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    "judges": [
      "DONNELLY and PICKARD, JJ\u201e concur."
    ],
    "parties": [
      "George DICK and Susan Dick, Petitioners-Appellants, v. The CITY OF PORTALES, the Alcohol and Gaming Division of the State of New Mexico Regulation and Licensing Department and Mary Ann Hughes, Acting Director, Respondents-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nBLACK, Judge.\nPetitioners, George and Susan Dick, filed an application with the Alcohol and Gaming Division of the New Mexico Department of Licensing and Regulation (AGD), requesting approval for a transfer of an existing liquor license from the Small Business Administration to them for use at a location in Portales. A hearing was held before an AGD hearing officer. The hearing officer granted preliminary approval for the transfer of the license.\nThe City of Portales (the City) held a public hearing to determine whether to approve transfer of the liquor license to Petitioners. Three local citizens testified in opposition to the proposed transfer, and the City Council voted unanimously to disapprove it. Based on the City\u2019s action, the Director of the AGD denied the transfer.\nPetitioners filed a \u201cPetition for Appeal, Writ of Certiorari and for Writ of Mandamus\u201d with the first judicial district court. After a hearing, the district court held that the City\u2019s decision to deny the transfer was supported by substantial evidence and was not arbitrary, capricious, or an abuse of discretion. Petitioners appeal. We affirm.\nFACTS\nThree persons addressed the City Council at the public hearing. Reverend Wayne Fuller, a minister in the area, stated the following grounds for his opposition: the cost of additional police protection, noting that when the license was previously in operation people were knifed and killed \u201cover there quite frequently\u201d; the negative effect on the people and families, describing this variously as \u201cspiritual grounds\u201d and \u201cmoral grounds\u201d; and on economic grounds, noting that liquor sales did not bring in much money but resulted in costs due to additional arrests and incarcerations for driving while intoxicated and other related offenses. Anthony Andrade stated that he and \u201cquite a few\u201d others agreed with Fuller, that he was concerned about the effect on his two little boys and on other children and families, and that the transfer would not be good for Portales. Marcy South stated that she had lost her husband and son to liquor, that it destroyed families, and that they did not need it in Portales.\nAfter these three individuals made their statements, the Mayor asked both George and Susan Dick individually whether he or she wanted to say anything; both declined. (George Dick did suggest later that if the City denied the transfer to Petitioners, it would probably just be sold to someone else.) Petitioners did not participate in the hearing in any other way, and the transcript shows no objection to the procedures followed.\nAfter a short discussion, there was a motion to disapprove the transfer. At this point the City\u2019s attorneys explained that the grounds for disapproval should be specified. The motion was then restated as disapproval \u201cfor moral reasons,\u201d and it carried without dissent. Thereafter the Director of AGD notified Petitioners that their application for transfer was denied. Appeal was taken to the district court for the First Judicial District. Judge Herrera reviewed the Council proceeding and held that the decision to deny the transfer was \u201csupported by substantial evidence on the whole record and was not arbitrary, capricious or an abuse of discretion.\u201d\nPetitioners present two basic arguments on appeal: (1) the City\u2019s decision was not supported by substantial evidence based on whole record review; and (2) NMSA 1978, Section 60-6B-4(F)(3) (Repl.Pamp.1992), allowing disapproval of a license transfer for moral reasons, is so vague as to violate due process.