Olde Nawlins Cookery, L.L.C. VS Daniel Edwards, Sheriff of Tangipahoa Parish and Tangipahoa Parish Council
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1189 OLDE NAWLINS COOKERY L C VERSUS ANIEL EDWARDS SHERIFF OF TANGIPAHOA PARISH TANGIPAHOA PARISH COUNCIL DATE OF JUDGMENT J MAY 3 2010 ON APPEAL FROM THE TWENTY FIRST JUDICIAL DISTRICT COURT NUMBER 2008 0003400 PARISH OF TANGIPAHOA STATE OF LOUISIANA HONORABLE BRENDA BEDSOLE RICKS JUDGE Thomas J Hogan Jr Hammond Louisiana Duncan S Kemp III Hammond Louisiana Counsel for PlaintiffAppellant Olde Nawlins Cookery L C Counsel for Defendant Appellee Tangipahoa Parish Council President Government Ashley E Sandage Counsel for Defendant Appellee Shaan M Aucoin Daniel Edwards Sheriff Hammond Louisiana James D Buddy Caldwell Attorney General Erin C Day Assistant Attorney General Baton Rouge Louisiana Counsel for State of Louisiana BEFORE PARRO KUHN AND McDONALD JJ Disposition AFFIRMED IN PART KUHN J Plaintiff appellant Olde Nawlins Cookery L appeals the district court C s judgment denying its requests for a writ of mandamus directed to defendants appellees Sheriff Daniel Edwards the Sheriff and the Tangipahoa Parish Council President Government the Council to issue a retail alcoholic beverage permit and for declaratory relief seeking a declaration that Tangipahoa Parish Ordinance Number 0739 the Ordinance is unlawful unconstitutional and therefore unenforceable For the following reasons the judgment is affirmed in part FACTUAL AND PROCEDURAL BACKGROUND The parties stipulated to the following relevant facts Plaintiff is the owner and operator of a restaurant located at 16014 Halbert Lane in Hammond Louisiana Plaintiff applied for and was granted an alcoholic beverage permit by the State of Louisiana Office of Alcoholic Beverage Control on April 30 2008 Plaintiff renewed the state issued alcoholic beverage permit on September 1 2008 Plaintiff subsequently submitted an application for a retail alcoholic beverage permit to the Sheriff who referred its application to the Council Plaintiff application was on s the agenda for the October 14 2008 Council meeting The Council disapproved the application based upon a purported ordinance which requires approval of adjacent landowners where the premises to be licensed are located in a residential area The location of plaintiff premises is in a mixeduse neighborhood s s Plaintiff establishment is not the only commercial activity in this neighborhood The area in question is not 100 percent residential Halbert Lane is a private road Plaintiff subsequently filed this petition on October 24 2008 seeking a writ of mandamus directing the Sheriff and the Council to issue the retail alcoholic 2 beverage permit Plaintiff also requested a declaratory judgment declaring the Ordinance unlawful unconstitutional and therefore unenforceable Both the Sheriff and the Council answered the lawsuit generally denying the allegations and plaintiffs entitlement to relief A hearing was held at which stipulations of fact and evidence were admitted There was no testimonial evidence or argument adduced at the hearing The district court subsequently issued written reasons for judgment outlining the bases for its decision and on February 27 2009 signed a judgment denying both the requested writ of mandamus and declaratory relief Plaintiff appeals asserting the district court erred DISCUSSION The decisions of local authorities in withholding retail alcoholic beverage permits are final and binding on all parties unless appealed in the manner provided by the Alcoholic Beverage Control Law and reversed by the courts See La R S 105 26 and 302 Although plaintiff styled its petition as a request for a writ of mandamus and for declaratory relief it is actually challenging the decision of the Council denying its application for a retail alcoholic beverage permit To timely perfect an appeal of the district court judgment appellant must file its appeal with this court within ten calendar days of the date of the judgment See La R S 106B 26 and 303B Although the district court signed its judgment denying both the alternative writ of mandamus and declaratory relief on February 27 2009 plaintiff did not file this appeal until March 23 2009 well after the tenday delay necessary to perfect its appeal Thus that portion of the judgment denying the alternative writ of 3 mandamus which is actually a request for a review of the Council withholding of s a retail alcoholic beverage permit to plaintiff is not properly before us See Dempsey v Town ofCheneyville 2003 1153 p 3 La App 3d Cir 2 866 04 4 2d So 355 357 Turning now to that portion of the district court judgment denying plaintiff s declaratory relief we note that La C art 1871 authorizes the judicial P declaration of rights status and other legal relations whether or not further relief is or could be claimed stating that the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate Article 1872 designates who can bring such an action whose rights status or other legal relations are A person affected by a statute municipal ordinance contract or franchise may have determined any question of construction or validity arising under the statute ordinance contract or franchise and obtain a declaration of rights status or other legal relations thereunder Thus we find that a review of plaintiff entitlement to a declaration that the s Ordinance is unlawful unconstitutional and therefore unenforceable is properly before us A declaratory judgment is one which simply establishes the rights of the parties or expresses the opinion of the court on a question of law without ordering anything to be done and its distinctive characteristic is that the declaration stands by itself with no executory process following as a matter of course so that it is distinguished from a direct action in that it does not seek execution or performance from the defendant or the opposing litigants Billingsley v City of Baton Rouge 95 2162 pp 45 La App 1st Cir 4 673 So 300 302 writ denied 96 96 30 2d 1490 La 9 679 So 439 Appellate courts review a district court 96 20 2d s 4 decision to grant or deny a declaratory judgment using the abuse of discretion standard Mai v Floyd 20052301 p 4 La App Ist Cir 12 951 So 244 06 6 2d 245 writ denied 2007 0581 La 5 956 So 619 07 4 2d Ordinance 0739 states in relevant part b Any facility bar tavern lounge etc selling alcoholic beverages in a residential area in open containers for consumption on premises within five hundred feet 500 of any adjacent property shall have written notarized consent of adjacent property owners If said facility does not meet the requirements of this ordinance permit will be prohibited This excludes convenience stores or any facility selling