ODETTE v LIQUOR CONTROL COMMISSION
Docket No. 92720
Court of Appeals of Michigan
Submitted December 10, 1986. Decided May 25, 1988.
Leave to appeal denied, 431 Mich 886.
171 Mich App 137
The Court of Appeals held:
The Liquor Control Commission is vested with complete authority to regulate alcoholic beverage traffic subject only to limitations imposed by the Legislature. For this reason, and because the underlying facts were not disputed, the Court of Appeals’ rеview is limited to determining whether the commission‘s application of the Liquor Control Act prohibition to plaintiff is authorized by law and supported by competent, material, and substantial evidence. Under the facts of this case, it cannot be concluded that the commission‘s application of the
REFERENCES
Am Jur 2d, Declaratory Judgment §§ 1-4, 244.
Am Jur 2d, Intoxicating Liquors §§ 147 et seq., 177 et seq.
See the Index to Annotations undеr Declaratory Judgments or Relief; Intoxicating Liquors.
Reversed.
D. J. SHIPMAN, J., dissented. He would hold that the statute at issue only prevents a law enforcement officer from having an interest in a liquor license and that the fact that plaintiff is leasing the premises to a holder of a liquor license, without more, does not constitute an interest in a liquor license as contemplated by the Legislature in enacting the statute. He would affirm the circuit court‘s opinion and order.
- JUDGMENTS — DECLARATORY JUDGMENT.
A declaratory judgment is a flexible remedy available to a party when necessary to guide the party‘s future conduct in order to preserve his or her legal rights. - APPEAL — DECLARATORY JUDGMENT — DE NOVO REVIEW.
The Court of Appeals’ review of a declaratory judgment is de novo on the record. - INTOXICATING LIQUORS — LIQUOR LICENSES — PUBLIC OFFICIALS — LIQUOR CONTROL ACT.
A public official‘s financial benefits derived from, and his participation in, a business owning a liquor license is considered in determining whether the official has a direct or indirect interest in the liquor license for purposes of the Michigan Liquor Control Act (MCL 436.18[1] ;MSA 18.989[1] ). - INTOXICATING LIQUORS — LIQUOR LICENSES — LAW ENFORCEMENT OFFICERS — RENTAL PROPERTY — LIQUOR CONTROL ACT.
The Liquor Control Commission may lawfully condition a transfer of a lessee‘s liquor license to premises owned by a law enforcement officer on the officer‘s resignation from his employment as an officer or upon the selling of the premises; the receipt of rent from a licensee in such а situation inherently establishes a link between the law enforcement officer and the licensed tenant, creating a pecuniary relationship in which the officer‘s financial gain in the form of rental payments is related to the licensee‘s ability to maintain its license to continue selling liquor on the rental property (MCL 436.18[1] ;MSA 18.989[1] ).
Michael Odette, in propria persona.
Frank J. Kelley, Attоrney General, Louis J. Caruso, Solicitor General, and Frank J. Pipp and Richard I. Rubin, Assistant Attorneys General, for defendant.
Before: WAHLS, P.J., and MAHER and D. J. SHIPMAN,* JJ.
MAHER, J. Defendant, Michigan Liquor Control Commission (MLCC), appeals as of right from the trial court‘s opinion and order of May 1, 1986, granting declaratory relief in favor of plaintiff. The opinion and order also permanently enjoined MLCC from dеnying or revoking a transfer to plaintiff‘s premises of the liquor license belonging to plaintiff‘s tenant, Sunshine Food Corporation. The sole issue concerns whether MLCC may lawfully condition a transfer to plaintiff‘s premises of Sunshine‘s liquor license upon plaintiff‘s resignation from employment at the Oakland County Sheriff‘s Department or upon the selling of his premises.
