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### STATE OF MICHIGAN

COURT OF APPEALS

KENNEDY LIQUOR & DELI SHOPPE, INC.,
d/b/a BIG DADDY’S LIQUOR & PARTY STORE,

Plaintiff-Appellee, UNPUBLISHED March 24, 2016

v No. 325387
Oakland Circuit Court LIQUOR CONTROL COMMISSION, LC No. 2014-140734-AS

Defendant,

and

BALDWIN EXPR ESS, INC.,

Intervening Defe ndant-Appellant.

Before: K. F. K ELLY , P.J., and F ORT H OOD and B ORRELLO , JJ.

P ER C URIAM

.

Defendant, Baldwin Express, Inc., appeals as of right the tria l court’s order granting summary disposition pursuant to MCR 2.116(C)(10) to plaintiff, Kennedy Liquor and Deli Shoppe, Inc., in this action from a decision of the Liquor Cont rol Commission (“LCC”) 1 granting defendant’s request for a transfe r of a liquor license. For th e reasons set forth in this opinion, we reverse and remand for entry of summary disposition in favor of defendant.

I. BACKGROUND

In May of 2014, the LCC granted defendant’s application for tr ansfer of a specially designated distributor’s (“SDD”) liquor license to its store in Pontiac, Michigan. Plaintiff has a license to sell liquor and operates its store within one-half m ile of defendant’s store. The regulatory code relative to li quor licenses prohibited the LCC from granting defendant’s

1 Although the LCC was also a party to the underlying action, it is not a party to the appeal, and therefore, it is not designated a s “defendant” in this opinion.-2- application if there was an exis ting location with a license wi thin one-half mile of the new location absent an applicable waiver. The LCC found that a wai ver applied because the businesses were separated by a thoroughfare of not less than fo ur lanes of traffic. Accordingly, it approved the liquor licens e transfer to defendant.

Plaintiff brought the instant ac tion in circuit court requesti ng superintending control over
the LCC’s issuance of the license to defendant and relevant dec laratory relief. Plaintiff alleged that the exception did not apply because the roadway separating the businesses was not four connected lanes. According to plaintiff, the intersection at i ssue consisted of two distinct twolane roads, namely West Kennett Road and Parkdale Avenue, along with a turn lane, which met in a “Y” shaped intersection at Baldwin Avenue. In contrast, t he LCC asserted that West Kennett and Parkdale merged before the intersection at Baldwin Avenue to create one thoroughfare having the requisite lanes of traffic for an excep tion to the half-mile rule.

Both defendant and plaintiff moved for summary disposition. T he trial court granted plaintiff’s motion for summary disposition after finding that p laintiff was entitled to a writ of superintending control and for declaratory relief. The court r easoned the LCC failed to perform a clear legal duty and that pla intiff was without an adequate l egal remedy in this matter. The trial court ordered the LCC to immediately withdraw its approva l of defendant’s application. This appeal ensued.

II. STANDARD OF REVIEW

We review a trial court’s decision on a motion for summary dis position de novo.

Johnson v Recca , 492 Mich 169, 173; 821 NW2d 520 (2012). Summary disposition under MCR 2.116(C)(10) is proper if the evidence fails to establish a gen uine issue of material fact, and the moving party is entitled to judgment as a matter of law. Dextrom v Wexford Co , 287 Mich App 406, 415; 789 NW2d 211 (2010). Furthermore, we review a trial court’s decision to grant or deny an order of superintending control for an abuse of discret ion. In re Goehring , 184 Mich App 360, 366; 457 NW2d 375 (1990). “A court by definition abus es its discretion when it
makes an error of law.” In re Waters Drainage Dist , 296 Mich App 214, 220; 818 NW2d 478 (2012).

III. ANALYSIS

At the outset, plaintiff contends that defendant challenged pl aintiff’s request for a writ of superintending control, but faile d to challenge plaintiff’s req uest for declaratory relief. Accordingly, plaintiff argues, d efendant has waived the right t o challenge the court’s order to the extent the order grants declaratory relief. Despite this conte ntion, it is clear from the lower court record that the two remedies p laintiff sought were inextricably linked and concerned the same underlying transaction, which is at issue in this appeal. More over, consideration of the issue is necessary to a proper determinati on of the case; therefore, we have discretion to review the issue.

