Appeal
from Tuscaloosa Circuit Court (CV-18-900722)
THOMPSON, Presiding Judge.
Hadi
Store, LLC ("Hadi"), appeals from a judgment of the
Tuscaloosa Circuit Court ("the circuit court")
upholding a decision by the City of Tuscaloosa ("the
city") to deny Hadi's application for a license to
sell liquor at a certain location in an area of Tuscaloosa
known as "West End," which apparently is a
predominantly African-American community. Hadi had applied
for a "lounge retail liquor-Class II (Package)"
license to operate a package store. Under such a license,
alcohol could not be consumed on the premises.
The
Tuscaloosa City Council ("the council") held a
hearing on Hadi's application over two sessions. At those
sessions, the council heard from a number of people regarding
different concerns they had that would be affected by the
issuance of a liquor license. Officer
Burkholter[1] of the Tuscaloosa Police Department
("TPD") testified to the number and types of calls
TPD received concerning the area near Hadi in the
approximately 18 months preceding the council's final
hearing. Officer Burkholter said that Hadi would be in a
"high crime area." The report he made of incidents
in the quarter-mile radius around Hadi in the 18-month period
he reviewed indicated that at least 42 of the scores of
criminal offenses that had occurred in the area were alcohol
related. Studies were presented indicating the adverse
effects of alcohol stores in urban areas, especially stores
targeting the African-American community. A West End resident
presented a petition signed by approximately 200 neighbors
stating that they did not want or need another liquor store
in the area. A spokesman from Stillman College, which is
close to Hadi, told the council that the college had concerns
for its students because Hadi would be within close walking
distance of the campus. Two others spoke out against granting
the license, saying an additional liquor store in the
vicinity was contrary to the community-development plan being
implemented in the West End. That plan was intended to
revitalize the area. One of those people, Serena Fortenbury,
pointed out that there are many elementary schools, churches,
and parks in the area. She said that she rarely saw children
playing at a park one block from Hadi, but that she saw
adults drinking alcohol in the park. There is also an
alcohol- and drug-rehabilitation facility one block from
Hadi.
Community
leaders, including city councilors, the city's mayor, and
the representative of Stillman College, opined that an
additional liquor store in the West End would be detrimental
to the attempts to revitalize the area or that it would
endanger the health, safety, and welfare of the city's
residents.
The
council denied Hadi's application for a liquor license.
Hadi appealed the denial to the circuit court. In addition to
considering the record created during the council meetings,
the circuit court held a hearing during which it took
testimony from two witnesses on behalf of Hadi. On August 17,
2018, the circuit court entered a judgment affirming the
council's decision to deny Hadi's application.
Specifically, the circuit court determined that the
council's decision was not arbitrary and capricious and
that the evidence indicated that granting the license to Hadi
would create a nuisance and/or "circumstances clearly
detrimental to adjacent residential neighborhoods or the
public health, safety, and welfare." Hadi did not file a
postjudgment motion.
Hadi
appealed the circuit court's judgment to the Alabama
Supreme Court, which determined that this matter was within
the original appellate jurisdiction of this court. The
supreme court transferred the appeal to this court pursuant
to § 12-3-10, Ala. Code 1975.
On
appeal, the parties first debate the issue of the proper
standard of judicial review applicable in this matter. Hadi
contends that the proper standard of judicial review of the
denial of a liquor license is de novo. On the other hand, the
city asserts that the ore tenus standard of review applies
and that a presumption of correctness attaches to the
council's act of denying Hadi's application.
This
matter is governed by Act No. 98-342, Ala. Acts 1998,
("the Act"), a local act which superseded §
28-1-7, Ala. Code 1975, to the extent that that statute
applied to the city.[2] Section 28-1-7(c) provides, in pertinent
part, that a circuit court's review of a municipal
governing body's denial of an application for a liquor
license "shall be expedited de novo
proceedings, heard by a circuit judge without a jury who
shall consider any testimony presented by the city governing
body and any new evidence presented in explanation or
contradiction of the testimony." (Emphasis added.)