\nPETITIONERS FAILED TO PRESERVE THEIR CHALLENGE TO THE COMPETENCY AND SUFFICIENCY OF THE EVIDENCE.\nThe nature of Petitioners\u2019 challenge to the evidence is a multi-pronged attack on the statements made by the three citizens to the City Council. Petitioners contend the citizens were not sworn, their statements were not made on personal knowledge, their statements were incompetent and inadmissible lay opinion, and therefore the statements did not satisfy the legal residuum rule. None of these contentions was raised before the City Council.\n\u201cIn cases where appellant seeks to reverse the agency order on the basis of arguments relating to the receipt or exclusion of evidence, or relating to the procedure followed, most state courts ordinarily refuse to consider on appeal points not appropriately raised below.\u201d 2 Frank E. Cooper, State Administrative Law 598 (1965); cf. United States v. Carlo Bianchi & Co., 373 U.S. 709, 717, 83 S.Ct. 1409, 1415, 10 L.Ed.2d 652 (1963) (administrative process would be frustrated if either side were free to withhold evidence at the administrative level and later introduce it on judicial review). New Mexico follows this rule. Wolfley v. Real Estate Comm\u2019n, 100 N.M. 187, 189, 668 P.2d 303, 305 (1983); Rowley v. Murray, 106 N.M. 676, 679, 748 P.2d 973, 976 (Ct.App.), cert. denied, 106 N.M. 627, 747 P.2d 922 (1987).\nPetitioners seem to be under the impression that the sufficiency of the evidence is jurisdictional or otherwise may be raised for the first time on appeal. Substantial New Mexico precedent indicates to the contrary. See Sparks & Co. v. Hawks, 42 N.M. 636, 637, 83 P.2d 981, 982 (1938); Musgrove v. Department of Health & Social Servs., 84 N.M. 89, 90, 499 P.2d 1011, 1012 (Ct.App.), cert. denied, 84 N.M. 77, 499 P.2d 999 (1972); cf. Davis v. Los Alamos Nat\u2019l Lab., 108 N.M. 587, 590, 775 P.2d 1304, 1307 (Ct.App.) (employer which requested no findings on issue could not contest sufficiency of evidence supporting award), cert. denied, 108 N.M. 433, 773 P.2d 1240 (1989).\nApplication of the policies underlying the preservation requirements also dictates that this is not a case in which to invoke our discretion to notice fundamental error. One of the most basic reasons to require preservation of error is to protect both the adversary\u2019s and the agency\u2019s opportunity to correct or avoid the error. Bernard Schwartz, Administrative Law \u00a7 10.3, at 588 (2nd ed. 1984). See general ly Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand.L.Rev. 1023 (1987). All of Petitioners\u2019 specific arguments that the evidence was not sufficient were capable of being corrected or avoided had Petitioners voiced their objections before the administrative tribunal. Alternatively, had these alleged infirmities in the testimony been called to its attention, the City Council may have ruled in Petitioners\u2019 favor.\nAs Petitioners failed to challenge the competency of the evidence presented to the City Council, then, we must accept such evidence as competent. The unchallenged testimony presented in opposition to the transfer pointed out that in the past, the operation of a liquor establishment in the same location had resulted in numerous fights, injuries, and deaths, having a negative effect on the local residents. The testimony also indicated that there were a number of other liquor establishments operating in the community and that the transfer of the license to Petitioners at the location in question would be contrary to the interests of the residents. The City Council could reasonably conclude from this evidence that the transfer would be inimical to the public welfare of the community. Cf. Regents of Univ. of N.M. v. Hughes, 114 N.M. 304, 838 P.2d 458 (1992) (local body permitted to view evidence so as to advance the purpose of Liquor Control Act).\nPetitioners nonetheless argue that, based on the whole record standard of review, the \u201cCity Council\u2019s disapproval of the liquor license transfer had no evidentiary basis.