*1 104 KASSAB v ACHO 25, 1985, at Detroit. Decided June No. 79596. Submitted Docket February 1986. Road in Seven Mile a store on East Issam Kassab own Khalid and designated specially distributor’s City and hold a of Detroit (SDD) Yalda Acho liquor with that store. license in connection directly across the street Mile Road a store on East Seven owns sought SDD license for his Acho an Kassabs’ store. from the store, separated from the arguing his store was Road, eligible for a Mile he was East Seven Kassabs’ store thoroughfare exception to the rule under the license other. prohibiting mile of each within one-half SDD licensees Acho re- denied the license. Control Commission The pursuant appeal hearing quested before the commission an owned the nearest Because the Kassabs commission’s rules. outlet, hearing to a notice of the commission sent licensed appear and and offered them the Kassabs appeared argue at commission. The Kassabs before the point attorney. hearing Mile Road at the East Seven with their lanes, moving separates two lanes has four the two stores original license denial of the Acho lanes. The and two exception major thoroughfare re- was on the basis Subsequent applicable. moving quires traffic to be lanes of four hearing, appeal two letters from the commission received to the police was to be to the effect that the Detroit chief Mile Road and the road that section of East Seven banned on given major thoroughfare. The Kassabs were not notice was a receipt police The chiefs letters. the commission’s granted the Acho license on the basis commission References 2d, Law 69-186. Am Jur Administrative §§ 2d, Intoxicating Liquors 22-66. Am §§ Jur or ordi- "sale” of in violation of statute What constitutes nance. 89 ALR3d 551. regula- municipal regulation Validity restrictive than state more serving intoxicating liquor. selling as to time for or tion ALR3d Quick Index under in ALR3d/4th also the annotations See Law. Administrative Kassab v appli- necessary police for letters established the status chiefs exception. major thoroughfare cation seeking petition Wayne Court filed a Circuit The Kassabs pursuant to the of the commission’s determination review *2 Act, naming provisions Procedures Acho of the Administrative respondents. Subsequent to the initia- and the commission review, court the commission discovered tion circuit temporary and not have been made ban was could approval. permanent city council The commission without commission for moved in circuit court for remand to the remand, The moved for for a further consideration. Kassabs advancing preliminary injunction, or for the matter for imme- Colombo, J., hearing. the motions to diate Robert J. denied hearing. the matter be set for Follow- remand and ordered that ing hearing, Judge Colombo affirmed the commission’s order a license, holding granting that at the time the license the Acho major granted Mile Road was a four-lane was East Seven specifi- thoroughfare the commission’s rules did not and cally provide that a lane could not be considered to be Appeals appealed lane. The Kassabs and the Court a traffic fact-finding and considera- reversed and remanded for further (1983). remand, tion, App the commission 125 Mich On granting prior the license. The Kassabs affirmed its decision court, petitioned Wayne Circuit Court for review and reversed, Kaufman, J., holding since East Richard C. major permanent four-lane Mile Road did not become Seven thoroughfare, exception to the one-half mile rule did not authority apply to issue the and the commission lacked the appealed. Acho Held: license. Yalda authority Liquor does not have the The Control Commission application of one of its rules. Since the road did to waive the thoroughfare, exception major no to the one-half not become a applied Acho not entitled to a license. mile rule and Affirmed. J., Bronson, He would hold that the decision dissented. permanent whether Seven Mile Road became a thoroughfare and is one that must be made not the circuit court. He would remand to the commission for findings further of fact. Intoxicating — Liquors Liquor 1. Control Commission. Liquor authority to The Control does not have the Commission application waive the of one of its rules. — Powers. Administrative Law Inherent powers; any authority agency An administrative has no inherent Legislature. it has comes from the Opinion of the Court Lawson, P.C., Lawson),
Lawson & David M. (by plaintiffs. for Burdick,
James W. appellant. for Frank J. Kelley, Attorney General, Louis J. Caruso, Pipp and Frank J. General, Solicitor and D. Hartig, Patrick General, Assistants Attorney for the Control Commission. Maher, P.J.,
Before: R. M. Bronson Walsh, D. F. JJ.
