Ensley Seafood Five Points, LLC v. City of Birmingham

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REL: 06/08/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2110331 E n s l e y Seafood F i v e P o i n t s , LLC v. C i t y o f Birmingham Appeal from J e f f e r s o n C i r c u i t Court (CV-11-900473) THOMAS, Judge. On February ("Ensley relief 9, 2 0 1 1 , E n s l e y Seafood"), filed i n theJefferson Birmingham ("the C i t y " ) . a Seafood complaint Circuit Ensley Court Five P o i n t s , LLC seeking declaratory against theCity of Seafood claimed that the 2110331 decision denying for of the Birmingham C i t y Council i t s application off-premises capricious and Protection for a consumption had license ("the violated Clause of the to city sell rights States council") beer l i c e n s e " ) was its United ("the and a r b i t r a r y or under the Constitution. Equal Ensley 1 Seafood c l a i m e d t h a t the c i t y c o u n c i l had t h a t i t s a p p r o v a l of the l i c e n s e w o u l d v i o l a t e A l a . Code § 2 8 - 1 - 6 ( a ) ( 1 ) , which governs the sale of City circuit court August 1, complaint, held 2011, an ore the license not arbitrary decision had was the city not violated the asserting various circuit that had denying tenus hearing determining council's and c o n s t i t u t i o n a l r i g h t s by answered the court council's or i n determining i s s u a n c e of l i c e n s e s f o r i n t o x i c a t i n g beverages, Seafood's erred wine on violated defenses. The 9, its decision to the Ensley's The June and the license. issued capricious 1975, that Equal 2011. On judgment deny the the city Protection A l a b a m a Code 1975, § 28-1-6, governs the " [ i ] s s u a n c e of l i c e n s e s f o r s a l e of i n t o x i c a t i n g beverages i n Class 1 or C l a s s 2 m u n i c i p a l i t i e s . " The C i t y i s a C l a s s 1 m u n i c i p a l i t y p u r s u a n t t o A l a . Code 1975, § 1 1 - 4 0 - 1 2 ( a ) , w h i c h d e f i n e s Class 1 m u n i c i p a l i t i e s as " [ a ] l l c i t i e s w i t h a p o p u l a t i o n o f 3 0 0 , 0 0 0 inhabitants or more." Section 28-1-6(a)(1)a. requires a p p r o v a l of a p p l i c a t i o n s by t h e " g o v e r n i n g b o d y o f t h e Class 1 m u n i c i p a l i t y i n which the s i t e of the l i c e n s e i s s i t u a t e d . " I n t h i s c a s e , t h e g o v e r n i n g b o d y was t h e c i t y c o u n c i l . 1 2 2110331 Clause of the filed a motion a new trial; December 27, appeal circuit United States to alter, t h a t motion 2011, with this court's Constitution. amend, o r v a c a t e was timely c o u r t , s e e k i n g our was filed review arbitrary as or whether the judgment v i o l a t e d E n s l e y Seafood's protection of the Seafood the judgment or f o r d e n i e d on N o v e m b e r 2 1 , Ensley Seafood judgment Ensley 2011. i t s n o t i c e of to whether capricious right to of equal Review " I n C i t y o f M o b i l e v . S i m p s i r i d i s , 733 S o . 2d 378 ( A l a . 1999), our supreme c o u r t s e t out the a p p l i c a b l e standard of review. "'The t r i a l c o u r t ' s f i n d i n g s of f a c t a r e p r e s u m e d t o b e c o r r e c t when t h e y a r e based on o r e t e n u s evidence. Because § 2 8 - 1 - 6 [ , A l a . C o d e 1 9 7 5 , ] p r o v i d e s f o r de novo r e v i e w i n the c i r c u i t c o u r t from the d i s a p p r o v a l o f an a p p l i c a t i o n f o r a l i c e n s e to s e l l a l c o h o l , the u s u a l presumption i n favor of the findings by the city or administrative agency i s not applicable h e r e . ... I n t h e c a s e o f a n a p p e a l t o t h e circuit court, the statute requires a c i r c u i t j u d g e t o h e a r t h e e v i d e n c e de n o v o , i . e . , w i t h o u t any p r e s u m p t i o n i n f a v o r o f the m u n i c i p a l i t y . ... "'On appeal from the order of the c i r c u i t c o u r t , we a r e r e q u i r e d t o i n d u l g e every presumption i n f a v o r of the trial c o u r t ' s f i n d i n g s o f f a c t . K i n g v. T r a v e l e r s Ins. Co. , 513 So. 2 d 1023 ( A l a . 