O'NEAL v. Jackson Parish Police Jury

658 So. 2d 240, 1995 WL 366802
CourtLouisiana Court of Appeal
DecidedJune 21, 1995
Docket27,452-CA
StatusPublished
Cited by8 cases

This text of 658 So. 2d 240 (O'NEAL v. Jackson Parish Police Jury) 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
O'NEAL v. Jackson Parish Police Jury, 658 So. 2d 240, 1995 WL 366802 (La. Ct. App. 1995).

Opinion

658 So.2d 240 (1995)

Dan E. O'NEAL, III and Green Street Enterprises, Plaintiffs-Appellants,
v.
JACKSON PARISH POLICE JURY, et al., Defendants-Appellees.

No. 27,452-CA.

Court of Appeal of Louisiana, Second Circuit.

June 21, 1995.

*241 William R. Boone, for appellants.

Walter E. May, Jr., Dist. Atty. by Douglas L. Stokes, Jr., Asst. Dist. Atty., for appellees.

Before MARVIN, BROWN and STEWART, JJ.

MARVIN, Chief Judge.

The plaintiffs, an individual and his corporate business, who have been licensed to sell alcoholic beverages in Jackson Parish since 1983, appeal a judgment rejecting their demands to preliminarily enjoin the police jury from enforcing an ordinance prohibiting the sale of alcoholic beverages that was adopted shortly after the particular ward of the parish voted dry in a local option election in October 1994. See LRS 26:582, 26:595.

Plaintiffs' attack on the validity of the local option election, having been first raised on the day of the preliminary injunction hearing, was not ruled on by the trial court in the judgment that is here appealed. This appeal relates solely to plaintiffs' assertions that the "grandfather" provisions of LRS 26:81 exempt them from the effect of the local option election and the ordinance that became effective January 1, 1995. The trial court did not agree with plaintiffs' contentions and additionally denied plaintiffs a preliminary injunction on the grounds that plaintiffs failed to show "irreparable injury," their harm or loss, if any is legally allowed, being compensable in money. CCP Art. 3601.

Finding no error or abuse of discretion in the trial court's ruling, we affirm. See and compare Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979) and Ouachita Parish Police Jury v. American Waste, 606 So.2d 1341 (La.App. 2d Cir.1992), writ denied.

FACTS

Plaintiffs, Dan E. O'Neal, III and his corporation, Green Street Enterprises, Inc., have been licensed to sell alcohol at a nightclub and at a convenience store in Jackson Parish since 1983. After the local option election was held in October 1994, and in reliance on the "grandfather" provisions of LRS 26:81B(1) and E, plaintiffs sought renewal of their parish liquor licenses for the year 1995, contending the statutory prohibition *242 against licensing a business to sell alcohol in areas that have voted dry by local option election (Subsection B(1)), is expressly made inapplicable to "premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance." (Subsection E).[1]

Subsections A, C and D of the statute, which are not at issue here, refer to other local prohibitions on alcohol sales, such as those relating specifically to zoning ordinances and ordinances restricting the proximity of liquor vendors to a church, school, or other protected area.

The "grandfather clause" in § 81 E, partially quoted supra and more fully discussed infra, grants exceptions or exemptions from "[t]he prohibitions in this Section" and does not, on its face, limit the application of these exceptions to a particular subsection of § 81.

The Jackson Parish Police Jury refused to renew plaintiffs' licenses, having stated in the ordinance:

There is no intention to "grandfather" in any existing operators of businesses having a license to sell alcoholic beverages, the Jackson Parish Police Jury taking the position that the local option election expresses the will of the voters, that such a prohibition is permitted by [LRS] 26:595 [authorizing local option elections and ordinances] and that the "grandfather" provision[s] of [LRS] 26:81 relate to the location of premises permitted to deal in alcoholic beverages [i.e., with respect to their proximity to a church, school, or playground in wards where alcohol sales are generally allowed] and not to businesses located in wards where such businesses have been prohibited by a local option election. (Our emphasis and brackets.)

Agreeing with the police jury's position that the grandfather clause in § 81 has no application in areas voted dry by local option election, the trial court found plaintiffs did not make a prima facie showing that they will prevail on the merits, the threshold requirement for obtaining a preliminary injunction. See American Waste, supra, 606 So.2d at 1350. The court also found plaintiffs' evidence that the prohibition would cause them to lose not only their liquor sales, but also much of their customer base for sales of other products, inadequate to prove irreparable injury, because any such loss would be compensable in monetary damages. CCP Art. 3601; Smith, supra; Prakasam v. Popowski, 566 So.2d 189 (La.App. 2d Cir.1990), writ denied.

The trial court declined to rule on two other issues raised by plaintiffs in a first amended and supplemental petition filed on the day of the preliminary injunction hearing, notwithstanding that some evidence was introduced on these issues, which concern errors in the legal description of Ward One when the wards were reapportioned in 1992, and the effect of these errors on the validity of the 1994 local option election.

SCOPE OF REVIEW

We limit our review to the matters that were adjudicated by the trial court at the preliminary injunction hearing, reserving to the parties the right to fully litigate the issues raised in the first amended and supplemental petition at the trial on the merits. See and compare Gorham v. Mathieson Alkali Works, 210 La. 462, 27 So.2d 299 (1946); and Martin v. H.B. Zachry Co., 560 So.2d 51 (La.App. 5th Cir.1990).

We first review the trial court's finding that plaintiffs failed to make a prima facie showing that their businesses fall within the grandfather clause of LRS 26:81, exempting them from the local option prohibition on alcohol sales. We do not construe the statute in isolation, but as a meaningful, and not an absurd, part of the entire statutory framework and context applicable to the present controversy. Johnston v. Morehouse Parish Police Jury, 424 So.2d 1053 (La.App. 2d Cir. 1982), writ denied; State Dept. of Social Services v. Parker, 595 So.2d 815 (La.App. 2d Cir.1992).

We also note that LRS 26:493 authorizes a parish or subdivision of the state to "prohibit *243... the business of wholesaling, retailing and dealing in alcoholic beverages[,]" either by "referendum vote as provided by Chapter 3 of [Title 26] or by ... zoning laws[.]" The Chapter Three referendum vote provisions, LRS 26:581 et seq., are entitled "Local Option [Election]." Our brackets.

STATUTORY SCHEME—LOCAL OPTION ELECTIONS

LRS 26:582 authorizes the governing authority of a ward or an incorporated municipality to hold a local option or referendum election once every two years, upon the petition of at least 25 percent of the qualified voters, "to determine whether or not the business of selling alcoholic beverages [of varying alcoholic content, in package form or for consumption on the premises, as described in §§ 584 and 588] shall be conducted and licensed therein." Our emphasis and brackets.

When a majority of the qualified voters determine "that any or all of the businesses described shall not be licensed, the governing authority calling the election may provide for the prohibition by ordinance, and may provide penalties for the violation of the ordinances." § 595; our emphasis.

The substance of these statutes, in the respects mentioned and emphasized, has remained virtually unchanged since at least 1935.

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Bluebook (online)
658 So. 2d 240, 1995 WL 366802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneal-v-jackson-parish-police-jury-lactapp-1995.