                               No.     94-096
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1994


IN THE MATTER OF THE DENIAL OF
THE APPLICATION FOR ISSUANCE OF
ONE ORIGINAL (NEW) ON-PREMISES
CONSUMPTION BEER/WINE LICENSE,
TOWN PUMP OF WOLF POINT, 401
CASCADE. WOLF POINT. ROOSEVELT
COUNTY;MONTANA,
APPLICANTS:     E-Z SUPPLY, INC.,
                  Appellant.


APPEAL FROM:      District Court of the First Judicial District
                  In and for the County of Lewis and Clark,
                  The Honorable Jeffrey Sherlock, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:

                  Thomas E. Richardson, Attorney at Law,
                  Butte, Montana
          For Respondent:
                  Lawrence G. Allen, Tax Counsel, Montana
                  Department of Revenue, Helena, Montana


                                     Submitted on Briefs:   June 24, 1994
                                                 Decided:   October 25, 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

     E-Z Supply, Inc. (E-Z),      an affiliate of Town Pump,        Inc.,
appeals from an order of the First Judicial District Court, Lewis
and Clark County,, denying its petition for judicial review. We
reverse, concluding that the Montana Department of Revenue (DOR)
incorrectly interpreted and applied     § 16-4-413, MCA, in denying
E-Z's application for an on-premises beer and wine license (liquor
license).
     On December 22, 1988, E-Z applied to the Liquor Division of
the DOR (Liquor Division) for a liquor license for use at Town
Pump's Wolf Point convenience store and filling station. Following
a hearing at which protesters testified against the application
because of the impact it would have on the community, the hearing
examiner issued a proposed decision denying E-Z's application.        E-Z
withdrew the application.
     On September 15, 1991, E-Z submitted another application for
a liquor license for use at the Wolf Point location.        In September,
1992, the Liquor Division notified E-Z that the application would
be denied pursuant to 5 16-4-413, MCA.       E-Z requested, and was
granted, a hearing.     The hearing examiner issued findings of fact,
conclusions   of law,     and   a proposed order denying the 1991
application pursuant to § 16-4-413, MCA.        The   DOR    subsequently
adopted the findings, conclusions, and proposed order as its final
decision.
     E-Z petitioned the District Court for judicial review of the
DORIS decision.   The District Court denied the petition, concluding
                                    2
that the DOR correctly interpreted and applied 5 16-4-413, MCA.
E-Z appeals.
       The issues before us relate to the interpretation and
application of § X6-4-413, MCA.        The interpretation and application
of a statute to a particular set of circumstances are matters of
law.   See Minervino v. University of Montana (1993), 258 Mont. 493,
497,   853 P.2d 1242, 1245.       An administrative agency's conclusions
of law are reviewed by district courts and this Court to determine
whether those conclusions are correct.         GBN, Inc. v. Montana Dep't
of Revenue (lPPl), 249 Mont. 261, 264, 815          P.2d 595, 597; Steer,
Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803 P.Zd
601, 603.
       The first issue raised by E-Z is            that the DOR erred by
retroactively    applying    §   16-4-413, MCA, to its application filed
September 15, 1991, prior to the statute's effective date.         Because
our holding on the second             issue   clarifies   that a   correct
interpretation o:E g 16-4-413, MCA, results in no detriment or
prejudice to E-Z, we decline to address this issue, assuming for
purposes of this opinion that § 16-4-413, MCA, is applicable to the
liquor license application presently before us.
       The second issue raised by E-Z is that the DORIS denial of the
1991 application was based on an incorrect interpretation of 5 16-
4-413, MCA.     E-Z asserts that, under 5 16-4-413(l), MCA, the DORIS
determination     tlnat     E-Z's    application    did   not   present   a
"substantially different use" precluded further consideration and
required the DOR to simply return the application to E-Z. We

                                       3
agree.

        Our function in interpreting statutes is to effectuate the
intent of the legislature.           Minervino,      853 P.2d at 1244.          "our

primary tool for ascertaining the legislature's intent is the plain

meaning of the words used."          Sagan v. Prudential         Insurance   Company

of America (1993),     259 Mont. 506, 509, 857 P.2d 719, 722 (citation

omitted).     "If the legislature's intent can be determined from the

plain meaning of the words used in a statute, we will go no

further." State ex rel. Neuhausen v. Nachtsheim (1992),                   253 Mont.

