then the action of the Board is clearly subject to judicial review.
At the hearings before the Board there was not one scintilla of evidence that the premises or its surroundings were not suitable; nor did any person residing or owning property in the neighborhood appear and object to the issuance of the license. After counsel for the plaintiff wrote the Board expressing doubt as to whether there was any evidence before the Board which would support the Board's finding, and requesting a copy of the Board's Finding of Fact, the Chairman of the Board advised counsel there had been no Finding of Fact and, therefore, no copy existed to furnish him. It was then, for the first time, that the Board disclosed that the decision of the majority was based upon the location of the premises and the belief that the area was adequately serviced so far as licensed establishments were concerned. At no time during either hearing was it even suggested by any witness, by counsel, or by any member of the Board, either by way of direct statement or innuendo, that the area was adequately serviced. Indeed, the dissenting member of the Board testified before this Court that he had no recollection of the other members of the Board ever discussing with him the adequacy of the service of that area. Then too, the majority of the Board certified on the application itself (Plaintiff's Ex. No. 4) that its denial was based on Section 14(a)5, and no mention whatever was made as to the adequacy of service for that area.
Furthermore, there was no evidence before the Board as to how many restaurants there were in the 'area'; whether or not the 'area' was heavily or sparsely populated; no mention of the relative proportion of persons who made their residences there and those who worked there; no evidence as to the extent of the businesses and other public places in the surrounding neighborhood; no evidence as to the volume of business done by the other licensees in the neighborhood; or any of the many factors which would have enabled the Board to weigh the circumstances and arrive at a considered judgment as to whether the 'area' was already 'adequately serviced' instead of making the pronouncement without any evidence on which to base it.
The members of the Board are administrative officers and are permitted and required to exercise sound discretion in all matters which come within their jurisdiction and unless it can be said that they acted arbitrarily and capriciously, the courts will not interfere. The problem is not whether they erred in their determination of a question of fact, but rather whether there was sufficient evidence to support their ruling. United States ex rel. Russell v. District of Columbia, 50 App.D.C. 296, 271 F. 370.
On the facts as above related, did the majority of the Board, in denying this license, act arbitrarily and capriciously?
The conclusion is inevitable that they did. In the Court's opinion, their action was unwarranted in law because it was without any factual basis in the evidence. Considering that there was not one word mentioned at either hearing as to the adequacy of service in the area; that the Board in its first notification to the plaintiff of its refusal to issue a license did not assign that as the reason therefor; that the dissenting member of the Board testified before this Court that he had no recollection of the other members of the Board ever discussing with him the adequacy of the service of that area; that there was no evidence before the Board upon which it could have arrived at a considered judgment as to whether the area was already adequately serviced; and, further, that if the majority of the Board were of the opinion that this area was already adequately serviced, then the two hearings served no real purpose, it must be concluded that the action of the majority of the Board was arbitrary and capricious.
Furthermore, at the close of the hearing before the Board on November 8, 1946, one Board member made this statement: 'Of course, you understand, Mr. Donohue, the Board can take no action until we get the police report. If it should develop that the police should send in an adverse report on this place, the case will be continued for another hearing.' (Plaintiff's Ex. No. 5.)
If the Board was satisfied that this area was already adequately serviced, then no police report on this location was necessary at all. But the Board could not properly have come to the conclusion that the area was already adequately serviced without some evidence to establish that fact. There was a complete absence of evidence on that point.
For the reasons stated, the relief prayed for by the plaintiff will be granted and counsel for plaintiff will prepare the appropriate order.
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