Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Commission

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before SCHWAB; FOLEY
• Citation: Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Commission, 530 P.2d 887, 20 Or.App. 91 (Or. App. 1975)
• Decision Date: 20 January 1975
• Docket Number: DRIVE-IN
• Parties: SUN RAYDAIRY, INC., and Sun Ray Dairy, Petitioners, v. OREGON LIQUOR CONTROL COMMISSION, Respondent.

Page 887

530 P.2d 887

20 Or.App. 91

SUN RAY DRIVE-IN DAIRY, INC., and Sun Ray Dairy, Petitioners, v. OREGON LIQUOR CONTROL COMMISSION, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Oct. 24, 1974.

Decided Jan. 20, 1975.

D. S. Denning, Jr., Vale, argued the cause for petitioner. With him on the brief were Schroeder, Denning & Hutchens, Vale.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

FOLEY, Judge.

Petitioner Sun Ray Drive-In Dairy, Inc., appeals from the denial, by the Oregon Liquor Control Commission (hereinafter OLCC), of an application for a Package Store Class B license for Sun Ray's Ontario, Oregon store. This court reversed and remanded OLCC's prior decision in this case, Sun Ray Dairy v. OLCC, 16 Or.App. 63, 70, 517 P.2d 289 (1973) (hereinafter Sun Ray I), on the ground that OLCC had not published regulations which provided a basis upon which to rest its denial.

Thereafter, OLCC adopted some additional rules, only one of which is pertinent here. It reads:

'10--730 SPECIAL RULES. * * * (P)ackage store licenses shall not be issued:

'* * *

'(2) To an outlet which primarily sells petroleum products if there are other outlets with packaged liquor privileges within a reasonable distance.

'* * *.' OAR ch 845, § 10--730.

The Commission then granted petitioner a rehearing and again denied its application stating in its order:

'* * * (T)he Ontario store carries an inventory of approximately $6,000 which includes dairy products, bakery goods, convenience items, frozen products and a limited amount of grocery items which are carried because of their repaid turnover (which) makes these items profitable to stock. Applicant store is also a commissioned sales representative of a large oil company, under which agreement Sun Ray provides the labor and in return receives a commission based upon the gross sales, and * * * generally, the gross gas sales make up more than half of total gross sales for the market. At time of the hearing, applicants were no longer selling gas due to the fact that the gas crisis had made it unprofitable, however, they plan to reopen gas sales in the near future when it again becomes profitable. * * * (T)he following are package licenses within (a) sixteen block area of applicant's site: Maverick Gas and Grocery--1.7 miles; Skaggs Drug Store--8 blocks; Albertsons--8 blocks; Villa Park Market--8 blocks; Circle K--7 blocks; Safeway--1 block; Wilson Warehouse Market--5 blocks; Payless Drug--6 blocks; Mallard Grocery--15 blocks; Ontario Market--10 blocks; Discount Food Center--11 blocks; Home Town Market--11 blocks. * * *'

These findings of fact are supported by the record. OLCC then concluded:

'Applicant's business is primarily engaged in the sale of petroleum products and there are other outlets with package liquor privileges within a reasonable distance. * * *'

Petitioner's contention is that the phrase 'reasonable distance' is too vague and that the same objection applies to the phrase 'primarily engaged in the sale of petroleum products.' ¹ Petitioner seems to contend that the regulation should be couched in percentages, for example, percentage of gross sales or percentage of profit. We said in Sun Ray I:

'* * * Definitions need not be so meticulous as to be unworkable. Board of Medical Examiners v. Mintz, 233 Or. 441, 447, 378 P.2d 945 (1963). For instance, the commission need not and, indeed, probably should not specify the precise volume of frozen creamed peas, beef stew, weiners, chili, pork and beans or oats which the store must stock to qualify. On the other hand, we see no major difficulty in the commission's formulating guidelines which may appear to the commission to be factors in the determination of whether denial of a license to a given store is within 'the public interest or convenience.' Similarly, if certain criteria are more or less important than others, that fact should also be articulated. * * *' 16 Or.App. at 74--75, 517 P.2d at 294.

The purposes of the Oregon Liquor Control Act are set out in ORS 471.030:

'(1) The Liquor Control Act shall be liberally construed so as:

'(a) To prevent the recurrence of abuses associated with saloons or resorts for the consumption of alcoholic beverages.

'(b) To eliminate the evils of unlicensed and unlawful manufacture, selling and disposing of such beverages and to promote temperance in the use and consumption of...