Food Town, Inc. v. Town of Plaquemine

• Decision Date: 05 November 1960
• Docket Number: No. 5100,5100
• Citation: 129 So.2d 877
• Parties: FOOD TOWN, INC., Plaintiff-Appellant, v. TOWN OF PLAQUEMINE, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 877

129 So.2d 877

FOOD TOWN, INC., Plaintiff-Appellant, v. TOWN OF PLAQUEMINE, Defendant-Appellee.

No. 5100.

Court of Appeal of Louisiana, First Circuit.

Nov. 5, 1960.

On Rehearing May 22, 1961.

White & May, Baton Rouge, for appellant.

Edward N. Engolio, William O. Templet, Plaquemine, for appellee.

Before ELLIS, LOTTINGER, JONES, and HERGET, JJ.

ELLIS, Judge.

In this action plaintiff, Food Town Inc., having been denied permits for the sale of beer and liquor by the Town of Plaquemine, resorted to court proceedings authorized by LSA-R.S. 26:104 et seq., seeking judgment decreeing that the said permits be issued to it under the provisions of the town's ordinance No. 562 (the ordinance in effect when Food Town, Inc. commenced construction of its building, but later superseded by ordinance No. 570). In the alternative, plaintiff, Food Town, Inc., asked that ordinance No. 570 (adopted by the Town of Plaquemine when Plaintiff's building was almost completed, but before formal application for beer and liquor permits was made) be declared unconstitutional because as drawn, applied, and interpreted by defendant, the plaintiff is deprived of its property without due process of law; and further in the alternative, that the ordinance be declared void in that it prescribed an unauthorized method of measurement of distance, and for judgment of distance, and for judgment decreeing that plaintiff's establishment is more than 300 feet from Plaquemine High School. The trial court dismissed Plaintiff's principal contention and held that a cursory reading of Section 7 of Ordinance 570 indicated that a portion of the said ordinance was unconstitutional as an illegal delegation of authority by the municipal governing body as well as an attempt to repose discretion in the same body in contravention of LSA-R.S. 26:80, and that the remainder of Section 7 of Ordinance 570 conformed to the method of measurements delineated in State Law and is valid, and, therefore, plaintiff was not entitled to the permits. Plaintiff appealed to the Supreme Court and the appeal was transferred to this Court. 239 La. 439, 118 So.2d 879.

Since there was no serious dispute as to the facts of the case, we adopt the trial judge's finding as to facts.

'The salient facts are not in serious dispute between the parties litigant. It is shown that plaintiff desired to construct a super market in the town of Plaquemine and chose as the location therefor a site situated at the corner of Fort and Calvin Streets in said Town and lying directly across Calvin Street from property belonging to the Iberville Parish School Board on which is situated the Plaquemine High School. The record indicated it was apparent to appellant that difficulty might be encountered in securing permits for the location because of its proximity to the school, and for this reason appellant sought to assure itself in advance that such permits could be obtained.

'Prior to commencement of construction of its super market, appellant contacted the Mayor of the town and was assured by said official (verbally) that the premises in question could and would be licensed for the sale of beer and liquor in package lots. Thereafter appellant purchased the site and began erection of its store. Applications for the desired permits were made to the Town governing authority but after prolonged negotiations between appellant and said town governing authority the permits were refused.

