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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

180 PIERCE LLC and POLO I LLC,

Plaintiff-Appellants,

UNPUBLISHED

September 26, 2017

v No. 334425

Ingham Circuit Court

LIQUOR CONTROL COMMISSION, LC No. 15-000463-AW

Defendant-Appellee,

and

PIERCE MARTIN LLC and TOWNHOUSE 

KITCHEN AND BAR LLC,

Intervening Defendants-Appellees.

Before: BECKERING, P.J., and MARKEY and RIORDAN, JJ.

PER CURIAM.

Plaintiffs, 180 Pierce, LLC, and Polo I, LLC, filed a complaint seeking issuance of a writ 

of mandamus to compel defendant Liquor Control Commission (the Commission) to initiate 

procedures to revoke liquor licenses issued to intervening defendant Townhouse Kitchen and 

Bar, LLC (Townhouse). On August 2, 2016, the trial court entered an order denying plaintiffs’

motion for summary disposition on their complaint and granting the summary disposition 

motions of the Commission and intervening defendants, Pierce Martin, LLC (Pierce Martin) and 

Townhouse. Plaintiffs appeal as of right from this order. We affirm.

I. PERTINENT FACTS

The broader context for plaintiffs’ request for issuance of a writ of mandamus is a 

property dispute between co-owners of a condominium building located in Birmingham, 

Michigan. See Joel Dorfman v Pierce Martin, LLC, unpublished opinion per curiam of the Court 

of Appeals, issued September __, 2017 (Docket No. 333428). At issue in the broader dispute is

whether Pierce Martin, which owns Units 5 and 6, the building’s two commercial units, obtained 

approval from the tenants’ association (“the association”) and residential co-owners to occupy 

and use a portion of common element space adjacent to Unit 5 to operate Townhouse, an upscale 

bar and grille owned by Pierce Martin.
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Townhouse applied for new Class C and Special Designated Merchant liquor licenses on 

December 21, 2010. Accompanying its application was a sketch and floor plan showing the 

intended licensed premises, which included the proposed expansion of Unit 5 onto the portion of 

common elements at issue. On April 13, 2011,1 the Commission approved Townhouse’s 

application on condition, among other things, of receipt of a fully executed lease between Pierce 

Martin and Townhouse and a final inspection to determine whether improvements and 

renovations to the premises had been made as proposed. Upon fulfillment of these and other

conditions, the Commission issued the liquor licenses to Townhouse, and the restaurant and bar

opened for business in August 2011.

On or around April 5, 2012, the Commission’s enforcement division received and began 

investigation of a complaint that Townhouse had “increased the size of the building prior to 

Commission approval.” Lynn Hardaway, an experienced investigator for the Commission, 

determined that the area licensed was the same as that originally approved by the Commission. 

During the course of her investigation, one of the attorneys for the plaintiffs in the Oakland 

County case informed Hardaway that the association was suing Pierce Martin in the Oakland 

County Circuit Court for encroaching on the common element space adjacent to Unit 5 without 

approval. After discussing the matter with her supervisor and Townhouse’s attorneys, Hardaway 

recommended closing the complaint and waiting for resolution of the dispute in the Oakland 

County case to see if corrective action would be necessary.

In October 2012, the Commission’s enforcement division opened a second investigation 

of Townhouse after receiving information that the restaurant had violated MCL 436.20032 by 

supplying “false or fraudulent statements for the purpose of inducing the Commission to act.” 

During the course of her investigation, Hardaway received, or revisited information previously 

received, from an attorney for the plaintiffs in the Oakland County case alleging several reasons 

why Pierce Martin did not have valid approval to use the common elements at issue. Hardaway 

concluded from her investigation that, in filling out the application for Townhouse’s liquor 

licenses, the owner of Pierce Martin and Townhouse had misrepresented his control of and 

authorization to make changes to Unit 5, and that this misrepresentation had induced the 

Commission to grant Townhouse the liquor licenses they sought, in violation of MCL 436.2003. 

