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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stevens v. State, Alcoholic Beverage Control Board (8/12/2011) sp-6588
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT STEVENS, d/b/a FISH HEADS)
BAR & GRILL, )
) Supreme Court No. S-13436
Appellant, )
) Superior Court No. 3AN-06-09309 CI
v. )
) O P I N I O N
STATE OF ALASKA, ALCOHOLIC )
BEVERAGE CONTROL BOARD and ) No. 6588 - August 12, 2011
MATANUSKA-SUSITNA BOROUGH, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sen K. Tan, Judge.
Appearances: Christine S. Schleuss, Law Office of Christine
Schleuss, Anchorage, for Appellant. John J. Novak, Assistant
Attorney General, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for Appellee State of Alaska. John
Aschenbrenner, Deputy Borough Attorney, Lisa Thomas,
Assistant Borough Attorney, and Nicholas Spiropoulos,
Borough Attorney, Palmer, for Appellee Matanuska-Susitna
Borough.
Before: Fabe, Winfree, Christen, and Stowers, Justices.
[Carpeneti, Chief Justice, not participating.]
WINFREE, Justice.
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I. INTRODUCTION
A bar owner was charged with and convicted of violating borough noise and
adult entertainment ordinances. The borough later protested continued operation under
the bar owner's liquor license to the Alcoholic Beverage Control Board (ABC Board).
The ABC Board sustained the protest and denied the bar owner's continued operation
under his liquor license. The bar owner requested an adjudicatory hearing before an
administrative law judge to review the ABC Board's decision. The administrative law
judge recommended the ABC Board uphold its initial decision and enforce the denial of
continued operation under the license. The ABC Board adopted the recommendation.
The bar owner appealed to the superior court, which affirmed the ABC Board's decision.
The bar owner appeals, and we affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Robert Stevens owned and operated Fish Heads Bar & Grill (Fish Heads)
in the Matanuska-Susitna Borough and held a biennial liquor license. Because Fish
Heads operated outside designated commercial use areas in the Matanuska-Susitna
Borough, Borough Code required Stevens to obtain a conditional use permit.1
Fish Heads drew excessive-noise complaints from neighbors. The Borough
hired an acoustics expert to determine whether Fish Heads complied with applicable
Borough noise ordinances; it did. The Borough then enacted a new noise ordinance
prohibiting both: (1) emitting noise "plainly audible outside the real boundary of the
property" during certain hours and (2) operating sound-amplifying devices that "create[]
vibration which is above the vibration perception threshold of an individual at or beyond
1 See Matanuska-Susitna Borough Code (MSBC) 17.70.020(A)(1), (B)
(requiring "uses [of land] requiring a beverage dispensary license under AS 04.11.090
(bar, lounge, and the like)" to obtain conditional use permit).
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the real property boundary of the source of the vibration."2
The Borough cited Stevens twice in May 2004 for violating this new
ordinance and he was convicted of both violations. Stevens unsuccessfully appealed
these convictions to the court of appeals.3 Stevens also staged adult dance performances
in November 2004; the Borough cited Stevens for violating an ordinance requiring a
conditional use permit to operate an "adult cabaret"4 and he was subsequently convicted.
Stevens appealed these convictions to the court of appeals, which concluded the
Borough's adult entertainment ordinance presented a "significant possibility" of a First
5 6
Amendment violation. The court of appeals remanded the case to the district court, and
the Borough later dropped its adult entertainment case against Stevens.
In January 2005 the Borough's Director of Planning and Land Use
(Director) protested Stevens's continued operation under his liquor license. The Director
relied on the ordinance violations in alleging that Stevens's continued operation of Fish
Heads was "contrary to the best interests of the public." In February 2005 the ABC
Board accepted the Director's protest and denied Stevens's continued operation under
2 Former MSBC 08.52.015(A), (B) (2004). The Borough Assembly repealed
these subsections of MSBC 08.52.015 in 2008. See Matanuska-Susitna Borough
Ordinance 08-005, § 4 (2008).
3 Stevens v. Matanuska-Susitna Borough, 146 P.3d 3, 13 (Alaska App. 2006).
4 See MSBC 17.90.015.
5 Stevens v. Matanuska-Susitna Borough, Nos. A-9674, A-9683, 2007 WL
2143008, at *1 (Alaska App. July 25, 2007).
