Regents of University of New Mexico v. Hughes

• Decision Date: 17 August 1992
• Docket Number: 19845,Nos. 19834,s. 19834
• Citation: 114 N.M. 304,838 P.2d 458,1992 NMSC 49
• Parties: , 78 Ed. Law Rep. 116 The REGENTS OF the UNIVERSITY OF NEW MEXICO, Petitioner-Appellee, v. Mary Ann HUGHES, Director, Alcohol and Gaming Division of the New Mexico Department of Licensing and Regulation, City Council of the City of Albuquerque, Albert Chavez, City of Albuquerque Administrative Hearing Officer, Respondents-Appellants, and The Southland Corporation, Real Party in Interest-Appellant.
• Court: New Mexico Supreme Court

Page 458

838 P.2d 458

114 N.M. 304, 78 Ed. Law Rep. 116

The REGENTS OF the UNIVERSITY OF NEW MEXICO, Petitioner-Appellee, v. Mary Ann HUGHES, Director, Alcohol and Gaming Division of

the New Mexico Department of Licensing and Regulation, City

Council of the City of Albuquerque, Albert Chavez, City of

Albuquerque Administrative Hearing Officer, Respondents-Appellants,

and

The Southland Corporation, Real Party in Interest-Appellant.

Nos. 19834, 19845.

Supreme Court of New Mexico.

Aug. 17, 1992.

Rehearing Denied Sept. 9, 1992.

Sutin, Thayer & Browne, Jonathan B. Sutin and Gregory P. Smith, Albuquerque, for appellant Southland.

Tom Udall, Atty. Gen. and Lynda Latta, Asst. Atty. Gen., Santa Fe, for appellants Hughes, et al.

Charles N. Estes, Jr.; and Rodey, Dickason, Sloan, Akin & Robb, Joseph B. Rochelle, III, Albuquerque, for appellee Regents.

OPINION

MONTGOMERY, Justice.

These consolidated appeals present two issues of interpretation of certain provisions of the Liquor Control Act.¹ The first, and perhaps substantively more significant, issue is whether the word "school" in Section 60-6B-10, which prohibits issuance of a liquor license at a location within 300 feet of any church or school, is to be given a functional or a literal interpretation. (By "functional," we mean an interpretation focusing on the purposes for which property owned by a school is used, as opposed to a "literal" interpretation focusing only on the fact that the property is owned by a school.) The second issue is a procedural one, but apparently one of considerable importance to the appellant Director of the Alcohol and Gaming Division of the Department of Licensing and Regulation ("the Director"): whether a party protesting (or, presumably, seeking) a transfer of an existing liquor license, if aggrieved by a decision of the Director, is entitled to a statutory appeal under Section 60-6B-2(M).² (That section permits an appeal from a decision as to approval or disapproval of the issuance of a license, but says nothing about approval or disapproval of a transfer of a license.)

These two issues arise from an appeal by The Southland Corporation ("Southland") from a judgment of the Bernalillo County District Court reversing the Director's decision to authorize transfer of a liquor license to a location on Lomas Boulevard in Albuquerque, where Southland operates a 7-Eleven convenience store. The Regents of the University of New Mexico ("the Regents") protested Southland's application to transfer the license and, following the Director's approval of the application, brought suit in district court for review of the Director's decision. Entertaining the suit as an "appeal" authorized by Section 60-6B-2(M), the court overruled the Director on the ground that the location was within 300 feet of the University, which it held was a "school." Southland and the Director both appealed to this Court. We consolidated the appeals and now affirm the district court's decision to review the administrative proceeding as a statutory "appeal," but reverse the court's ruling that the location is within 300 feet of property used as a school.

I.

The University of New Mexico campus occupies an area of several hundred acres near the heart of downtown Albuquerque. It is bisected by Lomas Boulevard--a major, heavily commercialized, six-lane arterial thoroughfare running east and west. The University's "main" campus lies to the south of Lomas and encompasses many of the facilities of a modern, metropolitan university, such as classrooms, administration buildings, and dormitories. Several fraternities and sororities are also situated on the main campus, some quite near the 7-Eleven. On the other side of Lomas is the "north" campus, which comprises other university facilities, including the School of Medicine and the University Hospital, the School of Law, the Colleges of Nursing and Pharmacy, and the Department of Physics and Astronomy. Of pertinence to this appeal, there are also located on the north campus, as there are on the main campus, numerous parking lots, one of which is adjacent to the University's service center building (also described below as the "physical plant department"), which is used primarily for the custodial, groundskeeping, maintenance, and motor vehicle operations of the University. Along the southerly edge of this parking lot is a privately owned parking lot fronting on Lomas Boulevard, and across Lomas (to the south) is Southland's 7-Eleven store. The distance from the nearest corner of the store building to the service center parking lot is 295.51 feet; the distance from the northerly property line (bordering on Lomas) of the tract on which the store is located is 250 feet.

