Rowell v. Austin

• Decision Date: 06 July 1982
• Docket Number: No. 82-78,82-78
• Citation: 276 Ark. 445,637 S.W.2d 531
• Parties: Norma Jean ROWELL, et al., Appellants, v. Alvin AUSTIN, et al., Appellees.
• Court: Arkansas Supreme Court

Page 531

637 S.W.2d 531

276 Ark. 445

Norma Jean ROWELL, et al., Appellants, v. Alvin AUSTIN, et al., Appellees.

No. 82-78.

Supreme Court of Arkansas.

July 6, 1982.

Wallace, Hilburn, Clayton, Calhoon & Forster, Ltd. by Sam Hilburn and Joseph H. Purvis, North Little Rock, for appellants.

Givens & Buzbee by Art Givens, Little Rock, for appellees.

PURTLE, Justice.

The Pulaski County Circuit Court reversed the Alcoholic Beverage Control Board's decision granting on-premise permits for the appellants. The trial court remanded the case to the ABC with directions to construe Ark.Stat.Ann. § 48-345 (Repl.1977) in a manner to prevent the board from approving on-premise permits for the appellants. Appellants argue on appeal that the trial court erred in basing its decision on Ark.Stat.Ann. § 48-345 and ABC regulation 1.32(6)(a) and further argue that the decision of the board was supported by substantial evidence. We agree with the appellants that the trial court erred in its order directing the board to reverse its prior decision.

On December 19, 1980, the appellants applied for permits to sell on premises alcoholic beverages at an establishment known as Shorty Small's Bar & Grill. Shorty Small's fronts onto Rodney Parham Road and on the property just to the east, across Shackleford Road, lies the Pleasant Valley Church of Christ, also abutting on Rodney Parham Road. Shackleford Road is 43 feet wide at this point.

On April 15, 1981, the on premises consumption permits were granted. On May 13, 1981, the appellees filed a petition in Pulaski Circuit Court seeking review of the final order of the ABC Board. Judgment was rendered by the circuit court on September 1, 1981, without considering anything except the record submitted before the ABC Board involving the hearing concerning these permits. A remand order was issued by the court stating in effect the matter was being returned to the board for a determination of Ark.Stat.Ann. § 48-345 and ABC regulation 1.32 in accordance with the construction given by the court. No specific instructions were included in the order. The appellants appeal from this order. On October 30, 1981, the appellants filed notice of appeal to the Arkansas Court of Appeals. The appellees filed a motion, January 8, 1982, to dismiss the appellants' appeal stating such appeal was untimely. After a response by the appellants the Arkansas Court of Appeals denied appellees' motion to dismiss. The Court of Appeals subsequently certified the case to us pursuant to Rule 29.

The facts in this case are not in issue. There is no dispute about the type of permits which appellants sought and were granted. During oral arguments both parties agreed that ABC regulation section 1.32(6) is the regulation controlling the subject of this dispute. This regulation reads as follows:

"Permit not to be issued to premises which is less than 200 yards from church or schoolhouse. No permit for the sale of alcoholic beverages shall be issued, nor shall any existing permit be transferred, to any location within two hundred (200) yards of any church or schoolhouse. However, since the intent of this regulation is to provide protection to churches and schools and to insulate them from alcoholic beverage outlets, the Alcoholic Beverage Control Department may issue permits, with the exception of retail liquor permits, within two hundred (200) yards of a church or schoolhouse upon receipt of a written waiver from managing officials of any church or school which is situated within the above area of prohibition. In determining such distance, the measurement shall be made from the main entrance of the church or schoolhouse to the main entrance of the building of the premises sought to be permitted, measured by the shortest public thoroughfare. (Emphasis supplied.)"

It was not argued in the circuit court nor before the board that this regulation was unconstitutional. Therefore, the question relating to this regulation is simply one of construction. The ABC Board has been granted regulatory power by the Arkansas General Assembly. The critical language in this regulation is the last sentence which provides that the distance shall be measured from the main entrance of the church or schoolhouse to the main entrance of the building which houses the premises under consideration for a permit. It further states that the distance shall be measured by the shortest public thoroughfare. In the present case the appellants have designated their south door, the one farthest from the church, as their main entrance, having closed an entrance on the east end of the building. The parties agreed that the distance from this southern entrance traversing the area of the nearest thoroughfare to the main entrance of the existing church building was 648 feet. Therefore, the distance is beyond that required by the regulation.

In the case of Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979), we considered Ark.Stat.Ann. § 48-309 (Repl.1977) and held that it defined the retail liquor business as used in relation to churches and schools. We quoted Ark.Stat.Ann. § 48-309 which is headed...