Copeland v. Alcoholic Beverage Control Board

Lawson Cloninger, Judge. The trial court upheld a decision of the Alcoholic Beverage Control Board denying appellant’s application for an off-premises beer permit. For reversal, appellant contends that there is no substantial evidence to support the decision of the Board. Ark. Stat. Ann. § 5-713 (Supp. 1979), provides that the courts may reverse or modify a decision of an administrative board if the decision is not supported by substantial evidence. We find there is substantial evidence to support the decision of the Board in this case, and we affirm. By Act 7, Acts of the Legislature for 1933, compiled as Ark. Stat. Ann. § 48-501 to 527 (Repl. 1977), the Alcoholic Beverage Control Board is charged with the responsibility of issuing permits for the sale of beer within the state. Ark. Stat. Ann. § 48-1311 (Repl. 1977) authorizes the Board to promulgate regulations to enforce the provisions of the Alcohol Control Law, and specifically clothes the Director of the Board with broad discretionary power to enforce all the provisions of the alcohol control laws. The regulation adopted by the Board provide in relevant parts: Section 1.32. No permit shall be issued pursuant to an alcoholic beverage control law of the state of Arkansas for the following premises: (3) Premise for which adequate police protection is not available. Any premise for which, in the judgment of the Director, adequate police protection is not available due to the remoteness of the location of the premises. (4) Premise which will not promote public convenience and advantage. Any premise for which the issuance of a permit would not, in the judgment of the Director, promote the public convenience and advantage. In determining whether the issuance of a permit would promote the public convenience and advantage, the Director may consider, in addition to all other relevant factors, the number of permits issued in the general vicinity of the premises for which application has been made. Appellant argues that the Board was in error in basing its conclusions upon the following findings: 2. That there is a great deal of testimony within the record which tends to indicate that school buses are in the area of the store on a regular basis during both the morning and afternoon hours and that numerous school children are in the immediate and adjacent area of the store. It is further found that a great deal of testimony was offered during the hearing that the presence of a controlled beverage at the grocery store would tend to be a source of danger to the school children who frequent the area. 4. That testimony was offered by a local law enforcement official which would tend to indicate that the proposed location is a poor site for a controlled beverage outlet. The testimony would tend to show that the placement of controlled beverages at that store would greatly enhance the law enforcement problems in the area. The testimony further showed that due to the number of roads in the area and their junctions in proximity to the proposed site that it would be impossible to effectively roadblock the area should a robbery or other criminal problem occur at the store. It is well settled that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues. Gordon v. Cummings, 262 Ark. 737, 561 S.W. 2d 285 (1978). That principle is particularly applicable in this case, because the legislature has expressly clothed the Director with broad discretionary authority to enforce all the provisions of the Alcohol Control Laws. The Board finding number 2 is not alone sufficient to support the decision of the Board. Appellant presently operates a convenience store on the premises in which he proposed to exercise the beer permit applied for. Evidence indicates that two children board the school bus at the intersection where appellant’s store is located, and that two or three times a week a school bus stops and children are permitted to get a cold drink in appellant’s store. Witnesses expressed a belief that the addition of beer to appellant’s other sales would be a source of increasing danger to the children frequenting the area. The Board was entitled to consider the possibility of increased danger, but the evidence, standing alone, is too speculative to support the Board’s finding. There is substantial evidence in the record to support the Board’s finding number 4. Appellant’s store is located in a sparsely populated area, embracing a total populaton of 130 to 160 within a two-mile radius. It is six miles from the nearest towns, Prairie Grove to the north and West Fork to the south, and it is twelve miles from the county sheriff’s office. A deputy sheriff is seen in the area two or three times a week. In the judgment of a representative of the sheriff’s office, which judgment has been confirmed by the Board, adequate police protection is not available due to the remoteness of the location of the premises. The remoteness issue was not a factor in our recent decision in Snyder v. Alcoholic Beverage Control Board, 1 Ark. App. 92, 613 S.W. 2d 123 (1981). This court will not substitute its judgment for that of an administrative agency, in the absence of an abuse of discretion by the agency. Gordon v. Cummings, supra. We find there is substantial evidence to support the finding of the Board and that there was no showing of an abuse of discretion. Affirmed. Cooper and Corbin, JJ., dissent.