'The properties occupied by the high school plant consists of two rectangular parcels of land (one lying west of the other) running in a generally north-south direction and both commencing on the south side of Fort Street which is a paved thoroughfare 39.10 feet in width, and which courses from east to west. The two tracts in question are separated by Terrebonne Street which extends in a northerly-southerly direction and intersects Fort Street. The width of Terrebonne Street is not shown in the record but from Exhibits D--1 and FT--19 (maps of the area introduced by both appellant and appellee) said street appears to be approximately 50 feet in width. The high school proper is situated on the eastermost of the two tracts and the high school building itself faces in an easterly direction. Behind the high school and also situated on the easternmost tract is situated the high school gymnasium (said gymnasium being west of the high school building) which said gymnasium is situated near Terrebonne Street. Immediately west of Terrebonne Street is situated the football field which is bounded on its Western line by Calvin Street which is 50 feet wide, intersects Fort Street and extends from north to south. On this westernmost tract in addition to the aforementioned football field is situated a concrete spectator stadium consisting of tiered seats to accommodate those in attendance at football games and other events conducted on the football field. This modern football stadium is located on the western boundary of the tract occupied by the football field, it faces east and is shown to extend 4.10 feet into the right of way of Calvin Street. Also, situated near the western boundary of the school property and adjacent to the east line of Calvin Street is a frame building in which are conducted classes for the instructions of retarded children. The entire football field area including the stadium is enclosed by a chain link fence approximately eight feet in height excepting a portion of the western boundary which is enclosed by the walls of certain class room facilities which have been constructed beneath the stadium. The building in which classes for retarded children are taught is enclosed within the fence and reached by means of a gate constructed in the fence along the east side of Calvin Street. Classrooms for the teaching of industrial art classes (shop) have been built beneath the stadium. As will be shown in Exhibit D--9 these classrooms have been constructed one story high (of masonry construction) and have walls, roofs, windows and at least one door; which opens directly onto Calvin Street across the said street from appellant's premises. It is further shown that a portion of the building in which retarded children are taught is used for the storage of school equipment and maintenance supplies as well as for the sale of soft drinks on occasion when the football stadium is in use. From the foregoing detailed explanation of the school properties and buildings, it is apparent that the facilities nearest the premises sought to be licensed consists of football stadium (with the industrial arts classrooms located thereunder) and a frame building in which retarded children are taught all of which are situated across Calvin Street from appellant's store. It is conceded that all of these facilities were in existence and in use for their respective purposes prior to commencement of construction of appellant's super market.

'There is no sidewalk ¹ along either side of Calvin Street, neither is there a sidewalk along the south line of Fort Street. There is, however a sidewalk along the north side of Fort Street.

'As previously stated, appellant's supermarket is situated on a site located at the southwest corner of the intersection of Calvin and Fort Streets. The building itself faces north and sits approximately 150 feet south of the south line of Fort Street. Said building parallels the sidelines of Calvin Street and is 67.50 feet west of the west line of Calvin Street. The front door of appellant's supermarket is 198.80 feet from the sidewalk along the north side of Fort Street, it being shown that it is 159.70 feet from said entrance in a direct line to the point where the south line of Fort Street intersects the west line of Calvin Street and from thence across the width of Fort Street (39.10) feet to the said sidewalk. ²

'Adverting to the sequence of events which culminated in this litigation it appears that upon receipt of verbal assurance from the Mayor that the desired permits could be issued, appellant commenced construction of its supermarket and subsequently on May 30, 1956, received a letter from the Mayor stating the premises in question could be used for the sale of beer and liquor in package lots. On the date of said letter, viz, May 30, 1956, issuance of such permits in the Town of Plaquemine was subject to the provisions of Municipal Ordinance 562 (See Exhibit FT--2) which contained no prohibition with respect to the location of places of business selling alcoholic beverages near churches, schools and other similar institutions. However, on July 30, 1956, the municipal governing authority repealed Ordinance 562 and reenacted in its stead Municipal Ordinance 570 prohibiting the sale of intoxicating beverages within 300 feet of schools, churches and like establishments. The pertinent portion of said Ordinance 570, Section 7 thereof, reads in full as follows:

"Section 7. Be it further ordained, etc., that it shall be unlawful for any person, firm or corporation to sell spirituous, vinous or malt liquor of an alcoholic content of more than 3.2 per cent by volume on any premises situated within three hundred (300 ) feet of a municipal public playground, or of a building used exclusively as a regular church, synagogue, public library, or school, except a school for business education conducted as a business college; the measurement of this distance shall be made as a person walks using the middle of the sidewalk from the nearest point of the property line of the church, synagogue, library, playground or school to the nearest point of the premises to be licensed; provided that if the area is undeveloped and there are no sidewalks, the measurement of this distance shall be in a straight line from the nearest point to nearest point; provided that should said person, firm or corporation applying for said permit file with his application for a permit, the written consent of the pastor, priest, or rabbi or...