That's the question state judges are attempting to resolve, even as the Utah Department of Alcoholic Beverage Control, or DABC, continues to suspend private clubs' liquor licenses in what's become a muddled legal arena.

The Utah Legislature created the problem nearly 20 years ago by passing two conflicting laws, judges say. One part of the legislation says the agency's decisions "are final and are not subject to review." The second provision says that private clubs whose liquor licenses are suspended can challenge agency decisions by asking for full-blown trials.

"The two bodies of legislation are hard to reconcile," wrote 3rd District Judge Bruce C. Lubeck in allowing the Monkey Bar to keep its liquor license while a dispute with the DABC is resolved by trial. "Indeed, there are provisions that to this court seem irreconcilable."

Despite the ruling, the liquor agency continues to rely on the law that says its decisions are final. The agency has interpreted this to mean that clubs slapped with suspensions must go to the Utah Court of Appeals - which takes no new evidence and examines only the record created by the liquor agency. DABC commissioners are, however, expected to adopt a new rule during a public meeting Aug. 25, which would allow clubs to question undercover officers and other witnesses before commissioners decide whether to suspend or revoke liquor licenses or impose fines of $3,000 or more.

"The rule would streamline the process so that decisions won't have to be tried twice, once at the agency level and again in district court," agency spokesman Earl Dorius said.

But 3rd District Judge Dennis Frederick reached a similar conclusion on the conflicting laws during a trial conducted last week involving the Southern X-Posure club. And in 2001, Judge Leslie Lewis took a different tact with the Paper Moon, considering both the record and new testimony. She ruled the agency had allowed illegal hearsay evidence in its decision to close down the Murray club.

"Judge Lewis tried to take a middle ground," said Paper Moon attorney Richard Golden. "It's impossible to make both laws work."

Lewis reversed the liquor commission's suspension of the Paper Moon's liquor license for ads that supposedly promoted the consumption of alcohol that at the time was illegal. The 10th U.S. Court of Appeals eventually overturned Utah's ban against liquor advertising in still another case, ruling the state's prohibition was irrational and probably unconstitutional.

For its part, the Utah Attorney General's Office sees no conflict in the law assigning special powers to the liquor agency or in the Utah Administrative Procedures Act that gives "no deference" to state agency decisions that are appealed in district court.

Assistant Attorney General Thom Roberts said if there appear to be differences in the statutes, courts are to look at specific powers the Legislature granted to the liquor commission, giving it the final say. The issue could be resolved as cases make their way to the state's higher courts, he added. But that may take time. The case involving Southern X-Posure deals with a suspension slapped on the South Salt Lake club in 2002.

dawn@sltrib.com