707 S.W.2d 805 | Mo. Ct. App. | 1986
Bingo licensee under § 313.015 RSMo Cum.Supp.1984, Seventy-One Sportsmen Club, Inc., appeals from a decision of Administrative Hearing Commission which affirmed a decision of the Director of Revenue refusing to renew the license which expired June 30, 1983 (RV-85-2335), and revoked any new license (RV-85-3472). The Administrative Hearing Commission acted under licensee’s complaint filed pursuant to § 621.120 RSMo Cum.Supp.1984. Its decision was rendered on March 14, 1985, and this appeal was timely filed on April 10, 1985. § 621.189 RSMo Cum. Supp.1985.
For purposes of this appeal the basic facts are not in dispute. Seventy-One Sportsmen Club was qualified as a charitable and not-for-profit corporation to obtain a Chapter 313 bingo license. On December 10, 1981, it leased premises in St. Louis County to operate under its license. The lease permitted rentals for events such as wedding receptions and banquets but prohibited a sublease without consent of the lessor. On October 8, 1982, the licensee entered into an agreement, styled “Rental Agreement” with Bombers’ Athletic Association, an eligible organization with a bingo license. The rental agreement was prepared by counsel and was intended to not create a problem or violation under Chapter 313. It referred to the lease from the owners to Seventy-One Sportsmen Club so as to identify the space to be rented, and provided “[t]he rental space shall be utilized only to conduct bingo.” The specific provisions relevant to the issues in this dispute were as follows:
3. The rental hereunder is only for Tuesday of any week. This agreement shall not be construed as granting a term rental to the Rental Party, but merely to define the terms of daily rental when and if utilized.
Bombers agreed to pay Seventy-One Sportsmen Club $575.00 for each day of use under the agreement.
On July 8,1983, the Department of Revenue notified licensee that its Bingo License which expired on June 30, 1983, would not be renewed. The reasons given by the Department were that the licensee had permitted advertising on leased premises, and paid a single prize exceeding $500.00. These acts are prohibited by § 313.040(9) and (4) RSMo Cum.Supp.1984. The licensee filed a complaint under § 621.120 RSMo Cum.Supp.1984, together with a petition for stay. This became the Administrative Hearing Commission (Commission), Case Number RV-85-2335. Petition for a stay order was granted by the Commission on July 19, 1983, under which the licensee continued to operate pending a final decision of the Commission. On October 19, 1983, the Department of Revenue notified the licensee of an additional ground to revoke or deny renewal of license “from the time the aforementioned stay is lifted and for an indefinite period of time thereafter.” That ground was that the licensee as a lessee had provided both leased premises and bingo equipment, a violation of § 313.-040(11) RSMo Cum.Supp.1984. The licensee filed a second complaint under § 621.-120 RSMo Cum.Supp.1984 in order to have a hearing on the determination of prohibited “dual rental.” This became Case Number RV-85-3472.
Both complaints of licensee and a related complaint of Bombers Athletic Association
The Administrative Hearing Commission made findings of fact. It found that the licensee conducted bingo three evenings a week, utilizing equipment that it had purchased including a flashboard, a public address system, and a machine which was nailed to the premises and used to circulate and dispense numbers. It also found that Bombers Athletic Association advertised its bingo games by attaching small signs to the inside of windows readable by the general public from outside the building. This act was found to be prohibited advertising. It also found that from January 18, 1983 until January 7, 1984, Bombers Athletic Association had no bingo equipment of its own other than bingo cards, and used the above-described equipment of Seventy-One Sportsmen Club. This was found to be a prohibited dual lease. Before the Hearing Commission and on appeal licensee argues that the rental agreement was not a lease, that Seventy-One Sportsmen Club was not a lessor, and did not violate § 313.040(11) by “leasing” both space, and providing bingo equipment. The Hearing Commission concluded as a matter of law that for purposes of this section the act of renting and the act of leasing premises together with the furnishing of bingo equipment were prohibited. In summary, the Commission determined that Seventy-One Sportsmen Club permitted advertising on the premises, and furnished both the premises and bingo equipment, in violation of §§ 313.-040(9) and (11) RSMo Cum.Supp.1984. It affirmed the Department’s determination to refuse to reissue a bingo license.
On appeal licensee, Seventy-One Sportsmen Club, contends that the finding with regard to advertisement was contrary to the facts, wrong as a matter of law, arbitrary, capricious, and unreasonable. It makes the same complaint with regard to the finding that it leased both premises and bingo equipment.
The decision of the Administrative Hearing Commission shall be upheld when authorized by law, and supported by competent and substantial evidence upon the whole record. § 621.193 RSMo Cum.Supp. 1984. James v. TRES Computer Service, 642 S.W.2d 347, 348 (Mo. banc 1982).
During the period of license by Seventy-One Sportsmen Club, the Department of Revenue regularly inspected the premises. On at least four occasions, petitioner was notified by the Department that petitioner was violating the statutory restrictions on advertising. The offending signs were placed against windows and the message was visible from the street. It notified the public of bingo games every Thursday night. Each time petitioner was notified of the violations, the advertisements were removed, however, upon subsequent inspection the signs were back on the window. The evidence supports the finding of the Administrative Hearing Commission on this point. Seventy-One Sportsmen Club leased the premises from the owners of the property, and advertised bingo games on the premises. On the facts, the licensee’s first assault on the determination of the Commission fails.
Licensee’s second complaint is a matter of law. It turns on the question of whether § 313.040(11) prohibits the owner of premises from supplying both the premises and bingo equipment under a lease in the traditional sense ánd under a license or rental agreement that is not a lease in the traditional sense. The Commission concluded that the act of renting both premises and equipment is prohibited by this section, and therefore, the licensee did not “show that under the law [it] is entitled to ... renewal.” § 621.120 RSMo Cum.Supp. 1984.
We conclude that the Administrative Hearing Commission did not err in determining that Chapter 313 was intended to regulate rentals and licenses, and not merely leases, although the latter term is used consistentently, and the former terms are not. Generally, penal statutes are given strict construction, and doubt should be resolved in favor of the party affected by them. 73 Am.Jur.2d Statutes, Paragraph 293, page 451. Chapter 313 is not, however, a penal statute in the usual sense.
We affirm.
. License is a privilege which allows the licensee to do certain things which without the license would be illegal. Frank v. Wabash Railroad Company, 295 S.W.2d 16, 20 (Mo.1956).