1987); 3 the and laws. Standard On 2110331 M c C r a r y v . B u t l e r , 540 So. 2 d 736 (Ala. 1 9 8 9 ) . The t r i a l c o u r t ' s j u d g m e n t i n s u c h a case w i l l be affirmed i f , "under any r e a s o n a b l e a s p e c t of the t e s t i m o n y , t h e r e is credible evidence to support the j u d g m e n t . " J o n e s v . J o n e s , 470 So. 2 d 1207, 1208 (Ala. 1985). Clark v. Albertville N u r s i n g Home, I n c . , 545 So. 2 d 9, 12-13 (Ala. 1989).' "733 So. B i g g s v. So. at 381-82." C i t y of Birmingham, 3d As 2d , a [Ms. (Ala. Civ. threshold issue, 2 1 0 0 3 5 4 , M a r c h 9, App. we first Seafood's argument t h a t the circuit burden to on Ensley justification the Seafood supporting l i c e n s e . We conclude the that 2012) show city the 2012] . briefly court there Ensley e r r e d by p l a c i n g was council's circuit address no reasonable decision court did to deny not err. "The l e g i s l a t u r e has v e s t e d i n the [decisionmaking body] the power to i s s u e l i c e n s e s permitting the sale of alcoholic beverages; however, the l e g i s l a t u r e has l i m i t e d the [ d e c i s i o n - m a k i n g b o d y ] ' s power to i s s u e a l i c e n s e to p e r m i t the sale of a l c o h o l on p r e m i s e s l o c a t e d w i t h i n m u n i c i p a l i t i e s . A l a . Code 1975, § 28-3A-11. A m u n i c i p a l i t y has the 'broad' d i s c r e t i o n to approve or disapprove the issuance of liquor licenses with respect to l o c a t i o n s w i t h i n t h e m u n i c i p a l i t y . See § 2 8 - 3 A - 1 1 , A l a . Code 1975; O t t v . E v e r e t t , 420 So. 2 d 2 5 8 , 260 (Ala. 1982). However, the decision of the m u n i c i p a l i t y i n d e n y i n g an a p p l i c a t i o n f o r a l i q u o r license is subject to judicial review and is reversible i f i t i s shown t h a t the municipality a c t e d a r b i t r a r i l y i n d e n y i n g the a p p l i c a t i o n f o r a 4 the 2110331 l i q u o r l i c e n s e . S e e B l a c k v . P i k e C o u n t y Comm'n, 3 7 5 So. 2 d 255 ( A l a . 1 9 7 9 ) ; I n n o f O x f o r d , I n c . v . C i t y o f O x f o r d , 3 6 6 S o . 2 d 690 ( A l a . 1 9 7 8 ) ; s e e a l s o H a m i l t o n v . Town o f V i n c e n t , 468 S o . 2 d 1 4 5 , 147 ( A l a . 1985) ( a f f i r m i n g t r i a l c o u r t ' s j u d g m e n t a f t e r f i n d i n g that the l i q u o r - l i c e n s e a p p l i c a n t had f a i l e d to c a r r y burden o f showing a r b i t r a r y and c a p r i c i o u s a c t i o n by l i c e n s i n g a u t h o r i t y ) . " Phillips App. was 961 S o . 2 d 8 2 7 , 8 2 9 ( A l a . C i v . 2007). Son Tran v. C i t y o f C i t r o n e l l e , Tran applied under and h i s w i f e f o r the license construction. called Ensley Seafood been take-out a a r e t h e owners o f E n s l e y Tran's E n s l e y Seafood's former ("the f o r m e r seafood former Ensley Seafood while Seafood's restaurant, Seafood gas desired business I n 2009, was Tran -- a c o m b i n a t i o n t a k e - o u t station, and sell convenience beer had the and New o n w h a t was t o b e c o m e facility to also and had completely demolished. c o n s t r u c t i o n b e g a n i n t h e same l o c a t i o n Ensley facility E n s l e y Seafood") restaurant. restaurant Seafood. wine store. seafood Ensley f o r off-premises consumption i n the newly c o n s t r u c t e d c o n v e n i e n c e - s t o r e p o r t i o n of the Ensley Seafood In November Neighborhood to facility. 2010, Association the minutes members Ensley Highlands ( " t h e EHNA m e m b e r s " ) m e t . According of that meeting, 5 of the t h e EHNA m e m b e r s v o t e d 16 t o 2110331 1 t o oppose E n s l e y Seafood's a p p l i c a t i o n f o r the January 2011, February 1, meeting; Ensley Seafood's unanimously At the 2011, city accountant, the the city said to "recapture" of that Dr. the D e r r i c k E. located next to i t s regular T r a n and granting the of beer investment, the Ensley the business Sales Houston, door facility. l i c e n s e a p p l i c a t i o n was i n favor Arthur Seafood council held i n v e s t m e n t when i t r e b u i l t . way Ensley c o u n c i l ' s meeting, spoke Seafood. opened In rejected. and Tran license. he On public discussed Chuck A r t h u r , l i c e n s e to an Ensley had made a large and wine were one explained. pastor of the Seafood's church facility, that is Councilman S t e v e n Hoyt, and D e t e c t i v e Ralph P a t t e r s o n spoke i n o p p o s i t i o n to l i c e n s e to Ensley granting the heard general tending to nuisance; neighborhood safety, and comments i n o p p o s i t i o n show t h a t g r a n t i n g (2) Seafood. could that would welfare violate create could the close proximity applicable of the license affect adjacent Ensley 6 (1) council the license could the public to a the health, neighborhood; restrictions Seafood create detrimental residential zoning city to g r a n t i n g circumstances adversely of the (3) the The facility because to two of or 