According to her deposition testimony, Hardaway submitted her report to her supervisor for 

 1 The same date that two residents of the condominium building, Joel Dorfman and Dennis 

Rogers, filed a complaint against Pierce Martin in the Oakland County Circuit Court seeking, 

among other things, to enjoin construction on Unit 5 to the extent that it involved the expansion 

onto and use of the common element space at issue.

2 MCL 436.2003 provides:

A person who makes a false or fraudulent statement to the commission, orally or 

in writing, for the purpose of inducing the commission to act or refrain from 

taking action or for the purpose of enabling or assisting a person to evade the 

provisions of this act is guilty of a violation of this act and is punishable in the 

manner provided for in [MCL 436.1]909.
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review, after which it was submitted to the Attorney General’s office for further review and a 

determination of whether the facts supported a violation. This process culminated in the 

determination that there was insufficient evidence to establish any violation, and the Commission 

closed the case.

On June 11, 2015, plaintiffs sought a writ of mandamus from the Ingham Circuit Court, 

alleging that the Commission had a clear legal duty to enforce the Michigan Liquor Control 

Code of 1998, MCL 436.1101 et seq., and its implementing regulations, and that it lacked the 

discretion to issue or renew licenses in violation of those provisions. Plaintiffs alleged that the 

Commission abused its discretion by issuing and renewing liquor licenses to Townhouse when it 

knew Townhouse had made false and fraudulent statements in its license application, and when it 

failed to ensure that Townhouse had a valid and approved lease. Plaintiffs further alleged that

the Commission abused its discretion by issuing Townhouse liquor licenses in violation of the 

master deed’s prohibition against the commercial sale and consumption of alcohol on the general 

common elements. Accordingly, plaintiffs asked the trial court to issue a writ of mandamus 

compelling the Commission to initiate revocation procedures and refuse renewal of the liquor 

licenses issued to Townhouse. The Commission moved unsuccessfully for summary disposition 

pursuant to MCR 2.116(C)(7) (prior judgment) and (C)(8) (failure to state a claim), after which 

Pierce Martin and Townhouse successfully moved to intervene to protect Pierce Martin’s interest 

in the liquor licenses issued by the Commission to Townhouse.

On May 20, 2016, following a period of discovery, all parties filed motions for summary

disposition, and a hearing was set for July 13, 2016. Ruling from the bench at the close of the 

hearing,3 the trial court determined that the Commission had exercised its discretion by 

investigating both complaints submitted to it, producing and reviewing a violation report of the 

second complaint, and then submitting the violation report to the Attorney General’s office. The 

trial court further determined that the Commission’s decision to dismiss the second complaint

was not arbitrary and capricious or a gross abuse of discretion, given the rulings of the Oakland 

County Circuit Court regarding Townhouse’s authorization to occupy and use the common 

elements at issue.

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 The trial court concluded that, because the Commission’s act was 

discretionary and not ministerial, and the Commission’s exercise of discretion was reasonable 

under the circumstances, the Commission’s decision not to initiate revocation proceedings could 

not be the subject of a writ of mandamus. The trial court entered a corresponding order 

dismissing plaintiffs’ case with prejudice, from which plaintiffs now appeal.

 3 By this time, there was a final order in the Oakland County case establishing that Pierce Martin 

had received valid approval to occupy and use the disputed common element space. See Joel 

Dorfman v Pierce Martin, LLC, unpublished opinion per curiam of the Court of Appeals, issued 

September ___, 2017 (Docket No. 333428). 

4 The trial court noted that the Oakland County Circuit Court made its rulings after the 

Commission closed its file on the second violation. Nevertheless, the trial court reasoned that, 

given the apparent strength of the evidence that Pierce Martin obtained the necessary approval to 

occupy and use the common elements at issue, it was impossible to say that the Commission 

grossly abused its discretion by failing to move forward on the complaint.
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II. ANALYSIS

Plaintiffs contend that the trial court abused its discretion by failing to issue a writ of 

mandamus compelling the Commission to initiate procedures to revoke Townhouse’s liquor 

licenses. According to plaintiffs, the Commission failed to exercise its discretion, or exercised it 

arbitrarily and capriciously, when it declined to initiate revocation proceedings after learning that 

Townhouse had obtained liquor licenses without a valid lease and in violation of amendments to 

the condominium’s master deed prohibiting the commercial sale and consumption of alcohol on 

common elements. We disagree.

