State Ex Rel. Richardson v. Pierandozzi

784 P.2d 331, 117 Idaho 1, 1989 Ida. LEXIS 157
CourtIdaho Supreme Court
DecidedDecember 19, 1989
Docket17863
StatusPublished
Cited by16 cases

This text of 784 P.2d 331 (State Ex Rel. Richardson v. Pierandozzi) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Richardson v. Pierandozzi, 784 P.2d 331, 117 Idaho 1, 1989 Ida. LEXIS 157 (Idaho 1989).

Opinions

McDEVITT, Justice.

Appellants Dante and Janet Pierandozzi are the holders of an alcoholic beverage license for their business, the D & J Lounge in Montpelier, Idaho. On November 6, 1986, appellants employed the West-world Playmates Male Dance Review to perform on the licensed premises. Undercover Department of Law Enforcement agents attended the show. The agents later testified that during the course of the performance the dancers exposed to view clefts of buttocks, pubic hair, and the anus of one of the dancers.

As a result of this performance, the department of law enforcement initiated administrative proceedings to revoke the liquor license of appellants for violations of I.C. § 23-1010A, which prohibits licensees from allowing nudity on the licensed premises.

Appellants were notified of the revocation proceeding by personal service of the Petition to Revoke and Notice of Revocation on December 30, 1986, and a Notice of Hearing mailed to appellants on April 20, 1987.

On May 12, 1987, an administrative hearing was held where each of the parties presented witnesses. The Hearing Examiner concluded that I.C. § 23-1010A had been violated, and revoked appellants' liquor license. The District Court upheld that determination, and appellants now challenge that holding before this Court. [3]*3Appellants argue that 1) the notice of the hearing was inadequate, 2) the hearing Examiner’s findings were clearly erroneous, 3) revocation of their liquor license is in excess of statutory authority, 4) the Department of Law Enforcement is enforcing the statute in an arbitrary manner, and 5) enforcement of the statute is unconstitutional.

I. Adequacy of Notice

Appellants assert that the notice they received was inadequate under I.C. § 67-5209. We find that the notice did fulfill the statutory requirements of that section.

Section 67-5209 provides that in a contested case, the parties shall have an opportunity for a hearing after reasonable notice. The statute lists the specific information to be included in that notice.1 In this case, the record reflects that a Petition to Revoke and a Notice of Revocation were personally served upon appellants more than four months before the hearing. Three weeks before the hearing, a Notice of Hearing was mailed to appellants. Taken together, the information contained in the three documents satisfy the notice requirement of § 67-5209.

The purpose of the notice requirement is to inform parties of the particular facts and issues to be addressed in the hearing, allowing an opportunity to prepare a defense. Department of Law Enforcement v. Engberg, 109 Idaho 530, 708 P.2d 935 (Ct.App.1985). In this case appellants have only challenged the statutory sufficiency of the Notice of Hearing, and do not allege that they were unable to prepare an adequate defense. We find that both the letter and the spirit of the notice requirement were satisfied by the notice to appellants.

II. Standard of Review of the Agency Findings

Appellants also urge this Court to reverse the findings reached by the Hearing Examiner. The standard of judicial review of agency actions is supplied by I.C. § 67-5215(g). That section allows a court to reverse or modify an agency decision only under limited circumstances, including, inter alia, a constitutional violation, action in excess of statutory authority, clearly erroneous findings of fact, an arbitrary and capricious decision or one characterized by an abuse of discretion.

A. Constitutional Violation

Appellants challenge the constitutionality of the procedure whereby the Hearing Examiners are chosen from a list maintained by the Department of Law Enforcement and are compensated by the Department on a case by case basis. In support of this challenge appellants draw an analogy between this current system at the Department of Law Enforcement and the former Justice of the Peace system which was condemned by the U.S. Supreme Court in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), where the Court held that due process of law was denied to one tried before a judicial officer whose sole source of income was the fines collected from the accused.

We find this rule to be inapplicable in this case for several reasons. First, the only authority which appellants cite to support this challenge unequivocally states that Tumey only relates to judicial officers, and has never been applied to disqualify quasi-judicial or administrative officers. 72 A.L.R. 375 § 1. In addition, assuming arguendo that the rule does apply to administrative officers, it is limited to disqualification of officers who are paid only if they convict the accused, and does not apply where the officer is merely compensated according to the number of cases heard. 72 A.L.R. 397, et seq., § 10. Finally, appellants claim that the Hearing Examiner is [4]*4inclined to find in favor of the Department of Law Enforcement in order to attract future cases and compensation from the Department. This potential for bias is cured by the fact that the parties have the right to judicial appeal of any administrative decision manifesting an abuse of discretion, arbitrary and capricious disposition, or findings which are clearly erroneous in light of the evidence presented at the hearing. I.C. § 67-5215(g). Appellants have failed to demonstrate any such bias on the part of the Hearing Examiner on the record of this case. Consequently, this Court has no basis on which to find a denial of due process resulting from the procedures of the hearing.

B. Excess of Statutory Authority

Appellants assert that the conduct at issue is not within the scope of the statute which they are accused of violating. I.C. § 23-1010A prohibits in a licensed premises the “[ejmployment or use of any person while such person is unclothed or in such attire ... as to expose to view any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of buttocks, vulva, or genitals.” Appellants suggest that the word “female” modifies the entire list of nouns, thus excluding male nudity as a grounds for license revocation. This argument is not persuasive.

The word “person” indicates that the legislature intended the statute to apply to nudity of either sex. Further, the word “or” following the “female breast” clause is a disjunctive term, separating the “female” adjective from the remainder of the list. Thus, the conduct of the male dancers employed by appellants is clearly within the plain meaning of the statute.

Another issue concerning the scope of the statute is whether under the terms of the statute appellants can be held liable for the illegal conduct of the dancers in their employ. In order to have their liquor license subject to revocation, the licensees must be found guilty of “conducting, permitting, or encouraging” the illegal activity on the licensed premises. I.C. § 23-1010A. The record reflects that appellants were aware of the conditions attached to their liquor license and gave detailed instructions to the dancers before the performance as to what was not permitted under the law.

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State Ex Rel. Richardson v. Pierandozzi
784 P.2d 331 (Idaho Supreme Court, 1989)

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Bluebook (online)
784 P.2d 331, 117 Idaho 1, 1989 Ida. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-richardson-v-pierandozzi-idaho-1989.