American Legion Post 134 v. Mississippi Gaming Commission ( 1999 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-CC-00548-SCT
AMERICAN LEGION POST #134
v.
MISSISSIPPI GAMING COMMISSION
DATE OF JUDGMENT: 03/15/1999
TRIAL JUDGE: HON. GEORGE B. READY
COURT FROM WHICH DESOTO COUNTY CIRCUIT COURT
APPEALED:
ATTORNEY FOR GERALD W. CHATHAM, SR.
APPELLANT:
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: R. STEWART SMITH
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED ON DIRECT APPEAL; VACATED ON CROSS
APPEAL - 03/22/2001
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:
EN BANC.
PITTMAN, CHIEF JUSTICE, FOR THE COURT:
¶1. On the Court's own motion, the original opinion in this case is withdrawn, and this opinion is substituted
therefor.
STATEMENT OF THE CASE
¶2. American Legion Post 134 ("Post 134"), located in Horn Lake, Mississippi, was the holder of a
charitable bingo license issued by the Mississippi Gaming Commission ("Commission"). Post 134 regularly
conducted bingo games in its bingo hall.
¶3. The Commission received a complaint about the bingo operations at Post 134 in October, 1996. Agent
Sandra Ammons ("Agent Ammons"), of the Enforcement Division of the Commission, was assigned to
investigate the complaints. Agent Ammons attended several bingo games as an undercover agent and noted
several violations of the Charitable Bingo Law, Miss. Code Ann. §§ 97-33-50 et seq. (2000).
¶4. The Commission completed its investigation and sent a notice letter to Post 134, dated June 16, 1997.
A hearing was held on September 9, 1997, which eventually resulted in the hearing officer's revocation of
the charitable bingo license held by Post 134. The hearing officer found that Post 134 had violated several
charitable bingo regulations, including Regulation A, § 2(d)(7), Regulation H, Regulation J, Regulation N, §
5, and Regulation R, § 6, as well as state statutes Miss. Code Ann. § 97-33-53(i) - (j) and § 97-33-75(2)
(c).
¶5. Post 134 requested a review by the Commission of the hearing officer's decision to revoke the license
held by Post 134. The Commission, after careful review, sustained the hearing officer's revocation and
issued an order thereby revoking Post 134's license to conduct charitable bingo.
¶6. Post 134 then appealed to the Circuit Court of DeSoto County, the county in which Post 134 is
located. Post 134 filed an application for a Temporary Restraining Order ("TRO") And/Or Preliminary
Injunction on February 6, 1998, without notice to the Commission. The circuit court granted the TRO
which restrained the Commission from enforcing the revocation of Post 134's charitable bingo license.
¶7. The Commission filed a Motion to Deny the Preliminary Injunction and dissolve the Temporary
Restraining Order which was denied by the DeSoto County Circuit Court. The circuit court, on February
13, 1998, signed an Order Granting Preliminary Injunction, which allowed Post 134 to continue its
operations in spite of the revocation of its license until the circuit court ruled on the merits of the appeal.
¶8. On February 16, 1999, the circuit court upheld the Commission's revocation of the charitable bingo
license but allowed Post 134 to continue operations if it filed an appeal to this Court. Such appeal was filed
March 23, 1999.
STATEMENT OF FACTS
¶9. Post 134 is located in Horn Lake, DeSoto County, Mississippi. Post 134 has held a charitable bingo
license since October, 1992. Post 134 has regularly conducted bingo games in its bingo hall.
¶10. The Commission received a complaint about the bingo operations at Post 134 in October, 1996.
Agent Ammons of the Enforcement Division of the Commission was assigned to investigate the complaints.
She attended several bingo games as an undercover agent and witnessed several violations of the Charitable
Bingo Act. The Commission completed its investigation and sent a notice letter to Post 134 dated June 16,
1997. A hearing was held on September 9, 1997.
¶11. At the hearing on the matter, Agent Ammons gave extensive testimony regarding her visits to Post
134. Admitted into evidence were games programs, bingo paper, session reports, and monthly reports.
¶12. The hearing officer found numerous violations committed by Post 134. Post 134 was found to have
violated Regulation H by failing to post the playing of several B-Swat games and winner-take-all games.
