This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: State of Missouri, ex rel. Casey's General Stores, Inc., an Iowa Corporation, Casey's Marketing Company, an Iowa Corporation, and Donita Generous, Plaintiffs-Respondents, Cross-Appellants, v.City of West Plains, Missouri, Gene Jones, Lou Citro, James Goss, Robert Jackson, and Ray Gobel, Defendants- Appellants/Cross-Respondent Case Number: 22457 and 22459 Handdown Date: 12/30/1999 Appeal From: Circuit Court of Howell County, Honorable David G. Warren, Special Judge Counsel for Appellant: Robert Z. Oberzalek Counsel for Respondent: Charles E. Smarr and Mark G. Anderson Opinion Summary: None Citation: Opinion Author: Phillip R. Garrison, Chief Judge Opinion Vote: AFFIRMED IN PART; REVERSED IN PART. Shrum, P.J. and Barney, J. concur. Opinion:
AFFIRMED IN PART; REVERSED IN PART This case is part of the continuing saga surrounding the efforts of Casey's General Stores, Inc. ("Casey's") to sell intoxicating liquor in the City of West Plains ("West Plains" or "the City") closer to a church than permitted under the City's ordinances. Involved is the collision of competing theories concerning the regulation of the sale of intoxicating liquors in an incorporated city. Casey's contends that since it obtained a "resort" liquor license from the State of Missouri, its intoxicating liquor sales cannot be regulated by West Plains, and therefore it cannot be required to obtain a license from West Plains. West Plains, on the other hand, contends that it is entitled to regulate the sale of intoxicating liquor within its corporate limits, and accordingly is entitled to deny a license to Casey's to sell intoxicating liquor at a location within three hundred feet of a church.
In an earlier case, Casey's sought to require the City to issue a license to sell original package beer and wine at a store it constructed in West Plains at 816 St. Louis Street. We held that the City was not required to issue the license since section 311.080.2(FN1) authorizes an incorporated city to prohibit the granting of a license for the sale of intoxicating liquor within three hundred feet of any school, church or other building regularly used as a place of religious worship. The City had an ordinance prohibiting the granting of a license for the sale of intoxicating liquor within three hundred feet of such places, and Casey's property was located within three hundred feet of a church. State ex rel. Casey's General Stores, Inc. v. Kissinger, 926 S.W.2d 191 (Mo.App. S.D. 1996). This appeal concerns Casey's subsequent efforts to obtain authority to sell intoxicating liquor on the same property. After Kissinger was decided, Casey's applied for and obtained a retail liquor by the drink "resort" license from the Supervisor of the Missouri Division of Liquor Control (the "Supervisor" or the "Division") pursuant to section 311.095. Casey's then began making package beer sales on the property,(FN2) but the City charged one of Casey's employees with a violation of a section of its ordinances prohibiting the sale of intoxicating liquor without first obtaining a liquor license from the City. The municipal judge found that the employee had violated the ordinance and ordered her to apply to the City for a license to sell intoxicating liquor. Casey's submitted an application to the City for a liquor license. In response, the City notified Casey's that the city council unanimously denied that license because of the proximity of the store to a church. Casey's then filed a petition in circuit court seeking a writ of mandamus to require the City to issue a license to it. The circuit court found that while the City could require that a city license be obtained in addition to the state "resort" license, the City could not refuse to issue such a license after the Division had issued a "resort" license for the property in question, and it ordered the City to issue a license to Casey's.(FN3) Casey's appeal the portion of the judgment holding that the City may require a license in addition to the "resort" license issued by the Division. We affirm that portion of the judgment. The City also appeals, challenging the portion of the judgment ordering that it issue a city license to Casey's. We reverse that portion of the judgment. Mandamus lies only when there is an unequivocal showing that a public official failed to perform a ministerial duty imposed by law. Bergman v. Mills, 988 S.W.2d 84, 88 (Mo.App. W.D. 1999). To be entitled to relief, there must be a showing that the applicant has a clear, unequivocal, specific and positive right to have performed the act demanded. Id. The standard for our review is under an abuse of discretion standard pursuant to which we will reverse the trial court's ruling only when it is "so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id.