The material facts are not in dispute. In the latter part of 1984, plaintiff began construction of a building in Oakland County to be used as a commercial retail outlet. Plaintiff also entered into a ten-year lease agreement with Sunshine, under the terms of which Sunshine would have a right to conduct any lawful business on the premises. Sunshine, which wаs in the business of operating party stores, applied to MLCC for a transfer of its liquor license from its current store location to plaintiff‘s premises. MLCC‘s decision to condition its approval of the transfer request on plaintiff‘s resignation from his employment with the sheriff‘s department or the sale of his rental property was*
A person who holds or whose spouse holds, either by appointment or election, a public office which involves the duty to enforce any of the penal laws of the United States, or the penal laws of this state, or a penal ordinance or resolution of any municipal subdivision of the state, except civil defense volunteer рolicemen, mayors or council members of cities, or village presidents, or mayors of home rule cities whose law enforcement authority under the city charter is restricted to emergency situations, shall not be issued a license, or have an interest, directly or indirectly, in a license. However, a nonprofit fraternal orgаnization incorporated under the laws of this state, whose membership is not totally composed of law enforcement personnel or public officeholders charged with the duty of enforcing any penal laws or ordinances of a governmental body, may be issued a club liquor license if the organization is otherwise qualified.
Plаintiff responded to MLCC‘s decision by resigning from his position as a county deputy and by filing suit. Plaintiff regained employment, however, after the trial court entered a temporary restraining order preventing MLCC from interfering with Sunshine‘s liquor license or plaintiff. The subject matter of this appeal is plaintiff‘s motion for declaratory relief made in the lowеr court. The motion was decided based on the parties’ briefs and oral arguments and the undisputed facts contained therein.
On appeal, our first concern is the appropriate standard of review. A declaratory judgment is a flexible remedy. It is available to a party when necessary to guide the party‘s future conduct in оrder to preserve his or her legal rights. Shavers v. Attorney General, 402 Mich 554, 588; 267 NW2d 72 (1978), cert den sub nom Allstate Ins. Co. v. Kelley, 442 US 934 (1979).
In applying § 18, we are guided by the following rules of statutory construction:
This Court‘s guiding principle of statutory interpretation is to determine and effectuate the intent of the Legislature. Charpentier v. Canteen Corp., 105 Mich App 700, 704; 307 NW2d 704 (1981). To ascertain this intent, the Court must first review the specific language of the disputed provision, giving all terms their рlain and ordinary meaning absent a contrary legislative intent. Lamphere Schools v. Lamphere Federation of Teachers, 400 Mich 104, 110; 252 NW2d 818 (1977). When an ambiguity is found, resulting in alternative interpretations being possible, this Court may refer to any factors which may advance the most probable and reasonable legislative intent. Charpentier, supra, pp 704-705. [Couture v. General Motors Corp., 125 Mich App 174, 177-178; 335 NW2d 668 (1983), lv den 418 Mich 884 (1983).]
We recognize that an act must be read in its entirety, with meaning being given to one section only after due consideration of other sections, so as to produce, if possible, a harmonious and consistent enactment as a whole. Stratton-Cheeseman Management Co v. Dep‘t of Treasury, 159 Mich App 719, 724; 407 NW2d 398 (1987). We are also mindful that administrative interpretations of a statute by the agency responsible for that statute‘s administration are accorded deference by the courts and must be reviеwed with respectful consideration. Berrien Co v. Michigan, 136 Mich App 772, 782; 357 NW2d 764 (1984); Bd. of Ed. of Oakland Schools v. Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977).
The controversy in this case involves whether plaintiff had an “indirect” interest in Sunshine‘s liquor license. The term “indirect” has been defined in The American Heritage Dictionary of the English Language (1978), New College Edition, p 670, as follows:
- Not taking a direct course; roundabout. 2. Not descending in a straight line of succession. Said of an inheritance or title. 3. a. Not straight to the point; circumlocutory. b. Evasive; devious. 4. Not directly planned for; secondary: indirect benefits. 5. Relating to or characteristic of indirect discourse. In this sense, also “oblique.”
