Johnson v. Moore

John E. Jennings, Judge.

Appellant, Mitchell E. Johnson, owns a business known as Sparky’s in Sparkman, a town of 600 people in Dallas County. Sparky’s is a combination convenience store, gas station, restaurant, and washateria.

Appellant applied to the Arkansas Beverage Control Board for a retail off-premises beer permit. After conducting a hearing the Board granted the permit. Subsequently, several persons opposed to the issuance of the permit, including the sheriff of Dallas County, Lee Hornaday, obtained an order of the Dallas County Circuit Court remanding the matter to the Board for the taking of additional evidence. On remand, the Board heard testimony from the sheriff; a fulltime deputy, Mr. Skinner; and a part-time deputy, Mr. Franks.

The sole issue on appeal is whether the Board’s denial of the permit after remand is supported by substantial evidence. We affirm.

Although the circuit court affirmed the Board’s denial of the permit and this appeal comes from the decision of that court, it is clear that we are reviewing the decisión of the Board, not the circuit court’s decision. See Fouch v. State, Alcoholic Beverage Control Div., 10 Ark. App. 139, 662 S.W.2d 181 (1983). Our review is limited in scope: we uphold the Board’s decision if it is supported by substantial evidence and is not arbitrary, capricious, or characterized by an abuse of discretion. Marshall v. Alcoholic Beverage Control Bd., 15 Ark. App. 255, 692 S.W.2d 258 (1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Carder v. Hemstock, 5 Ark. App. 115, 633 S.W.2d 384 (1982). We may not displace the Board’s choice between two fairly conflicting views even though we might have made a different choice had the matter been before us de novo. Fouch, supra. The burden of proof was on the appellant to establish that the public convenience and advantage would be served by issuing him a beer permit. Marshall, supra.

It is reasonably clear from the order of the Board denying the permit that the denial was based upon a determination that it was not in the public interest to grant the permit because of inadequate law enforcement in the area. Law enforcement problems are certainly relevant to the Board’s determination. Fouch, supra. We have no doubt that a finding that the issuance of a permit would create substantial law enforcement problems, if supported by the evidence, will in turn support a conclusion that the issuance of a permit will not promote public convenience and advantage.

Although the Board made extensive findings of fact in both its original order granting the permit and in the order issued after remand, we need examine only those findings relating to law enforcement problems because it is clear that this was the basis for the denial of the permit.

At the first hearing, appellant testified that the closest outlet for the sale of beer for off-premises consumption, in Dallas County, was 17 miles (Princeton). It is 12 miles from Sparkman to the closest outlet in Ouachita County. He testified that although Sparkman had hired one officer there was no city police department. He said that there was a part-time officer who was also a deputy sheriff who lives in Sparkman, and that his son is an elected constable in the City of Sparkman.

Mr. Johnson’s son testified that he is an auxiliary deputy sheriff for Dallas County and an elected constable for the City of Sparkman. He testified that he had talked to the sheriff and that at the time of their conversation the sheriff had no opposition to the application. He testified that he would enforce the law when he was on duty but that he had not personally arrested anyone because he was not sure of his powers of arrest. Richard Fleming, a former mayor of Sparkman testified that he thought there was inadequate law enforcement in the area now since it is a one hour drive to Fordyce.

Benny Grant, the pastor of the First Baptist Church in Sparkman, testified that he thought the permit should not be granted because of the proximity of Sparky’s to a church and school. The Board also noted that it had received a letter in opposition to the application from Sheriff Lee Hornaday.

On remand, the Board heard testimony from Hornaday and made lengthy findings relating to that testimony. The sheriff testified that he had three full-time deputies including James Skinner, who lives in Sparkman and has a 200 square mile territory. The sheriff said he also had an unpaid auxiliary deputy who lived in Ouachita Township and worked in Sparkman. The auxiliary deputy has no power except under the supervision of the deputy or the sheriff. Hornaday said he needed three more deputies to adequately patrol the county, that Skinner is the busiest deputy in the county, and that Sparkman has the highest crime rate in the county. He said he had no assistance from the State Police in the western part of the county.

Hornaday expressed his opinion that the location of Sparky’s, in a residential area near a church and school on Main Street, would make the workload greater for law enforcement. He said he would have trouble from the outlet because of the sale of beer and does not have the manpower to get to the store as soon as law enforcement is needed. Sparkman has no city police force. He said there was heavy traffic on the highway from the colleges in the area, especially in the spring.

Hornaday testified that Skinner had made approximately 90 arrests in the past two and one-half months and that at least one-third were put in jail at Fordyce. He testified that it takes three to four hours to transport a suspect arrested in Sparkman to the county jail in Fordyce. He said that he currently needed two full-time deputies to patrol the Sparkman area.

On cross-examination the sheriff admitted that he had as much law enforcement availability in Sparkman as in those places where beer permits had been granted in Dallas County, Mom’s Place, Farindale, and Princeton. He said that he had not objected to the permits at Princeton and Farindale because there was no opposition from area residents to the applications. He also said, however, that there is no town around Mom’s Place and that Princeton has a population of forty-one. He said there was no school at any of the three locations.

The Board also heard testimony from James Skinner that he currently had his hands full with subpoena service, tickets, investigations, and the like, and that he worked seven days a week. He also gave his opinion that the issuance of the permit would increase law enforcement problems but could point to no specific problems which had arisen since the issuance of the permit to appellant.

On these facts we hold that the Board’s ultimate conclusion, that the issuance of a beer permit for Sparky’s would not be in the public interest, is supported by substantial evidence and is not arbitrary or capricious.

Appellant argues that our decision in Snyder v. Alcoholic Beverage Control Bd., 1 Ark. App. 92, 613 S.W.2d 126 (1981), requires reversal here. In Snyder, we said:

There is no evidence in this case to indicate that the public would be inconvenienced or would be placed at a disadvantage by the issuance of this permit. In fact, the Board seems to have based its decision primarily on the fact that there was opposition from a significant number of persons, including the chief of police and a lieutenant on the police department of the City of Camden. The number or official position of persons who object or support the issuance of retail liquor permits is of no significance under the statute. The reasons those persons oppose or support specific permit applications may be very significant. The reasons may clearly show whether the public convenience or advantage will be served.

Appellant’s argument is that, because the sheriff testified that he would not have opposed the issuance of the permit at Sparky’s if it were not opposed by people in the area, the Board in effect denied the permit because of such opposition. In our view, however, the sheriff’s motive in testifying is relevant only to the issue of the credibility of his testimony. The credibility of witnesses is essentially a matter for the trier of fact, in this case the Board. Arkansas Health Planning & Development Agency v. Hot Spring County Memorial Hospital, 291 Ark. 186, 723 S.W.2d 363 (1987). The Board obviously believed the testimony of the sheriff and this was its prerogative. That testimony supports a finding that the issuance of a beer permit at Sparky’s would create significant law enforcement problems, and such a finding, in turn, supports the Board’s ultimate conclusion that the issuance of such a permit would not serve the public convenience or advantage.

Affirmed.

Cooper, J., dissents.