Lead Opinion
| í Sarah Gildehaus appeals from the order that dismissed her petition for judicial review of the Alcohol Beverage Control (ABC) Board’s transfer of a retail liquor permit and that, alternatively, affirmed the Board’s decision. She contends that the trial court erred in 1) dismissing her amended petition for lack of standing, 2) refusing to consider the entire record on appeal-, and 3) allowing the issuance of a retail liquor permit despite numerous violations of the law. We affirm. .
in its order dismissing Gildehaus’s' petition, ’the trial court set out the basic, and essentially undisputed, background facts. Michelle Jameson received conditional permit number 05132 for a retail liquor store to be located at 2800 West Hudson Road, Suite D, in Rogers, Arkansas. After reconsidering the potential financial burdens, Jameson contacted the ABC and asked about alternatives she might pursue. She learned about inactive status for a permit while she considered her future desires regarding the permit. She was told she Lcould submit an application for inactive status for her permit if she opened her business for one day, had a phone line and her business license, sold one bottle of liquor, and had an ABC agent come and approve her location. Jameson operated her business for one day and then applied with Christopher Moore to the ABC to transfer permit number 05132 from her to Moore. The ABC Director refused to approve the application on April 17, 2014. She appealed the transfer denial, and, following a hearing, the ABC Board unanimously reversed the Director and approved the transfer on September 17, 2014, (the “agency decision”).
On October 13, 2014, Gildehaus filed an original petition with the circuit court, seeking judicial review and a stay of the agency decisión. Orí December 18, 2014, she filed an amended petition. Paragraph three of her amended petition provides in pertinent part:
Further, this location is within three (3) miles of Gildehaus’ liquor store and is a competitor of Gildehaus. As a result, this has caused Gildehaus to suffer injury and is a basis for this litigation.
She offered no further testimony or evidence of injury at the hearing to expand upon paragraph three of her amended petition.
Gildehaus urged reversal of the agency decisionbased on the following summarized arguments: 1) Jameson did not have a valid permit to transfer to Moore because Jameson represented she had leased the property, when in fact she had only an option to lease the premises; no ABC agent ever inspected Jameson’s store prior to opening, she just complied with the ABC agent’s request that she send photos; Jameson'had no sales-tax permit and did not remit taxes to DFC; she received $4,000 from Moore to pay for her option to lease the premises; and 2) Moore was not legally qualified to receive transfer of the permit because |ahe had some interest in two permits; he made knowing misstatements of material facts regarding ownership of the business location; and he provided remuneration to another retail liquor permittee. • •
In its April 15, 2015 order, the trial court dismissed Gildehaus’s petition, concluding, ' sua sponte, she lacked standing under the Administrative Procedure Act: Relying upon Arkansas Alcoholic Beverage Control v. Mwncrief,
Ordinarily, an appeal from the circuit court regarding an agency decision requires our court to review the agency’s decision, not the trial1 court’s decision. Arkansas State Highway & Trans. Dep’t v. Ram Outdoor Advert.,
| Judicial review of an agency decision is governed by the Administrative Procedures Act. Arkansas Code Annotated section 25-15-212(a) (Repl. 2014) provides in pertinent part:
Administrative adjudication — Judicial review.
(a) In cases of adjudication, any person, ... who considers himself or herself injured in his or her person, business, or property by final agency action shall be entitled to judicial review of the action under this sub-chapter. Nothing in this section shall be construed to limit other means of review provided by law.
Opinions from both our court and the supreme court have explained that, under this statute, only persons who have a personal stake in the outcome of a controversy have standing to invoke the jurisdiction of the circuit court in order to seek judicial review of agency action; that the injury must be concrete, specific, real, and immediate, rather than conjectural .or hypothetical; and that the petitioner must demonstrate how he or she has already sustained or is immediately in danger of sustaining such injury as a consequence of the agency’s. action. See, e.g., Arkansas Beverage Retailers Ass’n, Inc., supra; Arkansas Alcoholic Beverage Control v. Muncrief,
Here, the only basis for injury asserted by - Gildehaus was that Moore’s proposed liquor store would be located within three (3) miles of Gildehaus’s liquor store and would-be a competitor of-Gilde-haus. This allegation of injury was not further developed at the hearing, and neither has it been further explained on appeal. The gist of Gildehaus’s argument to us on this controlling issue is as .follows: the -trial court erred in dismissing her appeal for lack of standing because granting the permit to Moore violated several statutory l^and regulatory requirements and directly impacted her own business by allowing an additional neighboring permit-tee that did not exist before the transfer and location change in favor of Moore. She is clear in her allegations that the Board ignored statutory and regulatory violations by Jameson and Moore and that she believes she has been harmed by the agency’s decision to allow the transfer of the permit. However, our cases and those of the supreme court require more than mere assertions of injury — to be entitled to judicial review of an agency decision pursuant to Arkansas Code Annotated section 25-15-212(a), a petitioner must demonstrate injury that is concrete, specific, real, and immediate, rather than conjectural or hypothetical; and the petitioner must also demonstrate how he or she has already sustained or is immediately in danger’ of sustaining such injury as. a consequence of the'agency’s action. See, e.g., Arkansas Beverage Retailers Ass’n., Inc., supra; Arkansas Alcoholic Beverage Control v. Muncrief, supra; Estes, supra.
