discretion vested in it by Congress, and at its earliest convenience either grant or refuse the license. The protest or approval of no one individual or organization shall carry any more weight in the consideration of the Board than shall the protest or approval of any other individual or organization which may assume the opposite side of the argument. * * *'
The inadequacy of these rules to comply with the statutory requirement is manifest and appears to have been acknowledged by the Board itself. Thus there was a Committee of the District Bar Association working on drafting a set of rules and regulations to secure to protestants the right guaranteed them under the statute. Whatever may be the adequacy of the rules to come, the present set is woefully inadequate, a token compliance with the statutory prerequisite.
The petitioners could have discovered nowhere what method the Board was to use to determine its vital statistics or how the Board wished petitioners to present their proof.
The danger of operating in a procedural vacuum is seen when this case is given closer examination. The six hundred foot radius and the 'neighborhood' were both constructed after the hearing and the Board knew the number of protestants. No opportunity was afforded persons who, not knowing they were within the Board's determination of these areas, to express their position.
The method determining the adult population instead of being 'the best means available' has little chance of success. No relationship is known between houses and adult population. The factor of 2.4 secured by a telephone call to someone unknown at the Census Bureau relates households and adults over the entire United States. Even here, the Board's figure is outdated. The figure has been steadily dropping and the proper factor is presently 2.2.
The factor further does not take into consideration the fact that it is a suburban community in a relatively densely populated area in the eastern United States. Housing block statistics in the area or census tract statistics, for example, would give a closer approximation to the correct number of adults residing in the community.
These facts and the failure of the Board to prescribe rules and regulations to allow a fair hearing for remonstrants demonstrate that no liquor license along MacArthur Boulevard could have been validly issued.
The procedure which the Board followed in this case, especially that of determining the six hundred foot radius and the 'neighborhood' after the hearing was over and the petitions already compiled, resulted in the granting of a license in an area where the wishes of the neighborhood were unalterably opposed to the Board's action. The net effect of operating without rules and regulations was that the wishes of the community were by-passed and a decision made arbitrarily contrary to those desires.
In balancing the equities, as the Court must before granting an injunction, the Court has considered the requests made by the plaintiffs for continuances before the Board in order to properly present their case, the speed with which MacArthur Liquors, Inc. moved, so that within minutes of the time the license was issued it was doing business at the new address, the continuation of the operation of the liquor store even after knowledge of the Court order, and the precept that a court should only with great caution issue an injunction against a Governmental agency.
After a careful consideration of the records of this case and after weighing all of the above factors, the Court is of the opinion that the motion for preliminary injunction should be granted.
The Court notes that counsel, in his brief and oral argument to the Court, has stated the question as one of comparing the relative merits of the site at 5136, where MacArthur Liquors, Inc., is now located, and 4881, where it sought to be transfered. Thus he showed that the Francis Scott Key School was 2/10 of a mile from the old location and 5/10 of a mile from the new; the Palisades Playground 1/10 of a mile (right around the corner) from the old location, 8/10 of a mile from the new; and the Palisades Church 4/10 of a mile before and now 1 1/10 mile. The Florence Crittendon School, a home for unwed mothers and rehabilitation center for young girls, protested the move to 4881, but it, too, is closer to the old location than it is to the present site.
To this same end there has been evidence that the area about 4881 is commercial, or at least more commercial than that about 5136. There are greater parking facilities at 4881 than at 5136, and all in all, from a mercantile point of view, it is a more profitable location.
The Board, too, apparently thought comparative merit to be the issue before it. Thus it found:
'(4) * * * That the proposed premises is located in a substantial shopping center which is zoned for commercial use, and is, in fact, a much preferred location to 5136 MacArthur Boulevard from every standpoint including off the street parking. * * *'
The Court is of the opinion that this misconceives what is really at stake. The question is whether the wishes of the neighborhood and the character of the premises warrant the granting of a liquor license at a given locality. Where that store will come from, what its previous location or history was, is beside the point. The people in the neighborhood of 4881 should not suffer because of a previous erroneous determination. It is not a question of the lesser of two evils. In each case there should be a positive affirmative showing of the propriety of this type of store in the area.
The statute does not contemplate the weighing of localities or sentiments. To these petitioners it is all the same if the store was previously located in the best or worst of areas and by statute their wishes and the character of the premises at the given location are to govern.
This memorandum is to be considered specific findings of fact and conclusions of law.
The motion for a preliminary injunction is granted.