Attorney General's Opinion
Attorney General, Richard Blumenthal
March 28, 1990
Honorable John B. Larson
President Pro Tempore
State of Connecticut
Hartford, CT 06106
Dear Senator Larson:
Your recent inquiry focuses upon the provisions of P.A. 89-390, e 24(b), which, in essence, create certain zones of protection around the Tele-Track facilities located in New Haven and Windsor Locks. This Act provides that while two other off-track betting facilities which have simulcasting capabilities may be opened and operated as part of the system, they cannot be located "in any town which is (1) within fifteen miles of the location of the tele-track facility in the city of New Haven or (2) within thirty-five miles of the location of the proposed teletheater in the town of Windsor Locks...."
You ask three specific questions:
1. What points will be used to begin measurements of the 15 and 35 miles?
2. How will the measurement actually be measured-as a radius, by road miles, or some other method?
3. Are the facility at New Haven and the proposed facility at Windsor Locks the only facilities determining the location of the new facilities to be built?
In our opinion, the distance restrictions apply only as against the New Haven and Windsor Locks facilities, and the measurements commence at the location of those facilities within their respective towns and are measured by use of the radius rule.
The pertinent provision of P.A. 89-390, e 24(b), which establishes the restriction under present discussion, provides as follows:
The eighteen off-track betting branch facilities authorized by subsection (a) of this section may include three facilities which have screens for the simulcasting of off-track betting race programs, seating to accommodate not more than fifty per cent of the capacity of the tele-track facility authorized pursuant to section 12-571b, and other amenities including, but not limited to, restaurants and concessions, provided, for any such facility authorized on or after the effective date of this act no such facility shall be located in any town which is (1) within fifteen miles of the location of the tele-track facility in the city of New Haven or, (2) within thirty-five miles of the location of the proposed teletheater in the town of Windsor Locks,...
Addressing your last question first, we observe that the language of the restriction provides that "no such facility" shall be located within the boundaries established by the statute. This language is preceded in the statute by reference to "eighteen off-track betting branch facilities" and "three facilities" having simulcasting capabilities. The issue thus becomes the meaning to be ascribed to the modifier 'such' as used above.
The general rule has been stated in the following manner:
"The word 'such' has been construed as a related adjective referring back to and identifying something previously spoken of and that it naturally, by grammatical usage, refers to the last precedent." Bahre v. Hogbloom, 162 Conn. 549, 556, 295 A.2d 547 (1972).
This rule is, of course, varied if such variance is necessary to preserve context and ensure that legislative intent is properly observed. Verrastro v. Silvertsen, 188 Conn. 213, 221, 448 A.2d 1334 (1982).
In the instant case, the "last precedent" is the "three facilities which have screens for the simulcasting of off-track betting race programs,..." It seems clear also that the Legislature, in determining these zones of protection, was interested only in simulcasting facilities, since the next preceeding section1 deals explicitly with the amenities which the other branch office facilities may have.
We conclude therefore that the distance requirements of this Act are imposed only as between the tele-track/teletheater and other facilities with simulcasting capacities.
Turning to your other questions, it is immediately apparent that the statutory language employed does not specify the manner in which the stated mileage difference is to be measured. Most of the case law surrounding the issue of distance requirements has evolved regarding liquor permit applications. The general rule regarding an interpretation of such requirements has been stated thusly:
"In construing enactments prohibiting the sale of intoxicants within a specified distance from certain establishments, most of the courts which have considered the problem have held that in the absence of any specific statutory provision governing the manner of measurement of distances, the distance is to be along the shortest straight line between the place where the liquor is to be sold and the other establishment." 4 ALR 3d 1250, 1253.
This type of rule has come to be known as the radius rule. Astarita v. Liquor Control Commission, 165 Conn. 185, 187, 332 A.2d 106 (1973). This rule has been applied by the Supreme Court, as a straight line measurement, even before the term "radius" appeared in an ordinance establishing the requirement. Santini v. Z.B.A., 149 Conn. 290, 291, 179 A.2d 621 (1962). In this case, the Court held that the radius rule was to be applied even though its use resulted in the restriction crossing town lines. Ibid.
The provisions of the Public Act here under discussion are not specific as to the method of measurement to be employed. In such circumstances, and consistent with the general rule articulated above, it is our conclusion that the radius rule is the proper method of measurement to be employed.
You have also inquired as to the "point" at which the distance requirement of the Act will commence, i.e. where does the measurement begin? We note that the Act establishes a prohibition against the existence of a simulcast facility "located in any town which is (1) within fifteen [or thirty-five] miles of the location" of the facility in New Haven or Windsor Locks, respectively. (Emphasis added.)
The above emphasized portions of the Act clearly reveal a sharp contrast between the two measuring points. That is, a simulcast facility is prohibited in any town, if the town lies within fifteen or thirty-five miles of the location of the tele-track or teletheatre.
It is axiomatic that every word or phrase used in a statute is to be accorded some meaning and no such word or phrase is to be considered superfluous. State v. Roque, 190 Conn. 143, 150, 460 A.2d 26 (1983); State v. Freedom of Information Commission, 184 Conn. 102, 107, 441 A.2d 53 (1981); Nerrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982). Hence, the phrase which prohibits the establishment of a simulcast facility if it is "located in any town" within the proscribed distances must be interpreted as applying to the entire town, because an interpretation which concludes that only a precise location within a particular town is disqualified results in no meaning being given to the phrase "in any town." That is, it would be as if the Act read: "no such facility shall be located within" the proscribed distances.
Conversely, but in like manner, applying this same aid to statutory construction, the use of the phrase "of the location of" in the latter part of this act, must be interpreted as having some meaning. That this phrase must have reference to a definite site becomes clear when it is considered that simply by leaving out the phrase "of the location of" the act would have clearly prohibited any such facility "within fifteen or thirty-five miles of New Haven or Windsor Locks."
Thus, it is clear that the Act establishes only two fixed locations: the tele-track and teletheater locations in New Haven and Windsor Locks. The other locations are floating in the sense that the boundaries of any specific town cover many miles. The law demands that any statute be interpreted in such a manner that lends itself to finality and definiteness; it does not countenance ambiguity. Muller v. Town Planning & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958); State v. Van Keegan, 132 Conn. 33, 38, 43 A.2d 352 (1945). Hence, it is only practical that the starting point for the mileage measurement be fixed as the location of the tele-track or teletheater facility. The rules of statutory construction should be employed to resolve ambiguities, not to create one. Mack v. Saars, 150 Conn. 290, 309, 310, 188 A.2d 863 (1963).
It is, therefore, our opinion that the fifteen mile measurement begins at the actual location of the tele-track facility in the City of New Haven. The thirty-five mile measurement begins at the actual location of the proposed teletheater in the Town of Windsor Locks.
Very truly yours,
CLARINE NARDI RIDDLE
Richard M. Sheridan
Assistant Attorney General
1 P.A. 89-390(c) provides:
The division and board may operate any off-track betting branch office facilities not operated in the manner of the facility operated under subsection (b) of this section as facilities which have monitors for off-track betting information, bench seating and adequate public rest room facilities for patrons.