MATTER OF E-Z SUPPLY

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No. 94-096 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 IN THE MATTER OF THE DENIAL OF THE APPLICATION FOR ISSUANCE OF ONE ORIGINAL (NEW) ON-PREMISES CONSUMPTION BEER/WINE LICENSE, TOWN PUMP OF WOLF POINT, 401 CASCADE. WOLF POINT. ROOSEVELT COUNTY;MONTANA, APPLICANTS: E-Z SUPPLY, INC., Appellant. APPEAL FROM: District Court of the First Judicial District In and for the County of Lewis and Clark, The Honorable Jeffrey Sherlock, Judge presiding. COUNSEL OF RECORD: For Appellant: Thomas E. Richardson, Attorney at Law, Butte, Montana For Respondent: Lawrence G. Allen, Tax Counsel, Montana Department of Revenue, Helena, Montana Submitted on Briefs: Decided: Filed: June 24, 1994 October 25, 1994 Justice Karla M. Gray delivered the Opinion of the Court. E-Z Supply, Inc. (E-Z), an affiliate of Town Pump, Inc., appeals from an order of the First Judicial District Court, Lewis and Clark County,, denying its petition for judicial review. We reverse, concluding that the Montana Department of Revenue (DOR) incorrectly interpreted and applied § 16-4-413, MCA, in denying E-Z's application for an on-premises beer and wine license (liquor license). On December 22, 1988, E-Z applied to the Liquor Division of the DOR (Liquor Division) for a liquor license for use at Town Pump's Wolf Point convenience store and filling station. Following a hearing at which protesters testified against the application because of the impact it would have on the community, the hearing examiner issued a proposed decision denying E-Z's application. E-Z withdrew the application. On September 15, 1991, E-Z submitted another application for a liquor license for use at the Wolf Point location. In September, 1992, the Liquor Division notified E-Z that the application would be denied pursuant to 5 16-4-413, MCA. granted, a hearing. conclusions of law, E-Z requested, and was The hearing examiner issued findings of fact, and a proposed order denying the 1991 application pursuant to § 16-4-413, MCA. The DOR subsequently adopted the findings, conclusions, and proposed order as its final decision. E-Z petitioned the District Court for judicial review of the DORIS decision. The District Court denied the petition, concluding 2 that the DOR correctly interpreted and applied 5 16-4-413, MCA. E-Z appeals. The issues before us relate to the interpretation and application of § X6-4-413, MCA. The interpretation and application of a statute to a particular set of circumstances are matters of law. See Minervino v. University of Montana (1993), 258 Mont. 493, 497, 853 P.2d 1242, 1245. An administrative agency's conclusions of law are reviewed by district courts and this Court to determine whether those conclusions are correct. GBN, Inc. v. Montana Dep't of Revenue (lPPl), 249 Mont. 261, 264, 815 P.2d 595, 597; Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803 P.Zd 601, 603. The first issue raised by E-Z is retroactively applying § that the DOR erred by 16-4-413, MCA, to its application filed September 15, 1991, prior to the statute's effective date. Because our holding on the second correct issue clarifies that a interpretation o:E g 16-4-413, MCA, results in no detriment or prejudice to E-Z, we decline to address this issue, assuming for purposes of this opinion that § 16-4-413, MCA, is applicable to the liquor license application presently before us. The second issue raised by E-Z is that the DORIS denial of the 1991 application was based on an incorrect interpretation of 5 164-413, MCA. determination E-Z asserts that, under 5 16-4-413(l), MCA, the DORIS tlnat E-Z's application did not present a "substantially different use" precluded further consideration and required the DOR to simply return the application to E-Z. We 3 agree. Our function in interpreting statutes is to effectuate the intent of the legislature. Minervino, "our 853 P.2d at 1244. primary tool for ascertaining the legislature's intent is the plain meaning of the words used." of America (1993), omitted). Sagan v. Prudential Insurance Company 259 Mont. 506, 509, 857 P.2d 719, 722 (citation "If the legislature's intent can be determined from the plain meaning of the words used in a statute, we will go no further." State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 204. Section DORIS 16-4-413, processing of MCA, certain sets forth procedures reapplications for governing liquor the licenses. The