¶13. The hearing officer also found that Post 134 had violated Regulation J which requires that the operator
submit to the Commission session reports listing all games played. Post 134 failed to list on the session
reports the B-Swat and winner-take-all games that had been played.
¶14. Post 134 was found to have violated Regulation J on several session reports by failing to report any
winnings from the B-Swat and winner-take-all games. As noted above, these games were not listed on the
session reports as being played.
¶15. The hearing officer found that Post 134 had violated Regulation N, § 5, by selling bingo paper at
discounted prices. Agent Ammons purchased bingo paper for $12 per pack. These packs were listed with
the Commission as being sold for $14 per pack.
¶16. The hearing officer found that Post 134 had violated Miss. Code Ann. § 97-33-53(b)(i)-(j).
Specifically, Post 134 failed to end the bingo session at midnight on November 23, 1996, and begin a new
session at 12:01 a.m. on November 24, 1996, as required by statute. It was found that Post 134 had
falsified its session report for November, 1996, in violation of Miss. Code Ann. § 97-33-75(2)(c), by
listing the session that began late on November 23, 1996, as actually beginning on November 24, 1996.
¶17. Post 134 was found to have violated Regulation R, § 6, that requires that VLC machines be opened
only after all activities have ceased for the day and opened in the presence of at least two employees. Agent
Ammons testified that she witnessed Ronald Smith open the VLC machines by himself before the activities
had ceased for the day.
¶18. The hearing officer found that Post 134 had paid compensation to two concession workers from the
bingo accounts, expenditures that were not authorized by statute or regulation. Finally, the hearing officer
found that Post 134 had played "bonus line" games in violation of Regulation A, § 2(d)(7). Post 134 did not
dispute this finding.
¶19. The hearing officer, in his conclusion, noted that the violations of Regulations H, J, N, § 5, and A,
§ 2(d)(7), as well as the violation of Miss. Code Ann. § 97-33-75(2)(c), in and of themselves, warranted
revocation of the bingo license. The hearing officer went on to note that the other violations committed by
Post 134 further supported the decision to revoke Post 134's charitable bingo license.
¶20. Post 134 requested a review by the Commission of the hearing officer's decision to revoke the license
held by Post 134. The Commission reviewed the record and transcript of the hearing and sustained the
hearing officer's revocation on January 22, 1998, and issued an order revoking Post 134's license to
conduct charitable bingo.
¶21. On February 2, 1998, Post 134 filed an appeal in the Circuit Court of DeSoto County, the county
where Post 134 conducts its bingo operations. Post 134 filed an application for, and the circuit court
entered, a Temporary Restraining Order ("TRO") And/Or Preliminary Injunction on February 6, 1998,
without notice to the Commission. This TRO restrained the Commission from enforcing the revocation of
Post 134's charitable bingo license.
¶22. The Commission filed a Motion to Deny the Preliminary Injunction and dissolve the Temporary
Restraining Order with the DeSoto County Circuit Court. However, the circuit court, on February 13,
1998, signed an Order Granting the Preliminary Injunction. This injunction allowed Post 134 to continue its
operations in spite of the revocation of its license until the circuit court ruled on the merits of the appeal.
¶23. After a delay of one year attributable to Post 134, the circuit court, on February 16, 1999, considered
the parties' briefs. The circuit court upheld the Commission's revocation of the charitable bingo license on
March 15, 1999, but allowed Post 134 to continue operations if it filed an appeal to this Court. Such
appeal was filed March 23, 1999.
APPELLANT'S STATEMENT OF THE ISSUE
I. WHETHER THE DECISION OF THE MISSISSIPPI GAMING COMMISSION TO
REVOKE POST 134'S CHARITABLE BINGO LICENSE WAS ARBITRARY AND
CAPRICIOUS.
