Cole-Miers Post 3619 V.F.W. of Deridder v. State, Department of Revenue & Taxation, Office of Alcoholic Beverage Control

747 So. 2d 598 | La. Ct. App. | 1999

Lead Opinion

| THIBODEAUX, Judge.

Cole-Miers Post 3619 V.F.W. of Derid-der (hereinafter “V.F.W.”) appeals the judgment of the trial court denying its attempt to secure a Class A general beer and liquor permit from the Office of Alcoholic Beverage Control. For the reasons which follow, we reverse the trial court’s judgment and order the Office of | ^Alcohol and Tobacco Control¹ to issue a Class A general beer and liquor permit to the V.F.W.

I.

ISSUE

We shall consider whether the V.F.W. is entitled to a Class A general beer and liquor permit pursuant to the exception contained in La.R.S. 26:81(E).

II.

FACTS

The V.F.W. is located in Ward 8 of Beauregard Parish. On December 4, 1976, Beauregard Parish voted by referendum to prohibit the sale of alcoholic beverages in Ward 3.

On June 2, 1997, the V.F.W. applied for a Class A general beer and liquor permit authorizing the sale of alcoholic beverages. By letter dated July 7, 1997, the Office of Alcoholic Beverage Control denied the V.F.W.’s application. It stated: “No permit shall be issued by the Commissioner or Local authorities to authorize the conduct of business in any subdivision of the state wherein that business has been prohibited by referendum vote.”

III.

LAW AND DISCUSSION

Standard of Review

Appellate review of a question of law is a determination of whether the trial court’s judgment is legally correct or incorrect. Scobee v. Brame, 98-564 La.App. 3 Cir. 10/28/98); 721 So.2d 977; unit denied, 98-2952 (La.1/29/99), 736 So.2d 833. The trial court’s decision is not entitled to deference if it was based on an erroneous application of the law. Id. The interpretation of a statute presents a question of law. Jacquet v. Southern Structures, Inc., 97-1696 (La.App. 3 Cir. 5/20/98); 713 So.2d 723.

Applicability of La.R.S. 26:81(E)

Louisiana Revised Statutes 26:81 provides in relevant part:

A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state.

B. (1) No permit shall be issued by the commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.

[[Image here]]

E. The prohibitions in this Section do not apply to any premises which are maintained as a bona fide hotel, or fraternal organization, nor to any premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance.

At trial, the V.F.W. argued that pursuant to the exception provided by La.R.S. 26:81(E), it is entitled to a liquor permit despite the referendum vote in Ward 3 of Beauregard Parish prohibiting the sale of alcohol. In finding that the V.F.W. was properly denied the liquor permit, the trial judge stated in his reasons for judgment that “[i]t is neither clear nor convincing that Section E is intended as an exception to Section B by the legislature.” Moreover, citing O'Neal v. Jackson Parish Police Jury, 27,452 (La.App. 2 Cir. 6/21/95); 658 So.2d 240, the trial judge stated that a restrictive interpretation of the statute was consistent with the legislative intent to ensure the “effectiveness of local option or referendum elections.”

|4The starting point in the interpretation of a statute is the language of the statute itself. Touchard v. Williams, 617 So.2d 885 (La.1993). When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La.Civ.Code art. 9. “A part or section of an act should be interpreted in connection with the rest of the act....” Hall v. Hall, 617 So.2d 204, 206 (La.App. 3 Cir.1993).

In this case, we find that the trial judge committed an error of law in his interpretation of La.R.S. 26:81(E). The exception provided by La.R.S. 26:81(E) permits the issuance of a liquor permit to a fraternal organization, notwithstanding the prohibition set forth in La.R.S. 26:81(B). As we recognized in Sabine Parish Police Jury v. Office of Alcoholic Beverage Control, Dep’t of Pub. Safety, State, 94-919, p. 5 (La.App. 3 Cir. 8/25/94); 643 So.2d 187, 189 (emphasis added):

[a] clear reading of the statute at issue provides that the prohibitions, set forth in §§ A, B, C, and D, do not apply to 1) premises which are maintained as a bona fide hotel, or to 2) any fraternal organization, or to 3) premises which have been licensed to sell alcoholic beverages for more than one (1) year prior to the adoption of the ordinance.