See Steward v Panek , 251 Mich App 546, 554; 652 NW2d 232 (2002). Finally, to the extent that plaintiff argues that defendant waived its argument with respec t to standing, as discussed below, the standing issue is moot given that defendant was entitled to summary disposition on other grounds.-3- Defendant additionally argues that plaintiff was not a proper party with authority to seek a writ of superintending control. However, irrespective of whe ther plaintiff was entitled to seek superintending control, the trial court erred as a matter of la w in finding that the LCC violated the regulatory code and therefore abused its discretion in gran ting plaintiff’s request for superintending control and decl aratory relief. Accordingly, th ere is no reason for this Court to consider this particular argument.

Defendant also asserts that the trial court erred in applying incorrect standards of review. We find this argument persuasive. When an evidentiary hearing is not required by statute in connection with a license transfer request, such a proceeding i s not a contested case and therefore is not covered by the appeals proc edure of the Administrative P rocedures Act (APA). J & P Market, Inc v Liquor Control Comm , 199 Mich App 646, 650; 502 NW2d 374 (1993). Rather, the scope of review provided by Const 1963, art 6, § 28, applie s in such cases and limits review to a determination of whether the action of the agency was auth orized by law. Id . An
administrative decision is unaut horized by law if it is: (1) in violation of a statute or the constitution, (2) in excess of the statutory authority or juris diction of the agency, (3) made upon unlawful procedures resulting in material prejudice, or (4) arb itrary and capricious. English v
Blue Cross Blue Shield of Michigan , 263 Mich App 449, 455; 688 NW2d 523 (2004). It is not proper for the circuit court or this Court to review the eviden tiary support of an administrative agency’s decision where no hearing was required. Northwestern Nat’l Cas ualty Co v Comm’r of

Ins , 231 Mich App 483, 488; 586 NW2d 563 (1998).

In this case, under the plain language of the applicable admin istrative rule, the LCC is required to deny an application for an SDD liquor license where the applicant is located within one half-mile of another such licensee. Mich Admin Code, R 436 .1133. The Code contains an exception to this rule where the two businesses are separated b y “a major thoroughfare of not less than 4 lanes of traffic.” Mich Admin Code, R 436.1133(c). We have held that the decision whether to grant an exemption based on Rule 33 is within the di scretion of the commission. J & P Market, Inc , 199 Mich App at 651.

Here, the trial court was required to determine whether the LC C’s decision was unauthorized by law by determining whether: the LCC violated a statute or the constitution, acted outside the scope of its a uthority, rendered a decision b ased on unlawful procedure, or made an arbitrary and capricious decision. English , 263 Mich App at 455. The LCC reviewed the matter and determined that the merger of the lanes just bef ore the intersection with Baldwin was sufficient to satisfy the definition of “a major thoroughfa re of not less than 4 lanes of traffic.” In doing so, the LCC was exercising its lawful discr etion to interpret and apply the relevant regulatory rule. See J & P Market, Inc , 199 Mich App at 651. Although plaintiff submitted evidence to support a different interpretation of the exception, the trial court erred as a matter of law in reviewing evidence de novo when there was no h earing required. Northwestern Nat’l Casualty Co , 231 Mich App at 488. Because the LCC’s decision was not arbi trary or capricious, did not violate a sta tute or the constitution, and was not based on improper procedure, the decision was authorized by law. See English , 263 Mich App at 455. Once these conditions were met, the trial court was devoid of discretion to delve int o the facts behind the decision reached by the LCC. Accordingly, the trial court abused its di scretion in granting plaintiff’s request for superintending contro l and related declaratory reli ef under the circumstances.-4- Reversed and remanded for entry of an order granting summary d isposition in favor of defendant. Having prevailed in full, defendant may tax costs. MCR 7.219(A). We do not retain jurisdiction.

/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood /s/ Stephen L. Borrello