CROSS-APPELLANT'S STATEMENT OF THE ISSUES
I. WHETHER THE DECISION OF THE MISSISSIPPI GAMING COMMISSION TO
REVOKE POST 134'S CHARITABLE BINGO LICENSE WAS ARBITRARY AND
CAPRICIOUS.
II. WHETHER THE CIRCUIT COURT ERRED IN ISSUING AN INJUNCTION WHICH
ALLOWED POST 134 TO CONTINUE OPERATING ITS BINGO HALL WHILE ITS
APPEAL OF THE MISSISSIPPI GAMING COMMISSION'S DECISION WAS
PENDING.
DISCUSSION OF LAW
I. WHETHER THE DECISION OF THE MISSISSIPPI GAMING COMMISSION TO
REVOKE POST 134'S CHARITABLE BINGO LICENSE WAS ARBITRARY AND
CAPRICIOUS.
A. Standard of Review
¶24. A strict standard governs judicial review of administrative agency decisions. As this Court has stated:
[O]ur Constitution does not permit the judiciary of this state to retry de novo matters on appeal from
administrative agencies. Our courts are not permitted to make administrative decisions and perform
the functions of an administrative agency. Administrative agencies must perform the functions required
of them by law. When an administrative agency has performed its function, and has made the
determination and entered the order required of it, the parties may then appeal to the judicial tribunal
to hear the appeal. The appeal is a limited one ... since the courts cannot enter the field of
administrative agency. The court will entertain the appeal to determine whether or not the order of the
administrative agency (1) was supported by substantial evidence, (2) was arbitrary and capricious, (3)
was beyond the power of the administrative agency to make, or (4) violated some statutory or
constitutional right of the complaining party.
Mississippi State Dep't of Health v. Natchez Community Hosp., 743 So.2d 973, 976 (Miss. 1999)
(quoting Cook v. Mardi Gras Casino Corp., 697 So.2d 378, 380 (Miss.1997)(citations omitted)).
¶25. The Mississippi Gaming Commission revoked the charitable bingo license of Post 134 as a result of
numerous violations of charitable bingo regulations and state statutes. Post 134 is not arguing that the
Commission does not have the power to revoke its charitable bingo license, nor is it arguing that the
Commission has done something beyond its authority to do so. Post 134 is arguing that the Commission
performed an arbitrary and capricious act in revoking Post 134's license.
¶26. If the Commission's decision to revoke Post 134's license is not based on substantial evidence, it
necessarily follows that the decision is arbitrary and capricious. "Substantial evidence means more than a
scintilla or a suspicion." Natchez Community Hosp., 743 So.2d at 977 (citing Mississippi Real Estate
Comm'n v. Anding, 732 So.2d 192, 196 (Miss.1999)). "An administrative agency's decision is arbitrary
when it is not done according to reason and judgment, but depending on the will alone." Natchez
Community Hosp., 743 So.2d at 977 (citing Burks v. Amite County Sch. Dist., 708 So.2d 1366,
1370 (Miss.1998)). An action is capricious if done without reason, in a whimsical manner, implying either a
lack of understanding of or disregard for the surrounding facts and settled controlling principles. Id.
¶27. A careful review of the evidence presented at the hearing before the Commission leads this Court to
conclude that not only was there substantial evidence to revoke Post 134's license, there was overwhelming
evidence to do so. The decision to revoke Post 134's charitable bingo license was not arbitrary and
capricious. The ruling of the DeSoto County Circuit Court upholding the revocation of Post 134's charitable
bingo license is affirmed.
B. Review of the Decision of the Hearing Officer
¶28. The hearing officer found that Post 134 violated Regulation H as set forth by the Commission.
Regulation H states that
(a) The licensee is required to post in an obvious and conspicuous place at each entrance a sign which
contains a list of the games to be played during each session and the prizes which may be awarded, . .
..
