Little Giant Food Stores, Inc. v. State, Dept. of Public Safety through Com'r of Alcoholic Beverage Control
| Decision Date | 05 April 1982 |
| Docket Number | No. 14818,14818 |
| Parties | LITTLE GIANT FOOD STORES, INC., Plaintiff-Appellant, v. STATE of La., DEPT. OF PUBLIC SAFETY Through COMMISSIONER OF ALCOHOLIC BEVERAGE CONTROL, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for plaintiff-appellant.
Robert L. Roshto, Asst. Atty. Gen., Baton Rouge, for defendant-appellee.
Before HALL, JASPER E. JONES and NORRIS, JJ.
The plaintiff is Little Giant Food Stores, Inc. The defendant is the State of Louisiana, Department of Public Safety through the Commissioner of Alcoholic Beverage Control. The plaintiff appeals a judgment of the district court upholding defendant's decision to deny it a 1981 Retail Class B Beer Permit on grounds that the premises to be licensed is within 300 feet of a church.
Little Giant has a store at 4020 Hearne Avenue in the City of Shreveport. Little Giant applied for city and state beer permits for the location. The requested city beer permits was issued to plaintiff, but the defendant denied the state permit under the authority of LSA-R.S. 26:280(C) which provides as follows:
Shreveport's Ordinance No. 217 of 1980 regulates the locations of premises which may be licensed to sell beverages of low alcoholic content. The ordinance provides as follows:
"(b) Except as otherwise provided in this paragraph, it shall be unlawful to engage in the business of dealing in beverages of low alcoholic content from, and no permit shall be granted for, any premises situated within 300 feet or less of a public playground or of a building used exclusively as a church or synagogue, public library, or school, except a business college or school... The required distance shall be measured as a person walks using the sidewalk from the nearest point of the property line of the church or synagogue, library, playground, or school, to the nearest point of the premises to be licensed (i.e., that portion of a building or structure in which the business of dealing in beverages of low alcoholic content is conducted).
The stipulated facts show that the Ingleside Baptist Church is located on Velva Street and that it is 388' from the lot on which the church building is located to plaintiff's premises.
Located across Velva Street from the church is another lot owned by the church which is used for parking. There are no church buildings on the lot. The parking lot is 146' from plaintiff's premises.
A third parcel of church property is located at the intersection of Velva and Dupont Streets on the corner opposite the property where the church building is located. This property is used as a church playground. It is not a public playground. The playground is 196' from the plaintiff's premises.
The relative locations of the various properties are generally shown by the diagram below:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Plaintiff commenced this summary proceeding in the district court after the defendant refused to issue the permit. The plaintiff's demand that the defendant be ordered to issue the requested permit was rejected by the district court and plaintiff took this appeal.
Little Giant sets out three specifications of error: (1) that the trial court erred by refusing to order the permit to be issued; (2) that the trial court erred in its apparent holding that its premises are within 300' of the church; and (3) that the trial court erred in its interpretation of LSA-R.S. 26:280(C).
The merit of plaintiff's specification of error depends on the resolution of one issue: does R.S. 26:280 require that the starting point for measuring the distance from a church to the premises of applicant seeking a permit include church property on which no church building is located and which is not contiguous to the property on which the church building is located. We conclude that it does not and find merit in plaintiff's specification of error.
The appellee contends that the starting points for measuring the distance to the plaintiff's premises are the church playground and parking lot, and relies on Randolph v. Village of Turkey Creek, 240 La. 996, 126 So.2d 341 (1961). In Turkey Creek, the supreme court said:
"... insofar as the measurement at the church, school, et cetera, is concerned it must be made from the point nearest the sidewalk of its outer boundary or property line in which the usual and ordinary activities incident to such an institution are carried on." Id. at 349.
The quoted language from Turkey Creek is not controlling in the case at bar. In Turkey Creek, the court said:
"[t]he meaning of 'premises to be licensed' as used in LSA-R.S. 26:280, subd. C determines the issue." Id. at 349.
Thus, the court's statement concerning the beginning point of the measurement relating to the church property was unnecessary to its decision. It was dictum and not controlling here. Graham v. Jones, 198 La. 507, 3 So.2d 761 (1941); Fulton v. Millet, 93 So.2d 316 (La.App.Orl.1957); Lewis v. New York Fire & Marine Underwriters, Inc., 233 So.2d 743 (La.App. 4th Cir. 1970).
The language of LSA-R.S. 26:280(C) shows that the legislature intended to make state and local regulation of the places from which beverages of low alcoholic...
To continue reading
Request your trial
-
Regents of University of New Mexico v. Hughes
... ... of certain provisions of the Liquor Control Act. 1 The first, and perhaps substantively ... site of a delicatessen licensed to sell alcoholic beverages. 3 ... The Director ... The City held a public hearing under Section 60-6B-4(C) and thereafter ... State Dep't of Alcoholic Beverage Control, 84 N.M. 589, ... Concerned Residents for Neighborhood Inc. v. Shollenbarger, 113 N.M. 667, 831 P.2d 603 ... 529 A.2d at 42. See also Little Giant Food Stores, Inc. v. State Dep't of Pub ... ...
-
96-374 La.App. 3 Cir. 2/5/97, Desselle v. Dresser Indus. Valve
... ... time, and observes that nowhere does this state's workers' compensation act provide for ... of the court may effectively operate through a decree of conclusive character. Further, the ... Lynn v. Berg Mechanical, Inc"., 582 So.2d 902 (La.App. 2d Cir.1991) ... \xC2" ... Sevin v. Schwegmann Giant Supermarkets, 94-1859, p. 4-5 (La.4/10/95); 652 ... Little Giant Food Stores, Inc. v. State, Dept. of Public Safety through Com'r of Alcoholic Beverage Control, 416 ... ...
-
Barney's Family Market, Inc. v. Avoyelles Parish Police Jury
... ... (1) Shall the sale of beverages of low alcoholic content containing more than three and two-tenths ... emphasizing its alleged authority to control 3.2% beer, not on the grounds plaintiff's ... State of Louisiana, through its police power, has the ... In Little Giant Food Stores v. State, 416 So.2d 128 ... , were required for protection of the public welfare of the town's citizens. Accordingly, ... to prohibit the conduct of alcoholic beverage businesses within a certain distance of a parish ... ...
-
Kneipp v. City of Shreveport
... ... CITY OF SHREVEPORT and Pel State Oil Company, Appellants ... No. 20633-CA ... the City of Shreveport to rescind an alcoholic beverage permit it previously issued to Pel State ... within 300 feet of certain described public property, including playgrounds. Pel State ... the south of B & R Liquor is Sack and Pack Food Service, which is owned by plaintiff Sam ... their businesses from loss of beer sales through market competition. The City also argues that ... here.) See, for example: Food Town, Inc. v. Town of Plaquemine, 174 So.2d 833 (La.App ... So.2d 498 (Court of Appeal La.Orl.1951); Little Giant Food Stores v. State, Etc., 416 So.2d 128 ... ...