93 So. 2d 27 | La. Ct. App. | 1956
Lead Opinion
This appeal involves the question of the legality of the revocation of the retail liquor dealer’s permit which had been issued to Peter Dauenhauer by the City of Gretna,
A resolution was adopted by the Board of Aldermen for the City of Gretna on June 10, 1955, reciting that whereas complaints had been made to the Mayor and Board of Aldermen regarding the manner in which the saloon known as “Brown Bomber,” of which Peter Dauenhauer is the proprietor, was being operated, it was resolved that Dauenhauer be notified to appear on a day and time therein stipulated before the Mayor and Board of Aldermen at a hearing with reference to the suspension or revocation of his retail liquor license because of certain infractions of the law resulting from his operation of the establishment. The resolution set forth nine alleged infractions of the law attributed to Dauenhauer. It was further resolved that a notice be issued by the Clerk of the Board of Aldermen “providing for a hearing,” and that a copy of “this resolution be attached and made a part of said notice.”
On the same day the Clerk of the Board of Aldermen sent to Dauenhauer via registered mail a notice calling upon him to appear at the City Hall on June 28, 1955, at which time a hearing was to be held with reference to the complaints against Dauenhauer. No enumeration of the causes for suspending or revoking the permit was contained in the notice; however, a copy of the resolution adopted by the Board of Aldermen was attached to and made a part of said notice as the resolution directed. On the day and at the time of the hearing Dauenhauer appeared with his attorney before the Board of Aldermen and at the outset of the proceedings Dauen-hauer’s counsel filed several exceptions to the proceedings. The exceptions were overruled, and after hearing the testimony of a number of witnesses, the Board of Aldermen unanimously voted to revoke Dauenhauer’s license, to which action the Mayor gave his approval.
This is one of two suits filed within ten days thereafter by Peter Dauenhauer against the City of Gretna in which he complained that his retail liquor permit had been illegally and unlawfully revoked and contended that he was entitled to injunctive relief prohibiting the Board of Aldermen from executing its judgment of revocation during the pendency of the suit. He prayed that ultimately the district court declare that the action of the Board of Aldermen revoking the permit be annulled and for all general and equitable relief. A temporary restraining order was issued in accordance with the prayer of the petition, and after trial of the rule nisi a writ of preliminary injunction was issued enjoining the Board of Aldermen from proceeding further with reference to the revocation of Dauenhauer’s liquor license during the pendency of the suit.
The City of Gretna interposed certain exceptions to the suit and then made answer which in effect sets forth that Dauen-hauer’s permit had been properly and legally revoked by the governing authorities of the City of Gretna. The exceptions were overruled after argument thereon and the matter proceeded to trial, and after hearing the evidence of many witnesses, the district judge sustained the action of the Board of Aldermen of the City of Gretna and ordered the judicial revocation of Dauenhauer’s permit; the writ of preliminary injunction was recalled. The matter has reached us on the devolutive appeal taken by Dauenhauer from said judgment pursuant to LSA-R.S. 33:4788.
Counsel for the City of Gretna has re-urged his exceptions to the suit before us, but after carefully considering them, we find no merit therein and our belief is that the exceptions were properly overruled by the judge below.
It is true that Dauenhauer’s suit is not technically labelled an appeal from the decision of the Board of Aldermen, but from a reading of his petition it clearly appears that Dauenhauer was aggrieved by the decision and that he desired to have the district court review the proceedings which were had before the Board of Aider-men and which led up to the revocation of his permit. We think the present suit to all intents and purposes can be considered an appeal as contemplated by LSA-R.S. 33 :4788, notwithstanding that Dauenhauer sought injunctive relief. The district court unquestionably had jurisdiction to try the matter de novo and to adjudicate the issues raised.
Dauenhauer complains that the revocation of his permit was illegal in several respects and consequently that the judgment of the court below sustaining the action of the City of Gretna was erroneous.
Being convinced that the Board of Aldermen of the City of Gretna did not conduct its proceedings leading up to the revocation of appellant’s liquor license in accordance with law, we disagree with our brother below and can only say that the conclusions and final action of the Board of Aldermen are null and void and of no effect. We need discuss but one of the several points raised by the appellant in his contention that the actions of the Board of Aldermen were highly illegal and deprived him of his valuable right to continue the operation of his retail liquor business. Dauenhauer’s chief complaint is that the notice to appear before the Board of Aider-men for a hearing on the charges against him was not issued in strict pursuance of the provisions of law and that, therefore, all subsequent proceedings must fall. Finding that the notice was not such as the law directed be sent out, our opinion is that the revocation of the permit has no legal foundation and it is without any effect whatsoever.
