Arizona State Liquor Board v. Jacobs

511 P.2d 179, 20 Ariz. App. 166, 1973 Ariz. App. LEXIS 663
CourtCourt of Appeals of Arizona
DecidedJune 26, 1973
Docket2 CA-CIV 1397
StatusPublished
Cited by7 cases

This text of 511 P.2d 179 (Arizona State Liquor Board v. Jacobs) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arizona State Liquor Board v. Jacobs, 511 P.2d 179, 20 Ariz. App. 166, 1973 Ariz. App. LEXIS 663 (Ark. Ct. App. 1973).

Opinion

KRUCKER, Judge.

This appeal involves transfer of a Series 6 liquor license. Appellee Jacobs desired to establish a cocktail lounge at 211 East Broadway, Tucson, Arizona. Approval, of his application for a person-to-person and location-to-location transfer was recommended by the Mayor and City Council of Tucson, pursuant to A.R.S. § 4 — 201, subsec. C, as amended. Subsequently, the only matter in issue was the suitability of the location for a Series 6 liquor license.

On November 4, 1971, Col. Harold Moore, Superintendent of the Department of Liquor Licenses and Control, as the designated representative of the State Liquor Board, held a hearing on the transfer application and in a letter of November 8, 1971, informed Jacobs that the request had been denied. Jacobs appealed this ruling to the State Liquor Board, which, after a hearing, also denied the transfer on November 19, 1971. Jacobs appealed this decision to the Pima County Superior Court, which remanded the matter to the State Liquor Board for consideration solely of the evidence adduced at the November 19, 1971 hearing. The reason given by the court was that the Board’s decision had been arbitrary and capricious because facts not in evidence were considered by the Board.

On remand no new evidence was presented and the Board again denied the application. Jacobs again appealed to the superior court, which reversed the Board and granted the transfer. This appeal followed.

Additional pertinent facts are that at the time of application for the transfer there were 36 retail liquor licenses within a one-half mile radius of the proposed location, 17 of which were Series 6. The proposed location was between two bus stations and near the new Martin Luther King apartments for the elderly. Appellee planned to draw a large part of his clientele from the bus passengers since neither station had a cocktail lounge. The maximum capacity of his proposed cocktail lounge was 80 to 90 people. Over 220 people expressed support for the transfer and 66 their disapproval. The Greyhound bus terminal manager originally expressed disapproval, but subsequently withdrew his opposition.

The principal opposition was from Mr. Maxwell Powell, who owned the El Presidio Bar across the stifcet from applicant’s proposed location. He held a No. 6 license for his bar and appeared at the hearings before the superintendent and the State Liqudr Board to oppose Jacobs’ transfer application.

In 1969 the Mayor and Council of Tucson had disapproved a liquor license for the same location. Appellee testified that since that time the depressed area (around 211 East Broadway) had become rejuven *168 ated by the addition of the apartments for the elderly and the two bus stations.

In its judgment reversing the State Liquor Board, the trial court stated:

“ . . . The Court finds by overwhelming evidence that the public convenience requires and the best interest of the community will be substantially served by the transfer of said license.

This is not one of the statutory grounds for appeal in A.R.S. § 4-211, subsec A, as amended. 1 However, if the trial court reaches the right result but for the wrong reason, its decision will not be overturned. In re Sherrill’s Estate, 92 Ariz. 39, 373 P.2d 353 (1962); Magma Flood Control District v. Palmer, 4 Ariz.App. 137, 418 P.2d 157 (1966). We must use as our guidelines those given to the superior court in A.R.S. § 4 — 211, subsec, C, as amended. 2 Patula v. Circle K Corporation, 17 Ariz.App. 317, 497 P.2d 824 (1972).

To meet the requirements for approval of a location-to-location transfer, there must be a “satisfactory showing . .. that the public convenience required and that the best interest of the community will be substantially served by the issuance” of the license. A.R.S. § 4— 203, subsec. A. as amended. Among other things, it was appropriate for the State Liquor Board to consider the number of existing licenses in the area, the extent of liquor sales, and the extent of demand in the area. Patula v. Circle K Corp., supra.

Appellee’s brief challenges the evidence regarding the alleged saturation of the downtown area with liquor licenses by pointing out that there were only “two decent No. 6 bars open to the public within a comfortable walking distance of 211 East Broadway.” With regard to the demand, he indicated that those two bars could not handle the number of people- who frequent the area and those who expressed support for the transfer. According to Mr. Powell, however, only six. or seven people from the nearby Martin Luther King apartment building, which has 96 units, expressed approval.

The trial court also based its reversal of the State Board on the ground that there was no competent evidence to justify its decision, as required by A.R.S. § 4 — 211, as amended, supra.

In a case very similar to the instant one, Arizona State Liquor Board v. Employee’s Distributing Co., 14 Ariz.App. 15, 480 P.2d 38 (1971), the superior court reversed the State Liquor Board’s denial of a location-to-location transfer on the ground that “ . . . the evidence adduced was sufficient to justify the granting of plaintiff-appellant’s application.” The appellate *169 court reversed the superior court, however, because “ . . . [t]he record appeared] to reflect sufficient facts upon which the State Liquor Board could exercise its statutory discretion in denying the transfer.” As appellee properly points out in his brief, the rule of Employee’s Distributing Co., supra, is that “. . .if there is evidence which would justify a transfer and there is also evidence which would justify a denial of an application to transfer, the Board’s decision either way cannot be disturbed on appeal.” Appellee argues that there is no such evidence, or if there is, only a scintilla of evidence. With this we do not agree. Although reasonable minds might differ as to the weight to be given to the evidence, there was sufficient evidentiary support for the Board’s decision. Much of the evidence in appellee’s favor was in the form of Jacobs’ testimony. The trier of fact, however, is not bound to accept as true testimony of an interested party even if it is uncontradicted. Graham v. Vegetable Oil Products Co., 1 Ariz.App. 237, 401 P.2d 242 (1965).

Appellee challenges the seven items of evidence relied upon by appellants as supporting the Board’s denial.

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Bluebook (online)
511 P.2d 179, 20 Ariz. App. 166, 1973 Ariz. App. LEXIS 663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arizona-state-liquor-board-v-jacobs-arizctapp-1973.