On April 14, 1988, Southland applied to the Director for the transfer of ownership and change of location of premises of a certain liquor license. The Director's hearing officer conducted a hearing, at which the Regents protested on the grounds, among others, that the 7-Eleven was too close to the fraternity and sorority houses on the main campus and that additional traffic in the area would lessen the University's future control over such businesses. Although the hearing officer found that one or more UNM-owned or -leased fraternities were located within 300 feet of the store, he nonetheless recommended approval of the application on the basis that the property in question had at one time, prior to July 1, 1981, been the site of a delicatessen licensed to sell alcoholic beverages.³

The Director granted preliminary approval of the application and, pursuant to Section 60-6B-4(A), notified the City of Albuquerque of this action. The City held a public hearing under Section 60-6B-4(C) and thereafter notified the Director of its approval of the application. At the public hearing, attended by a representative of the Regents, the City hearing officer found that the proposed location for the license to be transferred was within 300 feet of a school, but recommended approval on the basis that liquor had been sold at the location prior to July 1, 1981. Both the hearing officer's finding and the University's contention that the location of Southland's store was within 300 feet of a school were based on the fact that a fraternity house, owned by the University and leased to the fraternity, was situated within the requisite 300 feet. Neither the City hearing officer nor the Regents took any position at this hearing concerning the location of the service center parking lot in the north campus across Lomas Boulevard from the 7-Eleven. Based on the recommendation of its hearing officer, the Albuquerque City Council approved the transfer of the license, and the Director thereupon gave final approval on October 18, 1988.

The Regents immediately filed a petition for appeal and an action for a declaratory judgment in the district court against the Director, the City hearing officer, and the City Council, seeking reversal of the City and the Director's approvals. Admittedly confused and concerned about the appropriate action by which to obtain review of those approvals, the Regents filed within a month a first amended petition for appeal and declaratory judgment or, in the alternative, for an alternative writ of mandamus. This was followed, less than two months later, with a second amended petition for appeal and declaratory judgment or, in the alternative, for a writ of mandamus or, in the alternative, a writ of certiorari. The district court issued an alternative writ of mandamus and then proceeded to two hearings on the merits. The first hearing was held in November 1989. At that hearing the court ruled that the fraternity house was not a school within the meaning of Section 60-6B-10, but the Regents argued that the location of the store was within 300 feet of the service center parking lot, which they asserted was part of the north campus and thus a school under Section 60-6B-10.

In June 1990, the court issued an order reaffirming its conclusion that the fraternity house was not a school for purposes of Section 60-6B-10. In the same order, the court remanded the case to the City hearing officer for (1) "further evidence concerning the distance and use of" the University property on the north side of Lomas and (2) findings and conclusions as to such distance and use and whether, based on such findings, there was a school located within 300 feet of Southland's property.

The City hearing officer then conducted a second hearing, at which Southland and the Regents presented evidence and argument on the questions asked by the district court in its order of remand. The hearing officer issued a decision in August 1990, finding that, while the University was a school, neither the service center building nor the parking lot was used for instructional, educational, or other school purposes, and that the University parking lots, while an integral part of the University's property, were not used for educational or instructional purposes.

The hearing officer also made findings concerning the distance from the 7-Eleven to the property line of the north campus (the southerly boundary of the service center parking lot). Measuring from a corner of the 7-Eleven building in accordance with one of the Director's regulations, he found that the distance from the premises proposed to be licensed to the University property line was 295.51 feet.⁴

In November 1990, the district court held a second hearing at which it heard oral arguments, then entered findings of fact and conclusions of law, and then entered its order and judgment. The court reversed the Director's approval of Southland's application, but stayed the judgment for thirty days and during the pendency of any appeal.⁵ The court did not receive evidence at either of its hearings; its findings of fact and conclusions of law were based on its review of the administrative record made before the City and the Director's hearing...