LSA-R.S. 33:4785 provides that any municipality may suspend or revoke certain permits within the corporate limits issued to retail dealers in beverages for certain causes. But by the provisions of LSA-R.S. 33:4786, before any permit is suspended or revoked, the holder thereof shall be entitled to a hearing and no permit shall be revoked unless such hearing has been held and a majority of the governing body of the municipality thereafter votes for such suspension or revocation.
LSA-R.S. 33:4787 makes provision for the type of notice to be sent to the holder of the permit. The pertinent part of said section is:
“A notice shall be served upon the holder of the permit stating the time and place of the hearing to be held by the governing body of the municipality which shall be not less than ten calendar days from the date such notice is given. The notice shall enumerate the cause or causes for suspending or revoking the permit, and shall be sent by registered mail to the holder of the permit at the address of his place of business as given in his application for the permit, or may be served on him in person by an officer or employee of the municipality.” (Italics ours.)
The notice which the Clerk of the Board of Aldermen sent to Dauenhauer to appear before the Board for the hearing did not enumerate any of the charges or com
Our Supreme Court was concerned with the revocation of a boxing license in State ex rel. Orleans Athletic Club v. Louisiana State Boxing Commission, 163 La. 418, 112 So. 31, 32, and with reference to the provisions of the law respecting notice said:
“We do not think it will be seriously disputed that, where licenses such as the one in question here are granted by a legislative act, which provides for the method of revocation, that method must be rigidly followed. If notice and a hearing is required, a revocation without such is of no effect. * * * ”
Our brothers of the First Circuit also considered the question of notice in connection with the revocation of a retail liquor license in Wimberly v. White, La.App., 54 So.2d 869, 873, and said:
“The summons issued to Betty White did not enumerate the causes alleged for revoking the permit. That requirement is not met by simply annexing a copy of complainant’s petition to the summons, for the act specifically makes that an additional and further requirement. * * * ”
The quotations above have particular application here and it thus appears that the policy of the law is that the method of revoking a permit must be rigidly followed by those who seek to make the revocation.
In an answer to this appeal the City of Gretna prayed that the judgment of the lower court be amended so as to allow it to recover damages in the amount of the attorney’s fees incurred in connection with the wrongful issuance of the temporary restraining order and the writ of preliminary injunction. No such damages can be allowed if for no other than the simple reason that the revocation of appellant’s retail liquor permit was null and void and the City of Gretna could not have suffered any damages by reason of the issuance of the writs restraining it from proceeding further against Dauen-hauer.
For the reasons assigned, the judgment appealed from is reversed, and it is now ordered, adjudged and decreed that the revocation by the Board of Aldermen for the City of Gretna of the retail liquor permit of Peter Dauenhauer to conduct the establishment known as “Brown Bomber” at Romain and Monroe Streets in the City of Gretna, Jefferson Parish, is hereby annulled, avoided and reversed, and the Board of Aldermen for the City of Gretna is hereby enjoined and restrained from enforcing its order of revocation of said permit. The City of Gretna is cast for the stenographer’s costs for taking testimony. LSA-R.S. 13:4521.
Reversed.
Rehearing
On Rehearing
The facts which gave rise to this controversy and the issues which are presented are set forth in our original opinion. In our decree we annulled and avoided the action of the Board of Aldermen of the City of Gretna in revoking a retail liquor permit which had been issued to Peter Dauenhauer for the conduct of an establishment know as “Brown Bomber”, and we enjoined the said Board from enforcing its order of revocation of the said permit. We gave as our reason for our action our
An application for rehearing lead us to believe that possibly we were in error in our holding that proper notice had not been given and we granted a rehearing and the matter is now before us on that rehearing.
As stated in our original opinion, the statute which authorizes the revocation of such a license by a municipality is LSA-R.S. 33:4785. This requires that a hearing be held, and section 4787 sets forth the type of notice which must be given to the permittee before such a hearing may be held. That section provides:
“The notice shall enumerate the cause or causes for suspending or revoking ' the permit, and shall be sent by registered mail to the holder of the permit at the address of his place of business • as given in his application for the permit, or may be served on him in person by an officer or employee of the municipality.”
In this matter the notice itself did not set forth the causes for which the revocation was sought and we held for this reason the notice was fatally defective. However, attached to the notice and made a part of it by reference was a complete listing of the several complaints which were made and which were to be investigated at the hearing.
