Lead Opinion
¶ 1 In this appeal we interpret an exception to the Smoke-Free Arizona Act, Arizona Revised Statutes (“A.R.S”) section 36-601.01 (Supp.2007). We hold that a business which satisfies the definition of a “retail tobacco store” under § 36-601.01(A)(10) qualifies for the statutory retail tobacco store exception to the smoking ban, even if the store also holds a liquor license and sells alcohol on its premises.
FACTS AND PROCEDURAL HISTORY
¶2 Appellant Prince and Princess Enterprises, LLC (“Magnum’s”) is the owner and operator of Magnum’s Cigar, Wine & Liquor Emporium. Magnum’s has a tobacco distributor license, which permits it to sell tobacco products and accessories. Magnum’s also holds a series 6 alcoholic-beverages license, which permits Magnum’s to sell alcohol to its customers for consumption both on and off premises. Magnum’s allows smoking on its premises, including in a lounge area where it serves alcoholic beverages.
¶ 3 In the November 2006 general election, the people of Arizona enacted the Smoke-Free Arizona Act pursuant to Proposition 201, a voter initiative measure. The Act provides, in pertinent part:
Smoking is prohibited in all public places and places of employment within the state of Arizona, except the following:
3. Retail tobacco stores that are physically separated so that smoke from retail tobacco stores does not infiltrate into areas where smoking is prohibited under the provisions of this section.
A.R.S. § 36-601.01(B)(3). The Act defines a “retail tobacco store” as “a retail store that derives the majority of its sales from tobacco products and accessories.” A.R.S. § 36-601.01(A)(10).
¶ 4 In February 2008, Magnum’s filed a verified complaint seeking declaratory relief that it qualifies as a “retail tobacco store” for purposes of the Smoke-Free Arizona Act plus injunctive relief precluding the Arizona Department of Health Services (“Department”) from enforcing the Act against Magnum’s. The trial court decided that Magnum’s is a “liquor bar” — not a retail tobacco store within the meaning of the Act — and therefore Magnum’s is not exempted from the smoke-free requirements of the Act. Magnum’s timely appeals and we have jurisdiction pursuant to A.R.S. § 12-2101(B), (F)(2) (2003).
ANALYSIS
¶ 5 This appeal presents an issue of statutory interpretation that we review de novo. City of Phoenix v. Harnish,
¶ 6 Magnum’s argues that it satisfies the retail tobacco store exception “because it is a retail store that derives a majority of [its]
¶ 7 The Smoke-Free Arizona Act precludes smoking in all “public places” and “places of employment,” with seven exceptions. The Act defines “public places” as:
any enclosed area to lohich the public is invited or in which the public is permitted, including airports, banks, bars, common areas of apartment buildings, condominiums or other multifamily housing facilities, educational facilities, entertainment facilities or venues, health care facilities, hotel and motel common areas, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports facilities, theaters, and waiting rooms. A private residence is not a “public place” unless it is used as a child care, adult day care, or health care facility.
A.R.S. § 36-601.01(A)(9) (emphasis added). As a retail store that sells tobacco and alcohol, Magnum’s is obviously a “public place” and a “place of employment.” Unless Magnum’s fits within one of the seven specified exceptions in the Act, smoking is not permitted on its premises.
¶ 8 To qualify for the retail tobacco store exception to the smoking ban, a business must: (1) be a retail store that derives the majority of its sales from tobacco products and accessories, and (2) be physically separated so that smoke does not infiltrate into areas where smoking is prohibited. A.R.S. § 36-601.01(A)(10), (B)(3). Magnum’s alleged in its verified complaint that it satisfies these two requirements, and for purposes of the statutory interpretation needed to resolve this appeal, these facts are assumed to be true. The fundamental question raised is whether the business is precluded from claiming the retail tobacco store exception because it also holds a series 6 liquor license and sells alcohol for consumption on and off its premises.
¶ 9 Based upon a plain reading of the statute and the assumed facts, we conclude that Magnum’s qualifies for the retail tobacco store exception. First, Magnum’s is a retail store. “If the legislature has not defined a word or phrase in a statute, we will consider respected dictionary definitions.” Urias v. PCS Health Sys., Inc.,
¶ 10 There is no prohibition against the sale of alcohol in either the retail tobacco store exception, § 36-601.01(B)(3), or the definition of “retail tobacco store,” § 36-601.01(A)(10). Nothing in the statute, in our view, supports the Department’s argument that a retail store which otherwise qualifies under § 36-601.01(B)(3) is precluded from the exception merely because the store also sells alcohol. By applying the language of the Act, as written, to the facts of this dispute, our task is completed. If the assumed facts are proven, Magnum’s will qualify for the exception to the smoking ban. No further statutory interpretation is necessary. See City of Mesa v. Killingsworth,
¶ 11 The Department argues that Magnum’s is a bar and the retail tobacco store exception does not apply to bars. This argument avoids the plain language of the Act. The fact that Magnum’s holds a section 6 liquor license is not determinative of whether it qualifies for the retail tobacco store exception. In addition to holding a liquor license, Magnum’s also holds a tobacco distributor’s license. On the basis of licensing alone, we see no reason to label Magnum’s as a bar instead of a retail tobacco store. In common parlance, we believe Magnum’s is both a retail tobacco store and a bar. But regardless of which label or labels might be attached to Magnum’s business, the majority of Magnum’s sales are from tobacco products and accessories — the very definition of a “retail tobacco store.” Although the Act specifies that the majority of a retail tobacco store’s sales must be from tobacco products and accessories, it places no restrictions on the source of the other 49.9 percent of sales. The language of the Act provides no reason to conclude that the other 49.9 percent cannot be generated by alcohol, food, or any other lawfully sold items.
