Safeway Stores, Inc. v. City of Las Cruces

• Court: New Mexico Supreme Court
• Writing for the Court: McMANUS; TACKETT; STEPHENSON; COMPTON; OMAN
• Citation: Safeway Stores, Inc. v. City of Las Cruces, 484 P.2d 341, 82 N.M. 499, 1971 NMSC 52 (N.M. 1971)
• Decision Date: 26 April 1971
• Docket Number: No. 9117,9117
• Parties: SAFEWAY STORES, INCORPORATED and Ernesto Rigales, Plaintiff-Appellees, v. CITY OF LAS CRUCES and its Commissioner et al., Defendant-Appellants.

Page 341

484 P.2d 341

82 N.M. 499

SAFEWAY STORES, INCORPORATED and Ernesto Rigales, Plaintiff-Appellees, v. CITY OF LAS CRUCES and its Commissioner et al., Defendant-Appellants.

No. 9117.

Supreme Court of New Mexico.

April 26, 1971.

George R. Schmitt, Las Cruces, for defendants-appellants.

Keleher & McLeod, Michael L. Keleher, Albuquerque, Rudy S. Apodaca, Las Cruces, for plaintiffs-appellees.

OPINION

McMANUS, Justice.

Defendants appeal from the reversal of their administrative action denying approval of transfer of ownership and location of plaintiff Rigales' liquor license to Safeway Stores, Inc.

The Alcoholic Beverages Act, §§ 46--1--1 to 46--12--13, N.M.S.A. (1953 Comp.), establishes certain prerequisites to the granting of a liquor license application or for its transfer to another location. These requirements pertain to the character of the applicant, certain restrictions as to the location of the license, plus other requirements and continuing requisites as to operation of the licensed establishment. However, it is conceded by the defendants that all of the necessary statutory prerequisites were complied with in connection with the plaintiff's application. Yet, the defendants urge that the trial court erred in failing to find that the New Mexico state legislature has conferred upon state municipalities certain necessary powers, including the discretionary authority to approve or disapprove an application for a liquor license. For purposes of this appeal, we find the above point to be dispositive for our decision.

The defendants alleged that they acted under the discretionary powers given them by § 46--4--8(C), N.M.S.A. (1953 Comp.), which states:

'Within thirty (30) days after the date of the last publication of the notice in the newspaper, the governing body shall, in regular or special meeting, approve or disapprove the issuance or transfer of the license specified in the notice from the chief of the division of liquor control. The governing body shall, if it disapproves the issuance or transfer contained in the notice, notify the chief of the division of liquor control of such action of disapproval within five (5) days after the action has been taken. Thereupon, the chief of the division of liquor control shall not issue or transfer the license or licenses mentioned in the notice.'

The above section must be read in light of the entire Alcoholic Beverages Act, supra, to determine the intent of the legislature. In recognizing the standards established by the act in seeking to achieve its purposes, '* * * it is fundamental that those standards--general as they are--are not to be broadened simply to accommodate the particular whims and philosophy that the parties or the various members of the licensing authority might have concerning the subject matter. That is a task for the legislature.' Glenn v. Board of County Com'rs, Sheridan County, 440 P.2d 1 (Wyo.1968).

Agreeing that the plaintiffs met all applicable statutory requirements, the defendants maintain that, acting under no guidelines other than their discretion, they could still properly deny the transferral of the license. We cannot agree with this contention. There is nothing within the scope of the applicable statutory material which would indicate that the legislature intended to give local governing bodies discretion well beyond that exercised by the state liquor director or otherwise set forth as statutory guidelines. To give such interpretation to the section quoted by the defendants would result in an unmistakably ambiguous application of liquor law requirements, belying any legislative intent as to uniform, statewide regulation of the affected subject matter.

The statute in question, § 46--4--8(C), supra, in circumstances where the local governing body fails to act for a certain period of time or approves the transfer, authorizes the chief of the division to approve the transfer in his discretion. As written, the statute does not even require discretion on the part of the local governing body. Could it be reasonably held, in the light of the state's preemption in the field of the regulation of liquor businesses, that the legislature intended local governing bodies to have a broader range of permitted action than the chief of the division? We think not. Without any statutory standard whatever, we to not feel that a local governing body could give vent to whatever whims they might choose. Our duty, when it becomes necessary to look into the legislative intent behind such statutes, is to avoid ambiguity, not create it. The chief aim of statutory construction is to arrive at true legislative intent. See Montoya v. McManus, 68 N.M. 381, 362 P.2d 771 (1961); State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966).