6 Id. at *3.
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his license,7 but allowed Fish Heads to operate pending the outcome of an adjudicatory
hearing under the Administrative Procedure Act (APA).8 Stevens challenged the protest
as both untimely and improperly filed by a Borough employee instead of the Borough
itself. An administrative law judge (ALJ) concluded the Borough's protest was timely
and properly filed and denied Stevens's motion for summary adjudication.
The ALJ held a two-day hearing in January 2006 to provide Stevens "an
opportunity to show that [the Borough's] protest was arbitrary, capricious[,] and
unreasonable." The Borough presented its history of problems with Fish Heads,
including past ordinance violations. Stevens and his bar manager both testified about
efforts to minimize the noise. The ALJ ultimately concluded that: (1) the Borough's
protest was properly filed; (2) the Borough was not required to bring its protest before
the Borough Assembly or its planning commission before filing it with the ABC Board;
and (3) because Fish Heads repeatedly violated local ordinances, the Borough's protest
was not arbitrary, capricious, and unreasonable. The ALJ recommended the ABC Board
deny Stevens's continued operation under his liquor license. The ABC Board adopted
the ALJ's recommendation.
Stevens appealed the ABC Board's decision to the superior court. In
January 2009 the superior court concluded that: (1) the Director properly protested
Stevens's license on the Borough's behalf pursuant to a lawful delegation of Borough
7 A local governing body may object to an application for the issuance,
renewal, transfer, or continued operation of a liquor license. AS 04.11.480(a). When
such a municipal protest is properly filed, "the [ABC Board] shall deny the application
or continued operation unless the [ABC Board] finds that the protest is arbitrary,
capricious, and unreasonable." Id.
8 AS 44.62.950 ("This chapter may be cited as the Administrative Procedure
Act.").
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authority; (2) the ALJ correctly required Stevens to prove the Borough's protest was
arbitrary, capricious, and unreasonable; (3) Stevens failed to properly raise before the
ABC Board or ALJ whether the Borough had authority to enact the noise ordinance that
formed one of the bases for its protest; (4) because Stevens's noise ordinance violations
resulted in criminal convictions, the Borough's reliance on those convictions as a basis
for its protest was not arbitrary, capricious, and unreasonable; and (5) because Stevens's
noise ordinance convictions properly formed a basis for the Borough's protest, the court
did not need to reach the issue of Stevens's adult entertainment ordinance violation.
Stevens appeals.
III. STANDARD OF REVIEW
When a superior court acts as an intermediate court of appeal, we
independently review the merits of an underlying administrative decision.9 "We apply
our independent judgment to questions of law that do not involve agency expertise,
including constitutional questions."10 We "apply our independent judgment to statutory
interpretation, adopting the rule of law most persuasive in light of precedent, reason, and
policy."11
9 Nelson v. State, Commercial Fisheries Entry Comm'n, 186 P.3d 582, 585
(Alaska 2008) (citing Simpson v. State, Commercial Fisheries Entry Comm'n, 101 P.3d
605, 609 (Alaska 2004)).
10 Squires v. Alaska Bd. of Architects, Eng'rs, & Land Surveyors, 205 P.3d
326, 332 (Alaska 2009) (citing Church v. State, Dep't of Revenue, 973 P.2d 1125, 1127
(Alaska 1999)).
11 Alaska Nat'l Ins. Co. v. Nw. Cedar Structures, Inc., 153 P.3d 336, 338
(Alaska 2007) (citing In re Life Ins. Co. of Alaska, 76 P.3d 366, 368 (Alaska 2003)).
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IV. DISCUSSION
A. The Borough's Protest Authority
Stevens argues that both the ABC Board and the superior court erred in
upholding a protest filed by the Director, rather than by the Borough itself. Stevens
concurs with the general principle that municipalities may broadly delegate their powers,
but argues that the Borough did not actually delegate the Borough's protest authority to
the Director.
The ALJ examined the liquor licensing protest procedures and stated that
"[n]othing . . . suggests a restriction on how, within the bounds of law, a 'local governing
body' must act to file a protest." The ALJ noted that the Borough properly passed an
ordinance delegating its protest authority to the Director, who acted "in accordance with
the procedure set out in that ordinance." The ALJ concluded that the Borough was not
required to bring a protest of Stevens's liquor license before the Borough Assembly or
its planning commission and that the Director followed Borough procedures established
by ordinance in protesting Stevens's liquor license.
