NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION I

CA01-825

December 19, 2001

BOB J. McADAMS, Individually and as

Managing Agent/Permittee of COLONIAL AN APPEAL FROM PULASKI COUNTY

BALLROOM, INC., d/b/a THE CIRCUIT COURT

CHECKMATE CLUB NO. CV 2000-5799

APPELLANTS

V. HONORABLE JOHN WARD,

CIRCUIT JUDGE

ALCOHOLIC BEVERAGE CONTROL

DIVISION, Robert Moore, Director

APPELLEE AFFIRMED

Bob J. McAdams and the Colonial Ballroom, Inc., doing business as The Checkmate Club, a private club, appeal from an order affirming a decision by the Alcoholic Beverage Control Division (ABC) denying appellants' request to change the club's closing hours. We affirm because we conclude that the ABC had the authority to regulate the private club's hours.

The Checkmate Club requested that the ABC permit a change of the hours during which it can serve alcohol. Under its current license, the club was not permitted to serve alcohol from 5:00 a.m. until 10:00 a.m. The club requested that it be allowed to serve alcohol during that time and offered to cease alcohol sales from 5:00 p.m. until 10:00 p.m. Nevertheless, it contended that the ABC lacked the statutory authority to establish the operating hours for private clubs. The ABC refused the club's request, concluding that it was authorized by statute to promulgate regulations regarding the operation of private clubs.

The club sought a review in the circuit court of the ABC's decision and asked for a declaratory judgment. McAdams appeared in both his individual capacity and as managing agent and permittee. Appellants alleged that the ABC has no constitutional or statutory authority to restrict the club's hours for dispensing alcoholic beverages and sought to set aside the restrictions. Appellants also alleged that the ABC's decision was arbitrary and capricious and that they had been deprived of their constitutional rights. After a hearing, the circuit court dismissed McAdams as a party and found that the ABC's decision was based upon substantial evidence and was free from error of law.

Appellants have raised several points on appeal. Essentially, however, the points may be reduced to five issues. Appellants argue that the circuit court erred in not ruling on the constitutional arguments raised before the court; that McAdams should not have been dismissed in his individual capacity; that the court erred in concluding that the ABC could restrict the club's operating hours; that the court erred in concluding that the regulation was properly promulgated; and that the court erred in failing to issue a declaratory judgment.

With regard to appellants' claim that the circuit court erred in refusing to address the constitutional issues, we note that the ABC did not render a decision on these issues. We will not address an issue when the administrative agency has made no finding in that regard. See Wagnon v. Arkansas Health Servs. Agency, 73 Ark. App. 269, 40 S.W.3d 849 (2001). Because the constitutional issues were not ruled upon by the ABC, they were not preserved for appellate review.

McAdams further argues that the court erred in dismissing him as a party. To have standing to seek judicial review of a final agency action, however, a petitioner must assert in his pleadings how he has already sustained or is immediately in danger of sustaining injury either in his person, business, or property. Arkansas Alcoholic Beverage Control Bd. v. Muncrief, 74 Ark. App. 221, 45 S.W.3d 438 (2001). Because McAdams alleged no facts regarding any injury to himself in his amended complaint, the circuit court was correct in dismissing his claims. See id.

Appellants next contend that the ABC was without statutory authority to control the hours of operation of private clubs. We disagree. This court's review on appeal is directed not toward the circuit court's decision, but rather toward the decision of the agency. Moore v. King, 328 Ark. 639, 945 S.W.2d 358 (1977). This court reviews agency rulemaking procedures to determine if the agency acted arbitrarily, capriciously, in an abuse of discretion, or otherwise not in accordance with the law. National Park Med. Ctr., Inc. v. Arkansas Dep't of Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995); Wagnon v. Arkansas Health Servs. Agency, supra. An administrative regulation is afforded the same presumption of validity given a statute. National Park Med. Ctr., Inc. v. Arkansas Dep't of Human Servs., supra.

Pursuant to Arkansas Code Annotated section 3-9-233 (Repl. 1996), "[t]he regulations of the Alcoholic Beverage Control Board and existing laws with respect to the closing hours of licensed premises ... shall be applicable to all such licensed premises ...." (Emphasis added.) We note that the ABC established hours of operation for private clubs when it adopted regulation 5.47. Under that regulation, private clubs were allowed to electwhether to be treated as a Class A (prohibiting hours of dispensing, consumption and/or possession from 2:00 a.m. until 7:00 a.m. daily) or a Class B (prohibiting hours of dispensing, consumption and/or possession from 5:00 a.m. until 10:00 a.m. daily) private club. The parties note that when regulation 5.47 was amended in 1991, the Class B private-club permit was eliminated and existing Class B private clubs, such as The Checkmate Club, were "grandfathered in."

Because the ABC had, pursuant to § 3-9-233, statutory authority to regulate closing hours, and did so pursuant to regulation 5.47, we conclude that the ABC's decision was not arbitrary, capricious, or an abuse of discretion. See also Ark. Code Ann. § 3-9-205 (Repl. 1996).

Appellants also argue that regulation 5.47 was not properly promulgated. The only issue raised before the agency, however, was appellants' observation that the regulation had been misnumbered. We conclude that the misnumbering has no effect on the regulation's validity. See Page v. Highway 10 Water Pipe Line Improvement Dist. No. 1, 201 Ark. 512, 145 S.W.2d 344 (1940); Robinson v. DeValls Bluff, 197 Ark. 391, 122 S.W.2d 552 (1938).

Appellants also contend that the circuit judge erred in dismissing their request for a declaratory judgment. Implicit in the circuit judge's order finding no error in the ABC's decision was a determination that appellants' request for declaratory judgment was without merit. Because the circuit judge was correct in affirming the ABC's decision, it would have made no difference if he had addressed the declaratory judgment request.

Affirmed.

Stroud, C.J. and Neal, J., agree.