concurring specially.
¶ 18 I agree this matter needs to be remanded but have a somewhat different analytical framework than that set forth in the majority analysis. My view gives a meaning to the term “retail store” in A.R.S. § 36-601.01(A)(10) that differs from Magnum’s and the majority’s. It may produce a different result on remand and in future cases decided under this Act.
A.
¶ 19 Like the majority, I agree that simply because Magnum’s has and uses a series 6 liquor license (permitting it to sell liquor for consumption on premises) does not disqualify it from being a “retail tobacco store,” to which the exemption under A.R.S. § 36-601.01(B)(3) applies. I also agree that simply because the Act includes the terms “bar” and “restaurant” in a nonexclusive listing of “public plaee[s]” does not mean that a “bar” may not qualify for the exemption. A.R.S. § 36-601.01(A)(9). The majority and I differ with regard to the construction of the term “retail store” as set forth in the exemption itself. A.R.S. § 36-601.01(A)(10) (“ ‘Retail tobacco store’ means a retail store that derives the majority of its sales from tobacco products and accessories.”) (emphasis added).
¶ 20 As I understand the majority’s analysis, Magnum’s may qualify for the exemption because whether or not it is acting as a “bar,” Magnum’s is still a “retail store.” Supra ¶¶ 9-10. A “bar” is just a subspecies, per Magnum’s and the majority’s analysis, of a “retail store.” Supra ¶ 10. Thus, under that analysis, Magnum’s may qualify for the exemption so long as more than fifty percent of its sales are from tobacco products or accessories, whether or not it is a “bar.”
*10¶ 21 I would submit that when the people passed this Act, most of them did not consider a “bar” or a “restaurant” or a “theater,” for that matter, to be a “retail store.” Thug, if Magnum’s is functioning primarily as something other than a “retail store,” say a “bar” or a “restaurant” or a “theater,” then the exemption would not apply. When the people passed this Act, however, they did not define “retail store.”
¶ 22 Merriam-Webster defines a “store” as a “business establishment where usu[ally] diversified goods are kept for retail - sale < grocery store > .” Merriam-Webster’s Collegiate Dictionary 1156 (10th ed.2001). “Restaurant” is defined as a “business establishment where meals or refreshments may be purchased.” Id. at 995. A “bar” is defined as “a counter at which food or especially] alcoholic beverages are served.” Id. at 91. From my perspective, the difference between a “retail store” and a “bar,” “restaurant,” or “theater” is that with the latter three there is an expectation that the goods purchased are primarily intended to be consumed on the premises. With a “retail store,” the expectation is that the goods purchased are for consumption off the premises.
¶ 23 The case of McDonald’s Corp. v. Glennon, 355 So.2d 1023 (La.Ct.App.1978) is an example of a difference between a “retail store” and a “restaurant.” At issue in that case was whether a McDonald’s qualified as a “store” for purposes of Louisiana’s chain store tax. McDonald’s argued that “a restaurant is simply not a store either under the generally accepted use of the word or under certain judicial pronouncements.” Id. at 1025. The court, with one dissenting member, rejected that argument as applied to McDonald’s.
¶ 24 The court in McDonald’s essentially adopted the rationale of Magnum’s here. It stated:
In comparing the definitions of store and restaurant, we note that both are business establishments where goods and wares are sold. As we see it, store is a much broader definition and applies to all such retail businesses generally, while restaurant is simply a narrower division and is a store where only prepared food and refreshments are sold.
Id. The court then went on to state, however, that “[w]e would readily concede that the hypothetical reasonable man would probably not associate a restaurant such as Antoine’s as being a store, but it too has as its main purpose selling prepared food.” Id. An-tome’s, although apparently known well enough in the New Orleans jurisdiction in which this Louisiana court was sitting for the court to essentially take judicial notice of it, is a “world-renowned” restaurant established in 1840 that has served notables such as General Patton, President Roosevelt, and Pope John Paul II during its history. Antoine’s Restaurant, http://www.antoines.com (last visited Sept. 16, 2008).
