Messier v. Daneker

*244 Capotosto, J. This petition for certiorari was brought by certain objectors to quash the decision of the respondent, as state liquor control administrator, on the ground that he acted without or in excess of his jurisdiction in denying an appeal to him from the granting by the board of aldermen of the city of Pawtucket, sitting as a board of license commissioners, of a class D or club license to the East Side Checker Club of that city. Pursuant to the writ the papers have been certified to this court. Hereinafter the respondent will be referred to as the administrator, the board of license commissioners of Pawtucket as the board, and the East Side Checker Club as the club. The precise question sought to be raised by the club, which was allowed by this court to intervene as a party, is whether the petitioners, as objectors, were entitled to appeal to the administrator from the decision of the board. Although not a party to the appeal at the hearing before *245 the administrator, the club was permitted to participate therein and, through counsel, moved at the outset of the hearing that the appeal be dismissed on the basis of the question above referred to. The administrator denied such motion, noted the club’s exception to his ruling, and proceeded to hear the appeal. With the exception of the question of law thus raised, the determinative issue before the administrator involved a pure question of fact, namely, whether the club was in reality a club within the meaning of our laws governing the issuance of a class D license, or whether in substance and effect it was nothing more than an ordinary barroom operated for the benefit of a certain individual. The appeal was heard and decided by the administrator on such theory. Our examination of the record in the instant proceeding reveals much conflicting evidence as to the above-mentioned factual issue. Since it is well established that on certiorari we do not weigh the evidence, it is unnecessary for us to state the facts in detail as there was legal evidence to warrant the administrator, in the exercise of his discretion, to confirm, reverse or modify the decision of the local licensing board. In this state the sale of intoxicating beverages under a system of various types of licenses is controlled by general laws 1938, title XX, and its dependent chapters 162 to 175 inclusive, as amended. A “club” within the meaning of the statute is defined in chap. 162, §1. Subject to certain conditions immaterial in this case the grant or refusal of a class D or club license rests in the first instance entirely in the discretion of the local licensing authorities. Chapter 163, §2. By the provisions of chap. 164, §5, the administrator, formerly the division of intoxicating beverages, is empowered to prescribe in the public interest the form of the license and the conditions and regulations controlling the privilege granted. Section 9 of chapter 164 also provides that upon the application of any petitioner for a license or of any *246 person authorized to protest against the granting thereof, the administrator shall have the right to review the decision of the local board if a petition to that end is presented to him within ten days, and that he shall have the power, after hearing, to confirm, reverse or modify such decision. The right of review thus granted is broad and comprehensive and in effect establishes the administrator as a state superlicensing official to the same extent as was the division of intoxicating beverages previously. Public laws 1948, chap. 2124. As such, he has the right in his sound discretion to hear cases de novo■ either in whole or in part. Kaskela v. Daneker, 76 R. I. 405, 407, and cases cited. On certiorari this court can review his decision only on alleged errors of law. Baginski v. Alcoholic Beverage Comm’n, 62 R. I. 176. An examination of the pertinent chapters under title XX fails to disclose any provision referring directly or indirectly to the personal qualifications of an applicant for a license. In our judgment this omission is significant and shows that the legislature clearly intended to make the administrator the sole and final arbiter of the suitability of such applicant. Therefore, such question being in essence one of fact, his discretion in the matter when exercised on conflicting evidence will not be reviewed by this court on certiorari. See Marsh v. Alcoholic Beverage Comm’n, 54 R. I. 57. Upon a careful examination of the instant record, we are of the opinion that there is conflicting legal evidence on the controlling issue which the administrator decided. In the circumstances, since the weight of the evidence and credibility of the witnesses are not before us in this proceeding and since we have here affirmed the administrator’s decision in favor of the respondent club, there is no need to pass on the latter’s motion to dismiss. The petition for certiorari is denied, the writ heretofore issued is quashed, and the records and papers certified pursuant thereto are ordered sent back to the respondent. *247 Crowe & Hetherington, for petitioners. Benjamin Winicour, William E. Powers, Atty. Gen., John F. O’Connell, Special Counsel, for respondent. Samuel J. Kolodney, for intervener. *254 Higgins, Kingsley & Williamson, Arnold Williamson, Jr., William A. Gunning, for petitioner. Hinckley, Allen, Salisbury & Parsons, Matthew W. Goring, Thomas J. Hogan, for respondents.