In Re Johnston

488 A.2d 750, 145 Vt. 318, 1985 Vt. LEXIS 296
CourtSupreme Court of Vermont
DecidedJanuary 4, 1985
Docket83-312
StatusPublished
Cited by34 cases

This text of 488 A.2d 750 (In Re Johnston) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Johnston, 488 A.2d 750, 145 Vt. 318, 1985 Vt. LEXIS 296 (Vt. 1985).

Opinion

Peck, J.

Marjorie Johnston (licensee) appeals from an order of the Vermont State Liquor Control Board (Board) revoking her first and third class licenses. Licensee was charged by the Vermont Department of Liquor Control with a violation of the Board’s General Regulation 12, 1 which prohibits the furnish *320 ing or sale of alcoholic liquor to a person under the age of eighteen. Licensee raises three claims of error for our review. First, she argues the revocation was improper because it was based on hearsay; second, she claims the evidence does not support either the Board’s decision or the severity of the punishment; third, she asks this Court to order that a lesser penalty be imposed. We disagree with licensee’s position on the issues, and affirm.

Viewing the evidence in the light most favorable to the prevailing party, Vermont National Bank v. Chittenden Trust Co., 143 Vt. 257, 259, 465 A.2d 284, 286 (1983), the following facts are disclosed by the record. At approximately 9:00 p.m. on March 10, 1983, a seventeen year old girl (minor) entered licensee’s Bennington establishment, a restaurant and lounge known as Johnny’s. The minor ordered, and licensee’s bartender served her, four mixed drinks which contained an alcoholic liqueur. At approximately 9:45 p.m. she left Johnny’s driving her boyfriend’s truck to visit him at his place of employment. The minor returned to licensee’s establishment on foot at about 10:30 p.m., stopping en route at her home, to tell her foster mother where she was going. Upon her return to Johnny’s, the minor ordered and was served two more of the same mixed drinks. Her foster mother appeared at that point, sent her home, and subsequently reported the matter to the Bennington police. The police, in turn, reported the information to the Vermont Department of Liquor Control. Following an investigation by the Department, the licensee was charged with violating General Regulation 12.

At the hearing before the Board, both the minor and her foster mother testified that the minor was born on November 15, 1965, and was, therefore, under eighteen years of ag.e at the time she entered the licensee’s establishment on March 10,. 1983. There was no objection to, or motion to strike this testimony on the basis of hearsay, although on cross-examination licensee’s counsel questioned both the minor and her foster mother about the source of their knowledge of the minor’s birth date and age. The minor testified she could not prove her date of birth without telephoning one of her natural *321 parents, who are divorced and living in Connecticut. Her foster mother testified she knew the minor’s date of birth from a conversation with the minor’s social worker.

At the close of the hearing, the Board concluded that the licensee had violated General Regulation 12. The Board also noted that the licensee had, in the past, been found guilty of violating Board regulations including one previous violation of General Regulation 12. Citing “the licensee’s continual violation” of regulations, the Board issued its revocation order.

I.

Licensee first challenges as hearsay the testimony relating to the minor’s age. However, under the Rules of Evidence, 2 error may not be predicated upon a ruling admitting evidence unless a substantial right of a party is affected and a timely objection or motion to strike appears of record. V.R.E. 103(a) (1). In the instant case, there was no objection to, or motion to strike the testimony regarding the minor’s age which licensee now challenges as hearsay. Moreover, in his closing statement to the Board, licensee’s counsel referred to the minor as “this seventeen year old girl.”

In the light of licensee’s failure to object or move to strike the testimony, and her counsel’s recognition of the minor’s age as seventeen, we do not address directly the propriety of its admission under 3 V.S.A. § 810 or V.R.E. 103, nor is it necessary to discuss the proper manner for proving age. Issues not raised below will not ordinarily be considered when presented for the first time on appeal. In re Burlington Housing Authority, 143 Vt. 80, 81-82, 463 A.2d 215, 217 (1983). The licensee failed to raise the issue below and is therefore precluded from raising it on appeal.

H.

In appeals from the actions of administrative agencies we have applied a deferential standard of review to claims *322 of insufficiency of evidence. Absent a clear and convincing showing to the contrary, decisions made within the expertise of such agencies are presumed correct, valid and reasonable. State of Vermont Department of Taxes v. Tri-State Industrial Laundries, Inc., 138 Vt. 292, 294, 415 A.2d 216, 218 (1980). The revocation decision here was clearly within the Board’s area of expertise. 7 V.S.A. § 236. We hold that licensee has failed to make the clear and convincing showing necessary to overcome the presumption of validity. Our review is limited to whether, on the record developed before the Board, there is any reasonable basis for the Board’s actions. State of Vermont Department of Taxes, supra, at 294-95, 415 A.2d at 218-19.

As discussed above, the Board heard testimony that the minor was seventeen years old on the night she visited licensee’s establishment. In the absence of any objection, the Board properly considered testimony of the minor and of her foster mother and, based on the evidence, could properly conclude that the minor was seventeen.

The Board also heard evidence that the minor ordered the mixed drinks containing alcohol and watched licensee’s bartender make the drinks and serve them. The foster mother also testified without objection that her daughter told her she had several drinks containing alcohol. Further, the foster mother indicated she was “familiar with different drinks” and “from the looks of the drinks” she concluded her foster daughter was consuming alcoholic beverages.

On appeal licensee points to various aspects of the State’s evidence which bear on the credibility of the evidence. She questions whether the 110-pound minor could have consumed six mixed drinks and still, as the foster mother testified, have acted in a quiet and rational manner. Licensee also attacks the believability of the minor’s testimony that, after having been served four mixed drinks, she drove her friend’s truck one mile to his place of employment. Essentially, licensee’s argument is an attack on the credibility of the witnesses which, we have held, is a matter for the trier of fact to judge. Hall v. Miller, 143 Vt. 135, 145, 465 A.2d 222, 227 (1983). No persuasive reason appears requiring a departure from that criterion in the case before us.

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Cite This Page — Counsel Stack

Bluebook (online)
488 A.2d 750, 145 Vt. 318, 1985 Vt. LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-johnston-vt-1985.