Regarding judicial review, the Act is essentially identical
to § 28-1-7, except that it omits the term "de
novo." The Act reads, in pertinent part:
"Proceedings in circuit court to review an action of a
municipal governing body denying approval of a license
application shall be expedited proceedings, heard by a
circuit judge without a jury who shall consider any testimony
or matters presented to the city governing body and any new
evidence presented in explanation or contradiction of the
same."
Act No. 98-342, § 3.
We look
to the rules of statutory construction for guidance in
determining the effect of the omission of the phrase "de
novo" from the provision of the Act regarding judicial
review.
"'The intent of the Legislature is the polestar of
statutory construction.' Siegelman v. Alabama
Ass'n of Sch. Bds., 819 So.2d 568, 579 (Ala. 2001)
(citing Richardson v. PSB Armor, Inc., 682 So.2d
438, 440 (Ala. 1996); Jones v. Conradi, 673 So.2d
389, 394 (Ala. 1995); and Ex parte Jordan, 592 So.2d
579, 581 (Ala. 1992)). We are mindful that 'the
Legislature will not be presumed to have done a futile thing
in enacting a statute; there is a presumption that the
Legislature intended a just and reasonable construction and
did not enact a statute that has no practical meaning.'
Weathers v. City of Oxford, 895 So.2d 305, 309 (Ala.
Civ. App. 2004) (citing Ex parte Watley, 708 So.2d
890 (Ala. 1997), and Ex parte Meeks, 682 So.2d 423
(Ala. 1996)).
"The
Court of Appeals of North Carolina has stated:
"'[I]f the legislature deletes specific words or
phrases from a statute, it is presumed that the legislature
intended that the deleted portion should no longer be the
law. See, e.g., Joe v. Lebow, 670 N.E.2d 9,
19 (Ind.Ct.App. 1996) ("When a statute contains language
which is deleted by the legislature, we presume that the
legislature intended the deletion to represent a change in
the law."); State v. Eversole, 889 S.W.2d 418,
425 (Tex. App. 1994) ("[W]hen the legislature amends a
particular statute and omits certain language of the former
statute in its amended version, the legislature specifically
intended that the omitted portion is no longer the law. Every
word excluded from a statute must be presumed to have been
excluded for a reason.").'
"Nello L. Teer Co. v. North Carolina Dep't of
Transp., 175 N.C.App. 705, 710-11, 625 S.E.2d 135, 138
(2006).
"In Nello L. Teer Co., the North Carolina Court
of Appeals concluded that the North Carolina legislature
intended to change a law by deleting a phrase North Carolina
courts had previously relied upon. The appellant in Nello
L. Teer Co. argued that, according to § 136-29,
N.C. Gen. Stat., filing a verified complaint within a
specified period of time was a condition precedent to
pursuing an action against a certain North Carolina state
agency. 175 N.C.App. at 707-11, 625 S.E.2d at 137-38. North
Carolina courts had previously held that, pursuant to
specific language in § 136-29, filing a verified
complaint within the specified period was a condition
precedent to pursuing an action against that agency. 175
N.C.App. at 709, 625 S.E.2d at 138. However, the North
Carolina legislature had amended § 136-29 by deleting
the specific language that the courts had previously relied
upon. Id. Thus, the Nello L. Teer Co. court
concluded that the legislature, by deleting the phrase
previously relied upon, intended to change the law to remove
that condition precedent. Id.; see also Grigerik
v. Sharpe, 247 Conn. 293, 721 A.2d 526 (1998)
(concluding that the Connecticut legislature's deleting
certain statutory language that Connecticut courts had
previously relied upon evidenced the legislature's intent
to change the law); Dix v. Superior Court, 53 Cal.3d
442, 461-62, 807 P.2d 1063, 1073, 279 Cal.Rptr. 834, 844
(1991) ('We presume the Legislature intends to change the
meaning of a law when it alters the statutory language ...,
as for example when it deletes express provisions of the
prior version .... Because the Legislature is presumed [to
be] aware of prior judicial constructions of a statute, the
inference of altered intent is particularly compelling when,
as in this case, ...