We review a trial court’s decision whether to issue a writ of mandamus for an abuse of 

discretion. Lansing Sch Ed Ass’n v Lansing Sch Dist Bd of Ed (On Remand), 293 Mich App 506, 

513; 810 NW2d 95 (2011). An abuse of discretion occurs when the result is outside the range of 

reasonable and principled outcomes. Bay City v Bay County Treasurer, 292 Mich App 156, 164; 

807 NW2d 892 (2011). We review de novo a trial court’s determination of the existence and 

extent of a duty. Id. Likewise, any underlying issue of statutory interpretation is a question of 

law subject to de novo review. In re MCI Telecom Complaint, 460 Mich 396, 443; 596 NW2d 

164 (1999).

A writ of mandamus is an extraordinary remedy and its issuance is discretionary with the 

court. Lansing Sch Ed Ass’n (On Remand), 293 Mich App at 519. To obtain a writ of 

mandamus, a plaintiff must have a clear legal right to the performance of a specific duty sought 

to be compelled, the defendant must have a clear legal duty to perform it, the act is ministerial 

not discretionary, and the plaintiff must be without other adequate legal or equitable remedy. 

Barrow v Detroit Election Comm, 301 Mich App 404, 412; 836 NW2d 498 (2013). In addition, 

mandamus will lie “to require a body or an officer charged with a duty to take action in the 

matter, notwithstanding the fact that the execution of that duty may involve some measure of 

discretion.” Teasel v Dep’t of Mental Health, 419 Mich 390, 410; 355 NW2d 75 (1984). In 

other words, “mandamus will lie to compel the exercise of discretion, but not to compel its 

exercise in a particular manner.” Teasel, 419 Mich 410. The burden of proving entitlement to a 

writ of mandamus is on the plaintiff. Barrow, 301 Mich App at 411-412.

We conclude that the trial court did not abuse its discretion by dismissing plaintiffs’ 

request for issuance of a writ of mandamus. See Lansing Sch Ed Ass’n (On Remand), 293 Mich 

App at 513. The Commission exercises “complete control of the alcoholic beverage traffic” 

within Michigan. 1963 Const, Art 4 § 40; 1998 PA 58. It has the discretion to issue liquor 

licenses, MCL 436.1501(1), and to investigate violations of the liquor control code, MCL 

436.1217(1). For violations of the liquor control code or of the rules promulgated under the 

code, the Commission may, upon notice and proper hearing, suspend or revoke a liquor license, 

and issue a fine in conjunction with or instead of either of these actions. MCL 436.1903(1); 

Mich Admin Code, R 436.1061. In the present case, as the trial court observed, the Commission 

investigated both complaints submitted to it against Townhouse. The first complaint challenged 

Townhouse’s use and control of the common elements at issue by asserting that Townhouse had 

expanded the premises for which it was seeking approval after it filed its application for liquor 

licenses. The investigator found this complaint unsubstantiated and recommended closing the 

complaint and awaiting resolution of the issue of Pierce Martin’s approval to use the common 

elements at issue in the case filed in the Oakland County Circuit Court. Plaintiffs cite no 
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authority in support of their implication that the Commission’s wait-and-see approach was an 

improper exercise of discretion under the circumstances or that circumstances demanded the 

Commission initiate proceedings for revocation. Moreover, resolution of the case in the Oakland 

County Circuit Court affirmed Townhouse’s right to use and control the common elements at 

issue.