The superior court briefly reviewed past versions of the Borough Code and
noted that "[i]t was clearly the intent of the Borough Assembly to broadly delegate the
authority to file protests [to] the planning and land use office." The superior court
concluded that the Borough permissibly delegated its protest authority to the Director,
who properly protested on the Borough's behalf.
We begin by noting the general principle that municipalities may broadly
delegate powers to municipal agencies or officers. Article X, section 1 of the Alaska
Constitution provides in relevant part that a "liberal construction shall be given to the
powers of local government units." Alaska Statute 29.20.400(a) provides that the
"governing body [of a municipality] may establish municipal departments and distribute
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functions among them."12 Alaska Statute 29.35.410 reinforces this authority by
conferring upon municipalities "all powers and functions necessarily or fairly implied in
or incident to the purpose of" the powers contained in Title 29, including the power to
establish departments and distribute functions to those departments as provided by AS
29.20.400(a).13
Alaska Statute 04.11.480(a) permits municipalities to protest the issuance,
renewal, relocation, transfer, or continued operation of liquor licenses within their
borders. It follows that absent some reason to believe the legislature limited a
municipality's authority under AS 04.11.480, the Borough may delegate its protest power
to a department or department head, such as the Director. Stevens offers no such reason,
and we find none.
Stevens instead narrowly argues that the Borough Code does not actually
empower the Director to protest the continued operation of his license. In relevant part,
MSBC 08.40.010 provides:
(A) Upon notice from [the ABC Board] of an application
within the Borough for the issuance, renewal, or transfer of
location [of a liquor license] as defined in AS 04.11.480, the
planning and use department shall:
(1) review the application for compliance with
MSBC 17.70 to determine that no permit is
required, or that the applicant has obtained any
permits required and no violations to a permit
exist[]; . . . .
Stevens's argument relies on MSBC 08.40.010's failure to mention
12 Alaska Statutes Title 29, Chapter 20 is entitled "Municipal Officers and
Employees." Id.
13 Alaska Statutes Title 29, Chapter 35 is entitled "Municipal Powers and
Duties." Id.
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procedures for protesting a liquor license's "continued operation." Stevens proposes we
interpret MSBC 08.40.010 as excluding protests against continued operation from the
Borough's delegation to the Director. We decline to do so.
When the Borough adopted MSBC 08.40.010, the then-current version of
AS 04.11.480(a) allowed municipalities to protest the issuance, renewal, or transfer of
a liquor license, but it did not allow municipalities to protest a license holder's continued
operation.14 At the time, MSBC 08.40.010 tracked former AS 04.11.480(a) in delegating
the Borough's protest authority in each licensing posture to the Director. The legislature
amended AS 04.11.480(a) in 1995 to enable municipalities to protest a liquor license's
continued operation through its second year.15 The 1995 amendment added that "the
procedures for action on a protest of continued operation of a license are the same as the
procedures for action on a protest of a renewal application."16 In light of this legislative
history, we read MSBC 08.40.010 as delegating the Director authority to protest the
continued operation of a liquor license to the same extent as for a license issuance,
renewal, or transfer.
We nonetheless note that MSBC 08.40 substantially restricts the Director's
discretion in filing a protest. The Director is required to review each license application
for compliance with the Borough's conditional use permit requirements.17 If the
applicant meets conditional use permit requirements - either because no permit is
necessary or because of compliance with all necessary permits - the Director shall
14 Former AS 04.11.480(a) (1994).
15 See ch. 101, § 20, SLA 1995 (providing for municipal protests against
continued operation of liquor licenses).
16 Id.; see also AS 04.11.480(a).
17 MSBC 08.40.010(A)(1) requires the Director to "review . . . for compliance
with MSBC 17.70."