We reject the trial judge’s contention that a further determination of legislative intent is necessary to interpret La.R.S. 26:81(E). Because the statute is clear and unambiguous, it must be enforced as written. However, we note that the structure of La.R.S. 26:81 indicates that Section 81(E) is intended to apply to Subsections (A-D). If the legislature had intended that the exception apply only to certain subsections, it would have placed the exception within those subsections. Notably, the exception is contained in a separate subsection which follows Subsections (AD). Thus, Section 81(E) “does not, on its face, limit the application of these exceptions to a particular subsection of § 81.” O’Neal, 658 So.2d at 242. |fiMoreover, we reject the trial judge’s conclusion that because the last clause of La.R.S. 26:81(E) refers to ordinances and not referendum votes, the exception only applies to those subsections which address prohibitions that are adopted as a result of local ordinances. As we recognized in Sabine, the phrase “prior to the adoption of the ordinance” simply modifies “premises which have been licensed to deal in alcoholic beverages.” The phrase “has no reference to that which precedes it” and does not otherwise restrict the scope of the exception. Sabine Parish Police Jury, 643 So.2d at 189.

Fraternal Organization

The definition of “fraternal organization” does not appear in La.R.S. 26:81, and we have not previously addressed the meaning of the term in the context of La.R.S. 26:81. In his reasons for judgment, the trial judge reasoned that the V.F.W. is not a fraternal organization, finding that it “is run more as a commercial business for the purpose of raising monies.... ” We disagree and find that for the purpose of La.R.S. 26:81(E), the V.F.W. is a fraternal organization.

The insurance code provides guidance as to the definition of “fraternal organization.” Louisiana Revised Statutes 22:541 defines a “fraternal benefit society” as follows:

any incorporated society, order, or supreme lodge, without capital stock, including one exempted under the provisions of R.S. 22:578(A)(2), whether incorporated or not, conducted solely for the benefit of its members and their beneficiaries and not for profit, operated on a lodge system with ritualistic form of work, having a representative form of government, and which provides benefits in accordance with this Part.

Moreover, Black’s Law Dictionary (4th ed.) defines “fraternal” as “brotherly; relating or belonging to a fraternity or an association of persons formed for mutual aid and benefit, but not for profit.”

|fiThe V.F.W. argues that it is a nonprofit organization whose primary purpose is “to give aid and comfort to Veterans of Foreign Wars, their widows, and orphans. At trial, the commander of the V.F.W., Bill Lambright, testified that the V.F.W. has been in existence since May 8, 1937. He testified that his V.F.W. post currently has 561 members and is part of a national organization with posts around the United States and overseas. He stated that in order to become a member of the V.F.W., an applicant must have served in the United States Armed Services and must have fought in a foreign war. He explained that the V.F.W. donates its time and money to charitable causes and is governed by a hierarchy of officers.

Considering these facts, we conclude that the V.F.W. is a fraternal organization. Accordingly, pursuant to the exception provided by La.R.S. 26:81(E), the V.F.W. is entitled to a Class A general beer and liquor permit.

IV.

CONCLUSION

Based on the foregoing reasons, the judgment of the trial court is reversed. The Office of Alcohol and Tobacco Control is ordered to issue a Class A general beer and liquor permit to the V.F.W. Court costs in the amount of $888.71 are assessed to the Office of Alcohol and Tobacco Control.

REVERSED.

PICKETT, J., DISSENTS WITH WRITTEN REASONS.

1 . The Office of Alcoholic Beverage Control was renamed the Office of Alcohol and Tobacco Control.

---

Dissenting Opinion

hPICKETT, Judge,

Dissenting.

I respectfully dissent.

Cole-Miers Post 3619 V.F.W. of DeRid-der (VFW) is located in Ward Three of Beauregard Parish. On December ' 4, 1976, Beauregard Parish voted by referendum to prohibit the sale of alcoholic beverages in Ward Three of Beauregard Parish.

The VFW applied to the ATC for a State permit authorizing the sale of alcoholic beverages of both low and high alcoholic content. The ATC denied the | ¡^application by letter citing La.R.S. 26:81, which states, in pertinent part:

No permit shall be issued by the commissioner or by any municipality of parish to authorize any business in any subdivision of the State where business in any subdivision of the State where business has been prohibited by referendum vote.

