D. J. Koenig & Associates, Inc. v. Miss. State Tax Comm'n
| Docket Number: | 2001-CC-01087-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 02-13-2003 Opinion Author: McRae, P.J. Holding: AFFIRMED ON DIRECT AND CROSSAPPEAL |
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| Additional Case Information: |
Topic: Authority of ABC Division of Mississippi State Tax Commission - Section 67-1-37(b) - Section 67-1-57(a) - Notice - Amendment of indictment - Penalty Judge(s) Concurring: Pittman, C.J., Waller, Cobb, Easley and Carlson, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: Smith, P.J., and Graves, J. Procedural History: Admin / Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 05-24-2001 Appealed from: Madison County Chancery Court Judge: William Joseph Lutz Disposition: Affirmed the suspension of the solicitor's permit for one month. Case Number: 2000-908 |
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| Note: | Motion to Strike New Arguments and New Authority filed by the Mississippi State Tax Commission is denied | |
| Party Name: | Attorney Name: | |||
| Appellant: | D. J. Koenig & Associates, Inc. |
SHELDON G. ALSTON
ALEX A. ALSTON, JR. |
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| Appellee: | Mississippi State Tax Commission | JEFFREY JOHNS LITTLE GARY WOOD STRINGER BOBBY R. LONG |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Authority of ABC Division of Mississippi State Tax Commission - Section 67-1-37(b) - Section 67-1-57(a) - Notice - Amendment of indictment - Penalty |
| Summary of the Facts: | After two hearings before the Alcoholic Beverage Control Division of the Mississippi State Tax Commission, the solicitor's permit of D.J. Koenig & Associates, Inc. was suspended for one month. The chancery court affirmed the suspension, and Koenig appeals. |
| Summary of Opinion Analysis: | Issue 1: Authority of Commission Section 67-1-37(b) gives the Commission authority to revoke, suspend or cancel a permit for violation of or noncompliance with the law relating to the production and sale of native wines or any lawful rules and regulations of the commission or for sufficient cause. Section 67-1-57(a) provides that before a permit is issued the commission shall satisfy itself that each of its principal officers and directors, is of good moral character and enjoys a reputation of being a peaceable, law abiding citizen of the community in which he resides. The Commission's original stated basis for the suspension of Koenig's permit was that the permittee failed to maintain the qualifications set forth in section 67-1-57(a). The chancellor corrected noted that this section did not apply to Koenig's actions. Koenig argues that to suspend Koenig's permit under the "sufficient cause" language of section 67-1-37(b) is unconstitutional. The Legislature gave an express grant of power to the Commission to suspend, revoke or cancel permits and in doing so, intended for that power to extend to actions for which the Legislature could not or did not account in drafting the statute. The evidence shows that Koenig totally disregarded the authority and power of the ABC. Koenig violated ABC Reg. No. 54 by failing to submit its questions regarding the permissibility of products intended for sale, in writing, to the Director of the Alcoholic Beverage Control Division. In addition, Koenig has admitted responsibility for the actions of its employees. Issue 2: Notice Koenig argues that it was never notified that it was being charged under the specific portion of section 67-1-37(b) relating to "other sufficient cause" and that this section of the statute was not mentioned until the Commission filed its second appellee's brief with the chancery court. Administrative agencies must afford minimal due process consisting of notice and an opportunity to be heard. Koenig was given both. Koenig was given notice that the statute was at issue in the second hearing. Issue 3: Amendment of indictment Koenig argues that the Commission amended the indictment against it after the case was remanded from chancery court and that it was required to defend against a moving target. The Commission sent a second letter notifying Koenig of the second hearing and the determinations that the Commission would make including some additional charges and clarifying others. The letters issued are not indictments but are notifications of the charges to be determined by an administrative agency. Issue 4: Penalty Koenig argues that the actions do not endanger the public and that the one-month suspension is too harsh. The Commission is given broad discretion concerning its powers and duties over alcoholic beverage permits. Since Koenig has cited no legal authority to support its arguments and given the Commission’s broad discretion, the one-month suspension and one-year probation will not be disturbed. |
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