2110331 more child-care congestion. facilities; Detective reports Ensley Seafood 2010. Furthermore, the c i t y history At the c i r c u i t the transcript of several in the premises from was create that incidents undertaken, an that the "eyesore" of inadequate e x t e r i o r circuit reported council itself i t stated had been the 2 project steward"; restaurant resulted could traffic more at than the former court's noted that, before Tran had n o t been former and t h a t Ensley t h e r e had been are 2 de n o v o h e a r i n g o n J u n e Tran licensed consumption a upkeep. of the c i t y - c o u n c i l witnesses. a Seafood 9, 2 0 1 1 , court properly considered the video recording area 20 r e s t a u r a n t b e t w e e n December 2007 a n d November rebuilding "good (4) Patterson police the had and meeting testified to sell and a r e l i c e n s e d and the t e s t i m o n y that beer and other businesses and to s e l l wine for and beer offwine "[Alabama Code 1975, 28-1-6(b),] requires the t r i a l judge reviewing the municipality's denial of a license [to s e l l i n t o x i c a t i n g beverages] to consider a l l the e v i d e n c e b e f o r e t h e m u n i c i p a l i t y and any new e v i d e n c e t h a t may b e o f f e r e d a t t h e d e novo hearing i n the c i r c u i t court. § 28-1-6(b) C i t y of Mobile 1999). v. Simpsiridis, 7 733 So. 2d 378, 381 ( A l a . 2110331 for on-premises Patterson's been filed consumption. statement listing restaurant, and the incidents not specify or to he were that the more address said not that than of the disputed 20 former Seafood, Tran reports Ensley i f some i n c i d e n t s referred Detective police his responsibility. w h e t h e r he Ensley He Seafood had o c c u r r e d , A l t h o u g h he to the former E n s l e y disputed had the city Seafood council's s t a t e m e n t t h a t he h a d n o t b e e n a g o o d s t e w a r d ; h e s a i d t h a t had kept exterior the premises clean. and of the E n s l e y Seafood interior newly offered photographs of he the facility, in i t s i n t e n d e d to convince the constructed condition, court He did circuit of i t s c l e a n l i n e s s . C o u n c i l m a n Hoyt, whose d i s t r i c t i n c l u d e s t h e neighborhood i n which the E n s l e y Seafood f a c i l i t y i s located, admitted that there businesses were at least physical proximity licenses to s e l l unlike to beer H o w e v e r , he t e s t i f i e d four other Ensley and Seafood's wine that, proximity is to located next "several" facility close that had f o r o f f - p r e m i s e s consumption. i n h i s opinion, Ensley Seafood the other b u s i n e s s e s . facility within He door day-care 8 said to a was that Ensley Seafood's church in centers and and an close apartment 2110331 complex. He d e s c r i b e d t h e r o a d facility Ensley four as a "busy t h o r o u g h f a r e , " Seafood years" Seafood Tran Houston t e s t i f i e d and r e b u i l t the or Ensley of Warriors ("the c h u r c h " ) , i s located directly to the Ensley next Seafood o f f e r e d a free day-care p e r week. He stated generally "below average "targets" individuals addiction programs. criminal that f o r "three t h a t h e was t h e p a s t o r Fellowship said: "blighted" demolished International days a n d he s a i d t h a t t h e f o r m e r r e s t a u r a n t had been before Seafood facility. Dr. church leading to the Ensley activity " I ' v e seen which facility. He said the s e r v i c e t o i t s 500 m e m b e r s that the church's income" earners members and t h a t the 7 are church who a r e i n n e e d o f s u b s t a n c e - a b u s e a n d When asked a t the former drugs sold he h a d " o f t e n " p a i d whether Ensley he witnessed S e a f o o d r e s t a u r a n t , he [ i nthe parking t o have had the area lot]." around He the said former E n s l e y S e a f o o d r e s t a u r a n t c l e a n e d a n d t o h a v e t h e g r a s s on i t s lot cut. Theresa Barnes i s the c i t y liaison to the c i t y zoning i n s p e c t o r and p e r s o n a l c o u n c i l ' s p u b l i c - s a f e t y committee f o r zoning issues p e r t a i n i n g to liquor licenses. 