Saksey's Lounge, Inc. v. Liquor Control Commission , 29 Mich. App. 656 ( 1971 )

29 Mich. App. 656 (1971) 185 N.W.2d 840

SAKSEY'S LOUNGE, INC.
v.
LIQUOR CONTROL COMMISSION

Docket No. 8632.

Michigan Court of Appeals.

Decided January 21, 1971.

Franklin & Harris, for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard I. Rubin, Assistant Attorney General, for defendant.

Before: DANHOF, P.J., and HOLBROOK and VANDER WAL,^[*] JJ.

VANDER WAL, J.

This is an appeal from a judgment of the circuit court affirming an order of the Liquor Control Commission suspending a license. The licensee was charged with:

(1) allowing accosting and/or soliciting on his premises.

(2) engaging in an illegal occupation by aiding and abetting accosting and soliciting.

(3) permitting a minor to consume alcoholic liquor.

After holding hearings, the commissioner found that the licensee had committed violations 1 and 3 and he dismissed charge 2. The commissioner suspended the license for 14 days and fined the licensee a total of $300. The licensee appealed and the Liquor Control Commission affirmed the order. The licensee then sought review in the circuit court where the order was again affirmed. The licensee now appeals to this Court.

The sole witness at the commission hearing for these alleged violations was an admitted prostitute, who testified that she had been engaging in her profession on the premises of the plaintiff herein with the aid of a bartender and had been sold liquor when she was under the age of 21.

The licensee presented three witnesses; two of them were the managers of the bar and stockholders in the corporation, and the third was the bartender.

The basis of the appeal is that the commission disregarded the law by basing their finding upon the testimony of the prostitute without any other supporting evidence. Their argument is based upon the case of People v. Barron (1968), 381 Mich. 421, which holds that the corpus delicti in a criminal case cannot be established solely by the extrajudicial admissions of the defendant. This case is not in point, however. In the first place, this is not a criminal matter, and the corpus delicti as known in the criminal practice is not recognized as such in administrative proceedings. Secondly, and more importantly, the distinction between the cited case and the case before this Court is that the extrajudicial admissions referred to in the Barron Case were made on the part of the defendant himself, the party being prosecuted. In this case the statements objected to were made by a third party who was not being prosecuted.

In this hearing, the sole question was the credibility of the witness. The fact finders apparently gave credence to her testimony, and that is sufficient to uphold the findings. In other words, the record is replete with testimony sustaining the findings made by the hearing commissioner and that of the Liquor Control Commission. The trial court did not, and this Court cannot, substitute its opinion for the commission's if there is testimony to substantiate their findings.

The licensee contends that it was denied due process of law and cites Napuche v. Liquor Control Commission (1953), 336 Mich. 398. The requirements set forth in Napuche are:

"`(1) Notice of a time and place of hearing.

"`(2) A hearing before a properly authorized body.

"`(3) A reasonably definite statement of the charge or charges preferred against the accused.

"`(4) The right to cross-examine the witnesses who testify against him.

"`(5) The right to produce witnesses in his own behalf.

"`(6) A full consideration and a fair determination according to the evidence of the controversy by the body before whom the hearing is had. Hanson v. State Board of Registration in Medicine, 253 Mich. 601, 607.'" 336 Mich. 398, 403, 404.

It is clear that these requirements were met.

We find no error.

Affirmed. Costs to defendant.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.