P & G RETAILERS, INC. v. Wright

590 So. 2d 1272, 1991 WL 255260
CourtLouisiana Court of Appeal
DecidedNovember 22, 1991
DocketCA 901647, CA 901646
StatusPublished
Cited by16 cases

This text of 590 So. 2d 1272 (P & G RETAILERS, INC. v. Wright) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P & G RETAILERS, INC. v. Wright, 590 So. 2d 1272, 1991 WL 255260 (La. Ct. App. 1991).

Opinion

590 So.2d 1272 (1991)

P & G RETAILERS, INC. d/b/a Rainbow Market
v.
J. Marcus WRIGHT, et al.
P & G RETAILERS, INC. d/b/a Rainbow Market
v.
J. Marcus WRIGHT, et al.

Nos. CA 901647, CA 901646.

Court of Appeal of Louisiana, First Circuit.

November 22, 1991.
Rehearing Denied January 22, 1992.

*1273 Dennis R. Whalen, Baton Rouge, for plaintiff-appellant P & G Retailers, Inc., d/b/a Rainbow Markets.

W. Michael Stemmans, Baton Rouge, for defendant-appellee J. Marcus Wright.

Before SHORTESS, LANIER and CRAIN, JJ.

LANIER, Judge.

These consolidated actions are (1) a suit for a temporary restraining order and preliminary and permanent injunctions and (2) a suit for judicial review of the adjudication of an administrative board.

FACTS

Harvey E. Patty and Richard P. Gideon, III are the stockholders of a domestic corporation named P & G Retailers, Inc. (P & G). P & G operates a business named the Rainbow Market located at 1443 Gardere Lane in East Baton Rouge Parish, Louisiana. The Rainbow Market sells, among other things, alcoholic beverages of low and high alcoholic content pursuant to Louisiana State Class B permits and permits issued by the Alcoholic Beverage Control Board of the Parish of East Baton Rouge and the City of Baton Rouge (ABC Board).

On February 13, 1990, the ABC Board cited P & G for unlawful sale of an alcoholic beverage to a minor on January 30, 1990, in violation of Section 13:91 of the Parish of East Baton Rouge and City of Baton Rouge (City-Parish) Code of Ordinances. The ABC Board held a hearing on this charge on March 1, 1990, and Patty and Gideon were present. Patty was advised that "You have the option ... to request a formal hearing or you can concede to that violation", and he responded that "I have no data that I did; so I will go ahead and concede that I did sell it to a minor." The ABC Board considered a similar prior offense for which P & G received a warning and voted to suspend P & G's licenses for the 30 day period beginning March 2, 1990, and ending April 1, 1990.

PROCEDURAL FACTS

On March 2, 1990, P & G filed a suit against the ABC Board for a temporary restraining order and for preliminary and permanent injunctions to stop the execution of the ABC Board's sanction. The trial court issued a temporary restraining order. A hearing on the motion for a preliminary injunction was held on March 12, 1990.

On March 15, 1990, P & G filed its suit for judicial review of the adjudication of the ABC Board. P & G sought a suspensive appeal, but it was granted a devolutive appeal.

On March 29, 1990, the trial court rendered a judgment that recalled the temporary restraining order and denied the preliminary injunction.

On April 17, 1990, the trial court issued orders that (1) consolidated the injunction and judicial review suits, (2) stayed the execution of the ABC Board adjudication, and (3) ordered a hearing on whether the judicial review would be by a trial de novo pursuant to La.R.S. 33:4788[1] or by a review of the ABC Board record pursuant to Section 1:153 of the City-Parish Code of Ordinances. On May 11, 1990, the trial court ruled that the judicial review would be on the record in accordance with Section 1:153.

On May 25, 1990, the trial court heard oral arguments in the judicial review case, and on June 6, 1990, rendered judgment *1274 that affirmed the ABC Board decision and vacated the stay order.

On June 8, 1990, P & G filed a motion for a suspensive appeal that was granted.

On August 5, 1990, the trial court rendered a judgment that denied P & G's request for a permanent injunction and dismissed the injunction suit.

