By JOAN McCOY
Leader staff writer
The lawyer for Donald Sears—the owner of the large liquor store now under construction on T.P. White Drive just over the line that separates Cabot from Pulaski County —has asked Circuit Judge Mary S. McGowan, 9th Division, 6th Circuit, to dismiss the lawsuit against his client that was filed in November by the owner of Ace Liquor.
Charles Singleton says in his motion to dismiss that the subject of the suit is outside the court’s jurisdiction.
Joan Zumwalt, owner of Ace Liquor, said in her suit filed in November against Sears and the Alcoholic Beverage Countrol Division of the Arkansas Department of Finance and Administration that the transfer of license that is allowing Sears to build a liquor store near hers was not advertised in a newspaper that is read by Cabot residents and that the sign Sears posted on the property announcing the transfer was in the center of the property, not at the entrance as required by the state.
On Jan. 31, Judge McGowan ruled that the court had no subject-matter jurisdiction in the case against the ABC because the ABC board didn’t adjudicate the case.
There was no hearing in which Zumwalt objected and the board agreed with ABC Director Michael Langley that Sears had met the requirements to transfer the liquor license. Since the ABC board had not ruled on any questions, but simply approved the administration’s recommendation, the court had no authority to hear an appeal from Zumwalt.
The motion that Singleton filed this week to dismiss the suit against Sears uses the same argument.
The court has no jurisdiction in the case against Sears because the ABC board did not adjudicate Zumwalt’s complaint. Langley’s decision to grant the license transfer was based on procedures that allow such transfers and on the file Sears gave him that showed he had properly advertised his intent and posted the property.
Singleton wrote in his motion to dismiss:
“Since the notice of transfer of location of the retail liquor store permit was properly published in a newspaper of bonafide circulation in Pulaski County, the Daily Record, as shown by the affidavit of publication, and insomuch as a report by the agent as viewed by the Director on the date he made his decision, showed that the property was properly posted, and that the Plaintiff failed to formally protest the issuance of the license before a decision had been rendered by the Director in this matter, then no further appeals are possible as the only methodology of appeal of a Director’s decision is by taking an appeal to the full ABC Board, as is provided by ACA-3-213.”
Singleton argues that since Zumwalt didn’t fight the new liquor store before the ABC board, the next step of appealing to circuit court is not available to her.
But the basis of Zumwalt’s suit is that she couldn’t appeal because she didn’t know Sears was about to move almost next door to her business because she didn’t see either the ad in the Daily Record or the sign posted on the property.
The case is available for viewing at no cost on the Pulaski County clerk’s website.
Singleton filed his motion to dismiss on March 30. The judge has not yet responded.
