Santillo v. New Mexico Department of Public Safety

2007 NMCA 159, 173 P.3d 6, 143 N.M. 84
New Mexico Court of Appeals·Decided October 1, 2007·No. No. 26,442·Published·Cited by 37 cases

Opinions

OPINION

BUSTAMANTE, Judge.

{1} This case arose out of Plaintiffs arrest on August 3, 2001, for selling alcohol without a license in violation of NMSA 1978, § 60-7A-4.1(A) (1993) (amended 2002). Plaintiff owned a restaurant and pub in Angel Fire, New Mexico. In order to sell alcohol, she was required to have a liquor license, which had to be renewed annually with the Alcohol and Gaming Division of the New Mexico Regulation and Licensing Department (the Division). See NMSA 1978, § 60-6B-5 (1998). In 2001 Plaintiff timely applied for renewal of her license. However, due to a bureaucratic delay, she did not.receive her renewal license by June 30, when her current license expired. On August 3, 2001, on a busy Friday evening, officers, knowing that Plaintiff had applied for a license and that her renewal was still being processed, arrested Plaintiff, handcuffed her, and took her to jail, where she was forced to spend the night. Plaintiff then filed this suit, alleging that her arrest and the investigation leading up to it were initiated by an agent of the Special Investigations Division of the New Mexico Department of Public Safety whom Plaintiff believed was “motivated by reasons other than to bring a criminal to justice.” The district court granted summary judgment to Defendants, and Plaintiff appeals the district court’s orders as to her claims of false imprisonment, false arrest, malicious abuse of process, conversion, and negligent hiring, training, and retention.

{2} Plaintiffs most significant argument is that Defendants lacked probable cause to believe she was selling alcohol without a license. She bases this claim on an interpretation of Section 60-6B-5, which governs the expiration and renewal of liquor licenses. Our interpretation of that statute is dispositive of Plaintiffs false arrest, false imprisonment, and the lack of probable cause portion of her malicious abuse of process claims. We conclude that Plaintiff was in fact in violation of the statute, and that consequently, the officers had probable cause to arrest her. We therefore conclude that summary judgment in favor of Defendants was proper on Plaintiffs claims of false arrest and false imprisonment. We further conclude that although the officers had probable cause to arrest Plaintiff, summary judgment on Plaintiffs claim of malicious abuse of process was erroneously granted in Defendants’ favor, in that genuine issue of material fact exist on the issue of impropriety suggesting delay or harassment.

BACKGROUND

{3} Plaintiff owned Lorna Doone’s Restaurant and Black Bear Pub in Angel Fire. The Division first issued Plaintiff a restaurant license to sell beer and wine in 2000. By statute, all licenses expire on June 30 of each year, and may be renewed from year to year. § 60-6B-5. Because her license would expire on June 30, 2000, Plaintiff renewed the license through June 30, 2001.

{4} In April 2001 Plaintiff timely completed the necessary paperwork and paid the fees in order to renew her license for the period of July 1, 2001, through June 30, 2002. Plaintiff fell into neither of the categories in the Division’s regulations under which a license will not be renewed, since she did not owe any taxes relating to her license, and since she did not have any unresolved citations issued more than three months prior to the due date of her application. See 15.11.22.8(B) NMAC (2001). The check she submitted to the Division to pay the $1100 in fees was cashed. However, as of June 30, 2001, when Plaintiffs license was set to expire, she had not yet received her renewal license. Plaintiff called the Division at least twice in July, and was told that the office was behind in getting the renewal licenses out, but that there was no problem with her license and she could continue to sell alcohol. Someone in the Division told her that her license and a number of other renewal licenses were on deputy director Lillian Martinez’s desk waiting to be signed. One of the times Plaintiff called the Division, she spoke with Ms. Martinez, who told Plaintiff there was no problem with her license. Plaintiff could not remember specifically if it was Ms. Martinez who told her she could keep serving alcohol while she was waiting for her renewal.

{5} During the month of July 2001 Agent Jesse Carter of the Special Investigations Division of the New Mexico Department of Public Safety was informed that Plaintiff had an expired license posted at Lorna Doone’s. Agent Carter went to the Division to look at Plaintiffs file. He spoke with Debra Lopez, an administrative law judge for the Division, who told him that Plaintiff had not yet been issued a renewal license. A checklist in the file indicated that Plaintiff had met all requirements for renewal of the license, and Division records contained a note stating “Lillian Holding Renewal.” Agent Carter was aware that the “Lillian” mentioned in the note was the deputy director of the Division. He did not speak to her to see why she was holding Plaintiffs renewal. It was clear from the records that Plaintiffs license had not been suspended or revoked. Although Agent Carter claimed that he might have believed that the renewal license had not been issued because of unpaid taxes or because of outstanding citations, the records in Plaintiffs file clearly indicated that no taxes were due and that there were no outstanding citations that would have impeded the renewal of Plaintiffs license.

{6} The next day, Agent Carter put in a request to have another investigator make an undercover purchase of beer in order to gather evidence that Plaintiff was serving alcohol. Agent Carter could not make the undercover purchase himself because he' knew Plaintiff personally. On July 10 Agent Todd East went undercover to Lorna Doone’s and bought a beer. On July 20 Agent Carter again contacted Ms. Lopez, who faxed him information indicating that the status of Plaintiffs renewal had not changed. Based on his review of the file and his conversations with Ms. Lopez, Agent Carter made preparations to bring a criminal complaint against Plaintiff for the fourth degree felony of selling alcohol without a license.

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Santillo v. New Mexico Department of Public Safety, 2007 NMCA 159, 173 P.3d 6, 143 N.M. 84 (N.M. Ct. App. 2007).

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