A review of the competing statutes and ordinances is required for an understanding of the issues in this case. Section 311.220.2 provides: The board of aldermen, city council or other proper authorities of incorporated cities, may charge for licenses issued to manufacturers, distillers, brewers, wholesalers and retailers of all intoxicating liquor, located within their limits, fix the amount to be charged for such license, subject to the limitations of this law, and provide for the collection thereof, make and enforce ordinances for the regulation and control of the sale of all intoxicating liquors within their limits, provide for penalties for the violation of such ordinances, where not inconsistent with the provisions of this law. The City's Ordinance 4-28 provides: No person shall sell or expose for sale, either at wholesale or retail in the city, intoxicating liquor in any quantity without first obtaining a liquor license from the city, except as otherwise provided in this division. Section 311.080 provides, in pertinent part: 1. No license shall be granted for the sale of intoxicating liquor . . . within one hundred feet of any school, church or other building regularly used as a place of religious worship, unless the applicant for the license shall first obtain the consent in writing of the board of directors of the school, or the consent in writing of the majority of the managing board of the church or place of worship . . . . 2. The board of aldermen, city council or other proper authorities, of any incorporated city, town or village, may by ordinance, prohibit the granting of a license for the sale of intoxicating liquor within a distance as great as three hundred feet . . . . The City's Ordinance 4-34 states: No liquor license shall be granted for the sale of intoxicating liquor within three hundred (300) feet of any school, church or other building regularly used as a place of worship or a public playground. Section 311.095.1, under which Casey's was issued the "resort" license by the Division, provides in pertinent part: 1. Notwithstanding any other provisions of this chapter to the contrary, any person who possesses the qualifications required by this chapter, and who now or hereafter meets the requirements of and complies with the provisions of this chapter, may apply for, and the supervisor of liquor control may issue, a license to sell intoxicating liquor, . . . by the drink at retail for consumption on the premises of any resort as described in the application.(FN4) 3. The times for opening and closing the establishments as fixed in section 311.290, the authority for the collection of fees by counties as provided in section 311.220, and all other laws and regulations of the state relating to the sale of liquor by the drink for consumption on the premises where sold shall apply to resorts in the same manner as they apply to establishments licensed under section 311.090. Ordinance 4-32.1 entitled "Sale of intoxicating liquor by the drink at retail on the premises of resort establishments" states: (b) Application for city license. Any place that has heretofore or may hereafter be licensed by the state supervisor of liquor control to sell intoxicating liquors by the drink at retail on the premises of such establishments, shall immediately after obtaining such state license, apply to the city clerk of the city a license to sell intoxicating liquors by the drink at retail on the premises of such establishments. In its appeal, Casey's contends that the trial court erred in holding that the City may require Casey's to obtain a
city license in addition to the state "resort" license. It argues that "Section 311.095 does not authorize cities to regulate the holder of a 'resort' license issued by the state . . ." Its theory is that because section 311.095.1 provides that "[n]otwithstanding any other provisions of this chapter to the contrary," it supercedes contrary licensing provisions of Chapter 311 and the Division may issue a resort license to sell intoxicating liquor by the drink at retail for consumption on the premises to persons possessing the qualifications required by that chapter. In interpreting statutes, the fundamental objective is to ascertain the intent of the legislature from the language of the statute and, if possible, give effect to that intent. In re Estate of Ayers, 984 S.W.2d 193, 200 (Mo. App. S.D. 1998). "It is a basic rule of statutory construction that words should be given their plain and ordinary meaning whenever possible." Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo.banc 1998). "Courts look elsewhere for interpretation only when the meaning is ambiguous or would lead to an illogical result defeating the purpose of the legislature." Id. In determining the legislature's intent, the provisions of the entire act must be construed together, and if reasonably possible, all the provisions must be harmonized. Parkville Benefit Assessment v. Platte County, 906 S.W.2d 766, 769 (Mo.App. W.D. 1995). The word "notwithstanding" is defined as "in spite of." Parkville, 906 S.W.2d at 769 (citing Webster's New World Dictionary, 2d ed. 1986). Accordingly, section 311.095.1 begins with a phrase meaning that it is in spite of any other provisions of Chapter 311 to the contrary. The term "notwithstanding," however, does not necessarily mean that it is to the complete exclusion of all other statutory provisions. See Parkville, 906 S.W.2d at 769. A section of a statute should not be read in isolation from the context of the whole act. State v. Meggs, 950 S.W.2d 608, 610 (Mo.App. S.D. 1997). Accordingly, we note the first sentence of section 311.095.1 contains not only the "[n]otwithstanding" provision, but also provides that any person who possesses the qualifications required by that chapter, "and who now or hereafter meets the requirements of and complies with the provisions of this chapter" may apply for and be granted a license to sell intoxicating liquor by the drink at retail for consumption on the premises of a resort described in the application. Therefore, in the same sentence, the statute says that its provisions are "[n]otwithstanding" or "in spite of" the other provisions of Chapter 311, but it also provides that