I would note that the record establishes that the VFW is not requesting the permit for the direct benefit of providing alcohol to its membership; because the VFW’s own organizational rules prohibit alcohol at member meetings. The VFW desires the Class A permit to facilitate what amounts to “retail sales” of alcohol by other organizations renting the VFW premises and for the purpose of selling alcohol at its Saturday night dances which are open to the public.

The majority holds that La.R.S. 26:81(E) provides an exception to the prohibition against granting a Class A license to a business located in an area that has been voted “dry” by its citizens and allows fraternal organizations to operate bars in those dry areas. I cannot agree with their interpretation of that statute.

Originally, the language set forth in what is now La.R.S. 26:81(E) was a part of La.R.S. 26:80(C) which authorized governing authorities of parishes and municipalities to enact ordinances prohibiting the conduct of alcoholic beverage businesses within certain distances of a church, playground, public library, or school, within certain limits, and the manner for measuring those distances. A fraternal organization was exempted from these restrictions.

The statute was amended in 1987 and, at that time, the language in La.R.S. 26:80(C) which provided any regulations that a business selling alcoholic beverages be a certain distance from a church, synagogue, public library, school or playgrounds “do not apply to a ... bona fide hotel, or fraternal organization, nor to any premises I «which have been licensed to deal in aleo-holic beverages for a period of one year or longer prior to the adoption of the ordinance ...” was set forth in a separate subsection, the present La.R.S. 26:81(E). The information in the Digest of that act indicates an intent to clarify “the method for measuring the distance from school and churches for operating an alcoholic beverage business.” (Pg. 108 at lines 6-7). There is no indication the intent was to substantively change the law and create an exception to the prohibition of alcoholic beverage sales in a Ward where such sales have been prohibited by referendum vote. It is clear, from a review of the history of this statute, that La.R.S. 26:81(E) pertains solely to those subsections which allow for the restriction of the sale of alcoholic beverages in close proximity to schools, churches, playgrounds, and public libraries.

The majority’s interpretation leads to an absurd result in its application.

La.R.S. 26:81 is a part of Title 26, Chapter 1, which deals exclusively with alcoholic beverages “... having an alcoholic content of more than six per cent by volume ...” La.R.S. 26:2(1). By its language 26:81 applies solely to permits authorized under Chapter 1.

Title 26, Chapter 2, regulates the issuance of licenses for the sale of alcoholic content and defines beverages of low alcoholic content as “alcoholic beverages containing not more than six per cent alcohol by volume.” La.R.S. 26:241(1). La.R.S. 26:281(B) sets forth that “No permit shall be issued by the Commissioner or local authorities to authorize the conduct of business in any subdivision of the State wherein that business has been prohibited by referendum vote.” La.R.S. 26:281 does not provide the exceptions set forth in 26:81(E).

j4In other words, had the VFW sought a permit for the sole purpose of selling beer and wine coolers they could not prevail. The majority’s interpretation of 26:81(E), however, allows them to sell whiskey.

I further do not agree that the VFW qualifies as a “fraternal organization” if one accepts the majority’s interpretation of 26:81(E).

Since the statute does not define “fraternal organization,” the majority relies on the definition under the insurance code which defines a “fraternal benefit society” as follows:

“[A]ny incorporated society, order, or supreme lodge, without capital stock, including one exempted under the provisions of R.S. 22:578(A)(2), whether incorporated or not, conducted solely for the benefit of its members and their beneficiaries and not for profit, operated on a lodge system with ritualistic form of work, having a representative form of government, and which provides benefits in accordance with this part.” La.R.S. 22:541.

I do not agree that the evidence establishes that the plaintiff qualifies as a fraternal organization under this definition.

Further, the State tax code draws a distinction between a “fraternal society” and a “post or organizations of war veterans, or auxiliary units or societies of any such posts or organizations.” La.R.S. 47:57(4) and 47:56(5). The VFW is an organization of war veterans and therefore not a fraternal organization. This is further supported by a letter from the Internal Revenue Service addressed to plaintiff classifying plaintiff as tax exempt under Section 501(0(19) of the Internal Revenue Code. .Section 501(0(19) applies to posts or organizations of war veterans.

For the above reasons, I respectfully dissent.