Celebrity Club, Inc. v. Utah Liquor Control Commission, 16083

• Decision Date: 22 October 1979
• Docket Number: No. 16083,16083
• Citation: 602 P.2d 689
• Parties: CELEBRITY CLUB, INC., a Utah Nonprofit Corporation, Plaintiff, v. UTAH LIQUOR CONTROL COMMISSION, Defendant.
• Court: Utah Supreme Court

Page 689

602 P.2d 689

CELEBRITY CLUB, INC., a Utah Nonprofit CorporationPlaintiff, v.UTAH LIQUOR CONTROL COMMISSION, Defendant.

No. 16083.

Supreme Court of Utah.

Oct. 22, 1979.

Robert J. Stansfield, Salt Lake City, for plaintiff.

Robert B. Hansen, Atty. Gen., John S. McAllister, Asst. Atty. Gen., Salt Lake City, for defendant.

MAUGHAN, Justice:

Before us is a petition of the Celebrity Club, Inc., seeking relief from an order of the Utah Liquor Control Commission.The appeal is made pursuant to 32-1-32.6, U.C.A., 1953.The Commission denied the Club's application for a license which would allow it to provide for the consumption and storage of liquor, and to have a state liquor store on its premises.

We hold the Commission is estopped to deny a license to the petitioner, on the ground its facilities fall within the 600 foot proscription of 16-6-13.5.We remand for appropriate proceedings, pursuant to this opinion.All statutory references are to U.C.A., 1953, unless otherwise indicated.

Petitioner, a nonprofit corporation, applied to the Commission for a license pursuant to 16-6-13.1, et seq., wherein the Commission is authorized "to issue a license to a social club, recreational, athletic, or kindred association . . . which maintains or intends to maintain premises upon which liquor is or will be stored, consumed or sold . . . ."The Commission accepted and adopted the recommendation of Kenneth F. Wynn, its Director, that the application be denied by reason of the 600 foot restriction of 16-6-13.5, as amended 1977.

These restrictive provisions in 16-6-13.5 state:

. . . but no original license shall be issued to any social club, recreational, athletic or kindred association where it is located within a radius of 600 feet of any public or private school, church, library, public playground or park unless the commission finds after full investigation, that the premises is located within a city of the third class or a town . . . .

The Celebrity Club is located at 1037 East 3300 South in Salt Lake City, Utah.A private school, the Salt Lake Junior Academy is located at 3370 South 900 East; however, the property owned by the school extends in an easterly direction into the interior portions of the block.Prior to the construction of the necessary improvements required by statute and the rules and regulations of the Commission, petitioner contacted the compliance agents of the Commission regarding application of the 600 foot restriction to its situation.The agents advised petitioner the location of the state liquor store would have to be changed to comply with the statute, viz., to exceed the 600 foot proscription.Accordingly, petitioner modified its proposed location of the store.A subsequent physical inspection was made and petitioner was advised the new location was in compliance with the law, and a license could issue upon completion of numerous other conditions required prior to submission of an application.¹A survey was made which indicated the nearest corner of the playground adjacent to the school building to the location of the proposed state liquor store was 622 feet.

On September 16, 1977, petitioner received the following letter:

Pursuant to your letter dated September 14, 1977, the Utah Liquor Control Commission reviewed the status of your application in relation to Section 16-6- 13.5, Utah Code Annotated, 1953, as amended (the 600 foot requirement).

The Utah Liquor Control Commission reviewed the survey you submitted.Survey was accomplished by AAA Engineering and Drafting, Incorporated.Under the present interpretation of the statute by the State Attorney General's Office, the location of the proposed liquor store in your proposed private club facility satisfies the 600 foot requirement.

The plot plan you submitted completes one of the requirements for your application to be considered.The Utah Liquor Control Commission will consider your application for a private locker club license Only when all statutory and Commission requirements have been met.

Sincerely,

Utah Liquor Control

Commission

Dennis R. Kellen,

Administrator

In reliance on the representation of the Commission that its plot plan complied with the 600 foot requirement of 16-6-13.5, as amended 1977, petitioner expended upwards of $200,000 to complete its club.On February 21, 1978, petitioner completed the requirements to submit its formal application and filed it.

