ARKANSAS BEVERAGE RETAILERS ASS'N v. Moore

256 S.W.3d 488
CourtSupreme Court of Arkansas
DecidedMay 3, 2007
Docket06-794
StatusPublished

This text of 256 S.W.3d 488 (ARKANSAS BEVERAGE RETAILERS ASS'N v. Moore) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ARKANSAS BEVERAGE RETAILERS ASS'N v. Moore, 256 S.W.3d 488 (Ark. 2007).

Opinion

256 S.W.3d 488 (2007)

ARKANSAS BEVERAGE RETAILERS ASSOCIATION, INC. and Albert Young, Appellants,
v.
Robert S. MOORE, Jr., Director, Alcoholic Beverage Control Board, Daniel S. Holtrey, Sam's West, Inc., and Sam's Club # 8209, Appellees.

No. 06-794.

Supreme Court of Arkansas.

May 3, 2007.

*489 Charles R. Singleton, P.A., by: Charles R. Singleton, Little Rock, for appellant.

PAUL E. DANIELSON, Justice.

Appellants, the Arkansas Beverage Retailers Association, Inc., Albert Young, President, and Albert Young, Individually (hereinafter referred to jointly as "ABRA"), appeal from the circuit court's order dismissing ABRA's petition for judicial review of appellee Arkansas Alcoholic Beverage Control Board's (ABC Board) decision to approve appellee Daniel S. Holtrey's application for the transfer of liquor and beer permits on behalf of appellee Sam's Club. The case was certified to this court from the court of appeals, as one involving an issue of first impression, substantial *490 public interest, and the interpretation of an act of the General Assembly. See Ark. Sup.Ct. R. 1-2(d) (2006). ABRA's sole point on appeal is that the circuit court erred in finding that the ABRA did not have standing under the Arkansas Administrative Procedure Act (APA), codified at Ark.Code Ann. §§ 25-15-201-25-15-217 (Repl.2002 & Supp. 2005), to appeal from the ABC Board's decision. Because we hold that ABRA has demonstrated an injury sufficient to confer standing on which to challenge the ABC Board's decision under the APA, we reverse and remand.

A review of the record reveals that on July 20, 2005, the ABC Board conditionally granted appellee Holtrey's application, on behalf of appellee Sam's Club # 8209, for the replacement and transfer of location of retail liquor and beer off-premises permits. In its findings of fact and conclusions of law, the ABC Board found that what was being presented was "a transfer of location of an existing liquor store across the city of Fayetteville" and was "not an application for a new liquor store." It further found that the effort was "more suitable for public convenience and advantage" than a prior application that had been made in Springdale and that there was a broad base of support from public officials. The ABC Board went on to find:

As far as the issue of economic protectionism raised by some witnesses, the Board finds that based on case law economic protectionism cannot be a valid consideration on this application. The Board further finds there are no traffic concerns that should prevent the transfer of location of the liquor store permit as requested. Based on the above items, it is found that the transfer of location is one that will promote the public convenience and advantage and should be granted under the terms of ABC Reg. 1.33(4).

It then granted the application, conditioned upon completion of construction of the building to house the permit as per plans submitted within one year of the date of the decision.

On August 19, 2005, ABRA filed a petition for judicial review in the circuit court. The petition stated that ABRA was composed of twenty-five retail liquor package stores licensed by the ABC Division and operated around the state. It alleged that the ABC Board's decision should be reversed in that it was: (1) arbitrary, capricious, characterized by an abuse of discretion, and was not supported by substantial evidence; (2) in violation of statutory provisions as a result of the Board's misinterpretation of Ark.Code Ann. § 3-4-218 (Supp.2005);[1] and (3) made upon unlawful *491 procedure resulting from Board members' ex parte contact with a Sam's Club representative. Finally, ABRA stated that its members considered themselves injured in their person, business, and property by the decision of the ABC Board. Holtrey, in his answer to ABRA's petition, affirmatively stated that ABRA lacked standing to bring the action because its members had not sustained and were not in imminent danger of sustaining injury to their person, business, or property.[2]

ABRA then filed an amended petition for judicial review, in which it more specifically stated that its members who owned and operated package stores in Fayetteville would suffer injury to their business and property interests as a result of the ABC Board's decision due to their inability to compete on an equal basis with Sam's Club. It maintained that allowing such department stores to sell alcoholic beverages along with their other products and restricting other retail package stores to sales of alcoholic beverages would injure ABRA members in their business and property interests. ABRA further alleged that the ABC Board misinterpreted Ark. Code Ann. § 3-4-218.

On December 5, 2005, Holtrey filed a motion to dismiss for lack of standing. On December 27, 2005, Holtrey filed a renewed motion to dismiss for lack of standing. In it, he claimed that the alleged economic injury claimed by the competing liquor-store owners had been rejected as a relevant basis for appeal of ABC Board decisions, citing Fouch v. State, 10 Ark. App. 139, 662 S.W.2d 181 (1983). He asserted that because the ABRA members' alleged injury was not relevant to the decision-making process of the ABC Board, ABRA did not have standing to challenge the decision of the Board in the instant matter. ABRA responded, claiming that Holtrey had mischaracterized the case law and that to the group's knowledge, Arkansas courts had never held that financial damage was not a proper basis for claiming standing to file an appeal under the APA.

On April 4, 2006, the circuit court issued its memorandum order after holding a hearing on March 3.[3] In its order, the circuit court relied on two decisions of the court of appeals, Fouch v. State, supra, and Arkansas Alcoholic Beverage Control v. Muncrief, 74 Ark.App. 221, 45 S.W.3d 438 (2001), and found that: (1) testimony concerning undercutting of prices and the loss of business by a competing liquor store was insufficient to support standing, and (2) financial impact on area stores could not support standing in the instant case. Consequently, the circuit court ruled that ABRA's petition for judicial review must be dismissed for lack of standing to seek review of the ABC Board's decision. In addition, the circuit court concluded that because ABRA's allegations of injury related to its members' ability to compete with Sam's Club, or future similarly situated stores, after the ruling from the ABC Board, the allegations were insufficient *492 to sustain a finding that they had standing to prosecute the action. After awarding the ABC Board its costs for preparing the record, the circuit court granted Holtrey's renewed motion to dismiss for lack of standing and dismissed with prejudice the petition for judicial review and all of its amendments. ABRA now brings this appeal.

ABRA argues that the circuit court misinterpreted the court of appeals' case law in its decision to dismiss ABRA's petition for judicial review for lack of standing. ABRA contends that it alleged specific injury in its amended petition for judicial review. ABRA asserts that financial injury has been consistently recognized by Arkansas courts as a basis to assert standing.

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Arkansas Beverage Retailers Ass'n v. Moore
256 S.W.3d 488 (Supreme Court of Arkansas, 2007)

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Bluebook (online)
256 S.W.3d 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkansas-beverage-retailers-assn-v-moore-ark-2007.