Oklahoma Alcoholic Beverage Control Bd. v. Seely

Oklahoma Alcoholic Beverage Control Bd. v. Seely
1980 OK 189
621 P.2d 534
Case Number: 53345
Decided: 12/16/1980
Supreme Court of Oklahoma

OKLAHOMA ALCOHOLIC BEVERAGE CONTROL BOARD, APPELLANT,
v.
JEAN A. SEELY D/B/A SEELY RETAIL PACKAGE STORE, APPELLEE.

Appeal from the District Court of Nowata County; Glenn H. Chappell, Associate District Judge, Presiding.

¶0 In an appeal from the District Court of Nowata County, the Honorable Glenn H. Chappell presiding, the Oklahoma Alcoholic Beverage Control Board seeks reversal of the judgment of the District Court setting aside the refusal to renew the package store license of Jean A. Seely. The Oklahoma Alcoholic Beverage Control Board, sitting en banc, had previously affirmed the ruling of its Director in that regard, under the authority of Title 37 O.S. § 527 (a)(3) prohibiting Mrs. Seely from renewing her package license on the sole basis that her husband committed a felony without her knowledge or assistance, and in spite of the fact that he did not participate in the management of the store.

AFFIRMED.

Jan Eric Cartwright, Atty. Gen. of Okl., Duane N. Rasmussen, Asst. Atty. Gen., Oklahoma City, for appellant.

Carol J. Russo, Tulsa, for appellee.

HARGRAVE, Justice.

[621 P.2d 535]

¶1 In August, 1973, Jean A. Seely, the appellee, was granted a package store license to operate Seely's Retail Package Store. On June 13, 1978, a letter was issued by Charles Beaver, Chief Enforcement Officer for Richard A. Crisp, Director of the Oklahoma Alcoholic Beverage Control Board (Board), to the appellee which indicated a contemplated denial of her application to [621 P.2d 536] renew her license.

¶2 Title 37, Section 527(a)(3) provides in pertinent part: The Board shall refuse to issue a . . . package store license either on an original application or a renewal application, if it has reasonable grounds to believe and finds any of the following to be true: . . . . .

(3) That the applicant or any partner, or spouse of the applicant or any partner, has been convicted of a felony.

¶3 Pursuant to the provisions of the Oklahoma Administrative Procedures Act, 75 O.S. 1971 §§ 301-327 , the appellee perfected an appeal for judicial review of the Board's decision to the District Court of Nowata County, Oklahoma. The appellee maintained that the Board exceeded its statutory authority in violation of her constitutional rights by holding her responsible for the acts of her spouse of which she had no knowledge and by disregarding the fact that the appellee's spouse did not participate in the operation or management of the package store.

¶4 The District Court, in setting aside the Board's order, found on January 18, 1979, that the Board failed to show "a willful violation of a prohibited act or at a minimum, a knowledge of the commission of the willful violation of the prohibited act on the part of the licensee" and directed the Board to grant the renewal license. Thereupon, the Board perfected an appeal to this Court contending that the operation of a liquor-related business is a privilege granted by the State; that the State has broad inherent power to control all the liquor traffic within its boundaries; that Title 37, Section 527(a)(3) is constitutional; and that a willful or knowing violation of the law is not the sole basis for the proper denial of an application to renew a retail package store license.

¶5 This Court does not disagree with the Board's first broad contention that conducting a liquor-related business is a privilege granted by the State. In Brown Distributing Co. v. Oklahoma Alcoholic Beverage Control Board, 597 P.2d 324 (Okl. 1979), this Court stated that "[n]o one has an absolute or inherent right to a license to sell intoxicating liquor and its issuance is a matter, not of right but, of legislative grace and may be extended, limited, or denied without violating any constitutional right." Id. at 326. The Court added further that the "legislature, subject to constitutional restrictions, may lawfully grant the right to engage in the traffic of liquor to a certain class or classes of persons and withhold it from others, and no one may complain because liquor legislation has denied him the privilege of engaging in the liquor traffic." Id. Statutory authority for such language was found in 37 O.S. 1971 § 532 which states that "[a]ny license issued under [the Oklahoma Alcoholic Beverage Control] Act shall be a purely personal privilege." However, despite the rights-privilege distinction, which has been disputed by other jurisdictions, both state and federal, this Court is of the opinion that merely calling a liquor license a privilege does not free the state agencies from due process requirements in licensing. The distinction merely affords an opportunity to determine the extent and amount of the requirements afforded by due process.

¶6 Furthermore, this Court does not dispute the Board's second proposition that the State has broad inherent power to control all liquor traffic within its boundaries. [621 P.2d 537] It has been recognized in Oklahoma "that the liquor industry because of the very nature of its product requires strict control and close supervision [and] [a]s a result, the Legislature by virtue of the police power of the State possesses broad powers to regulate and supervise all phases of traffic in intoxicating liquors." State v. Parham, 412 P.2d 142, 147 (Okl. 1966). However it should also be recognized that in the licensing procedure considerations of fundamental fairness and justice comporting with due process should be evident even though this is a business which is subject to a high degree of supervision and regulation in the interest of the public welfare.

¶7 Finally, this Court agrees with the Board's third contention that Title 37, Section 527(a)(3) is facially constitutional. Article 27, Section 3 of the Oklahoma Constitution requires that "[t]he Legislature shall enact laws providing for the strict regulation, control, licensing and taxation of the manufacture, sale, distribution, possession, and transportation of alcoholic beverage. . . ." Therefore, there is no argument but that the Legislature was constitutionally authorized to enact Title 37, Section 527.