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notify the ABC Board that the Borough waives its right to protest the license.18 If the
applicant is in violation of any conditional use permit requirements, the Director shall file
a protest with the ABC Board indicating the reasons for protesting the license.19 The
ordinance language is mandatory; the Director must either waive protest or file a
protest.20 Because we read this provision to include protests to a license holder's
continued operation, MSBC 08.40 permits the Director to protest a license holder's
continued operation only if the licensee is out of compliance with a conditional use
permit requirement.21
The Director protested Stevens's continued operation under his license on
two separate grounds: Stevens's violations of MSBC 08.52, a noise ordinance, and of
MSBC 17.90, an adult entertainment ordinance. Like the superior court, we only need
to consider the first basis for the Director's protest. The Borough's standards for
conditional use permits include whether an establishment negatively affects neighboring
properties through "dust, noise, obtrusive advertising[,] and glare."22 This general
proscription embraces disruptive noise levels, the subject matter of MSBC 08.52, and
provides the legal foundation for the Director's protest.
18 MSBC 08.40.020 ("If the . . . department determines that the requirements
of [MSBC] 08.40.010 are satisfied, the department shall . . . notify the [ABC Board] that
[the Borough] waives its right to protest the application.").
19 MSBC 08.40.030(A) ("If the . . . department determines that any of the
requirements . . . are not satisfied, the department shall . . . notify the [ABC Board] that
[the Borough] protests the application. The protest shall state the reasons for the
protest.").
20 See MSBC 17.125.005(A)(3) (defining "shall" as "mandatory").
21 MSBC 08.40.010(A)(1), .020, .030(A).
22 MSBC 17.70.100(A)(2)(a).
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Even if this conclusion were incorrect, the Borough's participation at every
procedural level is sufficient to cure any deficiencies in the Director's authority to file
the protest. The Borough's attorneys appeared before the ALJ, the superior court, and
this court. At each stage of the proceedings the Borough's attorneys maintained that the
Director's actions properly represented the Borough's wishes, that the Borough
supported the protest against Stevens, and that Stevens operated Fish Heads contrary to
the Borough's interests.
We note several other state courts have concluded that a municipality may
cure the absence of a delegation of authority by ratifying an agent's act so long as the
municipality held the power to perform the original act. For example, the Supreme Court
of Washington recently distinguished between municipal acts ultra vires - those made
beyond a municipality's statutory authority - and acts within a municipality's power
that merely "suffer from some procedural irregularity."23 Although acts "performed with
no legal authority . . . cannot be validated by later ratification,"24 those merely exercised
through unauthorized procedural means may be later ratified and thereby adopted by a
municipality.25 Other courts have similarly concluded that when a municipality or
agency possesses a power and a subordinate improperly exercises that power, the
municipality or agency acting as principal may endorse that action and adopt it as its own
through either express or implied ratification.26
23 S. Tacoma Way, LLC v. State, 233 P.3d 871, 873 (Wash. 2010).
24 Id. at 874.
25 Id. at 873-74.
26 See, e.g., id.; Cal. Sch. Emp. Ass'n v. Pers. Comm'n, 474 P.2d 436, 439
(Cal. 1970) ("Moreover, an agency's subsequent approval or ratification of an act
delegated to a subordinate validates the act, which becomes the act of the agency itself.");
(continued...)
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We conclude that the Borough's extensive and continuing support ratified
the Director's protest, curing any possible defect and adopting that protest as if the
Borough had filed it directly with the ABC Board. We therefore affirm the superior
court's conclusion that the ALJ correctly upheld the validity of the Borough's protest
against Stevens.
B. Due Process And AS 04.11.480's Burden-Shifting Regime
Stevens raises two related issues regarding the burden of proof before the
ALJ, that: (1) two sections of Title 4 "hopelessly contradict[]" one another, rendering
it legal error to place the burden of proof on him; and (2) the Alaska Constitution's due
process clause prohibits placing the burden of proof on a liquor licensee in protest
proceedings. Stevens argues that the ALJ applied an unconstitutional construction of the
liquor licensing statutes and that we should vacate the proceedings below, directing the
ALJ to place the burden of proof on the Borough as the "entity lodging the protest."
Alaska Statute 04.11.370 provides that "[a] license or permit shall be
suspended or revoked if the [ABC Board] finds" a licensee has committed one of 11
prohibited acts or omissions.27 Stevens interprets this section as requiring the ABC
Board to bear the burden of proving one of 11 enumerated grounds before suspending
or revoking his license.
Alaska Statute 04.11.480 provides that a local governing body may object
to an application for the issuance, renewal, transfer, or continued operation of a liquor
26 (...continued)
Edwards v. Mettler, 129 N.W.2d 805, 809 (Minn. 1964) ("We have frequently held that,
where official action is insufficient, a board or municipal corporation may ratify or adopt
that which it could have done to begin with."); Casamasino v. City of Jersey City, 730
A.2d 287, 295 (N.J. 1999) (noting that "an intra vires act . . . may be ratified" by a
municipality).
