*1 brief, will appellee abstract of the substituted filing Upon brief, at the revise or supplement an opportunity be afforded counsel. of the appellant’s expense CONTROL BEVERAGE ALCOHOLIC ARKANSAS MUNCRIEF BOARD v. Deborah S.W.2d 816 91-295 of Arkansas Court Supreme 24, 1992 February delivered Opinion *2 Bennett, Donald R. for appellant ABC Board. Charles A. Yeargan, for appellants Harvey Janisse.
Wood, Smith, Clay, & Don Schnipper by: M. Schnipper, for appellee. Holt, Jr.,
Jack Chief Justice. The appellant, Arkansas Alcoholic Beverage (Board), Control Board from the appeals Garland Circuit County Court’s decision to overturn the Board’s denial of a retail liquor store transfer requested by appellee, Deborah Muncrief. The application for transfer was initially denied Board Director. The case was certified to this court from the Arkansas Court of Appeals as it involves interpretation and construction of an regulation. administrative We reverse and remand the trial court’s decision.
Ms. Muncrief currently owns and a operates retail liquor store located 7.5 approximately miles east of the Garland County line, outside of Pearcy, Arkansas. She seeks to transfer this store to a rural location within one line, mile quarter east of the county which borders a dry testified, county. Muncrief at hearing before the that most of her present customers come from the counties, neighboring dry and introduced petition containing names and addresses of in customers favor of the transfer. Ms. Muncrief testified that she also sells liquor private clubs located in the western counties and that' she wanted to move the store in order to be more convenient for her customers. State Police of the Arkansas Director a former
Doug Harp, consultant, Ms. Mun- investigated a security works as who now noted site. He the location and criefs current School, from Hamilton 1.3 miles Lake is located the current store in of traffic greatest amount and creates runs 33 buses which miles outside the location is 2.2 area. The proposed the immediate not run and their buses do school district Lake Hamilton are located near locations area. Both however, new location curves; opinion, Mr. Harp’s out of the in and coming for customers visibility better provide store. White, Sheriff, his submitted Coúnty ap- Garland
Clay *3 transfer, received noting he had no of the that proval proposed of Ms. Muncriefs operation the complaints store, objections suggested or to the relocation. any hand, submitted
On the other the transfer persons opposing a over to a number of signatures, with 400 addition petition letters to the new store. concerns were voicing opposition Primary generate that the store would more traffic that entrance and and egress at the would be There was site hazardous. also proposed new concern the location would be too distant from service police Laribee, calls. One of the is to the opponents, Mary neighbor site, east of the that proposed and the store would increase opined traffic and create with drunk drivers. Ms. possibly problems conceded, however, Laribee that if the of Ms. Mun- majority criefs customers lived the not west of the store traffic would affect her residence. Janisse, action, who was allowed to intervene in the
operates a store of a mile to beer-only package eight-tenths the east of the She location. testified she opposed transfer as she felt it would her out of business. put fact, reciting
After its findings of Board concluded that time, “at the present greater there is no advantage to be served by moving Muncriefs store.” The decision, trial reversed it finding this to be unsupported by court evidence, substantial characterized arbitrary, capricious, and by an abuse of disagree. discretion. We
Ark. Code Ann. 25-15-21.2(h) (1987) provides § 376 or decision if may modify
trial court reverse the Board’s it not evidence is arbitrary, capricious, substantial or supported by of discretion. Our review is similarly characterized abuse by and, we limited on review the entire record in this making appeal, Carder, 239, Ark. determination. See Green (1984); v. Arkansas Edwards (1991). It is Ms. Muncrief the Board with presented true favorable evidence to her for a transfer to the support request However, Ark. Ann. (b) location. Code 3-4-201 § (1987) vests to the Board determine whether power “public promoted” grant convenience will be addition, ing Section permits. In 3-2-206 authorizes the Director of the Board to to promulgate regulations enforce its provisions, grants the Director discretionary broad to power enforce such provisions. Board, brief, in its original relies in on part ABC 1.32,
Regulation section covering the and duties powers of its Director and that under argument the facts presented them, entitled, Ms. Muncrief is not by law or regulation, to a of her license from her present location to other premises Garland take County. judicial Courts notice of regulations of agencies state duly that are published. Webb v. Bishop, Ark. S.W.2d 862 Section 1.32 *4 provides:
No be permit shall issued to an pursuant alcoholic bever- age control law of the state of Arkansas for the following premises: (4) ... Premise which will not promote public convenience advantage. and for Any which the premise not, issuance of permit would the judgment in of the Director, the promote public convenience and advantage. In determining whether the issuance of a permit would promote the convenience and public advantage, the Direc- consider, tor factors, may in addition other to all relevant the number of issued in permits general of vicinity premises for which has been made. application In fact, findings the Board stated it was not its to accommodate responsibility living in persons adjacent dry counties. It is Ms. Muncrief s in position making that this finding,
