Consolidated Municipality of Carson City v. Lepire

914 P.2d 631, 112 Nev. 363, 1996 Nev. LEXIS 51
CourtNevada Supreme Court
DecidedApril 12, 1996
DocketNo. 26809
StatusPublished
Cited by1 cases

This text of 914 P.2d 631 (Consolidated Municipality of Carson City v. Lepire) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consolidated Municipality of Carson City v. Lepire, 914 P.2d 631, 112 Nev. 363, 1996 Nev. LEXIS 51 (Neb. 1996).

Opinions

[364]*364OPINION

Per Curiam:

Respondent Eugene J. Lepire (Lepire) applied for a liquor license for a laundromat he owned and operated in Carson City. The application was denied by the Carson City Liquor Board (Board). Three years later, Lepire again applied for a liquor license, this time asserting that it was for a “restaurant-laundry.” He argued that because the laundromat had a microwave oven, two tables and eight chairs, the facility qualified as a dining room. His application was again denied. Lepire then filed a petition with the district court for a writ of mandamus. At the hearing on the writ, Lepire offered eleven exhibits, including four depositions which were not before the Board when it considered his application. The district court, after taking judicial notice of “hard core consumption of alcohol” at the facility next door to the laundromat, ordered the Board to grant Lepire’s liquor license. The Board appeals, arguing that the district court erred (1) by considering evidence beyond that which was before the Board; (2) by finding, as a matter of law, that the liquor control ordinance should be construed against the Board; and (3) by finding that the Board’s decision was an abuse of discretion.

The Board first argues that it was improper for the district court to consider evidence which was not part of the record before the Board when the Board made its decision. A total of six exhibits that were not before the Board when it denied Lepire’s application were admitted into evidence by the district court. Those exhibits included four depositions, a printout of all liquor licenses in Carson City, and a letter from Carson City Treasurer Ted Thornton.

“This court’s role in reviewing an administrative decision is identical to that of the district court: to review the evidence presented to the agency in order to determine whether the agency’s decision was arbitrary or capricious and was thus an abuse of [365]*365the agency’s discretion.” Jourdan v. SIIS, 109 Nev. 497, 499, 853 P.2d 99, 101 (1993) (citations omitted) (emphasis added).

Moreover, NRS 233B.135 provides that the “[judicial review of a final decision of an agency must be . . . [cjonfined to the record.” NRS 233B. 131(2) requires that before a court may consider evidence beyond what was presented to the agency, there must be a showing that the “additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency.” The court “may then order that the additional evidence ... be taken before the agency.” Id. None of these procedures were followed in this case, and it was error for the district court to admit the additional evidence.

Second, the Board takes issue with the district court’s finding that: “[t]he Carson City Ordinances defining dining room and restaurant[1] are vague and should be construed against the Board and in favor of [Lepire].” Because Lepire is attempting to get a “dining room with liquor” license, he is mainly concerned with the definition of “dining room,” which appears in the section of the Code that pertains to liquor licenses. Under CCMC § 4.13.010(9), “‘[d]ining room’ means a place which is regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation, which has suitable kitchen facilities connected therewith complying with all regulations of the departments of health of the city and state.”

This court has previously held that statutes relating to the sale of liquor are analogous to statutes regulating gaming. West Indies v. First National Bank, 67 Nev. 13, 214 P.2d 144 (1950). In West Indies, this court considered judicial construction of a gaming statute, and stated that,

[considering the limitations placed by law upon the license, the special class of industry licensed and its deleterious effect, the fact that it is in contravention of the common law, the fact that it is a statute granting special privileges, we [366]*366entertain no doubt but that the statute is one meriting strict construction against the licensee . . .

67 Nev. at 34, 214 P.2d at 154. We conclude that it was error for the district court to find, as a matter of law, that the ordinances pertaining to liquor licenses “should be construed against the Board and in favor of [Lepire].”

Lepire argues that if a statute has doubtful meaning, then a court must construe the statute in a manner which is least likely to “produce mischief.” In support of this proposition, Lepire cites Arnold v. Stevenson, 2 Nev. 234, 244 (1866). While it is true that Arnold stands for the proposition that a court must adopt that construction which will be the least likely to produce mischief, Lepire has failed to show how the construction of the ordinance by the Board will produce mischief. The Board found that Lepire’s facility, consisting of fifty-four washing machines and a microwave oven, was not “a place which is regularly and in a bona fide manner used and kept open for the serving of meals to guests.” See CCMC § 4.13.010(9). We conclude that more mischief would result from the construction propounded by Lepire, which would categorize any facility with a microwave oven as a “dining room,” which could then qualify for a liquor license allowing on-site consumption. This would include virtually every convenience market currently in operation.

Lepire’s facility would not qualify as a “dining room” even if the ordinance were given a liberal construction, because the ordinance requires that the facility be in compliance “with all regulations of the departments of health of the city and state.” CCMC 4.13.010(9). At the time he filed his petition for a writ of mandamus, Lepire had never had a permit to serve food, as required by the Carson City Health Department, but had been serving food without a permit. His facility was therefore not in compliance with the regulations of the health department and so could not qualify as a “dining room.”

Finally, the Board argues that the district court erred in finding that the denial of Lepire’s liquor license was an abuse of discretion. This court has held that “the essence of the abuse of discretion, of the arbitrariness and capriciousness of governmental action in denying a license application, is most often found in an apparent absence of any grounds or reasons for the decision.” City Council v. Irvine, 102 Nev. 277, 280, 721 P.2d 371, 372-73 (1986).

At the hearing on September 15, 1994, two people testified and indicated that they were in favor of the proposed liquor license. One of those testifying was an employee of Lepire’s. Three [367]*367people testified against the license, and the Board was told of a petition against the license which contained more than sixty-five signatures. The Board was further informed that all 150 members of the Carson Park Condo Homeowners Association were opposed to the license.

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Bluebook (online)
914 P.2d 631, 112 Nev. 363, 1996 Nev. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidated-municipality-of-carson-city-v-lepire-nev-1996.