Fuller Central Park Properties v. City of Birmingham

296 N.W.2d 88, 97 Mich. App. 517, 1980 Mich. App. LEXIS 2681
CourtMichigan Court of Appeals
DecidedMay 19, 1980
DocketDocket 44179, 44227
StatusPublished
Cited by7 cases

This text of 296 N.W.2d 88 (Fuller Central Park Properties v. City of Birmingham) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuller Central Park Properties v. City of Birmingham, 296 N.W.2d 88, 97 Mich. App. 517, 1980 Mich. App. LEXIS 2681 (Mich. Ct. App. 1980).

Opinions

Beasley, J.

Plaintiffs, each seeking to compel municipal approval for issuance of a liquor license by the Michigan Liquor Control Commission (hereinafter referred to as MLCC) brought separate actions against defendants for orders of superintending control after defendants denied approval of their applications. Defendants counter-claimed in each action for a declaratory judgment determining that the city commission had no obligation to approve the maximum number of licenses authorized by law, even though qualified applicants were seeking licenses. The cases were consolidated and, after remand to defendant commission to supplement the record regarding reasons for denial, the two trial judges to whom the cases were assigned joined together in one opinion denying plaintiffs the relief they sought.

Summary judgments were granted defendants, denying relief on the complaints for superintend[521]*521ing control and granting declaratory judgments on the counter-claims, which hold that the statute does not require defendant city commission to approve the maximum number of licenses permitted under the statute. Plaintiffs now appeal as a matter of right.

In a referendum held on November 7, 1972, Birmingham voters approved the sale of liquor by the glass for consumption on the premises. Prior to the referendum, neither the legislative body (city commission) nor the electorate of the City of Birmingham had availed itself of the post-prohibition statutes which would have permitted sale of liquor by the glass for consumption on the premises within the city. On the contrary, both the city commission and the electorate had declined to take that legal step.

Under the quota provisions of MCL 436.19c; MSA 18.990(3), á total of 17 Class C liquor licenses are available for issuance in the City of Birmingham. Ten of the 17 available licenses have either been issued by the MLCC or approved by defendant city for issuance, 2 of the 10 such licenses being not currently operational.

Thus, there remain 7 licenses of the maximum of 17 still unissued and available. Each plaintiff-appellant has applied for one of the 7 unissued Class C licenses. For purposes of this appeal, no question has been raised as to the qualifications of each individual plaintiff as a licensee, nor with respect to the sites proposed for their respective establishments; that is, they are in locations which would meet defendant city’s code requirements regarding use.

Prior to the 1972 referendum, on October 23, 1972, defendant city adopted a resolution setting forth its policy regarding liquor licenses, if the [522]*522referendum would pass.1 Subsequently, on October 30, 1978, defendant city adopted a further resolution indicating that it had decided, after review, that the best interest of the City of Birmingham and its citizens would be to decline the issuance of any further liquor licenses at that time.2 It is the [523]*523October 30, 1978, resolution that gives rise to the within litigation.

Plaintiffs first argue that the Birmingham City Commission does not have the power to limit the number of liquor licenses which will be issued below the maximum number allowed by statute. Plaintiffs reason that the Legislature has preempted this field of regulation. We do not agree.

The Michigan Constitution provides that municipalities have the power to adopt resolutions and ordinances relating to their municipal concerns "subject to the constitution and law”.3 A municipality is precluded from enacting an ordinance (or adopting a resolution) if (1) it is in direct conflict with a state statutory scheme or (2) if the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, even where there is no direct conflict between the two schemes of regulation.4

Initially, we conclude that there is no direct conflict between the Birmingham resolution and the Michigan Liquor Control Act.5

The pertinent section of the act, which plaintiffs allege is in direct conflict with defendant commission’s resolution, is as follows:

"(1) A public license shall not be granted for the sale of alcoholic liquor for consumption on the premises in [524]*524excess of 1 license for each 1,500 of population or major fraction thereof.”6

Plaintiffs reason that this statute provides, as applied to the City of Birmingham, that 17 liquor licenses must be issued. Plaintiffs argue that since there were seven licenses still unissued and available at the time defendant passed its resolution refusing to grant any more licenses, that resolution was in direct conflict with the statute.

If we were to adopt plaintiffs’ reasoning, we would have to find that MCL 436.19c; MSA 18.990(3) places a minimum as well as a maximum limit on the number of liquor licenses which can issue in each municipality. This we decline to do.

The primary rule of statutory construction is that the Legislature is presumed to have intended the plain meaning of the words used by it.7 In interpreting statutes, all words and phrases should be construed according to the common and approved usage of the language.8 Correct and proper interpretation means giving effect to every word of the statute. Every effort must be made to avoid declaring any portion of the Legislature’s language to be surplusage.9 The definition for the phrase "in excess of’ in Webster’s New Collegiate Dictionary (2nd College Edition, 1974) is "more than”.

If we accepted plaintiffs’ argument that this statute places both a ceiling on and a floor under the number of liquor licenses to be issued in each community, it would result in a finding that "not” [525]*525and "in excess of’ are pure surplusage. Clearly, this was not the intent of the Legislature.10

Accordingly, we conclude that the Birmingham commission’s resolution, which in effect limits the number of Class C liquor licenses, is not in direct conflict with the Michigan Liquor Control Act.

The question then becomes whether the state statute has pre-empted the city’s ordinance by occupying the field of regulation which the municipality seeks to enter.11 To determine if pre-emption has occurred, we must look at four factors.

First, if the state law expressly provides that the state’s power to regulate in a specific area is exclusive, a municipal regulation is pre-empted. Second, pre-emption may be implied from the legislative history of the statute. Third, the pervasiveness of the state statutory scheme may indicate pre-emption. Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve uniformity.12

Applying these four factors to the case at hand, we find that the state has not pre-empted the field of regulation which the City of Birmingham seeks to regulate.

First, we find that the Legislature has not expressly provided that the state’s power to regulate in this area is exclusive. MCL 436.1; MSA 18.971 provides, in part, as follows:

“Except as by this act otherwise provided,

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Fuller Central Park Properties v. City of Birmingham
296 N.W.2d 88 (Michigan Court of Appeals, 1980)

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Bluebook (online)
296 N.W.2d 88, 97 Mich. App. 517, 1980 Mich. App. LEXIS 2681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-central-park-properties-v-city-of-birmingham-michctapp-1980.