¶29. On November 23, 1996, Post 134 failed to post the playing of a B-Swat game during intermission, as
well as a winner-take-all game played at the end of the session. Post 134 also failed to post a B-Swat game
played during the session on November 24, 1996, as well. On February 21 and 22, 1997, Post 134 failed
to list any B-Swat games played during the main game, nor did Post 134 list the winner-take-all game
played at the end of the session.
¶30. Agent Ammons attended each session of bingo noted above. She testified that the programs were not
posted at the entrance as required. The programs were stacked next to the counter where she purchased
her bingo packs. Agent Ammons testified that she witnessed the B-Swat and winner-take-all games being
played. Introduced into evidence was the posted list of games as well as the bingo paper on which the B-
Swat game was played. The posted list did not list either the B-Swat or the winner-take-all games.
¶31. The hearing officer found that the Commission had established Post 134's violation of Regulation H by
clear and convincing evidence. The Hearing Officer noted that the listing of games and prizes "assists the
Mississippi Gaming Commission [in] track[ing] the play of bingo and the prize money given away by a
licensed bingo [hall]. . . . The play of unscheduled . . .games and prizes undermines the purpose of the
Charitable Bingo Act."
¶32. The hearing officer concluded that the violation of Regulation H warranted revocation of Post 134's
license. Support for this decision is found in Regulation H, § 1(b), which states that the "failure to post the
sign as required could result in revocation of [the] license."
¶33. The hearing officer next found that Post 134 had violated Regulation J which requires that the operator
submit session reports to the Commission. These reports must include the name, number and type of each
game offered during the session.
¶34. Post 134 failed to list several games that had been played on its session reports. The session reports
were entered into evidence. The session report for November 23, 1996, did not include the B-Swat game
or winner-take-all game played during that session. The November 24, 1996, session report did not list the
B-Swat game played during that session. The session report for February 21, 1997, does not list the
winner-take-all game played at the end of the session. The February 22, 1997, session report did not list
the B-Swat game or the winner-take-all game played during that session. Agent Ammons testified that she
witnessed these games being played. The hearing officer held that the Commission had proven this violation
by clear and convincing evidence.
¶35. The hearing officer noted that when a license holder violates Regulation J, the Commission is unable to
track "how much money was generated from the play of bingo or how much money was given in prizes."
The hearing officer then concluded that this violation of Regulation J warranted revocation of Post 134's
license. Once again, this revocation is supported by the language of Regulation J which states that the "[f]
ailure to maintain complete and accurate reports could result in revocation of the license."
¶36. Post 134 was also found to have violated Regulation J by failing to report any winnings in the winner-
take-all games. Post 134 also failed to report winnings from the B-Swat games played during the
November 23 and 24, 1996, sessions, as well as the winnings from the B-Swat game played February 21,
1997.
¶37. The hearing officer concluded that the Commission had proven this violation by clear and convincing
evidence. Agent Ammons testified that she witnessed the games being played. She then testified that no
winnings were listed on the session reports. It was then noted by the hearing officer that this violation of
Regulation J added weight to the need for the revocation of Post 134's license.
¶38. The hearing officer also found that Post 134 had violated Regulation N, § 5, by selling bingo paper at
discounted prices. Regulation N, § 5, states that "[o]rganizations may not (1) discount the price of any
disposable or non-disposable bingo card . . . ." Any change in the price of bingo packs must be approved
by the Commission under Regulation N, § 4. Agent Ammons purchased bingo paper for $12 per pack.
These packs were listed with the Commission as being sold for $14 per pack. The packs, along with the
reports showing the $14 price per pack were introduced into evidence. The price change was not
approved by the Commission.
¶39. The hearing officer found that the Commission had proven this violation by clear and convincing
evidence. The hearing officer noted that the sale of bingo paper actually generates revenue for the bingo hall.
If the paper is sold for prices other than those listed with the Commission, the Commission is unable to
determine exactly how much money the hall is taking in. As such, the violation of Regulation N, § 5,
warrants revocation of Post 134's license.
¶40. The hearing officer found that Post 134 had violated Miss. Code Ann. § 97-33-53(b)(i)-(j).
