                                              RENDERED : FEBRUARY 19, 2009
                                                          TO BE PUBLISHED


               ~Uyrrmr           tL.Uurf     of ~
                              2007-SC-000315-DG
                              2007-SC-000581-DG

LOUISVILLE/ JEFFERSON COUNTY                                   ~     t~5,
METRO GOVERNMENT                                 APPELLANT CROSS-APP~LLE


                  ON REVIEW FROM COURT OF APPEALS
V.        CASE NOS . 2006-CA-000068-MR AND 2006-CA-000113-MR
                FRANKLIN CIRCUIT COURT NO . 05-CI-00386


TDC GROUP, LLC,
D/B/A MOLLY MALONE'S                            APPELLEE/CROSS-APPELLANT

AND

ALCOHOLIC BEVERAGE CONTROL BOARD,
COMMONWEALTH OF KENTUCKY                                              APPELLEE


                OPINION OF THE COURT BY JUSTICE NOBLE

                                  AFFIRMING

      This appeal arises from a challenge by Louisville/Jefferson County Metro

Government ("Metro") to a decision of the 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 KRS 241 .075, which prohibits the

issuance of a retail drink license to an applicant located in a "combination

business and residential area" if another "similar establishment" is located

within 700 feet of the applicant. Metro challenges the ABC Board's

interpretation and application of the measurement method in KRS 241 .075.

Molly Malone's has cross-appealed to challenge the constitutionality of the
 statute on the ground that it constitutes "special legislation" in violation of

 Sections 59 and 60 of the Kentucky Constitution . The Court of Appeals ruled

 against the ABC Board on the measurement issue, but ruled in favor of Molly

Malone's as to the constitutionality of the statute . The Court of Appeals is

hereby affirmed for reasons other than those stated in its opinion .

                                   I . Background

       Molly Malone's operates at 933 Baxter Avenue in Louisville, Kentuc

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 administrator

denied the application, citing inadequate off-street parking and public

sentiment against issuance of the license . The administrator also relied on the

700-feet restriction in KRS 241 .075. By the administrator's measurement two

other retail drink licensees on the other side of Baxter Avenue-Burns 8s

Bielefeld, Inc., d/b/a Wet Willy's, and Outlook Inn, Inc ., d/b/a Outlook Inn-

were within 700 feet of Molly Malone's . The administrator measured the

distance to Wet Willy's as 398 feet by walking in the direction of Wet Willy's

from the entrance of Molly Malone's, crossing the street at the nearest

intersection (where Morton Avenue ends at Baxter Avenue and which includes

no marked crosswalk), and then continuing to the entrance of Wet Willy's . The

administrator measured the distance to Outlook Inn as 336 feet by the same

method, except the intersection used in that route was where Christy Avenue

ends at Baxter Avenue, which also included no marked crosswalk.
                                         2
        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;) Wayne Westerman, a land surveyor and expert

 for Molly Malone's ; Donal Ryan, one of the owners of Molly Malone's; and

 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 KRS 241 .075(3)'s requirement that the

measurement be taken according to the "shortest route of ordinary pedestrian

travel" means a route that is both lawful and safe. The Board rejected the local

administrator's measurement, which required crossing in the middle of the

block and without a marked crosswalk, which the Board read as violating KRS

189 .570(6)(c), and going across a road known for its heavy traffic, which the

Board concluded was unsafe. Instead, the Board adopted Molly Malone's

proposed measurements, which assumed that a pedestrian would walk to the

nearest intersection with a marked crosswalk (located where Highland Avenue


      i Schreck's actual title is Director of the Department of Inspections, Permits and
Licenses. The Department is Metro's local ABC agency.
                                           3
 crosses Baxter Avenue) and which were over 700 feet for both Wet Willy's and

 Outlook Inn. The Board concluded that the route through the intersection at

Highland Avenue was the shortest safe and legal route of ordinary pedestrian

travel.