¶ 12 The Department further contends that the “retail tobacco store” exception is only an exception to “retail stores” as found in § 36-601.01(A)(9). Because the definition of “retail tobacco store” includes the phrase “retail store” — but not “business” or “public place” or “bar” — the Department argues that the voters intended the retail tobacco store exception to only apply to retail stores and not other public places within the meaning of § 36-601.01(A)(9). Because Magnum’s may be considered a “bar” for some purposes and “bars” are listed as public places subject to the smoking ban, the Department concludes that Magnum’s is subject to the smoking ban. This argument overlooks the structure of the Act and incorrectly assumes that the illustrative examples of “public places” are mutually exclusive to one another.
¶ 13 The Act bans smoking in all public places and places of employment, A.R.S. § 36-601.01(B), with seven exceptions, one of which is for “retail tobacco stores.” A.R.S. § 36-601.01(B)(3). The language and structure of the Act make it plain that this exception is an exception to the- statewide ban on smoking in all public places and places of employment. The Act defines “public place” as “any enclosed area to which the public is invited or in which the public is permitted.” A.R.S. § 36-601.01(A)(9). The Act then lists typical examples of “public places.” The items listed are illustrative examples, as indicated by the. use of the word “including” preceding the list. See State v. Roque,
¶ 14 The examples listed in § 36-601.01(A)(9) are not mutually exclusive. For example, “shopping malls” often contain “retail stores,” “restaurants,” “sports facilities,” “bars,” and “theaters.” “[Rjestaurants” often sell alcohol and have “bars” within the premises. “[Ejntertainment facilities” can also be “sports facilities” or “theaters.” “[Ajirports,” “banks,” “educational facilities,” and “‘health care facilities” commonly have “reception areas” and “waiting rooms.” A “retail food production and marketing establishment” may also be a “retail store,” “restaurant,” or “bar.”
¶ 15 The Department’s argument, by placing undue emphasis on “retail store,” also casts aside the structure of the Act. The cornerstone of the Act provides that “[sjmok-ing is prohibited in all public places and places of employment.” A.R.S. § 36-601.01(B) (emphasis added). Because the phrase “retail stores” is found only in the illustrative list of “public places” and not in the definition of “places of employment,” the Department’s argument inappropriately whittles away the retail tobacco store exception. The overarching prohibition against smoking applies equally to public places and places of employment. By its emphasis on the phrase “retail store,” the Department would have the retail tobacco store exception
CONCLUSION
¶ 16 The trial court erred by holding that Magnum’s was not entitled to the benefit of the retail tobacco store exception to the Smoke-Free Arizona Act because it sells alcohol for consumption on and off the premises. We reverse and remand for further proceedings consistent with this opinion. To avail itself of the retail tobacco store exception, Magnum’s must prove on remand (1) that it derives the majority of its sales from tobacco products and accessories and (2) that Magnum’s premises are physically separated from other premises so that smoke does not infiltrate into areas where smoking is prohibited. A.R.S. § 36-601.01(A)(10), (B)(3).
¶ 17 Finally, Magnum’s has requested an award of attorneys’ fees on appeal, based on A.R.S. § 12-348 (2003). We agree with the Department, however, that an award of fees under this statute would be premature at this juncture because Magnum’s has not prevailed on the merits. See 4501 Northpoint LP v. Maricopa County,
Notes
. As we understand it, our specially concurring colleague believes there should be an additional factual determination on remand: is Magnum’s a "retail store"? We respectfully disagree. See discussion supra ¶ 9.
Concurrence Opinion
concurring specially.
¶ 18 I agree this matter needs to be remanded but have a somewhat different analytical framework than that set forth in the majority analysis. My view gives a meaning to the term “retail store” in A.R.S. § 36-601.01(A)(10) that differs from Magnum’s and the majority’s. It may produce a different result on remand and in future cases decided under this Act.
A.