Per
Yalda
appeals
right
Curiam.
as of
from a Wayne County Circuit Court order which
Michigan
reversed a decision of the
Liquor Control
Commission
him
granting
designated
a specially
(SDD) liquor
distributor’s
license. This case is be-
v
fore this Court
Kassab
for the second time.
In
*3
Acho,
Khalid and Issam Kassab a party own store located on East Seven Mile Road in Detroit and hold an SDD liquor license. Acho also owns a party Road, store on East Seven Mile directly across the street from the Kassab’s store. On 23, 1977, November Acho applied for an SDD license, arguing his sepa store is rated from the Kassab’s store East Seven Mile Road, he was eligible for a waiver of the rule requiring that SDD outlets be at least one-half apart. AC, mile R 436.1133(c).1 AC, provides part: 1 1979 R 436.1133 application specially designated "An for a new distributor license or existing specially for the transfer of designated location of an distrib- approved by utor license shall not be the commission if there is an Kassab v Acho Opinion op the Court 15, 1979, the commission denied On October eligible concluding license, that he Acho a for a waiver of the one-half mile rule because East "major Road could not be considered a Seven Mile thoroughfare traffic”, of not less than four lanes consisting since it was a four-lane road moving of two parking Acho re- lanes two lanes. quested appeal hearing pursuant and received an 436.1925(2). to 1979 R Since the Kassabs they outlet, owned the nearest SDD were sent a hearing opportu- notice of which offered them an hearing nity to be heard. The evidence at the held portion 20, 1979, on December established that the question of East Seven Mile Road in was a four- road, however, lane designated two of the four lanes were parking 24-hour lanes. hearing, After the Detroit Police Chief William advising Hart wrote two letters to the commission thorough- it that the road was a fare with all four lanes used for traffic and that parking 24-hour would be banned effective Febru- ary Relying 25, on the letter submitted granted Hart, Chief defendant an SDD license on March 1980. The Kassabs appealed petitioned to circuit court and the com- mission for reconsideration. The commission rein- vestigated the matter and found that temporary ban was and that on the two outside effect was had lanes been restored. Evidence to this
presented May 14, 1981, at the circuit hearing. Nevertheless, court the circuit court af- existing 2,640 specially designated distributor license located within *4 * * * proposed may feet of by site. This rule be waived following commission for 1 of the reasons: "(c) proposed existing specially designated If the location and the separated by major distributor’s licensed establishment are thor- oughfare of not less than 4 lanes of traffic.” 150 Opinion of the Court grant license, find- of the
firmed the commission’s ing no abuse of discretion. reversed and remanded the case to the
We fact-finding commission for further and reconsider- supra, p remand, Acho, ation. Kassab v the commission affirmed its defendant an On
prior granting decision appeals license. Acho from the deci- circuit court’s reversal of the commission’s sion. proper must first determine the standard of
We prior of a of a license. In the review appeal supra, pp case, Kassab, 449-453, this of this § 106 Court held that of the Administrative Proce- licensing governed, matter dures Act2 since by case”, 24.203; was a "contested defined MCL 3.560(103)(3) MSA as: " proceeding, including limited but to rate- '[A]
making, price-fixing,
licensing,
in which determina-
legal rights,
privileges
tion of the
or
of a named
duties
party
required by
agency
is
an
law be made
after
”
hearing.’
evidentiary
an
for an
scope
opinion,
The
of review the earlier
how-
3.560(206)
24.306;
provides:
MCL
MSA
"(1) Except
provides
when a statute or the constitution
for a
review,
scope
different
decision or order of an
the court shall hold unlawful and set aside a
agency
rights
petitioner
if substantial
of the
prejudiced
any
have been
following:
because the decision or order is
of the
"(a) In violation of the constitution or a statute.
"(b)
statutory authority
jurisdiction
In excess of the
or
agency.
"(c)
upon
procedure resulting
prejudice
Made
unlawful
in material
party.
to a
"(d)
supported by competent,
Not
material and substantial evidence
on the whole record.
