Saloon, Petitioner and Appellant, v. MONTANA DEPARTMENT OF REVENUE, Respondent and Respondent.

No. 05-306.

Supreme Court of Montana.

February 22, 2006.

OPINION and ORDER

¶ 1 Before this Court is Yvonne Owens' pro se appeal from an Order of the District Court for the Eleventh Judicial District, Flathead County, affirming a decision of the Montana Department of Revenue (the DOR) that Owens' bar and casino is within the five-mile boundary distinguishing between city and county all-beverages licenses and, thus, that Owens' county all-beverages license should be revoked. For the reasons set forth herein, we dismiss this appeal without prejudice to the merits.

PROCEDURAL BACKGROUND

¶ 2 The following background is taken from the parties' briefs and is set forth merely to establish the procedural posture of this case. Since we are dismissing this appeal without prejudice and for further review, none of the following are to be construed as the law of the case. If the case comes before us in a second appeal, we will review this matter de novo based on the decision of the District Court and on the briefs of the parties filed at that time under our applicable standards of review.

¶ 3 In 1996, Yvonne Owens purchased land outside of the Kalispell city limits for the purpose of opening a bar and casino. Owens purchased the land from Tom Sands, a certified land surveyor. Prior to the sale, Sands told Owens that he believed the land was within five miles of the Kalispell city limits. Thus, Owens would need to obtain a city all-beverages license, which can cost upwards of $400,000, in order to operate her bar and casino. However, after purchasing the property, Owens applied for a county all-beverages license, which is far less expensive than a city all-beverages license and easier to obtain.

¶ 4 Section 16-4-201, MCA, and Rule 42.12.130, ARM, establish quotas for all-beverages licenses within five miles of incorporated cities and towns as well as quotas for all-beverages licenses outside of the five-mile limits. In order to obtain a county all-beverages license, Owens was required to submit an application with a certified survey affidavit attesting that her property is more than five miles from the Kalispell city limits.

¶ 5 After contacting several local surveyors, Owens hired Christopher Balstad of Polson. Balstad did not conduct a radial survey as required by Rule 42.12.130(2)(a), ARM, and instead, used a map and a ruler to determine the distance of the bar to the city limits, an admittedly imprecise method. Balstad later testified that, by his calculations, Owens' property was 5¼ miles from the Kalispell city limits. Hence, Balstad signed a certified survey affidavit attesting that Owens' bar and casino is "more than five miles from the incorporated city of Kalispell." Based on the information provided by Owens and an investigation into Owens' background by the Department of Justice (the DOJ), the DOR issued a county all-beverages license for Owens' bar, Dumas Walker's Cowboy Bar & Saloon, effective July 1, 1997.

¶ 6 In March 1998, the DOJ received information from several sources indicating that Owens' bar was less than five miles from the Kalispell city limits and was, therefore, in violation of § 16-4-201, MCA, and Rule 42.12.130, ARM. Both the DOJ and the DOR decided that a certified radial survey by a certified land surveyor needed to be performed to determine the actual distance from Owens' bar to the Kalispell city limits.

¶ 7 The DOR hired Eby and Associates (Eby) to perform the survey. Eby concluded that Owens' bar was 4.911 miles from the Kalispell city limits, therefore, Owens was not eligible for a county all-beverages license under Montana law. Based on this survey, the DOR concluded that Owens had provided false information on her application and that the license she had been issued was invalid. Consequently, on November 10, 1999, the DOR issued a Notice of Revocation of License to Owens pursuant to § 16-4-406, MCA.

¶ 8 Thereafter, Owens retained legal counsel and requested an Administrative Hearing before the DOR. A hearing in the matter was held on March 8 and 9, 2001, before the DOR's Office of Dispute Resolution. The Hearing Examiner issued his Findings of Fact, Conclusions of Law, Memorandum Opinion, and Proposed Order on January 2, 2002, wherein he recommended that Owens' county all-beverages license be revoked for the reasons advanced by the DOR. Owens filed exceptions and objections to the Proposed Order and the DOR filed a response brief. The Director of the DOR heard oral argument on March 18, 2002, and issued a Final Agency Decision on September 4, 2002, ruling in favor of the DOR.

¶ 9 On October 4, 2002, Owens filed her petition for judicial review in the District Court for the Eleventh Judicial District, Flathead County. Both parties included various documents and exhibits with their briefs. It appears that the District Court reviewed those documents in making its decision rather than the administrative record because the DOR failed to submit the administrative record to the District Court.

¶ 10 On January 27, 2005, the District Court entered judgment in favor of the DOR. Owens subsequent Motion to Alter or Amend Judgment was denied by the District Court and she appealed. Both parties have since filed their briefs on appeal with this Court.

DISCUSSION

¶ 11 In its response brief on appeal, the DOR noted that:

[a] procedural error occurred...