9 She t e s t i f i e d on 2110331 behalf of to the City. She said l o c a t e d near centers the the Ensley one apparently that Seafood operated by the Detective Patterson t e s t i f i e d the city license application. "criminal i n c i d e n t s " at between December examination, could an the 2007 occurred before i n v e s t i g a t o r of Ensley said November the in addition appeared that there Seafood 2010. t h a t some o f t h o s e near i n c i d e n t of d o m e s t i c v i o l e n c e c o u l d have o c c u r r e d in r e s t a u r a n t and an instead landmark complex. He the Ensley to arbitrary of giving conceded t h a t demolition due cross- -¬ the Seafood a is restaurant criminal incidents the p o l i c e c o u l d have i n d i c a t e d E n s l e y during 26 restaurant apartment complex behind Ensley were Under telephoning the day-care church. an He two facility former Ensley and he a d m i t t e d have e.g., the were t h a t he h a d c o u n c i l i n h i s c a p a c i t y as Seafood's there of the Seafood the former construction the Ensley Seafood the apartment occurred Seafood as before restaurant and period. argues that because, the reversed and c a p r i c i o u s d e n i a l of right of i n c i d e n t s had be constitutional address individual to equal 10 circuit i t says, the court's the city judgment council's license violated i t s protection of the laws. It 2110331 asserts to that "four institutions Ensley licenses Seafood by the were [c]ity granted which are s i m i l a r l y off-premises beer situated and wine [c]ouncil." "The F o u r t e e n t h A m e n d m e n t p r o v i d e s t h a t ' [ n ] o state shall ... deny t o any p e r s o n within i t s j u r i s d i c t i o n t h e e q u a l p r o t e c t i o n o f t h e l a w s . ' The United States Supreme Court has addressed the c o n s t r a i n t s p l a c e d on t h e j u d i c i a r y i n r e v i e w i n g an equal-protection challenge of this nature. In P l y l e r v . Doe, 457 U.S. 2 0 2 , 2 1 6 , 102 S. C t . 2 3 8 2 , 72 L. E d . 2 d 786 ( 1 9 8 2 ) , t h e C o u r t s t a t e d : "'The E q u a l P r o t e c t i o n C l a u s e d i r e c t s that " a l l persons s i m i l a r l y circumstanced s h a l l be t r e a t e d a l i k e . " F.S. R o y s t e r Guano C o . v . V i r g i n i a , 2 5 3 U.S. 4 1 2 , 415 [40 S. C t . 5 6 0 , 64 L . E d . 9 8 9 ] ( 1 9 2 0 ) . B u t s o t o o , " [ t ] h e C o n s t i t u t i o n does n o t r e q u i r e t h i n g s which are d i f f e r e n t i n f a c t or o p i n i o n to be t r e a t e d i n l a w as t h o u g h t h e y were t h e s a m e . " T i g n e r v . T e x a s , 310 U.S. 1 4 1 , 147 [60 S. C t . 8 7 9 , 84 L . E d . 1 1 2 4 ] ( 1 9 4 0 ) . The initial d i s c r e t i o n to determine what i s " d i f f e r e n t " a n d w h a t i s " t h e same" r e s i d e s in the l e g i s l a t u r e s of the States. A l e g i s l a t u r e must have s u b s t a n t i a l l a t i t u d e to e s t a b l i s h c l a s s i f i c a t i o n s that roughly approximate the nature of the problem perceived, that accommodate competing concerns b o t h p u b l i c and p r i v a t e , and t h a t a c c o u n t f o r l i m i t a t i o n s on t h e p r a c t i c a l a b i l i t y o f t h e S t a t e t o remedy e v e r y i l l . In a p p l y i n g the Equal P r o t e c t i o n Clause t o m o s t f o r m s o f s t a t e a c t i o n , we t h u s seek only the assurance that the c l a s s i f i c a t i o n a t i s s u e b e a r s some f a i r r e l a t i o n s h i p t o a legitimate public purpose.'" J e f f e r s o n Cnty. v . R i c h a r d s , 805 S o . 2 d 6 9 0 , 698 11 ( A l a . 2001). 2110331 The city council close proximity sell beer Dixie was aware that four businesses to the Ensley Seafood f a c i l i t y and wine f o r off-premises grocery store, a Kangaroo within had l i c e n s e s t o consumption -- convenience store, a Winn- a Rite A i d p h a r m a c y , a n d a CVS p h a r m a c y ( c o l l e c t i v e l y r e f e r r e d t o as " t h e four In addition, licensed businesses"). aware t h a t an A p p l e b e e ' s from the Ensley alcoholic apparent city of for f o r on-premises present council the difference Applebee's a license differentiate Seafood. discussion "a p r o b l e m only license to members equal a one-sentence to saying sell that Applebee's The the Instead, to hear city four and wine license council licensed the c i t y a n d make council was did for not businesses used comments 12 for licensed explanation and the applied off-premises on-premises attempt from the majority concerning the protection," that Ensley Seafood had beer sell It i s of the four with was across the street between the E n s l e y Seafood f a c i l i t y and consumption. a council consumption. the existence offered restaurant, consumption had t h e c o m m e n t s made b y c o u n c i l might the c i t y located facility, c o u n c i l was a w a r e t h a t businesses yet Seafood beverages from restaurant, the c i t