The “keys to the courthouse”'lie in Arkansas Code Annotated section 25-15-212(a). If a petitioner satisfies the injury requirement of this statute, then he or she qualifies for judicial review of agency action. If a petitioner does riot demonstrate specific, concrete,’ real, and immediate injury from the agency’s action, then he or she is not entitled to judicial review of agency actiori. We find no error with the trial court’s determination that Gildehaus’s assertions of injury are not sufficient to invoke the trial court’s jurisdiction to review the agency decision pursuant to Arkansas Code Annotated section 25-15-212(a). Moreover, though we are concerned with the sua sponte nature of the trial court’s dismissal, Gildehaus does not challenge the trial court’s decision on .that basis; consequently, we do not address it.
IfiAffirmed.
Concurrence Opinion
concurring.
While I agree with the majority’s decision to affirm, I would do so based on the circuit court’s alternative finding that substantial evidence supports the Alcohol Beverage Control (ABC) Board’s decision to approve the transfer of the retail liquor permit to appellee Christopher Moore. Thus, I must respectfully concur.
In appellant Sarah Gildehaus’s first point on appeal, she argues that the circuit court erred in dismissing her amended petition due to a lack of standing. I agree and would not affirm on this basis; In her petition, Gildehaus alleged that- she was injured by the Board’s decision to approve the transfer of the retail liquor permit to Moore because the proposed location for the permit was within three miles of Gilde-haus’s liquor store and would compete with her store. She further alleged that the Board’s decision should be reversed because grantin¿ the permit to Moore violated various statutory and regulatory requirements. In his answer, Moore did not challenge Gildehaus’s standing; in fact, he implicitly agreed that Gildehaus had standing by noting that the permit for her store was being judicially reviewed and that he reserved the right to raise the issue át a later date if she were to be denied the permit and ■ “lose standing.” Nor did Moore file a motion to dismiss the petition or raise the issue of standing at the hearing before the circuit court. Instead, the circuit court raised the issue sua sponte in its order, finding that it “had no jurisdic-tionjjto hear the petition” because Gilde-haus had failed to sufficiently plead standing. Our supreme court has explained that standing is not akin to subject-matter jurisdiction and that it is a defense that can be waived by the parties. Chubb Lloyds Ins. Co. v. Miller Cty. Cir. Ct.,
In her second and third points on apr peal, Gildehaus makes two separate arguments concerning the circuit court’s decision to affirm the Board: she contends that the circuit court erred by refusing to consider the entire record, and she argues that the circuit court erred in allowing the issuance of the retail liquor- permit to Moore despite numerous violations of the law. On appeal to this court, our review is directed toward the decision of the administrative agency,, rather than the decision of the circuit court. Dep’t of Health & Human Servs. v. R.C.,
|sOn appeal, the challenging party has the burden of proving an absence of subr stantial evidence and must demonstrate that the proof before the administrative agency was so nearly undisputed that fair-minded persons could not reach its conclusion. Dep’t of Health & Human Servs., supra. The question is not whether the evidence before the agency would have supported a contrary finding, but rather whether it supports the finding that was made. Id. Considerable deference is accorded the decision of the administrative agency in part because these agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Id.
Gildehaus’s argument that the circuit court erred by not considering the entire record is premised on the circuit court’s rulings at the hearing that prevented her from discussing Michelle Jameson’s failure to obtain a sales-tax permit prior to opening her liquor store for one day, Gilde-haus contends that the circuit court abused its discretion in not allowing this evidence where it was raised and. considered before the Board and . where appellees also “opened the door” to its admission. However, as noted above, our review on appeal in these cases is limited and . is directed only toward the administrative agency’s decision, not that of the circuit court. Dep’t of Health & Human Servs., supra. Thus,, there is no need to address the merits of this particular argument, which asserts error by the circuit court.
Gildehaus’s final argument on appeal is that the circuit court erred in affirming the Board’s issuance of the permit to Moore despite numerous violations of the law. Specifically, Gildehaus asserts that Jame-son failed to comply with applicable statutes and regulations by not obtaining and displaying a sales-tax permit when she opened her store on | ^December 11, 2013, and by not remitting sales tax for that day. Gildehaus also argues that Jameson received $4,000 from Moore, another liquor permit holder, to lease the space for her liquor store in violation of Arkansas Code Annotated section 3-4-301 (a)(9) (Supp. 2015). Based on these violations, 'Gilde-haus contends that Jameson’s permit should have been revoked instead of being placed on inactive status and transferred to Moore.
