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Tryba v. Town of Old Orchard Beach
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MAINE SUPREME JUDICIAL COURT								Reporter of Decisions
Decision:	1998 ME 10
Docket:	Yor-96-843
Submitted
on Briefs:	September 16, 1997
Decided:	January 14, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
Dissent: DANA, J.



CHRISTOPHER TRYBA d/b/a HOBO JUNGLE COFFEE HOUSE v. TOWN OF OLD ORCHARD BEACH


WATHEN, C.J.
	[¶1]  Plaintiff Christopher Tryba, d/b/a Hobo Jungle Coffee House,
appeals from judgments entered in the Superior Court (York County,
Fritzsche, J.) affirming a decision of the Town Council of Old Orchard Beach
and imposing civil penalties.  The court upheld the Town's revocation of
plaintiff's business licenses and penalties on the Town's counterclaim for
unlicensed business operation.  Plaintiff contends that: the Town
misconstrued its license ordinance; there was insufficient evidence of any
violation; and the court erred in awarding civil penalties.  Finding no error,
we affirm the judgments.
	[¶2]  The relevant facts may be summarized as follows:  Plaintiff, the
owner of Hobo Jungle Coffee House, was served on August 21, 1995, with a
written notice of a town council hearing to be held the following day.  The
notice recited the Town's intention to hold a hearing on the revocation of
plaintiff's' victualer's license, and permits for coin amusement devices,
entertainment-dancing, and special amusement.  After a public hearing, in
which plaintiff and his attorney participated, the Town revoked his business
licenses.  Plaintiff continued to operate the coffee house after being notified
that his licenses had been revoked.  Plaintiff sought review in the Superior
Court, pursuant to M.R. Civ. P. 80B, and the court affirmed the Town's
decision revoking plaintiff's licenses.  After a separate hearing on the Town's
counterclaim seeking civil penalties for unlicensed operation of the
businesses, the court imposed penalties in the amount of $50 per day for a
total of $13,000.  Plaintiff now appeals.
	[¶3]  Plaintiff first argues that he was not afforded adequate notice.  He
relies on the fact that notice was given only one day before the hearing and
did not state a reason for the proposed revocation.  Plaintiff's counsel
referred to problems with the "time of notice" in addressing the Town
Council at the conclusion of the hearing, and just prior to their vote.  This
objection, if it was an objection, came too late.  By attending the hearing
with his counsel, and participating without a timely objection, plaintiff
waived any objection he might have had with respect to the adequacy of
notice.  Kovak v. City of Waterville, 157 Me. 411, 423, 173 A.2d 554, 560
(1961).
	[¶4]  Plaintiff next argues that the Town incorrectly referred to the
criteria for license renewal as the basis for finding a violation and revoking
his license.  "The interpretation of an ordinance is a question of law that is
guided by the language, objectives, and general structure of the ordinance." 
Beckley v. Town of Windham, 683 A.2d 774, 775 (Me. 1996)(quoting Dyer v.
Town of Cumberland, 632 A.2d 145, 148 (Me. 1993)).  Section 4.A.4 of the
Old Orchard Beach license ordinance provides that an applicant for
relicensing must submit: 

[E]vidence of satisfactory resolution of any public health, safety
or welfare problems occurring in the operation of that or a
similar business at the same location in the immediately
preceding year, including but not limited to neighborhood
complaints, disorderly customers, and excessively loud or
unnecessary noise that initiate complaints to or require a
response from the Municipal Police, Fire Department or other
Municipal regulatory body or employee.

Section 5.C. provides for revocation as follows:

The Town Council, upon notice and after hearing, for cause may
suspend or revoke any license issued pursuant to this Ordinance. 
Cause shall mean the violation of any license condition, any
provision of this Ordinance, any condition constituting a threat
to the public health or safety, or the revocation or suspension of
any State or local license that is a condition precedent to the
issuance of a license pursuant to this Ordinance.  (emphasis
added)