\u201d In support of this contention Petitioners rely on the following language in Duke City Lumber Co. v. New Mexico Environmental Improvement Bd., 101 N.M. 291, 681 P.2d 717 (1984):\nHowever, New Mexico courts require that an administrative action be supported by some evidence that would be admissible in a jury trial. This has been referred to as the legal residuum rule. Young v. Board of Pharmacy, 81 N.M. 5, 462 P.2d 139 (1969). New Mexico has continued to require a residuum of competent evidence to support the findings of an administrative agency where a substantial right is at stake.\n101 N.M. at 295, 681 P.2d at 721.\nWe recognize that the residuum rule has been criticized by modern scholars. 3 Kenneth C. Davis, Administrative Law Treatise, \u00a7 16.6 (K.C. Davis Pub. Co. 1980). It also has been generally abandoned in its state of origin as well as the federal courts. 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 55, 379 N.E.2d 1183, 1185 (1978); Johnson v. United States, 628 F.2d 187, 190 (D.C.Cir.1980). However, we are not free to disregard it. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973). We can, however, question whether the residuum rule should be applied in the present context. New Mexico cases have invoked the residuum rule only when \u201ca substantial right is at stake.\u201d Duke City, 101 N.M. at 295, 681 P.2d at 721. \u201cSubstantial rights\u201d have typically been equated with material property rights or the elimination of the ability to earn a livelihood. See Trujillo v. Employment Sec. Comm\u2019n, 94 N.M. 343, 344, 610 P.2d 747, 748 (1980); Young v. Board of Pharmacy, 81 N.M. 5, 8-9, 462 P.2d 139, 142-43 (1969). A liquor license is a privilege and not a constitutionally protected property right. Chronis v. State ex rel. Rodriguez, 100 N.M. 342, 345, 670 P.2d 953, 956 (1983); Yarbrough v. Montoya, 54 N.M. 91, 95, 214 P.2d 769, 771 (1950). It follows logically that the opportunity to buy and transfer a liquor license to a specific location would not be considered a \u201csubstantial right\u201d and therefore not subject to the residuum rule.\nEven if it applies, however, the residuum rule does not allow Petitioners, who fail to introduce any evidence in support of their petition, to then prevail based on the alleged weakness of evidence adduced by those opposing the transfer petition. We reject Petitioners\u2019 contention that because they had completed the initial step required for transfer, i.e., obtaining the approval of the AGD hearing officer, they did not have the burden of persuading the City Council to approve the transfer. Proceedings in administrative agencies are subject to the customary common-law rule that the moving party has the burden of proof. International Minerals & Chem. Corp. v. New Mexico Pub. Serv. Comm \u2019n, 81 N.M. 280, 283, 466 P.2d 557, 560 (1970); In re Termination of Boespflug, 114 N.M. 771, 776, 845 P.2d 865, 870 (Ct.App.1992) (Donnelly, J., specially concurring). This requires movant to establish the statutory prerequisites which entitle movant to relief by a preponderance of the evidence. See Bender v. Clark, 744 F.2d 1424, 1429 (10th Cir.1984); cf. Baca v. Bueno Foods, 108 N.M. 98, 102, 766 P.2d 1332, 1336 (Ct.App.1988) (parties seeking benefit of statute have burden of proving they are within its terms). Since Petitioners failed to introduce any evidence, the City Council was justified in denying the transfer.\nConsidering the whole record, and indeed the only evidence offered, we find adequate support for the City Council\u2019s denial of Petitioners\u2019 request to transfer the liquor license.\nDUE PROCESS\nPetitioners and amicus Town & Country Food Stores, Inc. agree that a petition to transfer a liquor license may be legitimately denied on grounds of \u201cpublic health\u201d or \u201csafety,\u201d but they argue that the term \u201cmorals\u201d is unconstitutionally vague on its face. Specifically, it is Petitioners\u2019 \u201cposition that allowing a municipality to deny a liquor license transfer for moral reasons effectively gives them absolute discretion to deny a liquor \u2022 license transfer, in violation of Article III, Section 1 of the New Mexico Constitution.