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Gildehaus v. Arkansas Alcoholic Beverage Control Board

Court of Appeals of Arkansas, Divisions I and IV

March 9, 2016

SARAH C. GILDEHAUS, APPELLANT
v.
ARKANSAS ALCOHOLIC BEVERAGE CONTROL BOARD AND CHRISTOPHER MOORE, APPELLEES

         Counsel Amended March 11, 2016.

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO.CV-2014-1385-4. HONORABLE JOHN R. SCOTT, JUDGE.

         Lyons & Cone, P.L.C., by: Jim Lyons, for appellant.

         Mary Robin Casteel, for appellee Arkansas Alcoholic Beverage Control Administration.

         Reece Moore Pendergraft, LLP, by: Timothy C. Hutchinson, for appellee Christopher Moore.

         John Russell Scott

         Jim Lyons

         Scott E. Poynter

         George Nathan Steel

         DAVID M. GLOVER, Judge. KINARD, GRUBER, WHITEAKER, JJ., agree. HOOFMAN, J., concurs. VIRDEN, J., dissents.

          OPINION

Page 217

          DAVID M. GLOVER, Judge.

         Sarah Gildehaus appeals from the order that dismissed her petition for judicial review of the Alcohol Beverage Control (ABC) Board's transfer of a retail liquor permit and that, alternatively, affirmed the Board's decision. She contends that the trial court erred in 1) dismissing her amended petition for lack of standing, 2) refusing to consider the entire record on appeal, and 3) allowing the issuance of a retail liquor permit despite numerous violations of the law. We affirm.

         In its order dismissing Gildehaus's petition, the trial court set out the basic, and essentially undisputed, background facts. Michelle Jameson received conditional permit number 05132 for a retail liquor store to be located at 2800 West Hudson Road, Suite D, in Rogers, Arkansas. After reconsidering the potential financial burdens, Jameson contacted the ABC and asked about alternatives she might pursue. She learned about inactive status for a permit while she considered her future desires regarding the permit. She was told she could submit an application for inactive status for her permit if she opened her business for one day, had a phone line and her business license, sold one bottle of liquor, and had an ABC agent come and approve her location. Jameson operated her business for one day and then applied with Christopher Moore to the ABC to transfer permit number 05132 from her to Moore. The ABC Director refused to approve the application on April 17, 2014. She appealed the transfer denial, and, following a hearing, the ABC Board unanimously reversed the Director and approved the transfer on September 17, 2014, (the " agency decision" ).

         On October 13, 2014, Gildehaus filed an original petition with the circuit court, seeking judicial review and a stay of the agency decision. On December 18, 2014, she filed an amended petition. Paragraph three of her amended petition provides in pertinent part:

Further, this location is within three (3) miles of Gildehaus' liquor store and is a competitor of Gildehaus. As a result, this has caused Gildehaus to suffer injury and is a basis for this litigation.

         She offered no further testimony or evidence of injury at the hearing to expand upon paragraph three of her amended petition.

         Gildehaus urged reversal of the agency decision based on the following summarized arguments: 1) Jameson did not have a valid permit to transfer to Moore because Jameson represented she had leased the property, when in fact she had only an option to lease the premises; no ABC agent ever inspected Jameson's store prior to opening, she just complied with the ABC agent's request that she send photos; Jameson had no sales-tax permit and did not remit taxes to DFC; she received $4,000 from Moore to pay for her option to lease the premises; and 2) Moore was not legally qualified to receive transfer of the permit because he had some interest in two permits; he made knowing misstatements of material facts regarding ownership of the business location; and he provided

Page 218

remuneration to another retail liquor ...


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