Having made out a prima facie case on behalf of the plaintiffs by meeting the statutory requirements applicable to them, it is then necessary of the defendants to rebut such evidence. See Lyons v. Delaware Liquor Commission, 44 Del. (5 Terry) 304, 58 A.2d 889 (1948). Yet, they fail to come forward with any such evidence, and, apparently relying on their misunderstanding of the law, they allege their ostensibly awesome discretionary power in such matters. A local governing body does perform a valuable discretionary duty in the granting of liquor licenses or in their transfer, but only insofar as determining whether the statutory guidelines have been met locally. The record shows, and the defendants substantively admit, that such guidelines were met.

Having considered all of the points raised on appeal, and having noted that the above point is dispositive of the appeal, the judgment of the trial court is affirmed.

It is so ordered.

TACKETT, J., concurs.

STEPHENSON, Justice (concurring specially).

I concur with the result reached by the majority opinion, but I have traveled a different route in arriving at my conclusion.

Here, a transfer of both location and ownership was sought by appellees. No assertion is, or ever has been made by appellants that the proposed transferee is not qualified to receive the license (§ 46--5--14, N.M.S.A., 1953) or that the proposed location is within the purview of any statutory prohibition (§§ 46--5--26 and 46--5--27, N.M.S.A., 1953).

The issues here are to be resolved by a consideration of § 46--4--8, N.M.S.A., 1953, construing it in conjunction with other provisions of the Liquor Control Act (Chapter 46, Articles 1 through 11, N.M.S.A., 1953, as amended) and decisions of this court. Subsection A of the statute provides in part that prior to approval of a transfer, the director shall give notice to the 'local governing body' than an application for transfer has been received. Subsection B requires the governing body to publish a notice setting forth, inter alia, '* * * the date, time and place when the governing body will meet to consider the approval or disapproval of the application.' Subsection C is quoted in part in the majority opinion. It seems clear from § 46--4--8, supra, that the city commission is to gather together and consider the approval or disapproval of the application for transfer. It is in regard to this meeting that I depart from the majority opinion. The majority holds that the plaintiffs-appellees made out 'a prima facie case' as a result of which it became necessary for the defendants-appellants 'to rebut such evidence,' which they failed to do. To speak of prima facie cases and the rebutting thereof, implies some sort of orderly hearing conducted for the resolution of issues according to some defined plan.

Yet the statute does not in terms provide for a hearing. If a hearing was contemplated what, I ask, were the issues to be resolved? Not the qualifications of the transferee or the propriety of the proposed location. There was no question as to these matters which are, in any case, the responsibility of the director. Sections 46--5--1 and 46--5--15(B), N.M.S.A., 1953. And if there was a hearing, who were the parties? Who had the burden of proof and what was it that they were trying to prove? The answers to these questions are not to be found in § 46--4--8, supra, or in the Liquor Control Act.

Actually, the meeting was merely to hear protests. In Yarbrough v. Montoya, 54 N.M. 91, 214 P.2d 769 (1950), this court said, speaking of the notice required to be posted by the statute now compiled, as amended, as § 46--5--16(D), N.M.S.A., 1953, as a prerequisite to transfer:

'The only purpose of such a posting is to give notice of the application so any interested parties may protest.'

The striking feature of § 46--4--8(C), supra, is that, without specifying criteria or standards of any sort, it requires the local governing body to 'approve or disapprove' the transfer and, if the latter, the decision is made final and binding upon the director. The description of the statute under consideration by this court in State ex rel. Holmes v. State Board of Finance, 69 N.M. 430, 367 P.2d 925 (1961) precisely applies to § 46--4--8(C), viz:

'As we read the section, the grant is absolute and is totally devoid of restraints, direction or rules.'

Serious questions thus arise at the outset as to whether the statute is constitutional. The resolution of this question requires a consideration of basic features of New Mexico's scheme of liquor control.

Although New Mexico recognizes that as between individuals, liquor licenses are personal property, as between the licensee or prospective licensee and the state we are firmly committed to the doctrine that a liquor license is a mere privilege. Nelson v. Naranjo, 74 N.M. 502, 395 P.2d 228 (1964). In Chiordi v. Jernigan, 46 N.M. 396, 129 P.2d 640 (1942), this court said:

'Such license is a privilege and not property within the meaning of the due process and contract clauses of the constitutions of the State and the nation, and in them licensees have no vested property rights.'

And in Yarbrough v. Montoya, supra:

'There is no inherent...