With regard to Jameson’s failure to pay sales tax, the Board found that .this was an issue for the Department of Finance and Administration and that Jameson had complied with its regulations for obtaining inactive status, which required that she be “open for business and prepared to sell or dispense alcoholic beverages for at least one full eight hour day.” See DFA Title 1, subtitle C, Permit Procedure Section 1.27.1. I agree with the Board’s finding. While a failure to pay sales tax can be grounds for revocation óf a permit, this issue was not necessarily relevant to whether Jameson had satisfied the ABC regulations for obtaining an inactive permit.
The Board also found that the $4,000 that Jameson had received from Moore was merely a loan and did not violate Arkansas Code Annotated section 3-4-301(a)(9), which states that a permit must be revoked if the permittee receives renu-meration from any other retail liquor per-mittee. There was substantial evidence to support this finding based on the evidence presented to the Board. Further, as with the sales-tax issue, this alleged violation may be grounds for revocation of a permit, but it does not necessarily prevent Jame-son from obtaining inactive status in the absence of a revocation. As appellees assert, Gildehaus did not attempt to have Jameson’s permit revoked, nor did she timely challenge the Board’s decision to grant Jameson inactive status. Thus, the issue before the Board at the hearing in | mthis case was focused solely on .whether Moore should be allowed to receive a transfer of Jameson’s permit. Under these circumstances, the Board did not err in concluding that the issues raised by Gildehaus with respect to Jameson did not prevent the issuance of the transfer permit to Moore.
Gildehaus’s remaining arguments relate to alleged violations of law by Moore in obtaining his transferred permit. She contends that he knowingly provided false statements "to the Board in his transfer application by representing that he owned the proposed premises when he did not; that he provided funds to Jameson, as was discussed above; and that he held an interest in two retail liquor permits at the same time.
The Board addressed each of these arguments in its decision. With regard to Moore’s false statement in his "transfer application, Moore admitted at the hearing that he had misspoken when he indicated that he owned the premises. He explained that it was his original intention to own the property but that his wife and father-in-law instead formed an LLC to purchase the premises for financial reasons. The Board accepted this explanation and found that Moore did not intend to be deceitful. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. C.C.B. v. Ark. Dep’t of Health & Human Servs.,
Gildehaus’s argument related to the $4,000 received by Jameson is also without merit. Moore testified at the Board hearing- that he never received any direct or indirect benefit from Jameson pursuant to her retail liquor permit. As discussed above, the Board found that this money was merely a loan and did not constitute renumeration in violation of Arkansas Code Annotated section 3-4~301(a)(8). We give an administrative agency great Indeference when it comes to interpreting a statute or regulation that it is charged with administering, and we will not overturn such an interpretation unless it is clearly wrong. Seiz Co. v. Ark. State Hwy. & Transp. Dep’t,
With regard to Gildehaus’s final contention, the Board found that Moore never held an interest in two retail liquor permits at the same time because he agreed to relinquish permit number 05013 when the Board approved his transfer request for permit number 05132. The Board further noted that Moore’s first permit was only conditional and that he never operated a retail liquor store under this permit. Thus, this case can be distinguished from Hewitt v. Gage,
Dissenting Opinion
dissenting.
I respectfully dissent'from the majority decision to affirm the circuit court’s' sua sponte raising of the issue of Gildehaus’s standing to challenge the transfer of the retail liquor permit from Jameson to Moore.
In its order, the circuit court cited Estes v. Walters,
Along with Estes, this court cites Arkansas Alcoholic Beverage Control v. Muncrief,
The difference between the present case and Muncrief is that the issue of standing was raised by the parties to the action and not sua sponte by the circuit court. Furthermore, our- court has held that “[w]hen the issue of standing is not properly developed below, we do not address it on appeal.” Harrill & Sutter, PLLC v. Farrar,
Our supreme court held in Chubb Lloyds Ins. Co. v. Miller County Circuit Court, Third Division,
Moore never raised the issue of standing to the ABC. Neither Moore nor the ABC raised the issue of standing to the circuit court. In none of our caselaw concerning the review of an administrative agency’s decision has the circuit court raised the issue of standing on its own. The circuit court and the court of appeals are both held to the same standard when reviewing the decision of an administrative agency; “Review of administrative agency decisions, by both the circuit court and the appellate courts, is limited in scope. The standard of review to be used by both courts is whether there is substantial evidence to support the agency’s findings.” Ark. State Hwy. & Transp. Dep’t. v. Ram Outdoor Advert.,
| ^Furthermore, on reaching the issue of standing, I assert that Gildehaus sufficiently plead her injury to show “concrete, specific, real, and immediate injury” as required in Arkansas Beverage Retailers Association, at 507-08,
Gildehaus named Moore as a competitor who intended to set up shop within three miles of her business. Granted, the appel-lees in Arkansas Beverage Retailers Association v. Moore,
In conclusion, I want to reiterate that the ABC did not consider Gildehaus?s pleading of her standing to challenge the permit insufficient, For the circuit court to overturn the ABC’s decision to allow Gildehaus to challenge the permit violates the standard of review that directs both the circuit court and the appellate court to give great deference to the administrative board’s decision. Furthermore, I would hold that Gildehaus plead sufficient injury to achieve standing.
I respectfully dissent..