LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, Appellant/Cross-Appellee, v. TDC GROUP, LLC, d/b/a Molly Malone‘s, Appellee/Cross-Appellant, and Alcoholic Beverage Control Board, Commonwealth of Kentucky, Appellee.
Nos. 2007-SC-000315-DG, 2007-SC-000581-DG.
Supreme Court of Kentucky.
Feb. 19, 2009.
Rehearing Denied June 25, 2009.
283 S.W.3d 657
The Court of Appeals decision is reversed and the trial court‘s dismissal under federal preemption is reinstated.
All sitting. All concur.
David A. Sexton, Assistant Jefferson County Attorney, Louisville, KY, Counsel for Appellant/Cross Appellee, Louisville/Jefferson County Metro Government.
Kenneth Sidney Handmaker, Kevin Lee Chlarson Middleton Reutlinger, Louisville, KY, Counsel for Appellee/Cross Appellant, TDC Group, LLC, d/b/a Molly Malone‘s.
Opinion of the Court by Justice NOBLE.
This appeal arises from a challenge by Louisville/Jefferson County Metro Government (“Metro“) to a decision of thе Alcoholic Beverage Control Board to grant a retail drink license to TDC Group, LLC, d/b/a Molly Malone‘s (“Molly Malone‘s“). The issues raised concern
I. Background
Molly Malone‘s operates at 933 Baxter Avenue in Louisville, Kentucky, where it serves food and drink to the public. It holds a retail beer license, a restaurant drink license, a limited Sunday license, and three supplemental bar licenses. In September 2004, Molly Malone‘s applied for a retail liquor drink license to replace its restaurant drink license. The local ABC
Molly Malone‘s appealed the decision to the ABC Board. The Board held a full adjudicatory hearing at which it heard testimony from William Schreck, the local ABC administrator;1 Wayne Westerman, a land surveyor and expert for Molly Malone‘s; Donal Ryan, one of the owners of Molly Malone‘s; аnd Charles Weathers, the local ABC investigator who made the under-700-feet measurements. The Board concluded that the lack of parking was not a sufficient reason for denying the license, citing the fact that Molly Malone‘s had previously been granted a waiver reducing its number of required off-street parking spaces. The Board also found that public sentiment was not enough to deny the license because petitions by members of the public had been presented in favor of and in opposition to the application for the license.
The Board also found that the local administrator had incorrectly measured the distance between Molly Malone‘s and the other establishments. Specifically, the Board found that
Based on these findings, the Board ordered that Molly Malone‘s application be granted. Metro appealed the decision to the Franklin Circuit Court, arguing that the Board incorrectly interpreted
Metro again appealed, challenging the Board‘s reading of the statute. Molly Malone‘s filed a cross-apрeal, again seeking to have the statute declared unconstitutional. The Court of Appeals held that the Board had properly read the statute to require both lawful and safe travel, but held that the path followed by the local administrator was neither unlawful nor unsafe. The court went on to address the constitutionality of the statute, holding that it violated the proscription on special legislation found in Sections 59 and 60 of the Kentucky Constitution.
This Court granted Metro‘s motion for discretionary review and Molly Malone‘s subsequent cross-motion for discretionary review.
II. Analysis
A. Priority of Issues
Both parties’ issues are properly before the Court. However, because both a question of statutory construction and application, and a question of constitutionality are presented, the order in which the issues should be taken up by the Court must first be addressed.
Molly Malone‘s argues that the constitutionality of the statute must be addressed first because to do otherwise requires application of a potentially unconstitutional statute. In support of this position, Molly Malone‘s cites D.F. v. Codell, 127 S.W.3d 571, 578 (Ky.2003), which held a statute to be unconstitutional and then declined to address other issues raised in the case because they were moot. Molly Malone‘s ignores that the other issues in Codell involved other constitutional challenges to the statutory scheme in question.
More importantly, it ignores “the longstanding practice of this Court ... to refrain from reaching constitutional issues when other, non-constitutional grounds can be relied upon.” Baker v. Fletcher, 204 S.W.3d 589, 597-98 (Ky.2006); see Dawson v. Birenbaum, 968 S.W.2d 663, 666 (Ky.1998) (“It is well settled that where a party pleads both statutory and constitutional claims, the court deciding those claims should limit itself to considering the statutory claims if in so doing the court may avoid deciding complex constitutional issues.“); Preston v. Clements, 313 Ky. 479, 232 S.W.2d 85, 88 (1950) (“The prevailing rule seems to be that the courts will avoid the question of constitutionality unless necessary to a proper determination of the merits of the cause under consideration.“); see also Three Affiliated Tribes of Fort Berthold Reservatiоn v. Wold Engineering, P.C., 467 U.S. 138, 157-58, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) (“It is a fundamental rule of judicial restraint, however, that this Court will not reach constitutional questions in advance of the necessity of deciding them.“); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.“). This practice of avoiding constitutional questions is further buttressed in this Court‘s jurisprudence law by the presumption of constitutionality оf statutes. Baker, 204 S.W.3d at 598.