¶ 25 In construing statutes, we are bound to give terms their ordinary, reasonable usage. Dowling v. Stapley, 218 Ariz. 80, 84, ¶ 11, 179 P.3d 960, 964 (App.2008) (“When no statutory definition is provided, we turn to common ordinary definitions of the term at issue.”). As the Louisiana court pointed out, a hypothetical reasonable person would not consider a restaurant to be a retail store. I would reject Magnum’s argument and follow the customary usage of “retail store” and not include within that term establishments such as bars, restaurants, theaters, airports, banks, healthcare facilities, and other entities specified in the Act, even though such entities sell products or services at retail. Simply put, a “bar” or a “restaurant” is not a “retail store” as we commonly use that term.
¶ 26 Further, even if we consider the term “retail store” to be ambiguous and potentially inclusive of a “bar” or a “restaurant,” we are to construe that term in a fashion that is consistent with the primary purpose of the Act. State v. Gomez, 212 Ariz. 55, 57, ¶ 11, 127 P.3d 873, 875 (2006) (“Our primary objective in construing statutes adopted by initiative is to give effect to the intent of the electorate.”). This interpretative principle played a role in the dissent in McDonald’s. The dissent took the view that “there is sufficient ambiguity surrounding the applicability of ‘store’ to a fast-food restaurant that the legislature should have the burden of clarification to include another type of tax*11payer.” Id. at 1027 (Garsaud, J., dissenting). Here, the clear intent of the Act is to make Arizona “[sjmoke free” in “all public places and places of employment” with only limited exceptions specified. A.R.S. § 36-601.01(B). Thus, I would construe any ambiguity in whether a “retail store” in subsection (A)(10) also may mean a “bar” in favor of giving “retail store” the narrower interpretation.
B.
¶ 27 Having concluded that a “bar” is not a “retail store” for purposes of the Act, I do not accept the Department’s conclusion that the presence of a “bar” in what would otherwise be a “retail store” necessarily disqualifies an establishment from being a “retail store.” Many business establishments that are undeniably retail stores (Target, Wal-Mart, Bashas’, Albertsons) also contain a use which, standing alone, would not be considered a “retail store.” For instance, a retail store may have a food court where meals are served. There is no question that, that portion of the store functions as a “restaurant.” However, the primary purpose of such stores is to provide goods and commodities for sale to customers to use off-site, not to provide a location to sit down, eat breakfast or lunch, and consume food prepared on the premises.
¶ 28 In this regard our recent decision in Tucson Botanical Gardens, Inc. v. Pima County, 218 Ariz. 523, 189 P.3d 1096 (App. 2008) is helpful. In that ease the issue was whether the Tucson Botanical Gardens, “a qualified non-profit charitable organization, was entitled to this exemption on the portion of its property it used to operate a gift shop, exhibit art for sale, and rent to third parties for ... weddings, private meetings, or parties.” Id. at ¶ 1, 189 P.3d 1096. The County argued that Tucson Botanical Gardens “lost its right to claim the exemption on the gift shop and meeting areas because it is using this space for non-exempt activities.” Id. at ¶ 10, 189 P.3d 1096. We disagreed. Id. In doing so, we noted that the County had focused on the “incidental” uses and “failed to take into account the primary use” made of the premises. Id. We held that “as long as the taxpayer’s principal or primary use of its property is for the designated exempt purpose, the taxpayer is entitled to the exemption notwithstanding its occasional or incidental use of its property for other purposes.” Id.
¶ 29 The principle set forth in Tucson Botanical Gardens applies here. So long as the “principal or primary use” of Magnum’s premise is as a “retail store,” it satisfies that portion of the exemption set forth in subsection (A)(10). It does not matter what the remaining use is (whether a “bar,” “restaurant” or otherwise) so long as the use is “occasional or incidental” to the purpose of being a “retail store.”
€.
¶ 30 On the record before us, I agree that a remand is required, as the trial judge determined that Magnum’s use of a portion of the premise as a “bar” disqualified it as a “retail tobacco store.” That holding was in error. However, the issue of whether the primary purpose of the premise was a “bar” or a “retail store,” has not been taken up by the superior court. Thus, the matter must be remanded to consider this issue in addition to the two issues identified by the majority. Supra ¶ 16. In order to qualify for the exemption, a determination must be made that Magnum’s (or any entity seeking to so qualify) is a “retail store that derives the majority of its sales from tobacco products and accessories.” A.R.S. § 36-601.01(A)(10) (emphasis added).