Specifically, Post 134 failed to end the bingo session at midnight on November 23, 1996, and begin a new
session at 12:01 a.m. on November 24, 1996, as required by statute. As stated by the hearing officer, "[u]
nder the law a session must occur within a five hour time frame within one midnight to midnight context and
may not begin and cross over midnight from one day to the next." Agent Ammons testified that the session
in question began at 11:00 p.m. on November 23, 1996, and did not end at midnight on November 23,
1996. The hearing officer found that the Commission proved this violation by clear and convincing
evidence.
¶41. The hearing officer concluded by noting that this violation, taken alone, would not warrant revocation.
However, the hearing officer found that this violation did lend weight to the decision to revoke Post 134's
license.
¶42. Further, the hearing officer found that Post 134 had falsified its session report for November, 1996, in
violation of Miss. Code Ann. § 97-33-75(2)(c), by listing the session that began late on November 23,
1996, as actually beginning on November 24, 1996. The session report was entered into evidence and
showed that Post 134 actually listed the session as beginning at midnight, November 24, 1996.
¶43. The hearing officer found that the Commission had proven this violation by clear and convincing
evidence and that a violation of this statute subjects Post 134 to revocation of its license. The hearing officer
noted that "the falsifying or making a false entry on a bingo record, alone and of itself warrants revocation of
a bingo license."
¶44. Post 134 was also found to have violated Regulation R, § 6, which states that
No less than once each week and after all activities have ceased for the day, the machine is opened in
[the] presence of at least two (2) workers and the contents are removed and tagged with its
respective machine number. The contents are then counted for each machine and the results are
entered on the daily report.
Agent Ammons testified that she witnessed Ronald Smith open the VLC machines by himself before the
activities had ceased for that day. The witness for the bingo hall testified that the machines were opened
while bingo was still going on because the hall was running low on cash.
¶45. The hearing officer found that the Commission had proven this violation by clear and convincing
evidence. Regarding the sanctions, the hearing officer noted that this violation warrants disciplinary action
against Post 134.
¶46. The hearing officer then found that Post 134 had paid compensation to two concession workers from
the bingo accounts, expenditures that were not authorized by statute or regulation. Agent Ammons testified
that the Commission guidelines state that Post 134 was "allowed to pay up to $400 a session to anyone that
is responsible in the holding, conducting, or operating a bingo game - bingo sessions." Agent Ammons
testified that the session report for February 22, 1996, showed that concession workers had been paid
from bingo proceeds.
¶47. The hearing officer found that the Commission had proven this violation by clear and convincing
evidence. The hearing officer concluded that this violation, standing alone, would not warrant revocation of
Post 134's license. However, this violation lends weight to the decision to revoke Post 134's license.
¶48. The hearing Officer found that Post 134 had played "bonus line" games in violation of Regulation A,
§ 2(d)(7). Post 134 did not dispute this finding. Regulation A, § 2(d)(7) states:
(7) Other than those games as authorized by statute, bingo does not include a game whereby the
player contributes to a pot and if such player wins a bingo game on a predetermined number that
person wins, in addition to the regular prize, the contents of the pot. No other type game or raffle in
which a person makes any wager on the chance of winning any prize may be offered or held in
connection with the authorized bingo games as described in this section. Violation of this subsection
will result in revocation of the organization's bingo license.
(emphasis added). There was no dispute that Post 134 violated this regulation. This violation in and of itself
warrants revocation of Post 134's bingo license.
¶49. Overwhelming evidence exists to warrant the revocation of Post 134's license. Agent Ammons
witnessed many of these violations. Session reports, monthly reports, and bingo paper were entered into
evidence and supported the testimony given by Agent Ammons. Regulation A, § 2(d)(7) states that a
violation of that section will result in revocation of the license. The hearing officer, after finding that there
was a violation of Regulation A, § 2(d)(7), was bound to revoke Post 134's license.
