Alcoholic Beverage Control Division & Carolyn and Tommy Robinson v. Helen Bethell

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

ALCOHOLIC BEVERAGE CONTROL DIVISION & CAROLYN AND TOMMY ROBINSON

APPELLANTS

V.

HELEN BETHELL

APPELLEE

CA 02-987

MAY 14, 2003

APPEAL FROM THE MONROE COUNTY CIRCUIT COURT

[NO. CIV-98-50]

HONORABLE L.T. SIMES, JUDGE

REVERSED AND REMANDED ON DIRECT APPEAL; REVERSED ON CROSS-APPEAL

In this case, the Board of the Alcoholic Beverage Control Division denied appellee Helen Bethell's application to transfer her retail liquor license to another location. Appellee appealed that decision to circuit court, where appellants Carolyn and Tommy Robinson were allowed to intervene. The circuit court reversed the Board's denial of the transfer-application, ruling that the decision was arbitrary, capricious, and not supported by substantial evidence. The Board and the Robinsons have joined in this appeal of the circuit court's decision.

For reversal, appellants contend that the circuit court erred in concluding that the Board's decision was arbitrary and capricious, and not supported by substantial evidence. They also argue that the circuit court erred in failing to address the issue of whether

appellee's license had lapsed due to non-use. On cross-appeal, appellee contends that the circuit court erred in granting the Robinsons' petition to intervene. We do not address the issues raised by appellants because we must reverse and remand since the Board failed to make sufficient findings of fact for us to review. We also reverse on cross-appeal because we agree that the trial court erred in allowing the Robinsons to intervene.

For forty years, appellee and her now-deceased husband operated a liquor store in downtown Brinkley, Arkansas. It was said that the downtown area had become depressed, and for reasons of safety, appellee closed the store. She later filed an application to transfer her license to a location on Highway 49, just north of Interstate 40, where a liquor store had previously been operated. At the hearing before the Board, several witnesses appeared in favor of appellee's application, and appellee presented a petition signed by a number of persons in support of the transfer. Appellant Tommy Robinson testified in opposition to the transfer. His wife, appellant Carolyn Robinson, owns a liquor store on Highway 49 just to the south of Interstate 40. Several letters opposing the transfer were also submitted to the Board.

The Alcoholic Beverage Control Board is empowered to determine whether public convenience and advantage will be promoted by issuing permits and by increasing or decreasing the number thereof. Ark. Code Ann. § 3-4-201(b) (Repl. 1996). In its decision in this case, the Board summarized the testimony of the witnesses and, under the heading of "Findings of Fact," the Board stated:

After a review of the evidence offered and the facts of the case,the Board finds that it is not convinced that transferring the location of Ms. Bethell's liquor store would attract more customers to her liquor store and to the liquor store owned by Carolyn Robinson, The Liquor Store of Brinkley, Inc. and that, based on the testimony, the Board finds that there are a sufficient number of alcoholic beverage permits in the Brinkley area near I-40 to adequately serve the public need for alcoholic beverages.

We hold that the Board's purported findings are insufficient.

The Administrative Procedure Act requires the Board to make specific findings of fact to support its decision. Arkansas Code Annotated section 25-15-210(b)(2) (Repl. 2002) provides:

A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

Whether sufficient findings of fact have been made is a threshold question in an appeal from an administrative board. Vallaroutto v. Alcoholic Beverage Control Bd., ___ Ark. App. ___, ___ S.W.3d ___ (2003). We have described what will pass muster as a satisfactory, specific finding:

It is a simple, straightforward statement of what happened. A statement of what the Board finds has happened; not a statement that a witness, or witnesses, testified thus and so. It is stated in sufficient relevant detail to make it mentally graphic, i.e., it enables the reader to picture in his mind's eye what happened. And when the reader is a reviewing court the statement must contain all the specific facts relevant to the contested issue or issues so that the court may determine whether the Board has resolved those issues in conformity to the law.

Green House, Inc. v. Alcoholic Beverage Control Div., 29 Ark. App. 229, 232-33, 780 S.W.2d 347, 349-50 (1989).

In this case, the Board's "findings of fact" are stated as conclusions without reference to any underlying facts it relied upon in making its decision. Thus, we consider the Board's findings inadequate for review, and we reverse and remand for the Board to make the required findings of fact.

Although we do not address the merits of appellants' arguments on appeal in light of our decision to remand for findings to be made, we consider it necessary to address the issue raised on cross-appeal because it affects the proceedings on remand. In this issue, appellee argues that the circuit court erred in allowing the Robinsons to intervene.

Rule 24 of the Arkansas Rules of Civil Procedure provides that:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Appellants moved to intervene under Rule 24(a)(2), stating in their petition "[t]hat in view of the fact that Interveners own the closest liquor store to the site of Petitioner's transfer location and stand to lose a substantial amount of business in the event the Board's decision is reversed, Interveners have a vital interest in the outcome of these proceedings and there is a strong likelihood that their interests may not be fully protected by Respondent, AlcoholicBeverage Control Division." The trial court granted the Robinsons' petition to intervene for the sole reason that appellee failed to respond to the petition within the ten-day deadline for responding to motions set out in Ark. R. Civ. P. 12(i).

We do not reverse a trial court's decision regarding intervention unless there has been an abuse of discretion. Milberg v. State, 342 Ark. 303, 28 S.W.3d 842 (2000). We find such an abuse here. We know of no authority that requires a court to grant a motion to intervene simply because an opposing party failed to register an objection on time. The trial court must still determine whether intervention is proper under the rule. It has been held that the financial impact of a proposed application on other businesses that sell alcohol is not considered relevant to the determination of public convenience and necessity. Fouch v. State, 10 Ark. App. 139, 662 S.W.2d 181 (1983). Therefore, the Robinsons' claimed interest in the action is not one that is cognizable under the law. It is our conclusion then that the trial court abused its discretion in permitting intervention.

Reversed and remanded on direct appeal; reversed on cross-appeal.

Stroud, C.J., and Robbins, J., agree.