Simpson v. Oklahoma Alcoholic Beverage Control Bd.

• Decision Date: 28 December 1965
• Docket Number: No. 41033,41033
• Citation: 409 P.2d 364
• Parties: Sally C. and Daniel C. SIMPSON, d/b/a Warehouse Liquor Store, 417 East 11th Street, Tulsa, Oklahoma, Plaintiffs in Error, v. OKLAHOMA ALCOHOLIC BEVERAGE CONTROL BOARD, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 364

409 P.2d 364

1965 OK 206

Sally C. and Daniel C. SIMPSON, d/b/a Warehouse Liquor

Store, 417 East 11th Street, Tulsa, Oklahoma, Plaintiffs in Error, v. OKLAHOMA ALCOHOLIC BEVERAGE CONTROL BOARD, Defendant in Error.

No. 41033.

Supreme Court of Oklahoma.

Dec. 28, 1965.

Syllabus by the Court

1. Where a section of the Alcoholic Beverage Control Act and the rules and regulations promulgated thereunder does not specifically provide for a penalty provision, the enforcement of said section or rule is governed by the general penalty provisions of Title 37 O.S. 528.

2. When a licensed liquor retailer commits an act in such a careless and wanton manner that is inexcusable, the act is deemed to have been done willingly and knowingly.

3. Substantial compliance with the statutory provisions as to Notice of Contemplated Suspension is sufficient, if the Notice fully informs and apprises the licensee of the charges against him.

Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Appeal by Sally C. Simpson and Daniel C. Simpson, d/b/a Warehouse Liquor Store, from a judgment of the District Court of Tulsa County sustaining an order of the Oklahoma Alcoholic Beverage Control Board suspending their retail beverage license. Affirmed.

Brown & Garrison, Tulsa, for plaintiffs in error.

Charles Nesbitt, Atty. Gen., Burck Bailey, Asst. Atty. Gen., for defendant in error.

HODGES, Justice.

This is an appeal from a judgment of the District Court of Tulsa County, Oklahoma, sustaining an order of the Oklahoma Alcoholic Beverage Control Board suspending a retail beverage license of Sally C. Simpson and Daniel C. Simpson, d/b/a Warehouse Liquor Store.

The record discloses that the licensees inherited the Warehouse Liquor Store in Tulsa, Oklahoma from their mother who was accidentally killed in an automobile collision in July, 1961. The liquor store continued to be operated by a manager employed by their mother until January 1, 1962, when the licenses were issued a retailer's liquor license and subsequent thereto the licensee, Daniel C. Simpson, personally assumed managerial operation of the business.

On November 21, 1962 the licensees were charged with three counts of violating the Oklahoma Beverage Control Act. At a hearing conducted by the Director of the ABC Board the licensees were found guilty of two counts:

(1) Danny Cox Simpson did sell eight cases of assorted alcoholic beverage to a known bootlegger and former holder of a Federal Tax Stamp.

(2) The said eight cases of assorted alcoholic beverage were sold without having been stamped with the retail license number 7838 on each of the bottles.

The Director suspended the retail liquor license for 15 days on the first count and 5 days on the second to run concurrently and the third count was dismissed.

The decision of the Director was sustained by the ABC Board with the exception that the penalty on the first count was reduced to ten days.

An appeal was then taken to the District Court of Tulsa County, Oklahoma, where the trial court specifically found the licensees 'guilty of wilfully and knowingly selling alcoholic beverages on November 8, 1962, without first affixing the retail license number to bottles containing said alcoholic beverages' and ordered the retail liquor license suspended for a period of five days. A motion for new trial was overruled by the trial judge and the licensees have perfected their appeal to this court.

The licensees contend that the ABC Board must show by a preponderance of the evidence that the licensees 'willfully' failed to stamp the bottles.

Title 37 O.S. 514 provides in part as follows:

'The Board shall have the following powers and duties:

* * *

* * *

(2) To promulgate rules and regulations, in the manner herein provided, to carry out the purposes of this Act;

* * *

* * * The following applicable rules and regulations were promulgated by the Board pursuant to its authorization:

Article 1, Section 5:

'Licensees are at all times responsible for the conduct of their business and are at all times directly responsible for any act or conduct of any employee, which is in violation of the Act or the Rules and Regulations of the Board whether the licensee be present at any such time or not. This section is defined to mean that any unlawful, unauthorized, or prohibited act on the part of any agent or employee shall be construed as the act of the employer, and the employer shall be proceeded against as though he were present and had an active part in such unlawful, unauthorized, or prohibited act, and as having been at the employer's direction and with his knowledge.'

Article II, Section 27:

'All retail dealers are required * * * to affix by means of a rubber stamp or gummed labels, the dealers retail license number on a label of each container of alcoholic beverages within his premises, except beer * * * no retailer shall have within his licensed premises any container of alcoholic beverages which does not bear his license number stamped thereon as above required.'

The licensees argue that a violation of the rules and regulations as alleged by the Board is governed by Title 37 O.S. 528 which provides:

'(1) Any license issued hereunder shall, by order of the Board, after due notice and hearing: (a) be revoked, or suspended for such period as the Board deems appropriate, if the Board finds that the licensee has wilfully violated any of the provisions of this Act * * *.'

In Oklahoma Alcoholic Beverage Control Board v. Milam, Okl., 393 P.2d 823, the Licensee was charged with a violation of the rules and regulations by furnishing a rebate on purchases to several retail liquor stores. There the acts of violations were committed by employees of the wholesaler without his knowledge or consent. We held that '[t]he weight of the Board's argument must be considered in light of the effect of that part of 37 O.S.1961 § 528 [supra],' and that the ABC Board had no authority to suspend a license without a showing and finding of willful violation on the part of the licensee. In Oklahoma Alcoholic Beverage Control Board v. Naifeh, Okl., 388 P.2d 885, cited by the Board in the present case, the licensee was specifically charged in violation of 37 O.S. 536 which prohibited the distribution of 'free goods.' We held that the word 'willfully' does not appear in 37 O.S. 536, supra, and the question as to whether a violation must be willful was not an issue; that whenever a licensee donates alcoholic beverages, regardless of the purpose or intent, he violates the statute. This section of the Act specifically provided for its own penalty of suspension, cancellation or revocation of a license and therefore the general penalty provision as provided in 37 O.S. 528 was not applicable.

In the present case the licensees were charged with violation of the rules and regulations promulgated by the ABC Board under authority of the Alcoholic Beverage Control Act. The penalty for enforcement of such rules and regulations is governed by 37 O.S. 528.

The question then arises as to the meaning and effect of the word 'willfully' as provided in section 528. In this respect the licensees contend the evidence was wholly insufficient to sustain the findings and judgment of the trial court.

In Oklahoma Alcholic Beverage Control Board v. Milam, supra, we said the word 'willfully' is of similar import or the equivalent of 'knowingly' and further said:

'It is our interpretation of the Act itself that the word 'willfully' in said sec 528, in connection with suspension of the license,...