377 This residents. these to consider refused erroneously Board it, we however; was decision, nor of our not the focus issue is is whether Rather, issue the real believe, of the Board’s. the focus transfer, her from requested Muncriefs or not Ms. promote County, in Garland to a new location location the area. all residents advantage for and convenience public our is not defined convenience” “public The term 1 v. Dist. No. statutes; however, School Fayetteville noted in we 91, 89, S.W.2d Alcoholic Control Beverage and convenience 796, to the public that “reference (1983), general public interest of the means that the advantage evidently itWhile considered, the applicant.” that of merely be not is to line County Garland closer to the relocating that be true may and for the for Ms. Muncrief convenience greater would provide areas, those from nearby her who come customers majority also be must community “wet” residents in the immediate of the court of the words We with approval considered. quote advantage] “We conclude that [public appeals: as to a sense colloquial synonomous should not be restricted sense which but construed in that or of access’ ‘handy easy needs to the fitting public connotes suitable and supply Hemstock, v. 5 Ark. App. Carder advantage.” residing in the Garland A substantial number of people through to the transfer area indicated their County opposition letters, number of we have said the although petitions to, of retail liquor the issuance object who or persons support, statute, the reasons for the under the significant not permits Edwards very significant. be opposition may The ex Arkansas the rural along concerns of increased traffic and accidents pressed are would be located on which the new store highway stretch of legitimate ones. Muncrief to demonstrate
The burden was upon was so nearly tribunal before the administrative proof its conclu could not reach that fair-minded undisputed persons *5 Carder, us does not The record before sion. Green v. See noted, Board has As provide previously such a demonstration. conve- whether determining discretionary leeway much nience will be See advantage by issuing permits. promoted 1.32, section 3-2-206(d); Regulation supra; Dalark Section ABC Store v. Arkansas Alcoholic Control Package Beverage (1982). although Ark. App. Simply put, indicating Ms. Muncrief evidence a transfer of her presented store would be more and convenient to that advantageous counties, segment of the she community living nearby dry no such presented regard evidence to the Garland County area residents as a whole. We cannot the Board’s say finding time, “at the there is no present greater public store,” to be served by moving Ms. Muncriefs was arbitrary, capricious, characterized abuse of the Board’s by discretion.
A second finding in which it stated that since opposing area residents did not previously object Ms. Janisse’s beer permit, the current to Ms. objections Muncriefs store must be “of significant more nature very due to the type [sic] Muncrief,” operation Ms. proposed by is without basis in the record. finding Muncrief, the store implies Ms. proposed by herself, or the applicant unsuitable. On the contrary, Muncrief testified she had never been in violation of Board regulations and Sheriff White stated he had not received any complaints, over the years, Ms. Muncriefs However, reasons, operation. for the foregoing we reverse the trial court’s decision and the Board’s uphold denial of Ms. Muncriefs application.
Reversed and remanded with instructions consistent with this opinion. J., dissents.
Corbin, Justice, Donald L. Corbin, dissenting. Substantial evi dence is more than a mere scintilla and means such evidence as a reasonable mind might as accept a conclu adequate State, sion. Fouch v. Ark. App. I dissent because the Board’s decision to deny Muncriefs transfer lacks application supporting evidence. The evidence introduced in to Muncriefs opposition application included Janisse, testimony a compet ing convenience store with a beer operator who testified permit, that Muncriefs move her out of put business *6 closer to the location would be Muncriefs proposed because store, testimony and the her convenience line than “dry” county Muncriefs Laribee, east of residing directly a witness Mary of location, Muncriefs new proposed who testified that proposed re- The Board also congestion. location would increase traffic Muncriefs signatures opposing ceived a with over 400 petition transfer. The is irrelevant since the legally of Janisse testimony Board does not issue or for the deny permits purpose protecting Fouch, interests licensed owners. The of presently with, irrelevance of Janisse’s combined the total testimony, discreditation of the traffic testimony potential leaves no evidence to the Board’s denial of problems, support Muncriefs notes that the application. majority correctly number of who persons object the issuance of retail liquor is of no permits significance, the denial yet majority upholds based on the discretionary the Board has in leeway determining whether public convenience and will advantage be promoted by the issuance of a In the permit. “findings of fact” promulgated by case, the Board in this the Board concluded that conve public nience and not be served Ms. Muncriefs because “public” does not refer to that portion of the public situated in counties. This dry interpretation to both contrary plain meaning and the “public” interpre tation this court set out in Fayetteville School Dist. No. Beverage Control (1983). The reference to the public convenience and advantage means that the interest of the general is to be considered. As there is most no law certainly against counties persons commuting beer, buy liquor no reasonable basis exists for bizarre agency’s limitation on the word As I can find “public.” no evidence to Board’s denial of Muncriefs transfer application, I would affirm the trial court.