27 AS 04.11.370(a)(1)-(11).
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license. When such a municipal protest is properly filed, "the [ABC Board] shall deny
the application or continued operation unless the [ABC Board] finds that the protest is
arbitrary, capricious, and unreasonable."28 Stevens argues that section .480 "clearly puts
the burden on the license holder . . . to somehow prove [a municipality's p]rotest was
arbitrary, capricious, and unreasonable."
Neither section, however, provides procedures for ABC Board hearings.
Another section of the liquor licensing laws - AS 04.11.510 - provides these
procedures. Alaska Statute 04.11.510(c) states that as a default, "[B]oard proceedings
to suspend or revoke a license shall be conducted in accordance with [the APA]." In
turn, the APA provides that "[u]nless a different standard of proof is stated in applicable
law, the . . . petitioner has the burden of proof by a preponderance of the evidence if an
accusation has been filed . . . or if the renewal of a right, authority, license, or privilege
has been denied."29 Section .480 is such an "applicable law." As Stevens concedes, AS
04.11.480 shifts the burden of proof to the licensee when a municipality successfully
protests the issuance, renewal, transfer, or continued operation of a liquor license.
Sections .370 and .480 do not contradict one another - they apply in
different circumstances. Section .370 is a penal provision under which the regulatory
agency is the petitioner subject to the burden of proof. Section .480 provides a
mechanism for public influence over liquor licenses; after a municipal protest under AS
04.11.480 the licensee, seeking to overcome the cessation of its operations under its
license, bears the burden of proof.
Stevens alternatively argues that the Alaska Constitution's due process
28 AS 04.11.480(a).
29 AS 44.62.460(e)-(e)(1).
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clause30 forbids shifting the burden of proof to a licensee in the face of a municipal
protest. We construe this as an argument that the Alaska Constitution forbids placing the
burden of persuasion - the burden of establishing a fact by a given degree of proof -
on a liquor license holder to retain that license in light of a municipal protest.31 Stevens
claims such a placement is inconsistent with constitutional due process requirements.
We disagree.
Stevens correctly notes we have held that a liquor license is a valuable
property right for which a holder is entitled to due process before suspension or
revocation.32 We have explained that before the property interest in a liquor license can
be taken, "due process requires that [a license holder] be provided with notice and an
opportunity to be heard in a meaningful, impartial hearing."33 These procedures "need
not be elaborate," however, and due process "merely require[s] the [ABC] Board to hold
a hearing before it [can] suspend a liquor license."34 Nothing about requiring Stevens,
rather than the Borough, to carry the burden of persuasion would deprive Stevens of
30 Alaska Const. art. I, § 7.
31 See State v. 45,621 Square Feet of Land, 475 P.2d 553, 555-56 (Alaska
1970) (explaining "burden of production" and "burden of persuasion" facets of "burden
of proof"). This burden is separate and distinct from the burden of production - the
burden of establishing a prima facie case to avoid summary judgment or a directed
verdict on an issue - which the Borough successfully bore. See Kinzel v. Discovery
Drilling, Inc., 93 P.3d 427, 433 (Alaska 2004) (describing how proponent bearing burden
of production must establish prima facie case of given fact).
32 Rollins v. State, Dep't of Revenue, Alcoholic Beverage Control Bd., 991
P.2d 202, 211 (Alaska 1999).
33 Id. (citing Thorne v. State, Dep't of Pub. Safety, 774 P.2d 1326, 1329
(Alaska 1989)).