       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 KRS 241 .075(3) . Molly

Malone's in turn argued that the statute was unconstitutional because its 700-

feet requirement only applied to businesses in certain parts of first-class cities

and consolidated local governments and was therefore discriminatory and

violated the proscription on special legislation founding Section 59 and 60 of

the Kentucky Constitution .

      The circuit court affirmed the Board's decision. . It held that the Board

had interpreted the measurement requirements of the statute correctly and did

not reach the issue of the statute's constitutionality.

      Metro again appealed, challenging the Board's reading of the statute .

Molly Malone's filed a cross-appeal, 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 long-standing 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
                                        5
 constitutionality unless necessary to a proper determination of the merits of

 the cause under consideration .") ; see also Three Affiliated Tribes of Fort

 Berthold Reservation v. Wold Engineering P.C. , 467 U .S . 138, 157-58 (1984)

 ("It is a fundamental rule ofjudicial 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 (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 of 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 .

                  B. Measuring Distance Under KRS 241 .075

      The Court of Appeals was correct in upholding the ABC Board's reading

of KRS 241 .075(3) as requiring that the measurement be taken along a route

that is both lawful and safe. This Court has recognized the "deference afforded

an administrative agency's construction of a statute that it is charged with

implementing," so long as the "agency interpretation is in the form of an

adopted regulation or formal adjudication ." Board of Trustees of Judicial Form

Retirement System v. Attorney General of the Commonwealth , 132 S .W.3d 770,

786-87 (Ky. 2003) (citing Chevron, U.S.A., Inc . v . Natural Res. Def. Council,

Inc . , 467 U .S . 837, 844-45 (1984)) ; see also Commonwealth, ex rel . Stumbo v.
                                         6
 Kentucky Public Service Com'n, 243 S .W.3d 374, 380 (Ky . App. 2007) ("[W]e

 afford deference to an administrative agency's interpretation of the statutes and

 regulations it is charged with implementing ."); Commonwealth ex rel . Beshear

 v. Kentucky Utilities Co . , 648 S.W .2d 535, 537 (Ky. App . 1982) ("Great

 deference is always given to an administrative agency in the interpretation of a

 statute which is within its specific province.") . The ABC Board's interpretation

 of KRS 241 .075(3) came in the context of the formal adjudicatory process,

 namely an appeal to the Board. Moreover, the Board's interpretation is not

arbitrary or capricious, as it was determined by applying a reasonableness

analysis.

       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 to

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



       2 This description of the geographical layout of Baxter Avenue is not completely
accurate. Baxter Avenue actually extends north-northwest and south-southeast,
which means it has an east-northeast side instead of an east side, and a west
southwest side instead of a west side. Because the use of such sub-ordinal directions
can be confusing for readers (and the author of this Opinion) and the exact directions
as they appear on a map are not crucial to this decision, the directions used in the
main text all assume a clockwise rotation of approximately 22 .5 degrees . Thus, north-
northwest is described as "north," and south-southeast is described as "south."
                                            7
 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 . Wet 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 KRS 189 .570(6)(c), which reads: "Between adjacent intersections

within the city limits of every city at which traffic control signals are in

operation, pedestrians shall not cross at any place except in a marked

crosswalk." The Board read the statute as requiring all crossings within a city

to take place at intersections with traffic control signals and marked

crosswalks.

      This interpretation, however, ignores that the "at which traffic control

signals are in operation" language modifies "adjacent intersections," all of

which creates the condition precedent 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
                                          8
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 KRS 189 .010(4)(a) ("`Intersection' means . . .

