Dodge v. Yavapai County, No. CV-24-0093-PR (May 19, 2025) (J. King) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2025/CV240093PR.pdf

ARIZONA DEPARTMENT OF LIQUOR LICENSES & CONTROL HAS ONLY “DISCRETIONARY” DUTIES UNDER A.R.S. §§ 4-210(A)(9), -210.01, & -118 WHICH DO NOT CREATE TORT DUTY TO INJURED MOTORIST BASED UPON ALLEGED NEGLIGENT ISSUANCE OF LIQUOR LICENSE TO BAR

Plaintiffs were seriously injured by a patron of Billy Jack's Saloon & Grill [Billy Jack's] in Yavapai County who allegedly blew a .30 blood/alcohol reading when he drove his car onto State Route 69 causing a multi-car collision.  Plaintiffs sued Yavapai County, the Town of Dewey and others focused upon the Arizona Department of Licensure and Control [Department] alleging that it negligently, grossly negligently and wantonly  reissued a liquor license to Billy Jack's in the face of multiple infractions for overserving patrons. They alleged A.R.S. §§ 4-210(A)(9), -210.01, & -118 create a duty on behalf of the Department to refuse to reissue a liquor license to offenders like Billy Jack's. “This case thereafter developed a complex procedural history with multiple filings and several judgments.” In short, the trial court, among other things, found the Department did not owe a duty to plaintiffs and dismissed the case, plaintiffs appealed and the Arizona Court of Appeals, among other things with a divided court ruled the Department did owe plaintiffs a duty. The Arizona Supreme Court affirmed the trial court, affirmed in part, vacated in part, depublished in part and remanded to the court of appeals. 

Based upon extraordinarily convoluted, complex and case specific procedural maneuvering the supreme court determined a cross-appeal by the defendant Town of Dewey was timely filed under Rule 54(c) and therefore the court of appeals improperly found it untimely and denied jurisdiction. The case is sent back to the court of appeals to decide the cross-appeal. Further the trial court had jurisdiction to rule upon plaintiffs' motion for new trial even though an appeal had previously been filed because the plaintiff properly notified the court of appeals of the motion. ARCAP 9(e)(2).

On the substantive issue of duty, the court found any duty the Department had to plaintiffs would be articulated in the statutes. Plaintiffs primarily cited to A.R.S. §§ 4-210(A)(9), -210.01, & -118 for the creation of duty here.

  These permissive statutes make clear that the Department

may suspend or revoke an establishment's license, may inspect a licensee's

premises, and may impose civil penalties. Such discretionary statutes do

not regulate the Department's conduct because they do not require the

Department to perform any act or refrain from performing an act. Because

a statute's regulation of conduct is necessary to establish a duty, these

permissive statutes cannot serve as the basis for a public policy duty to the

Adult Plaintiffs. . . .

Moreover, by creating the Department and empowering it to

investigate and punish violations of title 4, the legislature did not establish

the Department as “a general insurer of safety” or make it “absolutely

liable for all harms to its citizens” arising from alcohol-related incidents.

Other statutes cited by plaintiffs using the word “shall” had no relevancy to the reissuance of a license. The best statute to establish a duty cited by plaintiffs was A.R.S. § 4-203(A), which provides that “[a] spirituous liquor license shall be issued only after satisfactory showing of the capability, qualifications and reliability of the applicant and . . . that the public convenience requires and that the best interest of the community will be substantially served by the issuance.” However, the court found this statute only applies to the issuance of the original license and not a reissuance. 

Finally, the court emphasized that its “primary source for identifying a duty based on public policy is our state statutes.”  While a duty may be found in the existing common law, the court defers to the legislature to create public policy, while the court exercises “great restraint in declaring public policy.”