Sunshine Truck Stop and Casino, L.L.C. VS State of Louisiana Through the Louisiana Gaming Control Board and the Louisiana Department of Public Safety & Corrections, Office of State Police, Bureau of Investigations, Gaming Enforcement Division and Lucky Star Auto/Truck Stop, L.L.C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0249 SUNSHINE TRUCK STOP AND CASINO L C VERSUS STATE OF LOUISIANA THROUGH THE LOUISIANA GAMING CONTROL BOARD AND THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS OFFICE OF STATE POLICE BUREAU OF INVESTIGATIONS GAMING ENFORCEMENT DIVISION AND LUCKY STAR AUTOTRUCK STOP L C Judgment Rendered September 10 2010 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 574 946 The Honorable Wilson Fields Judge Presiding Dennis A Pennington Michael J Harig Attorneys for PlaintiffAppellant C Sunshine Truck Stop Casino L Baton Rouge LA James D Caldwell Attorney General Karen L Godwin Baton Rouge LA Allison U Rovira Baton Rouge LA Attorneys for Defendant Appellee State of Louisiana LA Gaming Control Board LA DPS C Office of State Police Bureau of Investigations Gaming Enforcement Division Attorney for Defendant Appellee Lucky Star Auto Truck Stop L C BEFORE CARTER C GAIDRY AND WELCH JJ J CARTER C J Sunshine Truck Stop Casino L Sunshine C appeals a judgment of the district court sustaining multiple exceptions urged by the State of Louisiana through the Louisiana Gaming Control Board the Board and the Department of Public Safety and Corrections and dismissing the suit brought by Sunshine FACTS AND PROCEDURAL HISTORY Sunshine the plaintiff appellant herein holds a Class 5 Video Poker Establishment gaming license and operates video gaming devices at its establishment in St James Parish Sunshine initiated this proceeding after Lucky Star AutoTruck Stop L a Lucky Star AutoTruck Stop Inc Lucky C k Star applied to the Board for a Class 5 Video Poker Establishment gaming license for operation of video gaming devices at its establishment which is also located in St James Parish Sunshine petitioned the Board for a declaratory judgment but its petition was dismissed by the Board after consideration at an open meeting Sunshine then petitioned the district court for review of the Board decision and also sought a s declaratory judgment declaring that Lucky Star application for gaming license s was abandoned void should be dismissed or should be denied because issuance of its license was precluded Sunshine further sought a declaration that portions of the Louisiana Gaming Statute LSAR 27 et seq and the Louisiana Video S 1 Draw Poker Devices Control Law LSAR 27 et seq are unconstitutional S 301 The Board excepted to Sunshine petition on numerous grounds s The district court sustained dilatory exceptions raising the objections of improper cumulation of actions and lack of subject matter jurisdiction as well as peremptory Further facts and procedural history related to Lucky Star application to the Board are s set forth in Mareello v Louisiana Gaming Control Board 040488 La App 1 Cir 5 05 6 903 So 545 2d 2 exceptions raising the objections of no cause of action and no right of action and dismissed Sunshine suit Sunshine now appeals s DISCUSSION Subject Matter Jurisdiction Appeal ofBoard Decision s Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings based upon the object of the demand the amount in dispute or the value of the right asserted LSAC P C art 2 Subject matter jurisdiction is a threshold issue because a judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void LSA C art 3 Bordelon v Dehnert 99 2625 La App 1 P Cir 9 770 So 433 435 writ denied 002923 La 3 787 So 00 22 2d 01 19 2d 995 For the purpose ofjudicial review of administrative action district courts are courts of limited jurisdiction and only have appellate jurisdiction to review administrative actions as provided by the legislature or the constitution LSA Const art V 16B Metro Riverboat Associates Inc v Louisiana Gaming Control Board 01 0185 La 10 797 So 656 660 01 16 2d s Louisiana Administrative Procedure Act the APA governs appellate review of agencies decisions or orders See Metro Riverboat Associates Inc 797 So at 662 2d The Nineteenth Judicial District Court is vested with appellate jurisdiction over appeals taken from final decisions or orders of the Board in adjudication proceedings LSAR 27 Metro Riverboat Associates Inc 797 So at S 26 2d 662 2 Lucky Star was also named as a defendant in the proceedings before the district court and excepted to Sunshine petition By separate judgment the district court sustained peremptory s exceptions raising the objection of no cause of action and no right of action urged by Lucky Star and dismissed Sunshine suit Sunshine appeal of that judgment is the subject of the s s companion appeal Sunshine Truck Stop and Casino L v State of Louisiana through C the Louisiana Gaming Control Board et al 10 0276 La App 1 Cir L unpublished 3 The APA defines adjudication as agency process for the formulation of a decision or order LSAR 49 S 951 1 Decision or order is defined in pertinent part as the whole or any part of the final disposition whether affirmative negative injunctive or declaratory in form of any agency in any matter other than rulemaking required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing LSAR S 3 951 49 emphasis added Absent a constitutional or statutory requirement of a hearing an agency disposition is not a decision or order under the APA And if a decision or order does not result from the proceeding then the proceeding is not an adjudication Government Computer Sales Inc v State Through Div of Admin 980224 La App 1 Cir 9 720 So 53 56 Finally if 98 25 2d the agency action is not a decision or order in an adjudication proceeding then the district court does not have appellate jurisdiction to review the action See Metro Riverboat Associates Inc 797 So at 662 2d Sunshine filed a petition for declaratory judgment with the Board which is allowed by Louisiana Administrative Code 42 That provision states 116 III A Any interested person may file a petition for a