Liller v. Louisiana Board of Alcoholic Beverage Control

59 So. 2d 222, 1952 La. App. LEXIS 614
CourtLouisiana Court of Appeal
DecidedMay 26, 1952
DocketNo. 19952
StatusPublished
Cited by8 cases

This text of 59 So. 2d 222 (Liller v. Louisiana Board of Alcoholic Beverage Control) 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
Liller v. Louisiana Board of Alcoholic Beverage Control, 59 So. 2d 222, 1952 La. App. LEXIS 614 (La. Ct. App. 1952).

Opinion

McBRIDE, Judge.

The plaintiffs, Carl Liller and Barney H. Smith, lessees of the premises 3340 Canal Street, are partners in a venture, the obj ect of which is to establish and operate on the premises a business euphemistically known as a cocktail lounge, a place where liquor is sold at retail to patrons of the establishment and consumed by them on the premises.

The Louisiana Board of Alcoholic Beverage Control, which is the defendant, granted Liller and Smith a temporary or probationary permit for the last half of the year 1951, permitting them to operate said business on the premises. The licensees applied to the Board for a 1952 permit; before the probationary period had expired, and before the issuance of the 1952 permit, a Reverend Peyton, pastor of the Sacred Heart Church, located at 139 South Lopez Street, lodged a formal protest with the Board against the issuance of the 1952 permit, on the ground that the issuance of a permit for the operation of a cocktail lounge at 3340 Canal Street would be violative of Ordinance No. 16,221, C.C.S., of the City of New Orleans, in that the said premises faces a dedicated municipal playground.

Following a formal hearing on Reverend Peyton’s pretest, the Board concluded that the operation of the contemplated business ■by plaintiff at said location would violate the provisions of the city ordinance relied upon by the protestant, and the 1952 permit was accordingly denied plaintiffs.

This litigation originated in the Civil District Court for the Parish of Orleans, on the appeal of Liller and Smith from the decision of the Board. In their petition, they pray for judgment in their favor reversing the holding of the Board and ordering the issuance of the permit. The plaintiffs further pray that certain sections of the Alcoholic Beverage Control Law, LSA-R.S. 26:1 et seq., be declared unconstitutional, and that they be granted'certain in-junctive relief. The City of New Orleans intervened and joined with the Board in defending the suit; the Mothers’ Club of Sacred Heart School appeared as amicus curiae.

After a trial ‘below, there was judgment decreeing that the order of the Louisiana Board of Alcoholic Beverage Control, dated December 20, 1951, denying the applications of Carl Liller and Barney H. Smith for class “A” retail liquor permits for the years 1951 and 1952, to sell alcoholic beverages at retail on the premises 3340 Canal Street, be annulled and reversed, and the Board was commanded to issue immediately to the plaintiffs a class “A” retail liquor permit for the year 1952. The Board and the City of New Orleans have appealed suspensively from the judgment.

In the course of his reasons for judgment, the trial judge held that certain provisions of the Alcoholic Beverage Control Law, denying or limiting the right of the district courts to enjoin the actions of the Board, are violative of Art. 1, § 2 and § 6, and Art. VII, § 2, of the Constitution of Louisiana. However, as no injunction was issued by the trial court, and the judgment merely adjudicates the right of plaintiffs to a retail liquor permit for the year 1952, there is no need of our making any further allusion to the remarks of the trial judge in his written reasons pertaining to the unconstitutionality of those provisions of the Alcoholic Beverage Control Law dealing with the right of the court to issue injunctive process against the Board. We are concerned only with the question of the issuance vel non of a permit to the plaintiffs.

To a full understanding of the issues of the case, the locus in quo should be described. Canal Street, a boulevard running from the Mississippi River towards the lake, is intersected at right angles by what was originally known as Hagan Avenue (since 1927 designated as Jefferson Davis Memorial Parkway). There is a neutral ground in the center of Canal Street, upon which are located trolley car tracks, and this neutral ground separates two paved lanes upon which travels vehicular traffic Jefferson Davis Memorial Parkway is a [224]*224thoroughfare, probably the widest in New Orleans, which crosses Canal Street and runs in an uptown-downtown direction, in the center of which is a neutral ground of considerable width. That portion of Jefferson Davis Memorial Parkway running downtown from Canal Street is known as North Jefferson Davis Memorial Parkway, while that portion thereof which runs from Canal Street towards uptown is known as South Jefferson Davis Memorial Parkway.

In the year 1923, by Ordinance No.7383, C.'C.S., the Commission Council of the City of New Orleans dedicated the neutral ground on then North Plagan Avenue (now North Jefferson Davis Memorial Parkway), between Canal and Conti Streets, for public playground purposes. The neutral ground on South Jefferson Davis Memorial Parkway from Canal Street toward uptown has never been so dedicated.

The premises 3340 Canal Street occupy the uptown-river corner of the intersection formed by Canal Street and South Jefferson Davis Memorial Parkway. A drugstore was formerly operated at the location, and the intention of the plaintiffs is to convert the property into a cocktail lounge. The front door of the premises during its days as a drugstore was on a diagonal line at the corner, but the plans of conversion to a cocktail lounge contemplate the removal of the front door from, its diagonal position to a place on Canal Street about five feet from the corner. It will be seen, therefore, the property has a side 'line on South Jefferson Davis Memorial Parkway, and that the front of the building on Canal Street is directly opposite the downtown-river corner of the intersection.

Section 1 of Ordinance No-. 16,221, C.C. S., adopted by the ‘Commission Council of the City of New Orleans on May 9, 1945, as amended by Ordinance No. 16,425, C.C.S., adopted March 25, 1946, provides:

“Section 1. Be it ordained by the commission council of the City of New Orleans, That in all those portions of the City of New Orleans, not already the subject of regulations for the sale and distribution of intoxicating liquors and alcoholic beverages, by the provisions of Ordinances Nos. 14,-464 C.C.S., approved September 30, 1936 and 15,314 C.C.S., approved June 2, 1941 from and after the passage of this Ordinance, it shall be unlawful for any person, firm, corporation or association of persons, to set up or establish in any portion of the 'City of New Orleans, not already the subject of regulation by provisions of the aforesaid ordinances, any bar, barroom, night club, dance hall, beer house, music hall or theatre, court yard, cabaret, restaurant, wine house, dub house, store, resort, or other similar place, either public or private, where intoxicating liquors, wines or beers other alcoholic beverages are sold for consumption on the premises, or given away for consumption on the premises, or permitted to be consumed on the premises within three hundred feet (300') walking distance of any church, convent or school, except upon the written consent of not less than seventy (70%) per cent of the owners of real property, situated within three hundred feet (300') walking distance of any such church, convent or school, provided that no permit for the opening of any barroom, saloon, cabarets or other place where liquors are sold at retail, to be consumed on the premises, facing any public playgrounds in the City of New Orleans, shall be granted.”

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59 So. 2d 222, 1952 La. App. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liller-v-louisiana-board-of-alcoholic-beverage-control-lactapp-1952.