With regard to the second complaint, the Commission investigated the complaint, 

concluded that it represented a potential violation, and sent a violation report to the Attorney 

General’s office. Plaintiffs cite no authority for the proposition that the Commission should have 

initiated revocation proceedings despite the conclusions of the Attorney General’s office that 

going forward was not warranted, nor for the proposition that the Commission’s failure to 

proceed under the circumstances was so arbitrary and capricious as to constitute a total failure to 

exercise discretion. In addition, the order of the Oakland County Circuit Court establishing that 

Pierce Martin obtained approval to occupy and use the common elements and that the approval 

given did not violate the condominium documents’ lease requirements or second amendment to 

the master deed removed the factual predicate upon which plaintiffs base their allegations that 

Townhouse violated the liquor control code.5

Further, even if the Commission had decided to go forward with the complaint, plaintiffs 

cite no authority for their position that the Commission was obligated to initiate revocation 

procedures. Not only does the Commission have the discretion to investigate alleged violations 

of the liquor control code, but it also has the discretion to select a mechanism of enforcement 

other than revocation or refusal to renew a license. MCL 436.1903(1); Mich Admin Code, R 

 5 Apart from the effect of the Oakland County Circuit Court’s orders, nothing in the 

condominium documents give the association the authority to declare a lease “invalid.” At best, 

the documents authorize the association to notify the lessor of any offending provisions in the 

lease and, if said provisions go uncorrected, to initiate proceedings for the lessee’s eviction. 

Bylaws, Art VI, § 2. Plaintiffs have not presented evidence indicating that they pursued the 

options afforded them by the condominium documents. Therefore, plaintiffs arguably either 

waived the alleged violations, or, if they did pursue their options, were unable to substantiate 

them in eviction proceedings. In addition, the Commission did not condition approval of 

Townhouse’s liquor licenses on receipt of a lease approved by the association, but on receipt of a 

“fully executed” lease. Plaintiffs have presented no evidence indicating that Townhouse failed to 

meet this criterion. With regard to the master deed’s second amendment, MCL 559.212(1)

provides that such amendment “shall not affect the rights of any lessors or lessees under a written 

lease otherwise in compliance with this section and executed before the effective date of the 

amendment.” Townhouse executed its lease with Pierce Martin on January 1, 2011, more than a 

year before the August 2012 approval of the amendment. To the extent that plaintiffs based their 

assertion that the statute is inapplicable because Townhouse’s lease with Pierce Martin is not 

“otherwise in compliance with this section,” their argument is unpersuasive. The condominium 

documents adopt the provisions and remedies set forth in MCL 559.212 to govern the leasing of 

condominium units, and, plaintiffs have presented no evidence that they availed themselves of 

these remedies or substantiated any alleged violations of the condominium documents.
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436.1061. Although the Commission is statutorily required in some instances to revoke a 

license, see e.g., MCL 436.1903(1), plaintiffs have presented no authority in support of their 

assumption that their allegations present one such instance. In other words, plaintiffs have not 

met their burden to prove that the Commission has a clear legal duty to perform the specific duty 

plaintiffs seek to compel. Barrow, 301 Mich App at 412. Thus, even if the trial court had erred 

in its conclusion regarding the Commission’s exercise of discretion, plaintiffs’ failure to 

establish this element necessary for issuance of a writ of mandamus would provide an alternative 

basis for affirming the trial court’s order granting summary disposition to the Commission.

III. CONCLUSION

We conclude that the trial court did not abuse its discretion in dismissing plaintiffs’ 

request for a writ of mandamus on grounds that they did not establish that the Commission failed 

to exercise its discretion, or that it acted so capriciously and arbitrarily “as to evidence a total 

failure to exercise discretion.” Bishoff v Wayne Co, 320 Mich 376, 386; 31 NW2d 798 (1948)

(quotation marks and citation omitted). We also note that dismissal of plaintiffs’ request for a 

writ of mandamus was appropriate because plaintiffs did not meet their burden to establish that 

the Commission have a clear legal duty to perform the specific duty sought, i.e., initiation of 

revocation proceedings. Barrow, 301 Mich App at 412. In light of the foregoing, we need not

address intervening defendants’ alternative grounds for dismissal.

Affirmed.

/s/ Jane M. Beckering

/s/ Jane E. Markey

/s/ Michael J. Riordan