y the to Ensley of the grounds 2110331 for disapproving a liquor § 28-1-6(a)(1)b. and welcomed district Seafood's attached Seafood's that having i t the convenience The circuit did licenses court to l o c a t i o n had ever had businesses applied admitted is Seafood's had 2d 952 sell beer to are that i t s beer no in the Ensley wine or of in i t s and wine at a license to s e l l He testified directly CVS physically next pharmacy closer the that to across the off-premises Seafood and wine f o r o f f Ensley before four of church, the church Seafood than Seafood the other although street is licensed Ensley none to the from businesses Ensley because the because door for beer licenses and testimony four licensed business license the idea confirming t h a t the acquired their from is he the Ensley facility. Ensley Seafood So. the four licensed businesses for businesses church that consumption. the business favor heard sell and unlike 1975, store. consumption premises i n A l a . Code restaurant not ability Councilman Hoyt i n d i c a t i n g have s e t out I t s t a t e d more t h a n once t h a t i t a p p r e c i a t e d Ensley but license relies ( A l a . 1979), on Swann v . C i t y o f G r a y s v i l l e , and B r a t t o n v. 13 City of Florence, 367 688 2110331 So. 2d 233 our Bratton ( A l a . 1996), supreme violation court analyzed Florence In t h a t case, feared commission building permit. the Brattons' commission granted building permit the agreeing The and remanded t h e cause treatment" favor. In Swann of an 688 S o . the city's application the city's apartment court for a complex" entered Id. for a planning application of Florence. with the Brattons c a p r i c i o u s treatment evidence circuit of the City and Bratton, a congestion; applicant's f o r a "20- t o 3 0 - u n i t judgment i n f a v o r whether seven-unit A t t h e same t i m e , Id. In proposed the Brattons' another street. same denied Id. court. the planning commission f o r the C i t y that planning offer this the question apartment complex would c r e a t e t r a f f i c court, to of equal p r o t e c t i o n had occurred. 2d a t 234. of i n i t sbrief on a summary Our supreme that the issue of a r b i t r a r y was i m p l i c a t e d , r e v e r s e d t h e j u d g m e n t to require the planning "articulable so as t o e n t i t l e basis commission t o f o r the i t t o a summary disparate judgment in i t s I d . a t 235. Swann, was application our denied supreme equal for a license court determined protection to sell 14 of the that laws Virginia when a l c o h o l was d e n i e d . her Swann, 2110331 367 S o . 2 d a t 9 5 3 . W h i l e S w a n n ' s a p p l i c a t i o n was p e n d i n g , t h e City of G r a y s v i l l e enacted beer or wine w i t h i n Id. Swann a n d t h r e e located The within licenses after unlike restricting of churches to sell sales and the three distance licensed from a purveyors of the ordinance; licensed alcohol church. were the Graysville ordinance said that Id. renewed was Swann was she had n o t been t h e o r d i n a n c e was a d o p t e d a n d t h r e e l i c e n s e d p u r v e y o r s had been l i c e n s e d t o s e l l before were Swann's a p p l i c a t i o n purveyors because before was adopted. the three Id. The licensed alcohol City purveyors of were e n t i t l e d t o have t h e i r l i c e n s e s renewed even though they, Swann, w e r e l o c a t e d close of schools. l i c e n s e d p u r v e y o r s of beer and wine The C i t y o f G r a y s v i l l e c o n t e n d e d t h a t the three licensed the of Id. proximity the prohibited the adoption denied. close an o r d i n a n c e to a church. Id. Our supreme like court r e v e r s e d t h e judgment and remanded t h e cause, s t a t i n g t h a t i t was "evident from license on the business l a y within the record basis the ordinance" had their licences that that the the distance despite the fact .. . Swann proposed was refused location of from a church p r o h i b i t e d that similar businesses a her by had renewed i n v i o l a t i o n o f h e r r i g h t t o e q u a l 15 2110331 protection of the laws. protection rights Graysville's the three Graysville had "mistaken licensed Id. been I t said violated belief" that purveyors. had m i s t a k e n l y that due Swann Id. at believed the purveyors' licenses 954. that, and that to was the that instead the C i t y The three licensed purveyors' three licensed purveyors and the denial discriminatory were of of t h e new Swann was n o t s i m i l a r t o not required licenses; o f Swann's exercise