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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 43158

SEÑOR IGUANA'S, INC., MARCIA E. 

CORONA,

 Petitioners-Appellants,

v.

IDAHO STATE POLICE BUREAU OF 

ALCOHOL BEVERAGE CONTROL,

 Respondent.

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Boise, April 2016 Term

2016 Opinion No. 54

Filed: May 3, 2016

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Sixth Judicial District, State of Idaho, 

Bannock County. Hon. Robert C. Naftz, District Judge. 

District court order upholding cancellation of liquor license, affirmed.

Racine, Olson, Nye, Budge & Bailey, Chtd., Idaho Falls, for appellants. Brent 

Whiting argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. 

Stephanie A. Altig, Deputy Attorney General argued. 

_________________________________

BURDICK, Justice

Señor Iguana’s (Iguana’s) appeals the Bannock County District Court’s order upholding 

the Idaho State Police, Bureau of Alcohol Beverage Control’s (ABC) order that cancelled 

Iguana’s liquor license. The district court ruled that because Iguana’s failed to pay the renewal 

fee before the end of the thirty-one day grace period, the license expired by operation of law 

under Idaho Code section 23-908(1). Iguana’s contends that the license constituted a property 

right and that because the ABC failed to provide notice and a hearing before cancelling the 

license Iguana’s was denied its constitutional and statutory rights. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Iguana’s is a restaurant in Pocatello that has held a liquor license for approximately 

twelve years. On October 22, 2014, in accordance with Idaho Code section 23-908(1), Iguana’s 

filed a renewal application with ABC, including a check written for the required renewal amount 
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of $800.00. After receiving the renewal application and the check written for the fee amount, but 

before the check cleared, ABC sent Iguana’s a 2015 Retail Alcohol Beverage License. The 2015 

License stated that it was valid from November 1, 2014, through October 31, 2015. On October 

28, 2014, Iguana’s check for the $800.00 in renewal fees was returned for “Not Sufficient 

Funds” (NSF). ABC learned the renewal fee check had been returned NSF on November 4, 

2014. On November 6, 2014, ABC sent a certified letter, return receipt requested, addressed to 

“Señor Iguana’s, Inc., 961 Hiline Road, Pocatello, ID 83201,” advising Iguana’s that their 

license renewal fee check was returned NSF. The letter also stated that if Iguana’s failed to

submit a money order or cashier’s check in the amount of $800.00 by November 25, 2014, along 

with an additional separate money order or cashier’s check in the amount of $20.00 to cover the 

handling fee, Iguana’s license renewal application would be cancelled. United States Postal 

Service (USPS) tracking records indicate that because no authorized recipient for the certified 

letter was available, the USPS left notice at Iguana’s on November 10, 2014, that the letter was 

available for pickup at the USPS facility in Pocatello. On November 26, 2014, the letter was still

unclaimed at the USPS facility in Pocatello and was returned to ABC on December 3, 2014. 

On December 10, 2014, ABC Detective H. Caldera served the Order to Cease and Desist 

and Notice of Cancelled Retail Alcohol Beverage License on Marcia Corona for Iguana’s, and 

removed the 2015 license from the premises. That same day, Corona, on behalf of Iguana’s, sent 

cashier’s checks to ABC for the $800.00 renewal fee and for the $20.00 handling fee. On 

December 16, 2014, ABC returned the cashier’s checks to Iguana’s, explaining that the license 

had been cancelled due to non-renewal because the required renewal fee was not timely received. 

On December 17, 2014, Iguana’s filed a Petition for Judicial Review and a Motion to 

Stay in the Sixth Judicial District Court for the State of Idaho, in and for the County of Bannock. 

Argument was held on January 26, 2015, and on March 13, 2015, the district court entered its 

Memorandum Decision and Order and Judgment. In its Decision and Order the district court 

dismissed Iguana’s Petition for Judicial Review and Motion to Stay, ruling that because Iguana’s 

had failed to pay the required fee within the time frame allowed under Idaho Code section 23-

908(1) the license expired by operation of law and notice and opportunity to be heard under 

Idaho Code section 67-5254(1) was not required. Iguana’s timely appealed. 
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II. STANDARD OF REVIEW

“Any final decision or order of the district court on judicial review of an agency decision 

is appealable as a matter of right. We are procedurally bound to affirm or reverse the decisions of 

the district court. When considering an appeal from a district court acting in an appellate capacity 

under the Idaho Administrative Procedures Act, this Court reviews the agency record 

independently of the district court’s decision.” Flying “A” Ranch, Inc. v. Cnty. Comm’rs of 

Fremont Cnty., 157 Idaho 937, 939–40, 342 P.3d 649 651–52 (2015) (citations omitted) (internal 

quotation marks omitted).

III. ANALYSIS

Iguana’s contends that ABC violated the governing provisions of the Idaho Code by 

cancelling Iguana’s liquor license without providing notice or an opportunity to be heard. ABC 

argues that notice and a hearing was not required because the liquor license expired by operation 

of law when Iguana’s failed to timely submit payment of the required renewal fee. Iguana’s also 

contends it has a property right in its liquor license and that ABC’s actions deprived it of 

property without notice or opportunity to be heard in violation of the United States Constitution.