procedures are applicable in the event of a previous denial of a liquor license application for the same premises pursuant to § 16-4-405, MCA. Section 16-4-413(l), MCA. Moreover, "[iIf an application is withdrawn after a hearing . . . in which testimony is received regarding any reason for denial provided in 16-4-405, the effect of the withdrawal is the same as if a final decision had been made denying the application . . . .I' Section 16-4-413(2), MCA. application In this case, E-Z withdrew its 1988 following such a hearing and, pursuant to § 16-4-413(2), MCA, the effect of the withdrawal was the same as if the 1988 application had been denied. Thus, the DORIS processing of E-Z's 1991 application is governed by the provisions of § 16-4-413, MCA. Once a previous application has been denied, 5 16-4-413(l), MCA, provides that "the department may not consider an application 4 . . . for those premises for 5 years unless the department . . . determines that the proposed use is substantially different from the use that was rejected." Given the manner in which the statute is structured, it is clear that the Vnless" clause in subsection (1) constitutes a condition precedent to the DOR's processing of a reapplication previous denial. further filed within five years of the Therefore, the DOR must first determine whether the application presents a substantially different use from that rejected in the previous application. determined that E-Z's 1991 substantially different use application. In the present case, the DOR application did not present a from that contained in the 1988 Thus, the condition precedent to the DORIS further processing of E-Z's 1991 application was not satisfied. Under that circumstance, § 16-4-413(l), MCA, directs that the DOR "may not consider" E-Z's 1991 application. The plain meaning of the word "consider" is "[t]o fix the mind on, with a view to careful examination . . . . To deliberate about and ponder over." Black's Law Dictionary 306 (6th ed. 1990). By utilizing the word "consider," the legislature clearly intended to relieve the DOR of the necessity of carefully deliberating over an application filed within five years of a previous denial where the application does not present a substantially different use. Thus, the plain meaning of the phrase "may not consider" is that, once the DOR determines that a subsequent application submitted within the five-year period does not present a substantially different use, it may not further process or evaluate the application. 5 We conclude that the plain language of § 16-4-413, MCA, precluded any further action on E-Z's 1991 application after the DOR determined that it did not present a substantially different use. The only action available to the DOR at that point was to return the application without further consideration. The DOR interpreted § 16-4-413, MCA, as authorizing it to deny E-Z's 1991 application. It argues that the legislative history of the statute supports its interpretation. As set forth above, if we can determine the legislature's intent from the p:Lain language of a statute, we will go no further. Nachtsheim, 833 P.2d at 204. We resort to legislative history only where legislative intent cannot be derived from the plain language of the statute. State ex rel. Roberts v. Public Service Commission (1990) I 242 Mont. 242, 246, 790 P.2d 489, 492 (citation omitted). Having concluded that the plain language of 5 16-4-413, MCA, does not permit the DOR to further consider or act on a subsequent application absent a "substantially different use" determination, we decline to review the legislative history. The DORIS interpretation that § 16-4-413, MCA, authorized it to deny E-Z's 1991 application was incorrect as a matter of law. As a result, we hold that the District Court erred by denying E-Z's petition for judicial review. Reversed and remanded to the District Court for entry of an order directing the DOR to return E-Z's application. 6 - ------. we concur: 7 wc-pG-5z October 25, 1994 CERTIFICATE OF SERVICE I hereby certify that the following certified order was sent by United States mail, prepaid, to the following named: Thomas E. Richardson, Esq. Attorney at. Law 600 South Main Butte, MT 59701 Lawrence G. AIlen, Tiu: Counsel Montana Department of Revenue P.O. Box 202701 Helena, MT 59620-2701 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA . BY: Deputy /

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