[t]he area embraced within the prolongation or connection of the lateral curb lines,

or, if none, then the lateral boundary lines of the roadways of two (2) highways

which join one another, but do not necessarily continue, at approximately right

angles, or the area within which vehicles traveling upon different highways joining

at any other angle may come into conflict . . . .") . The intersections at Highland

Avenue and Morton Avenue are adjacent; the intersections at Highland Avenue

and Christy Avenue are not adjacent, since the intersection at Morton Avenue lies

between them . Because there are no traffic control signals in the intersections at

Morton Avenue, Christy Avenue, or Breckenridge Street, KRS 189.010(4)(a) does

not bar crossing Baxter Avenue outside of a marked crosswalk in the area in

question .

      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, KRS 189 .570, which regulates pedestrians, appears only




      3 A crosswalk is:
      (a) That part of a roadway at an intersection within the connections of
      the lateral lines of the sidewalks on opposite sides of the highway
      measured from the curbs or in the absence of curbs, from the edges of
      the traversable roadway; or
 to delegate duties to yield rights-of-way and to prohibit certain specific

 dangerous actions by pedestrians . For example, KRS 189 .570(4) assumes

 pedestrians will cross roadways "[w]hen traffic control signals are not in place

 or in operation" and requires that drivers yield the right of way to pedestrians

 already crossing the roadway . KRS 189 .570(6) (a) assumes that pedestrians

 may cross at places other than a crosswalk, requiring only that "[e]very

 pedestrian crossing a roadway at a point other than within a marked crosswalk

or within an unmarked crosswalk at an intersection shall yield the right-of-way

to all vehicles upon the roadway ." KRS 189 .570(9) places        a further limit, but
no prohibition, on crossing outside a crosswalk : "No pedestrian shall suddenly

leave a curb or other place of safety and walk or run into the path of a vehicle

which is so close as to constitute an immediate hazard." Absent the limited

circumstances of adjacent intersections with traffic control signals, it appears

that crossing a roadway outside of a marked or unmarked crosswalk is not per

se illegal .4


       (b) Any portion of a roadway at an intersection or elsewhere distinctly
       indicated for pedestrian crossing by lines or other markings on the
       surface .
KRS 189.010(2) . Subsection (a), when contrasted with subsection (b), appears
to define an "unmarked" crosswalk . Arguably, at least one such unmarked
crosswalk is present across Baxter Avenue at the Christy Avenue intersection,
since it appears that some sidewalk runs down the alley perpendicular to
Baxter Avenue, which would create an area of roadway between the connection
of the lateral lines of that sidewalk and the one that runs on the side of Christy
Avenue . As the Court of Appeals noted, "Indeed, the record shows that there is
an alley opposite the terminus of Christy Avenue, along which the lines of the
sidewalk clearly continue ."
       4 This is not to say the practice commonly known as jaywalking is per se legal
either. For example, one definition of "jaywalking" is "[t]he act or instance of crossing
a street without heeding traffic regulations, as by crossing between intersections or at
a place other than a crosswalk ." Black's Law Dictionary 852 (8th ed. 2004) . The term
covers a broader category of behavior than merely crossing outside a crosswalk.
                                            10
       Thus, the ABC Board was incorrect in reading KRS 189 .570(6)(a) as

making it illegal to cross Baxter Avenue at Morton Avenue and Christy Avenue.

Furthermore, because the ABC Board is not charged with administering the

traffic regulations, its interpretation of the statute is accorded no deference by

the courts of this Commonwealth .

      This conclusion, however, does not end the enquiry. The ABC Board

read KRS 241 .075(3) to require that the path of measurement be both lawful

and safe. While the question of the legality of the path is a pure question of

law, which this Court has reviewed de novo, whether the path urged by Metro

(and used by the local administrator) is safe is a finding of fact and is entitled

to a greater deal of deference . KRS 13B.150(2) requires that when reviewing an

administrative agency's decision, "[t]he court shall not substitute its judgment

for that of the agency as to the weight of the evidence on questions of fact." In

fact, the court may only reverse an agency's

      final order, in whole or in part, . . . if it finds the agency's final
      order is :
            (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 affected the
            outcome of the hearing;
            (fl 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.