was City to t o renew t h e t h r e e of a renewal a p p l i c a t i o n . of G r a y s v i l l e of dissimilar three l i c e n s e d purveyors because her a p p l i c a t i o n application equal- City even a f t e r o r d i n a n c e h a d b e e n e n a c t e d , i t was r e q u i r e d licensed Swann's therefore, similarly application the City The c o u r t t o renew Swann situated was was a new held the and the businesses an a r b i t r a r y of Graysville's and power. Id. Like the contention Swann, t h e c i t y similarly council situated made by the City contended that to the four of Graysville in E n s l e y S e a f o o d was n o t licensed businesses or to the Applebee's restaurant. The c i r c u i t c o u r t a g r e e d w i t h t h e c i t y council. court's The circuit part: 16 judgment reads in pertinent 2110331 "Applebee's i s not s i m i l a r i n t h a t i t does not s e l l alcoholic beverages [for] off-premises [consumption]. Winn Dixie and Rite Aid are d i s s i m i l a r to E n s l e y Seafood i n the n a t u r e of t h e i r business. Kangaroo c o n v e n i e n c e i s most s i m i l a r t o E n s l e y S e a f o o d . However, o t h e r [than] b e i n g c l o s e t o E n s l e y S e a f o o d , [ E n s l e y S e a f o o d ] f a i l e d t o show t h a t Kangaroo convenience s t o r e i s s i m i l a r l y situated. More s p e c i f i c a l l y , [ E n s l e y S e a f o o d ] has n o t shown t h a t t h e K a n g a r o o c o n v e n i e n c e s t o r e i s i n t h e same p r o x i m i t y t o r e s i d e n t i a l a p a r t m e n t s and d a y c a r e s as i s E n s l e y S e a f o o d , t h a t i t s owner has a h i s t o r y o f not being a good steward of the neighborhood, t h a t i t has l i k e c r i m e h i s t o r y as E n s l e y S e a f o o d , o r t h a t t h e t r a f f i c i s as c o n g e s t e d a t K a n g a r o o c o n v e n i e n c e s t o r e as i t i s a t E n s l e y S e a f o o d ' s l o c a t i o n . " 3 A a circuit municipality's withheld; circuit was court that arbitrary or set approval however, court may was Ensley the aside the arbitrarily Seafood city We standard are whether credible correct. We supports a license i f capriciously persuade in this constrained circuit have r e v i e w e d the evidence to denial, are of r e v i e w to presume t h a t the findings or failed council's capricious. d e n i a l of the court's record to circuit the case, by our factual discern court's We note t h a t the circuit court's findings failed to r e f e r e n c e t h e CVS p h a r m a c y , w h i c h i s p h y s i c a l l y c l o s e r t o t h e church than i s the E n s l e y Seafood f a c i l i t y . We p r e s u m e t h a t the c i r c u i t c o u r t w o u l d d e t e r m i n e t h a t a R i t e A i d pharmacy and a CVS p h a r m a c y a r e i n t h e same b u s i n e s s a n d , a c c o r d i n g t o i t s reasoning, t h a t t h e CVS p h a r m a c y i s t h e r e f o r e n o t similarly s i t u a t e d to Ensley Seafood. 3 17 2110331 judgment circuit in this case. We might court lacked substantial have determined evidence demonstrating t h e d e n i a l o f E n s l e y S e a f o o d ' s a p p l i c a t i o n was capricious that if misuse Ensley crime that Ensley has a at i t s address, and of 1995), history of Petroleum or and violated decision-making body's denial applicant p r o t e c t i o n of the of a the four stewardship, of traffic. Corp., asked unlike bad congested c o u r t was equal power p r o t e c t i o n was Seafood, this 508. App. Russell that an a r b i t r a r y council's licencing to equal the n o t b a s e d i t s judgment, i n p a r t , upon businesses, I n Mims v. Civ. city right c o u r t had determination licensed the Seafood's the c i r c u i t its of that 473 to So. 507 (Ala. consider whether license laws. 2d had Mims, a denied 473 I n Mims, t h e A l c o h o l i c B e v e r a g e C o n t r o l B o a r d the So. at 2d ("the B o a r d " ) h a d d e n i e d an o f f - p r e m i s e s b e e r - l i c e n s e a p p l i c a t i o n ABC to t h e R u s s e l l C o r p o r a t i o n , d / b / a / K w i k S h o p ("the c o r p o r a t i o n " ) , due the t o t h e ABC Board's concerns corporation's located i n an Montgomery ordered the area Circuit ABC new convenience frequented Court Board over to by granted grant 18 a the proposed store, small a which children. writ of license to location was to Id. certiorari the of be The and corporation 2110331 because, was the trial arbitrary. that there court Id. In e x i s t e d no application schools licensees i n Mobile, proximity