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Dick v. City of Portales9/22/1993
Opinion
Petitioners, George and Susan Dick, filed an application with the Alcohol and Gaming Division of the New Mexico Department of Licensing and Regulation (AGD), requesting approval for a transfer of an existing liquor license from the Small Business Administration to them for use at a location in Portales. A hearing was held before an AGD hearing officer. The hearing officer granted preliminary approval for the transfer of the license.
The City of Portales (the City) held a public hearing to determine whether to approve transfer of the liquor license to Petitioners. Three local citizens testified in opposition to the proposed transfer, and the City Council voted unanimously to disapprove it. Based on the City's action, the Director of the AGD denied the transfer.
Petitioners filed a "Petition for Appeal, Writ of Certiorari and for Writ of Mandamus" with the first judicial district court. After a hearing, the district court held that the City's decision to deny the transfer was supported by substantial evidence and was not arbitrary, capricious, or an abuse of discretion. Petitioners appeal. We affirm.
FACTS
Three persons addressed the City Council at the public hearing. Reverend Wayne Fuller, a minister in the area, stated the following grounds for his opposition: the cost of additional police protection, noting that when the license was previously in operation people were knifed and killed "over there quite frequently"; the negative effect on the people and families, describing this variously as "spiritual grounds" and "moral grounds"; and on economic grounds, noting that liquor sales did not bring in much money but resulted in costs due to additional arrests and incarcerations for driving while intoxicated and other related offenses. Anthony Andrade stated that he and "quite a few" others agreed with Fuller, that he was concerned about the effect on his two little boys and on other children and families, and that the transfer would not be good for Portales.
Marcy South stated that she had lost her husband and son to liquor, that it destroyed families, and that they did not need it in Portales.
After these three individuals made their statements, the Mayor asked both George and Susan Dick individually whether he or she wanted to say anything; both declined. (George Dick did suggest later that if the City denied the transfer to Petitioners, it would probably just be sold to someone else.) Petitioners did not participate in the hearing in any other way, and the transcript shows no objection to the procedures followed.
After a short Discussion, there was a motion to disapprove the transfer. At this point the City's attorneys explained that the grounds for disapproval should be specified. The motion was then restated as disapproval "for moral reasons," and it carried without Dissent. Thereafter the Director of AGD notified Petitioners that their application for transfer was denied. Appeal was taken to the district court for the First Judicial District. Judge Herrera reviewed the Council proceeding and held that the decision to deny the transfer was "supported by substantial evidence on the whole record and was not arbitrary, capricious or an abuse of discretion."
Petitioners present two basic arguments on appeal: (1) the City's decision was not supported by substantial evidence based on whole record review; and (2) NMSA 1978, Section 60-6B-4(F)(3) (Repl.Pamp.1992), allowing disapproval of a license transfer for moral reasons, is so vague as to violate due pr
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