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May 5, 1995


Appeal from Madison Circuit Court. (CV-93-2270). William D. Page, TRIAL JUDGE.

Shores, Hornsby, C.j., Maddox, Kennedy, and Cook, JJ., concur.

The opinion of the court was delivered by: Shores


The issue in this case is whether the Madison County Commission acted arbitrarily and capriciously in denying Royce Lane Maddox's application for approval of the issuance of an off-premises retail liquor license for his place of business, Doyce's Spirits, by the Alabama Alcoholic Beverage Control Board (hereinafter "ABC Board"). We hold that it did not, and, therefore, we affirm the judgment of the trial court, which had upheld the commission's action.

On March 2, 1992, Maddox filed an application with the ABC Board for an off-premises retail liquor license. *fn1 Because Maddox's place of business is in an unincorporated area of Madison County, § 28-3A-23(d), Ala. Code 1975, required that he obtain the county commission's approval before the ABC Board would grant him the liquor license.

On October 12, 1993, Maddox applied to the Madison County Commission for the liquor license, after receiving a letter from it explaining the procedures and requirements for obtaining a liquor license. On December 6, 1993, the county commission held a public hearing regarding the application; afterwards, it voted unanimously to deny Maddox's application.

On December 17, 1993, Maddox filed in the circuit court a complaint styled as a "petition for judicial review," seeking a reversal of the county commission's decision. The Madison County Commission answered the complaint. On June 1, 1994, the trial Judge, after an ore tenus trial, entered a final judgment denying Maddox's requested relief. Maddox appealed.

This Court has written:

"Under the 'ore tenus rule,' a presumption of correctness

accompanies the trial court's judgment when it has made findings of fact based on oral testimony without a jury, and its judgment will not be reversed unless it is shown to be plainly and palpably wrong, considering all of the evidence and all inferences that can be logically drawn from the evidence. King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala. 1987); McCrary v. Butler, 540 So. 2d 736 (Ala. 1989). The trial court's judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment. McCrary v. Butler, supra; Jones v. Jones, 470 So. 2d 1207 (Ala. 1985)."

Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 12-13 (Ala. 1989).

In June 1993, the Madison County Commission had adopted a resolution containing procedures for approval of retail liquor licenses; that resolution was amended in October 1993. Maddox argues, first, that that "liquor license resolution," specifically paragraph 5, and the commission's procedures relating to applications for liquor licenses violate the state and federal Constitutions because, he says, they are "overbroad" and "vague" and thus deny him equal protection and due process.

"5. The Madison County Commission shall not approve any application for a retail liquor license where the licensee is located in any area of the county other than an area that is predominantly a commercial area, that is, where the structures located adjacent to and across from the premises sought to be licensed are commercial in nature."

(Emphasis added.) Because of the property's location, and based on the language of paragraph 5, the county commission denied Maddox's application. Although in the trial court Maddox argued that the resolution and the commission's procedures were unconstitutional and although in his docketing statement filed in this Court he stated that he was challenging the constitutionality of ยง 28-3A-23(d), his brief here raises no issue regarding the constitutionality of the commission's resolution and procedures. Therefore, any such issue is waived. See, e.g., Deutcsh v. Birmingham Post Co., 603 So. 2d 910, 911 (Ala. 1992), cert. denied, U.S. , 122 L. Ed. 2d 130, 113 S. Ct. 976 (1993); Ex parte Riley, 464 So. 2d 92, 94 (Ala. 1985); see also Rule 28(a)(3) and (5), Ala. R. App. P. Second, Maddox contends that the county commission's denial of his application was arbitrary and capricious, because, he says, there was no evidence to support it; therefore, he says, the trial court's judgment was also palpably erroneous. However, according to Alabama law, the burden of proof in ...

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