business and to the The ABC judgment and not rational schools, Id. Id. the a p p l i c a t i o n the trial for the court denial at the an and other churches Thus, counties to right 509. were i n said a heavily traveled trial court's judgment off-premises beer l i c e n s e this court. We reversed equal Board application for t h e r e f o r e , had p r o t e c t i o n of not v i o l a t e d that We to other and corporation's b e e r l i c e n s e and, corporation's the 'near because r e m a n d e d t h e c a u s e , s a y i n g t h a t t h e ABC the of 507. appealed denied stated l i c e n s e e s i n T a l l a s s e e were Board to grant Board arbitrarily off-premises basis J e f f e r s o n , and districts.'" corporation. d e n i a l of busy shopping areas,' to c o m p e l l e d t h e ABC the i t s judgment, "because other churches, 'near said, the laws. Id. " [ t ] h e f a c t s of t h i s case, a r i s i n g i n a s m a l l r u r a l town, a r e c l e a r l y d i f f e r e n t from c a s e s r e l i e d upon by the R u s s e l l C o r p o r a t i o n . E a c h c a s e depends upon its own facts. The distinctions of place and l o c a t i o n , s m a l l t h e y may b e , a r e t h e b a s i s f o r t h e exercise of the discretion of the board. See Broughton [v. Alabama A l c o h o l i c B e v e r a g e Control B d . ] , 348 So. 2d [1059,] 1060 [(Ala. Civ. App. 1977)]; see also 45 Am. Jur. 2d Intoxicating L i q u o r s , § 138 (1969). 19 the had an the at 2110331 "We cannot, t h e r e f o r e , say t h a t the Russell C o r p o r a t i o n was d e n i e d e q u a l p r o t e c t i o n o f t h e l a w s b y an a r b i t r a r y e x e r c i s e o f d i s c r e t i o n b y t h e B o a r d . To say that a license must be granted to a p a r t i c u l a r l i c e n s e e w i t h i n a c e r t a i n number o f f e e t of a school, [church], or other eleemosynary i n s t i t u t i o n because there are other l i c e n s e e s i n the same t o w n , o r a n o t h e r t o w n , i n a ' n e a r p r o x i m i t y , ' i.e., c e r t a i n number o f f e e t , o f s u c h i n s t i t u t i o n , thwarts the discretion of the ABC Board. Furthermore, and foremost, such a ruling would require this court to review every license a p p l i c a t i o n f i l e d w i t h t h e ABC B o a r d , a p p r o x i m a t e l y 12,000 a c c o r d i n g t o t h e t e s t i m o n y i n t h i s c a s e . "Community s t a n d a r d s , i . e . , o p p o s i t i o n t o t h e l o c a t i o n of r e t a i l e r s of i n t o x i c a n t s , a l s o have a b e a r i n g on e a c h c a s e . C f . B r o u g h t o n , 348 S o . 2 d a t 1060. T h e r e i s e v i d e n c e i n t h e p r e s e n t c a s e t h a t t h e mayor, c i t y c o u n c i l , s c h o o l b o a r d , o t h e r community l e a d e r s , and c i t i z e n s a r e s t r o n g l y opposed t o t h i s p a r t i c u l a r l o c a t i o n , b u t w o u l d welcome the R u s s e l l C o r p o r a t i o n ' s b u s i n e s s ' i n any l o c a t i o n b u t i n t h i s l o c a t i o n here '" Id. In C i t y o f Hueytown v. 2 d 761 ( A l a . 1977), whether had a Jiffy the the Chek applicant body's equal court a f f i r m e d the had been C h e k Co. o f A l a b a m a , 342 So. supreme c o u r t c o n s i d e r e d the q u e s t i o n decision-making denied Hueytown, our Jiffy denied denial protection trial equal because 20 of a of liquor the license laws. c o u r t ' s judgment protection of the In that laws 2110331 "[t]he uncontradicted evidence show[ed that] J i f f y Chek [wa]s s i t u a t e d no d i f f e r e n t l y t h a n the o t h e r m e r c h a n t s who w e r e i s s u e d t a b l e w i n e l i c e n s e s by the C i t y . I n r e s p e c t t o T i t . 29, § 73, a l l these merchants are l o c a t e d i n the p r o h i b i t e d area, y e t o n l y J i f f y Chek ha[d] been d e n i e d a l i c e n s e . " 4 Hueytown, 342 So. 2d at noting 762. The court, mile of schools sell a l c o h o l i c beverages, and that three other businesses within charitable organizations had licenses one to explained: "Sections 1, 6, and 22 of the Alabama C o n s t i t u t i o n combine to guarantee e q u a l p r o t e c t i o n o f t h e l a w s . The essence of the theory of equal protection of the laws is that a l l similarly s i t u a t e d b e t r e a t e d a l i k e . An i n d i v i d u a l c a n n o t be subjected to [ a r b i t r a r y ] e x e r c i s e of governmental p o w e r s . V e r n o n v . S t a t e , 245 A l a . 