Sportservice Corp. v. Department of Public Safety

• Decision Date: 09 April 1974
• Docket Number: No. 5915,5915
• Citation: 293 So.2d 530
• Parties: SPORTSERVICE CORPORATION v. The DEPARTMENT OF PUBLIC SAFETY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 530

293 So.2d 530

SPORTSERVICE CORPORATION v. The DEPARTMENT OF PUBLIC SAFETY et al.

No. 5915.

Court of Appeal of Louisiana, Fourth Circuit.

April 9, 1974.

Rehearing Denied May 10, 1974.

William J. Wegmann, Michael D. Charbonnet; Racivitch & Wegmann, New Orleans, for Sportservice Corp., plaintiff-appellant.

Robert L. Roshto, for Commission on Alcoholic Beverage Control, Baton Rouge, defendant-appellee.

Before STOULIG and BOUTALL, JJ., and MARCEL, J. Pro Tem.

BOUTALL, Judge.

The Commission on Alcoholic Beverage Control, after a hearing, revoked the 1972 State Retail Liquor Permit and two 1972--1973 State Retail Beer Permits held by Sportservice Corporation, the appellant herein. The corporation appealed to the Twenty-Fourth Judicial Court for the Parish of Jefferson and that court issued judgment reversing the revocation of the liquor permit, but maintaining the revocation of the two beer permits. From that portion of the judgment revoking its two beer permits, Sportservice Corporation has taken this appeal.

The Commissioner, appellee herein, has filed a motion to dismiss the appeal based upon two grounds: 1. That the appeal bond was not timely filed, and hence we have no jurisdiction to entertain the appeal; and 2. that the appellant has voluntarily surrendered its permits and the matter is moot. As to the first of these, that is, the timely filing of the appeal bond, we have made inquiry into the facts on our own motion to determine if we had jurisdiction, and we have previously ruled that the appeal bond was timely filed. For this reason we see no need to discuss that contention.

As to the second contention, that is, that the appellant has given up its beer permits and the issue is moot, we find no reason to dismiss. The motion alleges that on February 15, 1973 a Louisiana Corporation known as Louisiana Sportsystems, Inc., filed application for permits to sell beer at the very same locations wherein appellant previously did business, and that at the same time appellant surrendered its permits for cancellation, whereupon the new corporation was granted permits. The motion further discloses that the principal stockholders of Louisiana Sportsystems, Inc. are the very same people who are the interested parties in this suit. Under these allegations, we would ordinarily feel compelled to remand the matter to the District Court for evidence upon which to base a determination as to this issue, but here we feel that it is not necessary. At the time stated there was still pending in the District Court a motion for a new trial, which was not decided until April 19, 1973. The record further discloses a stipulation between all the parties that at the time of the administrative hearing all of the permits were valid and outstanding, and the evidence dicloses that the same situation pertained at the time of trial. Thus the Commissioner was well aware of these circumstances at a time when he could have made complaint to the lower court and had consideration of this matter on the judgment rendered therein. In any event, assuming the allegations in the motion to dismiss are correct, and particularly that the stockholders and interested parties in each case are the same, we feel that the issue is not moot. The Alcoholic Beverage Laws of Louisiana allow the Commissioner to refuse to issue a permit whenever an applicant has had a permit revoked. In view of this provision of the law, our courts have held that even though a current permit which is under suspension or revocation has expired, nevertheless the right of the permittee to secure future permits are impaired and a justiciable issue still remains. Brumfield v. Louisiana Board of Alcoholic Beverage Control, 265 So.2d 302 (La.App.4th Cir. 1972); Xavier University v. Thigpen, 151 So.2d 550 (La.App.4th Cir. 1963). In view of the allegations contained in the motion to dismiss, we see no difference between the situation where the permit expires because it had run its term, or where the permittee has apparently simply substituted one corporation for another for the handling of its business. The motion to dismiss is denied.

Considering now the merits of the case, it may be well at this time to set out a calendar of events to aid in understanding the issue before us.

The appellant, Sportservice Corporation, is owned by Emprise Corporation, stockholder of approximately 95% Of the outstanding stock, and by the Estate of Louis M. Jacobs, stockholder owning approximately 5% Of the stock. Emprise Corporation is in turn owned by various members of the Jacobs family. Sportservice Corporation was the holder of a liquor permit and two beer permits during 1971, and on January 1, 1972 was issued a new retail liquor permit for the calender year 1972. On April 26, 1972 Emprise Corporation was convicted by a jury of a violation of 18 U.S.C. § 371: Conspiracy; and 18 U.S.C. § 1952: Interstate Transportation in Aid of Racketeering in case #8975 on the Criminal Docket of the United States District Court for the Central District of California. A judgment of guilt and conviction was thereupon entered by the District Judge on July 10, 1972, and Emprise Corporation was sentenced to pay a fine in the amount of $10,000. On that same date, the corporation applied for and received a stay of execution of the sentence and filed notice of appeal. An examination of the Statutes disclose that the violation thereof constituted a felony.

Between the Jury verdict and the judgment of guilt, on May 1, 1972, the appellant filed its applications for beer permits for the fiscal year July 1, 1972 through June 30, 1973. The application was denied by the Department of Revenue on June 21, 1972 on the ground that the applicant did not meet the qualifications necessary as set out in LSA-R.S. 26:279(A)(5). On June 30, 1972, appellant appealed its denial to the Twenty-Fourth Judicial District Court, and after hearing had on July 20, 1972, that court rendered judgment requiring the Department to renew the beer permits, reserving the right of the Revenue Department to seek further administrative remedies. Accordingly on July 27, 1972 the beer permits were issued. By virtue of a change in the Acoholic Beverage Statutes of Louisiana, the Department of Revenue was succeeded by the Commissioner on Alcoholic Beverage Control. Accordingly on August 9, 1972 the new Commissioner provoked a hearing to revoke both the beer and the liquor permits of the appellant. Judgment was rendered on August 24, 1972 revoking both permits.

The appellant appealed the Commissioners decision of revocation to the Twenty-Fourth Judicial Court for the Parish of Jefferson for a trial de novo on August 29, 1972. That court, after hearing, decided that the Commissioner was in error in revoking the liquor permit and reversed that decision. However, the court held that the Commissioner was correct in revoking the two beer permits and affirmed the Commissioner's decision in that regard. This appeal, limited only to the inquiry into the revocation of the two beer permits, followed.

The appellant has urged to us six grounds of error, ranging from an attack on the constitutionality of the new law setting up the Commission on Alcoholic Beverage Control, Act. No. 128 of 1972, to a determination of whether the U.S. District Court for the Central District of California correctly convicted Emprise Corporation for acts done by a corporate predecessor. Because of our holding herein, we see no necessity to comment upon the various allegations of error since such comments would be simply dicta. In our consideration of the case, we conclude that the procedural status of the United States prosecution does not meet the requirements of having 'been convicted of a felony under the laws of the United States' as set out in LSA-R.S. 26:279(A)(5). Hence further inquiry is unnecessary.

The pertinent parts of LSA-R.S. 26:279 are as follows:

'(Section) A. Applicants for State and local permits of all kinds shall meet the following qualifications and conditions:

'(Section) (5) has not been convicted of a felony under the...