Hadi Store, LLC v. City of Tuscaloosa, 2180042

• Decision Date: 30 August 2019
• Docket Number: 2180042
• Citation: 297 So.3d 1233
• Parties: HADI STORE, LLC v. CITY OF TUSCALOOSA
• Court: Alabama Court of Civil Appeals

297 So.3d 1233

HADI STORE, LLC

v.CITY OF TUSCALOOSA

2180042

Court of Civil Appeals of Alabama.

August 30, 2019

Certiorari Denied December 13, 2019

Alabama Supreme Court 1181006

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 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 Burkholter¹ 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 alsoGrigerik 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, the omitted word or phrase was significant to such a construction.’); and United States v. NEC Corp., 931 F.2d 1493, 1502 (11th Cir. 1991) (concluding that ‘[w]here, as here, the legislature deletes language that contained a general prohibition and replaces it with a grant of jurisdiction followed by certain enumerated exceptions, it is logical for a court to conclude that Congress intended to do away with the general prohibition’).

"Regarding the case now before us, the legislature in amending § 36–26–100 in 2002 explicitly included within the purview of the FDA [Fair Dismissal Act, § 36-26-100 et seq., Ala. Code 1975 ] employees who had previously been explicitly excluded under that statute, i.e., production workers at the Alabama Industries for the Blind and employees at educational and correctional institutions under the

...