6 3 3 , 18 So. 2 d 388 ( 1 9 4 4 ) ." Id. We determine upon w h e t h e r that Ensley the that the r e s o l u t i o n of evidence before Seafood i s s i m i l a r l y the this circuit appeal court s i t u a t e d to other t h a t have been g r a n t e d l i c e n s e s t o s e l l b e e r and premises consumption, rendering the city indicates businesses wine f o r o f f - council's A t t h a t t i m e , T i t l e 2 9 , § 7 3 , A l a . C o d e 1940 1 9 5 8 ) , g o v e r n e d p r o c e d u r e s f o r g r a n t i n g and d e n y i n g to s e l l a l c o h o l i c beverages. 4 21 depends denial of (Recomp. licenses 2110331 Ensley Seafood's governmental Alabama licenses Class the application factors arbitrary exercise of powers. Code 1975, f o r the sale council had § 28-1-6, governs the "[i]ssuance of i n t o x i c a t i n g beverages i n Class 2 municipalities." city an The before circuit court i t evidence s e t out i n § 28-1-6(a)(1)b., of determined several w h i c h we of quote: "(a)(1) A l l other provisions of law, r u l e s , or regulations to the contrary notwithstanding, the Alabama Alcoholic Beverage Control Board shall a b s o l u t e l y h a v e no a u t h o r i t y t o i s s u e a n y f o r m o f license i n a Class 1 municipality, including, but not l i m i t e d t o , o f f - p r e m i s e s consumption l i c e n s e s , restaurant licenses, or club licenses, f o r the r e t a i l s a l e o f any form o f i n t o x i c a t i n g b e v e r a g e s , including, but not l i m i t e d t o , malt l i q u o r , beer, wine, l i q u o r , or other a l c o h o l i c beverage regulated by the board, unless one of the following requirements i s s a t i s f i e d : " "b. The d e n i a l of a p p r o v a l by the C l a s s 1 g o v e r n i n g body has been s e t a s i d e by order of the c i r c u i t c o u r t of the county i n w h i c h t h e s i t e i s s i t u a t e d on t h e g r o u n d t h a t t h e m u n i c i p a l a p p r o v a l was a r b i t r a r i l y or c a p r i c i o u s l y d e n i e d w i t h o u t a showing of one o f t h e f o l l o w i n g : "1. nuisance. The creation of a "2. Circumstances clearly detrimental to or which would 22 of 1 or that the 2110331 adversely affect the public health, safety, and welfare of the adjacent residential neighborhoods. "3. A violation of a p p l i c a b l e zoning r e s t r i c t i o n s or regulations. "4. An individual applying for the license has a prior conviction i n v o l v i n g the use of alcohol or a controlled substance. "5. The proximity of the business to a school or child care f a c i l i t y and the business hours of the operation will create a harmful environment for the children. "6. The traffic congestion c r e a t e d by l i c e n s i n g the p r o p o s e d l o c a t i o n w i l l endanger others. poses The the of the its seven circuit Ensley that could factors court's S e a f o o d had address, alleged Any other risk." reason that c i t y c o u n c i l h e a r d comments i n o p p o s i t i o n license the "7. a that and have s u p p o r t e d listed of T r a n had finding i n § 28-1-6(a)(1)b. judgment a history a of congested contained bad granting that several existed, findings stewardship, traffic. a prior conviction 23 the to of that crime at no one Clearly, involving and the use of 2110331 alcohol or allegations create the a controlled that granting a nuisance; could neighborhood health, safety, neighborhood; close that and could proximity traffic substance. create adversely welfare of harmful to child-care congestion. The c i t y circuit we have court's conclude allegedly that there that could detrimental affect adjacent to children the to public residential of the and c o u l d facilities; because create the license. every presumption i n j u d g m e n t a n d we a f f i r m t h a t disparate we d e t e r m i n e for indulged the were c o u n c i l was a l s o a w a r e t h a t t h e EHNA m e m b e r s o p p o s e d g r a n t i n g We circumstances there Seafood the license to Ensley would be However, exists judgment an a r t i c u l a b l e treatment of Ensley the denial of Ensley favor basis Seafood. of the because f o r the Therefore, Seafood's a p p l i c a t i o n a l i c e n s e was n o t a n a r b i t r a r y a n d c a p r i c i o u s e x e r c i s e o f governmental powers; indicating that discretion to the deny we city Ensley perceive council some credible properly Seafood's evidence exercised i t s application f o r the license. AFFIRMED. Thompson, P . J . , and Pittman 24 and Moore, J J . , concur. 2110331 Bryan, J . , concurs i n the 25 result, without writing.

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