COOKERY v. EDWARDS

• Decision Date: 03 May 2010
• Docket Number: No. 2009 CA 1189.,2009 CA 1189.
• Citation: 38 So.3d 1012
• Parties: OLDE NAWLINS COOKERY, L.L.C. v. Daniel EDWARDS, Sheriff of Tangipahoa Parish; Tangipahoa Parish Council.
• Court: Court of Appeal of Louisiana — District of US

38 So.3d 1012

OLDE NAWLINS COOKERY, L.L.C.

v.Daniel EDWARDS, Sheriff of Tangipahoa Parish; Tangipahoa Parish Council.

No. 2009 CA 1189.

Court of Appeal of Louisiana,First Circuit.

May 3, 2010.

COPYRIGHT MATERIAL OMITTED.

Thomas J. Hogan, Jr., Hammond, Louisiana, for Plaintiff-Appellant Olde Nawlins Cookery, L.L.C.

Duncan S. Kemp, III, Hammond, Louisiana, for Defendant-Appellee Tangipahoa Parish Council-President Government.

Ashley E. Sandage, Shaan M. Aucoin, Hammond, Louisiana, for Defendant-Appellee Daniel Edwards, Sheriff.

James D. “Buddy” Caldwell, Attorney General, Erin C. Day, Assistant Attorney General, Baton Rouge, Louisiana, for State of Louisiana.

Before: PARRO, KUHN, and McDONALD, JJ.

KUHN, J.

Plaintiff-appellant, Olde Nawlins Cookery, L.L.C., appeals the district court's judgment denying its requests for a writ of mandamus directed to defendants-appellees, Sheriff Daniel Edwards (the Sheriff) and the Tangipahoa Parish Council-President Government (the Council), to issue a retail alcoholic beverage permit; and for declaratory relief, seeking a declaration that Tangipahoa Parish Ordinance Number 07-39 (the Ordinance) is unlawful, unconstitutional and, therefore, unenforceable. For the following reasons, the judgment is affirmed in part.

FACTUAL AND PROCEDURAL BACKGROUND

The parties stipulated to the following relevant facts. Plaintiff is the owner and operator of a restaurant located at 16014 Halbert Lane in Hammond, Louisiana. Plaintiff applied for and was granted an alcoholic beverage permit by the State of Louisiana, Office of Alcoholic Beverage Control, on April 30, 2008. Plaintiff renewed the state-issued alcoholic beverage permit on September 1, 2008. Plaintiff subsequently submitted an application for a retail alcoholic beverage permit to the Sheriff, who referred its application to the Council. Plaintiff's application was on the agenda for the October 14, 2008 Council meeting. The Council disapproved the application “based upon a purported ordinance which requires approval of adjacent landowners where the premises to be licensed are located in a ‘residential area.’ ” The location of plaintiff's premises is in a mixed-use neighborhood. Plaintiff's establishment is not the only commercial activity in this neighborhood. The area in question is not 100 percent residential. Halbert Lane is a private road.

Plaintiff subsequently filed this petition on October 24, 2008, seeking a writ of mandamus directing the Sheriff and the Council to issue the retail alcoholic beverage permit. Plaintiff also requested a declaratory judgment declaring the Ordinance unlawful, unconstitutional and, therefore, unenforceable. Both the Sheriff and the Council answered the lawsuit, generally denying the allegations and plaintiff's entitlement to relief.

A hearing was held at which stipulations of fact and evidence were admitted. There was no testimonial evidence or argument adduced at the hearing. The district court subsequently issued written reasons for judgment outlining the bases for its decision, and, on February 27, 2009, signed a judgment denying both the requested writ of mandamus and declaratory relief. Plaintiff appeals, asserting the district court erred.

DISCUSSION

The decisions of local authorities in withholding retail alcoholic beverage permits are final and binding on all parties unless appealed in the manner provided by the Alcoholic Beverage Control Law and reversed by the courts. See La. R.S. 26:105 and 302. Although plaintiff styled its petition as a request for a writ of mandamus and for declaratory relief, it is actually challenging the decision of the Council denying its application for a retail alcoholic beverage permit. To timely perfect an appeal of the district court judgment, appellant must file its appeal with this court within ten calendar days of the date of the judgment. See La. R.S. 26:106 B and 303 B.

Although the district court signed its judgment denying both the alternative writ of mandamus and declaratory relief on February 27, 2009, plaintiff did not file this appeal until March 23, 2009, well after the ten-day delay necessary to perfect its appeal. Thus, that portion of the judgment denying the alternative writ of mandamus, which is actually a request for a review of the Council's withholding of a retail alcoholic beverage permit to plaintiff, is not properly before us. See Dempsey v. Town of Cheneyville, 2003-1153, p. 3 (La.App. 3d Cir.2/4/04), 866 So.2d 355, 357.

Turning now to that portion of the district court's judgment denying plaintiff declaratory relief, we note that La. C.C.P. art. 1871 authorizes the judicial declaration of “rights, status, and other legal relations whether or not further relief is or could be claimed,” stating that “the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.”

Article 1872 designates who can bring such an action:

A person ... whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the ... statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Thus, we find that a review of plaintiff's entitlement to a declaration that the Ordinance is unlawful, unconstitutional and, therefore, unenforceable is properly before us.

A declaratory judgment is one which simply establishes the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done, and its distinctive characteristic is that the declaration stands by itself with no executory process following as a matter of course, so that it is distinguished from a direct action in that it does not seek execution or performance from the defendant or the opposing litigants. Billingsley v. City of Baton Rouge, 95-2162, pp. 4-5 (La.App. 1st Cir.4/30/96), 673 So.2d 300, 302, writ denied, 96-1490 (La.9/20/96), 679 So.2d 439. Appellate courts review a district court's decision to grant or deny a declaratory judgment using the abuse of discretion standard. Mai v. Floyd, 2005-2301, p. 4 (La.App. 1st Cir.12/6/06), 951 So.2d 244, 245, writ denied, 2007-0581 (La.5/4/07), 956 So.2d 619.

Ordinance 07-39 states in relevant part:

(b) Any facility (bar, tavern, lounge, etc.) selling alcoholic beverages in a residential area in open containers for consumption on premises within five hundred feet (500') of any adjacent property shall have written notarized consent of adjacent property owners. If said facility does not meet the requirements of this ordinance, permit will be prohibited. This excludes convenience stores or any facility selling packaged liquor which will not be consumed on premises. This does not apply to any facility that is already permitted.

(c) The written, notarized consent of adjacent property owners shall be submitted to [the Sheriff's] Office for Beer, Wine & Liquor Permit.

Plaintiff points out that “residential area” as used in the Ordinance is not defined. Plaintiff's petition averred that the Ordinance “is vague” and, in its district court memorandum and brief to this court, complains that the Ordinance fails to explain how to determine “within five hundred feet (500') of any adjacent property.” Thus, plaintiff seeks a declaration that the Ordinance is vague and, therefore, unenforceable.

The statutory and jurisprudential rules for statutory construction and interpretation apply equally as well to ordinances, rules, and regulations. LaMartina v. Louisiana Patient's Compensation Fund, 2007-2281, p. 8 n. 5 (La.App. 1st Cir.7/21/08), 993 So.2d 249, 253 n. 5. The starting point for the interpretation of any statute is the language of the statute itself. Id., 2007-2281 at p. 7, 993 So.2d at 253. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. The words of a law must be given their...