\u201d\nThe person attacking the constitutionality of a regulation has the burden of demonstrating the regulation\u2019s invalidity. Health & Social Servs. Dep\u2019t v. Garcia, 88 N.M. 640, 642, 545 P.2d 1018, 1020 (1976). Legislative enactments may be declared invalid if their meaning is so uncertain that the court is unable to determine the legislative intent with any degree of certainty. However, all that is required for a statute to be upheld as valid is that the language of the statute be understandable and sensible. Keller v. City of Albuquerque, 85 N.M. 134, 139, 509 P.2d 1329, 1334 (1973), overruled on other grounds by Green v. Kase, 113 N.M. 76, 823 P.2d 318 (1992). We have a duty to construe a challenged statute in such a manner that it will not be found void for vagueness, if such a construction is reasonable and practical. State v. Segotta, 100 N.M. 498, 500, 672 P.2d 1129, 1131 (1983). Using these rules of statutory construction, the New Mexico Supreme Court has rejected constitutional challenges based on the alleged vagueness of terms analogous to \u201cmorals.\u201d See, e.g., McDaniel v. New Mexico Bd. of Medical Examiners, 86 N.M. 447, 525 P.2d 374 (1974) (conduct detrimental to the best interests of the public); Willoughby v. Board of Veterinary Examiners, 82 N.M. 443, 483 P.2d 498 (1971) (failure to maintain clean and sanitary conditions).\nLiquor licenses may be regulated and controlled so as to insure, so far as possible, the decent and orderly conduct of a business clearly affecting the public health, morals, safety, and welfare. Kearns v. Aragon, 65 N.M. 119, 123, 333 P.2d 607, 610 (1958). There is no inherent right to sell alcohol, and since such sale is \u201cattended with danger to the community it may be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils.\u201d Yarbrough, 54 N.M. at 95, 214 P.2d at 771. The policy underlying liquor control legislation is to regulate and to restrain, not to promote. Any loosening of that policy is the business of the legislature, not the courts. State ex rel. Maloney v. Sierra, 82 N.M. 125, 135, 477 P.2d 301, 311 (1970). The state has broad police power to regulate the liquor business, and the legislature may impose more stringent regulations on the liquor business than on other types of commerce. Chronis, 100 N.M. at 346, 670 P.2d at 957; First Interstate Bank v. Taxation & Revenue Dep\u2019t, 108 N.M. 756, 758, 779 P.2d 133, 135 (Ct.App.), cert. denied, 108 N.M. 771, 779 P.2d 549 (1989). The police power of the state therefore may be put forth to regulate liquor in aid of what is held as prevailing morality. State v. Prince, 52 N.M. 15, 19, 189 P.2d 993, 996 (1948); Beer Co. v. Massachusetts, 97 U.S. (7 Otto) 25, 32, 24 L.Ed. 989 (1877); see also Morris D. Forkosch, Constitutional Law \u00a7 292 (2d ed. 1969).\nIn light of the unique nature of the business, the government has wide discretion and broad powers in the control of liquor traffic, subject, of course, to the minimum demands of due process and equal protection. See Barnes v. Merritt, 428 F.2d 284, 288 (5th Cir.1970); see also West Cent. La. Entertainment, Inc. v. City ofLeesville, 594 So.2d 973, 976 (La.Ct.App.1992) (vagueness is governed by a lesser standard of definiteness when laws regulating business behavior are involved). Thus, it has been generally recognized that a statute which allows the regulation of liquor licenses based on the \u201cmorals\u201d of the community is not unconstitutionally vague. Kirby v. Alcoholic Beverage Control Appeals Bd., 25 Cal.App.3d 331, 101 Cal.Rptr. 815, 818 (1972); Commonwealth v. Koehler\u2019s Bar, Inc., 204 Pa.Super. 