296, 299, 833 P.2d 201, 204.

        Section   16-4-413,   MCA,   sets   forth    procedures     governing   the

DORIS    processing   of   certain   reapplications        for   liquor   licenses.
The procedures are applicable in the event of a previous denial of

a liquor license application for the same premises pursuant to §

16-4-405,    MCA.     Section 16-4-413(l), MCA.             Moreover, "[iIf an

application is withdrawn after a hearing . . . in which testimony

is received regarding any reason for denial provided in 16-4-405,

the effect of the withdrawal is the same as if a final decision had

been made denying the application . . . .I'                Section 16-4-413(2),

MCA.      In this case, E-Z     withdrew    its     1988   application    following

such a hearing and, pursuant to § 16-4-413(2), MCA, the effect of

the withdrawal was the same as if the 1988 application had been

denied.     Thus, the DORIS processing of E-Z's 1991 application is

governed by the provisions of         § 16-4-413, MCA.

        Once a previous application has been denied, 5 16-4-413(l),
MCA, provides that "the department may not consider an application


                                        4
.   .   .    for those premises for 5 years unless the department . . .
determines that the proposed use is substantially different from
the use that was rejected."         Given the manner in which the statute
is structured, it is clear that the Vnless" clause in subsection

(1)         constitutes a   condition precedent to the DOR's           further
processing of a reapplication             filed within five years of the
previous denial.          Therefore, the DOR must first determine whether
the application presents a substantially different use from that
rejected in the previous application.           In the present case, the DOR
determined         that   E-Z's   1991    application   did    not   present   a
substantially different use              from that contained in the 1988
application.         Thus, the condition precedent to the DORIS further
processing of E-Z's 1991 application was not satisfied.
            Under that circumstance, § 16-4-413(l), MCA, directs that the
DOR "may not consider" E-Z's 1991 application.                The plain meaning
of the word "consider" is "[t]o fix the mind on, with a view to
careful examination . . . . To deliberate about and ponder over."
Black's Law Dictionary 306 (6th ed. 1990).              By utilizing the word
"consider," the legislature clearly intended to relieve the DOR of
the necessity of carefully deliberating over an application filed
within five years of a previous denial where the application does
not present a substantially different use.          Thus, the plain meaning
of the phrase "may not consider" is that, once the DOR determines
that a subsequent application submitted within the five-year period
does not present a substantially different use, it may not further
process or evaluate the application.

                                          5
       We conclude that the plain language of        § 16-4-413, MCA,

precluded any further action on E-Z's 1991 application after the
DOR determined that it did not present a substantially different

use.    The only action available to the DOR at that point was to

return the application without further consideration.

       The DOR interpreted § 16-4-413, MCA, as authorizing it to deny
E-Z's 1991 application.      It argues that the legislative history of

the statute supports its interpretation.

       As set forth above,    if we can determine the legislature's
intent from the p:Lain language of a statute, we will go no further.

Nachtsheim, 833 P.2d at 204.     We resort to legislative history only

where legislative intent cannot be derived from the plain language

of the statute.   State ex rel. Roberts v. Public Service Commission

(1990) I 242 Mont. 242, 246, 790 P.2d 489, 492 (citation omitted).
Having concluded that the plain language of 5 16-4-413, MCA, does

not permit the DOR to further consider or act on a subsequent

application absent a "substantially     different   use"   determination,
we decline to review the legislative history.

       The DORIS interpretation that § 16-4-413, MCA, authorized it

to deny E-Z's 1991 application was incorrect as a matter of law.

As a result, we hold that the District Court erred by denying E-Z's

petition for judicial review.

       Reversed and remanded to the District Court for entry of an

order directing the DOR to return E-Z's application.




                                    6
                                                                            -‘------.
we concur:
             wc-pG-5z
     7
                                     October 25, 1994

                              CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:


Thomas E. Richardson, Esq.
Attorney at. Law
600 South Main
Butte, MT 59701

Lawrence G. AIlen, Tiu: Counsel
Montana Department of Revenue
P.O. Box 202701
Helena, MT 59620-2701



                                                  ED SMITH
                                                  CLERK OF THE SUPREME COURT
                                                  STATE OF MONTANA .

                                                 BY:
                                                 Deputy     /”
