 

Sn the Missourt Court of Appeals
Eastern District

DIVISION FOUR
ELIZABETH HELLER, et al. ) ED107029
)
Appellants, ) Appeal from the Circuit Court
) of the City of St. Louis
Vv, )  1722-CC11009
)
CITY OF ST. LOUIS, et al, )} Honorable Joan L. Moriarty
)
Respondents. ) Filed: June 25, 2019

Introduction

This is an appeal from a decision of the Excise Division of the Department of Public
Safety for the City of St. Louis (Division), granting a full drink license, full Sunday drink
license, and summer garden permit to Up-Down STL, LLC (Up-Down) for operation of its
business at 403-411 N. Euclid Ave. Appellants are residents living in the vicinity of the
property. Appellants argue that the Division violated the applicable City ordinance by
failing to consider whether granting Up-Down’s license application would be a detriment
to the neighborhood, and by refusing to accept evidence regarding detriment at the public
hearing on the license application. Appellants further argue the Division failed to find facts
regarding detriment to the neighborhood in its decision granting Up-Down’s license
application. Because we agree the Division’s findings are inadequate, we reverse and

remand,
Background

In February of 2016, Up-Down applied for a full drink license, full Sunday drink
license,' and summer garden permit for the premises located at 403- 11 N. Euclid Avenue
in the City of St. Louis. Upon receiving notice of Up-Down’s application, Appellant
Elizabeth Heller (Heller) submitted a letter of protest containing the signatures of 12
property owners in the surrounding neighborhood.

On May 17, 2017, the Division held a hearing regarding the license application
pursuant to City Ordinance No. 68536, Section Nine, Chapter 14.08. At the hearing, the
Division’s Commissioner heard evidence from both Up-Down and Heller regarding the
signatures collected both in support of and in protest of the application for a liquor license,
After ruling on objections regarding signatures, the parties began to discuss the character
of the neighborhood and a “Good Neighbor Agreement” that Up-Down had submitted as
evidence. Heller expressed that such an agreement was not enforceable and did not
adequately address the protestors’ concerns,

The Commissioner then told the parties that such documents will not affect his
decision at that particular hearing because he was concerned only with the validity of the
signatures. He stated that there would be a protest hearing in the future at which he would
hear additional evidence and consider the 13 factors regarding detriment to the
neighborhood. The Commissioner subsequently stated he was going to approve Up-
Down’s application but give two weeks to determine what terms and conditions he might

impose on the license. During that time, he said he would accept additional evidence from

 

' For the sake of simplicity, going forward we refer to Up-Down’s application as its “application for a liquor
license.”

 
anyone whe wished to submit it and would go visit the premises to further determine terms
and conditions that would address the neighbors’ concerns.

On July 20, 2017, the Commissioner issued findings of fact and conclusions of law
accompanying the grant of Up-Down’s application for a liquor license. The Commissioner
found that the protest petition did not contain enough valid signatures to merit a protest
hearing, but he noted that he had heard the protesters’ concerns at the original hearing and
had had additional discussions with Heller when he visited the subject property. The
decision includes 14 terms and conditions the Commissioner imposed on Up-Down’s
operation of its business in light of its location.

Appellants sought administrative review in the circuit court. The Circuit Court
affirmed the Commissioner’s decision, finding that the Division’s record was adequate and
Appellants failed to demonstrate that the decision was not supported by competent and
substantial evidence upon the whole record; that it was arbitrary, capricious, or
unreasonable; or that the Division abused its discretion. This appeal follows.

Standard of Review

In our review of an administrative decision, we review the decision of the agency,
not of the circuit court. Sanders v. Firemen’s Retirement Sys. of St. Louis, 393 S.W.3d
135, 137 (Mo. App. E.D. 2013). Administrative review of a contested case, as here, is
governed by Section 536.140,’ which authorizes this Court to determine whether the action
of the agency

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

 

2 All statutory references are to RSMo. (Supp. 2017), unless otherwise indicated.

3

 
(3) Is unsupported by competent and substantial evidence upon the whole
record;

(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.
We must review the whole record, and “we no longer view the evidence in the light most

favorable to the agency’s decision.” TCF, LLC v. City of St. Louis, 402 S.W.3d 176, 181

 

(Mo. App. E.D. 2013) (quoting Lagud v. Kansas City Bd. of Police Comm’rs, 136 S.W.3d
786, 791 (Mo. bane 2004)).
Discussion

Appellants argue in their first two points on appeal that the Division misapplied the
applicable City ordinance in granting Up-Down’s license application in that the Division
(1) failed to consider whether issuance of the license would be a detriment to the
neighborhood, and (2) refused to hear evidence regarding detriment at the hearing,
respectively. In their third poimt, Appellants argue that the Division’s decision is
inadequate because it fails to include any factual findings regarding detriment to the
neighborhood. This third point is dispositive,

Point II]

Appellants argue that the Division’s decision is inadequate because it fails to
include findings of fact regarding the issue of whether granting Up-Down’s liquor license
application would be detrimental to the neighborhood. We agree.

In a contested case, an agency is required to issue a written decision containing

specific findings of fact and conclusions of law. Section 536.090; Ruffin v, City of Clinton,

 

 
849 S.W.2d 108, 110 (Mo, App. W.D. 1993). Absent specific findings of fact, a reviewing
court cannot conduct meaningful review. Ruffin, 849 8.W.2d at 110-11 (noting circuit
court had initially remanded to agency because original findings were “conclusionary and
of a very general nature’).