¶ 19 Like the majority, I agree that simply because Magnum’s has and uses a series 6 liquor license (permitting it to sell liquor for consumption on premises) does not disqualify it from being a “retail tobacco store,” to which the exemption under A.R.S. § 36-601.01(B)(3) applies. I also agree that simply because the Act includes the terms “bar” and “restaurant” in a nonexclusive listing of “public plaee[s]” does not mean that a “bar” may not qualify for the exemption. A.R.S. § 36-601.01(A)(9). The majority and I differ with regard to the construction of the term “retail store” as set forth in the exemption itself. A.R.S. § 36-601.01(A)(10) (“ ‘Retail tobacco store’ means a retail store that derives the majority of its sales from tobacco products and accessories.”) (emphasis added).
¶ 20 As I understand the majority’s analysis, Magnum’s may qualify for the exemption because whether or not it is acting as a “bar,” Magnum’s is still a “retail store.” Supra ¶¶ 9-10. A “bar” is just a subspecies, per Magnum’s and the majority’s analysis, of a “retail store.” Supra ¶ 10. Thus, under that analysis, Magnum’s may qualify for the exemption so long as more than fifty percent of its sales are from tobacco products or accessories, whether or not it is a “bar.”
¶ 22 Merriam-Webster defines a “store” as a “business establishment where usu[ally] diversified goods are kept for retail - sale < grocery store > .” Merriam-Webster’s Collegiate Dictionary 1156 (10th ed.2001). “Restaurant” is defined as a “business establishment where meals or refreshments may be purchased.” Id. at 995. A “bar” is defined as “a counter at which food or especially] alcoholic beverages are served.” Id. at 91. From my perspective, the difference between a “retail store” and a “bar,” “restaurant,” or “theater” is that with the latter three there is an expectation that the goods purchased are primarily intended to be consumed on the premises. With a “retail store,” the expectation is that the goods purchased are for consumption off the premises.
¶ 23 The case of McDonald’s Corp. v. Glennon,
¶ 24 The court in McDonald’s essentially adopted the rationale of Magnum’s here. It stated:
In comparing the definitions of store and restaurant, we note that both are business establishments where goods and wares are sold. As we see it, store is a much broader definition and applies to all such retail businesses generally, while restaurant is simply a narrower division and is a store where only prepared food and refreshments are sold.
Id. The court then went on to state, however, that “[w]e would readily concede that the hypothetical reasonable man would probably not associate a restaurant such as Antoine’s as being a store, but it too has as its main purpose selling prepared food.” Id. An-tome’s, although apparently known well enough in the New Orleans jurisdiction in which this Louisiana court was sitting for the court to essentially take judicial notice of it, is a “world-renowned” restaurant established in 1840 that has served notables such as General Patton, President Roosevelt, and Pope John Paul II during its history. Antoine’s Restaurant, http://www.antoines.com (last visited Sept. 16, 2008).
¶ 25 In construing statutes, we are bound to give terms their ordinary, reasonable usage. Dowling v. Stapley,
¶ 26 Further, even if we consider the term “retail store” to be ambiguous and potentially inclusive of a “bar” or a “restaurant,” we are to construe that term in a fashion that is consistent with the primary purpose of the Act. State v. Gomez,
B.
¶ 27 Having concluded that a “bar” is not a “retail store” for purposes of the Act, I do not accept the Department’s conclusion that the presence of a “bar” in what would otherwise be a “retail store” necessarily disqualifies an establishment from being a “retail store.” Many business establishments that are undeniably retail stores (Target, Wal-Mart, Bashas’, Albertsons) also contain a use which, standing alone, would not be considered a “retail store.” For instance, a retail store may have a food court where meals are served. There is no question that, that portion of the store functions as a “restaurant.” However, the primary purpose of such stores is to provide goods and commodities for sale to customers to use off-site, not to provide a location to sit down, eat breakfast or lunch, and consume food prepared on the premises.
¶ 28 In this regard our recent decision in Tucson Botanical Gardens, Inc. v. Pima County,
¶ 29 The principle set forth in Tucson Botanical Gardens applies here. So long as the “principal or primary use” of Magnum’s premise is as a “retail store,” it satisfies that portion of the exemption set forth in subsection (A)(10). It does not matter what the remaining use is (whether a “bar,” “restaurant” or otherwise) so long as the use is “occasional or incidental” to the purpose of being a “retail store.”
€.
¶ 30 On the record before us, I agree that a remand is required, as the trial judge determined that Magnum’s use of a portion of the premise as a “bar” disqualified it as a “retail tobacco store.” That holding was in error. However, the issue of whether the primary purpose of the premise was a “bar” or a “retail store,” has not been taken up by the superior court. Thus, the matter must be remanded to consider this issue in addition to the two issues identified by the majority. Supra ¶ 16. In order to qualify for the exemption, a determination must be made that Magnum’s (or any entity seeking to so qualify) is a “retail store that derives the majority of its sales from tobacco products and accessories.” A.R.S. § 36-601.01(A)(10) (emphasis added).