A. Iguana’s license expired by operation of law.

Iguana’s contends that ABC cancelled its liquor license without following the appropriate 

procedures defined under the governing provisions of the Idaho Code. Specifically, Iguana’s 

contends that under Idaho Code section 23-933(1) ABC was required to provide notice and a 

hearing before cancelling Iguana’s license. ABC maintains that notice and a hearing were not 

required because Iguana’s failed to submit sufficient funds with its renewal application and 

therefore the license expired by operation of law.

Idaho Code section 23-908(1) states in pertinent part:

All licenses shall expire at 1:00 o’clock a.m. on the first day of the 

renewal month . . . . Renewal applications for liquor by the drink 

licenses accompanied by the required fee must be filed with the 

director on or before the first day of the designated renewal month. 

Any licensee holding a valid license who fails to file an application 

for renewal of his current license on or before the first day of the 

designated renewal month shall have a grace period of an 

additional thirty-one (31) days in which to file an application for 

renewal of the license. The licensee shall not be permitted to sell 

and dispense liquor by the drink at retail during the thirty-one (31) 

day extended time period unless and until the license is renewed.
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Accordingly, under the statute, all licenses “expire at 1:00 o’clock a.m. on the first day of 

the renewal month.” The expiration happens by operation of law. It requires no action by ABC or

by the licensee. BV Beverage v. State, 155 Idaho 624, 628, 315 P.3d 812, 816 (2013) (“Liquor 

licenses therefore expire by operation of law . . . .”). If a licensee fails to file an application for 

renewal they are automatically granted “a grace period of an additional thirty-one (31) days.” 

I.C. § 23-908(1). The grace period, however, does not extend the life of the previous year’s 

license, as a licensee is not permitted to sell and dispense liquor during the thirty-one day period. 

Id. Rather, the grace period simply provides an extension of time in which the license, although 

having expired, may still be renewed. Id. If, however, the license is not renewed by submitting 

an application for renewal of the license “accompanied by the required fee” within the thirty-one 

day period, the licensee looses his privilege to renew his license under section 23-908(1) and 

must re-apply for a new license under the applicable code sections.

Here, the first day of Iguana’s renewal month was November 1, 2014. The thirty-one day 

grace period ended on December 2, 2014. Iguana’s did not submit the required fee until 

December 10, 2014. Although a renewal was submitted earlier on October 22, 2014, the fee was 

not paid. “[P]ayment by check is conditional and is defeated as between the parties by dishonor 

of the check on due presentment.” I.C. § 28-2-511(3). Iguana’s had the obligation to make timely 

payment of the required fee. Although ABC attempted to notify Iguana’s that its check was 

returned NSF, ABC was under no obligation to do so. Having chosen to submit a check in 

payment of the fee, it was Iguana’s obligation to make sure that there were funds in the account 

to pay the check upon presentment. Iguana’s failed to do so. Accordingly, because Iguana’s 

failed to timely submit the required fee, its license expired by operation of law on November 1, 

2014. Similarly, having failed to submit the require fee before the end of the thirty-one day grace 

period, Iguana’s, also by operation of law, lost its privilege to renew its license under section 23-

908(1). 

Iguana’s attempts to make much of the fact that ABC issued a 2015 license after Iguana’s 

submitted its renewal application and the NSF check. Having issued such a license, Iguana’s 

argues that ABC was bound by Idaho Code section 23-933(1) to provide notice and a hearing 

before cancelling the 2015 license. Section 23-933(1) provides that ABC cannot revoke a license 

without following the procedures set forth in the Idaho Administrative Procedure Act. Section 

67-5254(1) of that Act provides:
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An agency shall not revoke, suspend, modify, annul, 

withdraw or amend a license, or refuse to renew a license of a 

continuing nature when the licensee has made timely and sufficient 

application for renewal, unless the agency first gives notice and an 

opportunity for an appropriate contested case in accordance with 

the provisions of this chapter or other statute.

As discussed above, Iguana’s did not make a “timely and sufficient application for 

renewal.” Consequently, section 67-5254(1) does not apply. Therefore, ABC was not statutorily 

required to provide notice and an opportunity to be heard before cancelling the erroneously

issued 2015 license. Having not timely paid the required fee, Iguana’s was never in compliance 

with the requirements of Idaho Code section 23-908(1), and therefore the 2015 license was 

subject to cancellation. See Henson v. Dep’t of Law Enforcement, 107 Idaho 19, 24, 684 P.2d 

996, 1001 (1984).

We do not decide whether Iguana’s had a property interest in its liquor license because it 

is undisputed that Iguana’s failed to timely submit the required renewal fee. Having failed to 

meet the statutorily mandated requirements for renewal, the license, and any property interest 

Iguana’s may or may not have had, expired by operation of law. 

B. Attorney fees and costs.

Both parties claim attorney fees under Idaho Code section 12-117(1). Fees are mandated 

under section 12-117(1) when the “non-prevailing party acted without a reasonable basis in fact 

or law.” Iguana’s is the non-prevailing party. However, Iguana’s did not act without reasonable 

basis in fact or law and we decline to award fees on appeal. 

IV. CONCLUSION

Because Iguana’s did not tender the required renewal fee within the statutorily mandated 

time frame, its liquor license expired by operation of law. The district court is affirmed. Costs to 

Respondent.

Chief Justice J. JONES, EISMANN, HORTON and KIDWELL, Pro Tem, CONCUR.