Here, the Commissioner issued detailed findings of fact regarding the validity of
the signatures collected both for and against Up-Down’s application. However, the
decision contains no findings regarding detriment to the neighborhood. Section
14.08.080(A) of Ordinance No. 68536 states, “In determining whether to approve issuance
of a retail license to a person applying therefor, the Excise Commissioner shall consider
whether issuance of such license would be detrimental to the neighborhood in which the
licensed premises would be located.’? Further, Section 14.08.040 enumerates 13 factors
that the Excise Commissioner “shall consider” when determining whether issuance of a
license would be detrimental to the neighborhood.

Respondents argue that the Comunissioner was not required to make specific factual
findings regarding detriment to the neighborhood because it is clear from the record that
the Commissioner considered evidence relating to the issue of detriment during the hearing
as weil as after the hearing when he visited the property. Respondents note that Section
14.02.040(A) of the ordinance allows for a Commissioner to impose terms and conditions
upon a license when he or she finds that there is no detriment to the neighborhood but that
nevertheless there are conditions not in the best interest of the neighborhood that must be

addressed. Respondents argue that from the Commissioner’s imposition of terms and

 

1 The ordinance contains the same requirement for the Excise Commissioner’s consideration of an applicant
for a summer garden permit. Section 14.08.200(B).

 
conditions on Up-Down’s licenses here, we may infer that the Commissioner found that
issuing such licenses is not detrimental to the neighborhood.
However, this Court cannot infer findings of fact from the ultimate decision

reached, Schwartz v. City of St. Louis, 274 $.W.3d 509, 514 (Mo. App. E.D. 2008);

 

Standard Oil Div, of Amoco Oil Co. v. City of Florissant, 607 S.W.2d 854, 855 (Mo. App.
E.D. 1980). While the Commissioner’s decision does impose terms and conditions to
address issues regarding the neighborhood, these are unreviewable given that the decision
does not recite a factual basis for such terms and conditions. .

The record reflects that the Commissioner believed (1) the initial hearing on the
license application concerned only the validity of signatures, and he must grant the
application in the event he found sufficient signatures; and (2) that evidence regarding
detriment to the neighborhood as well as his consideration of the ordinance’s 13 factors
regarding detriment should be addressed at the protest hearing rather than the initial
hearing.’ However, the ordinance requires consideration of detriment to the neighborhood
as part of the determination of whether to grant the license, regardless of whether there is
a protest hearing. Section 14.08.080(A). The importance of this structure is evident here,
where a protest hearing was scheduled and then canceled because the Commissioner

determined the protest petition lacked sufficient valid signatures. Without detailed factual

 

4 When Heller argued that the Good Neighbor Agreement was not binding on the Division, the Hearing
Officer stated the following:
[A]s [ said at the beginning, my concern about approving this petition is these
signatures; alright, The law is not written where if they have the majority of
signaturefs| required and I don’t like their business plan for whatever reason,
| can reject their petition . . . I understand your position is... if we want to
start submitting letters here about how we think this business is going to affect
the neighborhood then I have a lot of evidence that I want to submit... .
(However,] the Protest Hearing that’s why there’s [3 factors . . . to be
considered of [the license] being detrimental to the neighborhood.

6

 
findings and a conclusion regarding the Commissioner’s determination of detriment, we
cannot ensure he followed the ordinance’s requirement to consider evidence of detriment
outside the protest hearing and before issuing the license, nor can we review whether the
terms and conditions he imposed adequately address any concerns he found to exist in the
neighborhood as a result of the grant of the license here.

Respondents argue that the ordinance only requires that the Commissioner consider
the issue of detriment and does not require him to make specific findings regarding each
factor listed in Section 14.08.040 of the ordinance. While findings regarding each factor
may not be necessary, the Missouri Administrative Procedure Act’s requirement of written
findings of fact, Section 536.090, RSMo. (2000), has been interpreted to mean facts
“sufficiently specific to enable the court to review the decision intelligently and ascertain
if the facts afford a reasonable basis for the order without resorting to the evidence.” Mo.
Veterans Home vy. Bohrer, 849 S.W.2d 77, 80 (Mo. App. W.D. 1993). Here, the evidence
presented on the record regarding detriment to the neighborhood was limited given the
Commissioner’s statements that such evidence was properly the subject of a future protest
hearing, which ultimately did not take place. Further evidence considered by the
Commissioner took place off the record.> Thus, without detailed findings, and without a
specific conclusion regarding detriment prior to the Commissioner’s decision to grant the

license application, we cannot discern whether the Hearing Officer properly followed the

 

3 Because the parties’ other points on appeal contain some discussion of waiver, which may resurface upon
remand, we note that while it is possible to waive predecision procedural formalities such as sworn testimony
or formal introduction of exhibits, parties may not waive the requirement for specific findings of fact and
conclusions of law on the relevant issues. See Weber v. Fireman’s Retirement Sys., 872 5.W.2d 477, 480
(Mo. banc 1994). Here, the ordinance requires the Division to consider the issue of detriment to the
neighborhood. While the parties may waive their right to put evidence regarding this issue on the record,
they cannot waive the requirement that the Division consider the issue of detriment and make findings
regarding that issue.

 

 
ordinance or review whether the decision is supported by competent and substantial
evidence upon the whole record. Point granted.
Conclusion

Due to the absence of specific findings of fact regarding the issue of whether
granting Up-Down’s license application would be detrimental to the neighborhood in
which the premises is located, we must reverse. We remand to the circuit court with
directions to reverse the decision and remand to the Division with directions for the
Division to make findings of fact and conclusions of law based on the evidence already
presented, or, if necessary, to hear additional evidence and then enter its order. See

Cummings v. Mischeaux, 960 8,W.2d 560, 564 (Mo. App. W.D. 1998),

 

 

Gary gine Jr., Judge

Kurt 8. Odenwald, P.J., concurs.
Colleen Dolan, J., concurs.

 