	[¶5]  The Town did not err in relying on section 4.A.4 to revoke the
business licenses of plaintiff pursuant to section 5.C of the ordinance.  These
provisions are part of a single licensing ordinance.  We construe the "whole
statutory scheme of which the section at issue forms a part so that a
harmonious result, presumably the intent of the Legislature, may be
achieved." Nasberg v. City of Augusta, 662 A.2d 227, 229 (Me. 1995).  This
same rule applies to the construction of an ordinance.
	[¶6] Section 4.A.4 of the ordinance puts a licensee on notice that a
condition of its license is resolving problems involving "neighborhood
complaints, disorderly customers, and excessively loud or unnecessary noise
that initiate complaints to or require a response from the Municipal police,
Fire Department, or other Municipal regulatory body or employee." The
Town does not have to wait until a business requests a license renewal to
hold a business accountable for addressing these problems.  The trial court
correctly concluded that "the Town has the inherent ability to revoke a
license if the conditions required for obtaining a license are no longer met."
	[¶7]  Section 4.A.4 refers to "disorderly customers" whose conduct
results in complaints to municipal officials.  Of the twelve police reports
contained in the record, seven relate to the conduct of the Hobo Jungle or
the conduct of customers inside the premises of the business, four relate to
the conduct of customers off of the premises, and one relates to the conduct
of individuals off of the premises who are not identified as customers of the
Hobo Jungle.  In one instance a group of ten juveniles left the Hobo Jungle,
threw bottles from the porch of a nearby apartment building, and then
returned to the Hobo Jungle.
	[¶8] The disorderly conduct of the customers of the Hobo Jungle that
occurred off of the premises did not occur at some remote time or location. 
Instead, it occurred in the immediate vicinity of the business soon after the
customers had left the premises.  These customers were "disorderly
customers" of the Hobo Jungle within the meaning of section 4.A.4 of the
ordinance.  Their conduct resulted in numerous complaints to municipal
officials.  The Hobo Jungle bore some responsibility for the impact of these
customers on the neighborhood.  See Sunset Amusement Co. v. Board of
Police Comm'rs, 496 P.2d 840, 853 (Cal. 1972).  Pursuant to the Town's
licensing ordinance, the Town properly considered the conduct of these
disorderly customers of the Hobo Jungle in the decision to revoke its
business licenses.
	[¶9] Finally, we conclude that the Superior Court properly rejected
plaintiff's contention that the penalty provision of the Ordinance is confined
to those who have never been licensed.  Further, we find no abuse of
discretion in fixing the penalty at one-half of the amount authorized by the
Ordinance.{1}  Town of Ogunquit v. McGarva, 570 A.2d 320, 321 (Me. 1990).
	 The entry is:
				Judgments affirmed.	



                                                        
DANA, J., dissenting.
	[¶10]  I respectfully dissent.  On 24 hours notice the Town held a
hearing to consider revoking the business licenses held by the Hobo Jungle
Coffee House.  Section 5.C. of the Town's ordinance sets forth the manner in
which the Town may effect such a revocation.  That section states that the
Town may revoke a license for cause, being a threat to the public health or
safety.  Because, I suggest, the Town could not establish that the Hobo
Jungle Coffee House presented a threat to the public health or safety, the
Town chose to rely upon Section 4.A.(4) of the ordinance.  Section 4.A.(4)
speaks to renewal, not revocation, and permits a renewal only if the holder
presents evidence of the satisfactory resolution of all public health, safety or
welfare problems.  Under this latter section, the Town no longer bears the
burden to show that the licensed business presents a threat to the public
health and safety.  Rather, the burden shifts to the license holder to show
that he has satisfactorily resolved every public health, safety or welfare
problem his business has recently experienced.  Tryba arrived at the hearing
without knowing that the burden would be on him to show that he had
satisfactorily responded to all of his neighbors' complaints.
	[¶11]  Although the Maine Administrative Procedures Act, 5 M.R.S.A.
§§ 8001-11008 (1989 & Pamph. 1997), does not speak directly to
municipal administrative procedures, it is instructive as to what constitutes
adequate notice.  In relevant part, 5 M.R.S.A. § 9052(4) (1989) provides:

4.	Notice.	Notice shall consist of:
A.	A statement of the legal authority and
jurisdiction under which the proceeding is being
conducted;
B.	A reference to the particular substantive
statutory and rule provisions involved;
C.	A short and plain statement of the nature and
purpose of the proceeding and of the matters
asserted . . . .

We have stated, in relation to municipal proceedings, that notice should
state the nature of the action and inform the recipient of the opportunity to
object.  Town of Freeport v. Greenlaw, 602 A.2d 1156, 1160 (Me. 1992); see
Restatement (Second) of Judgments:  Notice § 2 cmt. b (1982).  The notice
Tryba received stated that action would be held on the revocation of his
license.  It did not inform him of the burden he would bear, pursuant to
Section 4.A.(4), but rather implied that the burden would lie with the Town,
pursuant to Section 5.C.  Such notice falls woefully short of APA standards
and the standard applied to municipal proceedings.  It was inadequate to
inform Tryba of the nature of the action, and the rules under which the
action would proceed.  Given the inadequacy of that notice, Tryba arrived
wholly unprepared to participate meaningfully in the proceeding.  For that
reason I would vacate the decision of the Superior Court.
                              

Attorney for Plaintiff: Attorney for Defendant: Neal L. Weinstein, Esq. Christopher L. Vaniotis, Esq. 32 Saco Avenue Bernstein, Shur, Sawyer & P. O. Box 660 Nelson Old Orchard Beach, Maine 04064 100 Middle Street P. O. Box 9729 Portland, Maine 04l04-5029
FOOTNOTES******************************** {1} Section 5.A. of the Old Orchard Beach License Ordinance provides in part: A. Any person who operates or conducts any business or activity for which a license is required under this Ordinance without first obtaining such license commits a civil violation and shall be subject to a fine not to exceed One Hundred ($100) Dollars. Each day such violation continues shall be considered a separate violation.