In response to the request of Director Wynn, the Attorney General's Office issued an opinion on March 28, 1978, interpreting the 600 foot rule under 16-6-13.5 and 32-1-36.15.This opinion recited the prior opinion of November 15, 1976, did not consider 16-6-13.5 and did not address itself to some specific questions.Although the opinion failed specifically to designate the matter, prior to the effective date of May 10, 1977, of the amendment to 16-6-13.5, this section did not specify a footage requirement.Previously the relevant provisions stated:

. . . except that no license shall be issued to any club or association which establishes or intends to establish such premises in the Immediate proximity of any existing school, church, library, public playground or park.(Emphasis supplied.)

The prior 1976 opinion had interpreted 32-1-36.15(2)(a), which provided:

No state store or package agency shall be located (this term was changed to "established" by an amendment in 1977) within a radius of 600 feet of any public or private school, church, library, public playground, or park . . .

The 1978 opinion stated, where a club or restaurant occupied the entire building, the 600 foot radius should be measured from the outside wall of the building nearest to the school, church, or park.If the club or restaurant were situated in a multi-use building, the 600 feet is measured from the wall within the building nearest to the school, church or park.

The 1978 opinion reiterated the statements in the 1976 opinion concerning the location of the points of measurement of the school.The point is located on the nearest wall of the building in the case of a school or church without a playground.In the case of a public playground or park, the point is located on the boundary.In the case of a school with a playground, the point is located on either the wall of the building or the boundary of the playground, depending on which is closer to the wall of the proposed club or restaurant.If the school, church, etc. is bordered by property belonging to the entity, but not in use, the general rule limits the statutory definition (school, church, etc.) to that property and buildings actually used for worship, school, or playground purposes.

The record indicates the school (Salt Lake Junior Academy) owns property adjoining the playground on its eastern boundary.A storage building was erected on this apparently unused property in the latter part of 1977.The residents of the area had a survey made, the point of measurement was taken from the northeast corner of the allegedly unused property, rather than from the corner of the more distant playground.The difference in the point of measurement creates a 48 foot discrepancy in petitioner's survey.Petitioner's opponents claimed, although the school property in dispute was undeveloped, it was used for school purposes.

Director Wynn, in a memorandum to the Commission, dated September 7, 1978, observed, in view of the opinion of the Attorney General of March 28, 1978, and the surveys submitted in connection with the application, the applicant is within 600 feet of a school playground; and recommended the application be denied.

At a meeting before the Commission on September 15, 1978, representatives of the school stated the undeveloped land was used for school purposes, viz., utilized for ecology studies and agricultural training.The effect of such statements on the Commission is not apparent, since the Commission specified its denial was based on the prior recommendation of its Director, Mr. Wynn.

On appeal, the parties' dispute focuses on the proper interpretation of 16-6-13.5, as amended 1977, as to the location of the point from which the measurement of 600 feet should extend and the location of the terminus of the licensed facility closest to the school.

16-6-13.5 proscribes the issuance of an original license "to any social club . . . where it is located within a radius of 600 feet of any public or private school . . . ."

A "radius" is defined as a line segment extending from the center of a circle or sphere to the curve or surface.²Thus, the term "radius" in its natural meaning implies a circle with a center point, from whence the radius extends equidistantly in all directions.In some of those cases where the issue has arisen, the term "radius" has been interpreted in the geometrical sense, and the center from which it extends has been located in the center of the object, indicated as the geographical location for purposes of measurement.In Mead v. Anton ³ one of the issues was the location of the starting point of the radius.The court stated:

. . . The bill of sale provides that respondents should not enter into competition with appellants'within a radius of five hundred (500) yards of the present location of the Perkins Building,' while the assignment of the lease defines the distance as 'within a radius of Five Hundred Yards from the existing restaurant.'

We disregard the survey made from the northwest corner of the Perkins building, as the distance from that point is immaterial.The center of the circle, within which respondents were prohibited from competing with appellants, should be located either at the center of the Perkins building or, more probably, at the center of Anton's Coffee Shop in that building. . . .

Cases setting forth an interpretation of the term "radius" as employed in contracts, statutes or ordinances as descriptive of an area, location or distance can be found in an annotation in ...