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Hadi Store, LLC v. City of Tuscaloosa

Alabama Court of Civil Appeals

August 30, 2019


         Certiorari Denied December 13, 2019.

         Appeal from Tuscaloosa Circuit Court (CV-18-900722)

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          Michael S. Burroughs, Tuscaloosa, for appellant.

          James P. Woodson III, Office of the City Attorney, Tuscaloosa, for appellee.

         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

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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

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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 ...

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