declaratory order or ruling as to the applicability of any statutory provision or as to the applicability or validity of any rule or order of the Board B Petitions referred to in 116 shall be in writing and A filed with the Board at its office in Baton Rouge C Petitions filed with the Board in accordance with 116 shall be disposed of promptly After review we find no constitutional or statutory provision requiring a petition for declaratory judgment filed pursuant to Section 16 to be determined on the record after notice and opportunity for an agency hearing In fact the Board issued its decision dismissing Sunshine petition after consideration in an open s M meeting Considering this the Board order dismissing Sunshine petition is not s s a decision or order in an adjudication proceeding As such the district court lacked subject matter jurisdiction to adjudicate Sunshine appeal of the Board s s decision and correctly sustained the dilatory exception raising the objection of lack of subject matter jurisdiction After Sunshine appeal of the district court judgment was lodged s s Sunshine filed with this court a motion to supplement the appellate record with s Board entire record regarding the petition for declaratory judgment The motion was referred to the merits of this appeal Considering our determination regarding subject matter jurisdiction over Sunshine appeal of the Board decision the s s motion to supplement is denied Subject Matter Jurisdiction Application Declaratory Judgment Regarding Lucky Star s Sunshine further petitioned the district court for a declaration that Lucky s Star application for gaming license was abandoned void should be dismissed or should be denied because issuance of its license was precluded The Board is the sole and exclusive regulatory and supervisory board for gaming operations and activities in Louisiana LSAR 27 S 31 Essentially s Sunshine petition for declaratory judgment seeks to have the courts decide de novo the issue of whether a gaming license should have issued to Lucky Star Because of the legislative grant of power to the Board in LSAR 27 the S 31 courts are without jurisdiction to issue such a declaratory judgment It is the duty of the court to examine subject matter jurisdiction sua sponte even when the issue is not raised by the litigants McGehee v CityParish of East Baton Rouge 001058 La App 1 Cir 9 809 So 258 260 Thus 01 12 2d 5 we raise and sustain the dilatory exception raising the objection of lack of subject matter jurisdiction Standing to challenge constitutionality Additionally Sunshine seeks a declaration that certain portions of the gaming control law are unconstitutional The Board objected raising among other issues the question of whether Sunshine possessed the standing required to maintain such an action and therefore had a right of action The district court determined that Sunshine did not and sustained the peremptory exception raising the objection of no right of action A peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted LSA C art 927A Louisiana State Bar Ass v Carr and Associates P 6 n Inc 082114 La App 1 Cir 5 15 So 158 166 writ denied 09 1627 09 08 3d La 10 21 So 292 For courts to entertain a suit a plaintiff must have a 09 30 3d real and actual interest in the action asserted Ramsey River Road Property Owners Ass Inc v Reeves 396 So 873 874 La 1981 The concept of n 2d standing is utilized to determine if a party is sufficiently affected so as to ensure that a justiciable controversy is presented to the court Louisiana State Bar n Ass 15 So at 166 A plaintiff with a legally protectable and tangible interest 3d at stake in the litigation has standing to bring the action Id In its petition Sunshine alleged that it is an interested person because it holds a Class 5 Video Poker Establishment gaming license and operates video gaming devices Sunshine further alleged that it is a competitor in the State of Louisiana with all other duly licensed gaming facilities that there is a finite amount of gaming revenues to which it can receive through the operation of its business operations further inappropriate licensure of a facility that should not have been licensed results in a diminution of available revenues to 0 legitimately licensed facilities thereby adversely impacting all legitimate competitors The Louisiana Supreme Court has explained that a party has standing to argue that a statute violates the constitution only where the statute seriously affects the party own rights To have standing a party must complain of a constitutional s defect in the application of the statute to him or herself not of a defect in its application to third parties in hypothetical situations In re Melancon 05 1702 La 7 935 So 661 667 06 10 2d In analyzing the issue of Sunshine standing to raise the constitutional s arguments we are mindful that Sunshine holds a gaming license that is not at risk in any cited proceeding Rather Sunshine has argued that its business may suffer by increased competition due to licensure of a third party Considering this we conclude that Sunshine lacks the standing necessary to advance these constitutional attacks on the gaming control laws CONCLUSION For the foregoing reasons we conclude that the district court correctly sustained the dilatory exception of lack of subject matter jurisdiction over s Sunshine appeal of the Board action and the peremptory exception raising the s objection of no right of action as to the constitutional challenges We further raise and sustain the dilatory exception of lack of subject matter jurisdiction over s Sunshine request for declaratory judgment We therefore affirm the judgment of the district court dismissing Sunshine suit s The motion to supplement the appellate record is denied Costs of this appeal are assessed to Sunshine Truck Stop Casino L C MOTION TO SUPPLEMENT DENIED JUDGMENT AFFIRMED 3 Because of our decision regarding lack of subject matter jurisdiction and no right of action we pretermit discussion of the remaining issues as moot 7
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