Hi-Lo Oil Company v. City of Crowley

274 So. 2d 757
CourtLouisiana Court of Appeal
DecidedMay 24, 1973
Docket4085
StatusPublished
Cited by26 cases

This text of 274 So. 2d 757 (Hi-Lo Oil Company v. City of Crowley) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hi-Lo Oil Company v. City of Crowley, 274 So. 2d 757 (La. Ct. App. 1973).

Opinion

274 So.2d 757 (1973)

HI-LO OIL COMPANY et al., Plaintiffs-Appellants,
v.
CITY OF CROWLEY, Louisiana, et al., Defendants-Appellees.

No. 4085.

Court of Appeal of Louisiana, Third Circuit.

March 12, 1973.
Rehearing Denied April 2, 1973.
Writ Refused May 24, 1973.

*758 Davidson, Meaux, Onebane & Donohoe, by Robert L. Cabes, Lafayette, for defendants-appellants.

Joseph S. Gueno, Jr., Crowley, for plaintiffs-appellees.

Pugh, Buatt, Landry & Pugh, by Lawrence G. Pugh, Jr., Crowley, for defendants-appellees.

Before FRUGE, HOOD and DOMENGEAUX, JJ.

HOOD, Judge.

This is an action for a declaratory judgment instituted by Hi-Lo Oil Company, Phil-A-Sak, Inc., and Shop-Rite, Inc., against City of Crowley, Louisiana. Plaintiffs seek a judgment decreeing Ordinance No. 922 of the City of Crowley to be unconstitutional. Judgment was rendered by the trial court in favor of defendant, City of Crowley, declaring the ordinance to be constitutional, *759 both on its face and in its application to the petitioners. Plaintiffs appealed.

This case was consolidated for trial and appeal with two other related cases, both of which are injunction suits instituted by the City of Crowley. In each of those cases the city sought a judgment prohibiting the defendant from violating the provisions of Ordinance No. 922, and in each suit the trial court rendered judgment in favor of the City of Crowley, granting the city the injunctive relief which it sought. The defendant in each such suit appealed. City of Crowley, Louisiana, v. Pic-A-Pak Grocery Corporation, La.App., 274 So.2d 767; and City of Crowley, Louisiana v. Shop-Rite, Inc., La.App., 274 So.2d 768.

The central issue presented in these consolidated cases is whether Ordinance No. 922 of the City of Crowley is unconstitutional, in that it allegedly constitutes an unreasonable, unnecessary and unconstitutional exercise of the police power vested in the city.

The evidence shows that on December 11, 1967, the City of Crowley issued a building permit to Marbane Construction Company for the construction of "self-service gas pumps" at a grocery store in Crowley operated by Phil-A-Sak, Inc. On January 30, 1968, two other permits were issued by the City of Crowley to Hi-Lo Oil Company for the construction of self-service gas pumps at two grocery store locations of Shop-Rite, Inc., in the City of Crowley. In due course the parties involved constructed self-service gas pumps at the above mentioned locations, at a total cost of approximately $20,000.00.

These self-service gasoline pumps, and the equipment incidental thereto, were owned by Hi-Lo Oil Company, and they were installed and operated under lease agreements between Hi-Lo Oil Company and the other two plaintiffs. In each case the lease contract provided that it would become void and of no force and effect if the operation of remote control gasoline dispensing devices should thereafter be prohibited or if the necessary permits should be refused.

At the time Hi-Lo Oil Company installed the above mentioned gasoline pumps, there existed no law or ordinance of the City of Crowley relating to the operation of self-service gas pumps. On May 14, 1968, however, the Board of Aldermen of the City of Crowley enacted Ordinance No. 882, which adopted by reference the "Fire Prevention Code, Abbreviated Edition, 1965," which was recommended by the American Insurance Association. A printed copy of that code is in the record. There is a dispute between plaintiffs and defendant as to whether the city, in adopting the Fire Prevention Code, intended to adopt a 1966 amendment to Section 78 of that code which relates to the dispensing of gasoline, and because of that dispute a question is presented as to whether the code at that time authorized or prohibited the dispensing of gasoline by persons other than by service station attendants. In any event, plaintiffs continued to sell gasoline through their self-service gasoline pumps, allowing customers to operate the pumps, for several months after that ordinance was adopted.

The operation of these self-service stations continued without incident until August 28, 1968, when a customer, Robert Stakes, was injured at one of the Shop-Rite self-service locations. Mr. Stakes was dispensing gas into his own automobile at that location, while smoking a cigarette, and a flash fire occurred. The fire caused Stakes to sustain burns on his head, eyes, cheek and neck, for which he was hospitalized and treated for a brief period of time. No property damage resulted from this blaze, and apparently no claim was made against the self-service station insurers, although the medical bills incurred by Mr. Stakes were paid by an unnamed insurance company.

After this incident occurred, Mr. J. Wesley Andrus, Fire Chief of the City of Crowley, recommended to the Board of Aldermen *760 that self-service gasoline pumps be prohibited in the city. The Board of Aldermen of the City of Crowley thereupon adopted Ordinance No. 888 on September 10, 1968, which amended Section 78(d) of the Fire Prevention Code relating to the dispensing of gasoline. The purpose of Ordinance No. 888 obviously was to prohibit the dispensing of gasoline into the fuel tank of a vehicle, or into a container, by anyone other than a competent attendant. That ordinance contained another conflicting provision, however, and it was decreed to be unconstitutionally vague by judgment of the City Court of Crowley, rendered on January 18, 1971.

On February 9, 1971, the Board of Aldermen of the City of Crowley adopted Ordinance No. 922, which was designed to overcome the deficiencies of Ordinance No. 888. The pertinent provisions of Ordinance No. 922 read as follows:

"d. Delivery Nozzles.
"(1) Hose nozzle valves for dispensing Class I liquids, including gasoline, into a fuel tank or into a container shall be manually held open during the dispensing operation except as provided in section 78d(2).
"(2) On any service station dispenser accessible to the public an approved automatic closing type nozzle with latch-open device shall be permitted only when all dispensing of Class I liquids is to be done by the service station attendant.
"(3) Class I liquids, including gasoline, shall be dispensed only by a competent attendant, either the owner or an employee of the business establishment dispensing such liquid, which attendant shall operate both the dispensing unit and the delivery nozzle.
"e. Special Type Dispensers.
"The installation or use of special dispensing devices such as, but not limited to, coin operated, card operated and remote preset types, for the dispensing of Class I liquids and, particularly, gasoline, which is here defined as a Class I liquid, are prohibited, within the corporate limits of the City of Crowley, unless a competent attendant, either the owner or an employee of the business establishment dispensing such liquid, does and performs the dispensing of such liquid." (Emphasis added).

All parties apparently agree that this ordinance, if found to be constitutional, prohibits the dispensing of gasoline by anyone other than the owner or an employee of the business establishment where the liquid is sold.

The instant suit was instituted on March 17, 1971, and the two companion suits were instituted on March 19, 1971. We have already noted that in each suit judgment was rendered in favor of the City of Crowley, upholding the constitutionality of Ordinance No.

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