Scott-Memorial Baptist Church v. Dep't of Alcoholic Beverage Control

BROWN (Gerald), P. J.

—Declaratory relief plaintiffs Scott-Memorial Baptist Church and College Avenue Baptist Church appeal from a judgment deciding, under Penal Code,

[101]

section 172h, that Penal Code, sections 172 through 172g dc not prohibit defendant Department of Alcoholic Beverage Control from issuing liquor licenses to premises within one and one-half miles of San Diego State College.

San Diego State College’s enrollment exceeded 10,000 students before January 1, 1960, and has continued to grow; before September 12, 1960, less than 500 students resided on the college’s campus; since September 12, 1960, more than 500 students have resided and reside on the campus. In 1965, defendant issued a liquor license to a premises within one and one-half miles of the college boundaries.

Penal Code, section 172a, in substance, makes it a misdemeanor to sell liquor within one and one-half miles of any university having an enrollment of more than 1,000 students, more than 500 of whom reside on campus. Penal Code, section 172h, in substance, exempts from the operation of Penal Code, section 172a, any premises which is in or becomes part of a prohibited area because a university has constructed and occupied since January 1, 1960, or in the future constructs dormitories for its students. For purposes here, San Diego State College is treated as a university (Pen. Code, § 172.9). Plaintiffs interpret section 172h as follows: As universities construct and occupy new dormitories, geographical campus boundaries may expand; section 172h exempts premises which become within one and one-half miles of a campus as a result of campus expansion toward the premises. Defendant interprets section 172h as follows: As universities construct and occupy new dormitories, more universities will enroll over 1,000 students, more than 500 of whom reside on campus; section 172h exempts premises which become within one and one-half miles of a campus with over 1,000 students, more than 500 of whom reside on campus as a result of resident or general enrollment growth.

Logically, plaintiffs’ and defendant’s interpretations are not inconsistent. Perhaps the Legislature determined enrollment increases or geographic expansion or both should not create new nor expand existing one and one-half mile dry zones. San Diego State College, however, grew in resident enrollment, not in geography, and, therefore, on the facts here the issue is whether section 172h exempts premises within one and one-half miles of San Diego State College