Harry Joseph Pollack and Arthur Morton Pollack v. Joy R. Simonson

WILBUR K. MILLER, Senior Circuit Judge

(dissenting).

I am unable to concur in the foregoing opinion because I think the Board acted properly and the District Court’s judgment affirming its action should be upheld.

In explaining my reasons for dissenting, I shall first make a fuller statement of facts, in the hope that it will be conducive to a better understanding of the problem before us. Then I shall set forth what I think is the reasoning which should lead to an affirmance of the District Court’s judgment.

On February 14, 1964, Trio Beverage Company, Inc., filed with the Alcoholic Beverage Control Board of the District of Columbia an application to transfer its retailer’s Class A liquor license to a location on Southern Avenue, S. E., between Ridge and Bowen Roads. After the advertisement required by the statute, the application; having been protested, was heard on March 11, 1964, and on April 8, 1964, the Board made findings of fact, reached conclusions of law, and granted the application. It said the license “may issue if and when the applicant meets all the requirements of this and other Municipal Agencies.”

On February 20, 1964, Harry Jackson Pollack and Arthur Morton Pollack filed with the Board an application to transfer a retailer’s Class A license to 4510 Bowen Road, S. E., less than 300 feet from the location for which Trio had applied. After due advertisement, a hearing on the Pollack application was set for March 18, 1964. Protests were filed and a full hearing was conducted on the day set. On May 5, 1964, the Board denied the Pollacks’ application for transfer, holding that it would not be in the public interest to permit the transfer to a location within 300 feet of the Trio location previously approved.

The Pollacks sued the members of the Board and Trio in the United States District Court on May 13, 1964, and filed an amended complaint on May 21. They sought to enjoin the Board, both preliminarily and permanently, “from issuing, delivering or transmitting to Trio, the Retailer’s Class ‘A’ license granted to it by the Board on April 8, 1964.” They also prayed that the court order the Board to issue to them a retailer’s Class A license for 4510 Bowen Road, S. E., or, in the alternative, that it recall and rescind the license granted to Trio and thereafter to determine from the records of the public hearings held on the two applications which of the applicants should be granted a license. Separate motions for summary judgment were filed by Trio and the members of the Board. After hearing, the District Court found that the findings of the Board in the two proceedings are supported by substantial evidence and are not arbitrary or capricious.

Also among the Court’s findings was the following:

“Although plaintiffs [Pollacks] were physically present at said Trio hearing, they did not enter any formal appearance therein. They did not object to the granting of the Trio application, made no request to intervene in said hearing, and did not offer any evidence or otherwise testify therein. Plaintiffs did not request the Board to consolidate the hearing on the Trio application and the hearing on their own application.”

The Court also found that prior to Trio’s application “plaintiffs had actual knowledge of defendant Trio’s intention to file its application to transfer” its license to the Southern Avenue location but that nevertheless on February 20 plaintiffs [appellants] filed their application to transfer an existing license to a location within less than 300 feet from the location applied for by Trio.

Conclusions of law reached by the District Court include the following:

“1. Section 25-106, Code 1961, vests solely in the Board the right, power and jurisdiction to issue and transfer all licenses. Such statute provides that: ‘The action of the Board on any question of fact shall be final and conclusive.’

“2. Under section 25-115 (a) 5, Code 1961, the Board must, among other things, satisfy itself before issuing a license that the character of the premises and its surroundings are appropriate. In so deciding, the Board may take into consideration the nearness to and number of other liquor stores in the neighborhood.

“3. Since plaintiffs had actual notice of Trio’s application, but did not object to the granting of same, plaintiffs have no standing at this time to challenge the findings of the Board in said Trio case.”

It should be noted at the outset that the applications involved here were for the transfer of existing licenses. The parties and the Board seem somewhat confused on that point: they speak of the issuance of a license when they mean the transfer of an existing license from one site to another. It may be that in authorizing such transfer, the Board follows the practice of cancelling the original license and issuing another for the new location; but the fact is, nevertheless, that the license has simply been transferred. The number of outstanding licenses has not been increased or decreased.

Section 25-106, D.C.Code (1961), is in part as follows:

“The right, power, and jurisdiction to issue, transfer, revoke and suspend all licenses issued under this chapter shall be vested solely in the Board, and the action of the Board on any question of fact shall be final and conclusive * *

In § 25-107 of the Code it is provided that “The Commissioners shall have specific authority to make rules and regulations for the issuance, transfer, and revocation of licenses * * The only rule or regulation which. the Commissioners have made with respect to the transfer of licenses has to do with the transfer from one holder to another;¹ hence, the Commissioners have made no rule or regulation concerning the transfer of a license from one location to another. I think it beyond question, however, that the Board had authority under § 25-106 to authorize such a transfer, although the Commissioners have given it no standards or guidelines for the exercise of that authority.