¶8 It is at this point, however, where the agreement with the Board's argument stops. The Board has argued that since Article 27, Section 10(d) of the Oklahoma Constitution expressly prohibits the issuance of a license to a person convicted of a felony in all cases save one

¶9 Testimony at the appellee's hearing was introduced to show that the appellee had operated without incident or complaint Seely's Retail Package Store as sole proprietor from August, 1973, the date of the initial issuance of her license, to July, 1978, the time of the requested hearing. It was also shown that the appellee's husband was involved on a full time basis in cattle ranching and that he had taken no part in the operation or management of the package store since March, 1974.

¶10 Further, uncontroverted testimony was introduced which established that the appellee did not have any knowledge of, or participation in, the crime for which her husband was convicted. The District Court held that the failure by the Board to show a willful violation of a prohibited act or at a minimum, a knowledge of the commission of the willful violation of the prohibited act on the part of the licensee prevented the Board from denying the appellee's renewal application on the basis of Section 527(a)(3). Despite the Board's argument that willfulness or knowledge are not factors to be considered when reviewing a license denial since the person denied the license falls within a class of persons statutorily deprived of that privilege, this Court agrees with the holding of the District Court. While the presence or absence of these two factors alone is not enough to warrant the issuance or denial of a license, these factors coupled with the unrefuted evidence [621 P.2d 537] presented in this case which clearly shows that the appellee's spouse exerted no control over the operation or management of the package store lead to a conclusion that in this case the legislative intent expressed in Title 37, Section 527(a)(3) would not be frustrated by the issuance of a license upon a renewal application to the appellee.

¶11 Therefore, although it is firmly established that the State has the right to regulate or prohibit the traffic of intoxicating liquor in the valid exercise of its police power and that the licensee has no vested right to the renewal of her license, the licensee does have a right to fair treatment when the Board considers her application for the renewal of her license. Based on the appellee's lack of knowledge of her husband's activities and on the appellee's husband's lack of participation in the operation of the retail package store as shown in this case, we AFFIRM the holding of the District Court.

¶12 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, HODGES, SIMMS and DOOLIN, JJ., concur.

¶13 OPALA, J., concurs in result.

Footnotes:

marker1fn0 The license issued in 1973 was to expire on June 30, 1978.

marker1fn0 Article 27, Section 10(d) prohibits the issuance of licenses to persons convicted of a felony, "except those persons who have held said stamp on a military reservation or installation."

marker1fn0 The appellee testified that in October, 1973, and February, 1974, her husband had helped operate the store since during those times she had suffered heart attacks.

OPALA, Justice, concurring in result:

¶1 At stake here is Mrs. Seely's claim to a renewal of her retail liquor license. The court's opinion affirms the district court decision in her favor. While I join in the court's judgment, I cannot concur in its pronouncement.

¶2 The Oklahoma Alcoholic Beverage Control Board (agency) found Mrs. Seely legally ineligible to hold a license because of her husband's felony conviction.

¶3 I find no legal warrant for watering down the per se disqualification provision in § 527(a)(3) by judicial construction which would superimpose a statutorily unexpressed requirement that there be some rational connection between the spouse's conviction and a licensee's lack of fitness. If the clear command of § 527(a)(3) is in fact constitutional, our duty must be to obey it to the letter and to hold this licensee disqualified.

¶4 The question to be answered here is whether the spousal-felony-conviction disqualification in § 527(a)(3) constitutes a bill of attainder prohibited by Art. 1 § 10, U.S. Const. and by Art. 2 § 15, Okl.Con. I would hold that it does.

¶5 So far as the provision here in question affects Mrs. Seely, § 527(a)(3) is not a statute but rather a legislative sentence condemning her complicity in her husband's felonious conduct and her involvement in his criminal activity. It is a legislatively expressed predetermination - in most conclusive terms - of her unfitness as a liquor license holder. Her exclusion results not from her own conduct - past or present - but is predicated solely on the conviction of another.

¶6 A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the enactment is termed a bill of pains and penalties.

¶7 By the terms of § 527(a)(3), Mrs. Seely was excluded from being licensed as a retail liquor dealer. The legislative sentence - perpetual and conclusive - affords her absolutely no opportunity for a judicial determination of her own fitness as a licensee.

¶8 I would hold that the per se disqualification in § 527(a)(3), which made Mrs. Seely ineligible for a liquor license upon her spouse's felony conviction, violates our constitutional interdiction of legislative attainders.

Footnotes:

marker1fn0 The felonious act of the husband - possession of a stolen automobile - was admittedly unrelated to the wife's liquor store operations.

marker1fn0 The pertinent provisions of § 527(a)(3) are:

"The Board shall refuse to issue a . . . package store license either on an original application or a renewal application, if it has reasonable grounds to believe and finds any of the following to be true:

* * * * * *

(3) That the applicant or any partner, or spouse of the applicant or any partner, has been convicted of a felony." [Emphasis added].

marker1fn0 "Courts do not concern themselves with the merits, wisdom or advisability of legislative enactments but only with their meaning and validity." Blackwell Zinc Company v. Parker, Okl., 406 P.2d 965, 969 [1965].

marker1fn0 Application of Goodwin, Okl., 597 P.2d 762, 764 [1979]; Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841 [1948].

marker1fn0 Cummings v. State of Missouri, 4 Wall. 277, 323, 18 L. Ed. 356 [1866]; United States v. Lovett, 328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed. 1252 [1946]; United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707, 14 L. Ed. 484 [1965].

marker1fn0 Cummings v. State of Missouri, supra note 5.

marker1fn0 United States v. Lovett, supra note 5, 66 S. Ct. at 1079; United States v. Brown, supra note 5, 85 S. Ct. at 1715; Cooper v. Henslee, 257 Ark. 963, 522 S.W.2d 391, 400 [1975].

marker1fn0 Putty v. U.S., 220 F.2d 473, 478 [9th Cir. 1955].

 9 California v. LaRue, 409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342 [1972].