Retail Liquor License No. 15, Matter of

• Decision Date: 02 August 1979
• Docket Number: No. 15,No. 9585,15,9585
• Parties: In the Matter of RETAIL LIQUOR LICENSE NO. 15 and Beer LicenseIssued to Shirley Kilgore. BOARD OF CITY COMMISSIONERS OF the CITY OF WILLISTON, a municipal corporation of the State of North Dakota, Plaintiff (Respondent Below) and Appellee, v. Shirley KILGORE, Defendant (Appellant Below) and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 170

283 N.W.2d 170

In the Matter of RETAIL LIQUOR LICENSE NO. 15 and Beer

License No. 15 Issued

to Shirley Kilgore. BOARD OF CITY COMMISSIONERS OF the CITY

OF WILLISTON, a municipal corporation of the State

of North Dakota, Plaintiff (Respondent Below) and Appellee, v. Shirley KILGORE, Defendant (Appellant Below) and Appellant.

Civ. No. 9585.

Supreme Court of North Dakota.

Aug. 2, 1979.

John H. MacMaster, City Atty., Williston, and Gene M. Haugen, Williston, Sp. Counsel (on brief), for Bd. of City Commissioners; argued by MacMaster.

Hugh McCutcheon, of Bosard, McCutcheon, Kerian, Schmidt, Holum & Rau, Minot, for defendant (appellant below) and appellant.

VANDE WALLE, Justice.

This is an appeal by Shirley Kilgore from the judgment of the Williams County district court entered October 20, 1978, in which judgment the court affirmed the order of the Board of City Commissioners of the City of Williston revoking Kilgore's retail liquor and beer licenses. We reverse.

Pursuant to Section 5-02-11, N.D.C.C., an appeal from an order revoking a retail license is to follow the procedures set forth in the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C. Accordingly, this court will review the decision of the Board of City Commissioners pursuant to Section 28-32-19, N.D.C.C., and will affirm such decision only if the conclusions and decision of the Board are supported by its findings of fact and the findings of fact are supported by a preponderance of the evidence. See Wolf v. North Dakota Workmen's Compensation Bureau, 267 N.W.2d 785 (N.D.1978); Haugland v. North Dakota Employment Security Bureau, 218 N.W.2d 181 (N.D.1974).

In all cases which may be appealed under the Administrative Agencies Practice Act it is necessary that findings of fact are drawn to indicate the underlying basis for the board's or agency's initial decision. In the instant case, no findings of fact were prepared by the Board. Consequently, the appeal process is seriously impeded. Although a remand for findings of fact would be appropriate, we believe that in this case it is not necessary for a proper disposition by this court. In order to avoid delay for the parties involved, we will not remand for findings of fact in this instance. ¹

Article II, Section 3.29, of the Williston City Code requires a person to obtain a local license in order to "sell, exchange, dispose of or keep for sale any intoxicating beverages, . . ."

Article II, Section 3.38, requires an applicant to be a resident of the city for at least 30 days prior to filing of the application. It provides, in pertinent part:

"No retail license or licenses shall be issued to any applicant unless he is a legal and bona fide resident and citizen of the state and has been a resident of the city for at least thirty (30) days prior to the filing of the application." ²

Article II, Section 3.45, sets forth the causes for which a license may be revoked, canceled, or suspended. Those portions of Section 3.45 relevant to this appeal provide:

"Licenses issued pursuant to this chapter may be revoked, cancelled or suspended for the following causes:

"(e) When the licensee ceases to be a legal bona fide resident of the city.

"(h) When the licensee has made false statements in his application for license.

"Such causes as hereinbefore described shall not be deemed to be exclusive and such license may be terminated at any time by the board of city commissioners and such license revoked or suspended for any cause deemed by the board to be sufficient cause and justified by reason of public health or public morals. . . ."

Kilgore contends on appeal that the provisions of the Williston City Code requiring an applicant to be a resident of the city are void because they are pre-empted by and are in conflict with the State licensing provisions. We do not agree with this contention.

Subsection 5 of Section 5-02-02, N.D.C.C., clearly demonstrates that the State has not pre-empted licensing of the sale of alcoholic beverages:

"No retail license shall be issued to any person unless the applicant shall file a sworn application, accompanied by the required fee, showing the following qualifications:

"5. Applicant for a state license must have first secured a local license."

Furthermore, Subsections 24 and 29 of Section 40-05-01, N.D.C.C., give the municipalities specific licensing authority as follows:

"The governing body of a municipality shall have the power:

"24. Licenses. To fix the amount, terms, and manner of issuing and revoking licenses;

"29. Alcoholic beverages. To regulate the use and to regulate and license the sale of alcoholic beverages subject to the provisions contained in title 5, Alcoholic Beverages; . . ."

We find no basis upon which to conclude that the Williston city residency requirements are pre-empted by, contrary to, or in conflict with the State licensing laws. We conclude that such city requirements are valid.

The notice of hearing alleged the following violations upon which revocation of Kilgore's licenses was sought:

"That you knowingly made false representations on your applications for said licenses for the purpose of inducing the Board of City Commissioners for the City of Williston to issue you licenses to sell alcoholic beverages and beer at retail, and that said false representations consisted of false information pertaining to your status as a legal bona fide resident of the City of Williston, when in truth and in fact you were a resident of Williston Township, Williams County, North Dakota."

A careful examination of the hearing transcript reveals the following pertinent facts: During July 1969 Kilgore purchased a home at 718 First Avenue East in Williston. She resided there through 1971 except for a time during that period when she leased the main floor and moved to California to do some research. During March 1974 Kilgore sold the house located at 718 First Avenue East, but she continued to rent a room in the basement of that house until April of 1977. Although Kilgore testified that she actually resided in that basement room, there is sufficient evidence...