In holding that in attaching to the notice the list of complaints instead of in setting them forth in the notice itself the municipality had not complied with the requirements of the statute, we cited with approval a decision and decree of the Court of Appeal for the First Circuit in which, in a somewhat similar situation, that Court had said:
“The summons issued to Betty White did not enumerate the causes alleged for revoking the permit. That requirement is not met by simply annexing a copy of complainant’s petition to the summons, for the act specifically makes that an additional and further requirement.” [54 So.2d 869, 873.]
We now notice a feature which we think distinguishes that case from this. The statute which was applicable there provided not only that the notice itself must contain a list of the specific charges, but that also there must be attached to the notice a copy of such complaint or complaints as had been made. Where a statute makes two such separate requirements and only one is complied with, the notice docs-not comply with the statute and is defective. The statute, LSA-R.S. 26:96, which was involved in.the cited case, provided that “the notice or summons shall enumerate the cause or causes * * * for suspending or revoking the permit,” and it also required that “when a petition has been filed opposing the issuance of the permit or asking for its suspension or revocation a copy of the petition shall accompany the notice or summons.”
Plainly then the statute required both that the causes should be enumerated in the notice and that a copy of the complaint should be attached to the notice. Here there is no such dual requirement in the applicable statute and the notice which was given not only made reference to the list of charges but it further stated that the hearing would be held “in connection with the specifications contained in the resolution herewith attached and made a part hereof, to the same extent as if the same were fully incorporated herein.”
Under these circumstances we feel that the relator had full notice of the hearing and was well aware of the charges which had been made against his establishment and which were to be investigated at the hearing.
The record shows that he was personally present at the hearing, was represented by
We thus conclude that the notice which was given complied fully with the requirements of the applicable statute, and we therefore pass to a consideration of the question of whether the evidence submitted justifies the revocation of the permit.
The District Judge found that in two particulars there had been violations of the statutes and regulations concerning such establishments and we are in full accord with his conclusion that there were such violations. He said:
“In connection with charge Number Six, especially that part thereof which deals with having all outside doors open to view, the Court feels that the City has proved beyond any question that a person on the sidewalk or outside the place could not see into the building through that door which is the main door fronting on Romain Street, and that there is no view inside the premises from Romain Street. Accordingly, it is the Court’s opinion that this violation or charge has been proved as set forth under the provisions of Louisiana [LSA-] Revised Statutes 26:88(9) and 26:285(10).
“In connection with that portion of charge Number Nine involving the indecent exposure of person as alleged on certain dates in March and April, the Court believes that the evidence shows that there were violations of this nature on certain dates as reflected by the evidence. The appellant placed a number of witnesses on the stand, of both sexes and races, whose testimony was to the effect that the appellant ran a proper and orderly barroom. Evidence of this nature is, of course, very substantial in disproving those allegations of continuous disturbances, and the Court in disposing of this particular charge, as set forth above, has relied upon that evidence to show that there were no general and continuous disturbances by virtue of the operation of the permitee’s business. However, as to the specific instances of indecent exposure, the Court is of the opinion that this general evidence will not suffice to disprove particular acts unless the Court should not believe the testimony of the witnesses for the City of Gretna. This the Court is unwilling to do, inasmuch as the Court feels that they were respectable persons and worthy of belief as to these particular acts which occurred in their presence. It is to be further noted that of all of the acts complained of there is only one which is shown to have occurred on the premises itself, that is the exposure of a person sitting on the front steps of the establishment in plain view, the others having occurred on the sidewalk in the near vicinity. A consideration of the testimony on this point, however, leads the Court to the conclusion that there was indecent exposure of a lewd and immoral nature so as to constitute a violation under the Alcoholic Beverages Control Law.
“In conclusion the Court is of the opinion that the City of Gretna has proved violations of the Alcoholic Beverages Control Law by virtue of failure of the permit ee to keep the main outside door open to view from the sidewalk or outside, and by the permitee permitting obscenity and lewd and immoral conduct upon the premises, and that those violations are sufficient in law for the suspension or revocation of the permitee’s license. The Court feels, however, that the revocation of the license for these causes is a rather severe result, but feels that this matter of revocation or suspension is within the discretion of the City of Gretna, and accordingly, feels that it should not disturb that decision.”
Attorney’s fees may not be allowed except in cases specifically provided for by law. We know of no reason to allow attorney’s fees in this case.
Our original decree is recalled and annulled, and it is now ordered, adjudged and decreed that the judgment appealed from be and it is affirmed at the cost of appellant.
Original decree recalled affirmed.