25, 201 A.2d 306 (1964); cf. Pruey v. Department of Alcoholic Beverage Control, 104 N.M. 10, 13, 715 P.2d 458, 461 (1986) (legislature had a rational basis to allow local option districts to prohibit liquor sales on Sunday and Christmas). The refusal to grant a transfer of a liquor license to a neighborhood has therefore been affirmed based on testimony of pastors and local residents opposed to operations in the area when predicated on moral grounds. Lyons Farms Tavern, Inc. v. Municipal Bd. of Alcoholic Beverage Control, 55 N.J. 292, 261 A.2d 345 (1970); cf. Woods v. Kraiberg, 735 S.W.2d 202 (Mo.Ct.App.1987) (public drunkenness and loitering). In Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control, 2 Cal.3d 85, 84 Cal.Rptr. 113, 465 P.2d 1 (1970) (en banc), the California Supreme Court recognized the validity of a California statute permitting revocation of a liquor license if the manner of operation of the license is determined to be contrary to the public \u201cwelfare or morals,\u201d which that court defined in the following terms:\nIt is ... the public morals, not the private morals of the officials or employees of the Department ... which must be the criteria in the instant case____ [W]e think the term \u201cpublic morals\u201d must be taken to mean the moral practices or modes or conduct \u201c[pjertaining to a * * * whole community; * * * relating to * * * the whole body of people or an entire community.\u201d\nId., 84 Cal.Rptr. at 123-124, at 11-12 (quoting Black\u2019s Law Dictionary 1393 (4th ed. 1951)).\nWe find the delegation of the legislative authority to disapprove the transfer of a license on moral as well as on safety and health grounds to be within the traditional definition of the state\u2019s police power and thus constitutional. See Driggs v. City of Denison, 420 S.W.2d 446 (Tex.Civ.App.1967); cf. Temple Baptist Church, Inc. v. City of Albuquerque, 98 N.M. 138, 142-44, 646 P.2d 565, 569-71 (1982) (legislature may delegate police power based on aesthetic consideration alone).\nFor all of the above reasons, we affirm. IT IS SO ORDERED.\nDONNELLY and PICKARD, JJ\u201e concur.\n. Inasmuch as amicus must take the issues in the case as it finds them and cannot raise issues not raised by the parties, see St. Vincent Hosp. v. Salazar, 95 N.M. 147, 149, 619 P.2d 823, 825 (1980), we address only those issues raised by Petitioners.",
        "type": "majority",
        "author": "BLACK, Judge."
      }
    ],
    "attorneys": [
      "Warren F. Frost, Warren F. Frost, P.C., Clovis, for petitioners-appellants.",
      "Randy Knudson, Doerr & Knudson, P.A., Portales, for respondent-appellee City of Portales.",
      "Tom Udall, Atty. Gen., Lynda Latta, Asst. Atty. Gen., Santa Fe, for respondents-appellees Alcohol and Gaming Div., and Mary Ann Hughes, Acting Director.",
      "Judith A. Olean, N.M. Mun. League, Santa Fe, Steven Barshov, Sive, Paget & Riesel, P.C., New York City, for amicus curiae Mun. League.",
      "Mark M. Rhodes, Hazen H. Hammel, Rhodes & Salmon, P.C., Albuquerque, for amicus curiae Town & Country Food Stores, Inc."
    ],
    "corrections": "",
    "head_matter": "863 P.2d 1093\nGeorge DICK and Susan Dick, Petitioners-Appellants, v. The CITY OF PORTALES, the Alcohol and Gaming Division of the State of New Mexico Regulation and Licensing Department and Mary Ann Hughes, Acting Director, Respondents-Appellees.\nNo. 14236.\nCourt of Appeals of New Mexico.\nSept. 22, 1993.\nCertiorari Granted Dec. 16, 1993.\nWarren F. Frost, Warren F. Frost, P.C., Clovis, for petitioners-appellants.\nRandy Knudson, Doerr & Knudson, P.A., Portales, for respondent-appellee City of Portales.\nTom Udall, Atty. Gen., Lynda Latta, Asst. Atty. Gen., Santa Fe, for respondents-appellees Alcohol and Gaming Div., and Mary Ann Hughes, Acting Director.\nJudith A. Olean, N.M. Mun. League, Santa Fe, Steven Barshov, Sive, Paget & Riesel, P.C., New York City, for amicus curiae Mun. League.\nMark M. Rhodes, Hazen H. Hammel, Rhodes & Salmon, P.C., Albuquerque, for amicus curiae Town & Country Food Stores, Inc."
  },
  "file_name": "0472-01",
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  "last_page_order": 512
}