Indiana Alcoholic Beverage Commission v. Progressive Enterprises, Inc.

GlVAN, J. This is an appeal from a temporary injunction issued by the trial court enjoining the appellant from denying the appellee a license to sell alcoholic beverages until further proceedings in the trial court. The record reveals the following facts: The appellee held a license to retail beer, wine and liquor for a number of years prior to filing its application for renewal on or about April 15, 1971. Its license was due to expire May 11, 1971. The application was accepted by the Indiana Alcoholic Beverage Commission, advertised and forwarded to the Marion County Local Liquor Board for investigation. Due to an alleged violation by the appellee of the Alcoholic Beverage Laws, no immediate action was taken by the Marion County Board. On or about May 5, 1971, the appellee requested the appellant to issue an operating letter to permit it to continue in operation pending the renewal application. The appellant [317] issued the operating letter which permitted the appellee to operate until June 17,1971. On June 16, 1971, appellee received a letter from appellant purporting to revoke its license retroactively to April 20, 1971. Appellee immediately filed an appeal from this decision in the Marion Superior Court, Room No. 3, under Cause No. S 371 618. At the same time the appellee applied for a restraining order without notice against the appellant permitting the appellee to operate pending an appeal of the revocation order. On June 23, 1971, the appellant entered an order rescinding its revocation of appellee’s permit and filed a motion to dismiss appellee’s appeal in the Marion Superior Court. On June 24, 1971, the appellant entered an order withdrawning appellee’s application for a renewal of its license from the Marion County Local Liquor Board and ordered that a hearing be held concerning the truthfulness of answers to questions on the application. Such hearing was held on July 8,1971. On July 12, 1971, appellee supplemented its renewal application with an amended form supplying omitted answers to certain questions. On July 14, 1971, the appellant mailed its finding of facts and conclusions of law denying a renewal permit to the appellee. On July 15, 1971, the appellee filed its petition for a review of said order in Marion Superior Court, Room No. 3, Cause No. S 371 819. On July 16, 1971, appellee filed a verified petition for a restraining order without notice which was granted and the matter set for hearing. A hearing was held July 21, 1971, following which the court entered an order from which this appeal was taken. [317] The appellee challenges the jurisdiction of this Court stating that this is an attempted appeal from a temporary re [318] straining order, which is not appealable. However, we would point out that following the issuing of the temporary restraining order notice was given and a hearing held prior to the issuance of the order from which this appeal is taken. The fact that the second order by the trial court was denominated a temporary restraining order does not make it so. It is the substance of the order which controls, not its caption, and an order which is entered after notice and an evidentiary hearing, as in the case at bar, is in fact a preliminary injunction from which an appeal will lie. State ex rel. Board of Medical Registration v. Hayes (1950), 228 Ind. 286, 91 N. E. 2d 913; Town of Wakarusa v. Bechtel (1948), 226 Ind. 101, 78 N. E. 2d 161. Appellee also argues the appeal is premature because the trial court has never ruled on a motion to dismiss and dissolve the injunction. The governing statute is found in Burns’ Ind. Stat., 1968 Repl., § b-214.. This statute specifically provides for appeals from “. . . interlocutory orders granting or refusing to grant, or dissolving or overruling motions to dissolve temporary injunctions.” In view of this language, we hold that the appellant may maintain this appeal from the granting of the temporary injunction. The appellee cites several cases for the proposition that although he may not have a property right in the license itself, that he does have a property right in the use and enjoyment of the license issue. Midwest Beverage Company v. Gates (1945 N. D. Ind.), 61 F. Supp. 688; Kaplan v. Craig et al. (1954), which was an unreported case in the United States District Court, Southern District of Indiana, wherein a three-judge panel so held; Bell v. Burson (1971), 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90. However, there is a difference between the facts in the cases cited by appellee and the facts of this case. In the cases cited by appellee the question was on. a revocation of a permit which had not yet expired, and the holding is that the court may restrain the Administrative agency from carrying out such revocation [319] pending the judicial review. In the case at bar the regularly issued permit expired May 11, 1971. The Board by letter continued the permit until June 17, 1971. Thus by the time the trial court held its hearing on July 21, 1971, and issued the temporary injunction from which this appeal is taken, the appellee had no pending authority whatever to continue in business. This Court has recently said that the separation of power doctrine is offended when a trial court attempts to extend the time of a permit through a stay pending judicial review which has the effect of granting a renewal permit. State ex rel. Indiana Alcoholic Beverage Commission v. Lake Superior Court, Room 4 et al., (1972), 259 Ind. 123, 284 N. E. 2d 746, 32 Ind. Dec. 21. The decision of the trial court is, therefore, reversed and this cause remanded to said court with instructions to proceed with the pending case not inconsistent with this decision. Arterburn, C.J., Hunter and Prentice, JJ., concur; DeBruler, J., dissents with opinion.