In Michigan case law, we find some guidance
Under the facts in this case, we cannot conclude that MLCC‘s application of § 18 is not authorized by law оr is not supported by competent, material, and substantial evidence. We reach this decision based on the deference courts acknowledge for interpretations of a statute by an agency charged with the statute‘s enforcement, Berrien Co, supra, the legislative intent undergirding § 18, and the meaning derived from a logical reading of the statutе itself.
The legislative intent behind § 18 is, in part, to avoid a situation in which a law enforcement officer is faced with a conflict of interest such that he or she is called upon to enforce a provision of the Liquor Control Act at a licensed premises in which he or she possesses even an indirect interest. We do not believe thаt that intent would be furthered where, as in the instant case, a law enforcement officer, functioning as a landlord, derives financial benefits in the form of rent from a licensee. The receipt of rent from a licensee in such a situation inherently establishes a link be-
Moreover, we cannot close our eyes to the link between a law enforcement officer and a liquor licensee which may be created by the mere payment of money. It is not unreasonable, we believe, to recognize that economic interests in our sociеty often foster relationships of a very strong synergistic and symbiotic nature. Thus, the legislative intent behind § 18 may seriously be eroded by permitting a law enforcement officer to be placed into a situation in which his economic interest of retaining a paying commercial tenant, which relies upon its liquor license to generate prоfits, runs contrary to the performance of official duties which could lead to the revocation of the tenant‘s liquor license. Common sense and logic suggest that, in such a situation, a law enforcement officer, because of the rent received from the licensee, may indeed be tempted to perform his official dutiеs not with total objectivity but with some regard to the effect such performance may have on his pocketbook. This is precisely the kind of conflict-inducing situation which § 18 seeks to avoid. As observed, perhaps cynically but certainly in-
In conclusion, we disagree with the circuit court, which reversed MLCC‘s determination because it “was not supported by any of the underlying facts and the agency‘s construction of the statute was given the most unreasonable interpretation and arbitrary application.” We find that MLCC‘s determination is authorized by law and is supported by competent, material, and substantial evidence. Accordingly, we reverse the circuit court‘s grant of declaratory and injunctive relief in favor of plaintiff and reinstate MLCC‘s determination conditioning the transfer of Sunshine‘s liquor license to plaintiff‘s rental property upon plaintiff‘s resignation from the sheriff‘s department or upon the sale of plaintiff‘s premises.
Reversed. No costs, a question of first impression being involved.
WAHLS, P.J., concurred.
D. J. SHIPMAN, J. (dissenting). I respectfully dissent. Long-stаnding administrative interpretations of a statute, while entitled to considerable weight, are not conclusive and cannot be used to override a logical reading of the statute. People v. Dunn, 104 Mich App 419, 425; 304 NW2d 856 (1981), and Stratton-Cheeseman Management Co v. Dep‘t of Treasury, 159 Mich App 719, 724; 407 NW2d 398 (1987).
In the present case, we have not been presented with a long-standing administrative interpretation of
In this fact situation, the transaction in question is a lease agreement. There is nothing in the lease that ties its terms, conditions of default, or cash flow to the success or failure of the bеer and wine license. Although it appears that plaintiff benefits from Sunshine‘s liquor license to the extent that Sunshine would not move its party store to plaintiff‘s premises unless MLCC approved the transfer of its liquor license, I do not believe that this constitutes an “indirect interest” in a liquor license as contemplated by the Legislature.
The undisputed facts are totally devoid of any participation by plaintiff in Sunshine‘s business or his receipt of financial benefits other than the rent Sunshine pays for the use of plaintiff‘s premises. Thus, I find that MLCC‘s application of § 18 to plaintiff was not authorized by law. Plaintiff‘s purely landlord-tenant relationship with Sunshine, without more, does not create an interest in Sunshine‘s liquоr license. Accordingly, I would affirm the trial court‘s opinion and order.
Plaintiff has raised constitutional arguments in
I would affirm.