¶50. Because the hearing officer's decision to revoke was based on clear and convincing evidence, the
decision to revoke Post 134's license was not arbitrary and capricious. Numerous violations of gaming
regulations, as well as state statutes, were proven. It should be noted that the hearing officer found that
there were several issues raised by the Commission that were not supported by clear and convincing
evidence. The hearing officer refused to find Post 134 in violation of regulations and statutes in those
instances. This issue is without merit.
II. WHETHER THE CIRCUIT COURT ERRED IN ISSUING AN INJUNCTION WHICH
ALLOWED POST 134 TO CONTINUE OPERATING ITS BINGO HALL WHILE ITS
APPEAL OF THE MISSISSIPPI GAMING COMMISSION'S DECISION WAS
PENDING.
¶51. The Mississippi Gaming Commission cross-appealed, arguing that the Circuit Court of DeSoto
County had no jurisdiction to enter a temporary restraining order or a temporary injunction allowing Post
134 to continue operations while this case is on appeal to this Court. The Commission is incorrect.
¶52. Under Rule 5.08 of the Uniform Rules of Circuit and County Court Practice,
[i]n appeals from lower authorities, when the statute provides for automatic supersedeas, the statute
shall govern. In all other cases the court may grant a supersedeas upon proof of the party requesting
the same, applying the same standards as for a preliminary injunction. . . .
U.R.C.C.C. 5.08 (emphasis added). The statute in question, Miss. Code Ann. § 97-33-61 (2000), does
not grant an automatic supersedeas. Therefore, the circuit court had the authority to grant the injunction if
the standards for a preliminary injunction were met. Further, Rule 8 of the Mississippi Rules of Appellate
Procedure allows the circuit court to give injunctive relief pending appeal subject to review by this Court.
¶53. The Commission also argued in the alternative that if the Circuit Court of DeSoto County had the
authority to enter such an injunction, the circuit court erred in failing to apply the factors necessary to grant
the injunction. The factors that should be used by the circuit court in determining whether to grant or deny
an injunction include:
(1) there exists a substantial likelihood that plaintiff will prevail on the merits;
(2) the injunction is necessary to prevent irreparable harm;
(3) the threatened harm to the applicant outweighs the harm the injunction might do to the
respondents; and,
(4) entry of the injunction is consistent with the public interest.
City of Durant v. Humphreys County Mem'l Hosp., 587 So.2d 244, 250 (Miss. 1991). The granting
of the TRO is within the discretion of the circuit judge. This Court will not disturb the granting of a TRO
unless it has been shown that the circuit judge abused his discretion. Moore v. Sanders, 558 So.2d 1383,
1385 (Miss. 1990).
¶54. A review of the circuit judge's TRO shows that the circuit judge did take into consideration the last
three factors set forth above. However, the circuit judge disregarded factor (1): that there exists a
substantial likelihood that Post 134 would prevail on the merits of the appeal. The Commission's hearing
officer found, by clear and convincing evidence, that Post 134 had violated Regulation A, § 2(d)(7). Post
134 did not dispute that it violated this regulation. As noted above, violation of this regulation will result in
the revocation of Post 134's charitable bingo license.
¶55. Because Post 134 violated a regulation that required revocation of its charitable bingo license, there
was little likelihood, if any, that Post 134 wold prevail in its appeal. Therefore, the circuit judge abused his
discretion in granting injunctive relief.
¶56. Further, this Court takes note that Post 134 took full advantage of this TRO by effectively keeping this
issue from being reviewed by the DeSoto County Circuit Court for a period of one year. Post 134 has
continued to operate for two years after having its license revoked by the Commission.
¶57. The Commission filed a motion to dismiss with prejudice on May 4, 1998. According to the motion,
the record had been stamped "filed" by the clerk on March 2, 1998. Over 40 days had passed, and Post
134 had not filed its brief on the merits or made a motion for extension of time. The Commission requested
that the case be dismissed if Post 134 did not file its brief within 14 days. There was no action on this
motion.
