In Re the Protests to the Application for Transfer of Ownership & Location of Montana All-Alcoholic Beverages License No. 02-401-1287-001

2007 MT 192, 168 P.3d 68, 338 Mont. 363, 2007 Mont. LEXIS 369
CourtMontana Supreme Court
DecidedAugust 8, 2007
DocketDA 06-0667
StatusPublished
Cited by3 cases

This text of 2007 MT 192 (In Re the Protests to the Application for Transfer of Ownership & Location of Montana All-Alcoholic Beverages License No. 02-401-1287-001) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Protests to the Application for Transfer of Ownership & Location of Montana All-Alcoholic Beverages License No. 02-401-1287-001, 2007 MT 192, 168 P.3d 68, 338 Mont. 363, 2007 Mont. LEXIS 369 (Mo. 2007).

Opinions

JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Citizens of Great Falls, Montana (Protestors), appeal from an order of the Montana Eighth Judicial District Court, Cascade County, affirming a decision of the Montana Department of Revenue (Department) to approve an application for the transfer of ownership and location of an all-alcoholic beverages license to Hare’s Ear, Inc. (Hare’s Ear), under the trade name of Jackrabbit Red’s Casino located in the Flying J Travel Plaza (Flying J), in Great Falls, Cascade County, Montana. We affirm.

¶2 The issues on appeal are as follows:

1. Whether the Department is a proper party on appeal; and

2. Whether the District Court erred in affirming the Department’s approval of Hare’s Ear’s application for transfer of ownership and location of the liquor license.

BACKGROUND

¶3 Hare’s Ear, a Montana close corporation, filed an application with the Department for the transfer of ownership and location of All-Alcoholic Beverages License No. 02-401-1287-001. Hare’s Ear planned to obtain the license, formerly in public use at the Plum Crazy Casino in Great Falls, Montana, and use it at a Jackrabbit Red’s Casino to be located on the premises of the Flying J in Great Falls, situated next to Interstate 15 at the 31st Street Southwest interchange. The lease for the bar and casino space between Hare’s Ear and Flying J was contingent on Hare’s Ear obtaining the liquor license, and, subsequently, gambling machine permits.

¶4 The Department published a notice that Hare’s Ear had applied for transfer of ownership and location of the license to J ackrabbit Red’s Casino at the Flying J location. The Department received eighty-three letters of protest to the issuance of the license. Many of them were residents of the Gore Hill area in Great Falls, a subdivision located approximately a half mile south of the Flying J. The Department held a hearing where both sides presented witness testimony and exhibits. Because the intended use of the property was as a casino, and a liquor license is a prerequisite to obtaining gambling permits, much of the testimony from the protestors consisted of objections to gambling and its implications on the health and welfare of society. At the hearing, the Protestors argued that gambling would bring undesirable people into the community, and create a gambling addiction in the Gore Hill neighborhood. Several residents of the Gore Hill area voiced their [365]*365concern about heavy traffic, impaired drivers, the safety of children bicycling or walking to the truck stop, negatively impacted real estate values, the area being off regular police beats, zoning restrictions, and little or no evidence of demand. Some Protestors were opposed to gambling in general because of the toll they had seen compulsive gambling take on themselves or others they knew. A psychotherapist and a clinical psychologist testified about the negative impact gambling presents to the health and welfare of society. A medical doctor with familiarity of gambling addiction testified that, while not opposed to gambling, she supported creating zoning districts to confine gambling to specified areas so that gambling addicts could be counseled to avoid those areas. The Department issued its decision, which included findings of fact, conclusions of law, order, and opinion, approving the application for the transfer of ownership and location of the license.

¶5 The Protestors appealed to the District Court pursuant to the Montana Administrative Procedure Act (MAPA). The Department appeared in the appeal to the District Court and participated in briefing. A hearing was held where for the first time, the Protestors objected to the Department being included as a party. The court allowed the Department to argue at the hearing in support of its decision to issue the license. The District Court affirmed the Department’s decision. The Protestors appeal.

STANDARD OF REVIEW

¶6 The standard of review of an administrative decision under MAPA applies to both the District Court’s review of the administrative decision and this Court’s subsequent review of the District Court’s decision. Hofer v. Montana DPHHS, 2005 MT 302, ¶ 14, 329 Mont. 368, ¶ 14, 124 P.3d 1098, ¶ 14. The applicable standard of review is as follows:

The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are:
(v) clearly erroneous in view of the reliable, probative, and [366]*366substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion ....

Section 2-4-704(2), MCA. A finding is clearly erroneous if a review of the record shows the findings are not supported by substantial evidence, the trier of fact misapprehended the effect of the evidence, or if a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. Munn v. Montana Bd. of Medical Examiners, 2005 MT 303, ¶ 15, 329 Mont. 401, ¶ 15, 124 P.3d 1123, ¶ 15 (citations omitted). We review a District Court’s conclusions of law by determining whether the District Court correctly interpreted the law. Munn, ¶ 15 (citations omitted).

DISCUSSION

¶7 ISSUE 1: Was the Department a proper party on appeal?

¶8 The Protestors filed a petition for review of the Department’s order allowing the transfer of the license to Hare’s Ear. The Department appeared in the action by filing a motion to set a briefing schedule and a brief in opposition to the petition, defending its decision to issue a license. The Protestors filed a reply, but did not object to the Department’s presence as a party until the hearing before the District Court. After listening to the objection, the District Court allowed the Department to present its argument on the merits. The Protestors again argue on appeal to this Court that the Department was not a proper party to the action in District Court.

¶9 The District Court’s review of the Department’s decision was confined to the record, as required by § 2-4-704(1), MCA. Hare’s Ear and the Department made similar arguments opposing the petition for review to the District Court and on appeal to this Court. Even assuming arguendo that the Department was not a proper party to this action, since the District Court could have come to the same conclusion based solely on Hare’s Ear’s arguments and on its thorough review of the record, any reliance by the District Court on the Department’s arguments constitutes harmless error. M. R. Civ. P. 61; see Ekalaka Un. Bd. of Trus. v. Ekalaka Teach., 2006 MT 337, ¶ 22, 335 Mont. 149, ¶ 22, 149 P.3d 902, ¶ 22.

¶10 ISSUE 2: Did the District Court err in affirming the Department’s approval of Hare’s Ear’s application for transfer of ownership and location of the liquor license?

¶11 An applicant seeking a liquor license must apply to the Department, and following an investigation carried out by the [367]

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2007 MT 192, 168 P.3d 68, 338 Mont. 363, 2007 Mont. LEXIS 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-protests-to-the-application-for-transfer-of-ownership-location-mont-2007.