packaged liquor which will not be consumed on premises This does not apply to any facility that is already permitted The written notarized consent of adjacent property owners shall be submitted to the Sheriff Office for Beer Wine Liquor Permit s c Plaintiff points out that residential area as used in the Ordinance is not defined Plaintiffs petition averred that the Ordinance is vague and in its district court memorandum and brief to this court complains that the Ordinance fails to explain how to determine within five hundred feet 500 of any adjacent property Thus plaintiff seeks a declaration that the Ordinance is vague and therefore unenforceable The statutory interpretation and jurisprudential rules for statutory apply equally as well to ordinances rules construction and and regulations LaMartina v Louisiana Patient Compensation Fund 20072281 p 8 n La s 5 App 1st Cir 7 993 So 249 253 n 08 21 2d 5 The starting point for the interpretation of any statute is the language of the statute itself Id 2007 2281 at p 7 993 So at 253 When a law is clear and unambiguous and its application does 2d not lead to absurd consequences the law shall be applied as written and no further interpretation may be made in search of the intent ofthe legislature La C art 9 5 The words of a law must be given their generally prevailing meaning La C art 11 The proper interpretation of an ordinance is a question of law reviewed under the de novo standard of review See Holly Smith Architects Inc v St Helena Congregate Facility Inc 2006 0582 p 9 La 11 943 So 1037 1045 06 29 2d The parties stipulation that plaintiffs premises are located in a mixeduse area concedes that the area includes some residential use According to WEBSTER S NEW INTERNATIONAL DICTIONARY 1930 3d ed 1993 residential is defined as used served or designed as a residence or for occupation by residents The s Council construction of the Ordinance to include the mixeduse area as a residential area is a common sense one that is reasonable Likewise under the generally prevailing meaning of the words the phrase within five hundred feet 500 of any adjacent property is readily ascertainable under a common sense interpretation of the words Clearly the Ordinance applies to property that is adjacent to that of the applicant and within 500 feet of the facility Contrast Summerell v Phillips 282 So 450 453 La 1973 an ordinance that gave full 2d discretion to a zoning authority to vary the classifications in the special district there set up but provided no criteria for the exercise ofthat power held unconstitutional Because an application of the generally prevailing meaning of the words of the Ordinance is clear and unambiguous and does not lead to absurd consequences the district court conclusion that plaintiff was not entitled to a declaration that the s Ordinance is unlawful due to vagueness is correct Accordingly the district court did not abuse its discretion in denying the request for declaratory relief on this basis Plaintiff also contends entitlement to a declaration that the Ordinance is unconstitutional alleging that because the Council has not enacted a parish wide 6 zoning ordinance as it is permitted to do under La Const Art VI unenforceable La Const Art VI 17 it is 17 states Subject to uniform procedures established by law a local governmental subdivision may 1 adopt regulations for land use zoning and historic preservation which authority is declared to be a public purpose 2 create commissions and districts to implement those regulations 3 review decisions of any such commission and 4 adopt standards for use construction demolition and modification of areas and structures Existing constitutional authority for historic preservation commissions is retained This constitutional provision employs the term may and thus is permissive See La R 1 S 3 As such it does not mandate that a parish enact a scheme of zoning regulations Moreover we can find nothing in the Ordinance that is in conflict with the provisions of either La Const Art VI 17 or La R 33 S 4780 40 et seq Cf Rogoz v Tangipahoa Parish Council 2008 2789 p 5 La 1 21 09 30 So3d 923 925 holding that the failure of applicant denied a retail alcohol beverage permit under the Ordinance to identify a particular constitutional provision that the Ordinance violated required the district court declaration of the unconstitutionality s of the Ordinance to be vacated According to the Home Rule Charter for the Council Article 1 Section 1 05 provides The Parish government shall have the right power and authority to pass all ordinances requisite or necessary to promote protect and preserve the general welfare safety health peace and good order of Although the attorney general was not served a copy of the petition challenging the constitutionality of the ordinance as required by La C art 1880 this court notified him of P the proceeding and afforded him the opportunity to be heard See La R 13 S 4448 2 See La R 33 authorizing certain parishes to regulate and restrict the height S 4780 40 number of stories and size of structures the percentage of lots that may be occupied courts and other open spaces the density of population and the location and use of the buildings structures and land for trade industry residence or other purposes which is also a permissive rather than a mandatory provision allowing a parish to enact a scheme of zoning regulations 3 See La Const Art VI 5 7 the Parish including but not by way of limitation the right power and authority to pass ordinances on all subject matters necessary requisite or proper for the management of Parish affairs and all other subject matter without exception subject only to the limitation that the same shall not be inconsistent with the Louisiana Constitution of 1974 or expressly denied by the general law applicable to the Parish Thus the Council derives its authority to enact the Ordinance from the provisions of its Home Rule Charter a basis plaintiff has not challenged as an unconstitutional exercise of its police power Accordingly having failed to assert a basis to support a declaration that the Ordinance is unconstitutional we find no abuse of discretion by the district court in its denial of a declaratory judgment on this basis DECREE That portion of the judgment denying the writ ofmandamus which is actually a request for a review of the Council withholding of a retail alcoholic beverage s permit to plaintiff was not timely appealed and thus is not properly before us That portion of the district court judgment which addressed plaintiff request for s declaratory relief is affirmed Appeal costs are assessed against plaintiff appellant Olde Nawlins Cookery L C AFFIRMED IN PART 8
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