Appellants argue that the Board has unlawfully limited the number of Class A licenses in the locality and that, without authority, it has fixed a minimum distance between the locations of such licenses. I do not agree. The Board has not limited the number of licenses in the locality or community; it has simply refused to transfer an existing license to a location less than 300 feet from one previously authorized. In doing so, I think the Board performed the duty imposed upon it by § 25-115(a), D.C.CODE, which includes the following:

“ * Before a license is issued the Board shall satisfy itself:

“5. That the place for which the license is to be issued is an appropriate one considering the charac- . ter of the premises, its surroundings, and the wishes of the persons residing or owning property in the neighborhood of the premises for which the license is desired.”

Although the Board must so satisfy itself “Before a license is issued,” I think the provisions must also be followed before a license is transferred to a new location. It is hardly to be supposed that Congress provided that, before issuing a license, the Board must find that the place for which it is to be used is appropriate, but did not intend a similar finding to be made with respect to a different location to which a transfer is sought. I would hold that the Code section requires the Board to find appropriate any place for which a license is to be used, whether it be the original location or another to which transfer is sought.

The appellants argue that the Board unconstitutionally denied them due process and equal protection. Suffice it to say that I discern no constitutional issue. It is also argued by appellants that they were entitled to a comparative hearing under the Ashbacker doctrine; ² but the basic statute involved here does not entitle competing applicants to a comparative hearing. Federal Home Loan Bank Board v. Rowe, 109 U.S.App.D.C. 140, 284 F.2d 274 (1960).

Apparently realizing that the Rowe case controls here, the majority seek to distinguish it from the present case. They admit that the Alcoholic Beverage Control Act, like the statute involved in the Rowe case, “does not explicitly require a hearing before denial.” The Rowe decision also expressly held that, unlike the Ashbacker case, the basic statute involved “did not entitle competing groups of applicants to a comparative hearing.” The same is true in the case under consideration: the basic statute does not entitle competing groups of applicants to a comparative hearing.

The majority’s effort to distinguish this case from the Rowe case is set forth in the following language:

“* * * But in Rowe, unlike here, the appellants were aware, when appearing before the Bank Board, that their license application and others might be mutually exclusive, and they had the opportunity to argue expressly to the Board that ‘they possessed “more suitability for managing and handling a Federal Savings and Loan Association than” ’ the other applicants. 109 U.S.App.D.C. at 142, 284 F.2d at 276.”

I find nothing in the Rowe opinion to indicate that the appellants there “were aware, when appearing before the Bank Board, that their license application and others might be mutually exclusive * * Mutual exclusivity did not appear until nearly three months after the Rowe hearing when, on October 2, 1959, the Bank Board approved the application of another group and announced it had determined “that a necessity exists for only one new savings and loan facility in the area to be served * * The Bank Board could have authorized both facilities, had it thought both were justified.

In like manner, the Alcoholic Beverage Control Board could have authorized the transfer of both liquor licenses here involved had it thought that course proper in the circumstances. The point is that the applications in the Rowe case and in this case were not made mutually exclusive by statute and were not so in fact until the two Boards decided that necessity exists for only one new facility in the area to be served.

Thus it is wrong to say, as does the majority opinion, that in the Rowe case, “unlike here, the appellants were aware, when appearing before the Bank Board, that their license application and others might be mutually exclusive * *

The effect of the majority’s holding here is that in the Rowe case the appellants were properly denied a comparative hearing because they knew their license application and others were mutually exclusive; but that in this case the appellants were unaware, when appearing before the Board, that their license application and Trio’s were mutually exclusive, and therefore they were entitled to a comparative hearing. In my view, this is queer reasoning.

The majority add, in attempting to distinguish the Rowe case, that the appellants here “had the opportunity to expressly argue to the Board that ‘they possessed “more suitability for managing and handling a Federal Savings and Loan Association than” ’ the other applicants.” This seems to imply that the appellants here had no opportunity to argue to the Board that they “possessed more suitability for managing and handling” a liquor store in the requested area than did Trio. Such an implication does not follow, because the appellants had full opportunity to make that argument to the Board. They were present at the Trio hearing but made no such argument. They stated they had no objection to the grant of Trio’s application, did not move to consolidate the two proceedings, and did not ask to intervene or to offer evidence.

The majority’s action here amounts to an unwarranted addition to the basic statute.

1 . Section 2-117 of the District of Columbia Regulations, Alcoholic Beverage Control, is as follows:

“Transfer of Licenses. Licenses may be transferred only upon the written request of the licensee, and the transferee shall comply with all the requirements of the Act respecting the granting of original licenses.”

2 . Ashbacker Radio Corp. v. Federal Communications Comm., 323 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945).