34 Id.
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notice, an opportunity to be heard, or the impartiality or significance of his hearing. We
have implicitly acknowledged the procedural propriety of such burden-shifting in another
context,35 and although we do not preclude the possibility that due process could prevent
the legislature from shifting either the burden of production or persuasion in other
contexts, we hold that it does not do so under AS 04.11.480.36
We finally note that although the ALJ correctly articulated the burden of
proof and its placement on Stevens, the record before us suggests that Stevens may not
in fact have been held to that burden. The ALJ described the Borough as the "first party"
and took the Borough's opening statement first. The Borough maintained in its opening
statement that it had a "valid basis that [was] not arbitrary, capricious[,] and unreasonable
for protesting" Stevens's license. The Borough then called witnesses demonstrating
Stevens's operation of Fish Heads created excessive noise, took testimony from the
Director explaining why the Borough filed the protest, and introduced evidence of
Stevens's Borough Code violations. Despite the ALJ's statements to the contrary, the
record before us suggests that the Borough, rather than Stevens, took on and successfully
carried the burden of persuasion. In that light, Stevens fails to show that he was
35 See, e.g.,Ehredt v. DeHavilland Aircraft Co. of Canada, 705 P.2d 913, 916,
916 n.5 (Alaska 1985) (noting employer who failed to provide coverage as required by
workers' compensation laws bore burden of proving non-negligence in subsequent civil
action).
36 Stevens's reliance on two of our previous decisions is misplaced. Alcoholic
Beverage Control Bd. v. Malcolm, Inc. examined a liquor license revoked for violation
of a statute analogous to current AS 04.11.370(a); as Stevens acknowledges, subsection
.370(a) places the burden on the ABC Board to demonstrate the act or omission alleged.
391 P.2d 441, 444 (Alaska 1964). Alcoholic Beverage Control Bd. v. Decker involved
the ABC Board's license denial as against the public interest as required by statute, not
a protest by a municipality or citizens. 700 P.2d 483, 485 (Alaska 1985). Neither case
addressed the due process requirements for the burden of proof or analyzed liquor license
protest procedures under section .480.
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prejudiced by the statutory burden-shifting regime.37
We therefore conclude that Stevens's due process rights were not violated
at the hearing before the ALJ.
C. Stevens's Collateral Challenge On His Citation Convictions
Stevens raises several arguments challenging the validity of the ordinance
on which his citation convictions were based. Stevens reasons that to the extent the
Borough's protest was based in whole or great part on these citations, the protest also is
invalid. Stevens maintains, in relevant part, that: (1) he is not estopped from challenging
the noise ordinance's validity by virtue of his arguments before the court of appeals; and
(2) due to the Borough's failure to follow required procedures to pass the noise
ordinance, it is invalid.
As the superior court noted, Stevens failed to brief these arguments before
either the ABC Board or ALJ, and, except in passing, failed to mention them during oral
argument before the ALJ. Stevens instead merely referenced his then-ongoing citation
conviction challenges before the court of appeals - which ultimately affirmed Stevens's
convictions.
To the extent Stevens might have been permitted to collaterally challenge
the citation convictions, he was required to brief adequately his challenge as an initial
matter before the ALJ.38 Failure to do so precludes Stevens's attempt to collaterally
37 Alaska R. Civ. P. 61 (directing court to "disregard any error or defect . . .
which does not affect the substantial rights of the parties"); see also Dobos v. Ingersoll,
9 P.3d 1020, 1024 (Alaska 2000) (holding appellant bears burden of demonstrating
prejudice from error).
38 Palmer v. Municipality of Anchorage, Police & Fire Ret. Bd., 65 P.3d 832,
839 n.16 (Alaska 2003) ("We do not generally reach the merits of arguments not
presented to the agency whose decision is appealed.") (citing Amerada Hess Pipeline
Corp. v. Alaska Pub. Utils. Comm'n, 711 P.2d 1170, 1181 n.22 (Alaska 1986)).
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challenge his citation convictions here, especially in light of both his knowledge as a
liquor licensee that violations of local law could result in the revocation of his liquor
license and his repeated encounters with the Borough preceding and following his initial
citation. Although Stevens unsuccessfully challenged the noise ordinance on direct
appeal by failing to preserve the issue,39 he also could have filed a declaratory action
against the ordinance's validity or attacked the ordinance's validity before the ALJ as an
initial matter in this case. Stevens's failure to do so does not create a new avenue before
this court by which he may challenge his convictions.
On this record, Stevens's citation convictions themselves are sufficient to
overcome a challenge that the Borough behaved in an arbitrary, capricious, and
unreasonable manner in protesting Stevens's continued operation under his liquor
license. We therefore affirm the superior court's conclusion that the ALJ correctly found
the Borough's protest was not arbitrary, capricious, and unreasonable.
V. CONCLUSION
We AFFIRM the decision of the superior court upholding the ABC Board's
decision.
39 Stevens, 146 P.3d at 8-9, 13.
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