Oregon Advisory Opinions January 01, 1963: OP 5559

Advisory Opinion Text

The racing of four or more flammable liquid powered vehicles in a place of public assembly is not prohibited by ORS 479.100.

No. 5559 January 2, 1963 Mr. Walter G. Korlann State Fire Marshal You point out that the State Fire Marshal is currently involved in over­seeing the safety in places of public assembly wherein motor vehicles using flammable liquids for fuel are raced in competition.

You ask whether the racing of four or more flammable liquid powered ve­hicles in a place of public assembly is prohibited by ORS 479.100.

ORS 479.100 (1) and (3) provide in part as follows:

"(1) No person shall, after May 28, 1925, establish, construct or operate a public garage, as defined in ORS 479.010, unless the building has exterior walls of masonry construction, with fireproof floors, and all windows, doors or other openings abutting on adjacent property, or on a street, alley or court of less than 30 feet in width, are provided with wire glass and metal sash, approved fire doors, curtains or shutters. * * *

* * *

"(3) No part of any building which is used as a hospital, assembly hall, including theatre or moving picture house, shall be used as a garage * * * unless the garage portion is located on the ground with a cement floor and with the floor above of fireproof construction, and with masonry walls at least 8 inches thick.* * * (Em­phasis supplied) The definitions of "garage" apper­taining to the quoted subsections are set forth in ORS 479.010 (3) as follows:

"As used in ORS 479.100:

"(a) 'Private garage' is a building or por­tion of a building in which one or more vehicles or other self-propelled vehicles or wheeled machines using volatile inflammable liquid for fuel or power are housed or kept for private use and in which no business or industry connected with motor vehicles is carried on.

"(b) 'Public garage' is any garage to which the public is invited or has access to for a purpose within the scope of the business that is carried on therein, or where there are housed for rent, care, repair, dem­onstration, storage or sale, four or more motor vehicles or self-propelled vehicles or other wheeled machines using volatile in­flammable liquid for fuel or power." (Em­phasis supplied) It is to be noted that the prohibition in ORS 479.100 (1), supra, relates to a "public garage" while the prohibition in ORS 479.100 (3), supra, relates simply to "garage." While "public garage" is defined in ORS 479.010 (3)(b), supra, the term "garage" is nowhere given a definition unless the definition of "pri­vate garage" in ORS 479.010 (3)(a) is intended to define the term "garage" which is used in ORS 479.100 (3), supra. In view of the rule of construction that it should not be presumed that the legislature performed an idle act in de­fining "private garage" in ORS 479.010 (3)(a) for the purposes of ORS 479.100, we treat the term "garage" in ORS 479.100 (3), supra, as being the same term as "private garage" as defined in ORS 479.010 (3)(a), supra. See Union Pacific R. R. Co. et al. v. Bean et al., (1941) 167 Or. 535, 549, 119 P. (2d) 575.

Accordingly, we have two basic pro­hibitions: (1) A public garage in gen­eral cannot be operated unless certain constructional requirements are satis­fied, ORS 479.100 (1), supra; and (2) a building which is used as a place of assembly cannot also be used in part as a private garage, unless certain con­ditions are met, ORS 479.100 (3), supra. See also Opinions of the Attorney Gen­eral, 1958-1960, p. 172, particularly the concluding paragraph thereof at pages 173-174.

The question before us then is whether competitive motor vehicle racing within a building violates either of these pro­hibitions where the building does not meet the constructional or other re­quirements specified in ORS 479.100 (1) and (3), supra.

The public garage prohibition in ORS 479.100 (1), supra, to be operative re­quires that (1) there be a "garage" to which the public is invited or has access to for a purpose within the scope of the business that is carried on therein or (2) where there are housed for rent, care, repair, demonstration, storage or sale, four or more motor vehicles. ORS 479.010 (3)(b), supra.

The term "garage" in general means a place for the care and storage of motor vehicles. Black's Law Dictionary, 4th ed.

Clearly this definition does not pur­port to include a building used for the spectator sport of competitive motor ve­hicle racing.

The second part of the definition of "public garage" as an alternative re­fers to a garage as a place where there are housed for "rent, care, repair, dem­onstration, storage or sale," four or more motor vehicles.

The quoted terms used in our opinion do not include competitive racing of motor vehicles. The term "demonstra­tion" has reference to displaying the merits of a product as an inducement to the sale thereof whereas competitive racing of vehicles is generally consid­ered a sport for the entertainment of spectators. See 26A C.J.S., Demonstra­tion, p. 179.

Accordingly, it is our opinion that the prohibition pertaining to "public garage" in ORS 479.100 (1), supra, does not apply to competitive motor vehicle racing.

The remaining prohibition in ORS 479.100 (3), supra, pertains to the use of a portion of a building as a "garage" when the building is also used as a place of assembly. As we have previ­ously pointed out, "garage" is the same as the "private garage" defined in ORS 479.010 (3) (a), supra.

"Private garage" is defined in ORS 479.010 (3)(a), supra, as a building or portion of a building in which one or more vehicles using volatile inflam­mable liquid as fuel are housed or kept for private use and in which no business or industry connected with motor ve­hicles is carried on.

The above definition makes clear that the private garage contemplated by the legislature was simply a place in a building where motor vehicles would be stored when not in use. Clearly this purpose has nothing to do with com­petitive motor vehicle racing.

Accordingly, it is also our opinion that ORS 479.100 (3), supra, does not apply where a portion of a building is used for competitive motor vehicle racing.

Your question is therefore answered in the negative.

ROBERT Y. THORNTON, Attorney General, By Peter S. Herman, Assistant.

<>