P & G'S RIGHT TO A TRIAL DE NOVO ON APPEAL

(Assignments of error 2 and 3)

La.R.S. 33:4788 provides as follows:

The holder of the permit who is aggrieved by a decision of the governing body of the municipality or parish or a municipal alcoholic beverage control board to suspend or revoke his permit, may within ten days of the notification of the decision take a devolutive appeal to the district court having jurisdiction of his place of business and on such appeal the trial shall be de novo. Within ten calendar days from the signing of the judgment by the district court the municipality or parish governing authority, a municipal alcoholic beverage control board or the holder of the permit, as the case may be, may devolutively appeal from the judgment of the district court to the court of appeals as in ordinary civil cases.

(Emphasis added).

Section 1:153 of the City-Parish Code of Ordinances provides as follows:

Any applicant, permit holder, licensee or his agent, employee or servant who is aggrieved by a decision of the alcoholic beverage control board shall have the right to appeal the decision of the board. All appeals from decisions of the board shall be directly to the Nineteenth Judicial District Court and shall be devolutive appeals. There shall be no suspensive appeal from a decision of the board. Any appeal to the district court shall be taken within ten (10) days of receiving written notice provided for in section 1:150. Upon lodging of an appeal by an applicant, permit holder, licensee or his agent, employee or servant, the director shall have prepared a transcript of the proceedings of the board appealed from; and the transcript shall be forwarded to the district court. The court shall determine the appeal in a summary manner. The hearing shall be confined to the determination of whether the decision of the board was made in good faith, and for cause under the provisions of this part. If the decision of the board is not overturned by the courts of the state, the costs of preparation of the transcript by the board shall be payable by those appealing the decision of the board; otherwise such costs shall be assessed to the board. The decision of the board shall be final unless appealed within the time and in the manner set forth. (Emphasis added).

P & G asserts the trial court erred by denying it a trial de novo as provided for in La.R.S. 33:4788. P & G contends Section 1:153 is unconstitutional because (1) it conflicts with La.R.S. 33:4788, an act of the legislature; and (2) the City-Parish ordinance can not limit the jurisdiction of the district court. P & G cites La. Const. 1974, art. V, § 16(B) and Roksvaag v. Reily, 237 La. 1094, 113 So.2d 285 (1959) as authority.[2]

The ABC Board asserts that the "City-Parish's authority to regulate intoxicating beverages originates from the original grants of authority vested in the City's home rule charter of 1898 and incorporated in the Plan of Government of 1949 and was ratified by the Constitution of 1974." By implication, the ABC Board argues that its power to regulate intoxicating beverages includes the power to prescribe and define the procedures that must be used by the district court in hearing an "appeal" from the ABC Board. The ABC Board cites as authority, La. Const. of 1974, art. VI, §§ 4 and 6 and art. XIV, § 18 and Peek v. Alcohol *1275 Beverage Control Board, 434 So.2d 1266 (La.App. 1st Cir.1983).[3]

The following are the constitutional provisions that are pertinent for determining whether the City-Parish has the authority to prescribe the procedures to be used by the district court in performing a judicial review of an ABC Board decision. La. Const. of 1974, art.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. Parish of St. Bernard
206 So. 3d 259 (Louisiana Court of Appeal, 2016)
Meiners v. St. Tammany Fire Protection District 4 Board of Commissioners
31 So. 3d 1076 (Louisiana Court of Appeal, 2010)
Edmonds v. City of Shreveport
910 So. 2d 1005 (Louisiana Court of Appeal, 2005)
Bibbins v. City of New Orleans
848 So. 2d 686 (Louisiana Court of Appeal, 2003)
Opinion Number
Louisiana Attorney General Reports, 2003
Kimball v. Allstate Ins. Co.
712 So. 2d 46 (Supreme Court of Louisiana, 1998)
State v. Louisiana Riverboat Gaming Com'n
640 So. 2d 1368 (Louisiana Court of Appeal, 1994)
Brossette v. Alcoholic Beverage Control Bd.
611 So. 2d 1391 (Supreme Court of Louisiana, 1993)
Citicorp Acceptance Co., Inc. v. Roussell
601 So. 2d 350 (Louisiana Court of Appeal, 1992)
Bagert v. Bd. of Ethics for Elected Off.
594 So. 2d 922 (Louisiana Court of Appeal, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
590 So. 2d 1272, 1991 WL 255260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/p-g-retailers-inc-v-wright-lactapp-1991.