¶58. The Commission filed an amended motion to dismiss with prejudice on August 14, 1998. In the
motion the Commission noted that Post 134 had advised the Commission that it had not received the
record from the Commission. However, counsel for Post 134 had received notice on February 25, 1998,
that the Circuit Clerk of DeSoto County had received the record. Counsel for Post 134 simply did not pick
up the records from the DeSoto County Circuit Clerk.
¶59. Nevertheless, the counsel for the Commission had the custodian of Commission records send a copy
of the Commission's records to the counsel for Post 134. Counsel for Post 134 received those records on
June 19, 1998. As of the date of the filing of the amended motion, August 14, 1998, counsel for Post 134
had filed no brief with the circuit court, nor had the counsel requested additional time.
¶60. On August 18, 1998, the circuit court finally issued an order giving Post 134 until September 1, 1998,
to file its brief. In his order, Circuit Judge George B. Ready acknowledged that Post 134 had failed to
substantially comply with the rules of the court. One hundred sixty-nine (169) days had elapsed since the
Commission had filed the complete record with the court. One hundred twenty-nine (129) days had passed
since the deadline for filing Post 134's brief. Judge Ready then stated that he had the authority to dismiss the
appeal for failure to substantially comply with the rules for over four months. However, Judge Ready did
not dismiss the appeal. He gave Post 134 an additional two weeks to file a brief. Indeed the law violator
was extended greater protections than the state's citizens represented by the Commission.
¶61. Counsel for Post 134 then filed a motion for additional time on August 27, 1998. Post 134 was
granted an additional two weeks, or until September 14, 1998, to file its brief.
¶62. When papers were finally filed on September 18, 1998 (four days late), they were styled
"Memorandum in Support of Petitioner's Motion for Application for Preliminary Injunction and Answer to
Respondent's Motion to Dissolve Temporary Restraining Order." The Commission then filed another
motion to dismiss on October 1, 1998, stating that the "Memorandum" filed did "not address any of the
potential issues which this Court may consider in deciding whether or not to overturn a decision of an
administrative agency." The Commission went on to note that six months had passed since the record had
been filed in this case, and that the delay in Post 134's filing of a brief was prejudicial to the Commission, as
well as the citizens of Mississippi.
¶63. The circuit judge's final order dated February 16, 1999, states that both parties filed briefs and
participated in oral arguments before the court. However, Post 134 never filed a proper brief before the
Circuit Court of DeSoto County. In contrast, the Commission did file a brief on January 15, 1999. There is
no transcript of any oral argument. The circuit court upheld the Commission's revocation of the charitable
bingo license but allowed Post 134 to continue operations if it filed an appeal to this Court. Such appeal
was finally filed March 23, 1999.
¶64. Over six months passed from the time the record was filed in the Circuit Court of DeSoto County until
Post 134 filed its "brief." Such a disregard for court rules should not be ignored. Judge Ready's failure to
dismiss this action for failure to substantially comply with court rules and his grant of injunctive relief have
allowed Post 134 to continue unlicensed bingo operations for two years. A review of Judge Ready's
explanation given while rendering his decision to affirm the revocation indicates that Judge Ready had
reservations about granting injunctive relief.
CONCLUSION
¶65. The revocation of Post 134's license was supported by clear and convincing evidence and was not
arbitrary and capricious. The Circuit Court of DeSoto County was correct in affirming the Commission's
revocation of Post 134's license. However, the Circuit Court of DeSoto County abused its discretion in
entering a TRO and preliminary injunction allowing Post 134 to continue its bingo operations.
¶66. The judgment of the DeSoto County Circuit Court affirming the Commission's revocation of Post
134's charitable bingo license is hereby affirmed. The preliminary injunction entered by the Circuit Court of
DeSoto County is hereby vacated. The Commission is now free to enforce its order revoking Post 134's
license to conduct charitable bingo.
¶67. AFFIRMED ON DIRECT APPEAL; VACATED ON CROSS-APPEAL.
BANKS AND McRAE, P.JJ., SMITH, MILLS, WALLER, COBB, DIAZ AND EASLEY,
JJ., CONCUR.