"(e) Arbitrary, capricious
clearly
or
an abuse or unwarranted
exercise of discretion.
"(f)
Affected
other
substantial
material error of law.
"(2)
court,
affirm,
appropriate, may
modify
The
reverse or
proceedings.”
decision or order or remand the case for further
*5
109
Kassab v
Opinion op the Court
ever,
in TDN
conflicts with this Court’s decision
Enterprises,
Liquor
Comm, 90 Mich
v
Control
Inc
(1979),
App
407 Mich
437;
lv den
supported competent, material and substantial evidence. case,
In the
however,
instant
we are bound
doctrine,
the law of the case
CAF Investment Co v
Saginaw Twp,
410 Mich
454;
In the this Court concluded that materially prejudiced the Kassabs were when Chief Hart’s letters were received and considered affording the commission without them notice respond and the to to the letters before the commission rendered its decision. Kas- sab, 125 Mich 458. The letters addressed the exception main case, issue in the whether the applied. the one-half mile rule remand, On commission stated: "While it is now known that ap- commission’s proval of Acho’s SDD upon license was based incom- facts,
plete
in
and while it is now
change
known that
on East Seven Mile Road was not done
in a procedurally
manner,
correct
and while it is now
known that
ban was temporary, none of
this information was available at the time the license
approved
was
and it seems to the commission that
this
is the
point.
crucial
If any of these matters had been
known to the
time,
commission at the
would
approved
not have
the license.
question
"As to of whether Acho’s license should
cancelled,
now be
the commission concludes that
should not. It has now been in excess of three and one-
years
half
since Acho’s
granted,
license was
and the
commission is convinced that
the matter
equity
of
must
also be addressed. While it is true that
liquor
Kassab’s
Ill
Kassab
Acho
v
op
Opinion
the Court
license
since Acho’s
somewhat
declined
purchases have
purchased
issued,
of
upon the amount
based
gross
make a
commission,
Kassab continues
from
sale of
$48,000
year from the
per
in
profit
excess
apparently made
Acho has
time
spirits. At the same
business,
in order to
his
in
investment
substantial
modernize
his
parking for
additional
provide
the store
the increased
customers,
part
in
at least on
based
liquor.
availability
package
by the
generated
business
the circumstances
the license because
To now remove
note,
significant to
issuance,
it is
which
its
over
of
had
to be
to the commission
seem
no control would
supplied.)
(Emphasis
unfair.”
reversed, holding
court
the circuit
appeal,
On
required
remand order
com-
this Court’s
based on
application
reconsider Acho’s
mission to
March, 1980,
in
existed
actually
the facts which
were known
facts which
on the
simply
not
court concluded
March, 1980. The circuit
not become a
Road did
Seven Mile
since East
the ex-
thoroughfare,
permanent
apply
mile rule did
to the one-half
ception
*7
to issue
authority
lacked the
commission
the
license to Acho.
In
reasoning.
circuit court’s
with the
agree
We
the commission
we reversed
prior opinion,
our
or
incomplete
on
was based
its decision
to
required
The commission
facts.
inadequate
de-
reconsider
its
fact-finding
further
and
conduct
excep-
the
fact-finding revealed that
That
cision.
inapplicable.
one-half mile rule was
tion to the
did
evidence
that
the
The commission conceded
Nevertheless,
it refused
its conclusion.
support
to
Its decision
Acho’s license.
or revoke
to cancel
neither
authorized
license is
Acho’s
continue
material
competent,
supported
law nor
the
true
that
While
is
evidence.
substantial
traffic,
complete control
has
commission
App
150
104
112
op
Opinion
the Court
Control
Liquor
Mallchok v
1963,
4,
40;
art
Const
§
Comm,
341,
343-345;
We have find without merit. them Aifirmed. (dissenting). J. I
Bronson, dissent. respectfully Mile Road became The decision whether Seven thoroughfare permanent one is and not the that must be made decide, circuit court. It is for the commission to appropriate hearing, after an exception factual whether applicable.
to the one-half mile rule was Therefore, I would remand this case to the com- findings mission for further of fact.