Therefore, despite Molly Malone‘s request, this Court cannot address the constitutionality of the statute without first determining whether the Court of Appeals was correct that it barred issuance of the license.
The Court of Appeals was correct in upholding the ABC Board‘s reading of
The Court of Appeals was also correct that it was legal to cross Baxter Avenue where the local administrator did when he measured the distance tо the nearest similar establishments. This determination depends in large part on the “unique geography,” as the Court of Appeals described it, where Molly Malone‘s is located. Specifically, it involves that portion of Baxter Avenue, which extends north and south, between its intersections with Highland Avenue (to the south) and Cherokee Road/Broadway (to the north).2 There are no cross-streets on the east side of Baxter Avenue between Highland Avenue and Cherokee Road/Broadway. However, on the west side, as one moves north from Highland Avenue, three streets—Morton Avenue, Christy Avenue, and Breckenridge Street, respectively—intersect with and terminate at Baxter Avenue. There are no marked crosswalks or traffic control signals at the termination of any of these three roadways. Directly across from Christy Avenue is an alley that runs perpendicular to Baxter Avenue.
Molly Malone‘s sits on the east side of Baxter Avenue, between the intersections with Morton Avenue and Christy Avenue. Wеt Willy‘s and Outlook Inn are located on the west side of Baxter. Wet Willy‘s is south of the intersection with Morton Avenue; Outlook Inn is located north of the intersection with Christy Avenue. The nearest intersection with a four-way stop and marked crosswalks is where Highland Avenue crosses Baxter Avenue.
The ABC Board held that it would be illegal for a pedestrian to cross Baxter Avenue at the intersections with Christy Avenue and Morton Avenue because of
This interpretation, however, ignores that the “at which traffic control signals are in operation” language modifies “adjacent intersections,” all of which creates the condition preсedent for the command to cross only in a marked crosswalk that follows. Thus, the crosswalks-only requirement applies only between adjacent intersections with traffic control signals. The Court of Appeals therefore correctly noted that this statute was inapplicable to the current situation, because there are no traffic control signals at “adjacent intersections” (which means intersections that are next to each other on a roadway). The areas where Morton Avenue, Christy Avenue, and Breckenridge Street terminate at Baxter Avenue are “intersections” as contemplated by Kentucky‘s traffic regulations. See
In fact, it appears that there is no absolute legal bar to crossing Baxter Avenue at any place in the area in question, even outside unmarked crosswalks.3 Instead,
Thus, the ABC Board was incorrect in reading
This conclusion, however, does not end the enquiry. The ABC Board read
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion;
(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely аffected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to
KRS 13B.040(2) ; or(g) Deficient as otherwise provided by law.
The judicial standard of review of an agency‘s decision therefore is largely deferential: “The ... court‘s role as an appellate court is to review the administrative decision, not to reinterpret or to reconsider the merits of the claim, nor to substitute its judgment for that of the agency as to the weight of the evidence.” 500 Associatеs, Inc. v. Natural Resources and Environmental Protection Cabinet, 204 S.W.3d 121, 131 (Ky.App.2006) (citation footnote omitted). When it comes to an agency‘s findings of fact, “[a]s long as there is substantial evidence in the record to support the agency‘s decision, the court must defer to the agency, even if there is conflicting evidence.” Id. at 132.
The Court of Appeals did not give such deference to the ABC Board‘s finding that crossing outside of the marked crosswalk at the intersection of Baxter Avenue and Highland Avenue was unsafe. The Court of Appeals’ holding is based on the facts
But the ABC Board‘s finding that Metro‘s proposed crossing is unsafe is a finding of fact, and thus must be upheld as long as there is substantial evidence to support it. At the Board‘s hearing, William Schreck, the local ABC administrator, testified that he lived near the area of Baxter Avenue in question and was personally familiar with it. He also agreed that Baxter Avenue is a “very heavily traveled thoroughfare.” Charles Weathеr, the ABC investigator, also testified that Baxter Avenue was a heavily traveled thoroughfare. Evidence also indicated that the closest marked crosswalk with traffic control signals was at the intersection of Highland Avenue and Baxter Avenue. The Board concluded in part that this heavy traffic made it unsafe to cross Baxter Avenue outside the marked crosswalk at Highland Avenue. The testimony of the local ABC administrator and investigator alone is sufficient to support the ABC Board‘s finding. Thus, this Court must conclude that it was supported by substantial evidence. Since the Board‘s decision was premised on requiring that the measurement be taken along a route that is both lawful and safe, this finding that Metro‘s proposed route was unsafe was alone enough to justify its decision not to accept Metro‘s measurement and instead to adopt the route proposed by Molly Malone‘s.
Moreover, since the ABC Board is charged with implementing
Though such an interpretation likely means the Board will grant more licenses, this Court cannot say that the Board‘s conclusion in this regard was arbitrary or capricious, or outside its legal authority under
III. Conclusion
The Court of Appeals therefore should have affirmed the decisions of the circuit
MINTON, C.J.; CUNNINGHAM, SCHRODER, SCOTT and VENTERS, JJ., concur. ABRAMSON, J., not sitting.