 KRS 13B .150(2) .

       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 Associates,_ 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 that such crossings are not illegal and that

pedestrians who cross outside a crosswalk are required to yield the right-of-

way . That a crossing is legal and a pedestrian has a duty with regard to the

right-of-way, however, does not make the crossing inherently safe. Nowhere

does this analysis take into account the evidence presented to and reviewed by

the ABC Board. In fact, the Court of Appeals simply failed to engage in proper

judicial review of the ABC Board's finding, choosing instead to treat it like

review of a question of law.

      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
                                          12
 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 Weather, 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 KRS

241 .075 and its interpretations of the statute, unless clearly contradicted by

the language of the statute itself, are accorded deference by the courts, it is

unclear that even a lack of substantial evidence of the unsafe nature of

crossing Baxter Avenue would require reversal of its decision . The Board

concluded, "The only safe and reasonable means of crossing Baxter Ave[nue] is

by the use of marked crosswalks at the Highland Ave[nue] intersection where

traffic signals are in place. . . . [T[he Board's distance measurement based
                                        13
 upon the use of marked crosswalks is proper, irrespective of legal pedestrian

laws ." Though this passage is not explicit, it clearly implies that the Board

reads the "ordinary pedestrian" language of KRS 241 .075(3) to mean a

reasonable pedestrian. In determining what a reasonable pedestrian would do

in this situation, the Board required the measurement to include a marked

crosswalk, even if a pedestrian would not be legally obligated to use the

crosswalk. That the Board incorrectly interpreted KRS 189.570(6) to conclude

that the proposed pedestrian crossings were illegal does not undermine this

final conclusion, since it reached its decision "irrespective of the legal

pedestrian laws ."

      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 KRS 241 .075. Such

policy decisions are a fundamental part of an administrative agency's

regulatory powers as delegated to them by the legislature . Thus, this Court

concludes that the Board did not abuse its discretion, and its decision must be

upheld .
                                  III. Conclusion

       The Court of Appeals therefore should have affirmed the decisions of the

circuit court and the ABC Board based solely on the Board's interpretation of

the licensing statute and its findings of fact. Instead the Court of Appeals

affirmed the decision to grant Molly Malone's application by declaring that KRS

241 .075 was special or local legislation in violation of Section 59 and 60 of the

Kentucky Constitution, meaning that the Board therefore had not erred insofar

that it found the distance between Molly Malone's and the other similar

establishments was not a bar to granting the application . Because this Court

finds sufficient reason to affirm the Board's decision within the standard

process of judicial review of an administrative agency's decision, the

constitutional issue cannot be addressed . Baker, 204 S .W .3d at 598

("Therefore, we must not reach a constitutional issue if other grounds are

sufficient to decide the case .") . Therefore, for the foregoing narrow reasons,

which are different than those articulated below, the decision of the Court of

Appeals is affirmed .

      Minton, C .J. ; Cunningham, Schroder, Scott and Venters, JJ., concur .

Abramson, J ., not sitting.
COUNSEL FOR APPELLANT/CROSS APPELLEE,
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT :

David A. Sexton
Assistant Jefferson County Attorney
Fiscal Court Building
531 Court Place, Suite 900
Louisville, Kentucky 40202


COUNSEL FOR APPELLEE/CROSS APPELLANT,
TDC GROUP, LLC, D/B/A MOLLY MALONE'S :

Kenneth Sidney Handmaker
Kevin Lee Chlarson
Middleton Reutlinger
2500 Brown 8v Williamson Tower
Louisville, Kentucky 40202


COUNSEL FOR APPELLEE, ALCOHOLIC BEVERAGE CONTROL BOARD,
COMMONWEALTH OF KENTUCKY :

Henry Joseph Curtis
La Tasha Arnae Buckner
Matthew Scott Finley
Office of Alcoholic Beverage Control
1003 Twilight Trail
Frankfort, Kentucky 40601
