E.T.O., Inc. v. Town of Marion

361 N.W.2d 91, 1985 Minn. App. LEXIS 3747
CourtCourt of Appeals of Minnesota
DecidedJanuary 15, 1985
DocketNo. C5-84-1234
StatusPublished

This text of 361 N.W.2d 91 (E.T.O., Inc. v. Town of Marion) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
E.T.O., Inc. v. Town of Marion, 361 N.W.2d 91, 1985 Minn. App. LEXIS 3747 (Mich. Ct. App. 1985).

Opinions

OPINION

NIERENGARTEN, Judge.

Appellants Wendell Kuehn and Mary Blomgren appeal from a judgment and writ of mandamus of the trial court. The court held that respondent Marion Town Board’s rejection of the application of respondent E.T.O., Inc., d.b.a. “Fergie’s Bar” for renewal of an on-sale intoxicating liquor license was void and without legal effect. The trial court also required the Town Board of Marion to meet and reconsider Fergie’s application but prohibiting appellant Wendell Kuehn, as a member of the Town Board, from voting on the application. We reverse and remand.

FACTS

Respondent E.T.O., Inc. owns and operates “Fergie’s Bar” in Marion Township, Olmsted County. In July 1982, Fergie’s Bar was issued an on-sale intoxicating liquor license by the Olmsted County Board of Commissioners, even though the license application had not been first submitted to and approved by the Marion Town Board, as required by Minn.Stat. § 340.11, subd. 10(2) (1982) (reprinted infra n. 1). The license was evidently issued pursuant to a prior commitment made by the County board conditioned upon Fergie’s remodeling its business to comply with County building and plumbing codes. On December 21, 1982, the license was renewed by the Olmsted County Board after it had been approved by the Marion Town Board. At these meetings of the Marion Town Board and the Olmsted County Board of Commissioners, appellant Kuehn claimed that his 53 acres across the county road from Fergie’s Bar had been devalued by $100,000 because of the presence of Fer-gie’s Bar, and, therefore, the application should be rejected.

On March 8, 1983, Kuehn was elected to a three-year term on the Marion Town Board after campaigning on his opposition to Fergie’s Bar. Following Kuehn’s election, two landowners in the vicinity of Fer-gie’s Bar petitioned the Marion Town Board to reduce the assessed market value of their properties based upon the opening of Fergie’s Bar. The board, including Kuehn, agreed to a 20% reduction. Kuehn then went before the board and asked to have his total property valuation reduced because of his land’s proximity to Fergie’s Bar. The other two members of the board agreed to a 20% reduction of two lots.

In September 1983, the Burr Oak School building, which lies within 1,500 feet of Fergie’s Bar and was not in use as a public school at the time of the initial issuance of a liquor license to Fergies, was re-activated and put into use as the Rochester Area Vocational and Technical Institute (AVTI). The record does not disclose whether the AVTI is located within the limits of any municipality.

On November 9, 1983, Fergie’s Bar applied for renewal of its on-sale intoxicating liquor license for 1984. The Town Board rejected the application by a 2-1 vote on December 6, 1983, with Kuehn in the majority.

Fergie’s Bar then petitioned the Olmsted County District Court for a Writ of Mandamus directing the County Board to renew the on-sale intoxicating liquor license. The court issued an alternative Writ of Mandamus, directing the Town Board to take a new vote on the renewal application of Fergie’s Bar without the participation of Kuehn. Fergie’s Bar also requested and was granted a temporary injunction allowing the bar to remain open until a final decision was made on the issues before the court.

The Town Board then moved for summary judgment based upon Minn.Stat. § 340.-14, subd. 3(7) (1982), which provides that no intoxicating liquor license may be issued to [94]*94a location within 1,500 feet of a public school outside of a municipality. Fergie’s countered with a motion for summary judgment, claiming Kuehn, with his substantial financial stake in the outcome of the licensing decision, should have been precluded from participating in that decision. Their reasoning was a removal of Kuehn would leave a 1-1 vote on renewal which, in Fer-gie’s opinion, was presumptive support of the application because the board failed to adopt a resolution indicating its opposition. Conversely, the Board claims a 1-1 vote means no license because there must be a town board resolution indicating its support for the license grant. Minn.Stat. § 340.11, subd. 10(2) (1982) 1

The trial court denied the Board’s summary judgment motion on the grounds that all of Olmsted County was a municipality under Section 340.07, subd. 11 and the 1500 foot prohibition didn’t apply. The court subsequently held that Kuehn had such a self-interest in the outcome of the town vote on the license application so as to make the town action void and ordered the town board to reconsider Fergie’s application without Kuehn’s participation.

The Town Board’s motion to vacate the judgment was denied on June 15, 1984. The Board appeals.

ISSUES

For purposes of clarity and brevity, the issues will be identified as they are addressed in the opinion.

ANALYSIS

I

The first issue is raised by Fergie’s claim that the 1500 foot prohibition is of no effect because all of Olmsted County is a municipality under section 340.07, subd. 11, which defines a “municipality” as including “a county which is specifically authorized by law to issue an on-sale license.” This interpretation would allow the operation of on-sale intoxicating liquor establishments anywhere in Olmsted County without regard to their proximity to public schools. The statute must be read as a whole for “[sjtatutes relating to the same subject are presumed to be imbued with the same spirit and to have been passed with deliberation and full knowledge of all existing legislation on the subject and regarded by the lawmakers as being parts of a connected whole.” Kaljuste v. Hennepin County Sanitorium Commission, 240 Minn. 407, 414, 61 N.W.2d 757, 762 (1953). The legislature substantially recodified the Intoxicating Liquor Act in 1967 but continued section 340.14, subd. 3(7) restrictions regarding public schools. Although the definitions of municipality were changed, the changes obviously applied to the authority to issue licenses and related matters and without intent to void the protective sections regarding public schools. We therefore hold that the term “municipality” for the purposes of Minn.Stat. § 340.14, subd. 3(7) is a “city”, however organized.

The question of whether the AVTI is a public school is raised, not as a specific issue, but as ancillary to resolution of the main issue. The trial court made no findings on whether AVTI is a “public school” and whether it lies, within or outside a “city”. Such findings are necessary for determination of the issues presented here and the trial court may receive such additional evidence as is required to properly resolve these questions.

[95]*95II

The next issue is whether the statutory prohibition against the sale of intoxicating liquor within 1500 feet of a public school applies to an on-sale business licensed and in operation prior to the opening and operation of the school. There is no question that Fergie’s “pre-dated” the opening of AVTI and “post-dated” the 1967 enactment of § 340.14, subd. 3(9) (1982) which provides:

The restrictions imposed by this subdivision shall not apply to any manufacturer or wholesaler of intoxicating liquor or to a drug store or to any person lawfully licensed to sell intoxicating liquor immediately prior to the enactment of this subdivision.

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Bluebook (online)
361 N.W.2d 91, 1985 Minn. App. LEXIS 3747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eto-inc-v-town-of-marion-minnctapp-1985.